NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. M.G.M.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

M.G.M.,

Defendant,

and

A.L.M.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF M.M.,

a Minor.

__________________________________

May 19, 2015

Before Judges Lihotz and St. John.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-0268-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Colleen A. McCarthy, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Nancy R. Andre, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Todd Wilson, Designated Counsel, on the brief).

PER CURIAM

Defendant A.L.M. appeals from a May 9, 2012 Family Part order, entered following a fact-finding hearing. The trial judge determined the preponderance of the evidence presented by plaintiff the Division of Child Protection and Permanency (Division) showed defendant abused or neglected his then seven-year-old son M.M., within the meaning of N.J.S.A. 9:6-8.21(c)(3). On appeal, defendant urges reversal, arguing the Division's evidence was insufficient to meet the requirements of Title Nine. Specifically, he asserts the trial judge: (1) improperly relied upon the child's uncorroborated statements; (2) erred in admitting the caseworker's lay opinion regarding the veracity of the child's statements; and (3) failed to make any specific factual findings to support his conclusion. We agree and reverse.

Defendant and M.M.'s mother are estranged. The child lives with his mother and sister. Defendant's overnight visitation began in January 2011.

On September 12, 2011, M.M.'s mother contacted the police alleging defendant had inappropriately touched the child, explaining defendant bathes M.M., kisses him on the lips and face, and sleeps in the same bed with M.M. while naked. Police contacted the Division.

On September 13, 2011, Division worker Rose Krawiecki interviewed M.M. at his mother's home. He stated he slept in the same bed with his father, wearing pajamas; sometimes defendant slept in the nude. M.M. stated he once observed defendant get out of the bed "butt naked" and saw his penis and his "hiney." M.M. said sometimes while sleeping, defendant's penis touched his pajamas at his buttocks. M.M. also revealed he once saw "white pee" come from defendant's penis. When asked about any other touching, M.M. related defendant's hand once touched his butt under his pajamas. Lastly, M.M. said: "[W]hen I'm there [defendant] visits with his friends and drinks beer and stays up night and day."

Krawiecki contacted the county prosecutor's office. Following an independent interview with the child, the prosecutor's office declined to pursue prosecution, concluding the child's statements were insufficient to support a criminal charge.

The Division completed a Safety Protection Plan enjoining defendant's visits with M.M. Defendant admitted bathing M.M., but vehemently denied all the other allegations.

Dr. Stephanie Lanese, of the CARES Institute, conducted a medical evaluation of M.M. M.M. related defendant sometimes slept naked in the same bed with him and defendant's privates sometimes touched his buttocks over his pajamas. Additionally, M.M. informed Dr. Lanese defendant bathes him, which he found uncomfortable, although he never told defendant his feelings. When asked if he had ever seen anything come out of his father's penis, he said "no." Dr. Lanese concluded "[s]leeping without clothes with [M.M.] in his bed would be considered inappropriate, [as would] washing him at this stage when [M.M.] can provide his own bathing by himself . . . ." She recommended only supervised contact between defendant and M.M. However, Dr. Lanese concluded a psychological evaluation was necessary to "to determine whether [M.M.] has experienced sexual abuse."

The Division filed a verified complaint for care and supervision of M.M. On the return date of the order to show cause, Krawiecki testified regarding her interview of M.M. Defendant also testified, denying the allegations and suggesting M.M.'s mother likely fabricated the story to retaliate against him for threatening to call the Division because she allowed M.M. to walk home alone after school. The judge granted the Division care and supervision, and provided M.M. remain in his mother's custody. Defendant was denied visitation until M.M.'s psychological evaluation was completed.

Aimee Sirois, L.C.S.W., employed by the CARES Institute, conducted a psychosocial needs evaluation of M.M. She assumed the "allegation [against defendant for sexually abusing M.M.] ha[d] been substantiated by [the Division]." Therefore, she explained, the scope of her evaluation was limited to "assessing [M.M.]'s current functioning for the primary purpose of assisting with treatment planning." Accepting the statement of M.M.'s behavior given by his mother, and not talking with defendant, Sirois concluded M.M. suffered from post-traumatic stress disorder resulting from what she believed was substantiated "sexual abuse by his father," and recommended treatment and participation in age-appropriate social activities.

Pending factfinding, defendant complied with services and attended supervised visitation, despite M.M.'s mother's resistance and disagreement with allowing visits. Division caseworker Dawn Mills' pre-trial report stated M.M. enjoyed time with his father, and cited concerns regarding M.M.'s mother's mental health and conduct.1

Trial was held on May 9, 2012. The Division presented Krawiecki's initial incident report and her testimony regarding her September 13, 2011 conversation with M.M.; Dr. Lanese's medical evaluation; and Mills' April 30, 2012 court report. Defendant testified on his own behalf and presented the testimony of Mills.

The judge rendered an oral opinion. Summarizing the Division's evidence, the judge referred to Krawiecki's testimony relating M.M.'s initial interview statements, including the statement he viewed discharge from defendant's penis, finding "[t]hat statement in and of itself has a level of credibility." The judge determined "[t]he information coming from this child inherently sounds like information coming from a seven-year-old about a sexual encounter. This is what, or this is how one would imagine a child would provide testimony about." The judge also found defendant's testimony lacked credibility. He concluded the Division's proofs established defendant abused M.M., by a preponderance of the credible evidence. This appeal ensued.

Our standard of review is narrow. We defer to the Family Part's factual findings "'when supported by adequate, substantial and credible evidence.'" N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). "Where the issue to be decided is an 'alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' we expand the scope of our review." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (quoting In re Guardianship of J.T., 269 N.J. Super.172, 188-89 (App. Div. 1993)). The trial judge's interpretation of the law and the application of such legal conclusions to the facts are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.366, 378 (1995).

"New Jersey's child-welfare laws balance a parent's right to raise a child against 'the State's parens patriaeresponsibility to protect the welfare of children.'" N.J Div. of Child Prot. & Permanency v. Y.N., 220 N.J.165, 179 (2014) (quoting N.J. Dep't of Children & Families v. A.L., 213 N.J.1, 17-18 (2013)). Title Nine is designed to protect children who suffer serious injury inflicted by other than accidental means. G.S. v. Dep't of Human Servs., 157 N.J.161, 171 (1999) (citing N.J.S.A.9:6-8.8). See alsoN.J.S.A.9:6-8.21 to -8.73 (governing protection of abused and neglected children). "To that end, Title Nine provides for the civil prosecution of a parent or guardian who abuses or neglects a child." Y.N., supra, 220 N.J.at 178 (citing N.J.S.A.9:6-8.33).

"The statute in question addresses harm to a child . . . ." A.L., supra, 213 N.J.at 8. An "abused or neglected child" includes "a child less than 18 years of age whose parent or guardian, as herein defined, . . . commits or allows to be committed an act of sexual abuse against the child . . . ." N.J.S.A.9:6-8.21(c)(3).

Whether a parent or guardian has engaged in acts of abuse or neglect is considered on a case-by-case basis and must be "'analyzed in light of the dangers and risks associated with the situation.'" N.J. Dep't of Children & Families v. R.R., 436 N.J. Super.53, 58 (App. Div. 2014) (quoting G.S., supra, 157 N.J.at 181-82). The State bears the burden to present proofs to establish abuse or neglect, as defined in the statute. N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J.17, 32 (2011); N.J.S.A.9:6-8.46(b). "[A]ny determination that the child is an abused or neglected child must be based on a preponderance of the evidence and [] only competent, material and relevant evidence may be admitted." N.J.S.A.9:6-8.46(b). See alsoN.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super.13, 24 (App. Div. 2004) (holding the State must "demonstrate by a preponderance of the competent, material and relevant evidence the probability of present or future harm" to the minor child) (citation omitted)), certif. denied, 182 N.J.426 (2005). "Strict adherence to the statutory standards . . . is important because the stakes are high for all parties concerned." Y.N., supra, 220 N.J.at 179.

Defendant first argues the record contains no substantial proof the child was sexually abused. He maintains the judge's finding that the child's allegations, as related in Krawiecki's testimony, was "what a child would say" regarding a sexual encounter is neither competent nor corroborated. We agree.

A child's prior statements regarding allegations of abuse or neglect are admissible into evidence; however, "no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect." N.J.S.A.9:6-8.46(a)(4) (emphasis added). See alsoN.J. Div. of Child Protection and Permanency v. J.A., 436 N.J. Super. 61, 67 (App. Div. 2014) ("Stated another way, 'a child's hearsay statement may be admitted into evidence, but may not be the sole basis for a finding of abuse or neglect.'" (quoting P.W.R., supra, 205 N.J. at 33)).

Understanding "[i]t would be a rare case where evidence could be produced that would directly corroborate the specific allegation of abuse between the child and perpetrator," Z.P.R., supra, 351 N.J. Super. at 435, the corroboration requirement may be satisfied by use of "indirect evidence of abuse. Such evidence has included a child victim's precocious knowledge of sexual activity, a semen stain on a child's blanket, a child's nightmares and psychological evidence." Id.at 436 (citation and internal quotation marks omitted).

Here, M.M.'s statements formed the allegation of abuse; however, the child did not testify. SeeN.J.S.A. 2A:84A-32.4 (setting forth the framework to assure due process compliance when presenting a child's testimony regarding his or her experienced abuse); see also N.J. Div. of Child Protection and Permanency v. C.W., 435 N.J. Super. 130, 141 (App. Div. 2014). Further, the Division offered no corroborating medical or physical evidence of sexual or any abuse of M.M. Rather, it solely relied upon M.M.'s prior statements to others to establish the truth of those statements. Krawiecki's sincere belief in M.M.'s veracity and Dr. Lanese's report summarizing her evaluation based on M.M.'s statements that defendant bathed him, sometimes slept naked in the same bed, and sometimes bumped against him at night, fail to provide corroboration. Dr. Lanese specifically suggested a psychological evaluation was necessary to determine whether M.M. experienced sexual abuse. Sirois' psychosocial report, which was never admitted into evidence, fails to add anything because it was premised on the incorrect assumption sexual abuse had been confirmed. Further, if Sirois' assessment represented corroborative evidence to substantiate abuse, she should have been called to testify and defendant allowed the opportunity to conduct cross-examination. Following our review of this record, we conclude it contains no corroboration of M.M.'s allegations.

More problematic is the allegations themselves do not depict sexual abuse. Criminal sexual contact is defined in N.J.S.A.2C:14-1(d) as "an intentional touching by the . . . actor, either directly or through clothing, of the victim's . . . intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor." The Division identifies the following acts as forming the basis of the alleged abuse or neglect based on sexual abuse: (1) defendant bathes M.M.; (2) M.M. saw his father naked; (3) defendant sleeps in the same bed as M.M., at times unclothed; (4) while sleeping naked, defendant's "front" bumped against M.M.'s buttocks; and (5) M.M. may have once observed a white discharge from his father's penis as he exited the bed. Even the most indulgent view of the child's alleged statements cannot connect each isolated event to weave an act of sexual contact between defendant and M.M. Perhaps defendant should have exercised more modesty and understood his seven-year-old could bathe himself. Nevertheless, we cannot conclude these claims individually or together satisfy any section of N.J.S.A.9:6-8.21(c), let alone subsection (3).

Because the Division's evidence fails to prove abuse or neglect, we reverse the May 9, 2012 Family Part order. We order the Division to remove defendant's name from the Central Registry. See N.J.S.A. 9:6-8.11.

Based on our conclusions, we need not address the remaining arguments except to provide these brief comments. The trial judge's admission of Krawiecki's lay opinion M.M. was truthful during his interview was erroneous. Lay opinion is permissible only regarding common knowledge based on sensory perception, and never regarding a third-party's mental processes. In re Trust Created By Agreement Dated Dec. 20, 1961, ex rel. Johnson, 194 N.J. 276, 283 (2008). N.J.R.E. 701 provides

If a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue.

The Court has made very clear mere inferences, opinions, or conclusions are inadmissible under Rule 701. In re Trust, supra, 194 N.J. at 283.

Reversed.

1 Cited instances of concerning behavior included that the mother left an "angry" and "disturbing" voicemail with the Division following M.M.'s first supervised visit with defendant because the worker told M.M. to hug defendant. Also, during a home visit, she accused the Division worker of having a relationship with defendant's family. Further, M.M. and his sister related instances of verbal abuse by their mother.