DIVISION OF CHILD PROTECTION AND PERMANENCY v. J.B.D., Jr
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APPROVAL OF THE APPELLATE DIVISION
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parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3364-15T1
NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,
Plaintiff-Respondent,
v.
J.B.D., Jr.,
Defendant-Appellant,
and
J.N.M.,
Defendant.
_________________________________
IN THE MATTER OF M.R.D., a minor.
_________________________________
Argued January 18, 2018 – Decided April 24, 2018
Before Judges Simonelli, Rothstadt and Gooden
Brown.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Morris County,
Docket No. FN-14-0056-15.
Andrew J. Shaw, Designated Counsel, argued the
cause for appellant (Joseph E. Krakora, Public
Defender, attorney; Andrew J. Shaw, on the
briefs).
Kenneth M. Cabot, Deputy Attorney General,
argued the cause for respondent (Gurbir S.
Grewal, Attorney General, attorney; Andrea M.
Silkowitz, Assistant Attorney General, of
counsel; Kenneth M. Cabot, on the brief).
Rachel E. Seidman, Assistant Deputy Public
Defender, argued the cause for minor (Joseph
E. Krakora, Public Defender, Law Guardian,
attorney; Rachel E. Seidman, on the brief).
PER CURIAM
Defendant, J.B.D., Jr., appeals from the Family Part's order
finding that he abused or neglected his daughter, M.R.D.
(Miranda),1 within the meaning of
N.J.S.A. 9:6-8.21(c)(4). The
court entered the order after it determined that defendant's
earlier sexual abuse of his stepdaughter exposed Miranda to a
substantial risk of harm. On appeal, defendant argues that (1)
the trial judge erred by allowing another, but unrelated, alleged
victim of his abuse to testify as to his prior bad acts; (2) the
evidence presented at the fact finding hearing did not warrant a
finding of abuse or neglect; and (3) his due process rights were
violated when the trial court conducted an in camera interview of
his stepdaughter. For the reasons that follow, we affirm.
1 Pursuant to Rule 1:38-3(d), we use initials and fictitious names
to protect the confidentiality of the participants in these
proceedings.
2 A-3364-15T1
The facts adduced at the fact finding hearing are summarized
as follows. Miranda was born on February 2013, to her mother
J.N.M. (Judy) and defendant.2 Judy has another child, S.F.
(Sally), who was born December 2004. Defendant is not Sally's
father.3 Sally was in the legal and physical custody of her
maternal grandmother, who resides in New York, but she would visit
her mother and defendant on alternating weekends.
On October 22, 2014, Sally disclosed to her therapist that
she was afraid of defendant. She told her therapist that when
defendant would lift up either her or Miranda, he would do so by
placing his hands in their crotch and touching their vagina over
their clothing. Sally, who was almost ten years old, also
disclosed that defendant used explicit sexual words when talking
to her such as "cock" and "pussy" and he talked to her about sex.
On two or three occasions, Sally stated that defendant tried to
lick her inner thigh and told her "I want to taste your whole
body."
The therapist immediately notified the Division about Sally's
disclosure and it launched an investigation. When she was
interviewed, Judy reported that about a year ago, defendant
2
Judy is not participating in this appeal.
3
Neither Sally nor her father are parties to this litigation.
3 A-3364-15T1
disclosed to her that "he had feelings for a child he considered
his daughter when she was [thirteen]." She expressed fear for
Miranda's safety and stated that she was "already in transition
to move out[,]" and that she wanted a restraining order.
The Morris County Prosecutor's Office (MCPO) also initiated
an investigation. On October 23, 2014, the MCPO interviewed Sally
and she described several instances in which defendant touched her
inappropriately, talked to her about "sexual things[,]" and made
her feel "uncomfortable." Specifically, she recalled one incident
where she "was sitting [on defendant's] lap, and he turned [her]
around and started humping [her] like a dog would." Sally also
told a detective that she observed defendant pick Miranda up with
two fingers between her legs in the same fashion he picked her up.
She stated that she also observed him "lick [Miranda's] vagina."
Sally explained that these incidents occurred while her mother was
sleeping, in the shower, or out shopping.
The MCPO also interviewed defendant. He admitted that he had
once licked Sally's hand. When the detective questioned whether
he licked Sally or Miranda elsewhere, defendant stated, "[I]t
really pisses me off when you fucking tell me that I licked my
daughter's pussy." When asked if he had ever been accused of
similar behavior in the past, defendant admitted that there was
once a child, B.J.F. (Betty), "[t]hat lived in the neighborhood,
4 A-3364-15T1
who [he] was like a father to. [Betty] was being raised by her
grandmother. And she frequented [defendant's] house and was
friends with [his] son. And [they] took her wherever [they]
went."4 Defendant stated that she was "always wanting to jump on
[his] back, always wanting to have piggyback rides, stuff like
that." He acknowledged that the Division investigated his
relationship with Betty, but he "walked away from that unscathed."
On October 30, 2014, defendant was arrested and charged with
first-degree aggravated assault and child endangerment.
Additionally, a temporary restraining order (TRO) was issued,
prohibiting defendant from contacting Judy, Miranda or Sally, but
Judy later obtained the order's dismissal.
On January 5, 2015, the Division was contacted once again,
this time due to concerns for Judy's sobriety. The local police
department reported that it had been contacted by Judy and when
police arrived, they found her intoxicated. Judy revealed to
police that she had been consuming vodka for the past five days
while caring for Miranda because she was distraught by the
allegations against defendant. That same day, the Division
conducted an emergency removal of Miranda after determining that
Judy could not safely care for the child in her condition.
4
Judy is not the boy's mother.
5 A-3364-15T1
The Division completed its investigation of the allegations
against defendant and concluded they were substantiated.
According to its findings, both Miranda and Sally had been the
victims of defendant's abuse. It filed a verified complaint for
Miranda's custody, which the court granted. In a later proceeding,
the court ordered that while custody of Miranda should continue
with the Division, Judy, but not defendant, would be permitted
supervised visitation.
Judy later stipulated to the allegations of abuse against
her, specifically that she had been intoxicated after consuming
vodka for five days straight, that she was in "an agitated mental
state stemming from having recently learned that her husband had
sexually abused both of her daughters[,]" and that such
circumstances presented a substantial risk of harm to Miranda.
A fact finding hearing commenced as to the allegations against
defendant before Judge Maritza Berdote Byrne. The Division
presented five witnesses: Sally, MCPO Detective James Bruno,
Betty, caseworker Roberta Murdock-Liuzzi, and the Division's
expert, Dr. Anthony D'Urso. Defendant did not testify or call any
witnesses.
Sally testified, over defendant's objection, in chambers.
Before she testified, defendant argued that her testimony would
be unduly prejudicial as the Division was not seeking findings
6 A-3364-15T1
relative to Sally and because she was not his child, nor was she
in his or Judy's legal or physical custody at the time of the
alleged incidents involving Miranda. Judge Berdote Byrne
overruled these objections, finding that evidence of abuse of one
child can be relevant to the abuse of another child, and that
there was no undue prejudice to defendant. After the judge
determined that Sally's testimony was admissible, all parties
consented to her testimony being conducted in chambers with counsel
present and to the procedure to be followed in her questioning by
the judge.
Sally testified that defendant talked to her about sex, and
that he touched her crotch area over her clothing on several
occasions, and otherwise acted inappropriately. With regard to
Miranda, Sally testified that she observed defendant touching her
on three occasions and that on one occasion, while Miranda was
standing in the bathtub, he was "rubbing" her crotch with his palm
"up and down" and "[b]ack and forth" for "[thirty] seconds."
Detective Bruno, who had conducted the separate interviews
of Sally and defendant, testified about his investigation and,
during the course of his testimony, the videotape of Sally's and
defendant's interviews were played for the judge. Murdock-Liuzzi,
the Division's intake caseworker testified about the Division's
7 A-3364-15T1
records and its investigative findings that the allegations
against defendant were substantiated.
Dr. D'Urso, section chief and supervising psychologist at the
Audrey Hepburn Children's House, a regional child abuse facility
at Hackensack University Medical Center, testified that after his
review of various documents and interview of Sally, the Division's
finding of her sexual abuse was clinically supported. He explained
that his finding was based on:
[Sally's] consistent disclosures. She had
talked about detail in a variety of ways. One
of the things in an evaluation you wouldn't
want to see is the same rote presentation,
especially with a child who's ten, who would
have a larger vocabulary than a five, six, or
seven year old. She was able to attach some
of the sexual behavior to reactions she may
have, or intent, or at least her perception
of intent, and so –- on [defendant's] part I
should say.
So she talked about the sexual behavior. She
talked about witnessing her sister's behavior.
She talked about the fact that she was
reactive to it. . . . By her talking about
the sexual abuse in different ways, that would
suggest to us that she was talking about
events that she experienced rather [than]
events that she was told about, or suggested
to tell about.
He also explained that when a perpetrator sexually abuses a
child, one cannot say that the risk is limited to just that child
or the "four corners" of that abuse.
8 A-3364-15T1
Betty, who was nineteen years old at the time she appeared,
testified that when she was about six or seven until the age of
ten or eleven, defendant would babysit her. She testified that
on one occasion, defendant got in bed with her wearing just boxers
and a shirt, and that she could feel his penis from behind. She
also described other incidents that occurred in defendant's car
when he would pick her up from soccer practice and swim practice.
Betty testified that defendant would ask her to touch his groin
area, tell her that he loved her, and that he wanted to marry her
when she was older. He also warned her that if she reported him,
he would go to jail, and when he got out of jail, he would find
her and hurt her or kill her.
On October 29, 2015, Judge Berdote Byrne placed her oral
decision on the record, finding that the Division proved, by a
preponderance of the evidence presented, that, although defendant
had not actually molested Miranda, she was still an abused or
neglected child, as defendant exposed Miranda to imminent danger
and a substantial risk of harm based on his sexual abuse of Sally.
The judge made her determination after finding the Division's
witnesses to be credible and placing her findings as to each of
them on the record. As to Sally, the judge acknowledged that she
did express some confusion with respect to
recollection. She stated she had difficulty
with memory. During her testimony before the
9 A-3364-15T1
[c]ourt and on the videotape of the [MCPO]
interview she stated she tends to be
forgetful. Nevertheless during the [c]ourt’s
interview, she was adamant she was being
truthful and reiterated her statement to the
[MCPO] saying, "Believe me I wouldn’t lie
about something as serious as this."
With respect to Betty, Judge Berdote Byrne found her to be
"very clear in her testimony" and noted that "although she
demonstrated outward calm, she did not look at [defendant] the
entire time she testified, and the [c]ourt witnessed the rhythmic
clenching of her jaw throughout her testimony." The judge found
her testimony to be "credible and compelling."
Based on the credible evidence, Judge Berdote Byrne was not
convinced that defendant had sexually abused Miranda as described
by Sally. Although she found Sally "unmotivated to lie," the
judge was not persuaded "that what [Sally] witnessed were not acts
of caring for and bathing by [defendant]" and therefore, they were
not for the purpose of sexual stimulation. However, the judge
concluded that defendant "does present a current substantial risk
[of] harm to [Miranda] because the Division . . . proved by a
preponderance of the evidence that [defendant] sexually abused
[Sally]." Relying on
N.J.S.A. 9:6-8.46(a),5 the judge concluded
5
The statute provides in pertinent part:
10 A-3364-15T1
that because it was proven that defendant sexually abused Sally
while he was her caretaker, he also presented a substantial risk
of harm to Miranda. She found corroboration in Sally's statements
of sexual abuse and her "precocious sexual knowledge[,]" which
were consistent with Dr. D'Urso's expert testimony that clinically
found that Sally had been the victim of sexual abuse by defendant.
Judge Berdote Byrne also found that defendant sexually abused
Betty, but stated that this finding was not a basis for her
decision.
The judge entered a fact finding order on October 29, 2015,
stating that defendant abused or neglected Miranda. Miranda's
physical custody was given back to her mother and the litigation
was terminated by court order on February 4, 2016. This appeal
followed.
On appeal, defendant argues the following:
In any hearing under this act, . . . proof of
the abuse or neglect of one child shall be
admissible evidence on the issue of the abuse
or neglect of any other child of, or the
responsibility of, the parent or guardian and
. . . previous statements made by the child
relating to any allegations of abuse or
neglect shall be admissible in evidence;
provided, however, that 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)(1) and (4).]
11 A-3364-15T1
POINT I:
THE TRIAL COURT'S FACT FINDING
DECISION MUST BE REVERSED BECAUSE
THE TRIAL COURT ERRED WHEN IT
PERMITTED [BETTY] TO TESTIFY IN
VIOLATION OF N.J.R.E. 403 AND
N.J.R.E. 404(b).
A. THE LEGAL STANDARD.
B. THE VIOLATIONS OF
N.J.R.E. 403 AND N.J.R.E.
404(b).
POINT II:
THE TRIAL COURT'S FACT FINDING
DECISION MUST BE REVERSED BECAUSE
THE EVIDENCE PRESENTED AT THE FACT
FINDING HEARING DID NOT SUPPORT A
FINDING OF ABUSE OF NEGLECT.
POINT III:
THE TRIAL COURT'S FACT FINDING
DECISION MUST BE REVERSED BECAUSE
[DEFENDANT'S] DUE PROCESS RIGHTS
WERE VIOLATED WHEN THE TRIAL COURT
CONDUCTED AN IN CAMERA INTERVIEW OF
[SALLY] WITHOUT HIM PRESENT RATHER
THAN REQUIRING HER TO TESTIFY IN
COURT WITH HIM PRESENT (Not Raised
Below).
POINT IV:
[DEFENDANT'S] NAME MUST BE REMOVED
FROM THE CENTRAL REGISTRY OF
ABUSE/NEGLECT PERPETRATORS (Not
Raised Below).
We begin by acknowledging that the scope of our review is
limited. N.J. Div. of Child Prot. & Permanency v. Y.A., 437 N.J.
12 A-3364-15T
1 Super. 541, 546 (App. Div. 2014). We will uphold the Family
judge's factual findings and credibility determinations if they
are supported by substantial, credible evidence. N.J. Div. of
Youth & Family Servs. v. G.L.,
191 N.J. 596, 605 (2007).
Accordingly, we will only overturn the judge's findings if he or
she "went so wide of the mark that the judge was clearly mistaken."
Ibid. (citing In re Guardianship of J.T.,
269 N.J. Super. 172,
188-89 (App. Div. 1993)); N.J. Div. of Youth & Family Servs. v.
M.M.,
189 N.J. 261, 293 (2007). We do not, however, give any
"special deference" to the Family Part's interpretation of the
law. D.W. v. R.W.,
212 N.J. 232, 245 (2012) (citing N.J. Div. of
Youth & Family Servs. v. I.S.,
202 N.J. 145, 183 (2010)).
Consequently, we apply a de novo standard of review to legal
issues. Id. at 245-46.
The adjudication of abuse or neglect is governed by Title 9,
which is designed to protect children.
N.J.S.A. 9:6-8.21 to -
8.73;
N.J.S.A. 9:6-8.8. Under Title 9, a child is abused or
neglected if:
[a] parent or guardian . . . creates or allows
to be created a substantial or ongoing risk
of physical injury to such child by other than
accidental means which would be likely to
cause death or serious or protracted
disfigurement, or protracted loss or
impairment of the function of any bodily
organ; . . . commits or allows to be committed
an act of sexual abuse against the
13 A-3364-15T1
child; . . . or a child whose physical,
mental, or emotional condition has been
impaired or is in imminent danger of becoming
impaired as the result of the failure of his
parent or guardian . . . to exercise a minimum
degree of care . . . in providing the child
with proper supervision or guardianship, by
unreasonably inflicting or allowing to be
inflicted harm, or substantial risk thereof,
including the infliction of excessive corporal
punishment[.]
[
N.J.S.A. 9:6-8.21(c)(2), (3), and (4)(b).]
The statute does not require that the child experience actual
harm. N.J.S.A. 9:6-8.21(c)(4)(b). Instead, a child is abused or
neglected if his or her physical, mental, or emotional condition
has been impaired or is in imminent danger of becoming impaired.
Ibid. "In the absence of actual harm, a finding of abuse and
neglect can be based on proof of imminent danger and substantial
risk of harm. A court 'need not wait to act until a child is
actually irreparably impaired by parental inattention or
neglect.'" N.J. Dep't of Children & Families, Div. of Youth &
Family Servs. v. A.L.,
213 N.J. 1, 23 (2013) (citations omitted).
A judge may consider a parent's past actions as indicative
of his or her future ability to effectively parent. N.J. Dep't
of Children & Families, Div. of Youth & Family Servs. v. C.H.,
414 N.J. Super. 472, 482 (App. Div. 2010). Furthermore, "[p]redictions
as to probable future conduct can only be based upon past
performance. . . . Evidence of parents' fitness or unfitness can
14 A-3364-15T1
be gleaned not only [from] their past treatment of the child in
question but also from the quality of care to other children in
their custody." Ibid. (third alteration in original) (quoting
N.J. Div. of Youth & Family Servs. v. Robert M.,
347 N.J. Super.
44, 68 (App. Div. 2002)). "[P]roof of the abuse or neglect of one
child shall be admissible evidence on the issue of the abuse or
neglect of any other child of . . . the parent or guardian[.]"
N.J.S.A. 9:6-8.46(a)(1).
Applying these guiding principles, we conclude defendant's
arguments are without merit. We affirm substantially for the
reasons expressed by Judge Berdote Byrne in her comprehensive and
thoughtful oral decision, which was firmly supported by
substantial, credible evidence and was legally correct. We add
only the following comments.
Contrary to defendant's assertion that N.J.R.E. 404(b) barred
Betty's testimony of defendant's prior bad acts, in Title 9
proceedings, evidence of a parent or guardian's abuse of another
child in their care is admissible to establish a risk of harm to
the child who is the subject of the action before the court. See
N.J. Div. of Youth & Family Servs. v. I.H.C.,
415 N.J. Super. 551,
573-74 (App. Div. 2010). The fact that Betty was not his child
did not alter the admissibility of her testimony as, by his own
statement to the MCPO, defendant was "like a father to [her]."
15 A-3364-15T1
According to Betty, defendant served as a guardian while he babysat
her and picked her up from her athletic practices. She spent
overnights with him in his home where her grandmother placed her
in defendant's "care, custody [and] control[,]" see
N.J.S.A. 9:6-
8.21(a), while her grandmother was at a work. There was no error
in allowing Betty's testimony and, in any event, Judge Berdote
Byrne specifically stated that in reaching her ultimate decision,
she did not rely upon Betty's experience at all.
Finally, defendant argues his due process rights were
violated when the judge conducted an in camera interview of Sally
in violation of
N.J.S.A. 2A:84A-32.4. Defendant did not raise
this objection to Judge Berdote Byrne. Considering his challenge
now, we apply the "plain error" standard, see R. 2:10-2, and
conclude, again, his argument is meritless as there was no error.
In Title 9 matters, the level of confrontation of a child
victim appearing as a witness may be circumscribed by Rule 5:12-
4(b) or
N.J.S.A. 2A:84A-32.4. The statute and rule limit
confrontation when the witness is a child, particularly a child
victim of sexual abuse. N.J. Div. of Youth & Family Servs. v.
J.B.,
120 N.J. 112, 126 (1990). "The protection of children from
undue trauma associated with testifying is an important public
policy goal." State v. Smith,
158 N.J. 376, 386 (1999) (citing
Coy v. Iowa,
487 U.S. 1012, 1025 (1988)). Thus, "[t]rial judges
16 A-3364-15T1
have broad discretion in abuse and neglect cases . . . to conduct
a private examination of a child." N.J. Div. of Youth & Family
Servs. v. L.A.,
357 N.J. Super. 155, 168 (App. Div. 2003) (citing
N.J. Div. of Youth & Family Servs. v. S.S.,
185 N.J. Super. 3, 7
(App. Div. 1982)); see also R. 5:12-4(b). "The purpose of a
private interview with the child is to afford the trier of fact
the opportunity to assess" the child's credibility, his or her
"powers of communication and observation, and [his or her]
demeanor." L.A.,
357 N.J. Super. at 168.
N.J.S.A. 2A:84A-32.4 sets forth an alternative means of
securing a child-victim's testimony out of the normal courtroom
setting. It states, in pertinent part:
a. [I]n any action alleging an abused or
neglected child . . ., the court may, on
motion and after conducting a hearing in
camera, order the taking of the testimony of
a victim or witness on closed circuit
television at the trial, out of the view of
the . . . defendant, or spectators upon making
findings as provided in subsection b. of this
section.
b. An order under this section may be made
only if the court determines by clear and
convincing evidence that there is a
substantial likelihood that the victim or
witness would suffer severe emotional or
mental distress if required to testify in the
presence of spectators, the defendant, the
jury, or all of them. . . .
. . . .
17 A-3364-15T1
d. The defendant's counsel shall be present
in the same room as the victim or witness at
the taking of testimony on closed circuit
television. The defendant and the defendant’s
attorney shall be able to confer privately
with each other during the testimony by a
separate audio system.
[
N.J.S.A. 2A:84A-32.4(a)(1), (b), and (d).]
For the first time on appeal, defendant argues that Sally's
interview failed to comply with
N.J.S.A. 2A:84A-32.4 because Judge
Berdote Byrne failed to make specific findings that justified an
in camera hearing, instead of one conducted in court subject to
cross-examination directly, and not indirectly through the judge.
However, while defendant objected to Sally testifying at all, once
it was permitted, he did not object to the procedure6 used by the
judge, nor did defendant ever assert an objection to the nature
or adequacy of the questions posed to the child. Rather, defendant
consented to the in camera testimony and the specific procedure
that was employed by the judge in asking Sally questions. Under
these circumstances, there was no error in allowing Sally to
testify in chambers.
6
Prior to Sally's testimony, all parties submitted questions to
Judge Berdote Byrne. Those questions were then asked by the judge
to Sally in the presence of counsel, but outside the presence of
the parties. Breaks in the interview were also taken to allow
requests for additional questions to be communicated by counsel
to the judge.
18 A-3364-15T1
Even if conducting the in camera interview was erroneous,
defendant's contention would be barred by the doctrine of invited
error. "The doctrine of invited error operates to bar a
disappointed litigant from arguing on appeal that an adverse
decision below was the product of error, when that party urged the
lower court to adopt the proposition now alleged to be error."
N.J. Div. of Youth & Family Servs. v. M.C. III,
201 N.J. 328, 340
(2010) (quoting Brett v. Great Am. Recreation,
144 N.J. 479, 503
(1996)). "[C]onsistent with the doctrine of invited error, on
appeal, the [defendant] may not protest the [procedure for the
testimony's] admission . . . after he agreed to [the procedure]
at trial." Id. at 332. Nevertheless, an appellate court should
"not automatically apply the doctrine if it were to 'cause a
fundamental miscarriage of justice.'" Id. at 342 (quoting Brett,
144 N.J. at 508). Here, we discern no miscarriage of justice,
"plain error[,]" see R. 2:10-2, or any error at all.
Affirmed.
19 A-3364-15T1
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