NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. J.M and J.F. and S.A

RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the 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-4068-18T3

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

         Plaintiff-Respondent,

v.

J.M.,

         Defendant-Appellant,

and

J.F. and S.A.,

     Defendants.
__________________________

IN THE MATTER OF N.F.
and S.M., minors.
__________________________

                   Submitted September 14, 2020 – Decided September 18, 2020

                   Before Judges Sabatino and Gooden Brown.
            On appeal from the Superior Court of New Jersey,
            Chancery Division, Family Part, Hudson County,
            Docket No. FN-09-0222-18.

            Joseph E. Krakora, Public Defender, attorney for
            appellant (Robyn A. Veasey, Deputy Public Defender,
            of counsel; Kevin G. Byrnes, Designated Counsel, on
            the briefs).

            Gurbir S. Grewal, Attorney General, attorney for
            respondent (Melissa H. Raksa, Assistant Attorney
            General, of counsel; Sara M. Gregory, Deputy Attorney
            General, on the brief).

            Joseph E. Krakora, Public Defender, Law Guardian,
            attorney for minors (Meredith Alexis Pollock, Deputy
            Public Defender, of counsel; David Valentin, Assistant
            Deputy Public Defender, on the brief).

PER CURIAM

      Defendant J.M.1, the mother of N.F., appeals the Family Part's fact-finding

determination that she neglected N.F., in violation of N.J.S.A. 9:6-8:21(c), by

failing to protect N.F. from repetitive sexual contact over a two-year period, by

a male boarder who lived in their home.

      Defendant's primary argument is that the trial judge improperly relied on

hearsay statements presented by the Division of Child Protection and

Permanency ("the Division"). For the reasons that follow, we affirm.


1
 We use initials in this opinion to protect the minors' privacy. R. 1:38-3(d)(11)
and (12).
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                                       2
                                        I.

      Factual Background

      The Division's proofs at the fact-finding hearing may be summarized as

follows. Defendant is the biological mother of two daughters: N.F. ("Nancy")

who was born in March 2007; and N.F.'s older sister S.M. ("Sharon"), who was

born in March 2002. 2      Nancy's biological father, J.F., is separated from

defendant but he lives on the first floor of the same building where defendant

and the two daughters reside. The biological father of Sharon, S.A., is also

separated from defendant but he resides elsewhere. Neither father is a party to

this appeal. At the times relevant to this case, the upstairs unit was occupied by

defendant, her two daughters, a maternal uncle, J.M., and a boarder, P.N.

      According to the Division's proofs, starting in 2015, Nancy reported to

defendant that P.N. had been touching her inappropriately. Nevertheless, P.N.

continued residing as a boarder in defendant's residence.

      About two years later, in July 2017, Nancy again told defendant that P.N.

had touched her in ways that made her feel uncomfortable. Nancy also told




2
 We use the same fictitious first names for the daughters as are used in the
Division's brief.
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defendant that P.N. had showed her nude photos. Defendant instructed Nancy

to avoid P.N., but she took no other action.

      In January 2018, the Division received a referral from Nancy's school,

reporting that a man renting a room in her unit had been touching her breasts

and vagina. According to the report, Nancy had informed defendant of these

sexual contacts, but defendant simply told her to stay away from him.

      Investigation by the Division and the County Prosecutor

      The Division then conducted an investigation into these allegations. A

case worker interviewed Nancy, who detailed the repeated incidents of sexual

contact by P.N. According to Nancy, P.N. would inappropriately touch her

when he was alone with her, such as when defendant was out running errands

with her sister. As described by Nancy, P.N. would touch her breasts or vagina.

She also recounted an incident when she was home alone with P.N. when he

came out of the shower and exposed his penis to her, causing Nancy to run into

her bedroom.

      As described by Nancy, P.N. began touching her and engaging in other

inappropriate acts when he first moved into the house about two-and-a-half

years earlier, when Nancy was eight years old. She explained to both the

Division's case worker and an investigator from the county prosecutor's office


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that when she reported P.N.'s conduct to defendant, defendant simply told her to

avoid P.N. and promised to speak with him about it.

        When interviewed by the prosecutor's investigator about these allegations,

defendant admitted that Nancy had told her P.N. had touched her, but initially

claimed that Nancy was pointing to her shoulders as the place where he had done

so. Later on, defendant admitted that Nancy had told her that P.N. had touched

her breasts and vagina over her clothing. Defendant also admitted that Nancy

had told her that P.N. had shown her videos of naked women.

        According to defendant, she did ask P.N. about these allegations, but he

denied them. She described P.N. as a "trustworthy man," and refused to believe

Nancy's contentions until she had more proof of the abuse.

        Following this investigation, P.N. was arrested and charged with sexual

assault of a minor and other offenses. Defendant and Nancy's father, J.F., were

also arrested, and charged with endangering the welfare of a child. 3         The

Division conducted an emergency removal of Nancy and her sister from the

home and initially placed them in the care of a maternal cousin.




3
    Apparently, those criminal charges against defendant and J.F. were dropped.
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      The Present Title Nine Case

      The Division filed the present abuse-or-neglect case against defendant and

J.F. under Title Nine. At the ensuing two-day fact-finding hearing in May 2018

the Division presented two witnesses: the case worker, Mauricio Diaz, and an

expert psychologist, Dr. Anthony D'Urso.

      Diaz recounted to the judge the steps he had undertaken to investigate the

allegations and to safeguard the children's safety. Dr. D'Urso then testified that

he had reviewed the case documents and the detective's videotaped interview of

Nancy, and concluded that the acts of sexual abuse were "clinically supported."

      In addition to the two testifying witnesses, the Division presented the

investigation reports and other documents, including a psychological evaluation

of Nancy.

      Defendant chose not to testify at the hearing, and she did not present any

witnesses on her own behalf.

      The Judge's Decision

      After considering the evidence, Judge Lois Lipton issued an oral opinion

on July 16, 2018. In her decision, the judge notably found the testimony of both

Diaz and Dr. D'Urso to be credible. By contrast, the judge found defendant's

version of "what she was told and what she wasn't told" to be lacking in


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credibility. In particular, the judge noted that "[i]t does not make sense" if

defendant thought that Nancy was touched only on the shoulder, that she would

tell P.N. that she would "kick him out," if the alleged touching were true.

      The judge then applied the governing law under Title Nine.               She

concluded that defendant's failure to report Nancy's allegations of repeated

sexual abuse by P.N. to the police or the Division constituted "grossly and

wantonly negligent" conduct, which resulted in "harm to the child and serious

risk of future harm."

      Among other things, the judge found that Nancy's statements had been

corroborated in part by the clinical assessment of Dr. D'Urso and also by the

evaluation performed by the other expert who had interviewed Nancy. The

judge also pointed to defendant's own admission that Nancy had reported P.N.'s

improper conduct to her. The judge disbelieved defendant's contention that

Nancy had only said that P.N. touched Nancy on the shoulder, as being

inconsistent with her alleged instruction to Nancy to try to get proof of P.N.'s

conduct on her cell phone.

      Having canvassed these proofs, Judge Lipton concluded the Division had

met its burden of proving abuse or neglect as to the defendant by a

preponderance of the evidence. By contrast, the judge found the Division had


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not similarly proven abuse or neglect by J.F. The judge noted that Nancy had

consistently told the Division's case worker, prosecutor's office, and the clinical

evaluators that she had not told her father "at any time" about being

inappropriately touched. In addition, the judge found no other evidence that J.F.

had been advised by defendant, nor by anyone else, about improper sexual

conduct. Instead, J.F.'s information was "filtered through" defendant, "who

wanted P.N. to remain in the home." 4

      The Appeal

      On appeal, defendant argues: (1) the trial court erred in basing its findings

of neglect "solely on the child's uncorroborated out-of-court hearsay

declarations," and (2) the court erred in admitting opinion testimony of a clinical

psychologist, Dr. D'Urso, "on the issue of whether there had been child sex

abuse."

      The Law Guardian joins with the Division in opposing these points on

appeal, and in arguing that we affirm the trial court's decision.




4
  The Division does not appeal this determination of no abuse or neglect as to
J.F.
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                                        II.

      The pertinent legal standards under Title Nine we apply here are well

established. An abused or neglected child under Title Nine is one 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, as herein defined, to exercise a minimum
            degree of care . . . (b) 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; or by any other acts of a similarly serious
            nature requiring the aid of the court; . . . .

            [N.J.S.A. 9:6-8.21(c)(4)(b).]

      The Supreme Court established that the phrase "minimum degree of care"

under the statute "refers to conduct that is grossly or wantonly negligent, but not

necessarily intentional." G.S. v. Dep't of Human Servs.,  157 N.J. 161, 178

(1999). A parent or guardian falls short of the "minimum degree of care"

standard "when he or she is aware of the dangers inherent in a situation and fails

adequately to supervise the child or recklessly creates a risk of serious injury to

that child." N.J. Div. of Child Prot. & Permanency v. A.B.,  231 N.J. 354, 369

(2017) (quoting G.S.,  157 N.J. at 181).

      Our scope of review of the Family Part judge's fact-finding determination

of abuse or neglect is limited. We must defer to the factual findings of the

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Family Part if they are sustained by "adequate, substantial, and credible

evidence" in the record. N.J. Div. of Child Prot. & Permanency v. N.B.,  452 N.J. Super. 513, 521 (App. Div. 2017) (citation omitted). That deference is

justified because of the Family Part's "special jurisdiction and expertise in

family matters." N.J. Div. of Youth & Family Servs. v. M.C. III,  201 N.J. 328,

343 (2010) (citation omitted). The reviewing court grants particular deference

to the trial court's credibility determinations, N.J. Div. of Youth & Family Servs.

v. M.M.,  189 N.J. 261, 279 (2007), and only overturns its determinations

regarding the underlying facts and their implications when the "findings went

so wide of the mark that a mistake must have been made." Ibid. (internal

quotation omitted). That said, an appellate court does not give special deference

to the trial court's interpretation of the law, which it reviews de novo. D.W. v.

R.W.,  212 N.J. 232, 245-46 (2012).

      Applying these well-settled principles here, we affirm the Family Part's

determination that defendant was grossly negligent in failing to protect her

daughter from the repeated sexual abuse by her boarder, P.N.            We do so

substantially for the reasons articulated in Judge Lipton's bench opinion. We

amplify our conclusion with a few additional comments.




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      First, we are satisfied the trial court did not misapply evidentiary

principles in its fact finding or unfairly rely on hearsay statements. Title Nine

contains a special exception to the hearsay doctrine,  N.J.S.A. 9:6-8.46(a)(4).

That exception prescribes that "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." Ibid.

      Although the most effective corroborative evidence may be eyewitness

testimony or a confession, the "corroborative evidence 'need only provide

support for the out-of-court statements.'" N.J. Div. of Youth & Family Servs. v.

L.A.,  357 N.J. Super. 155, 166 (App. Div. 2003) (quoting N.J. Div. of Youth &

Family Servs. v. Z.P.R.,  351 N.J. Super. 427, 436 (App. Div. 2002)). There

must be some evidence in addition to the child's statement itself, and such

evidence may be circumstantial. N.J. Div. of Youth & Family Servs. v. N.B.,

 452 N.J. Super. 513, 522 (App. Div. 2017).

      In Z.P.R., we noted that, in cases of sexual abuse such as the present

matter,

            [t]he child victim is often the only eyewitness to the
            crime, and physical corroboration is rare because the
            sex offenses committed against children tend to be
            nonviolent offenses such as petting, exhibitionism,

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            fondling . . . . Consequently, in order to give any real
            effect to the child victim hearsay statute, the
            corroboration requirement must reasonably be held to
            include indirect evidence of abuse.

            [ 351 N.J. Super. at 436 (internal citation omitted).]

To be sure, in N.B.,  452 N.J. Super. at 522, we observed that "courts must protect

against conflating a statement's reliability with corroboration."      Moreover,

"consistency alone does not constitute corroboration." Id. at 523.

      Here, there are essentially two distinct issues that bear upon defendant's

culpability for neglect: (1) whether P.N. sexually abused Nancy and (2) whether

defendant was sufficiently aware of the abuse and nevertheless failed to take

action. As to the first question, defendant does not challenge the sufficiency of

the corroboration of Nancy's statements regarding sexual abuse by P.N. Indeed,

the record supports the court's finding that the Division provided sufficient

corroboration as to the occurrence of the sexual wrongdoing. The Division

determined that Nancy's statements were confirmed -- not just by their

consistency over time, but by the sensory details that she described, her

emotional responses to the abuse, and her lack of exaggeration.

      The second pivotal question relates to the proof of defendant's awareness

of her daughter's victimization. The trial court reasonably found such awareness

had been proven by the Division. The judge's decision was not, as defendant

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argues on appeal, "solely" based on the child's hearsay statements. In fact,

defendant's awareness was established not only by Nancy's multiple and

consistent assertions that she had reported the sexual abuse to others, but also

by defendant's own admissions and behavior.

      Although defendant initially claimed that Nancy had told her that P.N. had

merely touched her on the shoulder, defendant subsequently admitted to

Detective Luz-Mary Jimenez that Nancy told her P.N. had touched her on her

breasts and vagina. Defendant further admitted that Nancy had told her P.N.'s

touching made her feel uncomfortable. Defendant also admitted that, on a

second occasion, Nancy disclosed to her that P.N. had touched her on her

buttocks.   Defendant further admitted, in response to Detective Jimenez's

questioning about pornographic videos, that Nancy had alleged that P.N.

"showed her videos of girls and boys."

      Defendant further acknowledged that Nancy's older sister Sharon told her

that P.N. kissed her or "did something like that to her." In addition, d efendant

admitted to Diaz that she had "failed her daughters," and was "fully aware that

she made a big mistake" in not taking appropriate action to stop P.N.

      In addition to these admissions by defendant, Nancy's allegations are also

consistent with the assertions by her older sister, Sharon, that she herself had at


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least conversations with their mother asking her to "do something" about P.N.'s

abuse. Sharon also stated that when she was in the fourth grade, P.N. licked her

cheek, although she did not report that particular incident.

      As the trial judge pointed out, defendant's own conduct in failing to react

responsibly to Nancy's allegations is also indicative of an awareness that more

had occurred than merely P.N. touching Nancy's shoulder.            For example,

defendant's suggestion to Nancy that she try to take a cell phone video or photo

of P.N.'s behavior belies her claim that the conduct was benign. Moreover,

defendant's assurances that she would address the matter with P.N. directly (or

indirectly with the assistance of Nancy's father) is also indicative that she

believed Nancy's allegations were not imaginary or insignificant.

      In sum, there was ample proof of corroboration here to enable the trial

court to admit Nancy's out-of-court assertions into evidence and also to find

them sufficiently credible to rely upon them.

      Turning to defendant's second legal argument, we discern no harmful error

stemming from the court's consideration of Dr. D'Urso's expert testimony. The

expert, who notably was unrebutted by a competing defense expert, provided a

useful conceptual and clinical framework to help the court in assessing Nancy's




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allegations, and the severity of the harm that resulted from defendant's failure to

take protective action.

      Dr. D'Urso's fleeting mention of the term "accommodation" during his

testimony and its inclusion in a related report was a far cry from a full-blown

expert presentation of Child Sexual Abuse Accommodation Syndrome

("CSAAS"), a theory which the Supreme Court has since deemed unreliable.

See State v. J.L.G.,  234 N.J. 265, 272 (2018).

      Dr. D'Urso did not make or present a CSAAS diagnosis in this case. In

fact, Nancy was never diagnosed by anyone with CSAAS, and instead was found

to have adjustment disorder with anxiety. The dangers of misuse or prejudice

of CSAAS concepts in this context before an experienced Family Part judge are

unlike those existing in a jury trial. Indeed, the judge did not even mention

CSAAS in her decision.

      We are mindful of our admonition in N.B.,  452 N.J. Super. at 523, that

mental health professionals should not "opine about the trustworthiness of a

child's hearsay statements." We recognize in this regard the trial court did

consider, to some extent, Dr. D'Urso's expert views about Nancy's credibility ,

based upon her clinical presentation. Nonetheless, even if those references are




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ignored, there remains ample evidence in the record to support the trial court's

findings of defendant's gross negligence as a parent.

      As a final point, we must acknowledge that the prime wrongdoer in this

matter is, of course, P.N., assuming the alleged sexual misconduct did occur.

The record does not inform us of exactly what happened with the criminal

charges against P.N., and we need not know them for purposes of adjudicating

this civil appeal. It is worth noting that defendant does not claim that she was

threatened by P.N. to ignore her daughter's allegations or physically coerced or

intimidated by him.

      Because of her fiduciary responsibilities as a parent, defendant was

obligated to take some action to try to protect her daughter, even if she was not

herself the perpetrator. Indeed, it is well established that a parent fails to

exercise a minimum degree of care when she is aware of the dangers inherent in

a situation and fails to protect her child from harms that are being inflicted by

another member of the household. See, e.g., N.J. Div. of Prot. & Permanency

v. J.L.G.,  450 N.J. Super. 113, 121 (App. Div. 2015), aff'd o.b.,  229 N.J. 113

(2017).




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      To the extent we have not otherwise addressed them, all other arguments

raised by defendant lack sufficient merit to warrant discussion.    R. 2:11-

3(e)(1)(E).

      Affirmed.




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