NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. S.C., J.S., and L.M. (deceased and B.L., JR
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3961-19
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
S.C., J.S., and L.M. (deceased),
Defendants,
and
B.L., JR.,
Defendant-Appellant.
_____________________________
IN THE MATTER OF M.A.S.,1
A.M., and B.S.L., minors.
_____________________________
Submitted February 14, 2022 – Decided April 19, 2022
Before Judges Messano and Accurso.
1
The court received a non-participation letter from the Law Guardian for
M.A.S. expressing no position on the appeal.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FN-09-0254-19.
Joseph E. Krakora, Public Defender, attorney for
appellant (Beth Anne Hahn, Designated Counsel, on the
briefs).
Matthew J. Platkin, Acting Attorney General, attorney
for respondent (Jane C. Schuster, Assistant Attorney
General, of counsel; Mary L. Harpster, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minors A.M. and B.S.L. (Meredith Alexis
Pollock, Deputy Public Defender, of counsel; Dana
Citron, Designated Counsel, on the brief).
PER CURIAM
This Title 9 litigation commenced when the Division of Child Protection
and Permanency (the Division) filed a complaint seeking care and supervision
of M.A.S. (Mia), the eleven-year-old daughter of defendant's girlfriend, S.C.
(Susan), Mia's seven-year-old brother, A.M. (Albert), and her one-year-old
brother, B.S.L. (Bobby), and restraining defendant, B.L., Jr., from any contact
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with the children. 2 A February 13, 2019 incident precipitated the Division's
action.
Susan came home from work unexpectedly early and found Mia and
defendant under the covers in a bed Susan shared with defendant. Susan later
told the Division that Mia hurriedly jumped out of the bed; defendant remained
under the covers but turned away from Susan. Although Mia initially denied
anything happened, after Susan falsely told the child there were cameras in the
bedroom, Mia told her mother defendant sexually abused her. Susan disclosed
that to a friend, who urged her to report the incident to law enforcement.
The Hudson County Prosecutor's Office (the HCPO) initiated an
investigation and secured videotaped statements from Mia and defendant. He
denied Mia's accusations. Defendant was arrested, indicted, and charged with
sexual assault and endangering a child.
On May 8, 2019, during an in-home visit by the Division, Mia told the
caseworker she was "sorry, [she] lied" about defendant touching her, saying
defendant "never did anything to [her]." HCPO investigators videotaped a
2
We use initials and pseudonyms pursuant to Rule 1:38-3(d)(12). Defendant
and Susan were never married, but they lived together with the three children.
Bobby was their biological son, and Mia and Albert were Susan's children from
prior relationships.
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second interview of Mia in which she recanted her initial allegations. In August,
the State dismissed the criminal charges against defendant, and he was released
from custody. The court granted defendant supervised visitation with Bobby
but barred him from having any contact with Mia or Albert.
The fact-finding hearing, see N.J.S.A. 9:6-8.44, took place over three days
in October and December 2019. The judge heard the testimony of Dr. Kirsten
Byrnes, staff psychologist at the Audrey Hepburn Children's House (AHCH),
who interviewed Mia after the original accusations and again after her
recantation, and Madeline Liriano, the Division caseworker. The judge also
viewed both of Mia's videorecorded statements to HCPO investigators.
The judge's December 10, 2019 order found defendant abused or
neglected Mia pursuant to N.J.S.A. 9:6-8.21(c) "by sexually abusing [Mia]
thereby placing her at risk of harm." It was supported by a written decision that
we discuss below.
On May 12, 2020, the judge entered an order terminating the litigation.
At the time, the three children were residing with Susan. Defendant was granted
joint legal custody of Bobby and permitted unsupervised visitation with his son.
The order continued to restrain defendant from having any contact with Mia and
Albert.
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Before us, defendant challenges the December 2019 fact-finding order,
contending Mia's testimony was required because her allegations were "so
inextricably dependent upon witness credibility." He also argues the Division
failed to present evidence that sufficiently corroborated Mia's allegations of
sexual abuse by defendant. See N.J.S.A. 9:6-8.46(a)(4) ("[P]revious 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.").
Lastly, defendant contends the judge "implicitly relied" upon Child Sexual
Abuse Accommodation Syndrome (CSAAS) testimony from Dr. Byrnes to
bolster her conclusion defendant sexually abused Mia.
The Division and the Law Guardian for Albert and Bobby urge us to affirm
the fact-finding order. They contend Mia's statements were properly admitted
in evidence, and defendant had no "right to confrontation" or otherwise waived
his right to have Mia testify at the hearing. Both also argue there was sufficient
corroboration of Mia's allegations of sexual abuse, and Dr. Byrnes did not
provide prohibited CSAAS testimony, or, if she did, the judge did not "even
implicitly" rely on the testimony.
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We have considered the arguments in light of the record and applicable
legal standards. We reverse and remand for further proceedings consistent with
this opinion.
I.
"[A]ppellate courts 'defer to the factual findings of the trial court because
it has the opportunity to make first-hand credibility judgments about the
witnesses who appear on the stand; it has a feel of the case that can never be
realized by a review of the cold record.'" N.J. Div. of Youth & Fam. Servs. v.
M.C. III, 201 N.J. 328, 342–43 (2010) (quoting N.J. Div. of Youth & Fam.
Servs. v. E.P., 196 N.J. 88, 104 (2008)). Moreover, "[b]ecause of the family
courts' special jurisdiction and expertise in family matters, appellate courts
should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J.
394, 413 (1998).
However, "[t]here is an exception to that general rule of deference: 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 & Fam. 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)). When the issue presented turns on a legal conclusion derived
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from the Family Part's factfinding, "we are not required to defer." N.J. Div. of
Youth & Fam. Servs. v. A.R., 419 N.J. Super. 538, 542–43 (App. Div. 2011).
"In general, 'Title 9 controls the adjudication of abuse and neglect cases.'"
Dep't of Child. & Fams., Div. of Child Prot. & Permanency v. E.D.-O., 223 N.J.
166, 177 (2015) (quoting M.C. III, 201 N.J. at 343). In pertinent part, Title 9
defines an "[a]bused or neglected child" as one under the age of eighteen "whose
parent or guardian . . . commits or allows to be committed an act of sexual abuse
against the child." N.J.S.A. 9:6-8.21(c)(3).
At a fact-finding hearing, "any determination that the child is abused or
neglected . . . 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 also N.J. Div. of Youth & Fam. Servs. v. J.Y., 352 N.J. Super. 245,
262–63 (App. Div. 2002). And, as already noted and critical to our
consideration of this appeal, at any Title 9 hearing, prior statements "made by
the child relating to any allegations of abuse . . . shall be admissible . . . provided
. . . no such statement, if uncorroborated, shall be sufficient to make a fact
finding of abuse . . . ." N.J.S.A. 9:6-8.46(a)(4).
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II.
Because Mia's statements were the only direct proof of defendant's alleged
sexual abuse, the judge correctly focused her attention upon corroboration of
those statements. Citing our decision in New Jersey Division of Youth & Family
Services v. Z.P.R., the judge noted that the corroborative evidence only needed
to support the out-of-court statements; it "need not relate directly to the alleged
abuser." 351 N.J. Super. 427, 436 (App. Div. 2002). The judge also properly
observed that "age-inappropriate sexual behavior could provide the necessary
corroboration required by N.J.S.A. 9:6-8.46a(4)." Ibid.
In her initial statement to HCPO investigators, Mia said she was sexually
abused by defendant during the year prior to February 2019, but she recanted an
earlier allegation made to her mother when confronted by defendant. Mia said
defendant sexually abused her at least three times, the most recent being the day
before, when she told her mother, which resulted in the HCPO's involvement. 3
Mia said defendant made her perform fellatio and licked her breasts and vagina,
and she described the details of the February 13, 2019 incident for investigators.
3
At other points in her statement, Mia said the sexual assaults happened on
more than three occasions.
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Three months later, Mia gave her second statement to HCPO
investigators. She recanted her allegations, saying she fabricated them because
she was jealous of defendant's close relationship with Albert and Bobby. Mia
claimed she got ideas about what to say from a friend who was abused by her
father. Mia even offered to take a lie detector test. But, when confronted by
investigators with the possibility that defendant might return home because she
recanted, Mia became very upset and emphatically stated, "[M]y mom is never
going to let that man back . . . he's not moving back . . . mom swore on her life
that he's not coming back . . . my mom would not do that to me." Mia explained
that when her mother walked in and found her in bed with defendant, Susan
"flipped out." Nonetheless, despite vigorous questioning by the investigators,
Mia claimed she and defendant were only play wrestling.
Dr. Byrnes was permitted to describe in detail statements Mia made during
her initial evaluation at the AHCH. Mia described "several sexual acts . . .
occurring at regular frequency. . . . She[] discuss[ed] a lot of . . . the banter or
the talking around it[,] which suggests that it's a little bit more nuanced th[a]n
something that you're seeing or a conversation that you've overheard . . . ." The
judge sustained defense counsel's objection to the doctor "interpreting what the
child said as opposed to indicating what the child said."
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At a later point, when the doctor said she had "clinically supported sexual
abuse" of Mia, defense counsel again objected. He noted the doctor's evaluation
was "to assess [Mia's] social and emotional functioning relative to the
accusations, and it was not for the purposes of corroborating any out-of-court
statements." The judge agreed, but said she would allow the doctor "to give her
opinion . . . because that's how she made her recommendations." She was "not
going to use . . . that she found there was sexual abuse. . . . [The judge was] only
going to allow [Dr. Byrnes] to testify as to what her recommendations were and
what the treatment plan would be."
Despite sustaining these objections and apparently agreeing the doctor's
testimony should be circumscribed, the judge permitted Dr. Byrnes to explain
again that Mia "had advanced sexual knowledge," a "very nuanced
understanding of some of the sexual banter that goes along" with "the
progression of . . . grooming." Mia "relay[ed] those conversations in a way that
didn't seem like she had viewed it somewhere or . . . engaged in it somewhere
or heard it secondhand from somewhere." This time, the judge overruled
defense counsel's objection.
After Dr. Byrnes completed her testimony, the Division sought to move
into evidence the reports the doctor authored after her initial evaluation of Mia
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and the second evaluation that followed Mia's recantation. 4 Defense counsel
objected, but the judge overruled the objection. She admitted both reports,
limited only to "what [Mia] said . . . [and] what [the doctor's] observations"
were, and "any symptomology" Mia evidenced.
The judge also said she would view both video recordings of Mia's
statements to investigators but noted, "If [Mia] came in to testify, I may not have
allowed the second evaluation[,] but she's not coming in, so." The following
colloquy ensued:
Defense counsel: I have a position with respect to
whether [y]our [h]onor can make a credibility
determination by simply watching videos but I'll leave
that until —
Judge: Well, I don't know if I'm going to.
Defense counsel: Okay.
Judge: But they're going to show it to us.
Defense counsel: Because the first video there's no
opportunity for cross examination with respect to the
first video —
Judge: I understand.
4
The Division never arranged counseling recommended by Dr. Byrnes before
Mia's recantation. In her written opinion, the judge did not find the doctor's
"second interview to be relevant or persuasive."
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Defense counsel: — to assist [y]our [h]onor with
respect to credibility.
[(Emphasis added).]
The Deputy Attorney General representing the Division interrupted, asking if
defense counsel was claiming "[Mia's] all of a sudden credible in the second
[video]," the recantation. Defense counsel responded he was not "making that
determination," but it was "a question . . . whether the Division can prove what
version is credible[,] and what information the [c]ourt can rely upon." He
reserved the right to raise the issue as "part of [his] summation ," and he did.
In his closing statement, citing New Jersey Division of Youth & Family
Services v. H.B., 375 N.J. Super. 148 (App. Div. 2005), defense counsel argued
that given Mia's conflicting statements to investigators, "testimony of the child
[was] necessary to resolve the issue of credibility." See id. at 184 (concluding
judge erred in dismissing the Division's complaint by failing to conduct an in
camera interview of the alleged child victim of sexual abuse and improperly
relying on the mother's hearsay version of the child's recantation and reasons for
fabricating her initial allegations).
Defense counsel also noted the lack of any opportunity to cross-examine
Mia. He argued during the first interview the HCPO detective "was . . . only
looking to establish facts to . . . support a finding of abuse," but in the second
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interview the "objective was obvious," i.e., "to get [Mia] to recant her
recantation." Counsel argued the decision "comes down to the credibility of this
child and it can only be determined by hearing the child's testimony." He further
argued statements the child made to Dr. Byrnes were for treatment purposes,
and, citing New Jersey Division of Child Protection & Permanency v. N.B., 452 N.J. Super. 513 (App. Div. 2017), asserted the doctor was prohibited from
opining about "the trustworthiness of a child's hearsay statement." See id. at
523 ("Our courts have rejected the concept that mental health professionals may
opine about the trustworthiness of a child's hearsay statements." (citing State v.
J.Q., 130 N.J. 554, 582–83 (1992))).
Defense counsel also challenged any claim that Mia evidenced precocious
sexual knowledge that corroborated her initial claim of sexual abuse by
defendant. Counsel observed that during her second interview with detectives,
Mia sought to talk about sexual text messages and pictures she received on her
cell phone, but the investigators were not interested. Counsel noted that Mia
told investigators, Liriano, and Dr. Byrnes about her friend, who had been
sexually assaulted by her father and spoke with Mia about the abuse on a daily
basis.
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In her written opinion, the judge recounted the evidence adduced at the
hearing, including Liriano's testimony regarding Mia's original accusation and
her subsequent recantation, the different versions of events in Mia's two
videotaped statements, and Dr. Byrnes' testimony, including statements Mia
made to the doctor during both interviews. The judge noted after the doctor's
first interview, she diagnosed Mia with post-traumatic stress syndrome (PTSD).
The judge concluded Mia possessed precocious knowledge of sexual
activity, "well[]beyond what an [eleven] year old would reasonably know," as
demonstrated by the "idiosyncratic detail" contained in her original statement to
investigators. The judge said Mia's "emotional response . . . avoidance, intrusive
ideation, irritability and flashbacks" supported Dr. Byrnes's "diagnosis of
PTSD." This evidence sufficiently corroborated Mia's initial claim of sexual
abuse by defendant. See, e.g., Z.P.R., 351 N.J. Super. at 436 ("[E]vidence of
age-inappropriate sexual behavior could provide the necessary corroboration
required by N.J.S.A. 9:6-8.46(a)(4).").
[Mia's] idiosyncratic detail relating to taste and pain,
stating ejaculate is akin to slime; plus her advanced
sexual knowledge and language, "let me hit it from the
back" noting that [defendant's] penis was erect and
knowledge of ejaculation without prior exposure to
pornography or sexual behaviors, given her age, all
provide corroboration for her out-of-court statement
that she was sexually abused. [Mia's] level of detail
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was not as if she were merely repeating what her friend
had disclosed to her. Rather, it was a detailed recitation
of what she endured . . . . Most telling was her reaction
to the second detective when she told her that now her
stepfather may return to the home. She emphatically
stated that her mom swore on her life that he is not
coming back.
The judge entered the order under review.
III.
As noted, the judge found the Division proved by a preponderance of the
evidence that defendant sexually abused Mia, a finding predominantly tethered
to Mia's initial out-of-court statements to HCPO investigators and Dr. Byrnes.
Pursuant to N.J.S.A. 9:6–8.46(a)(4), these statements were insufficient to make
such a finding of abuse without other corroborating evidence. See N.J. Div. of
Child Prot. & Permanency v. A.D., 455 N.J. Super. 144, 157 (App. Div. 2018)
("[T]he mere repetition and consistency of [a child's] statements are insufficient
to support a finding of corroboration under N.J.S.A. 9:6-8.46(a)(4)."); N.B., 452 N.J. Super. at 522 ("Some direct or circumstantial evidence beyond the child's
statement itself is required.").
Relying on our opinion in Z.P.R., the judge found Mia possessed a
precocious knowledge of sex that internally corroborated the allegations of
abuse by defendant. However, in her written opinion, the judge never discussed
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Mia's statements to investigators about "the whole phone situation," i.e., when
Susan discovered sexually explicit messages on Mia’s cell phone. The
Division's investigative summary, which was in evidence, revealed Susan told
investigators of finding "the cell phone she had been looking for throughout the
investigation." Susan also acknowledged Mia was active on different social
media platforms, "sending inappropriate messages and pictures of herself . . . to
different men." Susan said the messages dated "back to when [Mia] was [nine
years] old," and included photos of penises. Further, during her testimony, Dr.
Byrnes confirmed that as to "some of" the "information that [Mia] gave [her,]
. . . she could possibly have observed simply by accessing information on a cell
phone[.]" This demonstrates there was a legitimate dispute about the source of
the corroborating evidence the judge primarily relied — Mia's precocious sexual
knowledge.
In New Jersey Division of Youth & Family Services v. L.A., the trial judge
relied upon hearsay statements the defendant's thirteen-year-old daughter made
to the Division's caseworker to find the defendant invited the child's father, who
had earlier sexually abused the child and was barred from visiting, into the
family's apartment. 357 N.J. Super. 155, 159–63 (App. Div. 2003). The judge
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denied the defendant's request to conduct an in camera interview of the child.
Id. at 160.
We noted that the judge found the child's hearsay statements credible in
determining the defendant directly violated prior orders entered in the litigation.
Id. at 168. Recognizing the trial judge's broad discretion in conducting
examinations of child abuse victims, we nevertheless concluded "the trial judge
mistakenly exercised her discretion to rely solely on the reports of [the
Division's] workers." Ibid. We found, in particular, "[t]he interview with [the
child was] critical because, with her prior statement excluded, the finding of
abuse and neglect is thinly supported." Id. at 169. We remanded for further
proceedings so the child could "testify under such conditions as are in her best
interest" about the events in question. Ibid.
Here, Mia recanted her allegations not once, but three times — to Liriano,
the HCPO investigators and to Dr. Byrnes. As noted, the corroboration of her
allegations of abuse rested primarily upon sexual precociousness, the source of
which was essentially disputed in the evidence. Furthermore, although the judge
said the doctor's testimony was limited to narrowly defined permitted uses, and
specifically not that Mia was in fact the victim of sexual abuse, the judge's
written opinion relied, in part, upon Dr. Byrnes' medical opinions that Mia
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suffered from PTSD. The judge's opinion mirrored Dr. Byrnes' opinion that
Mia's "nuance[d]" description of sexual banter and physical sensations
demonstrated her precocious knowledge did not arise from other sources, such
as a friend's recitation of abuse at the hands of her father, or the internet.
Moreover, while unlike in L.A., where the judge relied on hearsay in
Division reports, here, the judge had the opportunity to view the video recorded
statements. Yet, defense counsel correctly noted neither he, nor the judge, had
the opportunity to ask questions of the child. The recorded statements confined
the judge's ability to determine the credibility of Mia's initial allegations of
sexual abuse.
We recognize defendant never specifically requested Mia be produced as
a witness. However, he objected to the judge determining the credibility of
Mia's allegations by only viewing the video statements. We are unsure what the
judge meant when she responded, "Well, I don't know if I'm going to." However,
the judge did find Mia's initial allegations credible and corroborated without the
child's live testimony.
We conclude that pursuant to Rule 5:12-4(b), the judge should have
produced Mia for live testimony under circumstances she deemed appropriate.
We are cognizant of the need to scrupulously avoid possible re-victimization of
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child sexual abuse victims by requiring their testimony. See, e.g., N.J. Div. of
Child Prot. & Permanency v. C.W., 435 N.J. Super. 130, 142 (App. Div. 2014)
("[P]ublic policy requires the judiciary to prevent further victimization or
traumatization of young children called to testify in court proceedings.").
However, Mia is now fourteen years of age, one year older than was the child
victim in L.A. We are certain the judge, experienced in Title 9 litigation, will
"craft procedures acceptable to the parties," consistent with our holding in C.W.,
to avoid any further trauma and that satisfy defendant's due process rights. Id.
at 144.
We reverse the order under review and remand the matter for further
proceedings consistent with this opinion. We leave the conduct of the remand
proceedings to the discretion of the judge. 5
Reversed and remanded. We do not retain jurisdiction.
5
We have already expressed our reservations about the scope of Dr. Byrnes'
testimony, and, we urge the judge to consider our comments if she again relies
on the doctor's testimony in deciding the relevant issues on remand. However,
we agree with the Division and the Law Guardian's assertion that contrary to
defendant's argument, the doctor's testimony did not encompass prohibited
CSAAS opinions. The argument requires no further comment in a written
opinion. R. 2:11-3(e)(1)(E).
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