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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0752-16T2
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
N.L. n/k/a N.B., N.D.-F. and K.C.,
Defendants,
and
R.F., II,
Defendant-Appellant. ______________________________
IN THE MATTER OF B.F. and R.F., III, Minors. ______________________________
Submitted October 2, 2017 – Decided November 21, 2017
Before Judges Whipple and Rose.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FN-08-0040-16.
Joseph E. Krakora, Public Defender, attorney for appellant (Thomas G. Hand, Designated Counsel, on the briefs). Christopher S. Porrino, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Jaime Millard-Tindall, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor B.F. (Todd Wilson, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor R.F. III (Rachel E. Seidman, Assistant Deputy Public Defender, on the brief).
PER CURIAM
Defendant R.F., II,1 appeals from a January 19, 2016 Family
Part order2 determining he sexually abused his five-year-old son,
B.F. We affirm.
I.
We derive the following facts from the record developed at
the January 14, 2016 fact-finding hearing. On July 20, 2015, the
Division of Child Protection and Permanency ("Division") received
a referral stating B.F. disclosed to his stepsister, S.D, that
defendant had twice anally penetrated him. Division intake
supervisor Lynette Ficcaglia testified at the hearing that
Division workers met with B.F., his stepmother N.D.F., S.D., and
1 We use initials to protect the privacy of the parties. See R. 1:38-12(d)(12). 2 This order became appealable as of right after the trial court entered a final order terminating litigation on September 6, 2016.
2 A-0752-16T2 B.F.'s other siblings at their home to investigate the allegations.
Ficcaglia did not personally investigate B.F.'s claims, but
approved the investigation and "dealt with the investigator step
by step throughout the night."
Ficcaglia testified that, although B.F. confirmed he had told
S.D. "something that was the truth," he did not disclose the sexual
abuse to the Division workers. During her interview, S.D.
confirmed B.F.'s disclosures to her. Ficcaglia testified further
that Division workers "spoke with the half-brother that was in the
house, too, who confirmed, also."3
As a result of B.F.'s disclosures, the Gloucester County
Prosecutor's Office was contacted, and B.F. was interviewed by the
on-call detective. Division workers observed the interview via
closed-circuit television, and Ficcaglia summarized the interview
at trial. B.F. told the detective that after showering together,
his father laid B.F. on his stomach, laid on top of B.F., and put
his penis in B.F.'s buttocks. B.F. stated defendant used a
lubricant from a bottle with a pink cap, and the abuse occurred
3 It is unclear whether Ficcaglia referenced B.F.'s stepbrother or half-brother: according to the Division's investigative summary, B.F.'s nineteen-year-old stepbrother, D.D., told the intake worker B.F. confirmed that "'dad put his penis in my butt,'" but B.F.'s six-year-old half-brother, R.F., III, did not disclose to the intake worker that he or B.F. was sexually assaulted. R.F., III was named in the instant matter, and was represented at the hearing and on appeal by a separate law guardian.
3 A-0752-16T2 on more than one occasion. The intake worker summarized the
interview in her investigative summary.
To corroborate B.F.'s allegations of abuse, the Division
relied on the expert testimony of Dr. Stephanie Lanese, a
pediatrician employed by the CARES Institute, a regional child
abuse facility at Rowan University. Defense counsel stipulated
to Dr. Lanese's expertise in general and child abuse pediatrics.
On July 22, 2015, Dr. Lanese conducted an evaluation of B.F.
at the CARES Institute. Dr. Lanese opined B.F. had been sexually
abused. She based her conclusion on a number of factors,
including: B.F.'s idiosyncratic details of the sexual abuse, such
as describing the "pink-topped tube," and removal of his clothing
prior to the act; B.F.'s explicit sexual knowledge for a child of
his age; and that B.F. had never seen pictures of naked people.
Dr. Lanese noted her physical examination of B.F. did not
reveal any medical evidence of abuse. Dr. Lanese explained,
however, "[i]t is uncommon to see physical injury for sexual
abuse." Specifically, injury might occur in five to ten percent
of examinations performed within "[twenty-four] to [seventy-two]
hours" of the occurrence.
In addition to the testimony of Dr. Lanese and Ficcaglia, the
Division moved into evidence: the Division's investigation
summary (P1); Dr. Lanese's evaluation of B.F.; (P2); Dr. Lanese's
4 A-0752-16T2 evaluation of R.F., III (P3); and Dr. Lanese's curriculum vitae
(P4). Neither B.F. nor defendant testified at the hearing, and
defendant presented no witnesses or evidence. Nor did the law
guardians present any witnesses or evidence.4
On January 19, 2016, in an oral decision, the court found the
Division met its burden of establishing by a preponderance of the
evidence that defendant committed acts of sexual abuse against
B.F. The court recounted the testimony of Dr. Lanese and
Ficcaglia, finding both witnesses credible. The court observed
that B.F. had made several admissions to his siblings, mother, and
detective, as witnessed by the Division workers. Although the
judge also relied on the documentary evidence in his decision, he
noted he did not consider any embedded hearsay in finding the
sexual abuse was established.
Defendant appeals the trial court's order. Defendant raises
the following overlapping arguments for our review: the court
failed to make adequate findings and conclusions of law; the court
relied on inadmissible hearsay to corroborate B.F.'s allegations;
Dr. Lanese's ultimate conclusion was outside her expertise; and
the court did not properly consider B.F.'s recantation. The
4 Subsequent to the fact-finding hearing, and prior to the court's decision, B.F.'s law guardian filed a motion for emergent relief to continue the hearing to present the testimony of B.F.'s two therapists. Defendant opposed the motion, which the court denied.
5 A-0752-16T2 Division and law guardians urge us to affirm the court's order.
After reviewing the record in light of the contentions advanced
on appeal, we affirm.
II.
Our Supreme Court has set forth the standards that govern our
review of abuse or neglect matters as follows:
[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. Indeed, we recognize that [b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.
[N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010) (second alteration in the original) (citations and internal quotation marks omitted).]
"[I]f there is substantial credible evidence in the record
to support the trial court's findings, we will not disturb those
findings." N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J.
210, 226 (2010). However, "if the trial court's conclusions are
'clearly mistaken or wide of the mark[,]' an appellate court must
intervene to ensure the fairness of the proceeding." Id. at 227
(alteration in original) (quoting N.J. Div. of Youth & Family
Servs. v. E.P., 196 N.J. 88, 104 (2008)). We also owe no deference
6 A-0752-16T2 to the trial court's legal conclusions, which we review de novo.
State v. Smith, 212 N.J. 365, 387 (2012) (citations omitted),
cert. denied, 568 U.S. 1217, 133 S. Ct. 1504, 185 L. Ed. 2d 558
(2013).
An "abused or neglected child" under Title 9 means, in
pertinent part, a child 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). The trial judge has
a duty to conduct a fact-finding hearing to determine whether the
Division has proved such abuse or neglect "by a preponderance of
the competent, material and relevant evidence." N.J. Div. of
Youth & Family Servs. v. C.H., 428 N.J. Super. 40, 62 (App. Div.
2012). "Under the preponderance standard, a litigant must
establish that a desired inference is more probable than not. If
the evidence is in equipoise, the burden has not been met."
Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 169 (2006) (citations
and internal quotation marks omitted).
Before applying these principles to the record evidence,
however, we address defendant's argument that the court erred in
relying on embedded hearsay statements contained in the
investigation summary of the Division intake worker who did not
testify. Specifically, defendant challenges the court's admission
of the intake worker's observations of the detective's interview
7 A-0752-16T2 of B.F, and B.F.'s statements to his stepsister, S.D, and
stepbrother, D.D. Defendant's claims lack merit.
"We grant substantial deference to the trial judge's
discretion on evidentiary rulings." N.J. Div. of Youth & Family
Servs. v. M.G., 427 N.J. Super. 154, 172 (App. Div. 2012)
(citations omitted). Of course, that discretion must conform to
applicable legal standards. See, e.g., Gotlib v. Gotlib, 399 N.J.
Super. 295, 309 (App. Div. 2008).
Pursuant to N.J.S.A. 9:6-8.46(b), evidence adduced in an
abuse or neglect hearing must be "competent, material and
relevant." See N.J. Div. of Youth & Family Servs. v. G.M., 198
N.J. 382, 398, (2009). That requirement is consistent with the
principle that Title 9 fact-finding hearings must be conducted
with sufficient formality and general adherence to fundamental
evidentiary rules. See, e.g., N.J. Div. of Youth & Family Servs.
v. I.Y.A., 400 N.J. Super. 77, 90-91 (App. Div. 2008).
Furthermore, it is well-settled that, in matters involving
the alleged abuse of children, our rules of evidence are
"supplemented by statute and court rule[s]." N.J. Div. of Youth
& Family Servs. v. L.A., 357 N.J. Super. 155, 166 (App. Div. 2003).
Rule 5:12-4(d) specifically permits the Division to submit in
evidence "reports by staff personnel," but it must do so "pursuant
8 A-0752-16T2 to N.J.R.E. 803(c)(6) and 801(d)," which refer to the business
record exception to the hearsay rule.
Moreover, reports admitted pursuant to Rule 5:12-4(d) are
subject to other hearsay limitations, including those imposed by
N.J.R.E. 805 concerning embedded hearsay statements.5 See, e.g.,
N.J. Div. of Child Prot. & Permanency v. N.T., 445 N.J. Super.
478, 496 (App. Div. 2016) (quoting In re Guardianship of Cope, 106
N.J. Super. 336, 343 (App. Div. 1969)). In Cope, we held, "the
[Division] should be permitted to submit into evidence, pursuant
to [former] Evidence Rules 63(13) and 62(5), reports by [Division]
staff personnel . . . prepared from their own firsthand knowledge
of the case." Cope, supra, 106 N.J. Super. at 343; See also,
N.J. Div. of Child Prot. & Permanency v. B.O., 438 N.J. Super.
373, 385 (App. Div. 2014).
Here, defendant concedes the Division's investigative summary
was properly admitted in evidence pursuant to Rule 5:12-4. He
claims, however, because the Division worker who prepared the
5 N.J.R.E. 805 states:
A statement within the scope of an exception to Rule 802 shall not be inadmissible on the ground that it includes a statement made by another declarant which is offered to prove the truth of its contents if the included statement itself meets the requirements of an exception to Rule 802.
9 A-0752-16T2 report did not testify at trial, her memorialized observations of
B.F.'s statements to the detective constitute inadmissible
hearsay. Among other things, defendant argues the caseworker had
turned the case over to the prosecutor's office and, as such, her
observations do not fall within the business records exception
pursuant to N.J.R.E. 803(c)(6).
We are unpersuaded by defendant's arguments. Although the
caseworker did not participate in the interview, she witnessed it
in real time and summarized B.F.'s statements in her investigative
summary. Although the intake worker did not testify at trial,
Ficcaglia's undisputed testimony confirmed the summary was
prepared in the regular course of the intake worker's business.
Moreover, defendant did not object at trial specifically to
Ficcaglia's testimony summarizing the interview. Rather, defense
counsel objected generally to any statements "attributed to [his]
client" and any statement that does not have "an independent
exception to the hearsay rule." Defense counsel emphasized "the
most objectionable [e]mbedded hearsay is contained on Page 7" of
the investigative summary, all of which pertain to defendant's
admission to the detective that he penetrated B.F., the charges
against defendant, and the outcome of B.F.'s examination with Dr.
Lanese. The court invited the parties to submit in evidence a
redacted version of the investigative summary, but defense counsel
10 A-0752-16T2 responded, "I don't object to the [c]ourt reviewing the document."
Thus, it is unclear whether defendant objected specifically to the
statements made by B.F. to the detective. It is likewise unclear
whether defendant objected to B.F.'s statements to his step-
siblings, S.D., and D.D., contained in the investigative summary.
In any event, we conclude the trial court properly admitted
B.F.'s statements to the detective through Ficcaglia, and as
contained in the investigative summary, and B.F.'s statements to
his step-siblings, pursuant to N.J.S.A. 9:6-8.46(a)(4). That
subsection states, "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." See N.T., supra, 445 N.J. Super. at 497.
"Thus, a child's hearsay statement may be admitted into evidence,
but may not be the sole basis for a finding of abuse or neglect."
N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 33
(2011).
We are satisfied B.F.'s statements to the detective were
sufficiently corroborated. We have recognized that corroboration
may include "eyewitness testimony, a confession, an admission or
medical or scientific evidence." N.J. Div. of Youth & Family Servs.
v. L.A., 357 N.J. Super. 155, 166 (App. Div. 2003). However,
11 A-0752-16T2 corroborative evidence may also be circumstantial because often
there is no direct physical or testimonial evidence to support a
child's statements. N.J. Div. of Youth & Family Servs. v. Z.P.R.,
351 N.J. Super. 427, 436 (App. Div. 2002) (recognizing
corroboration may include, "'a child victim's precocious knowledge
of sexual activity[.]'").
While much of the Division's evidence derives from B.F.'s
statements detailing defendant's sexual assaults, there is
sufficient corroboration in the record to support those statements
based upon Dr. Lanese's unrefuted expert testimony. Specifically,
Dr. Lanese is a medical doctor, specializing in pediatric child
abuse. On cross-examination of her credentials, she acknowledged
she is not a psychologist, but has greater expertise in psychology
"than the average person; because of [her] experience in the child
abuse field, and the reasons [they] actually provide treatment,
and ask for these children to go to treatment." Although Dr.
Lanese would not make a psychological diagnosis as part of her
examination, she explained "it's very difficult to separate your
psychological and your physiologic. Things that happen
emotionally to you can also affect you physically. So, I
understand the psychological component enough, of how it may affect
the body itself."
12 A-0752-16T2 We are satisfied Dr. Lanese's expertise in child abuse
pediatrics dispels defendant's claims that her findings went
beyond pediatrics. Thus, contrary to defendant's contention,
B.F.'s statements detailing two accounts of sexual penetration by
defendant were corroborated by Dr. Lanese's expert testimony and
evaluation of the child. Z.P.R., supra, 351 N.J. Super. at 436.
Additionally, for the first time on appeal, defendant argues
Dr. Lanese's corroboration of the sexual assault was an
impermissible net opinion. This argument also lacks merit.
Defendant did not challenge Dr. Lanese's qualifications as a
child abuse expert at trial. During cross-examination of her
credentials, defense counsel elicited that Dr. Lanese was not an
expert in psychology, but he did he not object to any portion of
her testimony, nor seek to have it stricken. Although under the
plain error rule we will consider allegations of error not brought
to the trial court's attention that have a clear capacity to
produce an unjust result, see Rule 2:10-2; we generally decline
to consider issues that were not presented at trial. Nieder v.
Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). As the Court has
cogently explained:
Appellate review is not limitless. The jurisdiction of appellate courts rightly is bounded by the proofs and objections critically explored on the record before the trial court by the parties themselves.
13 A-0752-16T2 Although "[o]ur rules do not perpetuate mere ritual[,]" we have insisted that in opposing the admission of evidence, a litigant must "make known his position to the end that the trial court may consciously rule upon it." State v. Abbott, 36 N.J. 63, 76, (1961). This is so because "[t]he important fact is that the trial court was alerted to the basic problem[.]" Id. at 68. In short, the points of divergence developed in the proceedings before a trial court define the metes and bounds of appellate review.
[State v. Robinson, 200 N.J. 1, 19, (2009) (alterations in original).]
Defendant's present contention that Dr. Lanese rendered a net
opinion was not raised before the trial court, and we need not
consider it in this case.
Nevertheless, admission of Dr. Lanese's opinion was not plain
error. In considering whether expert testimony was properly
admitted, "we rely on the trial court's acceptance of the
credibility of the expert's testimony and the court's fact-
findings based thereon, noting that the trial court is better
positioned to evaluate the witness' credibility, qualifications,
and the weight to be accorded her testimony." In re Guardianship
of D.M.H., 161 N.J. 365, 382 (1999) (citing Bonnco Petrol, Inc.
v. Epstein, 115 N.J. 599, 607, (1989)). Therefore, we exercise
limited review of a trial judge's decision to admit or exclude
expert testimony. See Townsend v. Pierre, 221 N.J. 36, 52-53,
(2015) ("The admission or exclusion of expert testimony is
14 A-0752-16T2 committed to the sound discretion of the trial court."); Hisenaj
v. Kuehner, 194 N.J. 6, 12, (2008) (stating that trial court's
evidentiary decision to admit expert testimony is reviewed for an
abuse of discretion).
The rule prohibiting net opinions is a "corollary" of N.J.R.E.
703, Townsend, supra, 186 N.J. at 494, which provides an expert's
testimony "may be based on facts or data derived from (1) the
expert's personal observations, or (2) evidence admitted at the
trial, or (3) data relied upon by the expert which is not
necessarily admissible in evidence but which is the type of data
normally relied upon by experts in forming opinions on the same
subject." Weissbard & Zegas, Current N.J. Rules of Evidence,
comment 1 on N.J.R.E. 703 (2017). Thus, the net opinion rule can
be considered a "restatement of the established rule that an
expert's bare conclusions, unsupported by factual evidence, [are]
inadmissible." Buckelew v. Grossbard, 87 N.J. 512, 524 (1981).
The net opinion rule "requir[es] that the expert 'give the why and
wherefore' that supports the opinion, 'rather than a mere
conclusion.'" Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J.
344, 372 (2011) (quoting Polzo v. Cty. of Essex, 196 N.J. 569, 583
(2008)).
For example, "a trial court may not rely on expert testimony
that lacks an appropriate factual foundation and fails to establish
15 A-0752-16T2 the existence of any standard about which the expert testified."
Id. at 373 (citing Suanez v. Egeland, 353 N.J. Super. 191 (App.
Div. 2002)). Therefore, an expert offers an inadmissible net
opinion if he or she "cannot offer objective support for his or
her opinions, but testifies only to a view about a standard that
is 'personal.'" Ibid.
Applying these principles, we discern no basis for
defendant's argument that Dr. Lanese rendered a net opinion.
Rather, she fully explained the grounds for her conclusions and
was subject to cross-examination by three attorneys concerning
them. Dr. Lanese is a board-certified child abuse pediatrician.
At the time of her testimony, she had specialized in this area for
nearly seven years and testified in abuse and neglect cases
approximately one to two times per month. She was well qualified,
her testimony and written report addressed all the relevant issues,
and her conclusions were firmly supported by the facts in the
record. Therefore, we discern no error, much less plain error,
in the court's admitting her testimony.
We also are not persuaded by defendant's contention that the
trial judge failed to give adequate weight to B.F.'s recantation
to his family members. Dr. Lanese explained that the specific and
detailed account as related by B.F. suggested to her that he did
not lie about the abuse. She elaborated:
16 A-0752-16T2 When a child says they lied, usually those children can't tell us the further details. They make one statement that, "Oh so and so touched me." And then, they can't tell me how they felt. Or what happened after. They may not know about the pink-topped tube, or the pink tube. He wouldn't be able to tell me that dad laid on him.
Those other statements are what builds the picture of sexual abuse. The lack of detail would make me more concerned that he did lie. But, the fact that he has those details, and for a five-year-old to remember those details, if someone was feeding it to him, they just don't have the ability to remember that well. And, he indicates that he never saw any pictures of naked people; so, being exposed to something like pornography, was not something that he reported to me. So, he couldn't have witnessed something.
So, in the end, I was left to say this is a child who, so far, has been saying that this happened to him. And, when he gets to me, now, he's saying he lied. But he's had a couple days with family, who maybe didn't believe him.
As noted above, B.F.'s previous statements were properly
accepted by the trial judge because they were corroborated. N.J.
Div. of Child Prot. & Permanency v. Y.A., 437 N.J. Super. 541, 547
(App. Div. 2014). Unfortunately, however, the trial court did not
make any direct findings concerning B.F's purported lie. We do
know, however, that the court "found Dr. Lanese to be a highly
credible witness in her examination, as well as under cross-
examination by the [l]aw [g]uardians, as well as defense counsel."
17 A-0752-16T2 The record, therefore, supports the court's implicit rejection of
B.F.'s purported lie.
We are satisfied that the trial court's omission to explain
the basis of this key determination is not fatal to the ultimate
finding that the Division established, by a preponderance of the
competent material and relevant evidence, that B.F. was abused by
defendant as defined in N.J.S.A. 9:6-8.21. The court's decision
was consistent with B.F.'s earlier statements, and Dr. Lanese's
expert testimony, which the trial judge found credible.
Finally, we are unpersuaded by defendant's argument that the
court's findings of fact and conclusions of law were so inadequate
as to warrant reversal. Where, as here, "'the evidence is largely
testimonial and involves questions of credibility,'" we defer to
the trial judge's factual findings. Sipko v. Koger, Inc., 214
N.J. 364, 376 (2013) (quoting Cesare v. Cesare, 154 N.J. 394, 412
(1998)).
In sum, we discern sufficient credible evidence in the record
as a whole to support the trial court's finding of sexual assault
constituting abuse and neglect. R. 2:11-3(e)(1)(A).
Defendant's remaining arguments lack sufficient merit to
warrant further discussion in our opinion. R. 2:11-3(e)(2).
Affirmed.
18 A-0752-16T2