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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1961-14T2 A-2103-14T2
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
P.E. and S.M.,
Defendants-Appellants,
and
T.T. and E.H.,
Defendants. __________________________________
IN THE MATTER OF S.T., N.E. and L.T.,
Minors. ___________________________________
Argued May 8, 2017 – Decided May 15, 2017
Before Judges Sabatino, Haas and Geiger.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FN-20-12-12. Thomas G. Hand, Designated Counsel, argued the cause for appellant P.E. (Joseph E. Krakora, Public Defender, attorney; Mr. Hand, on the briefs).
Joseph F. Kunicki, Designated Counsel, argued the cause for appellant S.M. (Joseph E. Krakora, Public Defender, attorney; Mr. Kunicki, on the briefs).
Alicia Y. Bergman, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jane E. Kutch, Deputy Attorney General, on the brief).
Nancy P. Fratz, Assistant Deputy Public Defender, argued the cause for minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Fratz, on the brief).
PER CURIAM
In these consolidated appeals, defendant P.E.1 appeals from
a March 5, 2012 Family Part order2 determining that he sexually
abused his eleven-year-old stepdaughter S.T. ("Samantha") on a
number of occasions over a six-month period between August 2010
and February 2011. Defendant S.M., who is P.E.'s wife, also
appeals from the portion of the March 5 order, which found that
S.M. abused or neglected Samantha by permitting P.E. to re-enter
1 We use initials and fictitious names to protect the privacy of the family.
2 This order became appealable as of right after the trial court entered a final order terminating litigation on November 12, 2014.
2 A-1961-14T2 the home and have contact with Samantha, and her two siblings,
N.E. ("Nora") and L.T. ("Lori"), in violation of a safety plan
that S.M. entered with the Division of Child Protection and
Permanency ("Division") in order to protect the children from P.E.
We affirm.
I.
We derive the following facts from the record developed at
the fact-finding hearing. P.E. and S.M. are married. S.M. is the
biological mother of Samantha, born in September 1999, and Lori,
born in October 2001. P.E. is the biological father of Nora, born
in May 2000.
On March 22, 2011, the Division received a referral from
Samantha's school that alleged that P.E. had sexually abused
Samantha. The child disclosed the abuse to two of her classmates
after participating in a "Touching Safety Program" at the school.
Samantha's classmates told a teacher, who reported the allegation
to the principal. Samantha told the school officials that P.E.
had started touching her in a sexual manner prior to the start of
the current school year. Samantha also stated that P.E. warned
her that if she told anyone that he touched her, S.M. would throw
P.E. out of the house and the family would have no food to eat.
That same day, Tamekia Chatman, a Division investigator, went
to Samantha's home to interview her and S.M. Chatman testified
3 A-1961-14T2 that Samantha asserted that on at least ten occasions between
August 2010 and February 2011, P.E. fondled her breasts and touched
her vagina. P.E. touched the child with his hands, his penis, and
also with his lips. The child stated that she told P.E. to stop,
but the assaults continued over a six-month period.
Samantha told Chatman that the assaults usually happened in
P.E.'s bedroom. Sometimes S.M. and the other children were home
when the incidents occurred and sometimes they were not. Usually,
P.E. would tell Samantha that he "needed help with something" in
his room and, once she entered, he would "lay her down" and fondle
her, or touch her while she was standing.
Samantha stated that the P.E.'s final assault occurred on the
last Sunday of February 2011. On that date, P.E. pulled the
child's pants down and put his lips on her body.
Chatman spoke to the two other children. Both denied ever
being assaulted by P.E. or witnessing him assault their sister.
Before Chatman arrived at the home, Samantha's school had
advised S.M. of the child's allegations. S.M. told Chatman that
she confronted P.E., who started crying. However, S.M. stated
that P.E. then denied the allegations. Nevertheless, S.M. agreed
to keep P.E. out of the home and away from the children until the
Division completed its investigation.
4 A-1961-14T2 Chatman learned from Samantha's school that the child was a
"gifted student." However, after she disclosed P.E.'s actions,
the school reported that Samantha's "[s]tandardized test scores"
dropped off.
On March 22, 2011, Chatman accompanied Samantha to the
prosecutor's office, where the child was interviewed by Detective
Sofia Santos. Although Detective Santos did not administer a
formal "oath" to Samantha, the detective asked the child several
times whether she knew the difference between the truth and a lie
and whether she would be truthful during the interview. Samantha
agreed to tell the truth.
In the interview that followed, Samantha provided an account
of P.E.'s actions that was virtually identical to the ones she
previously gave to school officials and Chatman. The child's
responses as to when the abuse began, what occurred during these
incidents, and the last assault in February 2011 were consistent
with her prior disclosures. Detective Santos videotaped the
interview, and the Division played the DVD during the fact-finding
hearing.
5 A-1961-14T2 Detective Santos also interviewed S.M.3 S.M. stated that when
she questioned Samantha, the child initially told her that P.E.
would squeeze her too tight when "he held her." However, Samantha
later told S.M. that P.E. had been touching her in an inappropriate
manner.
Detective Santos next spoke with P.E., who denied ever
assaulting Samantha. However, P.E. did admit that because Samantha
was "the one that helps us with the computer[,]" which he kept in
his room, he would ask the child to come into his room to assist
him with the device. P.E. also stated that he was home sick with
the child on the day in February 2011 when Samantha asserted the
final assault occurred.4
On April 7, 2011, Dr. Gladibel Medina, who was qualified at
the hearing as an expert in pediatrics "with . . . specialized
knowledge about child sexual abuse," examined Samantha. The child
again gave a consistent account of what transpired between P.E.
and herself. Samantha "described hand contact of her breast
region, oral contact of her breast region, hand contact of her
3 S.M. told the detective that she could read, write, and understand the English language and had a bachelor's degree in social services.
4 After the interview was completed, the police arrested P.E. on outstanding traffic warrants, but he was not charged in connection with assaulting Samantha at that time.
6 A-1961-14T2 front genital area and penis contact of her front genital area by
[P.E.] on multiple occasions over the past year."
Dr. Medina found no evidence of physical injury or trauma.
However, the child described the "emotional stress" she felt
because of P.E.'s actions and because "she didn't want to hurt"
S.M. Although Dr. Medina noted that Samantha was "tr[ying] to act
as normal as possible, . . . her stress gave her difficulties
concentrating and also sleeping[.]"
Dr. Medina also opined that the fact that P.E. threatened
that the family would suffer if Samantha told anyone what he was
doing, was "significant" and that the stress the child was under
was "the most common presentation in children who have been
abused." Dr. Medina further stated that Samantha's emotional
difficulties could "present as school performance or behavioral
problems[.]" Dr. Medina recommended that Samantha participate in
counseling.
On April 12, 2011, Chatman visited S.M. at the family home
to make sure that P.E. was not living there. S.M. told Chatman
that neither she nor the children had seen or spoken to P.E. since
he left the home on March 22. Chatman reported that S.M. again
agreed that P.E. had "to remain outside the home until further
investigation" was completed.
7 A-1961-14T2 On May 25, 2011, Chatman conducted another visit to determine
if S.M. was keeping P.E. out of the home as she had agreed on
March 22. S.M. again reported that P.E. had not been present in
the home since that date.
On June 29, 2011, Chatman prepared a written case plan
memorializing S.M.'s prior agreement to keep P.E. out of the home
where Samantha was residing. The plan documented that S.M. "agreed
to keep [P.E.] out of the home until all services recommended by
the Division are completed by [P.E.], such as counseling and a
psychological evaluation." Chatman and S.M. signed the case plan
on June 29.
On July 15, 2011, the Division filed a verified complaint for
care and supervision of the three children under Title Nine and
Title Thirty. On that same date, the trial judge issued an order
to show cause granting the Division's request. The judge's order
also noted that "[t]here are serious allegations made by a child
in the home that [P.E.] engaged in inappropriate sexual acts with
the child. If he is barred from the home, care and supervision
by [the Division] is appropriate." The order further provided
that P.E. was "barred from all contact by phone, in person, or any
other means with all the children in the home until this matter
returns to court." On July 29, 2011, the Division received a
referral from the prosecutor's office stating that P.E. was again
8 A-1961-14T2 residing in the family home with S.M., Samantha, and the two other
children. Natasha Walden, a Division supervisor, testified at the
hearing concerning the Division's investigation of this referral.
S.M. told a Division caseworker that P.E. was not living in
or visiting the home. However, S.M. admitted that P.E. called her
at the residence on a daily basis. S.M. gave the caseworker an
address where P.E. purportedly lived but, upon further
investigation, the Division learned that P.E. had only asked the
owner of that residence if he could use that location as a mailing
address.
When the caseworker spoke to Samantha, the child stated that
P.E. last called the house a couple of months prior to the
interview. Lori told the caseworker that she had spoken to P.E.
on the telephone the day before. Lori also acknowledged that P.E.
frequently stayed overnight in the home or would sometimes leave
at night and return in the morning.5 Nora reported that she had
seen P.E. in May and last spoke to him on the telephone on July
4. Based upon the violation of the March 22, 2011 agreement that
S.M. keep P.E. out of the home, the Division made arrangements for
the three children to temporarily reside with S.M.'s sister.
5 During their interviews with Detective Santos, P.E. and S.M. both acknowledged that prior to Samantha's disclosures, P.E. usually worked overnight and returned home in the mornings.
9 A-1961-14T2 At the hearing, the Division also presented the testimony of
C.J., who was P.E. and S.M.'s neighbor. C.J. testified that she
saw P.E. exiting the home in late June 2011, a date she remembered
because it was the same night as a concert she was going to attend.
C.J. also saw P.E. at the home on July 4, 2011, and again on
several other occasions in July and August 2011.
After the Division rested its case, the Law Guardian called
Samantha as a witness. Samantha testified in the trial judge's
chambers with only the judge and her attorney present. However,
P.E. and S.M.'s attorneys, and the Deputy Attorney General on
behalf of the Division, provided the judge with proposed questions
in advance, and were able to listen to the testimony in the
courtroom on a speaker. Prior to her testimony, Samantha promised
to tell the truth.
After Samantha provided the trial judge with some background
information concerning her age, her siblings, and her parents, the
judge questioned the child about her allegation that P.E. had
sexually assaulted her. At that time, Samantha stated, "Well, I
actually don't remember that. I don't remember it, like that far
back." Samantha also testified that she did not remember telling
anyone at her school about the assaults. The judge then asked the
child, "Did [P.E.] ever touch you improperly?" Samantha replied,
"I don't recollect . . . like inappropriately . . . [a]s far as
10 A-1961-14T2 I remember." The child also denied remembering speaking to a
detective about the incidents.
At that point, the trial judge terminated the questioning and
returned to the courtroom. After discussing the matter with the
attorneys, the judge decided not to attempt to ask Samantha any
additional questions. The judge explained that Samantha had "been
put through quite a bit" and he did "not want to further the trauma
of going through this."
The Law Guardian did not call any other witnesses. In her
summation, the Law Guardian supported the Division's position that
P.E. had sexually abused Samantha and that S.M. had abused or
neglected the children by permitting P.E. to return to the home
in violation of her agreement. P.E. and S.M. did not testify or
call any witnesses.
On March 5, 2012, the trial judge rendered a thorough oral
opinion.6 The judge found that the Division had demonstrated by
a preponderance of the evidence that P.E. sexually assaulted
Samantha and that S.M. abused or neglected the children by failing
to abide by her agreement to keep P.E. away from them while the
matter was under investigation and all services were completed.
6 The judge delivered his oral decision by reading from a written opinion he had prepared. The judge provided the parties with a copy of the written opinion for their convenience.
11 A-1961-14T2 With regard to Samantha's accounts of the incidents with
P.E., the judge found that during her interview with Detective
Santos on the day she disclosed the assaults, Samantha was
articulate, specific, and frank about what [P.E.] had been doing. The detail, which [Samantha] provided, makes it virtually certain that the improper sexual abuse by [P.E.] occurred. It is difficult to fathom how any objective observer reading the transcript and seeing the interview on DVD could doubt that at that time [Samantha] was telling the painful truth. On multiple occasions, [P.E.] sexually abused his . . . stepdaughter[.]
The judge next addressed Samantha's lack of memory of these
events when she testified at the hearing. In giving this
"recantation" little weight, the judge stated:
This lovely, ambitious child . . . has obviously been put in the middle of a very difficult situation. She was so verbal and well-spoken and congenial on all other matters unrelated to the sexual abuse. As soon as questions about the sexual abuse started, [Samantha] obviously felt the need to cover up what had happened in order to protect herself, her mother, her stepfather, and her siblings from further problems. Her testimony of sexual abuse in the area was obviously rehearsed.
She is now [thirteen] years of age. In her statement to the Prosecutor's Office she claimed that the last time [P.E.] sexually abused her was in February 2011. [Samantha] gave a very stark statement to the Prosecutor on March 22[,] 2011. It is impossible to believe that this . . . outgoing, friendly, and well-spoken child did not recall the
12 A-1961-14T2 numerous statements she gave less than a year before she came to court.
Based upon these observations of the child as she gave her
statement to Detective Santos and when she testified in chambers,
the judge concluded:
I specifically find by far more than the greater weight of the evidence that [P.E.] sexually abused [Samantha] on numerous occasions in violation of our statute, N.J.S.A. 9:6-8.21. I find [Samantha's] multiple statements affirming that her stepfather sexually abused her to be trustworthy. She noted that her stepfather would say he was sorry after the abuse. That is quite credible. [Samantha's] late recantation was obviously false.
Turning to the allegations against S.M., the judge found that
S.M. "failed to exercise the minimum degree of care the law
requires by her failure to provide the child with proper
guardianship" under Title Nine. The judge found that S.M. "was
very aware of the serious allegations that had been made against
[P.E.] involving the sexual abuse of her child." Yet, S.M.
permitted P.E. to return to the home and have contact with Samantha
and her siblings.
In so ruling, the trial judge specifically found that C.J.'s
testimony concerning her observations of P.E. at the home in late
June and early July 2012 was credible. C.J.'s testimony also
corroborated Lori's account of P.E.'s repeated visits to the home
13 A-1961-14T2 and telephone contact with the children. Because S.M. had agreed
in the case plan to bar P.E. from the home, the judge found that
she "was grossly negligent" toward Samantha's safety.
II.
After the trial court entered an order terminating the
litigation on November 12, 2014, P.E.'s and S.M.'s appeals
followed. On appeal, P.E. argues that "the trial court erred in
finding that [he] committed an act of abuse and neglect against
Samantha because no credible evidence was provided to support the
trial court's findings." In her appeal, S.M. asserts that "there
was no evidence of a nexus between the violation of the court
order and an imminent danger or substantial risk of harm." We
disagree with defendants' contentions.7
7The Division continues to support the trial court's determination and asserts that the court's findings concerning both P.E. and S.M. are "supported by substantial credible evidence and should be affirmed." However, the Law Guardian, on behalf of the three children, now asserts "no position" on the merits of defendants' respective appeals. The Law Guardian explains that it has taken that tact because "[t]he family is reunified, [Samantha] is good, and all look forward to closure." In his reply brief, P.E. complains that the Law Guardian has taken "no position" on the question of whether he abused or inappropriately neglected Samantha as the trial judge found. However, this argument lacks merit. The Law Guardian acts as an independent advocate for the children, not for their parents. Div. of Youth & Family Servs. v. Robert M., 347 N.J. Super. 44, 70 (App. Div.), certif. denied, 174 N.J. 39 (2002). Law [G]uardians are obliged to make recommendations as to how a child client's desires may best be accomplished, [and] to express any concerns regarding the child's
14 A-1961-14T2 Our review of the trial judge's factual finding of abuse or
neglect is limited; we defer to the court's determinations "when
supported by adequate, substantial, credible evidence." N.J. Div.
of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App.
Div. 2008) (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)).
The trial court is best suited to assess credibility, weigh
testimony and develop a feel for the case, and we extend special
deference to the Family Part's expertise. N.J. Div. of Youth &
Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010); Cesare,
supra, 154 N.J. at 413. Unless the trial judge's factual findings
are "so wide of the mark that a mistake must have been made" they
should not be disturbed, even if we would not have made the same
decision if we had heard the case in the first instance. N.J.
Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)
(internal quotation marks and citation omitted). "It is not our
place to second-guess or substitute our judgment for that of the
family court, provided that the record contains substantial and
credible evidence to support" the judge's decision. N.J. Div. of
Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012).
safety. . . ." Ibid. By advocating on behalf of the three children that the current status quo should be maintained in this case, the Law Guardian has properly discharged that responsibility without taking sides on the merits of the abuse or neglect finding on behalf of the children.
15 A-1961-14T2 In pertinent part, N.J.S.A. 9:6-8.21(c) defines an "abused
or neglected child" as a child:
whose parent or guardian . . . (3) commits or allows to be committed an act of sexual abuse against the child; [or] (4) 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 . . . (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[.]
A court does not have to wait until a child is actually harmed
or neglected before it can act in the welfare of that minor. N.J.
Div. of Youth & Family Servs. v. V.M., 408 N.J. Super. 222, 235-
36 (App. Div.) (citing In re Guardianship of D.M.H., 161 N.J. 365,
383 (1999)), certif. denied, 200 N.J. 505 (2009). Nor does harm
to the child need to be intentional in order to substantiate a
finding of abuse or neglect. M.C. III, supra, 201 N.J. at 344.
In determining a case of abuse or neglect, the court should
base its determination on the totality of the circumstances. N.J.
Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329
(App. Div. 2011). A finding of abuse or neglect must be based on
a preponderance of the evidence. N.J.S.A. 9:6-8.46(b).
16 A-1961-14T2 A.
Applying these standards to this matter, we are satisfied
that there was competent, credible evidence in the record to
support the trial judge's finding by a preponderance of the
evidence that P.E. sexually abused Samantha over a six-month
period. N.J.S.A. 9:6-8.21(c)(3). Accordingly, we reject P.E.'s
contention that there was insufficient evidence of corroboration
of Samantha's statements concerning the sexual assaults as
required by N.J.S.A. 9:6-8.46(a)(4).
N.J.S.A. 9:6-8.46(a)(4) provides that "previous statements
made by the child relating to 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." Corroboration may include
"eyewitness testimony, a confession, an admission or medical or
scientific evidence." N.J. Div. of Child Prot. & Permanency v.
Y.A., 437 N.J. Super. 541, 547 (App. Div. 2014) (quoting N.J. Div.
of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 166 (App.
Div. 2003)). However, corroborative evidence may also be
circumstantial, as we have recognized that there often 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). "The corroborative evidence need not relate
17 A-1961-14T2 directly to the alleged abuser, it need only provide support for
the out-of-court statements." Ibid.
Physical evidence of assault is certainly corroborative, but
it is rare "because the sex offenses committed against children
tend to be nonviolent offenses such as petting, exhibitionism,
fondling and oral copulation." Ibid. (citation omitted). Thus,
corroboration may also be established by evidence of emotional
impacts, such as nightmares and other psychological conditions.
Ibid.
While much of the Division's evidence derives from Samantha's
statements detailing P.E.'s sexual assaults, there is sufficient
corroboration in the record to support those statements based upon
Dr. Medina's expert testimony. After examining the child, Dr.
Medina opined, based upon her "specialized knowledge about child
sexual abuse," that the "emotional stress" Samantha was
experiencing because of the assaults manifested itself in the
"difficulties" the child was having "concentrating and also
sleeping."
According to Dr. Medina's uncontradicted expert testimony,
Samantha's stress as a result of the assaults and of P.E.'s threats
that the family would suffer if the child revealed what had
occurred, was "significant" and constituted "the most common
presentation in children who have been abused." However, Dr.
18 A-1961-14T2 Medina also noted that Samantha's emotional difficulties could
"present as school performance . . . problems[.]" As noted above,
the Division documented that Samantha's standardized test scores
fell during this period.
Thus, contrary to P.E.'s contention, Samantha's statements
concerning his assaultive behavior was amply corroborated by Dr.
Medina's expert testimony and evaluation of the child. Z.P.R.,
supra, 351 N.J. Super. at 456. However, for the first time on
appeal, P.E. now argues that Dr. Medina's corroboration of the
sexual assault was an impermissible net opinion. This argument
also lacks merit.
First, P.E. did not challenge Dr. Medina's qualifications to
provide expert testimony on child sexual abuse at trial. He also
did not object to any portion of her testimony. 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 Supreme
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.
19 A-1961-14T2 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).]
As noted, P.E.'s present contention that Dr. Medina rendered
only a net opinion was not raised before the trial court.
Therefore, we need not review it under the circumstances of this
case.
In any event, "[w]e rely on the trial [judge'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 [his] testimony." D.M.H., supra,
161 N.J. at 382 (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 committed to the sound discretion
of the trial court."); Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008)
20 A-1961-14T2 (stating that trial court's evidentiary decision to admit expert
testimony is reviewed for an abuse of discretion).
The Court in Townsend reviewed the law on net opinions.
Expert opinions must be grounded in "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." Townsend, supra, 221 N.J. at
53 (quoting Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008)).
The net opinion rule is a "corollary of [N.J.R.E. 703] . . . which
forbids the admission into evidence of an expert's conclusions
that are not supported by factual evidence or other data." Id.
at 53-54 (quoting Polzo, supra, 196 N.J. at 183).
Therefore, an expert is required to "give the why and
wherefore that supports the opinion, rather than a mere
conclusion." Id. at 54 (quoting Borough of Saddle River v. 66 E.
Allendale, LLC, 216 N.J. 115, 144 (2013)). The net opinion rule
directs that experts "be able to identify the factual bases for
their conclusions, explain their methodology, and demonstrate that
both the factual bases and the methodology are reliable." Id. at
55 (quoting Landrigan v. Celotex Corp., 127 N.J. 404, 417 (1991)).
On the other hand, "[t]he net opinion rule is not a standard
of perfection." Id. at 54. An expert may ground an opinion in
21 A-1961-14T2 his or her personal experience and training. See State v.
Townsend, 186 N.J. 473, 495 (2006); Rosenberg v. Tavorath, 352
N.J. Super. 385, 403 (App. Div. 2002) ("Evidential support for an
expert opinion is not limited to treatises or any type of
documentary support, but may include what the witness has learned
from personal experience."). The failure to rely on sources the
opponent deems important, or to organize one's opinion in a way
the adversary considers appropriate, does not warrant exclusion
as a net opinion. Townsend, supra, 221 N.J. at 54. These matters
are left for cross-examination. Id. at 54-55.
Applying these principles, we discern no basis for P.E.'s
complaint that Dr. Medina rendered a net opinion. Dr. Medina
fully explained the grounds for her conclusions and was subject
to cross-examination concerning them. Dr. Medina's many years of
experience and training as a board-certified pediatrician
specializing in cases involving child sexual abuse, including her
most recent position as the medical director of the Dorothy B.
Hersh Regional Child Protection Center in New Brunswick, provided
an ample foundation for her expert opinion that Samantha's
emotional stress was caused by P.E.'s assaults. Under these
circumstances, Dr. Medina's findings plainly did not constitute
an impermissible net opinion. She was well qualified, her
testimony and written report addressed all the relevant issues,
22 A-1961-14T2 and her conclusions were firmly supported by the facts in the
record.
We are also not persuaded by P.E.'s contention that the trial
judge failed to give adequate weight to Samantha's "recantation"
at the hearing when she told the judge that she did not remember
reporting the sexual assaults to anyone or that P.E. had assaulted
her. The judge meticulously summarized the evidence in his
decision before finding Samantha's out-of-court statements to be
more credible than her in-court recantation.
As noted above, Samantha's previous statements, one of which
was videotaped after Detective Santos advised the child of the
need to be truthful, were properly considered by the trial judge
because they were corroborated. Y.A., supra, 437 N.J. Super. at
547. Accordingly, the judge "could properly reject as incredible
the testimony of [Samantha] at trial which was inconsistent with
[her] prior statements." State in the Interest of R.V., 280 N.J.
Super. 118, 121 (App. Div. 1995).
The trial judge's credibility findings on this issue were
well supported by the record. The judge explained that he found
Samantha's sudden lack of memory to be entirely inconsistent with
the great level of detail included in her prior statements to
Chatman, Detective Santos, and Dr. Medina. He also observed that
the child's demeanor during this portion of her testimony appeared
23 A-1961-14T2 to be "rehearsed" and out of character with that displayed in the
earlier portion of her testimony at the hearing, and in the video-
taped statement she gave to Detective Santos. Under these
circumstances, we perceive no grounds for disturbing the judge's
reasoned determination that Samantha was telling the truth in her
earlier statements and that her "late recantation was obviously
false."
Finally, P.E. cites State v. Clawans, 38 N.J. 162 (1962), and
argues that the trial judge should have drawn an adverse inference
against the Division because it did call Samantha's classmates as
witnesses concerning the statements she made to them about P.E.'s
sexual assaults. This argument also lacks merit.
Once again, P.E. did not raise this contention before the
trial judge and, therefore, we are not obligated to consider it
for the first time on appeal. Robinson, supra, 200 N.J. at 19.
Moreover, the factfinder may only draw an adverse inference "when
a party's failure to present evidence 'raises a natural inference
that the party so failing fears exposure of those facts would be
unfavorable to him [or her].'" Torres v. Pabon, 225 N.J. 167, 181
(2016) (quoting Clawans, supra, 38 N.J. at 170). Therefore, "the
adverse inference instruction 'is not invariably available
whenever a party does not call a witness who has knowledge of
relevant facts.'" Ibid. (quoting State v. Hill, 199 N.J. 545,
24 A-1961-14T2 561 (1999)). Indeed, the inference can only be drawn if the absent
witness's "testimony would have been superior to that already
utilized in respect to the fact to be proved." Id. at 181-82
(quoting Clawans, supra, 38 N.J. at 171).
Here, the Division presented the testimony of Chatman and Dr.
Medina concerning Samantha's assertion that P.E. sexually
assaulted her at least ten times over a six-month period and then
told her not to disclose the assaults to anyone because the family
would suffer. The Division also presented a DVD of the interview
Detective Santos conducted with Samantha. As noted above, Samantha
stated during that interview that she knew the difference between
the truth and a lie and that she promised to tell the truth. Thus,
any additional testimony from Samantha's classmates would have
been cumulative, rather than "superior to that already utilized"
to prove the sexual assaults. Accordingly, we affirm the trial
judge's determination by a preponderance of the evidence that P.E.
sexually abused Samantha in violation of N.J.S.A. 9:6-8.21(c)(3).
B.
For the following reasons, we also reject S.M.'s argument
that the trial judge erred in finding that she abused or neglected
Samantha and her two siblings by permitting P.E. to return to the
house in violation of a safety plan that was put in place on March
22, 2011 when Samantha's allegations were first disclosed. There
25 A-1961-14T2 is clearly sufficient credible evidence to support the judge's
determination.
Pursuant to N.J.A.C. 3A:10-3.2(d), "a [Division] child
protective investigator shall, in the event that a factor which
makes the child unsafe has been identified, develop and implement
a safety plan to assure the child's safety with the parent or
caregiver." This regulation further provides that "[i]f the safety
plan cannot assure the safety of the alleged child victim, the
child protective investigator shall remove the alleged child
victim from the home[.]"
Here, Chatman, who was the Division's investigator, met with
S.M. on March 22, 2011, the day Samantha reported that P.E. had
been sexually assaulting her for months. At that time, S.M. agreed
to keep P.E. out of the home and away from the children until the
Thereafter, Chatman followed up with S.M. on April 12, 2011,
and again on May 25, 2011, to confirm that S.M. was abiding by the
safety plan and preventing P.E. from entering the home until the
was completed. S.M. continued to assert that P.E. had not been
at the home since March 22, 2011.
On June 29, 2011, Chatman prepared a written case plan that
included S.M.'s agreement to keep P.E. out of the home until all
services had been completed. S.M. signed the case plan. After
26 A-1961-14T2 the Division filed its complaint for care and supervision of the
children on July 15, 2011, the trial judge included the restraint
against P.E. being at the home or contacting the children in a
court order issued on that date.
In support of its allegation that S.M. violated the safety
plan by permitting P.E. to re-enter the home, the Division
presented the testimony of defendants' neighbor, C.J., who saw
P.E. at the home at the end of June 2011, on July 4, 2011, and on
other occasions in July and August 2011. The trial judge found
that C.J.'s testimony was credible.
Defendants' children also told a Division caseworker that
P.E. had been contacting the children and visiting the home.
Samantha reported that she spoke to P.E. at least once on the
telephone; Nora stated she saw P.E. at the home in May and spoke
to him on July 4; and Lori stated that P.E. had stayed overnight
at the home after the safety plan was put in place. The children's
statements were properly admitted in evidence because they were
corroborated by C.J.'s observations of P.E. at the home. Y.A.,
supra, 437 N.J. Super. at 547.
N.J.A.C. 3A:10-7.5(a)(2) specifically states that in
determining whether abuse or neglect has been substantiated, the
Division "shall consider . . . [t]he perpetrator's failure to
comply with court orders or clearly established or agreed-upon
27 A-1961-14T2 conditions designed to ensure the child's safety, such as a child
safety plan or case plan[.]" Here, the uncontradicted evidence
presented at the hearing amply demonstrated that S.M. permitted
P.E. to enter the home in violation of the March 22, 2011 child
safety plan to which she voluntarily agreed; the June 29, 2011
written case plan; and the trial court's July 15, 2011 order
granting care and supervision of the three children to the
Division.
S.M. argues that even if she violated the safety plan, the
Division failed to demonstrate "a nexus" between that clear
violation "and an imminent danger or substantial risk of harm" to
the children. This argument is clearly without merit.
Samantha alleged that P.E. sexually assaulted her on at least
ten occasions. Her account of these events was consistent and
detailed. Under these circumstances, the Division had two options
to protect Samantha and her siblings from the danger of further
abuse while it and the prosecutor's office continued their
investigation: (1) the children could be removed from defendants'
home and placed elsewhere, or (2) P.E. could voluntarily leave the
home, with S.M. ensuring that he did not return until the
investigation was completed. S.M. agreed to the latter
alternative, which enabled the children to stay with her at home,
while removing the source of the danger, P.E.
28 A-1961-14T2 We have long recognized that even if there is no evidence
that a child has been physically or emotionally harmed, a trial
court may make a finding of abuse or neglect "based on proof of
imminent danger and substantial risk of harm." N.J. Dep't of
Children & Family Servs. v. A.L., 213 N.J. 1, 23 (2013). S.M. was
fully aware of the allegations against P.E., including the fact
that he threatened that the family would be without food if
Samantha reported the abuse. S.M. also voluntarily agreed to the
March 22, 2011 safety plan, which was designed to keep P.E. away
from the children to ensure that another sexual assault did not
occur.
Yet, S.M. repeatedly violated the safety plan, thus
permitting a man accused of sexually abusing one of her children
to have unsupervised contact with all three of them. Although
there is no evidence that P.E. sexually assaulted Samantha again
after her March 22, 2011 disclosure or harm the other two children,
the trial judge's determination that S.M.'s "gross negligence"
placed Samantha and her sisters in danger of such harm is
unassailable. Therefore, we affirm the judge's conclusion that
S.M. abused or neglected the children by violating the safety
plan.
Affirmed.
29 A-1961-14T2