RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0238-13T2
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, APPROVED FOR PUBLICATION Plaintiff-Respondent, November 3, 2014 v. APPELLATE DIVISION Y.A.,
Defendant-Appellant. ________________________________
IN THE MATTER OF R.A., I.A., S.A., and Y.A.,
Minors. _________________________________
Submitted: October 28, 2014 – Decided: November 3, 2014
Before Judges Reisner, Haas and Higbee.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-400-10.
Joseph E. Krakora, Public Defender, attorney for appellant (Beth Anne Hahn, Designated Counsel, on the briefs).
John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Diane L. Scott, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor R.A. (Lisa M. Black, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors I.A., S.A. and Y.A. (Todd Wilson, Designated Counsel, on the brief).
The opinion of the court was delivered by
HAAS, J.A.D.
In this appeal, we address the issue of whether N.J.S.A.
9:6-8.46(a)(4) requires that the in camera testimony of a child
victim of sexual abuse be independently corroborated in order to
prove abuse or neglect under Title 9. N.J.S.A. 9:6-8.21 to -
8.73. Based upon our review of the record and applicable law,
we hold that the corroboration requirement of the statute does
not apply where the child victim testifies to the abuse at a
fact-finding hearing. We therefore affirm the trial judge's
finding that the Division of Child Protection and Permanency
(Division) met its burden of proving that defendant Y.A.
committed an act of sexual abuse against his daughter, R.A.
I.
In May 2010, when R.A. was fourteen years old, she "gave
her teacher a letter" stating that one day, when she was getting
out of the shower and wearing only a towel, defendant came into
the bathroom and "wanted to put lotion on her." The child
stated defendant then rubbed the lotion on her legs and then
"pressed on her vagina." R.A. told defendant that "it hurt"
2 A-0238-13T2 and that she could put the lotion on herself. R.A. did not know
the specific date on which this incident occurred, but estimated
it happened sometime between 2008 and 2009.
Later that night, R.A. and defendant were playing the word
game "hangman" and defendant spelled out "can I play with your
stuff again." A third incident occurred in June 2009, when
R.A.'s mother, Q.B., was in the hospital giving birth to R.A.'s
youngest sibling. That night, R.A. remembered going to bed with
her underwear on and defendant getting into the bed with her.
When R.A. awoke, she was no longer wearing her underwear. R.A.
stated in the letter that she "wants to die and run away."
The school notified the Division, and a caseworker
interviewed R.A. At the fact-finding hearing, the caseworker
testified that, during this interview, R.A. repeated the
allegations set forth in the letter. Q.B. agreed to a safety
plan under which defendant would not be permitted to live in the
home. Five days later, however, Q.B. contacted the Division to
request that R.A. be removed from the home "before she gets put
out." Q.B. stated that R.A. said she was going to run away and
threatened to kill herself. The child went missing that night,
but appeared at school the following day. At that point, Q.B.
took her to a hospital crisis center. When R.A. was discharged,
the Division conducted an emergency removal of the child
3 A-0238-13T2 pursuant to N.J.S.A. 9:6-8.29 and 8.30; assumed custody and
supervision of R.A.; and placed the child in an approved
resource home.
A licensed clinical social worker conducted an evaluation
of R.A. in preparation for the fact-finding hearing. The social
worker testified that R.A. told her that "her father touched her
vaginal area, putting lotion on her. Following that he had --
they were playing a game of hangman. He said, can I touch your
stuff again? She reported she was hurt 'cause this is supposed
to be her father." R.A. also stated that defendant got into bed
with her one night and, when she woke up, she was no longer
wearing her underwear.
R.A. testified in camera in the trial judge's chambers and
the attorneys were permitted to submit questions, which the
judge screened and then posed to R.A.1 The child testified that
defendant touched her in a "sexual manner" in her "vagina area."
This incident occurred when R.A. got out of the shower and
defendant touched her vagina while applying lotion. The child
stated that, after she asked defendant to stop, "he got up and I
saw his penis erect." Later that day, R.A. testified defendant
1 Under Rule 5:12-4(b), a trial judge may permit a child's testimony to be "taken privately in chambers." On appeal, defendant has not challenged the judge's decision to permit R.A. to testify in camera.
4 A-0238-13T2 told her, "I want to play with your stuff." The child also
recounted the incident where defendant got into bed with her and
"I woke up with my panties off."
In response to the attorneys' questions, R.A. struggled to
provide specific dates for the three incidents. She believed
the first two incidents occurred on the same day sometime in
2008, but she could not remember the date. The third incident
took place in June 2009. R.A. also explained that the letter
she gave to her teacher about the incidents was part of a
journal she kept.
Defendant did not testify at the hearing. An investigator
from the Public Defender's Office testified on defendant's
behalf. The investigator stated that defendant was in jail from
January 2008 through October 2008.
At the conclusion of the hearing, the judge issued a
thorough oral opinion. The judge relied upon R.A.'s testimony
in finding that defendant abused her, and made detailed
credibility findings concerning the child's testimony. The
judge stated that R.A. was "an extremely reluctant witness[,
who] sat in the chair practically curled up in a ball." The
child began to cry as she talked about the first incident and,
"[b]y the time she got to the second incident, tears were
pouring down her cheek. . . . [Y]ou could hear the anger in her
5 A-0238-13T2 voice when she talked about" defendant. The judge noted that
R.A. "didn't remember dates[,]" but attempted to be responsive
to the attorneys' requests for same.
The judge further explained:
I found [R.A.] to be credible. I found that . . . she was forthcoming, that she was reluctant, that she did not want to talk about this, that she was very emotionally traumatized by the events that she described. Particularly the allegation here is sexual abuse, but it -- it's very difficult to say. This was attempted sexual abuse. This was sexual abuse by even asking your biological daughter to allow you to touch her stuff.
. . . I find that what you really see by these notes is how troubled [R.A.] is by an incident that admittedly had taken place probably at least a year before.
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RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0238-13T2
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, APPROVED FOR PUBLICATION Plaintiff-Respondent, November 3, 2014 v. APPELLATE DIVISION Y.A.,
Defendant-Appellant. ________________________________
IN THE MATTER OF R.A., I.A., S.A., and Y.A.,
Minors. _________________________________
Submitted: October 28, 2014 – Decided: November 3, 2014
Before Judges Reisner, Haas and Higbee.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-400-10.
Joseph E. Krakora, Public Defender, attorney for appellant (Beth Anne Hahn, Designated Counsel, on the briefs).
John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Diane L. Scott, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor R.A. (Lisa M. Black, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors I.A., S.A. and Y.A. (Todd Wilson, Designated Counsel, on the brief).
The opinion of the court was delivered by
HAAS, J.A.D.
In this appeal, we address the issue of whether N.J.S.A.
9:6-8.46(a)(4) requires that the in camera testimony of a child
victim of sexual abuse be independently corroborated in order to
prove abuse or neglect under Title 9. N.J.S.A. 9:6-8.21 to -
8.73. Based upon our review of the record and applicable law,
we hold that the corroboration requirement of the statute does
not apply where the child victim testifies to the abuse at a
fact-finding hearing. We therefore affirm the trial judge's
finding that the Division of Child Protection and Permanency
(Division) met its burden of proving that defendant Y.A.
committed an act of sexual abuse against his daughter, R.A.
I.
In May 2010, when R.A. was fourteen years old, she "gave
her teacher a letter" stating that one day, when she was getting
out of the shower and wearing only a towel, defendant came into
the bathroom and "wanted to put lotion on her." The child
stated defendant then rubbed the lotion on her legs and then
"pressed on her vagina." R.A. told defendant that "it hurt"
2 A-0238-13T2 and that she could put the lotion on herself. R.A. did not know
the specific date on which this incident occurred, but estimated
it happened sometime between 2008 and 2009.
Later that night, R.A. and defendant were playing the word
game "hangman" and defendant spelled out "can I play with your
stuff again." A third incident occurred in June 2009, when
R.A.'s mother, Q.B., was in the hospital giving birth to R.A.'s
youngest sibling. That night, R.A. remembered going to bed with
her underwear on and defendant getting into the bed with her.
When R.A. awoke, she was no longer wearing her underwear. R.A.
stated in the letter that she "wants to die and run away."
The school notified the Division, and a caseworker
interviewed R.A. At the fact-finding hearing, the caseworker
testified that, during this interview, R.A. repeated the
allegations set forth in the letter. Q.B. agreed to a safety
plan under which defendant would not be permitted to live in the
home. Five days later, however, Q.B. contacted the Division to
request that R.A. be removed from the home "before she gets put
out." Q.B. stated that R.A. said she was going to run away and
threatened to kill herself. The child went missing that night,
but appeared at school the following day. At that point, Q.B.
took her to a hospital crisis center. When R.A. was discharged,
the Division conducted an emergency removal of the child
3 A-0238-13T2 pursuant to N.J.S.A. 9:6-8.29 and 8.30; assumed custody and
supervision of R.A.; and placed the child in an approved
resource home.
A licensed clinical social worker conducted an evaluation
of R.A. in preparation for the fact-finding hearing. The social
worker testified that R.A. told her that "her father touched her
vaginal area, putting lotion on her. Following that he had --
they were playing a game of hangman. He said, can I touch your
stuff again? She reported she was hurt 'cause this is supposed
to be her father." R.A. also stated that defendant got into bed
with her one night and, when she woke up, she was no longer
wearing her underwear.
R.A. testified in camera in the trial judge's chambers and
the attorneys were permitted to submit questions, which the
judge screened and then posed to R.A.1 The child testified that
defendant touched her in a "sexual manner" in her "vagina area."
This incident occurred when R.A. got out of the shower and
defendant touched her vagina while applying lotion. The child
stated that, after she asked defendant to stop, "he got up and I
saw his penis erect." Later that day, R.A. testified defendant
1 Under Rule 5:12-4(b), a trial judge may permit a child's testimony to be "taken privately in chambers." On appeal, defendant has not challenged the judge's decision to permit R.A. to testify in camera.
4 A-0238-13T2 told her, "I want to play with your stuff." The child also
recounted the incident where defendant got into bed with her and
"I woke up with my panties off."
In response to the attorneys' questions, R.A. struggled to
provide specific dates for the three incidents. She believed
the first two incidents occurred on the same day sometime in
2008, but she could not remember the date. The third incident
took place in June 2009. R.A. also explained that the letter
she gave to her teacher about the incidents was part of a
journal she kept.
Defendant did not testify at the hearing. An investigator
from the Public Defender's Office testified on defendant's
behalf. The investigator stated that defendant was in jail from
January 2008 through October 2008.
At the conclusion of the hearing, the judge issued a
thorough oral opinion. The judge relied upon R.A.'s testimony
in finding that defendant abused her, and made detailed
credibility findings concerning the child's testimony. The
judge stated that R.A. was "an extremely reluctant witness[,
who] sat in the chair practically curled up in a ball." The
child began to cry as she talked about the first incident and,
"[b]y the time she got to the second incident, tears were
pouring down her cheek. . . . [Y]ou could hear the anger in her
5 A-0238-13T2 voice when she talked about" defendant. The judge noted that
R.A. "didn't remember dates[,]" but attempted to be responsive
to the attorneys' requests for same.
The judge further explained:
I found [R.A.] to be credible. I found that . . . she was forthcoming, that she was reluctant, that she did not want to talk about this, that she was very emotionally traumatized by the events that she described. Particularly the allegation here is sexual abuse, but it -- it's very difficult to say. This was attempted sexual abuse. This was sexual abuse by even asking your biological daughter to allow you to touch her stuff.
. . . I find that what you really see by these notes is how troubled [R.A.] is by an incident that admittedly had taken place probably at least a year before. And I think it's likely that . . . she was emotionally harmed by this. And she certainly was placed at serious risk of harm by a father that would ask a child to allow him to fondle her private parts.
This appeal followed.
II.
On appeal, defendant argues that the judge erred by finding
that he abused R.A. He asserts that R.A.'s statements were not
corroborated and, therefore, there was insufficient evidence in
the record to support the judge's finding. We disagree.
In pertinent part, N.J.S.A. 9:6-8.21(c)(4) defines an
"abused or neglected child" as:
6 A-0238-13T2 a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian . . . to exercise a minimum degree of care . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court[.]
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,
412 (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) (citation and
internal quotation marks omitted). "It is not our place to
7 A-0238-13T2 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).
A finding of abuse or neglect must be based on the preponderance
of the evidence. N.J. Div. of Youth & Family Servs. v. G.M.,
198 N.J. 382, 398 (2009); N.J.S.A. 9:6-8.46(b).
Here, there is ample evidence in the record to support the
judge's conclusion that defendant abused R.A. The child
provided credible testimony detailing the three incidents of
abuse. R.A. consistently stated that defendant touched her
vagina while applying lotion to her; asked her later that day if
he could "touch [her] stuff again?"; and got into bed with her
on another occasion where the child woke up to find she was no
longer wearing underwear. While the child was not able to
provide the specific dates on which all three incidents
occurred, the judge specifically found that this failure was of
no moment given the overall credibility of the child's
testimony. "Because a trial court 'hears the case, sees and
observes the witnesses, [and] hears them testify,' it has a
better perspective than a reviewing court in evaluating the
veracity witnesses." Pascale v. Pascale, 113 N.J. 20, 33 (1988)
(quoting Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961)
8 A-0238-13T2 (alteration in original)). Applying this standard, we discern
no basis for disturbing the judge's reasoned credibility
determinations.
Contrary to defendant's contention, R.A.'s statements did
not need to be "corroborated" in order to be considered as proof
of abuse or neglect. In pressing this argument, defendant
mistakenly relies upon N.J.S.A. 9:6-8.46(a)(4), which provides
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."
(Emphasis added). Thus, this statute permits third parties,
such as Division caseworkers, foster parents, police officers,
or hospital personnel, to testify concerning out-of-court
statements made to them by a child who has allegedly been
abused. See, e.g., N.J. Div. of Youth & Family Servs. v. L.A.,
357 N.J. Super. 155, 161-62 (App. Div. 2003); N.J. Div. of Youth
& Family Servs. v. Z.P.R., 351 N.J. Super. 427, 430-31 (App.
Div. 2002).
Because the child is not testifying at trial, however, the
statute requires that the child's "previous statements" be
corroborated. N.J.S.A. 9:6-8.46(a)(4). "The most effective
types of corroborative evidence may be eyewitness testimony, a
9 A-0238-13T2 confession, an admission or medical or scientific evidence.
However, corroborative evidence need not relate directly to the
accused. By its nature, corroborative evidence 'need only
provide support for the out-of-court statements.'" L.A., supra,
357 N.J. Super. at 166 (quoting Z.P.R., supra, 351 N.J. Super.
at 436)).
In this case, however, R.A. testified in camera and
responded to all of the questions posed to her by the parties'
attorneys. Rather than the Division relying upon her "previous
statements," the child described the allegations of abuse in
person. Her testimony was subjected to the rigors of cross-
examination and her presence at the fact-finding hearing
permitted the judge to assess her demeanor and credibility.
Under these circumstances, we conclude that N.J.S.A. 9:6-
8.46(a)(4) is inapplicable. To construe the statute otherwise
would mean that a child who, as here, is capable of coming to
court and testifying would be defenseless against her abuser
unless the Division could produce independent corroboration for
the child's testimony. That result would be completely at odds
with the purpose of Title 9 to protect children from abuse. We
therefore reject defendant's argument on this point.
10 A-0238-13T2 III.
[At the court's direction, Section III of its opinion, which concerns discrete issues, has been redacted from the published opinion because it does not meet the criteria set by Rule 1:36-2(d) for publication.]
Affirmed.
11 A-0238-13T2