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New Jersey Division of Youth and Family Services v. S.O.


January 28, 2009


On appeal from a Final Decision of the Director, Division of Youth and Family Services, No. 5039-05.

Per curiam.



Argued: December 17, 2008

Before Judges Cuff, Fisher and Baxter.

Following an investigation, the Division of Youth and Family Services (DYFS) notified S.O. that it had substantiated an allegation of sexual abuse of his daughter by him. He appealed. The matter was transmitted to the Office of Administrative Law (OAL) as a contested matter. Following an evidentiary hearing, an administrative law judge (ALJ) rendered an initial decision in which she found that S.O. sexually abused his daughter. The DYFS Director adopted the findings issued by the ALJ and concurred with the conclusion that S.O. sexually abused his daughter. It is from this decision that S.O. appeals. We affirm.

S.O. and M.O. married in 1996. Their daughter, their only child, was born in 1997. The first complaint of inappropriate touching of his daughter by S.O. occurred in November 2000. Because the child had an ear infection and was exhibiting behavioral problems, her parents and maternal grandmother took the child to her pediatrician. The parents advised the doctor that the child had stated that S.O. had touched her vaginal area. The doctor counseled the parents but did not make a referral to DYFS because her physical examination revealed nothing amiss and the parents and the maternal grandmother were confident nothing of the sort had happened.

The next report of inappropriate touching occurred in August 2001. At a well-child visit, the maternal grandmother advised the doctor that the child had blurted out at the dinner table that her father was a "bad daddy" because he "touched her in her pechie."*fn1 Both the mother and maternal grandmother expressed concerns to the pediatrician about S.O.'s relationship with his daughter. The visit to the pediatrician coincided with S.O. leaving the marital residence.

The pediatrician made a referral to DYFS because this was the second allegation of improper touching by S.O. DYFS, in turn, contacted the county prosecutor. After investigations by both organizations, no criminal charges were filed and DYFS found the allegation unsubstantiated.

The child, however, commenced counseling with a licensed social worker and therapist. On November 12, 2002, DYFS received a second referral from the therapist. The therapist reported that the child was "[s]ticking to her story that her father had touched her [vagina]." In addition, the therapist reported that the child disclosed that when her father lived in the home, he had "white sticky stuff that came out from his [penis]" that he would put in her mouth.

DYFS conducted another investigation. It also referred the matter once again to the county prosecutor, who declined to conduct an investigation based on the prior investigation of the family. The assigned DYFS worker spoke to the maternal grandmother, the mother, the child, and her father. The child's therapist also submitted a letter in which she reported that over the course of a year in play therapy, the child had remained consistent in her allegations against her father. On December 19, 2002, DYFS substantiated sexual abuse of the child by her father. He has consistently denied all allegations of sexual abuse and filed an appeal with the agency.

Soon after substantiating an act of sexual abuse, DYFS referred the child to the Audrey Hepburn Children's House at Hackensack Hospital where she was evaluated by a psychologist. During the evaluation, the psychologist stated that the child spontaneously disclosed sexual abuse by her father. She also reported that the child described the smell of seminal fluid and found this statement a very "idiosyncratic response." Her clinical impression was "Sexual Abuse: Probable Substantiation."

Before the OAL, DYFS presented the testimony of the child's pediatrician, the DYFS workers who investigated the report of sexual abuse and who substantiated the report of sexual abuse, the psychologist from Audrey Hepburn Children's House, the child's therapist, and her mother. S.O. testified in his defense and also presented a psychologist who had conducted custody and visitation evaluations for the Family Court during the matrimonial proceedings between S.O. and his wife (the court psychologist), and S.O.'s treating psychologist.

The court psychologist issued four reports to the court during the pre- and post-matrimonial proceedings regarding S.O. and also submitted these reports and testified on behalf of S.O. before the ALJ. Initially, he had recommended suspension of visitation because the child had such antipathy to her father and displayed considerable emotional distress about the prospect of contact with her father. Later, he recommended therapeutic visits in a supervised manner to facilitate reunification. In his final report, he opined that there was a high probability that sexual abuse did not occur and the mother and maternal grandmother had coached the child. The court psychologist also questioned the qualifications of the child's therapist and suggested the therapist may have unwittingly reinforced the initial allegations.

S.O.'s treating psychologist testified that he had seen S.O. in individual and group sessions. He testified that he had detected nothing in S.O.'s history that would lead him to believe that S.O. sexually abused his daughter. He conceded, however, that he had never interviewed the child, her mother or grandmother and had little experience with sexual offenders.

Following the hearing, the ALJ rendered an initial decision in which she made six findings of fact:

1. In November 2000, when [the child] first reported being sexually abuse[d] by her father, she was three and one-half years old. On Thanksgiving Day 2000, [her] father sexually abused her by touching her vagina.

2. In April 2001, on Easter Sunday, [the child] was sexually abused by her father, in her own bed room.

3. In August 2001, when [the child] was four and one-half years old, she continued to be sexually abused by her father, in her own bed room.

4. In August 2001, [the child's] father started arriving home from work early. [Her] grandmother went home when father arrived. [Her] father would bathe her, before mother arrived home, and would sexually abuse her in the bathtub by touching her vagina.

5. In November 2002, [the child] had completed one year of therapy with Mary DeChristofano. During the year [the child] remained consistent in describing how her father sexually abused her; and she disclosed additional incidents of sexual abuse by her father.

6. Between November 2000 and November 2002, [the child]'s father sexually abused her by: making her pretend she was married to him; kissing her vagina when she was naked, putting jelly on her vagina, putting his penis in her mouth and ejaculating semen on her face, and by sneaking into her room and putting his hands over her mouth to quash her screams while he sexually abused her. [The child]'s father punished her by taking away toys and hitting her if she didn't participate in sex acts.

Based on these findings, the ALJ concluded:

In this case, [the child] was consistent with her story of sex abuse to five unrelated professionals, Mary DeChristofano, Latisha Graham, Shauna Kay Anderson, Dr. Paula Iudica, and Dr. Paul Dasher. Each of these professionals acknowledged through testimony, evaluations and reports that [the child] told them about similar acts of sexual abuse by her father. All testimony, evaluations and reports corroborated each other by at least two similar acts of sexual abuse, by the spontaneity of [her] responses, her aversion and fear of her father, her body language and mental attitude during role playing when male and especially father images were included in the play, and her consistency about how and where her father hurt her.

The DYFS Director adopted the findings of fact and conclusion of the ALJ and determined that the allegation of sexual abuse by S.O. of his daughter had been substantiated.

On appeal, defendant argues that the findings of fact are not supported by substantial credible evidence in the record. He also contends that he has been denied his right to confront adverse evidence and witnesses; therefore, he has been denied his right to procedural due process guaranteed by the federal and state constitutions.

The role of an appellate court in reviewing a final decision reached by an administrative agency is limited. In re Taylor, 158 N.J. 644, 656 (1999). The court must give deference to a final agency decision unless it is arbitrary, capricious, unsupported by substantial credible evidence in the record, or in violation of express or implicit legislative policy. Id. at 656-57; Karins v. City of Atl. City, 152 N.J. 532, 540 (1998); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); In re Juvenile Det. Officer Union County, 364 N.J. Super. 608, 614 (App. Div. 2003).

Therefore, an appellate court must determine whether the agency's findings could reasonably have been reached on sufficient credible evidence in the record, "'considering "the proofs as a whole," with due regard to the opportunity of the one who heard the witnesses to judge of their credibility.'" Taylor, supra, 158 N.J. at 656 (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964))). However, an agency decision that is manifestly erroneous is not entitled to judicial deference and must be set aside. L.M. v. State, Div. of Med. Assistance & Health Servs., 140 N.J. 480, 490 (1995).

Regarding evidentiary considerations in a contested administrative proceeding such as the one before the court, "parties [are] not . . . bound by rules of evidence whether statutory, common law, or adopted formally by the Rules of Court." N.J.S.A. 52:14B-10(a); N.J.A.C. 1:1-15.1(c). All relevant evidence, including hearsay, is admissible, except as otherwise provided in the Administrative Code, and an ALJ has discretion to exclude such evidence if "its probative value is substantially outweighed by the risk that its admission will either: (1) necessitate undue consumption of time; or (2) create substantial danger of undue prejudice or confusion." Ibid. Moreover, "[h]earsay evidence which is admitted shall be accorded whatever weight the judge deems appropriate taking into account the nature, character and scope of the evidence, the circumstances of its creation and production, and, generally, its reliability." N.J.A.C. 1:1-15.5(a).

To be sure, "some legally competent evidence must exist to support each ultimate finding of fact to an extent sufficient to provide assurances of reliability and to avoid the fact or appearance of arbitrariness." N.J.A.C. 1:1-15.5(b). Stated differently, although hearsay is admissible in administrative proceedings, in reaching a final determination, "'a residuum of legal and competent evidence [must exist] in the record to support [that decision].'" Dolan v. City of E. Orange, 287 N.J. Super. 136, 145 (App. Div. 1996) (quoting Weston v. State, 60 N.J. 36, 51 (1972)).

In recognition of the unique evidentiary problems presented in administrative proceedings which include allegations of child abuse, the Legislature has prescribed particular rules to govern the admissibility of out-of-court statements by children who do not testify at substantiation hearings. Specifically, N.J.S.A. 9:6-8.46(a)(3) provides that any writing, record or photograph, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any condition, act, transaction, occurrence or event relating to a child in an abuse or neglect proceeding of any hospital or any other public or private institution or agency shall be admissible in evidence in proof of that condition, act, transaction, occurrence or event, if the judge finds that it was made in the regular course of the business of any hospital or any other public or private institution . . . .

In addition, pursuant to N.J.S.A. 9:6-8.46(a)(4), "statements made by [a] 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."

Thus, N.J.S.A. 9:6-8.46 authorizes the admissibility of hearsay evidence from an alleged abused or neglected child, provided that the evidence is corroborated. "The most effective types of corroborative evidence may be eyewitness testimony, a 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.'" N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 166 (App. Div. 2003) (quoting N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 436 (App. Div. 2002)).

In this case, DYFS bears the burden of proof, by a preponderance of the evidence, that S.O. abused his daughter. N.J. Div. of Youth & Family Servs. v. A.C., 389 N.J. Super. 97, 106 (Ch. Div. 2006) (citing N.J.S.A. 9:6-8.44 and 9:6-8.46(b)). Pursuant to N.J.S.A. 9:6-8.21(c)(3), a child is considered abused if he or she is less than eighteen years of age and his or her parent or guardian "commits or allows to be committed an act of sexual abuse against the child." Sexual abuse is statutorily defined as "contacts or actions between a child and a parent or caretaker for the purpose of sexual stimulation of either that person or another person" and includes:

a. the employment, use, persuasion, inducement, enticement or coercion of any child to engage in, or assist any other person to engage in, any sexually explicit conduct or simulation of such conduct;

b. sexual conduct including molestation, prostitution, other forms of sexual exploitation of children or incest; or

c. sexual penetration and sexual contact as defined in N.J.S.[A]. 2C:14-1 and a prohibited sexual act as defined in N.J.S.[A]. 2C:24-4.

[N.J.S.A. 9:6-8.84]

In L.A., supra, the trial court made a finding of abuse and neglect against L.A. based in part on the out-of-court statements of a child. 357 N.J. Super. at 158, 162. L.A. had been charged by DYFS with endangering the youngest child by inviting the child's father to the house. Id. at 160. The father, R.S., had sexually assaulted L.A.'s other child, K.S., and was barred from the home. Id. at 158. About one year after R.S. was barred, he entered L.A.'s apartment while L.A., both children, and J.M., "a mutual friend," were present. Id. at 159. Without warning, R.S. grabbed J.M., who immediately directed the children to go to another room. Ibid. After J.M. called the police, R.S. left. Ibid. It turned out that J.M. owed R.S. money. Ibid.

We reversed a finding of abuse and neglect against L.A. because the DYFS caseworker's testimony was based on an uncorroborated statement by K.S. that L.A. had called R.S. and directed him to come by and get his money from J.M., and that she had taken the youngest child to visit R.S. Id. at 161-62, 167.

In contrast, this court in Z.P.R., supra, reversed the trial court's finding that a child's out-of-court statements concerning sexual abuse by the mother were not corroborated. 351 N.J. Super. at 437. In that case, parents Z.P.R. and W.R. placed their children W.A.R. and I.D.R. in foster care due to unstable housing. Id. at 430. Shortly thereafter, the foster mother witnessed I.D.R. performing fellatio on W.A.R. Ibid. W.A.R. told the foster mother that he learned of this behavior from his mother, Z.P.R. Ibid. W.A.R. was then placed in a second foster home. Ibid. There, the foster mother found W.A.R. and H., another foster child, in their underwear. Id. at 431. H. stated that W.A.R. told him that he had sex with his mother. Ibid. Additionally, when the foster mother asked if they had sex, H. responded, "'no, we fake it, but W.A.R. said it's like what he do with his mother.'" Ibid. About a week later, W.A.R. reported to a DYFS caseworker that he learned such behavior from his mother. Ibid. The trial judge found that there was no corroborating evidence for these statements. Id. at 434-35. On appeal, this court was not persuaded that the trial judge properly applied the concept of corroborating evidence under N.J.S.A. 9:6-8.46a(4):

If, as the Law Guardian and DYFS suggest, those comments reflect an understanding by the judge that corroboration of child sexual abuse must be offender-specific, we do not agree. It would be a rare case where evidence could be produced that would directly corroborate the specific allegation of abuse between the child and the perpetrator, in this case the mother. The case law does not require that the evidence be that specific before it can be deemed corroborative of the child's out-of-court statements. [Id. at 435.]

This court proceeded to hold that "evidence of age-inappropriate sexual behavior could provide the necessary corroboration required by N.J.S.A. 9:6-8.46a(4)." Id. at 436. "The corroborative evidence need not relate directly to the alleged abuser, it need only provide support for the out-of-court statements." Ibid. Further, this court noted that:

The most effective types of corroboration in such cases, of course, are eyewitness testimony, a confession or admissions by the accused, and medical or scientific testimony documenting abuse. In most cases of child sexual abuse, however, there is no direct physical or testimonial evidence. The child victim is often the only eyewitness to the crime, and physical corroboration is rare because the sex offenses committed against children tend to be nonviolent offenses such as petting, exhibitionism, fondling and oral copulation. Physical corroboration may also be unavailable because most children do not resist, either out of ignorance or out of respect for authority. Consequently, in order to give any real effect to the child victim hearsay statute, the corroboration requirement must reasonably be held to include indirect evidence of abuse.

[Id. at 436 (quoting State v. Swan, 790 P.2d 610, 615-16 (Wash. 1990), cert. denied, 498 U.S. 1046, 111 S.Ct. 752, 112 L.Ed. 2d 772 (1991)).]

We have thoroughly reviewed this record in its entirety and concluded there is no basis to alter the administrative determination. In short, the record reveals a residuum of competent evidence to support the determination. Admittedly, the evidence presented by DYFS and S.O. stood in stark contrast. Trained professionals expressed concern about some aspects of the child's reports, such as her recollections of events that occurred to her as a baby. These professionals also expressed concern about the reliability of some reports from the mother and maternal grandmother and some wondered if the reports were exaggerated to gain advantage in the matrimonial litigation. One psychologist ultimately opined that the incidents probably never occurred.

On the other hand, the child's therapist reported that the child's accusations and reports were consistent over several years. In addition, her actions and statements in play therapy, her actions towards other children, and her fear of her father all provided corroboration that something untoward had occurred. In addition, the Audrey Hepburn Children's Home psychologist testified the idiosyncratic and spontaneous nature of some descriptions and remarks lent credence to reports of sexual abuse.

We review a cold record. We, unlike the ALJ, did not have the opportunity to assess the demeanor of the witnesses and evaluate their credibility in the context of a courtroom setting. We exceed our limited authority when we substitute our evaluation of the credibility of individual witnesses or evidentiary material. As long as the findings of fact are supported by adequate credible and competent evidence and the conclusions are derived from those findings and are consistent with applicable law, we must affirm the agency action.

We also find no merit to the contention that S.O. did not receive the process he is due. The rights afforded by the federal and state constitutions to a defendant to confront his accusers are not applicable in a civil proceeding.

The Sixth Amendment to the United States Constitution and article I, paragraph 10 of the New Jersey Constitution each guarantee a criminal defendant "the right . . . to be confronted with the witnesses against him." In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed. 2d 177 (2004), the United States Supreme Court addressed the protections afforded by the Confrontation Clause. The defendant in Crawford was charged with assault and attempted murder; defendant was convicted of assault. Id. at 38, 40, 124 S.Ct. at 1357, 158 L.Ed. 2d at 184, 185. The trial judge admitted a tape-recorded statement of the defendant's wife, given to police while she was herself a suspect, after the judge found the statement reliable. Id. at 40, 124 S.Ct. at 1358, 158 L.Ed. 2d at 186.

The Supreme Court held that "[a]dmitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation." Id. at 61, 124 S.Ct. at 1370, 158 L.Ed. 2d at 199. "Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty." Id. at 62, 124 S.Ct. at 1371, 158 L.Ed. 2d at 199. The Court reversed defendant's conviction. Id. at 69, 124 S.Ct. at 1374, 158 L.Ed. 2d at 203. Accord State v. Chun, 194 N.J. 54, 138, cert. denied, ___ U.S. ___, 129 S.Ct. 158, 172 L.Ed. 2d 41 (2008).

The constitutional right of confrontation does not apply to civil proceedings under the Sixth Amendment to the United States Constitution or article I, paragraph 10, of the New Jersey Constitution. N.J. Div. of Youth & Family Servs. v. V.K., 236 N.J. Super. 243, 252 (App. Div. 1989) (citing Williams v. Trans World Airlines, 149 N.J. Super. 585, 589 (Ch. Div. 1977)), certif. denied, 121 N.J. 614 (1990); M. v. F., 95 N.J. Super. 165, 172 (J. & D.R. Ct. 1967); see also A.B. v. Y.Z., 184 N.J. 599, 604 (2005) (noting Sixth Amendment right to confrontation inapplicable in civil proceedings); In re Civil Commitment of G.G.N., 372 N.J. Super. 42, 57 (App. Div. 2004) (refusing to extend Crawford to a civil commitment proceeding where the burden of proof is less than beyond a reasonable doubt). Thus, S.O.'s argument is unavailing, as all of the cases cited in its support arise out of criminal proceedings.

In addition to his Crawford argument, S.O. asserts that the denial of his right to confront his accuser amounts to a violation of procedural due process under the United States and New Jersey Constitutions. In assessing whether particular administrative procedures are constitutionally sufficient, the primary question is whether there is a protectible liberty interest at stake. Nicoletta v. N. Jersey Dist. Water Supply Comm'n, 77 N.J. 145, 154-55 (1978). This inquiry is the first prong of the familiar three-pronged test enunciated in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed. 2d 18 (1976), and adopted by our Supreme Court in J.E. ex rel. G.E. v. State, 131 N.J. 552, 566 (1993), as the applicable standard for courts to determine what procedures will assure fairness in administrative proceedings. In re Allegations of Sexual Abuse at E. Park High Sch., 314 N.J. Super. 149, 160 (App. Div. 1998). Mathews further requires a court to consider the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. [424 U.S. at 335, 96 S.Ct. at 893, 47 L. Ed. 2d at 33.]

In In re Allegations of Sexual Abuse at East Park High School, supra, a school teacher sought review of a Division decision charging her with inappropriate sexual behavior and physical conduct with a student and the inclusion of her name in the DYFS Central Registry. 314 N.J. Super. at 152-54. All along, the teacher denied the allegations, however, when the Division provided her with an opportunity to submit a sworn statement to defend herself, she neglected to do so. Id. at 153.

This court considered the question of what process is due a citizen who seeks to challenge the inclusion of his or her name on the Central Registry list of "substantiated abusers," and stated that:

The Fourteenth Amendment to the United States Constitution provides that no State shall "deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. Likewise, Article I, paragraph 1 of the New Jersey Constitution, although not cast in due process terms, has been held to protect "'values like those encompassed by the principle[] of due process.'" Doe v. Poritz, 142 N.J. 1, 99 (1995) (quoting Greenberg v. Kimmelman, 99 N.J. 552, 568 (1985)). The exact contours of due process cannot be defined. What it commands depends upon the specific facts presented. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed. 2d 484, 494 (1972); Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed. 2d 1230, 1236 (1961); Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 1514, 4 L.Ed. 2d 1307 (1960).

[Id. at 159-60.]

The court then analyzed the stigma or injury to reputational interests in such circumstances and determined that the various statutory public notice requirements that attached to the Central Registry produced "the kind of reputational injury which equates with stigma, warranting a due process hearing under the state constitution, and, coupled with impairment to privacy interests, under the federal constitution. . . ." Id. at 162. Thus, the court identified the inclusion of a citizen's name in the Central Registry as a protectible liberty interest under the first Mathews prong. Id. at 162-63.

Next, the court considered the second Mathews prong and ruled that simply affording an accused with the right to submit a sworn statement was "inadequate to test the charges because the outcome depended upon a credibility evaluation of [the accused] and the witnesses against her, who she was not allowed to cross-examine." Id. at 164 (citing High Horizons Dev. Co. v. State, Dep't of Transp., 120 N.J. 40 (1990), superseded on other grounds, N.J.S.A. 52:14B-3.3(a) (1993)).

Finally, with regard to the third Mathews prong, the court recognized that the government has a significant interest in "not stigmatizing the innocent and foreclosing them from employment and other opportunities." Id. at 165. As such, the panel concluded that "a trial type process which subjects the allegations made to rigorous testing" is appropriate in such circumstances and "its cost must be borne by the public in a constitutionally governed society." Id. at 165-66.

Here, unlike the teacher in In re Allegations of Sexual Abuse at East Park High School, S.O. was provided with fair notice; the ability to be present at the hearing; the right to adduce evidence, the right to be represented by counsel, the right to confront the witnesses who testified against him; and a written decision. In addition, although S.O. lacked the opportunity to cross-examine his daughter with regard to the child's out-of-court statements, he was able to present presumably limitless conflicting evidence in the form of documents, reports, expert witnesses or personal testimony, to challenge and refute the child's allegations. Further, no findings were made by the ALJ in this case based solely upon the child's out-of-court statements. S.O. was afforded all the process and procedural safeguards due to him during his administrative hearing.


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