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New Jersey Division of Youth and Family Services v. J.M.


November 10, 2010


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FN-15-149-09.

Per curiam.



Submitted October 5, 2010

Before Judges Wefing and Payne.

Defendant, J.M., appeals from an order, entered in Title 9 litigation following a fact-finding hearing, determining that he sexually abused his daughter, I.M., in violation of N.J.S.A. 9:6-8.21.*fn2 We affirm.


The record establishes that, in January 2009, I.M., who was undergoing therapy as the result of a history of lying and thievery,*fn3 reported to her therapist that, eighteen months earlier when she was nine years old, her father had come into her room in the night, exposed himself, and forced her to touch his genitals. On January 14, 2009, the therapist reported I.M.'s allegations to the Division of Youth and Family Services (DYFS). On January 15, 2009, DYFS intake worker, Stephanie Leonard, was assigned to investigate the matter. She proceeded to interview I.M. at her school in the presence of a school staff member. At that time, I.M. stated that her father, while sleepwalking, came into her room at night, pulled down his pants, and then made her touch his genitals "just for a couple of seconds." When I.M. became upset, her father carried her into the T.V. room and then into her parents' bedroom. She reported that she told her mother on the following morning what had occurred. Although I.M. initially stated that this conduct had occurred more than once, she retracted that statement and claimed that only one incident had taken place. Additionally,

I.M. stated that her father had diabetes and, when his blood sugar was low, he sleepwalked - a statement that no other person confirmed. I.M. stated that she, too, had diabetes, but later admitted that she did not.

At that point, the investigation was transferred to a different intake worker, Anna Luibil. That evening, Luibil, in the company of two men from the prosecutor's office, including Detective Steele, went to I.M.'s residence, where Luibil interviewed I.M. in her bedroom. During the interview, I.M. stated that her father had come into her bedroom, picked her up, and carried her into the marital bedroom, where he placed her on the bed and covered her with a sheet. Then, while sitting next to her, he took her hand and placed it on his penis. When I.M. withdrew her hand, her father brought her back to her own bedroom. On the following day, I.M. told her mother that her father had done a "gross thing." Her mother then confronted her father and told him to stop such conduct.

Upon learning I.M.'s story, Steele directed that I.M.'s mother and father be interviewed at the prosecutor's office. The whole family, as well as Luibil, went to that location and, while there, Luibil witnessed the interviews of the mother and father over closed circuit television. According to Luibil, the father stated that he was "very surprised" when confronted by his wife on the morning after the alleged incident, and that he did not recall what I.M. stated had taken place and thought he must have been sleepwalking. He admitted that he had awakened late the next morning on the couch in the T.V. room, not in his own bed. Luibil testified:

He could not explain it to himself, but he said, but if the child, if my daughter said that that's what happened, you know, I'm not saying that she's lying and then eventually, you know, he said that he didn't remember that it happened, but he believed his daughter.

Luibil testified that at no point did the father deny that the sexual conduct had occurred. Upon further questioning, Luibil stated that the father admitted to having a glass of wine before retiring and speculated that "[m]aybe I drank too much." Luibil also testified that he "might have been on medication for a disorder." She stated that the father had said that this was the second time that he had sleepwalked, and then later said that the incident may have been stress-related, claiming "[h]e could have been mentally burnt out, physically burnt out, shell-shocked." The father denied any sexual attraction to his daughter.

When the mother was interviewed, she stated that she had slept through the night, but had been told by I.M. of the episode the next morning. According to the mother, I.M. stated that "he tried to make me touch it." The mother stated that she had never seen her husband sleepwalk.

Upon the conclusion of the interviews, both the mother and the father agreed to a safety protection plan that required the father to leave the home. Thereafter, he received counseling and was allegedly diagnosed as bipolar. A criminal prosecution was not undertaken.

Litigation seeking care and supervision of I.M. and her brother was commenced by DYFS on February 5, 2009, pursuant to N.J.S.A. 9:6-8.21 and 30:4C-12. The fact-finding hearing at which the preceding testimony was offered took place on July 30, 2009. Neither I.M. nor her parents testified. At the conclusion of that day's hearing, the judge determined, pursuant to N.J.S.A. 9:6-8.46a(4), that if the out-of-court statements of I.M. were not corroborated, he would be unable to enter a finding of abuse and neglect. The matter was thereupon carried to permit DYFS to determine whether the corroboration that it admitted was lacking could be obtained.

On August 20, 2009, the hearing was resumed, and at that time, the Law Guardian for I.M. introduced the May 6 and July 17, 2009 reports to DYFS by I.M.'s therapist. The only objection by defense counsel to the introduction of the reports arose from the fact that a line in the July 17 report was cut off in transmission, and a full copy was requested. In the absence of an objection, no effort was made to qualify the documents as business records.

In the May 6 report, completed after five counseling sessions, the therapist stated:

My concern with this client was the story that involved her father placing her on her mother's bed and how her story did not always match up. This could possibly indicate more abuse occurred and that there is more than one incident that confuses this client. It could also indicate the child is making up the story. While clients will sometimes tell about one incident they may be reluctant to reveal others since that may make them guilty of allowing it to happen. I have not found the answer to that question and will continue to explore with [I.M.] what her memory is.

The therapist then continued by recounting the following:

[I.M.] has consistently told about her father exposing himself and pulling her arms to touch him. Two weeks ago while using some animal puppets to play act what she would like to say to Daddy, she stated "don't touch my privates anymore." I did not initially report that comment to the division because I felt I may have set this client up to say this with the story we read about a girl that was touched by her uncle in which the girl talked about that happening. This past week (April 30, 2009) she was just talking to me and stated how he pulled her hand to touch his private area (something she has continuously been consistent with saying) and then added "he even sucked down there, I don't know why!" I then asked where and she pointed to between her legs saying "down there" as she made a shivering, disgusted look with her face.

My only other questions would be if she was exposed to any other children that have been sexually abused and learned of this particular sexual act or if she has been exposed to any pornography or inappropriate movies. I chose not to speak to her mother after our session or let her know about this new disclosure so I could protect the client from possible questioning from her mother.

In the July 17 report, the therapist indicated that I.M. had attended sixteen counseling sessions, and that she now wished that her father return to the family. She again mentioned I.M.'s allegation about her father "sucking her down there." Nonetheless, the counselor stated that when I.M. was reunited with her father during a therapeutic visitation session, her reaction to her father was "neither too distant or too clingy" and she observed, "[t]hese would have been an indication that she has been abused." As a consequence, the counselor admitted that she was "still confused by this case." The hearing was then further adjourned to October 15, 2009.

Prior to the October hearing date, the court "notified all parties that it had decided preliminarily that [the father's] statements to the police regarding his prior sleepwalking had not placed his intent in issue to overcome [I.M.'s] statements. The court gave [the father] ten days to decide if he wanted to reopen the hearing to present additional evidence." Defense counsel declined the court's invitation.

An opinion was issued by the judge on January 4, 2010. Following a recitation of the procedural history of the matter and the facts, the judge noted that, pursuant to N.J.S.A. 9:6-8.46a(4), a child's out-of-court statement relating to abuse or neglect was admissible in evidence, but "no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse and neglect." Relying on our opinions in New Jersey Division of Youth and Family Services v. Z.P.R., 351 N.J. Super. 427, 436 (App. Div. 2002) and State v. D.R., 214 N.J. Super. 278, 298 (App. Div. 1986), rev'd on other grounds, 109 N.J. 348 (1988), the judge then found that the evidence of I.M.'s age inappropriate sexual knowledge, described by I.M.'s counselor in her May and July letters, provided indirect corroboration of I.M.'s statement regarding the episode during which she was forced by her father to touch his genitals. The judge stated: "While there is no evidence that [I.M.] has acted out sexually, there is evidence that her knowledge of sexual practices is beyond her reasonably anticipated imagination. [I.M.] made statements to her therapist[] that [her father] pulled her hand to touch his private area and that [her father] 'sucked down there,' as indicated in therapist Mullen's report." Further, the judge found the fact that the father admitted to waking up on the couch to be corroborative of I.M.'s story.

While rejecting the defense's position that I.M.'s story was not credible, the judge recognized the existence of discrepancies in the versions of the story that I.M. recounted to Leonard and Luibil. However, the judge found that I.M. had been "consistent in the gravamen of her complaint that [her father] took her hand and forced her to touch his penis." Moreover, the judge noted the child's immediate report of the incident to her mother, and the fact that she had never recanted her basic allegation.

The judge then turned to the issue of intent. He stated that whether N.J.S.A. 9:6-8.21, which was silent with respect to mental state, requires proof of intent was an issue of first impression in New Jersey. Drawing support from the criminal code, the judge noted that the child endangerment statute, N.J.S.A. 2C:24-4a cross-referenced Title 9, providing in relevant part:

Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who engages in sexual conduct which would impair or debauch the morals of the child, or who causes the child harm that would make the child an abused or neglected child as defined in R.S. 9:6-1, R.S. 9:6-3 and P.L. 1974, c.119, § 1 (C.9:6-8.21) is guilty of a crime of the second degree.

He then noted that in criminal prosecutions involving charges of child abuse and endangerment, the "gap filler" provisions of N.J.S.A. 2C:2-2c(3) applied to require that the conduct be performed "knowingly." The judge then held: "As there is no indication that the Legislature intended to impose strict liability as to violations of N.J.S.A. 9:6-8.21, the statute must be construed as requiring a showing that the act was committed knowingly." While the father could not have committed the act knowingly if he had been sleepwalking, the father "called no witnesses and presented no evidence to establish that he was sleepwalking on the night he abused [I.M.] even though he was given every opportunity to do so." Rather, the father placed reliance on his statement in the prosecutor's office, as reported by Luibil:

I don't know if it happened but I can't discount it. I woke up on the couch that morning and I don't know how I got there. Sleep walking happens. It happens quite often that I wake up on a couch all of a sudden.

The judge found that this evidence, together with the father's speculation that he could not rule out the possibility that he committed the abuse after having too much to drink, was insufficient "to overcome the Division's proof, established through [I.M.'s] statements, that [her father] abused her."

After considering I.M.'s consistent statements regarding the nature of the abuse as given to the two DYFS caseworkers, I.M.'s mother and her therapist, the absence of any denial by the father that the abuse occurred, and his admission that if I.M. stated that it happened, it did occur, the judge found by a preponderance of the evidence that, during the summer of 2007, J.M. abused his minor daughter by placing her hands on his genitals. An order finding abuse and neglect was then entered, followed by an April 13, 2010 order terminating the litigation. The father returned to the family in or around January 2010.


On appeal, J.M. claims that the judge erred in relying on I.M.'s inappropriate sexual awareness as indirect corroboration that permitted the introduction into evidence of her testimony regarding her father's sexual abuse pursuant to N.J.S.A. 9:6-8.46a(4), noting that alternative sources of her knowledge had not been ruled out. However, J.M. states in his brief that he "does not doubt that I.M. made that statement." Moreover, he offers no other source for knowledge on her part.

We have recognized the need to use such indirect corroboration in Z.P.R., supra, 351 N.J. Super. at 435, holding:

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 . . . . 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.

Relying on 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 found that a child victim's precocious knowledge of sexual activity or abnormal and sexualized behavior could provide the necessary corroboration. Z.P.R., supra, 351 N.J. Super. at 436. Such evidence was utilized here.

We recognize that, in New Jersey Division of Youth and Family Services v. B.M., 413 N.J. Super. 118 (App. Div. 2010), we held that Rule 5:12-4(d) requires, as a condition to the admissibility of reports by staff personnel or professional consultants such as the counselor in this case, that the reports must be authenticated as a business records pursuant to N.J.R.E. 803(c)(6) and 801(d). In this case, there was no demonstration that the May and July therapist reports were made in the regular course of business; they were prepared within a short time of the act, condition or event being described; and that the source of the information and the method and circumstances of the preparation of the reports justified their admission into evidence, as N.J.R.E. 803(c)(6) requires. See N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 347 (2010); State v. Matulewicz, 101 N.J. 27, 29 (1985). Such a demonstration may have been beneficial in this case, particularly since the counselor expressed concerns that I.M.'s statement regarding her father touching her private parts may have been coached, and because the counselor expressed "confus[ion]" regarding the case and I.M.'s veracity, even after sixteen counseling sessions.

Nonetheless, we note that, in M.C. III, the Court reversed our determination that DYFS forms completed by a treating doctor were inadmissible in evidence as hearsay without authentication as business records pursuant to N.J.R.E. 803(c)(6). M.C. III, supra, 210 N.J. at 339-42. In doing so, the Court noted that the issue that we determined to be decisive had not been raised at the fact-finding hearing, and indeed, defense counsel had consented to the admission of the documents at issue. Id. at 339-41. As a consequence, the Court found that the doctrine of invited error barred the defendant from arguing on appeal that the forms were improperly admitted. Ibid. A similar circumstance exists in the present case.

In M.C. III, the Court held that: "In spite of our invocation of the doctrine of invited error, we would not automatically apply the doctrine if it were to 'cause a fundamental miscarriage of justice.'" Id. at 342 (quoting Brett v. Great Am. Recreation, 144 N.J. 479, 508 (1996) (citing State v. Ramseur, 106 N.J. 123, 281-82 (1987) and Ferry v. George Settle Fischer Baking Co. 6 N.J. 262 (1951))). The Court then found that sufficient other documentary and testimonial evidence of physical abuse by the father existed. Id. at 344-45. We reach the same conclusion here, basing that determination on I.M.'s prompt complaint to her mother, the fact that her father awoke on the couch, his failure to deny that the abuse occurred, and his statement during the interview in the prosecutor's office that he was not contending that I.M. was lying when she made her accusation.

Defendant also claims that the judge erred in finding the child to have been a credible witness. N.J.R.E. 803(c)(27), governing statements by a child relating to a sexual offense, provides:

A statement by a child under the age of 12 relating to sexual misconduct committed with or against that child is admissible in a criminal, juvenile, or civil proceeding if

(a) the proponent of the statement makes known to the adverse party an intention to offer the statement and the particulars of the statement at such time as to provide the adverse party with a fair opportunity to prepare to meet it; (b) the court finds, in a hearing conducted pursuant to Rule 104(a), that on the basis of the time, content and circumstances of the statement there is a probability that the statement is trustworthy; and (c) either (i) the child testifies at the proceeding, or (ii) the child is unavailable as a witness and there is offered admissible evidence corroborating the act of sexual abuse . . . .

In the present case, I.M. did not testify at the fact-finding hearing, but the appellate record does not establish that she was unavailable or that the other conditions of N.J.R.E. 803(c)(27) were met. Nonetheless, the admissibility of I.M.'s hearsay statements was not contested by any of the parties to the proceeding. In these circumstances, while we recognize that I.M.'s failure to appear as a witness or to participate in an in camera interview by the judge may have affected the judge's ability to gauge I.M.'s credibility, we do not find reversible error to have occurred. Although, as the judge acknowledged, details of I.M.'s story differed over time, the record supports his ultimate conclusion that I.M.'s description of her father's act of sexual abuse in causing her to touch his genitals remained consistent throughout,*fn4 and its reliability was reinforced both by I.M.'s prompt voluntary and non-coerced disclosure to her mother of what had taken place, State v. Bethune, 121 N.J. 137, 142-46 (1990); State v. Kozarski, 143 N.J. Super. 12, 16-17 (App. Div.), certif. denied, 71 N.J. 532 (1976), and by her father's failure to deny the conduct.


The father argues additionally that he did not have the required intent to sexually abuse his daughter, and thus the judge's finding of abuse was unsupported. We reject this argument. We agree with the Family Part judge's carefully analyzed conclusion that, to commit child abuse as defined in N.J.S.A. 9:6-8.21, the actor's conduct must be knowing. The judge's determination in this regard is reinforced by the Court's discussion of scienter in M.C. III and its conclusion there that the defendant's actions must be "deliberate" - a term we deem in this context to be synonymous with knowing - even though the defendant may not have intended to harm his children. M.C. III, supra, 201 N.J. at 345.

However, we do not accept the father's position that his unsupported assertion that he must have been sleepwalking negated the judge's determination that the circumstances of the case permitted him to infer knowing conduct on the father's part. In comparison to the defendant in State v. Overton, 357 N.J. Super. 387, 291-92 (App. Div.), certif. denied, 177 N.J. 219 (2003), where testimony was presented by three lay witnesses and an expert that defendant was a frequent sleepwalker, and that his condition could account for the fact that he awoke, naked, in bed with his girlfriend's granddaughter, no evidence, other than the father's unsupported speculation in the present case suggested that he was suffering from a similar condition, despite the judge's offer to reopen the case to permit the introduction of such proofs. As defendant admitted in his brief, he "did not present a sleepwalking defense." Indeed, evidence demonstrates that defendant sought also to excuse his conduct by suggesting that he had too much to drink, he was stressed, and that he thought he was with his wife. None of the father's alternative theories was evidentially supported. As a consequence, we find the judge's factual conclusions to have been properly supported. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974).


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