February 17, 2011
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-APPELLANT,
A.D. AND H.D., DEFENDANTS-RESPONDENTS.
IN THE MATTER OF S.D., A MINOR.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-231-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 3, 2011
Before Judges Rodriguez, C.L. Miniman and LeWinn.
The Division of Youth and Family Services (DYFS) appeals from the March 31, 2010 order of the trial court dismissing its abuse and neglect complaint against defendants H.D. and A.D., who are the adoptive parents of the minor, S.D. This order was entered on defendants' motion, in which S.D.'s law guardian joined, at the conclusion of the presentation of DYFS's evidence at a fact-finding hearing. For the reasons that follow, we reverse and remand for further proceedings.
DYFS filed a civil complaint for child abuse and neglect against H.D. in April 2009, based upon allegations made at that time by H.D.'s niece, J.G., that H.D. had sexually assaulted her in the presence of S.D. some years earlier. In April 2009, J.G. was "having problems" in school, leading the principal to speak with J.G.'s mother, M.G. M.G. told the principal that in October 2008, J.G. had reported to her being sexually abused and M.G. believed this was the reason for J.G.'s problems in school.*fn1
School officials then contacted DYFS.
Kelly Nester, a family service specialist with DYFS, along with a DYFS caseworker interviewed J.G. at school. J.G. described an incident that had occurred a few years earlier at her birthday party held at the home of H.D. and A.D.
J.G. stated that "on that day [H.D.] asked her and . . . [S.D.] to go upstairs into his bedroom for massages . . . .
[W]hen they went upstairs [H.D.] gestured for her to lie on the bed." J.G. laid down and then H.D. "pulled her pants . . . down . . and unzipped his pants" and inserted his penis into her vagina. J.G. "pushed him off . . . of her and pulled her pants back up and went downstairs back to the party." During this time, according to J.G., S.D. was "also in the room lying on the bed . . . trying to ignore what was going on." J.G. told Nester that she had reported this incident to her aunt, D.R., and had also spoken to her older sister and her mother, M.G., about it.
Nester ended the interview at this point, deciding that J.G.'s account "was substantial enough to report to the local authorities and to the prosecutor's office," adding that it is "the protocol to have . . . [a] child victim interviewed only one time" and this should occur at the prosecutor's office.
Nester contacted the Bergen County Prosecutor's Office to arrange an interview of J.G. She also contacted "centralized screening" at DYFS to generate an open case so that S.D.'s "safety could be assessed" since J.G. stated that S.D. was present during H.D.'s sexual assault.
J.G. was interviewed at length by members of the prosecutor's office on two occasions, April 20 and May 4, 2009. During those interviews, at times J.G. recounted the incident as she had described it to Nester; at other times, in response to somewhat leading questions, J.G. stated that it may have been a dream. During a medical examination by Dr. Leslie Ann Elton on May 14, 2009, J.G. described the incident to the doctor in a manner consistent with what she had told Nester.
J.G. also underwent a psychological evaluation with Dr. Patricia Sermabeikian. Dr. Sermabeikian opined that J.G. "had some anxiety" and "expressed . . . a lot of concern about . . . the impact of her disclosure on her family." J.G. also told Dr. Sermabeikian that she "dreamt about the abuse." The doctor concluded that J.G. "presented as if it had really happened" and recommended to DYFS that J.G. receive therapy and not have any contact with H.D.
S.D. was evaluated by Dr. Lucy Takagi, who described the girl as "anxious and . . . worrying about who she had to talk to." S.D. told Takagi that she remembered J.G.'s birthday party but stated that "nobody had a massage on that day." When asked if she had seen H.D. and J.G. in the bedroom together, S.D. replied, "[n]o I do not remember," adding that she had a poor memory. At the conclusion of S.D.'s evaluation, Takagi recommended that she undergo individual and family counseling. S.D. told Takagi that H.D. had never behaved inappropriately towards her; nonetheless, the doctor recommended that H.D. undergo a parenting evaluation, and that S.D. and H.D. have only supervised contact pending the results of that evaluation.
S.D. also spoke to Nester and a representative of the prosecutor's office. S.D. told them that she "had heard [J.G.] made a statement that her father had touched . . . [J.G.] in some way." S.D. said that "it was gossip." S.D. remembered the birthday party, but, again, when asked if she recalled whether she, J.G. and H.D. were in the bedroom together, stated that "she was not good at remembering." S.D. denied that H.D. ever touched her inappropriately, but told Nester that "she would think about it."
Because S.D. and J.G. were "the same age and gender," and because S.D. was "not the biological child" of A.D. and H.D., DYFS implemented a safety plan for S.D., which restrained H.D. from the home and all contact with S.D. A.D. and H.D. both consented to that safety plan.
DYFS subsequently received information that another relative, E.M., had reported that, while a minor in defendants' custody several years earlier, she, too, had been sexually abused by H.D. Nester interviewed defendants about E.M.'s allegations; H.D. denied them and further denied "having had any knowledge of any allegations like this being made before." A.D. told Nester that E.M. "had made allegations about her [A.D.] in the past." She denied that E.M.'s allegations against H.D. were true. Defendants' older daughter, P.D., who E.M. alleged had been in the room during the incidents when she was sexually abused by H.D., "denied it to be true," adding that H.D. had never sexually abused her either.
In April 2009, DYFS filed an abuse/neglect complaint against H.D. alone. During the ensuing trial, however, after E.M. testified, DYFS substantiated abuse/neglect against A.D. for failing to protect S.D. after two separate female relatives, J.G. and E.M., had made sexual abuse allegations against H.D.
At the fact-finding hearing, the judge heard testimony from Nester, Drs. Sermabeikian and Elton, E.M., J.G. and Dr. Anthony D'Urso, on behalf of DYFS. Dr. D'Urso testified as an expert in the Child Sexual Abuse Accommodation Syndrome (CSAAS), to explain J.G.'s delay in reporting H.D.'s conduct. He acknowledged that CSAAS is not designed to determine whether an alleged victim of sexual abuse is telling the truth; rather, the syndrome describes a series of characteristics typically seen in victims of such abuse.
At the conclusion of DYFS's case, H.D. moved to dismiss the complaint, noting that there was "absolutely no evidence . . . presented . . . that [S.D.], the subject of the litigation today, has in any way been neglected, has in any way been abused, has in any or is in any way suffering . . . from . . . neglect and abuse." A.D. and the law guardian joined in the motion. The trial judge reserved decision on the motion until after he heard the testimony of S.D. and P.D.
S.D. testified that she remembered J.G.'s birthday party at their home, but did not recall going into the house with H.D. and J.G. during that party. She stated that her father had never touched her "in a bad way," nor had she ever been present when her father touched anyone else "in a bad way."
P.D. testified that she had shared a bedroom with E.M., adding that she was "a really . . . light sleeper . . . so if anyone would have come into [their room she] would have felt it." P.D. stated that H.D. never touched her inappropriately, nor did she ever have reason to suspect he had abused anyone else.
Following this testimony, H.D., A.D. and the law guardian renewed their motions to dismiss.
In his decision granting the motion, the judge reviewed the testimony of J.G. and S.D. and concluded that "the record supports the allegations of [J.G.] to some extent," but the record did not support the finding that "an act of sexual abuse occurred to [J.G.] in the presence of [S.D.] that would result in harm to [S.D.] and . . . make her an abused or neglected child[.]" In reaching this conclusion, the judge made several references to the fact that the prosecutor's office had decided not to indict H.D., such as:
Now, the prosecutor interviewed [J.G.] two times. And they did not bring an indictment against [H.D.] for aggravated sexual assault or for sexual assault.
The prosecutor refused to bring an indictment. Which means, really, they didn't even have probable cause.
The prosecutor found there was not probable cause to return an indictment. Not even evidence rising to the level of probable cause.
Now, the [c]court is considering and has considered the fact that the prosecutor failed to present an indictment, as weighing heavily in favor of the defendants.
Concluding that J.G.'s allegations did not "rise to the level of a preponderance of the evidence[,]" the judge granted the motion to dismiss.
On appeal, DYFS raises the following contentions for our consideration:
THE TRIAL COURT ERRED BY GRANTING THE DEFENSE COUNSEL AND LAW GUARDIAN'S MOTIONS TO DISMISS AND BY CONCLUDING THAT H.D. DID NOT ABUSE AND/OR NEGLECT J.G. AND IN SUBSEQUENTLY DETERMINING THAT NO RISK OF ABUSE AND/OR NEGLECT OF S.D. EXISTED TO PREVENT H.D. FROM RETURNING HOME.
A. The Trial Court Erred in Dismissing the Division's Title 9 Complaint Based on Oral Motions by Defense Counsel and the Law Guardian and Without Completing the Trial and Rendering an Opinion Based on All of the Evidence and Testimony Presented.
B. The Division Proved by Preponderance of the Evidence That S.D. Was Abused And/or Neglected by the Defendants as a Result of H.D.'s Sexual Abuse of J.G., Which S.D. Was Present For, and H.D.'s Sexual Abuse of E.M. When She Was a Minor. A.D. Was Aware of the Sexual Abuse Allegations and Took No Safety Measures to Protect Her Daughter S.D.
C. The Trial Court's Oral Findings Were Unclear and Confusing and Inconsistent with Prior Rulings Earlier in the Proceeding.
D. The Trial Court Erred in Basing its Decision to Dismiss The Division's Title 9 Complaint on Inappropriate Factors, Including the Failure of the Prosecutor's Office to Criminally Indict H.D., and the Alleged Neutrality of S.D.'s Law Guardian.
We concur with DYFS that the judge improperly considered the prosecutor's failure to indict H.D. as a factor in his decision. Moreover, we are further concerned by the judge's failure to consider other pertinent evidence of record, namely E.M.'s testimony about H.D.'s conduct towards her. The credibility of that testimony must be assessed in determining whether DYFS proved by a preponderance of the evidence that S.D. was at risk of abuse and/or neglect by defendants.
We note, initially, that "[w]e have a strictly limited standard of review from the fact-findings of the Family Part judge." N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 577 (App. Div. 2010) (citing Cesare v. Cesare, 154 N.J. 395, 412-13 (1998)). "Appellate courts must defer to the trial court's findings if supported by adequate, substantial, and credible evidence in the record." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). Furthermore, "[p]articular deference is afforded to decisions on issues of credibility," ibid., because the trial court "has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a feel of the case that can never be realized by a review of the cold record."
N.J. Div. of Youth & Family Servs. v. M.C., III, 201 N.J. 328, 342-43 (2010) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (internal quotation marks omitted)). In short, "an appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare, supra, 154 N.J. at 412 (citation omitted).
However, "[w]here the issue to be decided is an 'alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' [the reviewing court] expand[s] the scope of . . . review," but "deference will still be accorded the trial judge's findings unless it is determined that they went so wide of the mark that the judge was clearly mistaken." G.L., supra, 191 N.J. at 605.
With these standards in mind, we turn first to DYFS's contention that the trial judge improperly considered the failure of the Bergen County Prosecutor's Office to indict H.D. as a factor bearing upon the agency's burden of proof. As noted, the judge repeatedly referred to the prosecutor's failure to indict H.D., and stated that this factor "weigh[ed] heavily in favor of defendants" as it indicated that the prosecutor "didn't even have probable cause." Although the judge did note at one point that he was "not bound by that . . . at all[,]" he nonetheless considered it a fact to be weighed with "everything." This was error.
Proceedings brought by DYFS under Title 9 "respond to the terrible reality that not all children are safe with their families by providing for the removal of abused and neglected children and for appropriate protective orders when necessary to ensure their safety. The inquiry in every case focuses on the best interests of the child." State v. P.Z., 152 N.J. 86, 99 (1997). By contrast, "[t]he criminal justice system acts separately, but in tandem with the civil system, to investigate and prosecute those who abuse and neglect children." Id. at 100.
While the two systems may act "in tandem," they serve different functions, address different conduct, involve different standards of proof, and carry different consequences. DYFS's responsibility is "to investigate allegations of abuse and neglect, to ascertain their veracity, [and] to take action to safeguard abused children from further harm." N.J. Div. of Youth & Family Servs. v. Robert M., 347 N.J. Super. 44, 63 (App. Div.), certif. denied, 174 N.J. 39 (2002). "The interest of law enforcement is different since the focus is the criminal culpability of those accused of child abuse and neglect. . . ." Ibid. (emphasis added).
"The Legislature [has] charged [DYFS] with the responsibility of protecting the health and welfare of the children of this state. The procedures for accomplishing those obligations are set forth in . . . N.J.S.A. 9:6-8.21 to -8.73, and . . . N.J.S.A. 30:4C-11 to -14." N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 397 (2009). Here, the gravamen of DYFS's abuse/neglect complaint against defendants stemmed from N.J.S.A. 9:6-8.21c(4)(b), which defines an "'[a]bused or neglected child'" as "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 h[er] parent[s] . . . to exercise a minimum degree of care . . . in providing the child with proper supervision . . . , by unreasonably . . . allowing to be inflicted harm, or substantial risk thereof."
Upon the filing of a complaint alleging abuse or neglect, a court must hold a "fact-finding hearing" pursuant to N.J.S.A. 9:6-8.44, "to determine whether the child is an abused or neglected child." At that hearing, "only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(b)(2). The focus of the evidence at a fact-finding hearing is on "the probability of present or future harm." N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 87 (App. Div. 2008) (internal citation and quotation marks omitted). Considering the purpose of such a hearing and the type of evidence pertinent to achieving that purpose, we are satisfied that the prosecutor's independent decision not to indict defendant had no bearing on the issues involved in the fact-finding hearing.
In reviewing a trial judge's grant of a motion to dismiss "at the close of the evidence offered by an opponent," R. 4:40-1, we must "accept as true all the evidence supporting [the non-moving party] and accord [it] all legitimate inferences." Zive v. Stanley Roberts, Inc., 182 N.J. 436, 441 (2005). Here J.G. testified to H.D.'s sexual abuse of her; Dr. Sermabeikian opined that J.G. was telling the truth. We cannot say with any confidence that the trial judge's credibility determinations with respect to this evidence were not improperly skewed by his concern about the prosecutor's failure to indict H.D. Therefore, we are constrained to reverse and remand for further proceedings at which that factor will be disregarded.
As further proceedings will now be held in this matter, we address the issue regarding the testimony of E.M. The trial judge summarily dismissed E.M.'s testimony as having "nothing directly to do with [S.D.]," and constituting "borderline . . . an [N.J.R.E.] 404[(b)] motion." We are satisfied that this determination was in error.
It was E.M.'s allegations that caused DYFS to amend its complaint to add A.D. as a defendant, because E.M. claimed that when she reported H.D.'s conduct to A.D. and sought her protection, A.D. did not believe her. Thus, E.M.'s testimony constituted "competent, material and relevant evidence," N.J.S.A. 9:6-8.46(b)(2), bearing upon the abuse/neglect allegations against both defendants in relation to S.D. As such, her testimony clearly did not constitute evidence of "[o]ther crimes, wrongs, or acts" within the purview of N.J.R.E. 404(b).
The purpose of N.J.R.E. 404(b) is "to preclude admission of other crimes or bad acts when the evidence is offered solely to establish a party's propensity or predisposition." Biunno, Current N.J. Rules of Evidence, comment 7 to N.J.R.E. 404(b)(2) (2010) (citations omitted). E.M. testified without objection from defendants or the law guardian and, certainly, in the absence of any objection premised upon N.J.R.E. 404(b). She was, in fact, extensively cross-examined by defendants and the law guardian who, obviously, were concerned that her testimony directly addressed the issue of defendants' failure to protect S.D. adequately from the risk of harm. Therefore, the decision on remand must take E.M.'s testimony into account.
Reversed and remanded for further proceedings in conformity with this opinion. The judge shall reconsider DYFS's motion to dismiss without referring to the prosecutors decision not to indict H.D., and shall consider the testimony of E.M. The judge may also take any additional testimony which, in his discretion, he deems necessary. Remand proceedings shall be completed within sixty days of the date of this opinion. We retain jurisdiction.