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

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 30, 2011

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
J.M., DEFENDANT-RESPONDENT, AND A.M.,
DEFENDANT-APPELLANT.
IN THE MATTER OF L.T. AND D.M., MINORS.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-445-09D.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Telephonically Argued November 1, 2011

Before Judges Parrillo, Grall and Alvarez.

Appellant A.M. appeals from an August 14, 2009 order of the Family Part, finding that he sexually abused his then twelve-year old step-daughter, L.T. We affirm.

On March 9, 2009, the Division of Youth and Family Services (DYFS) commenced its investigation of a report from L.T.'s school guidance counselor concerning possible physical and sexual abuse of the child. The next day, March 10, Division worker Najair Jeffries interviewed L.T. at her school. During the interview, L.T., who was then thirteen years old, confirmed that she had been assaulted by A.M. She elaborated that A.M. "forced her to touch his lower part." Although she was not clear on the time frame, L.T. indicated the incident occurred approximately one year prior at three o'clock in the morning.

L.T. had been sleeping in her parents' bed with her mother, J.M., and A.M. because she felt ill. She claimed A.M. "woke her up from her sleep and asked her to touch him." When she refused, A.M. "forced her to touch his penis." J.M. woke up and "freaked out" when she saw what was happening; A.M. ran downstairs. L.T. spent the rest of the night at a relative's home.

When L.T. returned home the next day, A.M. apologized to her, but then grabbed her wrists and tried to get her to touch his private parts again. L.T. screamed and her mother, aunt and uncle came upstairs. For a month after this encounter, A.M. did not stay in the home, where his five-year old biological daughter, D.M., also resided. Subsequently, L.T.'s family sought help and went to a "lady who works with spirits . . . ." L.T. continued to be afraid of being at home alone with A.M., and when she expressed this fear to her mother, J.M. told her to lock herself in the bathroom until J.M. returned.

That same day, Jeffries also interviewed J.M., who initially denied that L.T. had been sexually abused, but when confronted with L.T.'s disclosure, admitted that one night in about October 2008, when L.T. was in their bed, J.M. woke up and "freaked out" when she saw A.M.'s scrotum hanging out of his boxers. When she and A.M. went downstairs, A.M. admitted forcing L.T. to touch him. She then demanded that A.M. leave the house "for a month or so," and made him stay in the basement when he returned. J.M., as did L.T., denied that A.M. had ever touched D.M. inappropriately.

Later that same day - March 10, 2009 - Detective Son and another detective of the Hudson County Special Victims Unit (SVU) separately interviewed L.T., J.M. and A.M. Jeffries observed their sworn, digitally-recorded interviews. L.T. iterated to the SVU detectives the same account she gave to Jeffries, namely that A.M. woke her up at around 3:00 a.m. and forced her to "massage his penis." She clarified what she meant by "massage": "He put my hand around [his penis] and he kept on moving it up and down." In describing the morning after, L.T. said A.M. put his hand over her heart because "he wanted to see if her heart was beating fast," and his voice began changing, which frightened L.T.

J.M. also gave Detective Son a version consistent with that told to Jeffries. She said she knew "her daughter [L.T. was] being sexually abused, but denied that [L.T.] was physically abused by her stepfather." J.M. repeated that she woke up to see A.M.'s scrotum hanging out from his boxers while L.T. was in their bed. She also stated "at first [L.T.] and her husband would not go into details about what happened but then [L.T.] told her that her husband asked her to touch him." J.M. also said she had seen her husband "jiggle[] her children['s] bedroom door at 3 a.m."

At his interview with Detective Son, A.M. claimed to have no recollection of the incident with L.T., but "he wanted to kill himself after he was told that he told [L.T.] to touch his private area." In describing his next-day encounter with L.T., A.M. claimed he "apologized to her and asked her if she was scared of him. He . . . grabbed [L.T.] by the shoulders and shook her in order to test whether or not [she] was really scared of him." A.M. also expressed a belief that he had been possessed, that "whatever was inside the house was getting inside of me. . . . [I] would hear the bathroom knob shaking, the lights flickering off and on, and heard things in the basement."

A.M. was arrested for sexual assault, child abuse and child endangerment. DYFS determined the allegation of sexual assault was substantiated, referred L.T. and D.M. for medical and psychological evaluations, and on May 11, 2009, filed a Verified Complaint and Order to Show Cause for Care and Supervision, pursuant to N.J.S.A. 30:4C-12. The verified complaint alleged A.M. had sexually abused his stepdaughter L.T., and that J.M. had failed to protect her daughter despite her knowledge of A.M.'s sexual abuse of L.T. DYFS sought the care and supervision of L.T., and her half-sister, D.M.

The Family Part judge granted the order the same day, retaining legal and physical custody of the two daughters with their mother, J.M.; permitting A.M. supervised visits with D.M.; and prohibiting A.M. from visiting L.T. or entering her home. By the time of the June 3, 2009 return date on the order to show cause, however, L.T. had recanted her allegations against A.M. and expressed a desire to visit with her step-father. L.T. told her Law Guardian that she felt "pressured into making the statements that she made earlier."

In anticipation of the fact-finding hearing scheduled for July 7, 2009, the judge conducted an in camera interview with L.T., at which time L.T. said DYFS coerced her into accusing A.M., and then offered a different version of the incident:

We were all sleeping, and I accidentally turned - when I turned over I hit [A.M.'s] waist. And I got freaked out, so then like, because I didn't know if I hurt him or anything. So then I turned back over and I just went to sleep. And that was it, that's all that happened.

At the fact-finding hearing on August 14, 2009, J.M. also changed her account. She denied that A.M. had sexually abused L.T., and telling Jeffries that L.T. told her of the abuse and A.M. confirmed it had occurred, attributing Jeffries' contrasting version to a misunderstanding. J.M. then explained there were actually two separate incidents, both completely innocent: one where L.T. mistakenly hit A.M.'s penis when she turned over in bed, and got upset about it; and another when after L.T. jumped on their bed, A.M.'s boxers rose up and his scrotum was exposed.

A.M. also testified and denied forcing L.T. to touch his penis or otherwise sexually assaulting her. He also denied that J.M. ever accused him of such conduct. He recounted the same incident as J.M., namely when L.T. slept in their bed because she was sick and accidentally bumped into his penis. A.M. insisted that he never admitted touching L.T. inappropriately to the SVU detectives, although he said he also did not deny any such encounter.

The judge also admitted into evidence the July 30, 2009 court-ordered psychological evaluation of L.T. by the Audrey Hepburn Children's House (AHCH) psychologist. The AHCH evaluation concluded that sexual abuse of L.T. by A.M. was "probable," but inconclusive given L.T.'s recantation:

In view of [L.T.]'s previous consistent disclosures across multiple reporters and in view of her current recantation, sexual abuse is probable to have occurred. As a result of the impact of the allegations and depressive feelings that accompanied the disclosure, [L.T.] seems to be recanting her initial disclosure.

At the close of evidence, the trial judge concluded that based "on the totality of the circumstances and the preponderance of the evidence," A.M. sexually abused L.T. In reaching this determination, the court credited the testimony of Jeffries, noting it was consistent with her detailed reports written contemporaneously with the initial witness interviews, and included extensive detail. In contrast, the court found the testimony of both parents incredible, based on their inconsistent statements. As for L.T., the court determined that her recantation "flows from her desire to have her family back together again and the impact for [sic] credible allegations have had on her family."

While finding that A.M. abused L.T., the court also concluded that DYFS "failed to specifically make allegations . . . and provide sufficient evidence that J.M. failed to protect [L.T.][,]" and therefore dismissed the complaint as to her. The court then granted J.M. legal and physical custody of L.T. and D.M. for six months. Following several compliance review hearing, by order of October 25, 2010, the judge continued legal and physical custody of both children with J.M.; restrained A.M. from all contact with the children other than visitation supervised by any of four approved individuals; and further restrained A.M. from the children's home.

On appeal, A.M. raises the following issues for our consideration:

I. THE TRIAL COURT ERRED IN FINDING THAT A.M. ABUSED OR NEGLECTED L.T. BY A PREPONDERANCE OF THE EVIDENCE.

A. THE DIVISION NEVER PRESENTED CORROBORATIVE EVIDENCE OF L.T.'S ALLEGED STATEMENTS OF ABUSE.

B. THE DIVISION DID NOT PROVE THAT A.M. COMMITTED ABUSE OR NEGLECT BY A PREPONDERANCE OF THE EVIDENCE.

II. THE DVD RECORDING OF L.T.'S INTERVIEW WITH THE PROSECUTORS [sic] OFFICE SHOULD NOT HAVE BEEN ADMITTED INTO EVIDENCE AND SHOULD NOT HAVE BEEN CONSIDERED BY THE COURT.

We address these issues in the reverse order raised.

I In determining to admit the DVD, the court noted it was seeking to determine whether L.T.'s allegations of coercion by DYFS and SVU were warranted and whether there was other pressure to recant the allegations from her parents. On this score, the court specifically found from its review of L.T.'s recorded statement by SVU detectives, on the same day as she spoke with DYFS workers, that "the child under oath and without coercion, stated that her stepfather . . . asked her to massage his penis and that she refused, but he kept pulling her back and put her hand around it and he moved it up and down."

Of course, the March 10, 2009 DVD recording was also admissible for its substantive worth under N.J.S.A. 9:6-8.46(a)(4), which provides that "previous 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." The DVD is a recording of L.T.'s sworn statement made on the same day she was interviewed by DYFS worker Jeffries. The child's statement was contemporaneously observed by Jeffries, who provided direct testimonial evidence at the hearing. Jeffries testified to her observation of the interview and the events preceding it, thus authenticating it and laying the foundation for its admission. As noted, the court itself viewed the DVD, and found the statement reliable and trustworthy. The trial court therefore properly admitted the DVD recording as substantive evidence.

II

As such, the DVD recording, together with other corroborating evidence, constitutes sufficient credible evidence to support the fact-finding of abuse and neglect. In this regard, the child victim's out-of-court statements were corroborated by the testimony and written reports of Jeffries documenting the parents' admissions on March 10, 2009; J.M.'s statements that same day to SVU detectives, confirming her initial account to Jeffries; the consistency of L.T.'s statements to Jeffries, her mother and the SVU detectives; the AHCH psychological evaluation, concluding the probability of sexual abuse of L.T. by A.M.; and the incredulity of L.T.'s recantation and her parents' trial testimonies. Most significant of the corroborating proof is J.M.'s accusation that A.M. sexually abused her daughter L.T., and her statement that A.M. admitted such conduct. Both A.M.'s and J.M.'s initial corroborative statements amount to admissions, N.J.R.E. 803(b), and as such, constitute independent direct evidence substantiating the child sex abuse allegations and supporting the Family Part judge's ultimate determination.

Our role on review is quite limited. We do not disturb the factual findings and legal conclusions of the trial judge unless convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonable credible evidence, as to offend the interests of justice. New Jersey Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007); Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). Our deference is "especially appropriate when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997).

"Because a trial court 'hears the case, sees and observes the witnesses, [and] hears them testify,' it has a better perspective than the reviewing court in evaluating the veracity of witnesses." Pascale v. Pascale, 113 N.J. 20, 33 (1988) (quoting Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961)) (alteration in original). Governed by these standards, we are satisfied that the trial court's finding of sexual abuse by A.M. was supported by adequate, substantial, credible evidence.

Affirmed.

20111130

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