April 16, 2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
L.C. AND S.C., DEFENDANTS-APPELLANTS. IN THE MATTER OF M.C., MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-278-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 13, 2012
Before Judges Payne, Reisner and Accurso.
S.C., father of M.C., appeals from the trial court's dismissal of a Title 9 action following a finding that he abused M.C. and the approval of the Division of Youth and Family Services's (DYFS or Division) permanency plan of termination of his and his wife, L.C.'s, parental rights to their daughter, followed by adoption. This appeal has been consolidated with L.C.'s appeal in which she contended that DYFS's failure to prove her abuse or neglect in the Title 9 proceeding required the dismissal of the complaint and the return of M.C. to her care. L.C. also contended with S.C. that the trial court erred in approving the Division's permanency plan.
Following submission of her appeal, however, L.C. agreed to kinship legal guardianship of M.C. We are thus dismissing L.C.'s appeal at her request by this opinion. Further, after he filed his appeal, S.C. executed a voluntary surrender of his parental rights to M.C. Because of these procedural developments during the course of this appeal, S.C.'s arguments in Points I and II of his brief, that the trial court erred in conducting a permanency hearing and continuing an order giving DYFS custody over M.C., and further erred in approving a concurrent permanency plan based upon its erroneous finding that L.C. was unwilling to disengage from S.C., have been rendered moot. Accordingly, we limit our consideration to the issue raised in Point III of S.C.'s brief, that the trial court erred in finding by a preponderance of the evidence that S.C. abused or neglected M.C. We likewise limit our rendition of the facts and procedural history to what is necessary to resolve this sole remaining issue on S.C.'s appeal.
S.C. and L.C. are the biological parents of a daughter, M.C., born in December 2005. S.C. also has a daughter, K.M., three years older than M.C., from a prior marriage. In 2008, M.C., then three, resided with S.C. and L.C., and K.M., then six, resided with her mother but spent every other weekend with S.C. and his family. On October 18, 2008, DYFS received a referral from a police officer reporting that K.M. had disclosed to a family friend that S.C. had entered the bedroom she was sharing with M.C. at S.C.'s house on October 11, 2008, straddled her and held her down with his legs while he placed his hands under her nightgown and inserted his finger into her vagina.
K.M. reported that she asked S.C. to stop, but that he laughed and ignored her. The assault continued for five or ten minutes during which time K.M. reported that M.C. was sleeping in the same room.
Darlene Fusco, a Special Protective Response Unit (SPRU) worker responded to the Hudson County Prosecutor's special victim's unit on October 13, 2008, to observe Sergeant Chonda Rosario's interview with K.M. via closed circuit television.
K.M. stated that she understood the difference between the truth and a lie and correctly identified male and female body parts from a picture on the wall. In response to a question from the investigator, K.M. reported that S.C. and "J.J."*fn1 had touched her in a way that made her uncomfortable. K.M. told the investigator that her father had twice touched her "pud," her word for her vagina, once "this weekend" and once "the other weekend" while she was on her bed. K.M. was able to demonstrate what she had described with anatomically correct dolls by taking the hand of the male doll and touching it to the vaginal area of the female doll, saying it "was two fingers" and using a "pushing motion as to indicate digital penetration." K.M. told the investigator that she told S.C. to stop but that he ignored her.
Ms. Fusco also observed S.C.'s interview with a detective from the prosecutor's office. While S.C. denied knowing why he was being interviewed, Fusco noted that S.C. referred to the "night of the incident" before the detective revealed what K.M. had alleged. S.C. admitted that K.M. had slept in his bed on the night in question but denied touching her inappropriately. He also reported that on the nights K.M. stayed at his house, she usually slept with his wife, L.C., because K.M. refused to sleep alone.
L.C., however, advised Fusco in a conversation shortly afterwards that K.M. usually slept with S.C. in his bed, because K.M. did not like sleeping alone or with her. L.C. stated that she generally slept in M.C.'s room when K.M. was visiting. L.C. confirmed that K.M. had slept with S.C. in his bed the prior weekend. L.C. did not believe that S.C. had sexually assaulted K.M., but recalled that the prior Sunday, K.M., who usually wanted to spend every moment with her father, had uncharacteristically decided to accompany L.C. and M.C. to do the laundry instead of remaining at home alone with S.C.
L.C. was interviewed at the prosecutor's office the following day. Fusco, who observed the interview, reported that
L.C. told the detective that K.M. had slept with S.C. over the prior weekend, but maintained, in contrast to her earlier statement, that K.M. usually slept with L.C. and M.C. in M.C.'s room.
Fusco testified that following these interviews, she concluded preliminarily that K.M.'s allegations of abuse against S.C. were substantiated. K.M. and M.C. were subsequently evaluated by physicians at the Audrey Hepburn Children's House who could neither confirm nor deny the possibility of sexual abuse of either child. On December 4, 2008, DYFS filed an order to show cause and a verified complaint seeking temporary care and supervision of M.C. (FN litigation). Following a hearing, the judge granted DYFS temporary legal and physical custody of M.C. and she was placed with relatives.
During the course of the FN litigation, DYFS referred M.C. to the Center for Evaluation and Counseling (CEC) for an evaluation. On June 22, 2009, Amanda Koreivo, a clinician with the CEC, conducted the first of two interviews with M.C. as part of the CEC forensic team evaluation. Koreivo testified at the abuse and neglect hearing that during the first interview, M.C., although sometimes difficult to understand because of her limited verbal skills, identified all of the parts of the body in a "developmentally appropriate way." Koreivo then engaged M.C. in a "touch inquiry" in which the interviewer identifies different body parts and asks the child who touches her and how they touch her. When Koreivo asked about her vaginal area, M.C. responded by revealing that S.C. "pulled" her "pee pee and butt with his hand" at "night time" and that "it hurts." M.C. also said that "Daddy said a bad word" at the time. When asked what the bad word was, M.C. replied, "I want you." Koreivo then asked M.C. to use anatomically correct dolls to demonstrate what she had described. M.C. immediately took the dolls clothes off and took the male doll's hand and began fondling the vaginal area of the female doll. When asked by the interviewer whether she had "ever seen this happen to anybody else," M.C. said, "Daddy pulls [K.M.'s] pee pee and he says the bad word to her too." At her second interview with Ms. Koreivo a few weeks later, M.C. identified her father as touching all of her different body parts. With regard to her vaginal area, M.C. stated, "just Daddy does it, he pulls it."
Prior to the start of the fact-finding hearing on October 14, 2009, S.C.'s counsel made a pre-trial motion for the court to conduct an in-camera interview of M.C. based upon his contention that she lacked the "expressive capability" to make the statements alleged in her interview with Koreivo. The judge denied the motion, reasoning that the objection went to the credibility of the interviewer, Korievo, who would be subject to cross-examination at trial. In addition, the judge, a man, questioned whether M.C. would speak to him given the various reports noting that M.C. would withdraw and become frightened or intimidated when approached by a male doctor.
Both Darlene Fusco and Amanda Koreivo testified for DYFS at the fact-finding hearing held in October 2009. Fusco testified to her observations of the prosecutor's interviews of K.M. and S.C. and her conclusion that the allegations of sexual abuse by S.C. against K.M. had been substantiated. Koreivo, who was qualified as an expert forensic clinician, described CEC's methodology for conducting evaluations and her evaluation of M.C. Koreivo described M.C.'s disclosure that her father had fondled her vaginal area as significant because "most children of that age don't associate anything with their vaginal area other than potty training." Even more noteworthy was, M.C.'s report of S.C. having said "a bad word" in that context, "I want you." Koreivo testified that "[c]hildren don't typically have sexually developed language like that." She opined that M.C.'s "pairing" of that touch with the words "I want you" was not something that a child of her age could fabricate.
Koreivo also found M.C.'s ability to replicate the act, which she did with the forensic dolls, to be very credible.
[O]nce I told [M.C.] to demonstrate what happened, it was like she had a task that she was going to do. She didn't try to play with the dolls or anything. She just went right to it and immediately took their clothes off and immediately took the male's hand and started fondling the vaginal area of the female doll.
In addition, Koreivo found the similarities between K.M.'s and M.C.'s accounts of the abuse significant "because there's consistency within their disclosures. There's nothing that goes against what the other one said."
Koreivo also opined that M.C. appeared to have developed a fear of men, based upon her review of the DYFS reports and contact sheets in the record. Specifically, Koreivo referred to accounts documenting M.C.'s "drastic" change in affect when examined by a male doctor performing a neurological examination and an incident during a supervised visit with her father when she was afraid to come out of the bathroom because she had had a bowel movement and soiled her clothes. Koreivo testified that M.C. having had "an accident" during a visit with her father "could be indicative of anxiety or being stressed out by the situation." Koreivo also referred to another report detailing an incident in which a case worker picked up M.C. at daycare to take her to an appointment. M.C. started to cry and would not walk, saying she did not want to go. When the worker advised that they were not going to see S.C. but going to the doctor, M.C. stopped crying and walked along on her own.
Based upon her evaluation and review of the reports and contact sheets in the record, including the medical evaluation by the Audrey Hepburn Children's House, Koreivo testified that she could not "definitively say that [M.C.] was sexually abused." She continued, however, to add "but I think if she wasn't sexually abused herself then she definitely observed the sexual abuse of somebody else." Neither S.C. nor L.C. testified at the hearing.
The trial judge concluded in an oral opinion on the record on November 10, 2009, that S.C. committed an act of abuse on M.C. by allowing her to witness his digitally penetrating K.M's vagina. The judge found Fusco's testimony credible, characterizing her retelling of K.M.'s interview with the detective as "very impressive." The court was also "particularly impressed with [K.M.'s] use of the dolls and her statements to Detective Rosario about what happened." The trial judge also found Koreivo's testimony credible, both her "factual retelling of [M.C.'s] description of the body parts, the description of the incident and use of the dolls" as well as her expert opinion. The court found that K.M.'s account of sexual abuse by S.C. was corroborated by M.C.'s statements to Koreivo in June 2009. The judge concluded that the Division had sustained its burden of "showing by a preponderance of the credible evidence that on October 11, 2008" and once previously "that S.C. committed an act of abuse upon [M.C.] by allowing [her] to witness his digitally penetrating [K.M.]."
On appeal, S.C. argues that the trial judge erred in finding that he had abused M.C. based upon uncorroborated statements made by K.M. and M.C. Specifically, S.C. contends that there was no physical evidence of abuse of either child, that the children's statements were inconsistent and that the trial judge improperly used these inconsistent hearsay statements to corroborate one another.
The trial court hears matters alleging the abuse and neglect of children in accordance with the standards established by N.J.S.A. 9:6-8.21 to -8.73. New Jersey Div. of Youth and Family Servs. v. P.W.R., 205 N.J. 17, 31 (2011). DYFS bears the burden of proving that the child is abused or neglected by a preponderance of the evidence which it may do only through the admission of "competent, material and relevant evidence."
N.J.S.A. 9:6-8.46b; P.W.R., supra, 205 N.J. at 32. N.J.S.A. 9:6-8.46a(4) 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."
Although the most effective types of corroborative evidence in cases of child sexual abuse may be eyewitness testimony, admissions by the accused, or medical testimony documenting the abuse, our courts have acknowledged that such evidence is rare given the nature of the offense. New Jersey Div. of Youth and Family Servs. v. Z.P.R., 351 N.J. Super. 427, 436 (App. Div. 2002). Consequently, we have held that indirect evidence such as age-inappropriate sexual behavior can provide the necessary corroboration required by N.J.S.A. 9:6-8.46a(4). Ibid. Such corroborative evidence need not relate directly to the accused, it need only provide support for the out-of-court statements. Ibid.; New Jersey Div. of Youth and Family Servs. v. L.A., 357 N.J. Super. 155, 167 (App. Div. 2003).
Here, the trial judge found K.M.'s account of sexual abuse by S.C. to have been corroborated by M.C.'s statements to Koreivo in June 2009. Findings by the trial court that are supported by adequate, substantial and credible evidence are binding on appeal. Rova Farms Resort, Inc. v. Investors Ins.
Co. of Am., 65 N.J. 474, 484 (1974). We may not overturn the factual findings and legal conclusions of a trial judge "unless we are 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." Ibid.
In addition, we accord deference to family court factfinding because of the family courts' special jurisdiction and expertise in family matters. Cesare v. Cesare, 154 N.J. 394, 413 (1998). As our Supreme Court has recently underscored in the context of a termination case, 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." New Jersey Div. of Youth and Family Servs v. E.P., 196 N.J. 88, 104 (2008); N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007).
Our review of the record convinces us that the family court judge was correct in concluding that M.C.'s statements to Koreivo corroborated K.M.'s account of sexual abuse by S.C. and established M.C.'s observation of that abuse. The children's statements were remarkably consistent regarding the details of how they were inappropriately touched by their father. S.C. maintains, however, that the girls' statements are inconsistent because K.M. never indicated to Sergeant Rosario that anyone else was present when she was allegedly abused by S.C. We disagree that the statements are inconsistent and do not corroborate the children's accounts of the abuse.
In the initial referral to DYFS on October 18, 2008, K.M. had disclosed to a family friend that S.C. had entered the bedroom she was sharing with M.C. at S.C.'s house on October 11, 2008, and that the abuse had occurred while M.C. was sleeping. In her interview with Sergeant Rosario, observed by Fusco, K.M. said that S.C. touched her "in my bed" and did not mention anyone else being present. Fusco testified that K.M. was never specifically asked whether she was in her own bed or in her father's bed at the time, and it does not appear as if she were asked whether anyone else was present. Accordingly, there does not appear to be any inconsistency between the report and K.M.'s interview with Sergeant Rosario. Further, there is no inconsistency between the children's statements. Indeed, the similarities in the girls' accounts are striking. Further, as Fusco noted in response to a question from the judge about the girls' sleeping arrangements on the night of the incident, K.M. stated that S.C. had inappropriately touched her twice, "this weekend and the other weekend."
The confusion over where K.M. slept when she stayed at her father's house arose from the conflicting statements of S.C. and L.C. on the topic, not from the children. S.C. told investigators that K.M. usually slept with L.C. L.C. initially told Fusco that K.M. usually slept with S.C., but later told the detective that K.M. usually slept with her. The trial judge noted that there were "several inconsistencies as to where [M.C.] was on the night of the incident." The judge found, however, that there was "no inconsistency between [L.C.] and [S.C.] that [K.M.] was in bed with [S.C.]." Thus, not only are the children's statements not inconsistent but, significantly, K.M.'s account that she slept alongside her father on October 11, 2008, establishing that he had the opportunity to commit the abuse, is corroborated by both S.C. and L.C.
In addition, both girls exhibited age-inappropriate sexual knowledge in their accounts of the abuse. Our courts have previously recognized that such precocious sexual knowledge is one of the behavioral signs associated with child sexual abuse, see, e.g., State v. J.Q., 130 N.J. 554, 563-64 (1983), and can provide the corroboration required by N.J.S.A. 9:6-8.46a(4).
Z.P.R., supra, 351 N.J. Super. at 436. Thus we are satisfied that the trial judge's finding that M.C.'s statements to Koreivo corroborated K.M.'s account of sexual abuse by S.C. is amply supported on this record.
We reject, as did the trial judge, S.C.'s contention that a lack of physical evidence undermined the credibility of the children's statements. Koreivo testified that the lack of physical evidence is typical in child sexual abuse cases and that the scientific literature suggests that there is no physical evidence whatsoever in ninety-five percent of such cases. Our own cases acknowledge this well-established lack of direct physical evidence in the typical child sexual abuse case. Ibid. (physical corroboration is rare because offenses committed against children tend to be non-violent and because most children do not resist, either out of ignorance or respect for authority). Accordingly, we agree with the trial court that the lack of physical evidence of abuse does not impugn the credibility of the children's statements.
Finally, we find no error in the trial judge's refusal to conduct an in-camera interview of M.C. Trial judges have broad discretion in abuse and neglect cases as to whether to conduct a private interview of a child. L.A., supra, 357 N.J. Super. at 168. The family court judge denied S.C.'s request for an in-camera interview of M.C. because Korievo, to whom M.C. made the statements at issue, would be available for cross-examination at trial, and he doubted that the interview would be meaningful given the various reports documenting that M.C. had developed a fear of men. We are satisfied that the judge thoughtfully considered the issue and did not abuse his discretion in determining not to interview M.C.
We affirm the finding of abuse and neglect as to S.C. and dismiss the remaining points on his appeal as moot. We dismiss L.C.'s appeal at her request.