June 6, 2012
DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF YOUTH AND FAMILY SERVICES, PETITIONER-RESPONDENT,
On appeal from the Department of Children and Families, Division of Youth and Family Services, Docket No. 08-0935.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 27, 2012
Before Judges Espinosa and Kennedy.
Defendant appeals from a final agency determination of abuse rendered by the Division of Youth and Family Services (DYFS or the Division) pursuant to N.J.S.A. 9:6-8.21(c). We reverse.
DYFS' involvement in this matter began with a referral from the Millville Police Department in May 2008. In March 2008, A.H. ("Anne"),*fn1 a fifteen-year-old girl, told a friend that she had been raped by her uncle, F.M. ("Fred"), one evening during the summer of 2007. She could not identify the date or month but believed the incident occurred in June or July.
Fred's home had been designated as a neutral visitation location for Anne to see her biological father. She regularly visited and slept at Fred's home on the weekends, beginning in 1994, and continuing until March 2008, even though her father had ceased visiting her some time during 2007-08. On these visits, Anne slept in the attic with her two male cousins, seventeen-year-old F.M., Jr. ("Fred, Jr.") and fifteen-year-old A.M. ("Andy"). The only bed in the room was a bunk bed with a twin bed on top and a fold-out futon on the bottom.
On the night in question, Andy was sleeping in the top bunk and both Fred, Jr. and Anne were sleeping on the futon. In her first interview by the police, Anne stated that Fred came into the room at about midnight, wearing pajama bottoms. She reported that he touched her chest for approximately fifteen minutes, touched her vaginal area and then inserted his penis into her for approximately one hour. Anne said Fred removed her clothing and that she attempted to fight him off the entire time he was there. She also stated that Fred, Jr. remained asleep throughout the alleged incident.
Anne continued weekend overnight visits at Fred's home until she reported the assault in March 2008. At that time, there was no physical evidence of an assault. The State declined prosecution.
A DYFS caseworker was assigned and an investigation commenced. When she met with Anne, the caseworker did not ask her to describe what happened to her. In her report, the caseworker wrote that she told Anne "she does not need details about what happened, but explained that she was aware that [Anne] was sexually abused. [Anne] stated yes." The caseworker interviewed Anne's mother and sister, but did not attempt to interview Fred, Jr., Andy or anyone who might have been present at the time of the alleged assault.
The caseworker also arranged for counseling for Anne and for her to be examined by Martin A. Finkel, D.O., of the CARES Institute of the University of Medicine and Dentistry of New Jersey. Dr. Finkel interviewed Anne's mother and then obtained a history from Anne and performed a physical examination. Anne told Dr. Finkel that Fred touched her breast and genital area under her clothing, digitally penetrated her and then penetrated her with his penis. She stated that she felt sick afterward and could not fall asleep. She went to the bathroom to urinate and told Dr. Finkel that it was hard to do so and hurt.
Dr. Finkel's diagnostic assessment stated in part:
The historical information that has been provided clearly details this young girl experiencing a one time incident of age inappropriate genital touching and genital to genital contact. The genital touching that she experienced was perceived as involving penetration into the structures of the vagina; she also describes genital to genital contact but she was uncertain as to the degree of penetration. Based on her physical examination, it appears that any genital to genital contact was limited to penetration into the structures of the vaginal vestibule.*fn2 As a result of the genital touching and genital to genital contact, she complained of discomfort afterwards. . . . Her description of a burning sensation with urination . . . reflects that she had superficial trauma. The injuries that she incurred as a result of the contact have since healed without any residual as would be anticipated.
The caseworker found the allegations of sexual abuse substantiated, based exclusively upon the statements attributed to Anne contained in the reports of the Millville Police Department and Dr. Finkel.
After Fred requested a hearing, the matter was filed at the Office of Administrative Law and heard as a contested case pursuant to N.J.S.A. 52:14B-1 to -15 and N.J.S.A. 52:14F-1 to -13. In addition to Anne and Dr. Finkel, the Administrative Law Judge (ALJ) heard testimony from Anne's mother, the caseworker, Fred, Fred, Jr., and J.C., a teenage friend of Fred, Jr.'s.
At the hearing, Anne testified that, on the night in question, she fell asleep on the bottom of the bunk bed, in a twin-sized bed. She was closest to the wall. Fred, Jr. was sleeping next to her, approximately six inches away. Andy was on the top bunk. She stated that the room was completely dark, the shades drawn, and all lights out when her uncle came into the room. She testified that her uncle told her to be quiet and proceeded to pull her pants down. He then pulled his pants down and "stuck his penis in [her] vagina," an incident that lasted fifteen minutes. She stated that she tried unsuccessfully to awaken Fred, Jr. by putting her hand on his shoulder and pushing at his arm. Anne testified that when the alleged assault ended, she fell asleep. She said she did not go downstairs to use the bathroom and did not recall telling Dr. Finkel that she had.
Fred, Jr. testified that he slept in the same bed with Anne when she visited. He stated that Anne slept against the wall and so, his father would have had to climb over him to get in bed with Anne. He testified that he is a light sleeper and would have awakened if the incident described by Anne had occurred. Fred, Jr. also testified that many friends slept over at his house, especially during the summer, and that the bottom bunk, top bunk and the floor were all usually occupied by young teenagers on the weekends when Anne slept at his house. One of those friends, J.C., confirmed that he slept there most weekends, customarily on the floor, and that his brother did so as well.
Fred testified and adamantly denied having any intercourse, sexual contact or inappropriately touching Anne. He stated further that he ordinarily goes to bed very early because he leaves for work at 4:30 a.m.
Dr. Finkel also testified, recounting the history Anne had given him and proffering the conclusions contained in his report. He testified that the penetration went into the vestibule but not into the vagina.
The ALJ made the following credibility findings:
The testimony of Dr. Finkel was creditable, but based exclusively upon the information provided to him by [Anne]. And, as Dr. Finkel stated, his diagnosis and medical opinions were only as good as the information provided by the patient. Dr. Finkel did not consider or exclude the unusual sleeping arrangements, inconsistent statements, police reports, testimony of eye witnesses who were in the room with [Anne], or testimony of the other witnesses. His role was exclusively confined to the medical field. He did not weigh evidence or assess credibility.
[Anne] was generally forthright in her presentation of the incident. But she was at times inconsistent. For example [Anne] told the police that she tried to fight off [Fred] during for [sic] most of the incident. At the hearing she testified that she was scared and just laid still while attempting to wake [Fred, Jr.] who was sleeping next to her. Either way [Fred, Jr.] should or would have heard the incident. Similarly [Anne] stated she fell back to sleep right after the incident. She also stated that she went downstairs to the first floor and used the bathroom after [sic] incident.
[Fred, Jr.] appeared forthright in his testimony. [Fred, Jr.] was consistent and believable. He stated he is a light sleeper and did not hear any commotion, struggle, or assault. He surely should have heard something sleeping in a bunk bed next to [Anne]. Likewise his younger brother, [Andy], did not hear anything, which corroborates [Fred, Jr.]
[Fred] testified. He too was believable. And cross-examination did not yield any remarkable inculpatory evidence.
The ALJ concluded that Fred did not commit sexual abuse of Anne. He stated that the Division had based its conclusions "primarily" upon the report of Dr. Finkel who conceded that "his conclusions were only as good as the information he received from [Anne]" some time after the incident. The ALJ stated he had a "better understanding" of what had occurred because the proceeding before him was adversarial. He heard the testimony of numerous witnesses who had not been interviewed by the DYFS caseworker or Dr. Finkel and whose testimony "was tested for consistency, vantage point, competence, recall and trustworthiness."
In addition to his observations regarding the credibility of the witnesses, the ALJ found reason to discredit Anne's account as improbable. Anne had told the police that she fought off her uncle and tried to wake Fred, Jr. The ALJ observed that her description of the event made it unlikely that Fred, Jr., who described himself as a light sleeper, and Andy, sleeping above her, would not have awakened. Yet, neither heard or saw anything. Fred, Jr. testified he would have been awakened by the activity described by Anne. The ALJ observed that her cousin's testimony cast doubt upon Anne's version of events.
The ALJ also viewed Anne's "visual descriptions" as "questionable." He noted Anne stated the assault occurred at midnight, when the room was completely dark and occupied by teenage boys. The ALJ opined that if Anne was raped, it could have been someone other than Fred because "[t]he extraordinarily dark room would make identification of clothing and people more difficult[,]" and Anne was sleeping in a room with several teenage boys.
Accordingly, the ALJ reversed the finding of abuse.
The Director of DYFS rejected the ALJ's initial decision and affirmed the substantiation of sexual abuse. The Director stated that based on her review of the record, she found "the ALJ incorrectly concluded that there was insufficient evidence to support a finding of abuse, and failed to make a clear credibility determination." The Director discounted the ALJ's credibility findings as follows:
The ALJ's assessment that both parties were "credible" where the testimony was diametrically opposed is ineffectual. [He] fails to reconcile the conflicting testimony and stated that [Anne] was forthright in her presentation of the incident, and [Fred]
"too was believable." By failing to appropriately weigh the conflicting "credible" evidence, the findings in the Initial Decision are so wide of the mark as to warrant a rejection of those findings.
The Director also found the ALJ failed "to properly consider and weigh the expert testimony and medical diagnosis of Dr. Finkel, as an expert in the field of child sexual abuse." The Director criticized the ALJ's observation that the expert's "'conclusions were only as good as the information he received from [Anne].'" The Director stated the ALJ failed to recognize that Dr. Finkel's examination provided him with sufficient evidence "allowing him to make a medical diagnosis of sexual abuse within a reasonable degree of medical certainty[,]" and that the symptoms Anne described, which Dr. Finkel diagnosed as dysuria, could be attributed to symptoms of sexual abuse, corroborating Anne's description of the incident.
The Director also found that Anne's testimony should be afforded "significant weight[,]" rejecting the ALJ's reasoning that inconsistencies in her statements undercut its credibility. The Director noted that the inconsistencies concerned minor details. Anne had substantial learning difficulties. Her mother stated that it is "very hard to get straight answers from her or for her to actually comprehend different things." Although she was in the eighth grade, Anne was performing at a sixth grade level. Nonetheless, the Director observed that Anne had been generally consistent regarding the underlying details.
Further, the Director rejected the ALJ's credibility finding as to Fred:
[Fred's] testimony was self serving and conflicted with his initial reaction to being confronted by [Anne's] sister [Abby]. [Abby] testified that when confronting [Fred] regarding to [sic] abuse, [Fred] asked if [Anne] was pregnant. While alone, this may not suffice to deem an individual's testimony not credible, when considered in conjunction with [Anne's] testimony, and the corroborating conclusion of Dr. Finkel's expert diagnosis, [Fred's] flat denial and testimony fails.
The Director also rejected other points the ALJ identified as support for his conclusions. She substantially discounted Fred, Jr.'s testimony that he saw nothing and would have awakened if the abuse occurred as "mere opinion" that did not "prove that no abuse occurred." She rejected the ALJ's view that the sleeping arrangements would have required Fred to crawl over Fred, Jr. to reach Anne, giving full credit to Anne's statement that Fred did not touch Fred, Jr. and parsing Fred, Jr's testimony - that "[Anne] would 'crawl in' the bed, not that she crawled over him to get into the bed."
The Director determined that the evidence of Anne's testimony; her consistent statements to her mother, the police and Dr. Finkel; and Dr. Finkel's diagnosis outweighed Fred's "flat testimonial denial" and Fred, Jr.'s statement that he did not witness any sexual abuse. She therefore rejected the ALJ's initial decision and affirmed the substantiation of sexual abuse pursuant to N.J.S.A. 9:6-8.21(c)(3).
In this appeal, Fred argues that the agency's final determination must be set aside because it is unsupported by credible evidence in the record.
There is a "particularly strong need for careful appellate review" where the agency's factual findings are contrary to those of the ALJ. In re Lalama, 343 N.J. Super. 560, 565 (App. Div. 2001). The need for critical review rather than deference is most obvious when the agency's findings are dependent upon a rejection of the ALJ's credibility findings. As a general rule, we recognize the superior opportunity enjoyed by "'the one who heard the witnesses to judge . . . their credibility[.]'" Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). Here, it was the ALJ who heard the live testimony, had the advantage of observing the witnesses' demeanor and had the superior position to judge their credibility. See H.K. v.
State, 184 N.J. 367, 384 (2005); Clowes, supra, 109 N.J. at 587-88. "Just as we are bound by factual findings of a trial court, so too is [the agency] bound when reviewing an ALJ's factual findings of lay witness testimony." Cavalieri v. Bd. of Trs. of the Pub. Emps. Ret. Sys., 368 N.J. Super. 527, 537 (App. Div. 2004); N.J.S.A. 52:14B-10(c). And, when the agency rejects the recommended findings of fact, we "need give no deference to the agency head on the credibility issue." Clowes, supra, 109 N.J. at 587-88. Rather, when "a record, involving lay witnesses, can support more than one factual finding, it is the ALJ's credibility findings that control, unless they are arbitrary or not based on sufficient credible evidence in the record as a whole." Cavalieri, supra, 368 N.J. Super. at 537.
Indeed, N.J.S.A. 52:14B-10(c) prohibits the agency head from "reject[ing] or modify[ing] any findings of fact as to issues of credibility of lay witness testimony unless it is first determined from a review of the record that the findings are arbitrary, capricious or unreasonable or are not supported by sufficient, competent, and credible evidence in the record." Thus, to reverse the ALJ's credibility findings, the agency "must explain why the ALJ's findings are unsupportable by the record, not simply that they disagree with the judge or would have decided differently from the evidence that was presented." Cavalieri, supra, 368 N.J. Super. at 537; see also Messick v. Bd. of Review, 420 N.J. Super. 321, 326 (App. Div. 2011) (applying statutory standard for agency's reversal of ALJ's findings and noting agency must "state with particularity its reasons for rejecting the findings").
In reversing the ALJ, the Director found he had "incorrectly concluded that there was insufficient evidence to support a finding of abuse[.]" However, it is clear that the credibility of the witnesses was central to a determination of the sufficiency of the evidence. If Anne's testimony was found more credible, it would be sufficient to prove both the fact of abuse and the identity of Fred as the perpetrator. If, however, the testimony of Fred and Fred, Jr. was more credible, the act did not occur as she described.
The Director said that deference to the ALJ's credibility determination was not warranted because he "failed to make a clear credibility determination" and described his assessment as "ineffectual." These criticisms are not supported by the record.
The ALJ made detailed findings regarding each of the witnesses. Although he did not find that Anne had willfully misrepresented the facts, he found reason to doubt the accuracy of her testimony and set forth the reasons, all supported by the record, for doing so. Those reasons include, for example, the inconsistency in whether she fought off her assailant or just laid still; the improbability that the assault could have occurred over the course of an hour without awaking Fred, Jr. in the bed beside her; the fact that the assault occurred in a darkened room at midnight, hindering the accurate identification of the assailant. If credible - as the ALJ found - Fred, Jr.'s testimony regarding the sleeping arrangements and being a light sleeper provided a legitimate basis for questioning the accuracy of Anne's testimony. Finally, the ALJ found Fred believable. While he identified the inconsistencies in Anne's testimony and the existence of other evidence that cast doubt upon her testimony, the ALJ found no "remarkable inculpatory evidence" to impeach Fred's credibility. The record therefore provides ample support for the detailed credibility findings the ALJ made which were the cornerstone of his conclusion that the charge of abuse by Fred was unsubstantiated. We are satisfied that the Director abused her discretion in finding to the contrary.
The evidence also included expert testimony, which was not subject to the same standard articulated in N.J.S.A. 52:14B-10(c). Here, again, the Director criticized the ALJ for failing to "properly consider and weigh" Dr. Finkel's testimony as an expert in the field of child sexual abuse. In particular, the Director faulted the ALJ for observing that the expert's "'conclusions were only as good as the information he received'" from Anne. However, Dr. Finkel acknowledged this fact himself when he testified. Even if Dr. Finkel's opinion is given full credence, his opinion is a medical diagnosis - that sexual abuse occurred, not an opinion as to the identity of the perpetrator. In fact, the ALJ did not ignore this testimony. In his findings, he allowed for the possibility that the abuse occurred but that someone other than Fred could have been responsible.
We are satisfied from our review of the record that the Director erred in rejecting the ALJ's credibility determinations regarding the lay testimony, which were amply supported by the evidence. Once deference is appropriately given to the lay testimony credited by the ALJ, the weight given to Anne's testimony is necessarily and severely diminished. In this light, the opinion provided by Dr. Finkel does not provide substantiation for the allegation of abuse against Fred.