On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FN-08-87-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Nugent and Carchman.
Defendant T.L. appeals a finding that she abused or neglected her daughter, F.L., who was nine years old when defendant, while nude, had F.L. and her young cousins take photographs of her while defendant licked her own breasts and touched her own vagina. In this appeal, defendant chiefly argues that the statements of F.L., and her two cousins,*fn1 describing the event were not admissible, pursuant to N.J.S.A. 9:6-8.46(a)(4), because they were not corroborated. We reject this and defendant's other arguments and affirm.
The Division of Youth and Family Services commenced this action, claiming that F.L. was an abused or neglected child based on N.J.S.A. 9:6-8.21(c)(4), which defines a child as abused or neglected when the child's physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian . . . to exercise a minimum degree of care . . . (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court[.]
N.J.S.A. 9:6-8.21(c)(3) also defines a child as abused or neglected when a parent "commits or allows to be committed an act of sexual abuse against the child." N.J.S.A. 9:6-8.84 defines sexual abuse as consisting of "contacts or actions between a child and a parent or caretaker for the purpose of sexual stimulation of either that person or another," ibid., and includes "the employment, use, persuasion, inducement, enticement or coercion of any child to engage in, or assist any other person to engage in, any sexually explicit conduct or simulation of such conduct," N.J.S.A. 9:6-8.84(a). Sexual conduct is defined as including "molestation, prostitution, other forms of sexual exploitation of children or incest." N.J.S.A. 9:6-8.84(b).
To prove abuse or neglect, the Division offered the testimony of a Division investigator and a number of exhibits, which included the statement of the children that defendant had consumed alcohol, taken pills, and thereafter engaged in the conduct described briefly above that we need not amplify further. The photographs were taken by the children with defendant's cellphone. The Division's records, which were admitted, also revealed that defendant: was asked about the incident; acknowledged she had consumed "three beers" and Ambien; did not recall the incident; acknowledged that the children had told her that "she took her clothes off and asked them to take pictures of her"; and asserted that she did not initially believe the children when they recounted these events but, when she saw the cellphone photographs, she "knew [it] had to have happened."
Neither the law guardian nor defendant presented any testimony or evidence.
The trial judge found the Division investigator to be credible. The judge also admitted the children's statements because they were adequately corroborated. As a result, the judge concluded by a preponderance of the evidence that defendant's judgment was impaired by alcohol and Ambien, that the event described in the children's statements in fact occurred, and that this conduct fell within the definitions of abuse or neglect contained in N.J.S.A. 9:6-8.21 and 9:6-8.84. The judge later conducted a dispositional hearing, at the conclusion of which she ordered that defendant participate in certain services. The litigation was eventually dismissed.
Defendant appeals, arguing:
I. THE FINDING OF ABUSE MUST BE REVERSED BECAUSE IT RESULTED FROM MISAPPLICATION OF TITLE 9'S SPECIAL EVIDENCE RULE OF N.J.S.A. 9:6-8.46a(4) TO ADMIT THE OUT-OF-COURT STATEMENTS OF CHILDREN WHO WERE NOT SUBJECTS OF THE INSTANT ACTION.
A. Even If The Statements Of The Non-Subject Children Had Been Admissible, It Would Have Been Error To Base The Finding Of Abuse On Them, ...