November 20, 2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent,
M.K., Defendant-Appellant. IN THE MATTER OF R.K., N.K., Aw.K., W.K., Ab.K., Minors.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 25, 2013 
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-392-11.
Joseph E. Krakora, Public Defender, attorney for appellant (Jill G. Kail, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Renee Greenberg, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, attorney for minors R.K. and N.K. (Todd Wilson, Designated Counsel, on the brief).
Before Judges Grall, Nugent and Accurso.
M.K. appeals a determination of the Family Part. The judge found that she neglected her daughters, R.K. and N.K., in violation of N.J.S.A. 9:6-8.21c(4)(b), by "fail[ing] to protect them after learning that" Sonny,  their older brother, "sexually abused them." The Division of Youth and Family Services (Division) opposes the appeal, but the children's law guardian does not. The law guardian has advised that R.K., who is now emancipated, and N.K., who was returned to the custody and care of her parents at the conclusion of the fact-finding and dispositional hearings, do not support continuation of the order memorializing the finding of neglect.
The Division also charged the girls' father, Mr. K., with abuse and neglect, but those charges were dismissed for failure of proof at the conclusion of the fact-finding hearing. Consequently, Mr. K. has not participated in this appeal.
In a separate proceeding conducted prior to the fact-finding hearing in this case, Sonny was tried on a juvenile delinquency complaint based on his sisters' allegations. Although R.K. and N.K. recanted their allegations prior to the hearing, they retracted their recantations and testified on behalf of the State and in the presence of their mother at Sonny's trial. The judge who heard the evidence in that case concluded that the State did not prove the charges.
The primary question on appeal is whether the judge could determine, without the girls' testimony, that M.K.'s failure to protect them amounted to gross negligence. The judge barred the children's testimony on the law guardian's motion. The Division did not support the motion, and defendants opposed it. Because the children's testimony — either in court or in camera and subject to an appropriate protective order as authorized by Rule 5:12-4(b) — was necessary to a determination of M.K.'s neglect, we reverse and remand for further proceedings.
R.K., N.K. and Sonny are three of the eight children born to M.K. and her husband Mr. K., after they immigrated to the United States from Palestine. Sonny was born in 1989, R.K. in 1994 and N.K. in 1997. Sonny is the eldest of the Ks' children.
The Division had contact with the K family on three prior occasions, none involving allegations of sibling-to-sibling misconduct or abuse. The Division investigated a black eye sustained by an older daughter in 1995 and an allegation that the children were playing outside, without supervision, during school hours in 1998. In February 2010, the Division investigated a report from N.K.'s school advising that the child had said her father had been hitting her and R.K. with his hand and a belt ever since he learned that R.K. was "bisexual." The "referent" also said the girls had been trying "to get into shelters for [a] week." In all three instances, the Division closed the case without litigation.
With respect to the 2010 allegation, the Division concluded that Mr. K.'s disciplinary measures, while less than appropriate, did not amount to "abuse." Before making that determination, the Division interviewed all of the children and their parents, and both parents admitted that Mr. K. hit the children on the back of their necks with an open hand when they did not listen to him. The Division had also suggested alternative means of discipline and placed "homemakers" with the family to observe their interactions before closing that case.
In April 2011, R.K. and N.K. first alleged that their brother Sonny had sexually abused them. At that time, R.K. was sixteen and N.K. was thirteen.
The girls disclosed the sexual abuse after R.K. was located by a police officer investigating a missing persons complaint filed by M.K. and Mr. K. On the morning of April 5, 2011, R.K. left home as if she were going to school. She had told her mother she had an "in-school" suspension, but she actually had a three-day "in-home" suspension for repeatedly cutting a class. When R.K. did not come home at the expected hour, her parents tried but failed to contact R.K. through her friends. Consequently, they notified the police that she was missing.
On the evening of April 6, a police officer, with the assistance of a friend of R.K.'s, located R.K. and brought her to police headquarters. R.K. told him she was afraid her father "was going to kill her." His report indicates that R.K. also told him her father had arranged for her to marry her cousin, which she did not want to do; that her father wanted her to drop out of school and marry; and that he had beaten her about her body with a closed fist and hit her in the face during the summer of 2010, when her brother Sonny told him she had kissed a girl. Finally, the officer's report indicates that R.K. said Sonny tried to sexually assault her when she was five or six and a few times after that; that their mother found them together when she was about seven; and that Sonny had also tried to molest N.K. in the past but had not done so recently.
The police contacted the Division and the Special Victims Unit (SVU) of the Hudson County Prosecutor's Office. The Division assumed legal and physical custody of R.K. on an emergency basis that night, placed her in a foster home and subsequently obtained court approval of the removal. The SVU took the lead in investigating the allegations of sexual abuse.
Officers from the SVU interviewed R.K., N.K. and Sonny on April 7. R.K. and N.K. were interviewed separately, and both were placed under oath and told that their statements were being recorded. Their recorded statements, and the subsequent repetitions of them reported by others, were the only evidence admitted at the fact-finding hearing tending to show what M.K. knew and did about Sonny's alleged sexual abuse.
Some context is needed. There were two bedrooms in the Ks' home for their children — one for the boys and one for the girls. By R.K.'s account, given during the recorded interview, she was about five years old on the night Sonny first assaulted her. It was hot and the children were sleeping in the living room, which had an air conditioner. Sonny was watching a pornographic movie on television. He rolled from the couch on top of R.K. and tried to imitate what he had seen on television. He took her pants off, but not her underwear, and attempted to get his penis in but did not. After that incident, Sonny did the same thing "on and off, on and off, like" — "whenever he got a chance."
The information about what M.K. knew and saw was disclosed during the colloquy that immediately followed R.K.'s statement about Sonny abusing her when "he got a chance." All statements that can be understood to refer to what M.K. saw and did are italicized and in bold-face type.
R.K.: I would sleep on purpose in the room, so he won't do do [sic] it.
Detective: Uh hmmm.
R.K.: [B]ut like my mother would be like why are you sleeping in the room?
Detective: Oh so he would only get it when you're sleep out?
R.K.: On the floor.
Detective: On the floor on one spot?
R.K.: At first, he tried it on the floor, and then my mom, and one night he tried to do it again, and I kicked him, I made loud noise, like I banged on the couch so my mom could hear.
Detective: Uh hmmm.
R.K.: And then my mom woke up and she came out in the living room. Like she came and he heard a noise, so I "kicked him off like really fast, and then she saw him like, get off and then and like on the couch he jumped[, ] and then she saw him and she was like oh and she started yelling, yelling at him, and she told me not to, to make sure I don't tell my dad about this cause my dad would kill him.
Detective: Like what did she tell him?
R.K.: She was like are you crazy she's a little girl. Um I don't think of this, I wouldn't think you would do something like this. You're like, that's your little sister, as, as, I can't say, it's against our religion, especially you're underage and everything you know.
R.K.: [L]ike that, um I don't, I don't remember what he said to her, but I didn't tell my dad. Um I'm not allowed to tell my dad.
Detective: Uh hmmmm.
R.K.: An um after that he did it like sometimes like you know, like on and off. Like he'll would go once a week. I move now, I went to sleep in the room.
R.K.: Cause my mother knows he would try to, so she put me in my own room. But he would try to sneak in my room and try to do it.
Detective: The same way?
R.K.: No, he would like rub, touch, rub and get on top of me.
Detective: Rub what?
R.K.: Like he go like that.
Detective: You don't have to tell me exactly it's okay.
R.K.: He would go like this touch all here (rubbing both of her thighs) he would massage my feet.
Detective: Uh huh.
R.K.: [L]ike that the he would get on top and try to he would just stand there rubbing himself. I don't know if my sister knew but like as we got a little bit older we start talking a little bit and they was like yeah, yeah we notice that, we notice that, we knew that.
Detective: Did they saw [sic] what he did?
R.K.: I don't' know if they was watching when they was sleeping, when, when they were pretending to be sleeping I don't know. I don't know it, I don't know.
Detective: They didn't say that, what did they say exactly?
R.K.: Oh, they was like, oh. One of my sister, I remember texted my girl telling her that he did that to us too, I remember talking about it.
During that interview, R.K. never indicated that M.K. was aware of any incident between her and Sonny other than the one M.K. walked in on. R.K. never mentioned having any conversations with M.K. about Sonny either before or after that incident, but she was asked if she did.
R.K.'s only other discussion of information M.K. had about Sonny's conduct was in the context of talking about N.K. and Sonny. That portion of the interview follows:
Detective: What's your, what's your younger sister[']s name?
R.K.: [N.K.], and after.
Detective: What, How old is she?
R.K.: Thirteen, after he was on me like around ten he stopped, like I got older, and he then like, he like started with her, like he did it once or twice with her I don't know. He did it cause we was all in the living room.
R.K.: And my mom and everybody, and she was in the room and then he was in the room with her, and my mother was like all of us are in the room where's [N.K.] and my brother and then, she, she was like oh she's inside, and then, they, they, they're was in there for long and then my mom walked in on them and then she started yelling the same thing she said to me to him to me.
Detective: Where wa[s], what room were they in?
R.K.: [T]he girls room.
R.K.: And then.
Detective: So what you were all sleeping in one room?
R.K.: No we weren't sleeping, it was morning.
R.K.: [A]nd we all went to sleep in the living room.
Detective: Oh and your mother walk[ed in]?
Detective: Oh, okay.
R.K.: [A]nd she notice like she's miss, like she hasn't been in the living room and she, my sister was crying and we all figure ah he probably did that to her, and later on like years pas[sed] by and my sister um, like we were talking about it cause we were kind of close before and I was like oh you know he did this to me and she was like, like yeah he did the same thing to me too, I was like oh that day and she was like yeah, yeah, yeah he did the same thing on that day, that day.
Detective: Did she describe what happened?
Detective: Just that, okay?
R.K.: I don't, I don't think she was comfortable describing what happened, ah cause she was young she didn't know, yeah and then um like when I was eleven, ten eleven, he would like when we were in the room and I didn't know like we were doing it and but he's like lets play a game and there was a safe. Oh and he was like I switch the light try to open the safe with the lights close and see if it works, and I was like alright. I was an idiot thinking it was a game, so I try to open and he went down on me and it was over and I didn't know.
Detective: How did he do that like?
R.K.: Cause, I was sitting, we were sitting on the floor and he was sitting right here and he just pulled my pants down and started licking.
Detective: Oh okay.
R.K.: And I didn't know what it was, and I was just playing with the safe thinking it was nothing and now I'm older like now I just notice he did that to me. I didn't know what it was called, I didn't know what it was, a sexual thing.
Detective: Uh huh.
N.K. gave a very different account of Sonny's contact with her and her mother's observation of it.
Detective: An you said you have, what was your oldest brother name again?
Detective: [Sonny], now did [Sonny] ever touch you in a way you didn't like?
N.K.: Yeah, when I was like nine.
Detective: Nine, what did he do?
N.K.: Like every time I would sleep, he would like come on top of me.
Detective: Okay what would he do on top of you?
N.K.: I don't know, I, I don't know, every time he like he would come on top of me I would be sleeping. I wake up, I see my mom, I see him get off of me.
Detective: Okay, you don't know what, you would be sleeping and then?
N.K.: Yeah, cause sometime I would get scared, I sleep in the living room with my other sister. If they watch a movie and like fall asleep in the living room.
N.K.: So I sleep with them, and like one time when I turned around when I woke up and turned around I seen him get off me, like so many times.
Detective: Oh okay, but you don't know what happened?
N.K.: Uh uh (shaking head no).
Detective: Have you seen him do this to your other sisters?
Detective: You've seen him do it to [R.K.]?
N.K.: She told me, I didn't see it, she told me.
Detective: She told you?
N.K.: She told me, yeah.
Detective: Okay, when did she tell you this?
N.K.: Um, like when I was twelve, I think she told me.
Detective: And this was happening to you when, how old where you again?
N.K.: Nine, yeah.
Detective: Okay, what did, what did you she or what did she tell you?
N.K.: She just told me that ah one time she was, what's it call, she was opening the safe and cause he asked her to open the safe and he told her to shut the light, and that's all she told me.
Detective: Okay, but she didn't say what he did to her?
N.K.: [U]h uh (shaking head no).
Detective: Did she say any, anything he did to her sexually or anything like that?
N.K.: That's all she told me.
Detective: Okay, but she didn't describe anything that actually happened?
N.K.: [U]h uh (shaking head no), but she would, she would continue.
Detective: I'm sorry yeah, she woke up, you said sometimes you would w[a]ke up and you saw him getting off of her?
N.K.: Yeah, no off of me.
Detective: Just you?
Detective: But nothing with her?
N.K.: No I haven't seen.
N.K.: I was surprise[d] actually when she told me that.
N.K.: [U]h huh.
Detective: Have you ever seen him get off of your other sisters and brothers?
N.K.: No, they were old at that time, they were like, they were like, like sixteen and all that. Sixteen years old when this was happening to me. I was nine and they were much older than me and they would've figured.
N.K.: I didn't know what was going on. I swear I didn't know what was going on.
Detective: Okay, but you didn't feel his hands going anywhere on your, your body or anything like that?
N.K.: (shaking head no) No.
Detective: Okay, hold tight (gets up to leave room).
N.K.: (gets up to leave room).
Detective: No just sit for a second thank you.
N.K.: (sits back down) Okay.
Detective: (Exists the room at 13:09) (Enters the room at 14:33) Okay um I want to go back a little bit you said how many, how many times did you see your brother would ah.?
N.K.: Like get off of me.
Detective: How many times would you wake up and he would get off of you?
N.K.: That time was like three, three nights in a row.
N.K.: Yeah, and I was like scared to sleep like just in case so every time I would like we would go sleep in my room I would lock the door and that's.
Detective: Okay, so you're locking the door after the three times?
Detective: [A]nd it would happen, when did these three times happen?
Detective: Yeah, when?
N.K.: I can't remember.
Detective: Do you know where?
N.K.: On the living room and.
Detective: On the living room floor?
N.K.: Yeah, that's all.
Detective: Okay, you sleeping with your sister, did you have on pajamas?
N.K.: I had my clothes on when we were asleep like a shirt and a pants.
Detective: Okay, you had your clothes on, so when he was getting off of you.
N.K.: I was sleeping on my stomach.
Detective: You were sleeping on your stomach?
Detective: Alright, did he have clothes on?
Detective: Okay, and ah.
N.K.: I had a blanket on me.
Detective: You had a blanket on you?
N.K.: [U]h hmmm
Detective: Did he get underneath the blanket or did he get on top of you?
N.K.: I don't remember.
Detective: [Y]ou with the blanket do you remember?
Detective: Was the TV on or off?
Detective: Okay, and he was laying cro [sic], completely against you or was he like?
N.K.: I think on top of me.
N.K.: Like I was here and he was here (demonstrates).
Detective: Alright so you was flat on top?
Detective: [W]as he moving or anything or was he just?
Detective: Okay, how was he moving?
N.K.: I don't know like, up, I don't know like up and down, up and down I guess.
Detective: Up and down, like rubbing against you up and down?
N.K.: I guess, yeah.
Detective: Okay, um you said you never saw him do this to ah any of your other sisters?
Detective: [Questions and answers related to an alleged incident of domestic violence involving the parents omitted, which R.K. had told N.K. about and N.K. did not see].
Detective: (picks up the phone (Okay, Yeah, Okay, Okay, good alright) (hangs up the phone)) um sorry I have to take you back a lil then, you said our brother was on top of you?
N.K.: (shaking head yes).
Detective: [Y]ou said you w[ere] scared?
N.K.: (shaking head yes).
Detective: What, what w[ere] you scared of[, ] was he hurting you?
N.K.: (shaking head no).
Detective: When he did this or, why were you scared?
N.K.: Cause (Inaudible) cause he's like my brother that's like.
Detective: Did you realize what he was doing?
N.K.: I know.
Detective: [I]t was like rubbing, did you feel his penis on you or anything like that?
N.K.: (shaking head no) he had his pants I think.
N.K.: Cause when I turned around like I see him his pants is on.
N.K.: His clothes are on?
Detective: Okay, um you said the TV was off during all these?
Detective: Have you ever seen him watch any kind of odd movies or any pornography or anything like that?
N.K.: (shaking head no) He comes late from work.
N.K.: [A]nd by that time, we're a, like we're asleep at night.
Detective: Okay, so you we're asleep, so you never, never knew what was on the TV or anything like that?
Detective: An it was just those three times you started sleeping in your room?
Detective: Okay, you locked the doors?
Detective: [A]nd that was it, did you ever tell your mom?
N.K.: My mom knew about it.
Detective: Okay, and what did she,
N.K.: I think she caught him once, she caught him.
Detective: Okay she caught him once?
N.K.: (shaking head yes).
Detective: Not with you with somebody else?
N.K.: No it's with me.
Detective: With you?
N.K.: I think, I don't know if she knows about my sister, I don't know.
Detective: [U]h huh.
N.K.: I'm not sure.
Detective: She caught him with you, what happened when she caught him with you?
N.K.: I don't know, she started hitting him.
Detective: Uh huh.
N.K.: I don't know I started running, she be hitting him like she believes me I didn't do it.
Detective: What, go ahead, you said you told her when?
N.K.: No she caught him, I didn't tell her.
N.K.: She caught him I didn't tell her.
Detective: Did she catch him the one of three times you were in the living room?
Detective: Oh okay, what the last time I guess?
Detective: Did she catch him the last time, that third time?
N.K.: Probably, I don't know.
N.K.: One of those times.
Detective: One of the times?
Detective: Okay and, and she yelled at him? What did she say to him?
N.K.: Well she was like that's your sister how could you do that? That's a shame.
Detective: Okay and what did he say back?
N.K.: He didn't do anything.
Detective: Okay, alright, um, and then you said you never seen him, your father use a knife on anyone?
N.K.: My dad doesn't know about, he doesn't know about it like [Sonny] tried to touch me and my sister.
Detective: Oh he doesn't know anything.
N.K.: (shaking head no).
Detective: [Y]eah okay.
N.K.: My mom knows if she tells him, he will go crazy.
Detective: Okay, yeah, alright, okay we're done here unless you have any questions for me?
N.K.: Can we go see [R.K.]?
Both of the girls told the officers about other difficulties in their home. R.K.'s complaints largely focused on their father: his telling her he would make her drop out of school when she was sixteen and marry somebody; his hitting her when her grades fell; his disapproval of her having a girlfriend, which he manifested by punching her, forcefully smacking her in the forehead and hitting her face so hard that it was swollen and red; his lack of understanding that she, unlike her parents, who had immigrated to this country from Palestine after marrying, was "Americanized"; and his treatment of her mother — illustrated by an incident in which he threatened her with a knife — who was a good, "traditional" woman.
R.K.'s only complaints involving M.K. were M.K.'s concerns about protecting Mr. K., keeping the family together and worrying about what other people thought. R.K. said nothing indicating that she thought M.K. was protecting Sonny.
N.K.'s biggest complaint about her home life was her father's preferential treatment of the boys and his strictness with the girls. N.K. told the officers that R.K. left home because "she wanted to have freedom." She explained that their dad was "strict" and wouldn't let "her go out that much."
Sonny was about twenty-two years old when his sisters first alleged that he abused them, and the police interviewed him after speaking to his sisters. The record does not include a transcript of his interview, but reports indicate that he denied the allegations, agreed to take a polygraph and failed.
On April 8, the Division obtained a court order placing R.K. and N.K. in its custody and care and prohibiting Sonny from entering his parents' home. Shortly after their removal from their home, R.K. and N.K. were placed with the same foster family, where they both remained until the fact-finding hearing was concluded.
There is no question that the record includes adequate, competent evidence to support a finding that R.K.'s and N.K.'s emotional condition was impaired as a consequence of sexual abuse. Although there was no physical evidence corroborating such a determination, expert testimony and records of the Audrey Hepburn Children's House indicate that R.K. and N.K. had symptoms and emotional conditions typical of children who have been sexually abused.
Apart from the girls' out-of-court statements, there was no evidence tending to show what M.K. saw and did respecting Sonny's alleged conduct with his sisters. There was, however, evidence that tends to raise questions about the reliability and credibility of their out-of-court statements. Both girls recanted and retracted recantations on several occasions in addition to the recantations that preceded Sonny's trial. There was evidence that would permit an inference that the girls were subjected to pressure to recant and retract their recantations. Two of the girls' siblings testified at trial, and clearly indicated that they thought R.K. had fabricated her allegations against Sonny to escape the strictness of her parents' home and that N.K. was repeating those allegations at R.K.'s urging. Moreover, there is evidence, primarily consisting of things R.K. and N.K. told others and the witnesses' descriptions of their demeanor, that the girls felt that they were in a difficult position and that it was disturbing to them. Division caseworkers, members of the Audrey Hepburn House staff and the expert obtained by the law guardian believed that the recantations were the product of familial pressure. This pressure was exerted by M.K., who maintained contact with the girls, and indirectly by the siblings who "shunned" R.K. and warned R.K. that her brother-in-law was going to leave her sister if R.K.'s sexual orientation was disclosed in court.
Before turning to consider whether the children's testimony was necessary to the judge's determinations, it is important to explain how the judge came to bar that testimony. Prior to the fact-finding hearing, the law guardian for R.K. and N.K. moved to preclude their testimony. The Division did not support the motion, and defendants opposed it and urged the judge to consider taking their testimony in camera and subject to a protective order that the judge deemed appropriate.
Without question, the law guardian submitted a report prepared by Robert James Miller II, Ph.D., a licensed clinical psychologist, that provided some support for the judge's conclusion that the testimony would be harmful to them. Based on Dr. Miller's review of the records, his clinical interviews of the children and psychological testing, he recommended against compelling R.K. and N.K. to testify against their parents. In his opinion, it would exacerbate their "clinically significant anxiety symptoms" and "probably result in further psychological harm and potential acting out behavior." Dr. Miller further opined that "from the children's perspective, compelling them to testify will expose them to probable physical and certain psychological retaliation by the parents and extended family." He noted that R.K. said her mother had told her about her high blood pressure, having a heart attack and fainting during Sonny's trial, and wrote that, in his opinion, R.K. actually believed her mother would die if she testified and that it would be her fault.
Relying primarily upon Dr. Miller's statements reporting what R.K. and N.K. told him during their separate clinical interviews, the judge granted the law guardian's motion to bar the testimony and rejected defendants' proposal to take testimony or interview the children in camera and under a protective order. In the judge's view, testifying under any circumstance — in camera or in court and with or without a protective order as permitted by Rule 5:12-4(b) — would not be in the best interests of the children.
The judge concluded that there was no protective order that could prevent the additional damage that repeating the allegations, while knowing their parents would hear the testimony, would cause to these teenage girls. He described their predicament as follows: "If I go, and I tell the truth, my parents are going to hate me. My mother's going to have a heart attack and die. And if I go, and I tell a lie, I'm going to be in trouble. So, what do I do? And these are kids." Speaking rhetorically and recognizing that the children had already been damaged by testifying against their brother, the judge asked, "Do we have to keep damaging somebody or someone, these two kids, by bringing them in?" And, in responding to defense counsel's request to obtain an expert report on the issue, the judge said, "do you really need to be an expert to say that having a kid come in and talk about things that their parent did or didn't do is going to be somewhat damaging to them?"
Ultimately, the judge concluded that Rule 5:12-4(b), in authorizing the judge to exercise discretion in determining how a child's testimony should be taken, also provides discretion to "bar the testimony of a witness if the judge f[inds] that to be appropriate." Alternatively, the judge determined that he could exclude the testimony in this case because it was not "necessary for the determination of the matter." Ibid. In that regard, he observed:
I don't know what it's about. . . . This is not really about whether the brother sexually abused these two girls or not. The allegation is the girl told her mother that the brother did sexually abuse her, and it's mom's reaction to being told, not whether, in fact, it did happen or not.
The judge did not ignore the fact that barring the children's testimony would have an impact on his ability to assess the credibility of the children's out-of-court statements. But he concluded that this problem could be addressed by permitting witnesses to testify about the girls' recantations, as statements of parties to the proceedings.
It is not clear to us whether the judge would have been of the same view after all of the evidence was presented, but he was not asked to reconsider his pre-trial ruling barring their testimony and there is no indication that he contemplated reconsideration. It is worth noting that a judge clearly has discretion to reconsider pre-trial rulings on evidence when the evidence adduced at a trial or hearing warrants it.
At the conclusion of the Division's case and prior to the defense case, the children's newly appointed law guardian made representations about R.K.'s wishes that should have given the judge reason to question his concern about any damage R.K. would suffer if she repeated her allegations. R.K.'s law guardian explained that R.K. was firm in her opposition to returning to her home and to receiving counseling with her parents, and she advised the judge that the only assistance R.K. wanted was with a transition from her foster home to independent living on her upcoming eighteenth birthday, which was only about one month away. The law guardian described R.K. as a "very independent, strong-minded 17-year-old" who was "very aware of the consequences of not going back home, " including the risk that her mother might not speak to her again if she opted to live independently.
Likewise, the fact that the recordings of the girls' sworn statements were played during the hearing, in the presence of M.K., may have given the judge reason to reassess the likely harm to the children. The repetition the judge found harmful had occurred, albeit by recording rather than reiteration.
Undoubtedly, the judge had the discretion to reconsider his ruling barring the children's testimony, in light of the evidence presented at the hearing and the new disclosure about R.K.'s future plans. We should not be understood to suggest that the judge should have relied upon anyone's opinion about R.K.'s views — her recantations and retractions, her reasons for her future plans, or her concerns about testifying. We simply suggest that the developments disclosed at the fact-finding hearing gave additional reason for the judge to conclude that he could not make a "determination of the matter" without hearing from R.K. and N.K. himself. R. 5:12-4(b).
At the conclusion of the hearing, the trial court provided the following findings and reasons for concluding that M.K. "neglected" R.K. and N.K. by "fail[ing] to protect them despite knowing that [Sonny] sexually abused them."
I'm more than alarmed by the reaction of this family to the allegations of the girls. . . . It's the feeling in the room that you get. It's the – when you read the reports and what's going on in juvenile court and the pressure being put on everyone and even the two siblings, the teenage brother who comes in. No one believes the girls.
Again, that's okay. Not everyone has to believe someone else, but it seems that there was an immediate reaction when these girls indicated that something happened was a — I don't know how to describe it other than like a roar from the family like, no, this can't be true and we're going to close ranks around mom and dad and they must be liars. I'm very alarmed by that conduct.
. . [T]here are always cultural differences, and the parents perhaps come from the "old country, " and have some beliefs. The kids come here. They're either born here or they come here very young, and they mingle with kids from other cultures, and they watch TV, and they see what's going on, and the kids want a little freedom, and then — or their beliefs clash. Clearly, that was happening. That's not unusual in this culture or any culture when we have parents who, I guess, developed themselves in another country, and then have moved here and then there's a difference in culture. So, that's time in memoriam that that happens, culture after culture. So, I'm taking that into account, but that's not a defense.
But I am alarmed that the [fero]city of the reaction of this family . . . . No one believed them, and the pressure put upon them from the beginning to recant is unbelievable. I've never seen a case that there's been so much pressure put on two young people or anyone to recant. And it's continuing in the hallways of the courthouse, apparently, on the second floor when the girls have to go in and testify against their brother in juvenile court as to him sexually touching them. So, I cannot make a finding against [Mr. K.] because the physical abuse is not corroborated at all. I have, at best, consistent statements.
Now, in regard to mom, it's a close call, but there is — there are — there's very different evidence in regard to mom. I have the testimony of two separate girls, [N.K.] and [R.K.], that mom saw their then juvenile, now adult brother on top of them. And let's be honest with each other, okay, being on top of them, in and of itself — I guess, you know, kids wrestle around on the floor. Nobody was wrestling around on the floor in this case. Okay. This was — these were not a couple of kids wrestling, you know, playing ball on the floor and wrestling around. People knew what were — what was going on with someone on top of the other one. We know that because both girls said that mom yelled and said, get off of her, what are you doing[?] Something to that effect.
Now, I'll take into account [defense counsel's] argument, what is a parent to do[?] I can understand that argument. You know, parent — I guess that's one of the last things you want to hear in life, my one child is sexually abusing my other child. What more alarming or troubling thing could a parent hear or see? And what — so, I try never to criticize the reactions of a parent when you learn something like that happens. However, you do something. Do you call the police? I don't know. Maybe you don't have to call the police, but [defense counsel's] right, every time that, you know, somebody slaps the kid in the back of the head, do you call the police? I don't think that we're at that point in life where you call the police for everything, but perhaps, you do something.
It happens once, it happens twice. It happens to another girl. You see it, allegedly, because we're going to have to come to some corroboration. Mom does nothing other than say, don't do that and don't say anything because your father . . . will really be mad at your brother if he finds out this is going on. That's not a very good reaction, but we need corroboration.
Is there corroboration? I'm going to find yes in regard to mom. There is corroboration because it's not just consistency of statements, although — I can never remember the name of the cases, but there is a case where two children indicated that they each were being sexually abused, and they both said the same thing was happening. The court found that to be corroboration. That's happening in this case. So, that's one indicia of corroboration. Number two indicia of corroboration is, I believe, the second time it occurred to [N.K.] as opposed to [R.K.], [R.K.] is outside and hears mom — I don't have the words — screaming at the brother and [R.K.] — and [N.K.] screaming and a commotion going on. That's somewhat corroboration. Now, I don't know that that in and of itself wouldn't be enough because I don't know what's going on.
But what is more corroborative are the reports from Audrey Hepburn's Children's House . . . . They do substantiate sexual abuse of both girls, and they do it based on the consistency of the statements, if it was that alone. . . . I probably would not be making a finding, but it is based upon more.
. . Dr. D'Urso talked about — and I already mentioned this — the substantiation regarding sexual abuse is based upon the behavioral and emotional difficulties of both girls which [are] abuse. . . . And . . . sexual abuse is clinically supported by Audrey Hepburn's Children's House in regard to [N.K.] . . . . Okay.
. . . So, based upon the testimony of Dr. D'Urso, the findings of adjustment disorder, behavioral issues, anxiety, I'm going to find that the sexual abuse was substantiated. I believe that mom walked in on it and/or knew about it. I have two children telling me that.
. . . But there is corroboration for the sexual abuse, and I do, in fact, believe that mom walked in on and said, don't tell your father.
That is certainly — what is it — [defense counsel] asked a question, what is a mother to do? I don't know, but I do know this, that's not what a mother is to do when — you know, that's going on to say, don't tell your father.
That doesn't mean you have to call the police. You know, there are therapists out there. There are ways to deal with things short of calling the police, but there is corroboration, and I am going to make a finding against [M.K.] for failure to protect the children under N.J.S.A. 9:6-8.21(c)(4)(b).
We note that the Division does not argue, and the judge did not find, that a prima facie case of neglect was established because the "injuries sustained by" or "the condition" of R.K. and N.K. was "of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent . . . ." N.J.S.A. 9:6-8.46a(2).
The passages from the judge's decision quoted above leave no room to doubt that he found neglect by M.K. based on the out-of-court sworn and recorded statements that R.K. and N.K. gave to the officers from the SVU. The judge said he was relying on "the testimony of two separate girls, " and the girls' recorded statements are the only evidence that bears any resemblance to testimony from the girls. Given the judge's order barring their testimony, they did not testify in this proceeding, and, as previously noted, the judge did not have their testimony from the juvenile proceeding involving their brother.
However helpful the opportunity to observe R.K. and N.K. responding to questions posed by the SVU investigators during their separate sworn and recorded interviews may have been to the judge, those recorded statements are not the equivalent of testimony. Where a witness in a civil proceeding is unavailable, as R.K. and N.K. were because of the order barring their testimony, the witness' prior sworn testimony is admissible, as the equivalent of testimony in the proceeding, only if the party against whom it is offered had an "opportunity" and "similar motive" to develop the testimony "by examination or cross-examination" in the first instance. N.J.R.E. 804(b)(1)(A). Quite obviously, those conditions were not met here.
The foregoing observation about the difference between these recorded statements is not made to suggest that these previous statements of the children were inadmissible. They were admissible as a "previous statement made by [a] child relating to any allegation of abuse or neglect." N.J.S.A. 9:6-8.46a(4). The point is that M.K.'s objection to the resolution of this case without testimony cannot be resolved on the ground that the sworn and recorded statements were testimony.
The most important question is whether R.K.'s and N.K.'s testimony was "necessary" to a "determination of the matter." In pertinent part, Rule 5:12-4(b) provides:
In the child's best interests, the court may order that a child not be present at a hearing or trial unless the child's testimony is necessary for the determination of the matter. The testimony of a child may, in the court's discretion, be taken privately in chambers or under such protective orders as the court may provide.
This Rule cannot, in our view, be understood to authorize preclusion of testimony that "is necessary for the determination of the matter." As a matter of common sense and plain meaning, testimony is necessary for a determination of a neglect charge if it is essential to provide adequate, competent and reliable evidence of the allegation. In short, the Rule cannot be understood to authorize exclusion of necessary testimony.
The statute addressing evidence in an abuse and neglect hearing, N.J.S.A. 9:6-8.46, provides some guidance in determining whether testimony is necessary to resolution of the matter. Every "determination that the child is an abused or neglected child must be based on a preponderance of the evidence . . . ." N.J.S.A. 9:6-8.46b(1). And "only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46b(2).
The provisions of N.J.S.A. 9:6-8.46 must be considered together. While out-of-court statements made by a child who is alleged to be abused or neglected relating to any allegation of abuse or neglect are admissible, N.J.S.A. 9:6-8.46a(4), that is not the case if the child lacked the personal knowledge necessary to give "competent" testimony, because incompetent evidence must be excluded. N.J.S.A. 9:6-8.46b(2); N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J.Super. 155, 167 (App. Div. 2003) (so holding).
Applying that principle here, R.K.'s statement about what she figured had happened between Sonny and N.K., and her statement that N.K. told R.K. that Sonny had done to N.K. what he did to R.K., were inadmissible. R.K. acknowledged that she did not see what happened to N.K. Similarly, N.K. acknowledged that she did not know anything about what Sonny did to R.K. until R.K. told her; indeed, N.K. said she was surprised when R.K. told her about it. The girls' statements simply purporting to repeat what the other said could not be considered because neither had the personal knowledge of the facts asserted by the other.
The same is true with respect to both girls' statements about what M.K. saw. The girls could, if they were in a position to say what was going on while their mother was in the same room, relate that information, but their testimony about what their mother saw was not competent. This court has previously recognized that testimony is necessary when the "details" pertinent to an out-of-court statement are not clear. N.J. Div. of Youth & Family Servs. v. H.B., 375 N.J.Super. 148, 183 (App. Div. 2005); see L.A., supra, 357 N.J.Super. at 168-69 (discussing the need for testimony and noting that it would permit the child to provide information about the events on the critical date). Given the lack of detail provided in the girls' statements about what was going on during the two separate occasions, when their mother found them with Sonny, their testimony in the hearing was necessary to sustain a finding of neglect. Similarly, the question of whether testimony is "necessary" within the meaning of Rule 5:12-4(b) must be considered in light of the fact that no statement of the child made outside the hearing "shall be sufficient to make a finding of abuse or neglect" if not corroborated. N.J.S.A. 9:6-8.46a(4). Thus, when an out-of-court statement is excluded for lack of corroboration, unless the facts asserted are established by other competent and relevant evidence, testimony is necessary. L.A., supra, 357 N.J.Super. at 169.
Finally, where the credibility of a child's out-of-court statement is critical and is a matter in genuine dispute, testimony is necessary to resolve that question. H.B., supra, 375 N.J.Super. at 183-84. Obviously, a statement that is not credible or reliable has no tendency to prove anything and cannot lend any support for a finding of abuse or neglect. That is why testimony, whether in court or in camera, is important where there is a genuine question about credibility. As this court has explained:
Although trial judges have broad discretion in the way they conduct abuse and neglect cases, a judge's factual findings must be based on competent reliable evidence. Thus, when resolution of a material factual dispute depends upon a child witness's testimony, the in camera interview "affords the trier of fact the opportunity to assess the credibility of the child, their powers of communication and observation, and their demeanor."
[Ibid. (quoting L.A., supra, 357 N.J.Super. at 168).]
Of course, the question of whether testimony is necessary must be assessed in light of what the Division must prove. To establish neglect based on M.K.'s failure to protect R.K. and N.K. from sexual abuse by Sonny, the Division had to prove that M.K. failed to exercise "a minimum degree of care" in providing "proper supervision" by "unreasonably" allowing infliction of harm. N.J.S.A. 9:6-8.21c(4)b. To meet that burden, the Division had to prove that M.K. was "aware of the dangers inherent" in the conduct she observed and that the steps she took to protect R.K. and N.K. were inadequate. G.S. v. Div. of Youth & Family Servs., 157 N.J. 161, 181 (1999).
It was not enough for the Division to show simple or ordinary negligence. The Division had to show that "[u]nder all of the circumstances known to" M.K., her failure to act was more than negligent and rose "to the level of gross negligence or recklessness." Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 310 (2011). And, to find gross negligence, the judge had to evaluate the parents' conduct in context based on the risks posed by the situation. Id. at 309.
The judge observed that the question of M.K.'s neglect was close. We could not agree more. We do not underestimate the difficulties the judge had to confront in resolving the numerous factual and legal questions raised by the complexity of the evident problems facing this family. It is also clear, however, that the girls' reasons for wanting to leave their parents' home in April 2011 were not based on their concern about a continuing threat of sexual abuse from their brother.
In addition to questions of credibility presented, R.K. and N.K. gave very cursory accounts of what was going on when their mother entered the room. The judge concluded that it was evident it was not wrestling that was going on, and he drew that inference from what each girl said their mother said.
The problem is that both of the girls' descriptions of what was going on when M.K. entered the room and the significance of what she said are quite vague. Was it dark, did the position of the couch and the entryway to the living room permit observation of the floor, was either child — or both — disrobed or partially disrobed, was their mother one of those mothers who prohibit "roughhousing" or "horseplay" in the living room at all times?
The children's descriptions of what M.K. did in response are also vague. Both girls said enough to permit the inference that M.K. told the girls not to tell their father, but both of them also said enough to permit an inference that M.K. took action beyond just scolding Sonny — making the girls sleep in the bedroom with their sisters thereafter; and, in N.K.'s case, hitting Sonny as well as yelling at him.
The inference that what M.K. did was enough is clearly suggested by N.K.'s statement that Sonny bothered her only three times and that the last time was "probably" the time when M.K. caught him. Neither R.K. nor N.K. said whether they discussed the matter of Sonny abusing them with their mother again, and neither of them said that yelling at Sonny was the only thing M.K. did. Significantly, neither was asked questions that would elicit that information.
The foregoing concerns raised by the judge's reliance on the girls' sworn and recorded statements bring us back to where we started — the significant difference between prior testimony that may substitute for testimony in a proceeding and the sworn statements these teenagers gave in response to questions posed by the prosecutor's investigators. Neither the Division nor M.K. had the opportunity to develop a record by questioning the girls, and neither invited the judge to bar their testimony. The law guardian urged the judge to take that course before the hearing commenced. In our view, the error cannot be viewed as invited.
Because of the order barring the testimony of R.K. and N.K., the judge was left with an inadequate record. And the judge was left without any opportunity to "assess the credibility" or "demeanor" of the children while they responded to questions about their mother's failure to protect them.
For all of the foregoing reasons, the testimony of R.K. and N.K., whether in camera on questions submitted or in court with direct and cross-examination, was as necessary here as it was in L.A. and in H.B. Accordingly, we vacate the order and remand for further proceedings. Jurisdiction is not retained.