Opinion
DOCKET NO. A-3743-10T2 DOCKET NO. A-3870-10T2
05-23-2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. A.H. and Z.G., Defendants-Appellants. IN THE MATTER OF A.R. and A.H., minors.
Catherine F. Reid, Designated Counsel, argued the cause for appellant A.H. as to A-3743-10T2 (Joseph E. Krakora, Public Defender, attorney; Ms. Reid, on the brief). Michael S. Harwin, Designated Counsel, argued the cause for appellant Z.G. as to A-3870-10T2 (Joseph E. Krakora, Public Defender, attorney; Mr. Harwin, on the brief). Joyce C. Booth, Deputy Attorney General, argued the cause for respondent Division of Youth and Family Services (Jeffrey S. Chiesa, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Booth, on the brief). Noel C. Devlin, Assistant Deputy Public Defender, argued the cause for minors, A.R. and A.H. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Christopher A. Huling, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Baxter and Nugent.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-202-10.
Catherine F. Reid, Designated Counsel, argued the cause for appellant A.H. as to A-3743-10T2 (Joseph E. Krakora, Public Defender, attorney; Ms. Reid, on the brief).
Michael S. Harwin, Designated Counsel, argued the cause for appellant Z.G. as to A-3870-10T2 (Joseph E. Krakora, Public Defender, attorney; Mr. Harwin, on the brief).
Joyce C. Booth, Deputy Attorney General, argued the cause for respondent Division of Youth and Family Services (Jeffrey S. Chiesa, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Booth, on the brief).
Noel C. Devlin, Assistant Deputy Public Defender, argued the cause for minors, A.R. and A.H. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Christopher A. Huling, Designated Counsel, on the brief). PER CURIAM
In these consolidated appeals, a mother, Z.G., and a stepfather, A.H., appeal from a judge's July 12, 2010 finding that A.H. sexually abused his thirteen year old stepdaughter, A.R. (Ann), and that the child's mother, Z.G., who knew about the sexual abuse, left her daughter alone with A.H. for a period of two weeks, thereby exposing the child to the risk of further sexual abuse by A.H. We reverse the finding that A.H. abused or neglected A.R., see N.J.S.A. 9:6-8.21(c), because we conclude that the Division of Youth and Family Services (the Division or DYFS) failed to satisfy the requirement of N.J.S.A. 9:6-8.46 that DYFS corroborate a child's out-of-court statements relating to any allegations of abuse or neglect. The finding of abuse and neglect against the mother was dependent upon the proofs against A.H., in that she was found to have abused and neglected her daughter only by failing to protect the child from further abuse by A.H. In light of our determination that the charges against the stepfather must be vacated, it follows that the findings of abuse and neglect against the mother must also fail. We reverse the findings of abuse and neglect as to both parents. In light of that determination, we need not address the other issues presented.
The name Ann is fictitious.
I.
On November 20, 2009, the Division was notified by Ann's school that she reported to a teacher that her stepfather, A.H., had been sexually abusing her for several years. A DYFS caseworker, Julia Borras, immediately interviewed Ann at the school. Ann reported that her stepfather had sexually molested her on two occasions. The first incident occurred approximately two years earlier, when Z.G. was in El Salvador, and the second incident occurred in the early part of November 2009, when Z.G. went to Las Vegas for two weeks to visit her own mother, leaving Ann home alone with her stepfather and younger brother, A.H.
Although Ann's half-brother, A.H., who is the child of both defendants, was originally part of the litigation, he was returned to defendants' care, and, as a result, he was dismissed from the litigation.
Borras did not, however, take a formal statement from Ann because DYFS protocol required DYFS caseworkers to arrange for the alleged victim and the suspect or suspects to be interviewed by law enforcement and the DYFS caseworker jointly. In keeping with that protocol, Borras notified Z.G. that she, Borras, would be transporting Z.G. to the Hudson County Prosecutor's Office for an interview. During the ride to the Prosecutor's Office, Borras did not discuss with Z.G. any of the details of Ann's allegations.
In a videotaped interview, which Borras observed from an adjacent room, Ann told Detective Jessica Cruz that her stepfather sexually molested her on two occasions. As she had reported to Borras, Ann told the detective that the first occasion was approximately two years earlier, when her mother went to El Salvador due to a death in the family and left Ann in her stepfather's care. According to Ann, her stepfather touched her breast and vagina with his hands on the first occasion. In December 2008, Ann told her mother what had happened.
Z.G. later informed Ann that when she confronted A.H., he "promised . . . that he wouldn't do it again." Ann reported that her mother became very depressed and sad after Ann's disclosure. Ann also recalled a heated argument between her mother and stepfather, during which the police were called. That argument occurred shortly after Ann disclosed to her mother in December 2008 that her stepfather had sexually abused her.
During the videotaped interview, Ann described the second incident, which occurred during her mother's November 2009 trip to Las Vegas. When asked to describe the November 2009 incident, Ann stated that her stepfather ordered her into a bedroom, and told her to lie on the bed, after which he removed some of her clothing. A.H. then began touching her breast and vagina, and proceeded to put his penis on top of her vagina. At that time, she saw "something come out of his penis." Her stepfather ordered her to take a shower and threatened to kill her if she told anyone what had happened.
Ann told Detective Cruz that she did not inform her mother about the November 2009 incident because her mother became depressed as a result of Ann's earlier discovery of sexual abuse in December 2008, and Ann did not want her mother to become depressed again. However, it had "been violating her mind and she wanted to get it off her chest," so she told three of her girlfriends, who encouraged her to tell a teacher. Ann followed her friends' advice.
After Detective Cruz completed her interview of Ann, Detective William Caicedo interviewed Z.G. Initially, Z.G. denied having "domestic problems" with her husband, A.H. When the detective confronted her about an incident a few months earlier, when police were called to her home, she stated "[m]aybe months or a year ago," she and A.H. had been involved in a heated argument over A.H.'s claim that she had not been washing his clothes properly. According to Z.G., the argument escalated when she raised her voice at A.H., which infuriated him, prompting Ann to call the police.
When Detective Caicedo confronted Z.G. about Ann's allegations of sexual abuse by A.H., Z.G. admitted she had "lied" at the beginning of the interview. She proceeded to admit that Ann told her that A.H. "touch[ed] her" when Z.G. was in El Salvador. Z.G. admitted that even though she was aware that her husband had sexually molested her daughter, she nonetheless left her daughter in A.H.'s care when she went to Las Vegas. She explained that when she confronted her husband about molesting Ann, he initially denied it, but a few days later, after she continued to confront him, A.H. finally admitted what he had done. According to Z.G., A.H. told her "Yes, but only one time." He then begged Z.G. for forgiveness.
Z.G. explained to the detective that she knew she had "made a very big mistake" and "that sooner or later, [Ann] was going to speak up." She recognized the consequences of her failure to protect her daughter from A.H., stating "I know that I made a mistake and I have committed a big sin, a very big one in covering [it] up. . . . There's nothing I can say. I have to pay."
At the conclusion of Z.G.'s interview, the police arrested her for endangering the welfare of her child by failing to protect her from further sexual abuse.
Detective Caicedo then proceeded to interview A.H., starting the interview by reading A.H. his Miranda warnings and placing him under oath. During the interview, A.H. acknowledged the heated argument with Z.G. when police were called. He also acknowledged that Z.G. had left Ann in his care when she went to Las Vegas, but he denied that he sexually abused Ann. He asserted that the child was a liar. At that point, A.H. terminated the interview and requested a lawyer.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Despite A.H.'s denials, the detectives arrested him for sexually abusing Ann based upon Ann's videotaped statement and Z.G.'s report that A.H. confessed to her that he had sexually abused Ann "once."
The Division immediately filed a verified complaint seeking custody, care and supervision of Ann and her half-brother, A.H., and effected an emergency removal of the children from Z.G. and A.H. Ann was placed in the custody of her biological father, M.R., and A.H. was placed in foster care.
During the January 12, 2010 hearing on the order to show cause, Ann recanted, via her Law Guardian, her earlier allegations of sexual abuse against A.H. DYFS proceeded with its abuse and neglect case against defendants nonetheless.
Shortly after Ann recanted, the Hudson County Prosecutor's Office dismissed the indictments against Z.G. and A.H.
Before the factfinding hearing began on May 5, 2010, A.H. moved pursuant to Rule 1:12-1 for the trial judge to recuse herself due to her prior membership on the Board of Governors of the Hackensack University Medical Center (HUMC), the hospital associated with the Audrey Hepburn Children's House (AHCH), which had conducted medical and psychosocial evaluations of Ann. A.H.'s recusal motion was also predicated upon comments the judge allegedly made in chambers which -- according to the certification provided by the attorney representing A.H. -- consisted of the judge's comment "your client [A.H.] is no good." A.H. maintained that at a later point in the same in-chambers conference -- and before hearing any testimony on the subject of Ann's recantation -- the judge commented that she would give Ann's recantation no weight.
Finally, A.H. asserted that in the same conference, the judge commented that she believed the AHCH always "wants to do what is best." According to A.H., the judge had resigned from the Board of the Hackensack University Medical Center in July 2009, less than a year earlier, at the time she was appointed to the bench. A.H. maintained that the judge's connection to the hospital and to AHCH was "not remote enough to be disregarded." In sum, A.H. argued that the combination of the judge's biased remarks during the in-chambers conference and the judge's recent affiliation with Hackensack University Hospital and AHCH required her disqualification.
At the May 5, 2010 factfinding hearing, the judge noted that she did not have a precise recollection of the comments she made during the in-chambers conference, yet she did not provide a different account of what had occurred. Notably, neither the Law Guardian, nor the Deputy Attorney General representing DYFS, who were both present at the time the judge allegedly made the comments, disagreed with the certification provided by A.H.'s lawyer. The judge denied A.H.'s recusal motion, reasoning:
Audrey Hepburn Children's House is a small division of [HUMC]. I served on the [B]oard of [G]overnors of the HUMC from 1998 until I tendered my resignation in July 2009 prior to my taking the bench. I served on a variety of committees and attended four board meetings a year, and several committee meetings throughout the year. I had no
pecuniary interest in the hospital. I was not compensated for my service. I had no involvement with the Audrey Hepburn Children's House; with the exception of hearing approximately four reports at board meetings of its establishment and development.
Furthermore, I do not know any of the professionals who work at the Audrey Hepburn Children's House. Defense counsel makes much of the fact that I wanted to hear testimony from Dr. [D'Urso] . . . . I do not know Dr. [D'Urso]. I suggested that particular psychologist because he's one of two psychologists who signed a report and he had lectured at the [J]udicial [C]ollege this past November.
HUMC is the largest private employer in Bergen County and a major medical facility serving the medical needs of a populous region. It touches the lives of just about everyone in that county and the surrounding areas within the region, in one way or another. I agree with the Attorney General that general life experiences which might give a judge insight into a controversy is not tantamount to bias and a reason for recusal. The connection is just too remote to justify a recusal.
. . . .
[M]y prior affiliation with the Hackensack University Medical Center [does not] affect my judgement in assessing the evidence and making decisions.
The factfinding hearing consumed three non-consecutive days between May 5 and June 3, 2010. DYFS presented the testimony of its caseworker, Borras, and Joanne Glaeser, a clinical social worker who provided testimony about the Child Sexual Abuse Accommodation Syndrome (CSAAS). DYFS also presented the videotape of Ann's interview with Detective Cruz. Z.G. presented the testimony of Ann's father, M.R., and Ann's twenty-four year old sister, V.R., both of whom described Ann's recantation. V.R. testified that Ann resented the structure and discipline that her stepfather, A.H., imposed on her during the time period before Ann made the accusation of sexual abuse. For his part, A.H. presented the testimony of the private investigator who recorded Ann's recantation. Neither Z.G., A.H. nor Ann testified.
Although she is identified in the transcript as Joanne "Blazer," her name is actually Joanne Glaeser.
At the conclusion of the factfinding hearing, the judge rendered a written decision, concluding that DYFS satisfied its burden of proving by a preponderance of the evidence that A.H. and Z.G. abused and neglected Ann. The judge stated:
I find that there is substantial credible evidence in the record to demonstrate that [Ann's] original allegations of sexual abuse were corroborated by the admissions of [d]efendant [Z.G.] including the consistent statements of [Ann] and [Z.G.] that [Ann] told her mother of the abuse and that [A.H.] admitted the abuse to [Z.G.]. There is substantial credible evidence in the record
to show that [Z.G.], in an attempt to protect her husband and son, failed to protect [Ann]. By virtue of her recantation, [Ann] was trying to protect her mother. Additionally, I find that based upon the documentary and testimonial evidence presented by the professionals at AHCH, there is substantial credible evidence in the record to demonstrate that sexual abuse has been clinically substantiated and that [Ann]'s behavior in recanting her November 20, 2009 statement was consistent with the behavior of a child exhibiting the traits of child sexual abuse accommodation syndrome. Based upon the detailed nature and the consistency of [Ann]'s statement, the corroborating statements made by [Z.G.], and the corroborating reports and testimony of the professionals of the AHCH, I find that the Division has shown by a preponderance of the evidence that defendant [A.H.] sexually abused [Ann] and defendant [Z.G.] knew of the abuse but failed to take the appropriate action to protect [Ann] thereby subjecting her to harm.
In her written decision, the judge specifically addressed the statutory requirement that DYFS corroborate the out-of-court statement of a child victim, concluding that DYFS presented four forms of corroboration: 1) Ann's "detailed" statement to Detective Cruz, which was not only internally consistent, but was also consistent with the statement Ann had earlier provided to caseworker Borras; 2) Z.G.'s statement, in which Z.G. repeated Ann's disclosure that A.H. had sexually molested her; 3) Z.G.'s statement that when she confronted A.H., he admitted that he had touched Ann's body once and promised not to do so again; and 4) the reports and testimony of AHCH personnel. The judge issued a confirming order on July 12, 2010, finding that Z.G. and A.H. engaged in conduct constituting abuse and neglect.
On the same day, the judge issued a dispositional order permitting defendant A.H. to move back into the home with Z.G. and his son A.H., provided that "there is no contact between [A.H.] and [Ann] at [Z.G.]'s home, including phone contact, letter communication and/or visits." The litigation was terminated on February 16, 2011, as a result of the judge's finding that "the children have been returned home [and] conditions have been remediated." By "home," in relation to Ann, the judge meant that Ann continued to live with her father M.R. Ann remains in the custody of M.R., and A.H. continues to reside with defendants.
On appeal, A.H. raises the following claims: 1) Ann's allegations of abuse against A.H. were not corroborated as required by N.J.S.A. 9:6-8.46(a)(4) and "therefore cannot form the basis of a finding of abuse and neglect against him"; 2) the judge erred by failing to consider evidence that would have undermined her factual finding that Ann's original statements to DYFS and the police were true; 3) the record was insufficient to support a finding of abuse based upon a preponderance of the competent, material and relevant evidence; 4) the judge's refusal to recuse herself constitutes reversible error; and 5) the rights of Ann, Z.G. and A.H. "were prejudiced by the Law Guardian's failure to advocate [Ann's] position to the court."
For her part, Z.G. presents the following claims for our consideration: 1) "the trial judge should have disqualified herself pursuant to Rule 1:12-1(d) because she made several witness credibility findings before the fact-finding hearing began"; 2) the trial judge should have disqualified herself pursuant to Rule 1:12-1(f) "because she was a board member of Hackensack University Medical Center"; and 3) Z.G.'s statement to the Prosecutor's Office must be suppressed because DYFS caseworker Borras "acted on behalf of the [P]rosecutor's [O]ffice to obtain a statement used by the trial court to substantiate an abuse and neglect finding."
DYFS and the Law Guardian urge us to affirm the judge's finding of abuse and neglect as to both Z.G. and A.H.
II.
Due to the fact-sensitive nature of family cases in general and parental rights cases in particular, the scope of our review of the findings of fact made by a trial judge is limited. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010). So long as the trial judge's findings of fact are supported by substantial and credible evidence, those factual findings are binding upon us. Ibid. In contrast, we owe no deference to the judge's conclusions of law, which we review de novo. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010).
In a Title Nine case, the court must decide at the fact-finding hearing the crucial issue of "whether the child is an abused or neglected child[.]" N.J.S.A. 9:6-8.44. The Division "must prove that the child is 'abused or neglected' by a preponderance of the evidence, and only through the admission of 'competent, material and relevant evidence.'" N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011) (quoting N.J.S.A. 9:6-8.46(b)). Title Nine defines an "abused or neglected child" as
a child whose 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, as herein defined, to exercise a minimum degree of care . . . 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).]
In a Title Nine fact-finding hearing, a determination of abuse or neglect "must be based on a preponderance of the evidence" and "only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(b). Moreover, "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." N.J.S.A. 9:6-8.46(a)(4). We have described the most reliable types of corroboration as follows:
The most effective types of corroborative evidence may be eyewitness testimony, a confession, an admission or medical or scientific evidence. However, corroborative evidence need not relate directly to the accused. By its nature, corroborative evidence "need only provide support for the out-of-court statements."
[N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 166 (App. Div. 2003) (quoting N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 436 (App. Div. 2002)).]
"In most cases of child sexual abuse, there is no direct physical or testimonial evidence." Z.P.R., supra, 351 N.J. Super. at 436 (citation omitted). As a result, "in order to give any real effect to the child victim hearsay statute, the corroboration requirement must reasonably be held to include indirect evidence of abuse." Ibid. (citation omitted). In Z.P.R., we observed that age-inappropriate sexual knowledge could provide the necessary corroboration. Ibid.
A.H. argues that the finding of abuse and neglect as to him must be reversed because the evidence provided by DYFS did not satisfy the corroboration requirement of N.J.S.A. 9:6-8.46(a)(4). As we have noted, the first form of corroboration upon which the judge relied were Ann's statements to Detective Cruz and Borras, which the judge described as "detailed" and "consistent." We agree with A.H. that even if the repeated statements -- to Borras and to Detective Cruz -- could be considered corroborative, the child's various statements "could hardly be described as consistent[,]" but were instead "notably inconsistent." In particular, Ann told Detective Cruz in her videotaped statement that A.H. touched her breasts and the "top" of her vagina, without any digital penetration. She also described one incident in which A.H. laid down on top of her and placed his penis on the outside of her vagina. She quite clearly stated several times that he did not penetrate her vagina, adding that the penile contact occurred only once, when her mother was in Las Vegas.
In contrast, Ann reported to a physician at AHCH "penile-vaginal contact on more than one occasion," "penile-oral contact" and "penile-anal contact on more than one occasion." Unquestionably, these statements are markedly inconsistent with Ann's statements to Borras and Detective Cruz.
Moreover, Ann's original accusation, made to Detective Cruz and caseworker Borras, stands in stark contrast to her later recantation, made to A.H.'s investigator as well as to her Law Guardian. We reject the judge's finding that Ann's statements were "consistent," and that such "consistent" statements served as corroboration.
Relying on Z.P.R., supra, 351 N.J. Super. at 436, DYFS urges us to consider Ann's age-inappropriate sexual knowledge as corroborative. The Division asserts that Ann, who is generally described as naïve, would not have known about "something coming out of [A.H.'s] penis" -- presumably semen -- unless Ann had been the victim of child sexual abuse. However, the record also contains Ann's statement, repeated by her Law Guardian, that Ann learned about sex from a movie entitled "Towelhead," which involves a thirteen year-old girl having sex with an adult male. Ann's statement that she learned about sex from "Towelhead" was offered to support Ann's recantation, namely, to demonstrate that she learned about sex from a movie, and not from having been sexually abused by A.H. But Ann's reference to "Towelhead" also serves to negate the inference that might otherwise be valid pursuant to Z.P.R., ibid., that Ann's precocious knowledge of sexual activity results from having been sexually abused. In light of Ann's statement that she learned about sexual matters from a movie, we reject the judge's conclusion that the "detail[]" contained in Ann's statements was corroborative.
"Towelhead" is a 2007 film written and directed by Alan Ball based on Alicia Erian's novel of the same name. The film had its United States debut on September 26, 2008.
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The second form of corroboration to which the judge pointed was Z.G.'s out-of-court statement made to Detective Caicedo, in which Z.G. repeated Ann's accusations against A.H. We reject the judge's conclusion that Z.G.'s repetition of her daughter's accusation constituted corroboration. First, Z.G.'s out-of-court statement made to Detective Caicedo, in which Z.G. repeated Ann's accusation, constituted inadmissible hearsay, see N.J.R.E. 801(c), to which no hearsay exception applied. Second, and equally important, even if Z.G.'s out-of-court statement about what her daughter allegedly told her was admissible, it would not constitute corroboration as it was not independently corroborative, but instead constituted nothing more than a restatement of the original accusation.
Additionally, we reject the judge's conclusion that the hearsay rules were inapplicable because Z.G.'s statement to Detective Caicedo was not, according to the judge, being offered for the truth of the matter asserted, but instead as circumstantial evidence lending credence to Ann's initial accusations. The judge's reasoning is flawed. For the corroboration requirement to be satisfied, the corroborative statement must be truthful. A hearsay statement is inadmissible under N.J.R.E. 801(c) when the statement is "offered in evidence to prove the truth of the matter asserted." For that reason, we reject the judge's conclusion that Z.G.'s repetition of her daughter's accusations did not constitute hearsay.
Along the same lines, we reject the judge's conclusion that the police being called to the home in response to the heated argument between Z.G. and A.H. also constituted corroboration. As A.H. correctly argues, there is no independent proof of why the police were called to the home. For that reason, we do not accept the judge's determination that the argument between Z.G. and A.H. necessarily involved Ann's accusation that A.H. had sexually abused her. For all of these reasons, we reject the judge's conclusion that Z.G.'s repetition of Ann's accusation constituted corroboration.
The third form of corroboration upon which the judge relied was Z.G.'s out-of-court statement that A.H. admitted to her that he once sexually molested Ann. The trial court admitted this hearsay statement, "insofar as [it] . . . show[s] consistency between the statements of [Ann] and [Z.G.]. In their separate statements to the [Prosecutor's Office], both [Ann] and [Z.G.] state that [A.H.] admitted the abuse to [Z.G.]." We agree with A.H. that regardless of the rationale relied upon by the judge to admit Z.G.'s out-of-court statement into evidence, it is clear that the statement was inadmissible against A.H. Had Z.G. testified in court that A.H. made such an admission to her, A.H.'s out-of-court statement would have been admissible against him under either N.J.R.E. 803(b)(1), as a statement offered against a party that is the party's own statement, or under N.J.R.E. 803(c)(25), as a statement against interest.
Here, however, Z.G. did not testify at the factfinding hearing. For that reason, her statement to Detective Caicedo was hearsay. Although portions of her statement may have been admissible against her as her own statement pursuant to N.J.R.E. 803(b)(1), or as a statement against her own interests, admissible pursuant to N.J.R.E. 803(c)(25), since her statement was offered against A.H., and not against her, it was not admissible. The reason is simple: because Z.G.'s out-of-court statement was admitted in evidence, A.H. was impermissibly denied cross-examination, to which he was unquestionably entitled. Without a way to challenge Z.G.'s out-of-court statement that he allegedly made admissions of wrongdoing, A.H. was denied the opportunity to prove Z.G.'s statement about him was false. No hearsay exception permitted the admission of Z.G.'s out-of-court statement to Detective Caicedo when used against defendant A.H. We reverse the judge's reliance on Z.G.'s statement to Detective Caicedo as corroborative evidence against A.H.
Lastly, we turn to the judge's conclusion that Glaeser's report and testimony, and the report of the child sexual abuse pediatrician who interviewed Ann, Dr. Nina Agrawal, served as corroboration of Ann's initial accusations. A.H. maintains that the reports were premised on Ann's initial accusations, and "did not cite any additional, independent or first-hand observations that would support the truth" of those accusations. Neither Dr. Agrawal nor Glaeser cite any findings of physical corroboration of the abuse. Although Glaeser noted that Ann exhibited anxiety as well as certain somatic complaints, namely stomach aches and vomiting, Glaeser associated those complaints with Ann's anxiety over seeing her mother in court. Glaeser's finding that Ann's sexual abuse was "[c]linically [s]ubstantiated" appears to be based solely upon Ann's original accusations. As a result, these findings cannot serve to corroborate those same accusations.
Second, A.H. maintains that the trial court erred in using evidence of CSAAS as substantive proof of guilt or innocence. In State v. J.Q., 130 N.J. 554, 578 (1993), the Court held that CSAAS testimony may not be used to establish guilt or innocence. Instead, evidence of CSAAS "must be targeted to a specific myth or misconception suggested by the evidence and limited to explaining why the victim's reactions as demonstrated by the evidence are not inconsistent with having been molested." Id. at 580 (emphasis added) (citation and internal quotation marks omitted). As a result, an expert should not give an opinion, based upon CSAAS, about whether a particular child was abused. State v. R.B., 183 N.J. 308, 322 (2005). Moreover, "the CSAAS expert should not describe the attributes exhibited as part of that syndrome due to the risk that the jury may track the attributes of the syndrome to the particular child in the case." Id. at 327.
Here, the judge permitted Glaeser to describe particular attributes exhibited as part of CSAAS, compare those attributes to Ann's specific case, and opine that Ann's recantation was "consistent" with CSAAS, all of which were improper. In her decision, the judge described in detail all of these aspects of Glaeser's testimony, leading to a conclusion that the judge relied upon this testimony when she found that the Audrey Hepburn evidence substantively corroborated Ann's original accusations, which is the very use of CSAAS testimony that the Court prohibited in J.Q. and R.B. For that reason, we reject the judge's conclusion that the reports of Glaeser and Dr. Agrawal constitute corroboration of Ann's accusations.
Having determined that the judge's acceptance of these four forms of corroborative evidence was error, we reverse the judge's conclusion that Ann's out-of-court statement was properly corroborated and satisfied the requirements of N.J.S.A. 9:6-8.46(a)(4). As Ann's out-of-court statement was the sole evidence of sexual abuse by A.H., and we have concluded that Ann's out-of-court statement was inadmissible because it was not properly corroborated, we reverse the finding of abuse and neglect as to A.H.
In light of that determination, we need not address the other claims A.H. asserts.
III.
Z.G. has raised several claims on appeal. As we have already noted, the finding of abuse and neglect as to Z.G. was dependent upon the proofs against A.H., as it was based upon a finding that A.H. sexually abused Ann, and that Z.G. failed to protect Ann from further sexual abuse by A.H. In light of our conclusion that the abuse and neglect finding against A.H. cannot stand, we likewise reverse the abuse and neglect finding as to Z.G. Our disposition of Z.G.'s appeal makes unnecessary any consideration of the other claims she advances on appeal.
Reversed and remanded in both A-3743-10 and A-3870-10 for the entry of an order vacating the finding of abuse and neglect as to each defendant.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION