Opinion
DOCKET NO. A-4538-12T4
03-11-2015
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. J.C., Sr., Defendant-Appellant. IN THE MATTER OF J.C., JR., B.C., E.C., and C.C., MINORS.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael Pastacaldi, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis Scheindlin, Assistant Attorney General, of counsel; Hannah F. Edman, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Lisa M. Black, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Hayden. On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. FN-03-166-12. Joseph E. Krakora, Public Defender, attorney for appellant (Michael Pastacaldi, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis Scheindlin, Assistant Attorney General, of counsel; Hannah F. Edman, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Lisa M. Black, Designated Counsel, on the brief). PER CURIAM
Following a May 7, 2013 Family Part order terminating the Title Nine litigation, defendant J.C., Sr. (Jonah) appeals from the December 6, 2012 Family Part order finding that Jonah had abused and neglected his then fourteen-year old son, J.C., Jr. (Jaden). Having reviewed the record and applicable law, we affirm.
N.J.S.A. 9:6-8.21 to -8.73.
We use pseudonyms to protect the privacy of the parties and the minor.
The trial court also found that Jaden's mother, Je.C. (Jane), had abused and neglected him. However, Jane is not appealing that finding as she has voluntarily agreed to relinquish her parental rights.
We discern the following facts from the record. On February 23, 2012, the Division received a referral from the local police department regarding allegations that Jaden had been sexually abused by Jonah. A Division investigator went to the Child Advocacy Center, where Jaden and Jane were being interviewed by Detective Wayne Raynor of the Prosecutor's Office. During the interview, Jaden disclosed that over a span of six months Jonah forced him to perform oral sex at least fifteen times and Jonah had anally penetrated him at least twice. Jaden also reported that at times Jonah threatened to disown him if he did not perform these sexual favors, while at other times, Jonah provided rewards to Jaden for performing the acts.
Jaden related numerous vivid details to the investigators, including that the abuse took place primarily in Jonah's bedroom and that Jonah referred to oral sex as "practice." Jaden also described the two incidents when Jonah anally penetrated him. He disclosed that the first incident occurred prior to Christmas 2011 and the second incident occurred in January 2012. Jaden also described where Jonah kept the lubricant as well as what the lubricant bottle looked like.
In the presence of the Division investigator, the detective also interviewed Jonah, who initially denied the allegations, but then claimed that Jaden initiated the sexual contact, which Jonah rebuffed. Later in the interview, however, Jonah admitted to "allowing" Jaden to perform oral sex on him twice and that he had attempted to have anal sex with Jaden, but denied any penetration. Jonah initially stated that these events occurred in January 2012, but later changed the date to before Christmas 2011. At the conclusion of the interview, Jonah was arrested and charged with aggravated sexual assault under N.J.S.A. 2C:14-2a(2)(a) and engaging in sexual conduct which impaired or debauched Jaden's morals under N.J.S.A. 2C:24-4b(1).
In a March 12, 2012 letter, Jonah recanted his confession, saying he was trying to protect Jane. In that letter, Jonah divulged that Jane had sexually abused Jaden for over fourteen months. During a subsequent police interview, Jane admitted to having sex with Jaden, claiming that Jonah forced her by threatening to take away her children if she did not comply. Jane later confessed that Jonah had offered her $200 to have sex with Jaden. Jane was subsequently arrested and charged with several offenses including aggravated sexual assault.
As a result of this investigation, the Division executed an emergency removal of the parents' four children. On March 15, 2012, the Division filed a complaint for custody, care, and supervision of the children. At the hearing the next day, the court ordered the children be removed from the home in light of the disclosures of sexual abuse and prohibited any contact with either parent. On this same day, during a second interview Jaden reported that he had sex with Jane at least twice.
There were three other children in this family, B.C., born in 1999, E.C., born in 2001 and C.C., born in 2005; however, the allegations of sexual abuse are limited to Jaden.
On May 21, 2012, Jonah attended a psychological and psychosexual evaluation with Dr. Alan Lee. Dr. Lee opined that Jonah experienced:
some deeply ingrained and maladaptive personality and character traits that include his rather entitled and arrogant and self-centered views; a heightened level of anger and resentment; rather dehumanizing and depersonalizing views of other people, and especially women; his tendency to view others as objects for his gratification; and his rather controlling and domineering style.
On June 26, 2012 Jaden attended a psychosocial needs evaluation at the University of Medicine and Dentistry of New Jersey. The clinician diagnosed Jaden as "experiencing distress secondary to the sexual abuse he experienced" and having symptoms of post-traumatic stress.
On September 10, 2012, the Division informed the court that it would be seeking a finding of abuse and neglect under a clear and convincing evidence standard. Neither parent objected. Thereafter, on October 11, 2012, the court held a fact-finding hearing. The Division submitted documentary evidence including its screening and investigation summaries, the psychological evaluation of Jaden, the psychosexual evaluation of Jonah, a letter from Jane, and transcripts of interviews by the prosecutor's investigator of Jonah, Jaden, and Jane. Neither parent objected to these documents being admitted into evidence. In addition, the Division's caseworker, Toni Porreca, and Detective Wayne Raynor of the Prosecutor's Office testified. Jonah and Jane did not call any witnesses or submit evidence.
After considering the evidence, the trial court issued an oral opinion on December 6, 2012, finding by clear and convincing evidence that Jonah and Jane abused and neglected Jaden in violation of N.J.S.A. 9:6-8.21(c)(3) by committing or allowing to be committed an act of sexual abuse against a child. The court amplified its oral opinion pursuant to Rule 2:5-1(b) by issuing a formal written opinion on July 24, 2013. The court based its finding on Jaden's "precocious knowledge of specific oral and anal sexual activity, the admissions by [Jonah] and Jane and the corroboration of [Jaden's] statement by [Jonah.]" Jonah appealed the finding.
On appeal, Jonah argues that the trial court erred in finding that he sexually abused Jaden because there was insufficient evidence to corroborate Jaden's statements. In particular, Jonah contends that the trial court incorrectly relied on statements made by him in corroborating the allegations of sexual abuse without taking into account the fact that he had recanted his confession. Because of the inconsistency in his statements, defendant asserts, those statements cannot be "treated as competent and reliable evidence[.]" Jonah also argues that the trial court erred in finding that Jaden's "precocious knowledge" corroborated the allegations, noting that at fourteen years old, Jaden would have been exposed to details and knowledge of specific sexual activity "from other sources such [as] the internet, interactions with his peers, or social media prevalent among teenagers."
We begin with a review of the applicable legal principles that guide our analysis. The Division brought this case under Title Nine, which sets forth the controlling standards for adjudicating cases of abuse and neglect. N.J.S.A. 9:6-8.21 to - 8.73; Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 303 (2011) (citing N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010)). Title Nine's main precept is to protect children from circumstances and actions that threaten their welfare. G.S. v. Dep't of Human Servs., Div. of Youth & Family Servs., 157 N.J. 161, 176 (1999) (citing State v. Demarest, 252 N.J. Super. 323, 331 (App. Div. 1991)). The court holds a fact-finding hearing to determine whether a child is abused and neglected. N.J.S.A. 9:6-8.44. An abused and neglected child includes one whose parent or guardian "commits or allows to be committed an act of sexual abuse against the child[.]" N.J.S.A. 9:6-8.21(c)(3).
Generally, "any determination that the child is an abused or neglected child 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). Here, the Division requested, and the parties did not object, to the trial court employing a higher standard of review, clear and convincing evidence, in determining whether Jaden had been abused and neglected. Clear and convincing evidence is typically used in cases under Title 30 seeking to terminate parental rights. See N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005). Clear and convincing evidence is "'that which produce[s] in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established[.]'" In re Seaman, 133 N.J. 67, 74 (1993) (internal citations and quotations omitted). The evidence must be "'so clear, direct and weighty and convincing as to enable [the factfinder] to come to a clear conviction, without hesitancy, of the precise facts in issue.'" Ibid. (internal citations omitted).
The Division sought a higher standard because it intended to use the trial court's findings in a subsequent parental termination case against Jonah and Jane. See N.J.S.A. 30:4C-15. That decision, which is not the subject of this appeal, terminated Jonah's parental rights as to all of the children.
Abuse and neglect cases are fact sensitive and "[e]ach case requires careful, individual scrutiny" as many cases are "idiosyncratic." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 33 (2011). The court must look at the totality of the circumstances. Id. at 33-34 (citing M.C. III, supra, 201 N.J. at 345).
Our scope of review of a trial court's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). We must determine "whether the findings made could reasonably have been reached on substantial credible evidence present in the record when considering the proofs as a whole, giving due regard to the opportunity of the trial judge to determine credibility." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 442-43 (App. Div. 2001) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)), certif. denied, 171 N.J. 44 (2002). Special deference is accorded to the family court because of its "'expertise in family matters[.]'" M.C. III, supra, 201 N.J. at 343 (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)).
However, "[w]here the issue to be decided is an 'alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' we expand the scope of our review." G.L., supra, 191 N.J. at 605 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993)). The trial judge's legal conclusions and the application of those conclusions to the facts are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of the Twp. of Manalapan, 140 N.J. 366, 378 (1995).
In this matter, the record clearly and convincingly established that Jonah sexually abused Jaden and as such, we will not interfere with the trial court's finding of abuse and neglect. See A.G., supra, 344 N.J. Super. at 442-43. Jaden's report of sexual abuse to the prosecutor's detective and the Division's case worker were explicit and vividly detailed. Additionally, Jonah admitted to having oral sex and attempting anal sex with his son. Furthermore, Jaden and Jonah's statements about the allegations of oral and anal sex were also consistent as to the timing, the location, and the lubricant. See N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 436 (App. Div. 2002) (discussing corroboration in child sexual abuse cases).
"[P]revious statements made by [a] 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). Thus, Jaden's statements to the Division and the detective concerning the sexual abuse were undoubtedly admissible. The remaining issue is whether they were sufficiently corroborated so as to permit a finding of abuse and neglect.
"It would be a rare case where evidence could be produced that would directly corroborate the specific allegation of abuse between the child and the perpetrator[.]" Z.P.R., supra, 351 N.J. Super. at 435. Clearly, the most effective corroborative evidence would be "'eyewitness testimony, a confession or admissions by the accused, and medical or scientific testimony documenting abuse[;]'" however, "case law does not require that the evidence be that specific before it can be deemed corroborative of the child's out-of-court statements." Id. at 435-36 (citations omitted).
"'[T]he corroboration requirement must reasonably be held to include indirect evidence of abuse. Such evidence has included a child victim's precocious knowledge of sexual activity, a semen stain on a child's blanket, a child's nightmares and psychological evidence.'" Id. at 436 (citations omitted). "The corroborative evidence need not relate directly to the alleged abuser[;] it need only provide support for the out-of-court statements." Ibid.
We are satisfied that the record contains sufficient evidence, including direct and indirect corroboration of Jaden's accusations, to prove abuse and neglect under the heightened standard of clear and convincing evidence. Jonah's admission of engaging in both oral and anal sex with his son constitutes direct corroborating evidence. We reject Jonah's argument that his confession cannot be used to corroborate Jaden because he recanted his confession. Jonah's recantation was largely self-interested and such statements "are inherently self-serving and presumptively unreliable." State v. White, 158 N.J. 230, 239 (1999); see also State v. Nevius, 426 N.J. Super. 379, 394 (App. Div. 2012) (noting that the defendant's "statements, considered either individually or collectively, are inherently self-serving and obviously tainted by the motive to exculpate the declarant from liability[.]"), certif. denied, 213 N.J. 568 (2013). In contrast, Jonah's statement of engaging in sexual acts with his fourteen-year-old son was a statement against his interest, which is generally "inherently trustworthy and reliable." White, supra, 158 N.J. at 238; see also State v. Brown, 170 N.J. 138, 148-49 (2001) ("[B]y human nature, individuals will neither assert, concede, nor admit to facts that would affect them unfavorably.") (citations omitted).
Here, the trial court appropriately took into consideration Jonah's recantation, but determined that his original statements to the police were still highly relevant and competent evidence corroborating Jaden's statements. Moreover, the psychosocial evaluation of Jaden, which was admitted into evidence, showed that he was experiencing symptoms of post-traumatic stress, which is indirect corroboration of a child's statements of abuse. Z.P.R., supra, 351 N.J. Super. at 436.
Jonah also argues that the trial court improperly considered the statements made by Jane as corroborating Jaden's statements. Specifically, Jonah contends that Jane's admission to the sexual abuse cannot be used against him under N.J.R.E. 803(b)(1), where a party's own statement is offered against him or her, and N.J.R.E. 803(c)(25), the statement against interest exception to the hearsay rule. We find that this argument does not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Suffice it to say that the hearing involved charges against Jane and Jonah and the record does not demonstrate that the court used Jane's statements to corroborate Jaden's statements against Jonah. Moreover, the record is abundantly clear that the direct and indirect corroboration of Jaden's statements, even without Jane's statements, is sufficient to support the court's finding that Jonah sexually abused his son.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION