DOCKET NO. A-0939-11T3
Peter Neely Milligan, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr Milligan, on the brief). Michael S. Harwin argued the cause for respondent P.H. (Joseph E. Krakora, Public Defender, attorney; John A. Salois, Designated Counsel, on the brief). Cynthia J. Schappell, Deputy Attorney General, argued the cause for respondent New Jersey Division of Youth and Family Services (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Schappell, on the brief). David R. Giles, Designated Counsel, argued the cause for minors B.H., K.C., and L.C. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Giles, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Alvarez and Waugh.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FN-06-0117-10.
Peter Neely Milligan, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr Milligan, on the brief).
Michael S. Harwin argued the cause for respondent P.H. (Joseph E. Krakora, Public Defender, attorney; John A. Salois, Designated Counsel, on the brief).
Cynthia J. Schappell, Deputy Attorney General, argued the cause for respondent New Jersey Division of Youth and Family Services (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Schappell, on the brief).
David R. Giles, Designated Counsel, argued the cause for minors B.H., K.C., and L.C. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Giles, on the brief).
The opinion of the court was delivered by ALVAREZ, J.A.D.
On June 20, 2011, J.C. was found to have engaged in acts of "both abuse and neglect," as defined in N.J.S.A. 9:6-8.21(c)(3) and (4), as a result of sexual conduct towards his two children, L.C. (Mary), born in July 2004, and K.C. (Tom), born in July 2004. The court later terminated the litigation and allowed plaintiff, the Division of Youth and Family Services (Division), to notify a church which had offered J.C. a position as a "youth pastor," that sexual abuse allegations against him had been substantiated. J.C. appeals, and we affirm the first two orders, but reverse that portion of the trial judge's decision regarding dissemination of information.
We use pseudonyms to protect the parties' privacy and for ease of reference.
We recount the following procedural and factual circumstances gleaned from our review of the record. In April or May 2009, P.H., the children's mother, came home from running errands to find the maternal grandmother upset because J.C. had locked himself and the children in a bedroom. Mary, then only four years old, had come out screaming and crying that J.C. had "hurt her punky," Mary's term for her vagina. After this incident, on several occasions, P.H. caught J.C. rubbing Mary's private area with his foot, which he would stop doing upon being discovered. Eventually, in September 2009, J.C. and P.H. separated.
Thereafter on December 4, 2009, P.H. was granted sole custody, both parties were ordered to obtain psychological evaluations, and visitation was suspended pendente lite. J.C. was also ordered to submit to a psychosexual evaluation, and the Division directed to file FN litigation. The Division did so, seeking care and supervision of the two minor children, who continued to reside with P.H.
The trial judge referred to the earlier proceedings as a divorce action.
We do not have a copy of the order, but it appears the Division was also instructed to notify the School Board which employed J.C. in some unspecified capacity of the sexual abuse allegations. The limited record we have been supplied does not indicate if it was done; in any event, that directive is not challenged in this appeal.
The psychosexual evaluation was completed on April 6, 2010, by Dr. Merle Udell, a psychologist, who diagnosed J.C. "on Axis I of pedophilia." As the trial judge's written opinion in this matter states, Udell "indicated that defendant father should not have employment that involves him with children or adolescents." It is noteworthy that in 2006, the Division had substantiated allegations of child sexual abuse made against J.C. by a ten-year-old cousin.
Udell further recommended that J.C. visit with his children only if engaged in therapy and if the children wished to see him. Because the children did not want visitation with their father, they have not had contact with him since 2009.
Martin A. Finkle, D.O., FAAP, the medical director of the Child Abuse Research and Educational Service Institute at the University of Medicine and Dentistry, was the Division's first witness during the fact-finding hearing. Finkle's reports summarizing his interviews with the children were moved into evidence that same date.
Finkle reported that Mary said J.C. "tickled" her private area, and had touched her there with his hand. P.H. showed Finkle photographs of Tom's right upper leg, bearing faded bruise marks. While assisting Tom in the bathroom, P.H. said Tom told her it would be "okay . . . if I put my finger in his butt." When P.H. asked Tom what he meant, he repeated the statement. P.H. asked Tom who had said anything about that; he responded, J.C. She also said that the children did not like playing "the hickey game" with their father, a "game" during which they were tickled in their private areas by J.C.
Because of Tom's very young age, Finkle could not engage him in much conversation regarding past events. But when asked who was allowed to touch his body, Tom said his father and that he played "the hickey game." Tom refers to his penis as his "hickey." Based on his interviews with P.H. and the children, Finkle opined that J.C.'s interactions with Mary and Tom were, at a minimum, "inappropriate," and that J.C. should have a comprehensive psychological examination before resuming contact with them.
The Division enrolled the children and P.H in counseling with Scott R. Schafer, who also testified as the Division's witness. Schafer repeated the children's description of "the hickey game: "The game was played by insertion of "the hickey in the hole, which would be vaginal or anal penetration." He added that Mary reported "if you played Dad's games you got a prize at the store . . . . [She] did not like the hickey game." Mary, then six years old, had speech problems and difficulties in expressing herself — in fact, initially Mary would just "growl," and refuse to separate from her mother. P.H. said Mary would, at times when she became anxious, dig at her skin with her fingernails.
Tom told Schafer that his father struck him, and that he saw Mary "kiss the giant penis," and that when he did, "it rubbed itself and peed on us." Schafer opined that Tom was describing ejaculation. Tom said J.C. put his fingers in Mary's vagina, which "smelled yucky." Tom periodically behaved inappropriately in a sexual manner with his sister, including lying on top of her. P.H. reported observing Tom anally stimulating himself. The trial judge marked Schafer's two reports into evidence.
After the experts testified, the matter was relisted "for both a permanency -- preliminary hearing, fact finding, and a court permanency hearing." On that date, January 31, 2011, J.C.'s attorney objected to the fact the sole evidence proffered by the Division was the experts' testimony, which, he contended, merely reiterated P.H. and the children's statements. J.C.'s attorney also objected that the allegations regarding sexual abuse were not raised until "six months after the alleged incident occurred and my client was asked to leave the house."
Counsel took the position, although his client did not perceive it to be in the best interests of the children to be called as witnesses, that he should be permitted to file a motion on behalf of J.C. pursuant to State v. Michaels, 136 N.J. 299 (1994). He therefore requested additional time for discovery with regard to the implantation of "false memories of children due to improper questioning." See id. at 317-18.
The Division objected that counsel had previously raised the Michaels issue, but had not taken any steps to pursue the matter further. In turn, the Law Guardian pointed out that the children initiated the conversations with the experts regarding sexual abuse, that the litigation had begun a long time ago, and needed to end.
Nonetheless, the judge indicated that he would rule within fifteen days on the Michaels request, but might also "include a determination in regard to the fact finding." He continued care and supervision in the Division and custody in the children's mother.
On April 18, 2011, at the next fact-finding hearing date, J.C.'s attorney announced that J.C. was not going to pursue a Michaels defense. J.C. agreed to accept services and to submit to another psychological evaluation. Nothing additional having been received from any party, on June 17, 2011, the Family Part judge issued a decision finding by clear and convincing evidence that J.C. had abused and neglected the children.
At an earlier case management conference, the Division had expressed concern at the possibility of J.C. becoming a youth pastor in his church. Because Udell's psychosexual evaluation found J.C. posed a threat to children and adolescents, the Division contended that the court should therefore notify the potential employer. J.C.'s attorney objected on the basis J.C. submitted to the evaluation before he was represented, and because he questioned Udell's qualifications and the merits of the report itself. The issue languished until the court directed that the Division submit a formal notice of motion as to the disclosure to the church by September 17, 2010, any response to be filed by October 4, 2010. We cannot discern from the record if any additional submissions were made.
As we have said, in its June 17, 2011 decision, the trial court permitted disclosure to the church. The Division was to inform the church that J.C. was substantiated for the sexual abuse of children, and had been determined to have abused and neglected children. Although not entirely clear, J.C. later abandoned his interest in pursuing the youth pastor position. The Division in turn never made the disclosure.
J.C. asserts on appeal:
I. THE TRIAL COURT ABUSED ITS DISCRETION BY PERMITTING [THE DIVISION] TO DISSEMINATE CONFIDENTIAL FINDINGS.
II. J.C.'S TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE.
A. J.C.'S trial counsel did not seek to retain, retain, [sic] or call as a witness an expert on behalf of J.C., even though he requested an adjournment of the trial to do so.
B. J.C.'s trial counsel failed to call the children as witnesses.
C. J.C.'s trial counsel failed to call the mother as a witness.
III. THERE WAS INSUFFICIENT EVIDENCE TO FIND THAT J.C. ABUSED OR NEGLECTED THE CHILDREN.
A trial judge's findings "are considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). We do not disturb the factual findings and legal conclusions of a trial judge unless "they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963). It is well-established that special deference should be accorded to the family court because of its "special expertise in the field of domestic relations." Cesare v. Cesare, 154 N.J. 394, 412 (1998). Furthermore, we "rel[y] on the trial court's acceptance of the credibility of the expert's testimony and the court's fact-findings based thereon, noting that the trial court is better positioned to evaluate the witness' credibility, qualifications, and the weight to be accorded [the] testimony." In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999).
In his first point, J.C. contends that the trial court abused its discretion by allowing the Division to provide the church with the information that allegations of child sexual abuse against him were substantiated. The Division counters that the issue is moot because J.C. did not pursue the position and therefore it did not release any information. The Law Guardian, however, urges us to affirm the order because the court and the Division would otherwise lack the means to protect children in the church program, while possessing knowledge that J.C. sexually abused his own children, and had been substantiated for the sexual abuse of a ten-year-old cousin five years earlier.
Records, information, reports, and findings related to Title 9 proceedings "shall be kept confidential and may be disclosed only under the circumstances expressly authorized" to:
(5) An agency, whether public or private, including any division or unit in the Department of Human Services or the Department of Children and Families, authorized to care for, treat, assess, evaluate, or supervise a child who is the subject of a child abuse report, or a parent, guardian, resource family parent or other person who is responsible for the child's welfare, or both, when the information is needed in connection with the provision of care, treatment, assessment, evaluation or supervision to such child or such parent, guardian, resource family parent or other person and the provision of information is in the best interests of the child as determined by the Division of Youth and Family Services . . . .
. . . .
(10) A family day care sponsoring organization for the purpose of providing information on child abuse or neglect allegations involving prospective or current providers or household members . . . .
. . . .
(13) Any person or entity mandated by statute to consider child abuse or neglect information when conducting a background check or employment-related screening of an individual employed by or seeking employment with an agency or organization providing services to children . . . [and]
(14) Any person or entity conducting a disciplinary, administrative or judicial proceeding to determine terms of employmentor continued employment of an officer, employee, or volunteer with an agency or organization providing services for children. The information may be disclosed in whole or in part to the appellant or other appropriate person only upon a determination by the person or entity conducting the proceeding that the disclosure is necessary to make a determination[.]
N.J.S.A. 9:6-8.10a(b) does not include a church as an entity to which the Division may, and upon written request must, release child abuse information as defined in N.J.S.A. 9:6-8.10a(a). Nothing in the record establishes that the church in this case fits into any other category found in the statute, such as a daycare center, which would permit the release of information.
Upon a finding that an allegation of abuse and neglect is "substantiated," the perpetrator's name is entered into a Central Registry maintained by the Division. N.J. Div. of Youth & Family Servs. v. M.R., 314 N.J. Super. 390, 398 (App. Div. 1998); see also N.J.S.A. 9:6-8.11. The Division can release Central Registry information to the entities listed in N.J.S.A. 9:6-8.10a(b)(1)-(23). Records may otherwise be disclosed only as authorized under N.J.S.A. 9:6-8.10a(a)-(g). Churches are not included in either statutory section.
The Law Guardian analogizes this situation, however, to that found in In re Allegations of Physical Abuse at Blackacre Academy, 304 N.J. Super. 168 (App. Div. 1997). In that case, the Division supplied information regarding an ongoing child abuse investigation to the New Jersey Department of Education, among others, which was not explicitly entitled by statute to receive the information. Id. at 179. Blackacre is distinguishable, however, because the Department of Education is the governmental agency having direct supervisory authority over children in educational institutions who are the subject of child abuse reports, and therefore falls within the purview of the statute. See N.J.S.A. 9:6-8.10a(b)(5).
The Division bears the "general obligation to 'take such action as shall be necessary to insure the safety of the [allegedly abused or neglected] child.'" Blackacre, supra, 304 N.J. Super. at 178 (quoting N.J.S.A. 9:6-8.11) (alteration in original). That is quite different from the disclosure sought to be made in this case. In Blackacre, the disclosures concerned an ongoing investigation of child abuse. Id. at 179-80. In this case, the disclosures are intended to prevent the possibility of future abuse to as yet unknown "victims."
The church's activities are not only obviously dissimilar to those of the Department of Education, N.J.S.A. 30:5B-3(b) exempts religious organizations from the obligation to make mandatory Central Registry inquiries under the Child Care Center Licensing Act for positions such as that of "youth pastor." The statute states that "child care center" does not include "(3) [c]enters or special classes operated primarily for religious instruction or for the temporary care of children while persons responsible for such children are attending religious services . . . ." Ibid.
The Law Guardian further contends that the confidentiality shrouding child abuse and neglect proceedings is intended to protect children, not the abusers of children. Be that as it may, principles of statutory construction do not permit us to write "church" into either N.J.S.A. 9:6-8.10a(b) or 30:5B-3(b). That is a step only the Legislature can take. Although we are charged with implementing legislative intent, that is quite different from creating a new category in an otherwise comprehensive and detailed statutory scheme. See Ryan v. Renny, 203 N.J. 37, 54 (2010). In fact, rules of statutory construction require us to "begin with the words of the statute and ascribe to them their ordinary meaning." Ibid. Thus we must agree with J.C. that the Division does not have the authority to disseminate any information to the church. That portion of the judge's decision is therefore reversed.
Our Supreme Court has recognized that litigants involved in proceedings implicating constitutionally protected rights have the right to counsel. See N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 306 (2007); N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). Hence, the same analysis applicable to petitions for post-conviction relief in criminal matters apply to abuse and neglect proceedings and parental rights termination cases. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed.2d 674, 693 (1984) (as adopted in State v. Fritz, 105 N.J. 42, 58 (1987)). This includes abuse and neglect cases under Title 9. N.J. Div. of Youth & Family Servs. v. N.S. and R.B., 412 N.J. Super. 593, 642-43 (App. Div. 2010).
Pursuant to Strickland, in order for J.C. to establish ineffective assistance of counsel, he must demonstrate that counsel's performance was deficient, and that this deficient performance prejudiced the defense. See Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed.2d at 693. He must establish that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. J.C. must show there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed.2d at 698. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. Furthermore, we recognize "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]" Id. at 689, 104 S. Ct. at 2065, 80 L. Ed.2d at 694. Applying these standards to the matter under consideration, J.C. has met neither Strickland prong.
J.C. makes much of his trial attorney's failure to call an expert witness, but, on the other hand, nothing in the record supports the notion that he or she would have produced a favorable assessment and report. This was not the first time that J.C. had been involved in the inappropriate touching of children. Sexual abuse allegations made against him by a ten-year-old cousin had been substantiated by the Division in 2006. There is no reason to conclude trial counsel's failure to retain an expert was deficient representation as on this record, it appears to be reasonable trial strategy that did not prejudice the outcome.
It is also true that trial counsel did not call either P.H. or the children as witnesses. We cannot assume, however, that P.H.'s testimony would have been favorable to J.C.; if anything, it likely would have been harmful. She separated from J.C. because she believed Mary and Tom's allegations, and because she claimed to have witnessed conduct towards the children which she found unacceptable. This included J.C. rubbing Mary's private area with his feet, and striking Tom frequently and with such force that on at least one occasion he bruised the child. Hence this alleged deficiency on the part of counsel also fails to meet either prong of the Strickland standard.
Trial counsel's failure to call the children, in the absence of anything in the record indicating they would have repudiated the statements made to Finkle, Schafer, their mother, and their maternal grandmother, only demonstrates reasonable professional judgment. Calling them as witnesses had the potential to elicit more damning, not helpful, testimony. Additionally, J.C.'s attorney represented to the court that his client did not consider it to be in the children's best interest to be called. Thus this decision also fell within the wide range of reasonable professional assistance, and did not prejudice the outcome.
Lastly, J.C. contends that the Division presented insufficient evidence that J.C. abused or neglected the children. At oral argument, J.C.'s counsel also asserted, as separate grounds for reversal, that the children's allegations were uncorroborated hearsay. This argument was not clearly made at trial nor in the brief submitted on appeal. Ordinarily, unless an issue is raised before the trial judge, it will not be considered unless jurisdictional in nature or implicating the public interest. State v. Robinson, 200 N.J. 1, 20 (2009). Neither exception applies here. But, as discussed below, the proofs in this case were more than adequate, and by their nature provided adequate corroboration.
In a fact-finding hearing, only "competent, material and relevant evidence" may be admitted. N.J.S.A. 9:6-8.46(b). The statute also provides that "previous statements made by the child relating to any allegations of abuse and 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); N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 33 (2011) ("a child's hearsay statement may be admitted into evidence, but may not be the sole basis for a finding of abuse or neglect.").
Finkle and Shafer's reports were "prima facie evidence subject to rebuttal." See R. 5:12-4(d). Since J.C. presented no testimony or documentation in his defense, there was no "rebuttal" of the information contained in the reports.
Schafer testified in some detail regarding his interviews with P.H. and the children. He said the children volunteered the information about the sexual contacts outside the presence of their mother, a matter of weeks after the commencement of therapy. In our view, the passage of time only establishes the development of a therapeutic relationship, and of the trust necessary for the children to make uncomfortable disclosures. We do not see the delay as undermining the credibility of the children's allegations.
Finkle's testimony was also based solely on his interviews with P.H. and the children. Those disclosures were made, however, some seven months before the children commenced treatment with Schafer. Accordingly, Finkle's recitation of the children's allegations corroborated Schafer's testimony. See N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 166 (App. Div. 2003) (citing N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 436 (App. Div. 2002)).
Finkle's description of the children's narratives was consistent with Schafer's description. These consistent accounts warranted the trial court's conclusion that:
The children have throughout this ordeal, repeated again and again in a consistent manner that their stepfather/father had inappropriate contact with them and had them engage in inappropriate "games." These statements . . . are [not] weaker as timegoes by, but . . . in fact their explanations and details have become more specific, detailed and quite frankly horrific as time has passed and the counseling has gone on.
Tom and Mary conveyed to Finkle and Schafer details of anal and vaginal penetration, and ejaculation, which constitutes "'precocious knowledge of sexual activity . . .'" which also constitutes corroboration. Z.P.R., supra, 351 N.J. Super. at 436 (quoting State v. Swan, 790 P.2d 610, 616 (Wash. 1990), cert. denied, 498 U.S. 1046, 111 S. Ct. 752, 112 L. Ed. 2d 772 (1991)).
When addressing the sexual abuse of children as young as these, direct evidence, physical or testimonial, is usually unavailable. The children were the only eyewitnesses to the events. No physical indicia of abuse would be present given the nature of the acts. Accordingly, "'the 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 child's nightmares and psychological evidence.'" Z.P.R., supra, 351 N.J. Super. at 436 (quoting Swan, supra, 790 P.2d at 616).
The children's psychological symptoms included Mary digging her nails into her own skin, difficulties with defecation, panic when P.H. tickled her, and Tom's practice of anal self- stimulation. See Z.P.R., supra, 351 N.J. Super. at 436. These symptoms, when added to the children's detailed description of their father's conduct, were sufficient proofs that J.C. abused the children within the meaning of the statute.
The Division is authorized to introduce into evidence the reports of its professional consultants. N.J. Division of Youth & Family Services v. M.C. III, 201 N.J. 328, 347 (2010). The conclusions contained "'therein shall be treated as prima facie evidence, subject to rebuttal.'" Ibid. (quoting R. 5:12-4(d)). No such refutation whatsoever was presented in this case.
J.C. also objects to the trial court's reliance on the psychosexual evaluation in reaching its conclusions regarding J.C.'s abuse of the children. It was certainly mentioned in the court's written opinion. The fact J.C. was unrepresented in the proceedings in which the evaluation was ordered does not, however, diminish the weight of the report. But in any event, in reaching his decision, the trial judge relied upon the children's detailed recitation of their father's inappropriate sexual contact with them and the corroboration provided by their precocious knowledge and psychological symptoms. We do not read his opinion as demonstrating that he relied on the report to find J.C. sexually abused the children.
We do note, however, that the court improperly applied a clear and convincing standard instead of the requisite clear and convincing, although in this instance it does not constitute a basis for reversal. See N.J. Div. of Youth & Family Servs. v. H.P., 424 N.J. Super. 210, 223-24 (App. Div. 2011); N.J. Div. of Youth & Family Servs. v. T.S., 429 N.J. Super. 202, 215-16 (App. Div. 2013). The judge applied the higher standard without the requisite prior notice, but ultimately, J.C. will not be prejudiced. No termination of parental rights proceedings are pending or will be filed by the Division since the children continue in their mother's custody.
The Family Court's factual findings are ordinarily entitled to great deference. See N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). The factual findings in this case certainly are warranted. The competent, credible evidence in the record amply supports the trial judge's determination that the Division established abuse and neglect by the father, as defined in N.J.S.A. 9:6-8.21(3) and (4).
Affirmed in part, reversed in part
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION