Opinion
DOCKET NO. A-4305-14T3
09-20-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. S.C., Defendant-Appellant, and J.C., Defendant. IN THE MATTER OF M.C. and D.C., Minors.
Alan S. Albin, attorney for appellant. Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Peter Alvino, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (David B. Valentin, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Sabatino, Haas and Currier. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FN-14-55-13. Alan S. Albin, attorney for appellant. Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Peter Alvino, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (David B. Valentin, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant S.C. appeals from the Family Part's August 14, 2013 order, following a fact-finding hearing, determining that defendant abused or neglected his two children because of his conduct in the household that led to criminal charges against him for possession of child pornography and endangering the welfare of a child. Defendant challenges the trial judge's finding that this conduct constituted abuse or neglect under N.J.S.A. 9:6-8.21(c)(4)(b). The Law Guardian supports the judge's finding that the Division of Child Protection and Permanency (Division) met its burden of proving abuse or neglect by a preponderance of the evidence. Based upon our review of the record and applicable law, we affirm.
We use initials and fictitious names to protect the identity of the children.
This order became appealable as of right after the trial court entered a final order on April 15, 2015, dismissing the litigation.
I.
Defendant and his wife J.C. have two children, Doug, born in 1999 and Mary, born in 2003. Defendant was the leader of a Boy Scout troop.
On November 10, 2011, the Division's Institutional Abuse Investigation Unit (IAIU) received a referral that J.O., a former troop member and now an adult, had reported that when J.O. was thirteen or fourteen years old, defendant invited the child to his house, gave him alcohol, showed him pornography, undressed and masturbated in front of the child, and encouraged J.O. to do the same. The IAIU investigator contacted a detective at the Morris County Prosecutor's Office. After speaking with J.O. and the detective the next day, the investigator determined the IAIU did not have jurisdiction to investigate the Boy Scouts and that the allegation should be listed as "unfounded." However, the investigator's report noted that the prosecutor's office was still investigating the matter.
Thereafter, the Division assumed supervision of the case and interviewed defendant's two children. Both children denied that defendant ever showed them pornography or touched them inappropriately. Thus, on January 18, 2012, the Division determined that the allegation of "Sexual Abuse (Substantial Risk of Sexual Injury . . .) [was] unfounded against [defendant] concerning both his children[.]"
However, the Division remained involved with the family as the prosecutor's office's investigation progressed. During this period, another former troop member, eighteen-year-old M.M., came forward and told the prosecutor's office that defendant had recently given him alcohol while he was visiting defendant at his home, shown him child pornography that defendant kept on a laptop computer, and then engaged in sexual relations with him.
Defendant's wife J.C. later reported that she woke up late one evening and found defendant and M.M. together on the front porch of the home drinking wine. J.C. stated that she threw away the bottle of wine and admonished defendant. Because both defendant and M.M. were intoxicated, however, J.C. permitted M.M. to spend the night because, otherwise, she would have had to leave the intoxicated defendant home with the children while she drove M.M. to his house. J.C. then went to bed. When she woke up the next morning, J.C. found defendant sleeping on a downstairs couch and M.M. sleeping on a reclining chair.
On February 1, 2012, defendant and J.C. entered into a written safety plan with the Division. The plan required defendant to move out of the family home and for J.C. to supervise all of his contact with their children. The plan noted that defendant had "a criminal case pending in regards to accusations that he showed child pornography to a minor[s]. Risk for his children cannot be determined."
The prosecutor's office continued to keep the Division apprised of the progress of its investigation. Notably, the prosecutor's office advised the Division that child pornography had been found on defendant's computer. Following defendant's arrest for possession of child pornography and endangering the welfare of a child, the Division completed an "Investigation Findings Correction Form" on April 25, 2012. In pertinent part, the report stated:
The allegation of Sexual Abuse-Substantial Risk of Injury is confirmed involving the minors [Doug and Mary. Defendant] . . . was arrested for possession of child pornography which was found in the home where the minors reside . . . Law enforcement found countless images of child pornography in [defendant's] computer. In addition, [defendant] was also arrested for serving alcohol to an [eighteen-year-old] male while at [defendant's] family home.
The Division's report continued:
The investigation also revealed that the [eighteen-year-old] male had a sexual relationship with [defendant] and was exposed to child pornography by [defendant] in the home where the minors [Doug and Mary] reside. His actions of possession of child pornography, serving alcohol to an [eighteen-year-old] where he then engaged in sexual activity with that minor while [Doug and Mary] were in the home created a significant
danger of sexual injury to the minors. [Defendant's] sexualized behavior in the home and his actions of sexual activity with [the eighteen-year-old] male who he served alcohol placed the minors at risk while the minors were under his care and supervision.Based largely upon these allegations, the Division filed a complaint on September 24, 2012, seeking care and supervision of Doug and Mary.
The trial judge conducted a fact-finding hearing on seven, non-consecutive dates in April and June 2013. M.M. testified that he first met defendant when he was eleven years old and joined the scout troop. M.M. left the troop when he was seventeen. He had no sexual contact with defendant prior to the fall of 2011. M.M. was then eighteen years old.
In September 2011, defendant told M.M. that he had had a "sexual interest" in him since 2006 or 2007. Between September and November, M.M. went to defendant's home on three occasions. On the third visit, M.M. stated that defendant showed him child pornography that defendant kept on his laptop computer. M.M. testified there were photographs and videos of children between the ages of seven and fourteen engaging in "[o]ral or anal sex with adults, especially older men. There was also some engaging with young boys with other young boys. It was all males."
M.M. told defendant "[t]hat this was way too young for me." But, defendant continued showing M.M. videos, including boys he believed he recognized. Defendant told M.M. he wanted to get M.M. back into the boy scout troop so he could "get close" to another scout, who was approximately fifteen years old. Defendant explained that he was "interest[ed]" in "hav[ing] a threesome with" M.M. and the other scout. M.M. testified that defendant's children, Doug and Mary, were in the home while defendant was showing him the child pornography, but they were not in the room with defendant.
Based upon the information M.M. provided, the police obtained a search warrant and seized defendant's electronic devices. The child pornography found during the search was introduced in evidence at the fact-finding hearing.
J.O. also testified. He stated that defendant bought the scouts alcohol while they were on a camping trip. In 1997 or 1998, when J.O. was thirteen or fourteen years old, he went to defendant's home on two occasions to work on a boy scout project. On each visit, defendant gave J.O. alcohol and showed him pornography. J.O. stated that defendant encouraged him to masturbate and that defendant masturbated himself. J.O. testified that defendant also performed oral sex on him.
During the course of the investigation, three additional scouts came forward. D.A. testified that defendant gave the scouts alcohol while they were on camping trips. On other occasions, defendant invited the scouts to his home and gave them beer. In 1995 or 1996, when D.A. was sixteen, defendant asked him to come to his home with a friend. Defendant showed the two boys pornography, took out his penis, began to masturbate, and encouraged the boys to do the same.
R.M. testified that he had known defendant all his life. When R.M. was twelve years old, defendant began to invite him to his home, where he gave the child beer. Once, on a boy scout outing, R.M. got drunk on the alcohol defendant gave him. Defendant took R.M. to a tent, convinced him to take off his swim trunks, and then masturbated him. Defendant told the child it would help him sleep.
C.M., another former scout, testified that defendant began giving him beer when he was ten years old. Defendant showed him pornography, encouraged him to masturbate, and progressed to performing oral sex on the boy when he was twelve. On one occasion, C.M. stated that defendant had him masturbate in front of a camera while another adult watched him over the internet. The sexual abuse continued until C.M. was seventeen. At C.M.'s wedding in 2005, defendant asked C.M. "if he could suck [his] dick."
The Division presented the testimony of Dr. Anthony D'Urso, who was qualified as an expert in the field of clinical psychology with "specialized training in child sexual abuse as well as offender evaluations and assessment." Dr. D'Urso opined that defendant's actions in showing children pornography including most recently, child pornography, in the family home, plying the children with alcohol, and then engaging them in sexual activity, placed his own children, Doug and Mary, at "serious risk of harm[.]"
Because defendant was facing criminal charges, he did not submit to a psychological evaluation. However, Dr. D'Urso explained that he based his risk assessment upon the statements and ages of the victims, and defendant's use of both child pornography, adult pornography, and alcohol to engage the children in sexual activity.
According to Dr. D'Urso, "[c]ompulsive use of child pornography clearly reflects pedophilic interest." Dr. D'Urso opined that the "risk and propensity" of defendant acting "on such pedophilic interests" was exemplified by his "approach and grooming of children by using pornography and alcohol to initiate parallel sexual behavior in joint masturbation and sexual contact with two minors."
Dr. D'Urso noted that most of defendant's misconduct occurred during the late 1990s. However, he stated that defendant's recent "recurrence in terms of sexual impulse" with M.M. in the fall of 2011 was significant. As was the case with the prior incidents, defendant showed the young man pornography and gave him alcohol before initiating sexual activity with him. "Given the present set of facts," Dr. D'Urso opined that defendant "has become indiscrimin[ate] in terms of sexual choice. Pornography is not restricted to a sub-type of children, sexual contact has occurred with both minors and an adult, and grooming behaviors through the use of pornography and alcohol have been compulsive and repetitive." Therefore, Dr. D'Urso concluded that defendant's actions placed his two children at "serious risk of harm" as potential victims.
Defendant did not testify at the hearing and called no witnesses on his behalf.
Although the Division did not allege that J.C. abused or neglected Doug or Mary, it named her as a defendant in the action so that she could participate in its final disposition. The judge permitted J.C., who represented herself at the hearing, to cross-examine the witnesses who testified. J.C. did not call any witnesses to testify on her behalf.
At the conclusion of the hearing, the trial judge rendered a detailed written opinion, finding that the Division had established by a preponderance of the evidence that defendant placed his children at risk of serious harm because of his illicit activities in their home. The judge found that all of the victims who testified were "very credible." Based upon this testimony, the judge concluded that defendant had an "'uncontrolled sexual pattern'" of showing pornography, including child pornography, to children and giving them alcohol to groom them for his sexual advances.
Although defendant had not engaged in this activity with Doug and Mary, the judge found that the recent recurrence of this misconduct with M.M. supported Dr. D'Urso's expert opinion that defendant's sexual interests had become "'indiscrimina[te],' indicating that [defendant's] sexual behavior could extend to a group with which he previously had not acted sexually." Accordingly, the judge found that defendant's children were clearly at risk of becoming "potential victims" of defendant.
The matter was then transferred to another judge who, over the course of the next twenty months, conducted several dispositional hearings. On April 15, 2015, the judge entered an order permitting defendant to return to the family home on the condition that his contact with Doug and Mary was supervised by J.C. or a Division-approved supervisor. The judge then terminated the litigation. This appeal followed.
II.
On appeal, defendant contends that (1) the Division's abuse or neglect action under N.J.S.A. 9:6-8.21(c)(4)(b) should not have gone forward after the Division's initial determination that the allegation of sexual abuse was unfounded; (2) there was insufficient evidence of abuse or neglect concerning his two children, Doug and Mary; (3) Dr. D'Urso's report and testimony was a net opinion that should not have been admitted in evidence; (4) the certification the Division submitted authenticating the CD-ROM containing the photographs and videos of child pornography was improperly admitted into evidence; and (5) the trial judge mistakenly exercised his discretion by allowing M.M. to complete his testimony on Skype.
Our review of the trial judge's factual finding of abuse or neglect is limited; we defer to the court's determinations "'when supported by adequate, substantial, credible evidence.'" N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008) (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). The trial court is best suited to assess credibility, weigh testimony and develop a feel for the case, and we extend special deference to the Family Part's expertise. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010); Cesare, supra, 154 N.J. at 413. Unless the trial judge's factual findings are "so wide of the mark that a mistake must have been made" they should not be disturbed, even if we would not have made the same decision if we had heard the case in the first instance. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotation marks and citation omitted). "It is not our place to second-guess or substitute our judgment for that of the family court, provided that the record contains substantial and credible evidence to support" the judge's decision. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012).
In pertinent part, N.J.S.A. 9:6-8.21(c)(4)(b) 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 . . . 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[.]
A court does not have to wait until a child is actually harmed or neglected before it can act in the welfare of that minor. N.J. Div. of Youth & Family Servs. v. V.M., 408 N.J. Super. 222, 235-36 (App. Div.) (citing In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)), certif. denied, 200 N.J. 505 (2009). Nor does harm to the child need to be intentional in order to substantiate a finding of abuse or neglect. M.C. III, supra, 201 N.J. at 344.
In determining a case of abuse or neglect, the court should base its determination on the totality of the circumstances. N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011). A finding of abuse or neglect must be based on a preponderance of the evidence. N.J.S.A. 9:6-8.46(b).
Applying these standards to this matter, we are satisfied there was competent, credible evidence in the record to support the trial judge's finding that defendant abused or neglected his children by placing them at risk of serious harm based upon his illicit activities in the family home. We therefore affirm the judge's determination.
A.
In Point I of his brief, defendant argues that once the Division issued its initial determination on January 18, 2012 that the allegation of sexual abuse by defendant toward his own two children was unfounded, it was barred from later bringing the present action under N.J.S.A. 9:6-8.21(c)(4)(b). However, this argument ignores the fact that when the Division's first determination was made, the county prosecutor's office's investigation was still ongoing. Thus, even though the Division did not immediately proceed with a Title 9 action against defendant, it still insisted that defendant and J.C. enter into a safety plan to protect Doug and Mary while it continued to monitor the situation.
The record demonstrates that over the course of the next several months, additional victims came forward to provide information to the police, and the full extent of defendant's illicit activities, which included showing child pornography to M.M. in the fall of 2011 while Doug and Mary were in the home, came into focus. Accordingly, on April 25, 2012, just three months after the Division's initial administrative determination, the Division corrected its first investigative finding and concluded that defendant placed the children at risk of serious harm. In turn, this finding was later corroborated by Dr. D'Urso's expert report. Under these circumstances, we are satisfied that the Division properly initiated the present action.
The Supreme Court's decision in N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17 (2011) does not support defendant's contention that the Division was bound by its initial determination. In P.W.R., the Division determined that the parent's act of occasionally slapping her child did not constitute excessive corporal punishment and, unlike in the present case, it continued to maintain this position at the fact-finding hearing. Id. at 35-36. Under these circumstances, the Court held that "the trial court erroneously used the claim as support for its finding of physical abuse." Id. at 36 n.15. Here, however, the Division issued a corrected finding after substantiating the allegations concerning defendant based upon the information it received during the criminal investigation. Contrary to defendant's contention, nothing in the Court's decision in P.W.R. prevented the Division, after it received this information, from proceeding to protect defendant's children from the serious risk he posed to them.
B.
In Point II, defendant next argues that the evidence presented at the fact-finding hearing did not support the trial judge's finding that Doug and Mary were abused or neglected as defined by N.J.S.A. 9:6-8.21(c)(4)(b). We disagree.
Defendant correctly asserts that the Division did not present any evidence that he inappropriately touched his own children or showed them any of the child pornography described by M.M. However, as already noted, a court "need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." D.M.H., supra, 161 N.J. at 383. Thus, "[i]n the absence of actual harm, a finding of abuse and neglect can be based on proof of imminent danger and substantial risk of harm." N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 23 (2013) (citing N.J.S.A. 9:6-8.21(c)(4)(b)). "Predictions as to probable future conduct can only be based upon past performance. . . . We cannot conceive that the Legislature intended to guarantee parents at least one chance to . . . abuse each child." DYFS v. Robert M., 347 N.J. Super. 44, 68 (App. Div.) (quoting J. & E. v. M. & F., 157 N.J. Super. 478, 493 (App. Div.), certif. denied, 77 N.J. 490 (1978)), certif. denied, 174 N.J. 39 (2002).
In the present case, the Division presented uncontradicted, credible evidence that fully supported the trial judge's finding that defendant "engaged in various sexual acts with minors whom he groomed while in the capacity of their Boy Scout troop leader, and that [defendant] recently possessed child pornography[.]" The sudden recurrence of this illicit activity in the family home, as exemplified by defendant's improper conduct with M.M. in the fall of 2011, clearly placed the children at substantial risk of harm. For example, the children could have observed this illicit activity because it took place in the family home.
Even more significantly, however, Dr. D'Urso provided uncontradicted expert testimony that defendant had "become indiscrimina[te] in terms of sexual choice." His "sexual contact" was now occurring "with both minors and an adult[.]" Moreover, Dr. D'Urso opined that the "grooming behaviors" defendant employed through the use of pornography and alcohol on his victims "have been compulsive and repetitive." Under these circumstances, Dr. D'Urso concluded that defendant's "sexual compulsion cannot be predicted to be safe from his children."
When the Division initiated this action in 2013, Doug was thirteen years old and Mary was nine. Thus, the children were approximately the same ages as the boy scouts who were defendant's first victims. Although there had apparently been a gap in defendant's misconduct, defendant's actions with M.M. occurred in late 2011. Under the totality of these circumstances, defendant's argument that the risk to Doug and Mary was not "imminent and substantial" rings hollow. We therefore discern no basis for disturbing the judge's reasoned determination that defendant's actions placed the two children at risk of serious harm and constituted abuse or neglect within the meaning of N.J.S.A. 9:6-8.21(c)(4).
C.
In Point III of his brief, defendant asserts the judge improperly admitted Dr. D'Urso's expert report and testimony and placed too much weight upon his opinions in determining defendant placed his two children at risk of serious harm. This argument also lacks merit.
"[W]e rely on the trial [judge'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 [his] testimony." D.M.H., supra, 161 N.J. at 382 (citing Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599, 607 (1989)). Therefore, we exercise limited review of a trial judge's decision to admit or exclude expert testimony. See Townsend v. Pierre, 221 N.J. 36, 52-53 (2015) ("The admission or exclusion of expert testimony is committed to the sound discretion of the trial court."); Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008) (stating that trial court's evidentiary decision to admit expert testimony is reviewed for an abuse of discretion).
The Court in Townsend reviewed the law on net opinions. Expert opinions must be grounded in "facts or data derived from (1) the expert's personal observations, or (2) evidence admitted at the trial, or (3) data relied upon by the expert which is not necessarily admissible in evidence but which is the type of data normally relied upon by experts." Townsend, supra, 221 N.J. at 53 (quoting Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008)). The net opinion rule is a "corollary of [N. J.R.E. 703] . . . which forbids the admission into evidence of an expert's conclusions that are not supported by factual evidence or other data." Id. at 53-54 (quoting Polzo, supra, 196 N.J. at 183). Therefore, an expert is required to "give the why and wherefore that supports the opinion, rather than a mere conclusion." Id. at 54 (Borough of Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115, 144 (2013)). The net opinion rule directs that experts "be able to identify the factual bases for their conclusions, explain their methodology, and demonstrate that both the factual bases and the methodology are reliable." Id. at 55 (quoting Landrigan v. Celotex Corp., 127 N.J. 404, 417 (1991)).
On the other hand, "[t]he net opinion rule is not a standard of perfection." Id. at 54. An expert may ground an opinion in his or her personal experience and training. See State v. Townsend, 186 N.J. 473, 495 (2006); Rosenberg v. Tavorath, 352 N.J. Super. 385, 403 (App. Div. 2002) ("Evidential support for an expert opinion is not limited to treatises or any type of documentary support, but may include what the witness has learned from personal experience."). The failure to rely on sources the opponent deems important, or to organize one's opinion in a way the adversary considers appropriate, does not warrant exclusion as a net opinion. Townsend, supra, 221 N.J. at 54. These matters are left for cross-examination. Id. at 54-55.
Applying these principles, we discern no abuse of discretion by the trial judge. The judge found Dr. D'Urso's testimony credible and his opinion "persuasive." Dr. D'Urso fully explained the "whys and wherefores" for his conclusions. Although defendant did not submit to an evaluation, Dr. D'Urso reviewed the victims' allegations describing defendant's extensive history of improper behavior with children. Dr. D'Urso's thirty years of personal experience and training in the field of child sexual abuse and offender evaluations and assessment provided an ample foundation for his opinion that defendant posed a serious risk to his children. Under these circumstances, Dr. D'Urso's findings plainly did not constitute an impermissible net opinion. He was well qualified, his testimony and report addressed all the relevant issues, and his conclusions were firmly supported by the facts in the record.
D.
Turning to Point IV of defendant's brief, we agree with his contention that the trial judge mistakenly permitted the Division to introduce the certification used to authenticate the CD-ROM of computer images and videos into evidence. However, this error was harmless under the totality of the circumstances presented in this case.
N.J.R.E. 901 provides that "authentication or identification [is] a condition precedent to admissibility" of evidence. This condition precedent "is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims." Ibid. This court has stated that N.J.R.E. 901 "does not require absolute certainty or conclusive proof." State v. Mays, 321 N.J. Super. 619, 628 (App. Div.), certif. denied, 162 N.J. 132 (1999). Rather, "[t]he proponent of the evidence is only required to make a prima facie showing of authenticity." Id. at 628-29 ("sufficient indicia of reliability" to authenticate defendant as telephone caller when officer asked defendant's relatives and friends to tell defendant to call him, and officer received a call from a person who identified himself as defendant). Moreover, a judge is permitted to rely upon inadmissible evidence at a hearing conducted pursuant to Rule 104 to determine the authenticity of an exhibit because the rules of evidence, with certain exceptions not applicable here, do not apply in such a proceeding. N.J.R.E. 104(a).
At the fact-finding hearing, the Division authenticated the pornographic materials relevant to this case by submitting a certification of a detective assigned to the county prosecutor's office. The certification described the manner in which the CD-ROM containing these materials was prepared.
Under the principles discussed above, the judge was permitted to rely upon the detective's certification to authenticate the pornographic materials. However, the certification itself, which contained hearsay statements concerning the locations in the home where the pornography was found, should not have been admitted in evidence.
Nevertheless, the error in admitting the certification was harmless because M.M. testified at the hearing concerning the child pornography defendant showed him in November 2011. M.M. described the photographs and videos in detail and stated they were on a laptop computer in defendant's home. The judge found M.M.'s testimony credible.
In light of M.M.'s testimony on this subject, the admission of the certification does not provide a basis for overturning the judge's finding of abuse or neglect under N.J.S.A. 9:6-8.21(c)(4)(b).
E.
Finally, defendant argues in Point V of his brief that the trial judge erred by permitting M.M. to complete his testimony via Skype rather than in person. We disagree.
M.M. was living in Florida when the hearing began on April 4, 2013. M.M. was the Division's first witness. He completed his testimony on that date, left New Jersey, and returned home. By the next hearing date, April 12, 2013, the judge realized that he had not given J.C. the opportunity to cross-examine M.M. To correct this mistake, and to save M.M. the expense and inconvenience of having to return to New Jersey, the judge granted the Division's motion to permit M.M. to complete his testimony on June 24, 2013 via Skype.
Skype is a computer application that permits users to communicate over the internet by video using a webcam. --------
We are satisfied that the judge's decision was reasonable under the circumstances presented in this case. As our late colleague Judge Sylvia Pressler observed over twenty-seven years ago, the use of telephonic testimony is generally discouraged. Aqua Marine Products, Inc. v. Pathe Computer Control Systems Corp., 229 N.J. Super. 264, 274 (1988). Thus, before a witness is permitted to testify by telephone, or even by "a superior form of video-communication[,]" the proponent of the testimony must make a "satisfactory demonstration that the means to be used will ensure the essential integrity of the testimony for factfinding purposes." State v. Santos, 210 N.J. 129, 142 (2012).
The Division made the required demonstration here. The expense and inconvenience of requiring M.M. to travel over 1000 miles to return to New Jersey for the brief cross-examination J.C. planned was clearly the type of "special circumstance" or "exigency" that Judge Pressler noted would permit the taking of telephone testimony. Aqua Marine, supra, 229 N.J. Super. at 275. Moreover, unlike the situation in Aqua Marine, this was not a case where the identity of the witness was not known to the parties. Id. at 274. M.M. had already testified in person at the hearing, and the parties were able to both see and hear him as he completed his cross-examination on Skype.
Thus, although M.M. testified on a video feed from Florida, the parties were fully able to confront him and the judge was able to make a reasoned credibility determination. As the judge specifically found:
The [c]ourt had the opportunity to observe the testimony of [M.M.] on the stand and again when he testified via computer transmission (Skype) from Florida. His demeanor was of a man stating facts, regardless of whether they reflected poorly on him. He was very credible and attempts to impeach his credibility failed.Accordingly, we reject defendant's contention on this point.
F.
Having considered the record through the lens of our deferential standard of review and controlling decisions of law, we discern no basis for disturbing the judge's ultimate finding that defendant abused or neglected his two children within the intendment of N.J.S.A. 9:6-8.21(c)(4)(b).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION