Opinion
DOCKET NO. A-4466-10T3
08-05-2014
DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF YOUTH AND FAMILY SERVICES, Petitioner-Respondent, v. S.G., Respondent-Appellant.
David Perry Davis argued the cause for appellant. Nicole Sara Piccoli, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lisa A. Puglisi, Assistant Attorney General, of counsel; Ms. Piccoli, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Waugh, Nugent, and Accurso. On appeal from the Department of Children and Families, Division of Child Protection and Permanency, AHU 06-206. David Perry Davis argued the cause for appellant. Nicole Sara Piccoli, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lisa A. Puglisi, Assistant Attorney General, of counsel; Ms. Piccoli, on the brief). PER CURIAM
Respondent S.G. (Sam) appeals the November 14, 2008 final agency decision substantiating the Division's allegation that he sexually abused his son John. We reverse and remand for a new hearing.
We refer to appellant and members of his family by pseudonyms for the sake of convenience and confidentiality.
I.
We discern the following facts and procedural history from the record on appeal.
In November 2002, the Division received a referral from the Gloucester County Prosecutor's Office alleging that Sam had sexually abused John when he was between eight and ten years of age. Following an investigation, the Division substantiated the allegations of sexual abuse. In May 2003, the Division notified Sam of its finding, which Sam chose to appeal.
The appeal was stayed pending the resolution of criminal charges. In November 2006, after the dismissal of the criminal charges against Sam, the matter was forwarded to the Office of Administrative Law (OAL) as a contested case. The OAL hearing took place during March and July 2008, over a total of seven days. The following facts were developed through the testimony and exhibits offered during the hearing.
John was born in December 1987. His parents, Sam and Megan, had engaged in a brief romantic relationship that resulted in Megan's pregnancy and had ended before John was born. John lived with Megan, and Sam had occasional parenting time. When John started kindergarten, Sam's parenting time increased and included overnights.
In 1997, while he was in third grade, John told Megan that he did not want to spend as much time with Sam. According to Megan, John did not articulate specific reasons for his request, although he complained that Sam took baths with him and used the bathroom while John was bathing.
When Sam's parenting time began to decrease in 1996, a court order was entered establishing custody and a parenting-time schedule. Megan was declared the parent of primary residence, and Sam was given parenting time every other weekend and one night per week every other week.
While the Family Part proceedings were pending, Megan alleged that John had bruises resulting from physical abuse by Sam. He alleged that Megan, who was working in photography at the time, doctored the photographs to show bruises on John. The Family Part judge determined that there had been no child abuse, but requested the Division to provide Sam with training in parenting skills.
In April 2002, police executed a search warrant for child pornography at Sam's home. The search uncovered no pornography, and no charges were filed against Sam. The police took John, who was alone at Sam's house at the time of the search, to Megan's house after they completed the search. Although one of the officers suggested that Megan take John for a "forensic physical," Megan did not do so. According to Megan, after the police left, John told her "I think my dad's guilty" and wondered "are there pictures of me out there."
In November, the principal of John's school requested Megan contact the father of another student. He informed Megan that his daughter had read an online journal written by John, which was titled "Evil [John's] Journal." It contained threats against the daughter. The father agreed not to press charges if John agreed to participate in therapy.
After speaking with the other parent, Megan reviewed the journal herself. It contained mostly personal musings, stories, and poems. However, there were several entries from October that referred to sexual activity, including the following: "[I] remember him fucking me . . . [touching] me . . . and [I] thought it was the only way to make him happy, to make him go away. . . . [I] thought this would be the last time."
The following weekend, while driving to visit her parents in Delaware, Megan questioned John about the journal. According to Megan, John became angry and told her that "it was none of her business" and "I'm handling it, I don't want to talk about it." Megan also asserted that John admitted to her that "dad would come in the room and bother him at night."
That Monday, Megan contacted the Gloucester County Prosecutor. Officer Scott Penuel and William Donovan, a civilian agent for the prosecutor's office, interviewed John on November 6. During the interview, which was video recorded, John recounted taking baths with Sam as a preschooler and told them that he became uncomfortable. According to John, when he was in third grade, Sam would touch his penis through his underwear. John also related that Sam would sometimes remove his underwear. A few times, according to John, Sam tried to give him oral sex and would try to get John to reciprocate.
John told the investigators that the pressure would eventually overwhelm him, and he would relent and perform oral sex on Sam for a few seconds, but without ejaculation. John described one incident during which Sam simulated anal sex with him, but did not actually penetrate him. John also reported that Sam hit him, which John believed caused Sam to become sexually aroused.
John suggested to the investigators that Sam, who kept up on technology, might have placed hidden cameras in the house. He also expressed concern that Sam sexually abused other boys, including members of the high school track team he coached and one of his sons from his earlier marriage.
Once the prosecutor's office notified the Division, the Division arranged for John to be examined by Marita Lind, M.D., of the University of Medicine and Dentistry of New Jersey Center for Child Support, Regional Diagnostic and Treatment Center for Child Abuse in Stratford. The Division referred John to Lind for the "diagnosis and treatment of any residual to inappropriate sexual contact."
After receiving background information from Megan, Lind spoke with John alone. John's description of Sam's alleged sexual abuse was consistent with the disclosures made during the interview conducted by the prosecutor's office a few days earlier. After a physical examination, Lind verified a concern expressed by Megan that John was cutting himself.
Lind's assessment was that John should "see a child mental health professional who could determine the impact of these events and provide an appropriate plan of treatment." She was "concerned that he needed to have psychiatric evaluation and treatment specific for the concern of child sexual abuse and for the concern of the anger . . . self injurious things." However, Lind made no determination concerning whether John had been sexually abused by Sam.
At the trial, the Division did not call John, who was by then an adult, as a witness at the hearing. Instead, it offered the video of his interview by the prosecutor's investigators as substantive evidence. The administrative law judge (ALJ) concluded that John's statements during the interview were reliable because they were confirmed by Lind's testimony at the hearing. On that basis, the ALJ held the video was admissible for its truth under N.J.S.A. 9:6-8.46(a)(4).
The ALJ issued a written initial decision on September 3, 2008, in which he found that the Division had sustained its burden to prove that Sam had sexually abused John within the meaning of N.J.S.A. 9:6-8.21(c)(3). Sam filed exceptions to the decision, and the Division responded. In November, the Director of the Division adopted the ALJ's decision. As a result, Sam's name was placed on the Child Abuse Registry, N.J.S.A. 9:6-8.10a(a), and became available to those authorized to seek such information through a Child Abuse Record Information (CARI) request, N.J.S.A. 9:6-8.11; N.J.A.C. 10:121A-4.6.
In May 2011, Sam filed a motion to file a notice of appeal out of time, asserting that he had not received a copy of the final agency decision in 2008. We remanded the case to the Division to address that issue. The Director determined that the Division could not establish that it had actually served Sam with a timely copy of the decision, and consequently chose not to oppose the motion, which we then granted.
II.
Sam has raised the following issues on appeal:
I. THE DETERMINATION OF SUBSTANTIATED CHILD NEGLECT IS ARBITRARY, CAPRICIOUS AND/OR UNREASONABLE AND SHOULD BE REVERSED BY THE APPELLATE DIVISION.
a. The trial court erred in determining that "Evil [John's] Journal" and transcript of the police interview were sufficiently reliable so as to constitute admissible hearsay.
b. The initial question[ing] of [John] was so improper as to render [the ALJ]'s failure to exclude it an abuse of discretion.
c. The trial court erred by failing to exclude "Evil [John's] Journal" or any reference to it based on the failure of the Division to authenticate it.
II. THE DIVISION ERRED IN DETERMINING THAT THERE WAS SUFFICIENT CORROBORATION OF [JOHN]'S HEARSAY STATEMENTS TO SUSTAIN A FACT FINDING OF ABUSE.
a. Both [the ALJ] and the Director misstated the contents of Dr. Lind's report.
b. The finding that [John] required additional psychiatric help was
insufficient corroboration of his hearsay statement to justify a finding of abuse.
III. DEFENDANT'S DUE PROCESS RIGHT TO CONFRONT HIS ACCUSER WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO COMPEL THE DIVISION TO CALL DEFENDANT'S ACCUSER.
A.
Our scope of review of an administrative agency's final determination is limited. In re Carter, 191 N.J. 474, 482 (2007). We accord a "strong presumption of reasonableness" to the agency's exercise of its statutorily delegated responsibilities. City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). The burden of showing that the agency's action was arbitrary, unreasonable, or capricious rests upon the appellant. See Barone v. Dep't of Human Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).
The reviewing court "should not disturb an administrative agency's determinations or findings unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence." In re Virtua-West Jersey Hosp. Voorhees, 194 N.J. 413, 422 (2008); see also Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9-10 (2009).
Absent arbitrary, unreasonable, or capricious action, or a lack of support in the record, "[a]n administrative agency's final quasi-judicial decision will be sustained." In re Herrmann, 192 N.J. 19, 27-28 (2007). The court "may not vacate an agency determination because of doubts as to its wisdom or because the record may support more than one result," but is "obliged to give due deference to the view of those charged with the responsibility of implementing legislative programs." In re N.J. Pinelands Comm'n Resolution PC4-00-89, 356 N.J. Super. 363, 372 (App. Div.) (citing Brady v. Bd. of Review, 152 N.J. 197, 210 (1997)), certif. denied, 176 N.J. 281 (2003).
In reviewing administrative adjudications, an appellate court must undertake a "careful and principled consideration of the agency record and findings." Riverside Gen. Hosp. v. N.J. Hosp. Rate Setting Comm'n, 98 N.J. 458, 468 (1985). "If the Appellate Division is satisfied after its review that the evidence and the inferences to be drawn therefrom support the agency head's decision, then it must affirm even if the court feels that it would have reached a different result itself." Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988). If, however, our review of the record leads us to conclude that the agency's finding is clearly erroneous, the decision is not entitled to judicial deference and must be set aside. L.M. v. Div. of Med. Assistance & Health Servs., 140 N.J. 480, 490 (1995). We may not simply rubber stamp an agency's decision. In re Taylor, 158 N.J. 644, 657 (1999).
Although an appellate court is "in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue," Mayflower Secs. Co. v. Bureau of Secs., 64 N.J. 85, 93 (1973), if substantial evidence supports the agency's decision, "a court may not substitute its own judgment for the agency's even though the court might have reached a different result," Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992 ) .
B.
A child under the age of eighteen is deemed abused or neglected if, among other things, a parent "commits or allows to be committed an act of sexual abuse against the child." N.J.S.A. 9:6-8.21(c)(3). Sexual abuse consists of "contacts or actions between a child and a parent . . . for the purpose of sexual stimulation of either that person or another person." N.J.S.A. 9:6-8.84. It includes "the employment, use, persuasion, inducement, enticement, or coercion of any child to engage in, or assist any other person to engage in, any sexually explicit conduct or simulation of such conduct." N.J.S.A. 9:6-8.84.
In the context of a hearing to determine whether sexual abuse has occurred, the Division has the burden to prove abuse by "a preponderance of the evidence." N.J.S.A. 9:6-8.46(b)(1). In such a hearing, "only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(b)(2); see also 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)). Although hearsay evidence is generally admissible at an OAL hearing, "some legally competent evidence must exist to support each ultimate finding of fact to an extent sufficient to provide assurances of reliability and to avoid the fact or appearance of arbitrariness." N.J.A.C. 1:1-15.5(b); see also Weston v. State, 60 N.J. 36, 51-52 (1972).
C.
The appeal in this case centers on the Division's reliance on John's hearsay statements during the videotaped interview by the prosecutor's investigators, rather than his live testimony, as proof of sexual abuse.
We have noted that "[i]t is difficult to marshal direct evidence of parental abuse and neglect because of the closed environment in which the abuse most often occurs and the limited ability of the abused child to inculpate the abuser." N.J. Div. of Youth & Family Servs. v. A.C., 389 N.J. Super. 97, 108 (App. Div. 2006). Due to this difficulty, N.J.S.A. 9:6-8.46(a)(4) provides an exception to the hearsay rule and allows "previous statements made by the child relating to any allegations of abuse or neglect [to] be admissible in evidence; provided, however, that no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect." While "[t]he most effective types of corroborative evidence may be eyewitness testimony, a confession, an admission or medical or scientific evidence[,] . . . 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)).
Sam argues that the statements in the video were never corroborated, as a consequence of which the Division failed to satisfy the requirements of N.J.S.A. 9:6-8.46(a)(4). The Division argues that John's statements in the video were sufficiently corroborated to be admissible under N.J.S.A. 9:6-8.46(a)(4). It points particularly to the fact that John gave largely consistent statements concerning the abuse to Megan and Lind, in addition to the prosecutor's investigators in the video. It also relies on Lind's testimony concerning her findings following her evaluation of John and the testimony provided by Megan.
The Division cites no cases for the proposition that a child's consistent retelling of his accusations of sexual abuse satisfy the corroboration requirements of N.J.S.A. 9:6-8.46(a)(4), nor have we found any such cases. While the ALJ found the videotaped statement to be internally consistent and plausible, as well as generally consistent to John's statements to others, he did not cite that as corroboration for the purposes of the statute.
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Although he discussed the statements given by John to other people, the ALJ relied solely on Lind's testimony in concluding that John's statements in the video had been corroborated.
[Lind] reached a conclusion that further intervention by a child mental health professional was necessary. Her opinion as to this need is corroborative of the fact that this child presented a consistent picture of one who claimed to have been violated and demonstrated significant signs and symptoms that a pediatrician and expert in sex abuse would expect from someone who had undergone what he described. Further, she determined that he needed additional psychological/psychiatric assistance to deal with what was affecting him, a determination that would naturally flow if one had undergone what [John] said he had and then demonstrated the signs and symptoms that Lind saw, such as anger and of body cutting that [Megan] also witnessed. Thus, [] Lind's testimony serves to corroborate [John]'s statement and is the type of competent evidence that N.J.S.A. 9:6-8.46[(a) and (b)] and N.J.A.C. 1:1-15.5 require as support of the victim's hearsay statement.
The problem with the ALJ's reliance on Lind's testimony is that Lind herself did not purport to find that John had actually been sexually molested by his father or anyone else. In fact, when the ALJ asked Lind whether she "perceive[d] it as part of [her] responsibility . . . to make a determination as to whether what [John] was telling [her] about having been abused was true," she responded that she did not.
Lind found no physical signs of molestation, such as evidence of penetration or a sexually transmitted disease. Her only physical finding was that John had been cutting himself, of which she conceded on cross-examination she "would not be the person to determine the cause." She also conceded that the cutting could have other causes other than sexual abuse.
Our review of the record convinces us that the ALJ erred when he determined that Lind's testimony provided sufficient corroboration for the purposes of N.J.S.A. 9:6-8.46(a)(4). Although she was qualified to give expert opinion, it is clear to us that the ALJ went beyond the scope of Lind's expertise and the nature of her opinion in finding it sufficiently corroborative of the John's videotaped statement.
In addition, the video, rather than live testimony, was used in the context of a case in which the alleged victim of sexual abuse was not "a child" at the time of the hearing. John was twenty at the time, and there is no suggestion that he could not have been called as a witness by the Division. Consequently, at the time of the hearing, "the limited ability of the abused child to inculpate the abuser" that justifies the hearsay exception embodied in N.J.S.A. 9:6-8.46(a)(4) was not an issue. A.C., supra, 389 N.J. Super. at 108; see N.J.R.E. 803(c)(27) (limiting the use of such hearsay statements in trials generally to witnesses age twelve and under). The Division's reliance on the video without calling the now adult victim to testify in person gives, at the very least, the "appearance of arbitrariness." N.J.A.C. 1:1-15.5(b).
For these reasons, we reverse the Division's finding of abuse and remand for a new hearing.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION