Opinion
DOCKET NO. A-5638-11T1
06-20-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. C.B., R.B., and D.R., Defendants-Respondents. IN THE MATTER OF A.B., Minor-Appellant, and E.B.R., Minor-Respondent.
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor-appellant A.B. (Jennifer Holsey, Assistant Deputy Public Defender, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Child Protection and Permanency (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief). Joseph E. Krakora, Public Defender, attorney for respondent C.B. (Beth Anne Hahn, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for respondent D.R. (Anthony J. Vecchio, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor-respondent E.B.R. (Lisa M. Black, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Simonelli, and Haas.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-220-11.
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor-appellant A.B. (Jennifer Holsey, Assistant Deputy Public Defender, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Child Protection and Permanency (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief).
Joseph E. Krakora, Public Defender, attorney for respondent C.B. (Beth Anne Hahn, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for respondent D.R. (Anthony J. Vecchio, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor-respondent E.B.R. (Lisa M. Black, Designated Counsel, on the brief). PER CURIAM
The Law Guardian, acting on behalf of A.B., a girl born in 1995, appeals from the order of the Family Part dismissing a verified complaint filed by the Division of Youth and Family Services (Division), which charged A.B.'s stepfather, D.R., with sexually molesting her when she was between the ages of thirteen and fourteen years old. The Division also charged A.B.'s biological mother, C.B., with abuse and neglect for her failure to protect her daughter from D.R.'s sexual advances. The trial judge conducted a fact-finding hearing over a two-day period in which the Division presented testimony from an intake caseworker, a psychologist from Audrey Hepburn Children's House (Audrey Hepburn), and A.B. herself. The Division also introduced into evidence the record of the investigation that preceded the filing of these charges.
We use initials to protect the identities of the minors involved in this case. N.J.S.A. 2A:82-46.
On June 29, 2012, Governor Chris Christie signed into law A-3101, which reorganizes the Department of Children and Families, including the renaming of the Division of Youth and Family Services as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.
Although A.B. was sixteen years old at the time of the hearing, the court decided to allow her to testify in camera with the attorneys submitting written questions, which the judge screened and then posed to the witness. Although this appears unusual in light of A.B.'s age, Rule 5:12-4(b) gives the trial judge the discretion to permit a child's testimony to be "taken privately in chambers." None of the parties have challenged the judge's decision in this respect.
As is often the circumstance in cases involving the sexual abuse of a child, the Division's allegations against defendant were heavily dependent on A.B.'s credibility. There were no eyewitness accounts corroborating A.B.'s testimony, and the nature of the molestation described by A.B. could not produce forensic physical evidence detectable through a conventional medical examination. After considering the testimony of the witnesses called by the Division, especially the testimony and report of the psychologist from Audrey Hepburn, the court dismissed the case. Despite finding A.B.'s testimony describing the nature of the molestation credible, the court concluded the Division failed to satisfy its burden of proof by not presenting evidence corroborating the abuse.
The trial judge's legal conclusion that the evidence presented by the Division was insufficient to sustain a finding that A.B. was sexually molested by D.R. is incorrect as a matter of law. We thus reverse and remand this matter for the trial court to reexamine the evidence and reconsider its ruling after applying the correct legal standard. We derive the following facts from the record developed before the trial court.
Although the Law Guardian has requested that upon remand we order this case to be reassigned to a different judge, we have no reason to conclude this trial judge will not follow this court's ruling and reexamine this matter in a fair and rational manner, consistent with the legal principles we will discuss herein.
I
On September 27, 2010, the Division received a referral from Katherine White, the guidance counselor at A.B's High School. White informed the Division that A.B. had made certain disturbing allegations concerning her stepfather. According to White, A.B. claimed D.R. consumed alcohol frequently and to the point of intoxication and behaved inappropriately with her friends. Most alarmingly, A.B. alleged that when she was between the ages of thirteen and fourteen, D.R. "was touching her on her genital area on top of her clothing."
As reflected in the Division's records, two of A.B.'s friends told White that A.B. had made similar disclosures to them. On that same day, White interviewed A.B. and her cousin S.B. At the time, A.B. was living with her half-sister, E.B.R., her mother, C.B., her stepfather, D.R., her maternal grandmother, an aunt, and two cousins.
A.B. informed White she had not told her mother about the sexual abuse because her mother had previously ignored D.R.'s inappropriate behavior. A.B. decided to tell her friends about the abuse on September 27, 2010, following an argument she had with D.R. about his behavior around her friends. White also indicated that S.B. referred to D.R. as a "drunken pedophile." According to the Division's intake records, S.B. told White that D.R. had touched her in the same way he touched A.B., but discontinued this alleged molestation when S.B. turned thirteen years old.
After conferring with the Prosecutor's Office that same day, a Division supervisor dispatched a caseworker accompanied by a police officer to A.B.'s family's home. Although A.B.'s mother C.B. was not there, the Division caseworker and police officer were able to interview A.B.'s aunt "Carli," whom despite appearing "extremely upset," agreed to permit the caseworker to speak to her daughter, S.B. and her niece A.B. Division records describe A.B. as appropriately "dressed and clean."
"Carli" is a fictitious name to protect the privacy of this individual.
As summarized in the investigation report, A.B. told the detective at her home that D.R. began sexually abusing her when she was thirteen years old.
She said that [D.R.] got in her face and touched her inappropriately [for] about a year, when she was 13 to 14 years old. [A.B.] said that [D.R.] tried to touch her while she was in the computer room and rubbed his hands on her jeans (zipper area). [A.B.] said that he attempted to do the same when she was in her room listening to music. She said that he came in and tried to touch her zipper area and she told him to stop and he did.
A.B. also told the detective that she had discussed these events with her mental health therapist the previous month. According to A.B., her mother "always takes [D.R.'s] side[,]" chastises her for having an "attitude[,]" and excuses or disregards D.R.'s behavior. She claimed these were the reasons why she had not told her mother about the abuse. A.B. also alleged having a big argument with her stepfather when he "tried to kiss" one of her friends the previous weekend.
C.B. arrived home while the Division caseworker and the detectives were interviewing her daughter. C.B. accused A.B. of lying and being defiant and disrespectful since she had married D.R. in July of that year. At this point, all of the family members present were taken to the Bergen County Prosecutor's Office for further investigation. While at the Prosecutor's Office, C.B. "began to cry and said that she loves her daughter [A.B.] but [didn't] believe that [D.R.] did anything to her because he would never hurt the children." She attributed A.B.'s problems to her biological father abandoning A.B. at an early age in her life. According to C.B., this was the reason her daughter was in psychotherapy.
A.B. was interviewed later that evening by a detective from the Prosecutor's Office. She described in detail the incidents of alleged abuse. As reflected in the investigation report:
[A.B] said that she was a friend of [D.R.], but then everything changed. . . . She said that when she turned 13 or 14 years of age, their relationship changed. She said that she was 13 years old, she was sitting in the computer room (located in the dining area) and [D.R.] started talking to her and rubbed his hand on her jeans, on the zipper area and then asked, "does this feel good" and then she said "No" and he stopped. . . . [A.B.] said that [the] other incident took place when she was in her bedroom when she was listening to music with the door closed and [D.R.] knocked and asked her if it was okay for him to come in. She said that [D.R.] did the same thing; he put his hand
on her jeans on the zipper area and rubbed her private area. She said that she made an excuse and told him that she was tired.
The Prosecutor's Office's detectives interviewed D.R. at approximately 11:30 that same night. He denied A.B.'s allegations of abuse and explained that A.B. had been disrespectful to him since he married her mother. D.R. conceded that he may have accidentally touched A.B. while tickling and wrestling with her, but claimed any possible touching of the child's genital area was inadvertent and unintentional. Based on these interviews, the Prosecutor's Office determined that there was insufficient evidence to pursue a criminal case against D.R.
However, the Division instituted a Safety Protection Plan, restraining D.R. from residing in the same home as A.B. and her siblings. On September 28, 2010, the Division informed D.R. he was required to complete and submit a substance abuse evaluation. D.R. also agreed to consult with a certified drug and alcohol counselor on September 30, 2010. As a result of this consultation, D.R. was referred to a Level I Outpatient Treatment program. The referral was based on D.R.'s family history and past disclosure of alcohol abuse.
On December 16, 2010, the Division received a report from D.R.'s mental healthcare provider indicating he had completed a substance abuse assessment and had attended three counseling sessions for substance abuse. He agreed to continue to attend these sessions for three months. The results of D.R.'s psychological evaluation indicated he was "an insecure individual who develops and maintains relationships by presenting a façade of what he believes is polite, dutiful and conscientious behavior that others are likely to favorably regard." The psychologist concluded that D.R. "falls within the low risk range for perpetrating an act of abuse; however, substantiation of abuse should be based on the alleged victim's disclosure and not [D.R.'s] defensive presentation during the current interview." (Emphasis added).
On December 23, 2010, the Division received a medical report from Audrey Hepburn indicating that A.B. did not suffer from acute or chronic trauma. Of particular relevance here, the examination neither confirmed nor denied the possibility of sexual abuse. The psychological report, received by the Division on February 1, 2011, indicated that
when [A.B.] was 13 years old, [D.R.] touched her. She stated that he touched her over her clothes on her pants, "up on my legs on the zipper part," while she was on the computer. She explained he also touched her when she was "sitting on the bed." She stated that her mother was either not at home or upstairs. [A.B.] stated, "He (referring to [D.R.]) touched me on my clothes up on my legs. He felt on my pants. One time heThe psychologist recommended A.B. seek therapy at Audrey Hepburn for "treatment of the sexual molestation as well as the negative consequences of her disclosure."
kissed my neck and I slapped him. He said, 'Tell me it feels good.' I said no." She reported that she told [D.R.] that she would tell, and "he got up and left." She denied that any further incidents occurred.
On February 2, 2011, the Division received a parenting evaluation of C.B. indicating she "was unable to consider that her daughter may have at least been made to feel uncomfortable by [D.R.]" The report noted that C.B.'s "dependence on her current relationship and her attempts to preserve her relationship limit[ed] her ability to support or protect [A.B.]." C.B. dismissed A.B.'s allegations against her stepfather as exemplary of her daughter's "history of lying."
The parenting evaluation report noted that C.B. speculated as to a possible "motive" to explain why her daughter would fabricate these disturbing allegations against her husband. On this issue, the report indicated that C.B. attributed these accusations by A.B. as motivated by an unwarranted antipathy she had against her stepfather. The report concluded with the admonition that C.B.'s "ability to support and protect her daughter is limited." Her willingness or motivation to comply with the Division's plans or suggestions were based on her desire to remain out of trouble. "However, it is unlikely she will be able to emotionally to [sic] support her daughter as she does not believe her disclosure."
II
The Division's case consisted primarily of A.B.'s in-court testimony. In this respect, the record shows A.B. found her experience in court emotionally traumatic. When A.B. entered the trial judge's chambers for her in camera testimony, she was "nervous" and "appear[ed] tearful." In response to the judge's request to describe the sexual abuse, A.B. answered: "He touched [me] over my pants. And. . . asked me if it felt good." She indicated this type of molestation occurred "[a]bout like four [times], until I realized what was going on." When asked to identify where this took place, A.B. testified, "[w]hen I was on the computer, when I was on the couch, and when I was on my bed."
The trial judge then asked A.B. to clarify when and where the abuse occurred:
Q. And you told me where they took place?
A. Yes.
Q. Once -- always in the family home?
A. Yes.
Q. Once when you were on the computer. Once when you were watching television. And what about the other two times?
A. One was on my bed. And I think I was wrong. The other one was on the computer. It was twice on the computer.
Q. Twice on the computer?
A. Sitting on the computer.
Q. Once on the bed and once in front of the television?
A. Yes.
Q. Can you give me a month and a year when this happened? You've told me 2010.
A. Yes. I don't know an exact month.
According to A.B., the first instance of abuse took place at night, while her family was home, but no one else was near. The second one also occurred at night, while the rest of her family was home asleep. The third instance occurred in her bedroom at night; the fourth occurred at night while she was using the computer. Her family members were home each time but were not near enough to see if anything untoward occurred. A.B. told three of her friends about these instances of abuse a few months after they occurred.
During her testimony, A.B. also described two incidents she perceived D.R. acted or behaved inappropriately with her friends.
Q. During the initial investigation in this matter, you indicated that [D.R.] was inappropriate with your friends. Can you describe what ways [D.R.] was . . . inappropriate with your friends?
A. I know that one friend, his name is [Cooper] --
. . . .
A. And lived like -- I know that one day he was -- my friend [Cooper] was wearing like a thong and I guess he saw it. And so, he mentions it and said something like that.
Q. So, he mentioned that [Cooper] was wearing a thong?
A. He like -- I can't explain it.
Q. It's not -- I'm trying to understand what you're saying.
A. I -- know. I -- I can't explain it -- it.
Q. But you -- that struck you as being inappropriate?
A. Yes. It --
Q. He was commenting on his underwear basically?
A. -- It wasn't like commenting. More like --
Q. He was commenting?
A. -- it was both. It was more touching and commenting.
Q. Touching [Cooper]?
A. And commenting.
Q. What did [Cooper] do, when that happened?
A. His -- he reacted and just left.
Q. Were there any other instances where [D.R.] was inappropriate with your friends?
A. I know that my -- one of my other friends, she's not really my friend anymore, but we were outside, or whatever, and I guess my friend, her name was [Veronica], he was talking to her. And, when I came outside, it looked like he was gonna like kiss her or whatever. And so, I pulled her away. And I was -- and he got like mad and my mom got mad, and said that he was only playing. And I don't think he was.
After hearing A.B.'s testimony regarding D.R.'s relationship with her cousin and sister, the trial judge decided to take a lunch recess to permit A.B. to take a break. Before bringing A.B. back into chambers, the trial judge heard discussion on several questions and made the following comment:
I -- I must say, for the record, I have done several child interviews during my time as a CIC judge. And I've seen children with different degrees of reluctance to speak to the Court. I have never seen a child more reluctant and more upset in Chambers than -- than this child. In my experience anyway. And clearly, I -- I don't -- I'm sure all Counsel will be able to explain to me or I will be able to have this explained to the Court through testimony as to why this child is this upset even at this point in the proceedings. But this child was very
reluctant to speak to the Court, very upset, didn't want to be here, didn't want to talk about this issue. These were all impressions that the Court got. And I think they're appropriate for me to place those on the record.
[(Emphasis added).]
"CIC" stands for "Children in Court."
--------
At the end of this short recess, the trial judge asked A.B. about her "history of lying." A.B. explained that when she said she had a history of lying, she was referring to matters that were not relatively "serious," like "[l]ying about not having any homework." She emphasized that: "I haven't lied about serious things. It was all . . . only school-wise." She explained that she was afraid to tell her mother about the abuse. When the judge asked A.B. to explain her "basis for that feeling," A.B. responded: "I was right. She didn't believe me. . . . I feel she would believe her husband over me." The judge concluded A.B.'s in camera examination by noting for the record that "all the questions that the lawyers [have] given me" were covered.
Investigator Vilma Deleon was the next witness called by the Division. She visited A.B.'s home the day the Division received the referral from the guidance counselor. Deleon interviewed A.B. with a detective from the Creskill Police Department. Deleon testified that A.B. told her D.R. "was touching her over her private area around the . . . zipper area" two different times. Deleon indicated that according to A.B., she was between thirteen and fourteen years old when the incidents occurred.
Deleon also testified that when C.B. returned home, she immediately said A.B. "was lying, that [D.R. would] never do such an action, and that she would like to get to the bottom of that." C.B. reaffirmed her unwillingness to believe her daughter when she was later interviewed by detectives at the Prosecutor's Office. C.B. "felt that - - that her daughter was not being truthful, that her daughter was going through a phase."
The fact-finding hearing concluded with the testimony of the Division's final witness, Dr. Anthony D'Urso, the Supervising Psychologist at Audrey Hepburn. All parties stipulated to Dr. D'Urso's qualifications as an expert in the area of child abuse and neglect. With respect to A.B.'s allegations of abuse, Dr. D'Urso testified that:
she again indicated that there were two separate occasions somewhere between the ages of 13 and 14, where she was touched over clothing in her vaginal area. She provided some context of the circumstance. One of the times was in her room. There was a second time, she relayed there was a conversation that occurred between her and her stepfather, something to the affect [sic] does that feel good? She had indicated no.
When asked about A.B.'s ability to distinguish between the truth and a lie, Dr. D'Urso responded: "[S]he was able to do so. She provided us with definitions. She understood the - - the meaningfulness of the evaluation." Dr. D'Urso also found C.B.'s lack of support of A.B. a "very difficult" issue that could affect the impact of the abuse.
Dr. D'Urso emphasized that the staff at Audrey Hepburn "clinically supported" a finding of abuse, meaning
[t]hat she gave us details. She made a disclosure of the event that had some consistency with things we know about kids who are abused. Where our purpose, in the evaluation, is for purposes of treatment and making a plan on how to kind of move not only the child, but the family forward. So, what it means is, that she gave us -- in this case, she gave us allegations that were consistent. She didn't expand the allegation. She didn't change the allegations in relationship to her mood. She continued to express concern about the -- the other -- other things attached to abuse. The loss of relationship with her mom. The anger she felt. The absence of support. The avoidance of treatment. And so, those kinds of dynamics would be hard to kind of make up in their entirety. So, we saw that both her verbal statements and the behaviors that we were observing, told about, saw in the record would be consistent with a child who experienced some form of abuse.
[(Emphasis added).]
C.B.'s attorney questioned Dr. D'Urso about A.B.'s inconsistent accounts concerning the number of times D.R had allegedly sexually abused her. Specifically, A.B. told her psychotherapist that it had occurred only twice, while in other settings, like her disclosure to the school guidance counselor and her testimony in this hearing, A.B. had indicated as many as four specific incidences of abuse. C.B.'s counsel asked Dr. D'Urso to opine on the significance of these discrepancies.
Q. So, . . . if I can sort of pose a hypothetical to you. If the background information, that [Audrey Hepburn] had received, in addition to what's in your report, was a subsequent statement made by the child that it happened four times; a statement that she told . . . the guidance counselor, at school, that it happened eight to ten times, okay; the -- the statement that she -- and in fact had mentioned it to her aunt a year earlier, okay; and inconsistent statements as to when she told her friends about that, . . . had that been part of the background information, that would have been inquired to as part of the evaluation process?
A. If the background material, given to us, was inconsistent with the child's statements on interview, that should have been inquired. Correct.
Dr. D'Urso testified that inconsistencies of this type require additional exploration and could have resulted in a different opinion. This kind of exploration would also delve into the materiality of the discrepancy. Specifically, Dr. D'Urso noted that lies about homework and potential lies about abuse are "certainly substantively different. It would be reasonable to explore." The fact-finding hearing concluded at this point. D.R. did not present any witnesses.
III
The trial judge's analysis was misguided from its inception due to the court's failure to distinguish between a witness's in-court testimony that is subject to cross-examination, and out-of-court statements, which require corroboration. With respect to A.B., the trial judge noted the inconsistencies between her in-court testimony and her accounts of the frequency of abuse she allegedly gave to her treating psychotherapist, the school guidance counselor, and law enforcement investigators. The judge made the following initial findings:
My credibility finding with respect to [A.B.] was that she was credible on certain aspects of her testimony and not credible on others. I found her change in her mood, while we were interviewing, to be a little inconsistent. She came in very tearful, very upset. She came in, after lunch, almost like there was no problem whatsoever, not displaying -- displaying any emotion at all, like a regular kid, where nothing had occurred. So, I found that change in her demeanor to be a little unusual.Notwithstanding these misgivings, the judge made the following specific finding with respect to A.B.'s credibility which, unfortunately, was interwoven with the court's legal misapprehensions:
She was a little defensive in some of her questions. Although not terribly, but there were certain questions, when I asked, she was slightly defensive. When I asked the question about the -- the statements that she made about [D.R.] getting -- let him get in her face and then I'll -- you know, then I'll take care of him; I forget the exact quote; she became very defensive. And said
that she was -- she was angry, she was mad, that's why she said it.
. . . .
The issue of the lying, she said she lied about homework. So, she did admit that freely. But my view on her admission of lying about homework was, if she lied about her homework, maybe there were other things that she may have amplified as well.
When I asked her about why she changed her story from the eight times to the four times to the two times, she said she didn't remember that; which I found unusual, because the child was 15 years of age. And there was no other explanation, other than I don't remember doing that.
So, I did not find her the most credible witness that I've ever interviewed. However -- or child that I've ever interviewed. However, there were times, during her testimony, she displayed tremendous emotion. And my view was that I couldn't totally discount her testimony. But I did not find it to be so compelling that I was one hundred percent certain that what she was telling me was the truth.
[T]he Court does not find that [A.B.] has failed to tell the Court the truth. The Court does find that the Division did not provide the corroboration needed for this Court to sustain a finding of abuse and neglect.
. . . .
I'm not sure of exactly what the truth in this matter is. There are two people who know for sure what happened, [D.R.] and [A.B.] So, I'm not finding, today, that [A.B.] was not telling me the truth in Chambers. What I am finding is that I don't have the record to make a determination that [D.R.] committed these acts. I simply don't have it.
Other than [A.B.'s] statements, the Division offers no information, apart from [A.B.'s] emotional turmoil, as corroboration for the acts. [A.B.] provided varying accounts to the authorities as to the number of times she was touched. She was not happy about the marriage of [D.R.] and [C.B.] She waited for a period of time to report the abuse. She threatened that she would ruin [D.R.] if he got into her face. She admitted to lying to her mother about unimportant . . . items like whether she did her homework. And, most importantly, the Court didn't have the corroboration it needed to make a finding.
[(Emphasis added).]
Mindful of our Supreme Court's recent reaffirmation of the enhanced deference appellate courts owe to decisions made by Family Part judges, especially those decisions that are heavily dependent on the trial judge's credibility determinations. N.J. Div. of Youth & Family Servs. v. R.G and J.G., ___ N.J. ___, ___ (2014), (slip op. at 28-29), we are nevertheless compelled to reverse the trial court's ruling. The trial judge's determination cannot stand because the analysis supporting it is heavily influenced by a misapprehension of law. Specifically, although the trial judge found that A.B. told "the truth" when she testified in camera that her stepfather D.R. had sexually molested her on four separate occasions when she was thirteen years old, the judge found "the Division did not provide the corroboration needed for this court to sustain a finding of abuse and neglect."
As correctly argued by both the Law Guardian and the Division in this appeal, corroboration is required only when the Division attempts to offer into evidence "previous statements made by the child relating to any allegations of abuse or neglect[.]" N.J.S.A. 9:6-8.46a(4). A child's in-court testimony describing the allegations of abuse is competent evidence and needs no independent corroboration. Such testimony is subjected to the rigors of cross-examination and the child's demeanor is subject to the visual scrutiny of the trial judge, the ultimate arbiter of the witness's credibility in a bench trial. N.J. Div. of Youth and Family Servs. v. J.Y., 352 N.J. Super. 245, 264-65 (App. Div. 2002).
The nature of the sexual abuse described by A.B., perpetrated by a close family member or other trusted figure, is tragically not atypical. This type of abuse also is not susceptible to empirical corroboration by a physician or other types of forensic or scientifically accepted tests. A close reading of the judge's opinion reveals the judge was expecting the psychologist from Audrey Hepburn to corroborate in some fashion A.B.'s account of events. However, when the trial judge found grounds to question the psychologist's professional assessment of A.B., the judge concluded this created an insurmountable evidential gap in the Division's case against D.R. The judge's own words captured the essence of her conundrum.
Dr. D'Urso was not aware that [A.B.] had testified to the Court, that the incidents had occurred on four occasion -- occasions. She was not aware -- he was not aware that [A.B.] told her therapist first and then told friends that the incidents happened 3 weeks after they happened. There is some question about when the child actually told her friends, when the child actually told her aunt. Dr. D'Urso testified candidly that he would have explored this case further had he known of these discrepancies. And that was very convincing to this Court to come to the conclusion that it reaches today.
. . . .
[T]he thing that turned this Court to decide the -- in the fashion it's deciding today, was Dr. D'Urso's testimony that had he known this additional information, he may have done further evaluations. He may or may not come to the -- have come to the same conclusion, but he would have done a further evaluation.
Under N.J.S.A. 9:6-8.46b, "[i]n a fact-finding hearing (1) any determination that the child is an abused or neglected child must be based on a preponderance of the evidence and (2) only competent, material and relevant evidence may be admitted." This evidence
may include "any writing, record or photograph . . . made as a memorandum or record of any condition, act, transaction, occurrence or event relating to a child in an abuse or neglect proceeding of any hospital or any other public or private institution or agency," provided it meets certain admissibility requirements akin to the business records exception.
[N.J. Div. of Youth and Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011) (quoting N.J.S.A. 9:6-8.46(a)(3)).]
To establish a parent or parents have abused or neglected their child by a preponderance of the evidence, the Division bears the burden of showing "that a desired inference is more probable than not. If the evidence is in equipoise, the burden has not been met." N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 615 (App. Div. 2010) (quoting Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 169 (2006)).
We reverse the court's order dismissing the Division's complaint and remand for the trial court to reevaluate and reexamine the evidence presented by the Division in light of the legal principles we have outlined here. The court must determine whether the Division established, by a preponderance of the evidence that A.B. was sexually molested by her stepfather. In making this determination, the court may consider A.B.'s in-court testimony that D.R. sexually abused her, and that her biological mother C.B. failed to protect her from such abuse by failing to believe her daughter's account of events. The judge may find A.B.'s prior statements concerning the nature and frequency of the molestation to be inconsistent with her in-court testimony. In short, our remand requires the judge to reassess her original findings and apply the correct legal standard to determine whether the Division has met its burden of proof.
Reversed and remanded. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION