Opinion
DOCKET NO. A-3886-13T2
10-16-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. J.T., Defendant-Appellant. IN THE MATTER OF K.M. and M.T., minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Christian A. Arnold, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Karen A. Lodeserto, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Hoffman. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-425-13. Joseph E. Krakora, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Christian A. Arnold, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Karen A. Lodeserto, Designated Counsel, on the brief). PER CURIAM
In this Title 9 case, defendant J.T. appeals from a February 11, 2014 fact finding order, concluding that he abused or neglected his paramour's minor daughter, K.M., by having inappropriate sexual contact with her. See N.J.S.A. 9:6-8.21(c). Defendant also appeals from the March 19, 2014 order terminating the litigation. For the reasons that follow, we affirm.
There is no dispute that the Division introduced legally competent evidence of the sexual improprieties. K.M., who was then twelve years old, testified at the fact finding hearing that when she was about ten years old, defendant molested her by kissing her and putting his tongue in her mouth, touching her breasts under her clothing, and touching her vagina. The Division also introduced in evidence a DVD of the girl's prior recorded interview with the police, and her previous interview with a psychologist at the Audrey Hepburn Children's House. Those statements were admissible, but required corroboration by legally admissible evidence, which the child's testimony provided. See N.J.S.A. 9:6-8.46(a)(4); N.J. Div. of Child Prot. & Permanency v. J.A., 436 N.J. Super. 61, 67 (App. Div. 2014). Defendant did not testify or present any witnesses.
The judge found K.M. "very credible," for reasons she explained in great detail. In particular the judge found that the child "basically told the same story, recited the same facts to the representative of the Prosecutor's Office and to the Court in chambers, and those assertions were also generally consistent with the reports to her teacher." The judge also found the child's responses to questions candid and her demeanor convincing.
Defendant's appeal centers on his contention that the trial court erred in allowing K.M. to testify in camera without fulfilling all the requirements of the pertinent statute, N.J.S.A. 2A:84-32.4. After reviewing the record, we conclude that this argument is barred by the doctrine of invited error. See Division v. M.C., III, 201 N.J. 328, 340 (2010). The issue was also waived because it was not raised in the trial court. Id. at 339. However, even if we consider the argument for the first time on appeal, we find no plain error. See R. 2:10-2.
Prior to the hearing, the Law Guardian sent the court a letter dated January 2, 2014, requesting that the child be permitted to testify in camera and stating that all counsel consented to the request. The letter specified that all counsel consented to the child testifying in camera, in the presence of counsel, with her testimony being broadcast into the courtroom so that defendant could hear it. According to the letter, all counsel also agreed that the court should take a break during the testimony so that defendant's counsel could consult with his client regarding follow-up questions. By letter dated January 4, 2014, defendant's attorney advised the court that the defense did not object to the minor testifying in camera "according to the provisions contained in the Law Guardian's January 2, 2014 letter." The court followed that procedure.
This was not a casual or brief communication. In her six-page single-spaced letter to the court, defense counsel raised a multitude of specific objections to most of the State's trial evidence. Clearly, defense counsel's agreement to the in camera testimony was not the product of inattention to the case.
A litigant cannot consent to a specific trial procedure and then claim on appeal that the process was error. M.C., supra, 201 N.J. at 340. Moreover, absent an error of jurisdictional or constitutional magnitude, we ordinarily will not consider on appeal an issue that a litigant did not raise in the trial court. See id. at 339; Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Having consented to a very specific process by which the court would take the child's testimony, defendant now seeks a new fact finding hearing, which would impose upon this child the stress and trauma of testifying a second time. Contrary to defendant's arguments, neither the Due Process Clause nor any other principle requires that we grant his request in this case.
Even in a criminal case, to which the Sixth Amendment Confrontation Clause applies, a defendant "may waive his right of confrontation." State v. Williams, 219 N.J. 89, 93 (2014), cert. denied, ___ U.S. ___, 135 S. Ct. 1537, 191 L. Ed. 2d 565 (2015). Hence, a defendant must ordinarily "attempt to exercise his confrontation right and object when necessary, if he wishes later to claim that he was denied that right." Ibid. --------
The applicable statute, N.J.S.A. 2A:84A-32.4, sets forth the standards for allowing a child to give testimony in camera, and provides safeguards for the defendant:
a. In . . . any action alleging an abused or neglected child under P.L. 1974, c . 119 (C. 9:6-8.21 et seq.), the court may, on motion and after conducting a hearing in camera, order the taking of the testimony of a witness on closed circuit television at the trial, out of the view of the jury, defendant, or spectators upon making findings as provided in subsection b. of this section.
b. An order under this section may be made only if the court finds that the witness is 16 years of age or younger and that there is a substantial likelihood that the witness would suffer severe emotional or mental distress if required to testify in open court. The order shall be specific as to whether the witness will testify outside the presence of spectators, the defendant, the jury, or all of them and shall be based on specific findings relating to the impact of the presence of each.
. . . .d. The defendant's counsel shall be present at the taking of testimony in camera. If the defendant is not present, he and his attorney shall be able to confer privately with each other during the testimony by a separate audio system.
[N. J.S.A. 2A:84A-32.4(a)-(d).]
In a fact finding hearing, "when a defendant objects to utilizing an alternative to the child's in-court testimony," the judge must follow the statutory procedures "prior to allowing in camera testimony of a child-witness." N.J. Div. of Child Prot. & Permanency v. C.W., 435 N.J. Super. 130, 135 (App. Div. 2014). Further, "[a]ny alternate procedures used [in lieu of the child's in court testimony] must assure protection of a defendant's due process rights and the order must also detail the procedures used to do so." Id. at 143-44.
In this case, the judge did not need to make the findings required by subsection (b), because the parties consented to the in camera hearing. Moreover, based on our reading of the child's interview with the psychologist, the State would have been able to satisfy the requirements of subsection (b) had defendant objected to the child testifying in camera.
The hearing itself did not precisely conform to the provisions of subsection (d), but we conclude that it sufficiently protected defendant's due process rights. Significantly, the process allowed a break in the testimony, during which defendant could point out to his attorney any areas for additional cross-examination. In fact, defense counsel conducted further cross-examination after consulting with defendant. See C.W., supra, 435 N.J. Super. at 146. Further, the victim's prior statements were available for impeachment purposes, and defense counsel made use of them.
Defendant's appellate brief does not specify what more his attorney could have done if the exact statutory procedures had been followed or what additional questions his attorney might have asked. As in C.W., we conclude that if the trial court erred in departing from the statutory procedures, the error was not clearly capable of producing an unjust result. C.W., supra, 435 N.J. Super. at 147; R. 2:10-2. Accordingly, we reject defendant's arguments premised on N.J.S.A. 2A:84-32.4.
Defendant's next contention, that the Division did not prove its case by a preponderance of the evidence, requires little discussion. R. 2:11-3(e)(1)(E). In reviewing a judge's decision following a bench trial, we will not disturb the judge's factual findings so long as they are supported by sufficient credible evidence. C.W., supra, 435 N.J. Super. at 139. And we owe particular deference to the judge's evaluation of witness credibility. N.J. Div. of Youth and Family Servs. v. F.M., 211 N.J. 420, 448 (2012). We find no basis in this record to second-guess the judge's finding that K.M. was a credible witness. Based on the judge's factual findings, her legal conclusion that K.M. was an abused or neglected child is unassailable. See N.J.S.A. 9:6-8.21(c).
Because we affirm the judge's fact finding decision, we find no merit in defendant's arguments that the restraints contained in the March 19, 2014 order should be vacated and his name should be removed from the central registry of child abusers. We affirm both orders on appeal.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION