Opinion
DOCKET NO. A-4297-12T2
01-21-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. R.L., Defendant-Appellant. IN THE MATTER OF A.L. and J.L., minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Arthur David Malkin, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Kimberly Gunning-Marcantonio, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Catherine Davila, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and St. John. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FN-16-0132-12. Joseph E. Krakora, Public Defender, attorney for appellant (Arthur David Malkin, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Kimberly Gunning-Marcantonio, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Catherine Davila, Designated Counsel, on the brief). PER CURIAM
Defendant R.L. appeals from an October 11, 2012 Family Part order entered following a Title Nine fact-finding hearing. The trial judge concluded the preponderance of credible evidence presented by plaintiff, the Division of Child Protection and Permanency (Division), proved defendant's minor daughter, J.L., was an abused or neglected child because defendant engaged in acts of sexual abuse consisting of inappropriate touching on at least three separate occasions. Defendant argues the order must be vacated because the judge's findings are based on the minor's uncorroborated allegations, in contravention of N.J.S.A. 9:6-8.46(a)(4). Further, he challenges a February 1, 2013 permanency order, entered after a testimonial hearing, which allowed a non-relative to seek kinship legal guardianship (KLG) of J.L., see N.J.S.A. 3B:12A-1 to -7, without first considering possible appropriate relative placements.
Following our review, in light of the record and applicable law, we reject defendant's arguments as lacking merit. We affirm the finding of abuse or neglect and the challenged orders.
The family consisted of defendant, J.L., her aunt Y.L., and her two older brothers, only one of whom was a minor. J.L. was born in the Dominican Republic, where her mother remained. Initially, J.L. resided in Maryland for several months, then moved to New Jersey in December 2011.
The Division's involvement resulted when then twelve-year-old J.L. told a teacher defendant attempted to kiss her on the mouth several times and pushed her onto a bed. Jasmiry Nunez, a Division caseworker, went to the school and interviewed J.L. Nunez learned J.L. had been in New Jersey for approximately three months, and expressed discomfort in the presence of defendant because he "touches her and tries to kiss her." J.L. stated defendant touched her on the buttocks and twice tried to take her pants off. Nunez asked J.L. if she had told anyone else about her father touching her and she asserted she told her mother and her brothers, one of whom encouraged her to tell someone. The caseworker terminated the interview and contacted the Passaic County Prosecutor's Office (PCPO).
The caseworker's interview of J.L. was conducted in Spanish, and at trial J.L. testified with the aid of an interpreter. Although J.L.'s written signed statement taken by the Passaic County Prosecutor's Office was in English before she signed the document, the statement was read to her as translated into Spanish.
Detective Maria Tejada responded to the school to interview J.L., who repeated the allegations. J.L. told Detective Tejada defendant attempted to pull her pants down while they lived in Maryland, touched her vagina with his hand under her clothes and said he wanted to have sexual relations with her. J.L. said she was afraid when her father touched her.
At the conclusion of the interview, defendant arrived at the school. He was taken to the PCPO for questioning.
The Division commenced its investigation and emergency removal of J.L. and her minor brother. Nunez interviewed Y.L., who was asked about the relationship between J.L. and defendant. Y.L. responded the two had a "normal" relationship, although defendant had not been involved in J.L.'s life until recently. Y.L. rejected the prospect defendant suffered from substance abuse or engaged in criminal conduct. When Nunez explained the Division was removing the children, Y.L. offered to provide for their care.
Nunez also spoke to J.L.'s nineteen-year-old brother, who related he had never observed any inappropriate behavior between defendant and J.L., but acknowledged she had expressed to him concerns about defendant's conduct. Nunez also telephoned J.L.'s mother, who suggested the children return to Maryland and confirmed J.L. told her about defendant's conduct. Nunez placed J.L. and her minor brother in the same Division-approved resource home.
The care and safety of J.L.'s minor brother were also considered in this matter. However, that child has since reached the age of majority and defendant's appeal focuses solely on the determinations regarding J.L.
The Division filed a complaint for care, custody, and supervision of J.L. and her brother. Judge Joseph A. Portelli granted the request and denied visitation based on the PCPO's request for no contact between J.L. and defendant. The no-contact order was continued throughout the litigation.
J.L. underwent an evaluation by Michelle Mroz, Clinical Social Worker of the Audrey Hepburn Children's House (AHCH). During the interview, J.L. disclosed defendant said he "wanted to have relations with [her]"; had touched her vaginal area and the contact "felt strange"; and tried to grab her and kiss her. She explained she felt scared to disclose the abuse, but told her brother and mother, and then her teacher because she "felt as if [defendant] would not let her sleep at night and made her feel uncomfortable." J.L. reported she felt at ease with her resource family because she was "with people who love [her] and will not hurt [her]."
In her report, Mroz noted, while disclosing details of the sexual abuse, J.L. "appear[ed] uncomfortable as she would look away from the evaluator." Mroz opined J.L. provided "a clear and consistent disclosure" regarding the abuse allegations and her evaluation "clinically support[ed]" the reports of sexual abuse. Mroz recommended sexual abuse counseling to aid J.L. when processing her memories of abuse and to assist her in developing coping skills. Further, she recommended J.L. be "protected from contact" with defendant.
The fact-finding hearing commenced on October 11, 2012. The Division called J.L. as its first witness. J.L. began testifying in open court. When asked to discuss the problems she related to the PCPO, J.L. had difficulty continuing her testimony. Without objection, J.L. resumed testifying in chambers, in the presence of all attorneys, while defendant remained in the courtroom and listened using headphones.
J.L. said defendant "wanted . . . to have intimate relations with [her]. . . . Like sex." She confirmed statements made in the PCPO interview that defendant approached her because "[h]e wanted to touch my part . . . . [v]agina[,]" while trying to kiss her and touched under her underwear so defendant's "skin was touching [her] skin." J.L. described a second incident, which occurred in her brother's bedroom, when defendant attempted to kiss and touch her. The third incident J.L. related occurred in Maryland when defendant exited the bathroom, saw J.L. lying on her bed, and tried to remove her pants and panties.
Nunez was the only other witness. She discussed her interview with J.L., including the disclosure of defendant's inappropriate touching, numerous kisses, and two attempts to remove her pants. Nunez also related the Division's efforts in conducting the investigation.
Defendant objected when the Division offered the PCPO interview into evidence, which was sustained. The Division offered its screening and investigative summary documents. Defendant again objected. Judge Portelli partially sustained the objection, acknowledging as the fact-finder he would not consider any hearsay evidence. The AHCH evaluation was admitted into evidence over defendant's objection. No additional evidence was presented by the Law Guardian or defendant.
Judge Portelli issued a bench opinion. Finding J.L. "100 percent credible," he concluded the Division's evidence proved J.L. was an abused or neglected child because defendant had committed an act of sexual abuse. The judge discussed his observation of J.L.'s demeanor while testifying, which was consistent with telling the truth. He considered J.L.'s cross-examination responses, mentioning she admitted she fainted and saw "spirits" when in Maryland. However, the judge rejected defendant's argument contending J.L. hallucinated the abuse or suffered from an undiagnosed mental condition.
On January 14, 2013, a permanency hearing was held. The Division proposed J.L.'s resource family continue her care as they filed for a judgment of KLG. The Division's caseworker testified numerous efforts to engage defendant in services were rejected. J.L.'s mother, through her appointed counsel, agreed to the proposed KLG and the Law Guardian relayed KLG was J.L.'s preference. Defendant's counsel objected, arguing he had not had sufficient time to discuss KLG with his client. The court adjourned the hearing.
On the adjourned date, the Division's caseworker again testified. She stated defendant appeared at the Division's office for the first time on January 30, 2013. The Law Guardian noted J.L.'s desires had not changed, explaining she had been locking herself in her room because she was afraid she would be removed from her resource family's care. Crediting the caseworker's testimony, Judge Portelli found the Division made reasonable efforts to effect reunification, but J.L. could not safely return to defendant's care because he refused services. The judge entered a permanency order approving the proposed permanency plan of KLG with J.L.'s resource family.
The Division petitioned for KLG and a hearing was held on April 1, 2013. Defendant did not consent to KLG because he "want[ed J.L.] to make a choice as to whether she want[ed] to live [with her resource family] or with a relative." A judgment awarding the resource family KLG of J.L. was entered. The Title Nine action was dismissed. Defendant's appeal ensued.
It is axiomatic that due process protects the parent-child relationship. In re Guardianship of K.H.O., 161 N.J. 337, 346-47 (1999) (citing Santosky v. Kramer, 455 U.S. 745, 753-54, 102 S. Ct. 1388, 1395, 71 L. Ed. 2d 599, 606 (1982)). Parental rights, however, are not absolute, but are "tempered" by the State's duty to intervene against unfit, abusive, or neglectful parents or guardians. K.H.O., supra, 161 N.J. at 347 (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)).
The adjudication of abuse or neglect is governed by Title Nine, N.J.S.A. 9:6-8.21 to -8.73, which is designed to protect children who suffer "'serious injury inflicted upon them by other than accidental means.'" G.S. v. Dep't of Human Servs., 157 N.J. 161, 171 (1999) (quoting N.J.S.A. 9:6-8.8). Apt to this case, an "abused or neglected child" is defined in N.J.S.A. 9:6-8.21(c)(3) as "a child less than 18 years of age whose parent or guardian, . . . (3) commits or allows to be committed an act of sexual abuse against the child . . . ."
A determination of whether a parent has engaged in acts of abuse or neglect involves review of the "totality of the circumstances" presented in a fact-finding hearing. N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011). "In 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." N.J.S.A. 9:6-8.46(b). See also N.J. Div. of Youth & Family Servs. v. C.H., 428 N.J. Super. 40, 62 (App. Div. 2012). "Under the preponderance standard, a [plaintiff] must establish that a desired inference is more probable than not. If the evidence is in equipoise, the burden has not been met." Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 169 (2006) (citations and internal quotation marks omitted).
In our review, we defer to those findings of fact supported by credible evidence in the record and do not disturb proper legal conclusions based on those findings. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007 ); N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002). Deference to supported factual findings is warranted because the trial judge is best suited to weigh the testimony and "has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand [and] has a 'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). See also N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012). However, the same deferential standard is not applied to legal issues, which we review de novo. N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006) ("'A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995))), certif. denied, 190 N.J. 257 (2007).
Defendant first challenges the sufficiency of the evidence. Citing New Jersey Division of Youth and Family Services v. L.A., 357 N.J. Super. 155 (App. Div. 2003), he argues the finding that he committed acts of sexual abuse was unfounded because J.L.'s allegations were uncorroborated. Defendant's argument not only misconstrues this court's holding in L.A., but also advances the groundless suggestion that a finding of abuse or neglect may not be based on the trial testimony of the child victim.
In L.A., we reversed the conclusion of abuse or neglect because "several findings of fact" were based on an "improperly admitted [] prior statement of one of the children." Id. at 158. The children's father had sexually assaulted the oldest child and was barred from the home. Ibid. Counsel for L.A., the mother, vigorously sought "to preclude discussion of the sexual assault" and "to confine the trial judge's consideration of the actions by the mother solely to the events giving rise to the complaint filed by the Division," namely that L.A. purportedly invited the father to her apartment, which occurred more than one year later. Id. at 158, 160. The evidential issue centered on the oldest child's "out-of-court statements to the [Division] worker" regarding her mother's conduct in inviting the father to the apartment. Id. at 166. We held:
In matters involving the alleged abuse and neglect of children, the New Jersey Rules of Evidence are supplemented by statute and court rule. N.J.S.A. 9:6-8.46(a)(4) provides that "previous statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence; provided, however, that no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect."
[Ibid.]
Defendant's attempt to apply the corroboration provision of N.J.S.A. 9:6-8.46(a)(4) to all child victim statements which are the basis of an allegation of abuse or neglect, including trial testimony subject to cross-examination, is remarkable and specious.
The corroboration requirement of N.J.S.A. 9:6-8.46(a)(4) attaches to the admission of a child's prior out-of-court statements, when the child is not testifying to the abuse at trial. N.J. Div. of Child Prot. & Permanency v. Y.A., 437 N.J. Super. 541, 547 (App. Div. 2014); Z.P.R., supra, 351 N.J. Super. at 435. Contrary to defendant's suggestion, J.L.'s testimony of abuse did not need to be "corroborated" in order to be considered as proving abuse or neglect. Y.A., supra, 437 N.J. Super. at 547.
J.L. provided credible testimony detailing the three incidents of sexual abuse by defendant. Although she did not remember dates, she provided the place of each occurrence and described what defendant said and what she did during each assault. J.L. also itemized the incidents of defendant's conduct, including kissing her, attempting to touch and actually touching her vagina, and removing her pants and panties.
In rendering his opinion, Judge Portelli made particularized credibility findings. He explained he carefully watched J.L. as she testified. He noted she hung her head and was crying. She was introverted and shy. The judge found her reluctance when testifying was caused not because "she was not telling the truth," but because she was "a little ashamed" or "a little embarrassed" to discuss the facts in a room of adults, which included men. Further, Judge Portelli addressed defendant's attacks on J.L.'s testimony, considering and rejecting claimed inconsistencies and alleged fabrications. Overall, he found J.L.'s testimony was "100 percent credible."
We defer to the judge's credibility determinations and find his factual findings are fully supported by this uncontroverted record. J.L.'s testimony, as well as the caseworker's factual information and the Division's records amply support the conclusion of abuse or neglect, which is upheld.
Intertwined in his corroboration argument, defendant maintains the Division failed to interview him and notes after being questioned by the PCPO, he was not arrested. The argument is disingenuous. If defendant believed facts supporting his position were not considered by the Division, he could have challenged its evidence, presented his own, and testified on his behalf during the fact-finding hearing. Although the burden of proof rests squarely on the Division, any party may submit evidence for the court's consideration.
Defendant also challenges the permanency order. He argues the Division failed to comply with obligations defined by N.J.S.A. 30:4C-12.1, and urges the February 1, 2013 permanency order be vacated and the matter remanded to develop a new permanency plan that would, ultimately, return J.L. to his care or place her with paternal relatives in Maryland. Defendant's argument is not persuasive.
N.J.S.A. 30:4C-12.1 states:
[T]he department shall initiate a search for relatives who may be willing and able to provide the care and support required by the child. . . . The search will be completed when all sources contacted have either responded to the inquiry or failed to respond within 45 days. The department shall complete an assessment of each interested relative's ability to provide the care and support, . . . required by the child.Most typically, the provision is triggered in guardianship proceedings, which charge the Division with assuring there are no viable alternatives serving the "best interests" of the child, other than termination of parental rights. See N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986) (outlining the four-pronged test, now codified in N.J.S.A. 30:4C-15.1(a), necessary to terminate parental rights).
In another matter discussing termination of parental rights, we stated "although the Division has a statutory duty to evaluate relatives as potential caretakers, there is no presumption favoring the placement of a child with such relatives." N.J. Div. of Youth & Family Servs. v. J.S., 433 N.J. Super. 69, 82 (App. Div. 2013), certif. denied, 217 N.J. 587 (2014). "The reality is that, no matter how fit or willing a proposed relative may be, a child will, in some instances, be better off remaining in a successful foster placement." Id. at 85.
"Unlike a judgment terminating parental rights, KLG does not sever the legal relationship between the child and the parent." N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 558 (2014) (citing N.J. Div. of Youth & Family Servs. v. S.V., 362 N.J. Super. 76, 87 (App. Div. 2003)). "'[T]he parent . . . has the right to seek termination of the guardianship and a resumption of custody if . . . [he or] she is [later] able to provide a safe and secure home for the child." Ibid. (first, third, and fifth alterations in original) (quoting S.V., supra, 362 N.J. Super. at 87).
In this matter, defendant did not cooperate with the Division's efforts to discuss the children's situation. Moreover, he continued to deny any abuse occurred, even after the fact-finding hearing. Defendant acknowledges the Division considered Y.L. but rejected her as a placement resource because the abuse occurred while Y.L. was living in the home, the residence was determined to be too small to be licensed, and defendant continued to live there. Further, the record shows the Division considered placement with paternal relatives in Maryland, but rejected such a plan understanding one of the three incidents of abuse occurred in that residence. The children's mother concurred with the KLG placement and defendant's objection was merely based on the need to obtain the child's choice.
Importantly, the Law Guardian conveyed the children's independently expressed desires to stay in New Jersey. The resource family was caring for both siblings, J.L.'s adult brother was in New Jersey, and she felt stable and safe. Testimony related the adverse reaction experienced by J.L. when the permanency hearing was adjourned. She locked herself in her room and expressed suicidal ideations, leading to recommendations she attend mental health treatment to address both the abuse and J.L.'s fear of being removed from her resource family. For all of these reasons, Judge Portelli found J.L.'s best interests were served by not disrupting her placement. N.J.S.A. 3B:12A-6(d)(4). No basis is shown to interfere with that determination.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION