Opinion
DOCKET NO. A-0331-13T2
09-10-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. T.M., Defendant-Appellant, and D.H., Defendant-Respondent. IN THE MATTER OF C.M., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Marina Ginzburg, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Child Protection and Permanency (Melissa H. Raksa, Assistant Attorney General, of counsel; Angela Melchionna, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, attorney for respondent D.H. (Robert H. McGuigan, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor C.M. (Janet L. Fayter, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Hayden. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FN-11-190-12. Joseph E. Krakora, Public Defender, attorney for appellant (Marina Ginzburg, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Child Protection and Permanency (Melissa H. Raksa, Assistant Attorney General, of counsel; Angela Melchionna, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, attorney for respondent D.H. (Robert H. McGuigan, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor C.M. (Janet L. Fayter, Designated Counsel, on the brief). PER CURIAM
Defendant T.M. (Tara), appeals from the Family Part's January 2, 2013, fact-finding order, finding that she abused or neglected her teenage son C.M. (Christopher), born in March 1997. The court terminated the litigation in August 2013, and continued placement of Christopher in the physical custody of his paternal aunt, C.H. (Charlotte), with whom he had been living during the pendency of the case.
We use pseudonyms for the reader's convenience and to protect the privacy of the child.
The fact-finding order was entered after what can be described as a "trial on the papers." That is, the parties agreed to forego the presentation of witnesses, and to have the court decide the case based on various documents offered into evidence by the Division of Child Protection and Permanency (Division), some with limitations, and oral argument. The defense offered no proofs. The court largely relied on hearsay statements of Christopher, as allegedly corroborated by other documentary evidence.
In brief, Christopher alleged that his mother kept the air conditioning on, even during the winter, making the home so cold that he sought refuge in the bathroom for extended periods. He indicated she was a deeply religious person, who restricted his reading of popular fiction, allowing only religious books (and music) in the house. He alleged his mother punched him and used makeup to hide his bruises when he went to school. He also claimed there was inadequate food in the house and he was forced to go for days without eating. The Law Guardian supported the Division's complaint, seeking a finding of abuse or neglect.
On appeal, Tara challenges the abuse or neglect finding on three grounds: (1) the court erred in relying on embedded hearsay in the documentary evidence; (2) Christopher's statements were not corroborated and therefore the court should not have relied on them; and (3) there was insufficient credible evidence in the record to support the court's finding. We are unpersuaded by Tara's first two arguments, but reverse on the basis of the third.
Tara indicated in her notice of appeal that she also sought review of the court's August 5, 2013, order terminating the litigation, continuing physical custody with Charlotte, and awarding joint legal custody to Charlotte and Christopher's father, D.H. (Donald). We presume she challenges that order because it rests on the court's prior abuse or neglect finding. Tara does not address any other error in the entry of that order in her brief.
I.
Before addressing Tara's points on appeal, we must define the record. At the fact-finding hearing, the Division offered into evidence without limitation, and with the consent of counsel for Tara and Christopher, the following documents: (1) a ten-page investigation summary dated June 25, 2012; (2) fifteen photographs of the interior of Tara's home; (3) a July 2012 psychological evaluation of Christopher; (4) a November 13, 2012, letter from a counselor from Catholic Charities regarding Christopher's therapy; and (5) a November 6, 2012, psychiatric evaluation of Christopher.
Two screening summaries, dated May 30 and June 25, 2012, were admitted, with the explicit limitation that the hearsay statements within the documents were not admitted for their truth. Rather, as the judge stated, they were admitted "for the limited purpose of the fact of what was said . . . in determining why the Division investigated what they investigated."
Tara had been evaluated by a psychologist and a psychiatrist. The judge determined these expert reports were only "admissible for Title 30 purposes." It was expressly agreed they were not admitted as evidence in support of the Division's abuse or neglect claims under Title 9.
We presume this is a reference to N.J.S.A. 30:4C-12, which is cited in the Division's complaint, and authorizes the court to order the Division to provide protective services to a child:
[w]henever it shall appear that the parent . . . of any child within this State is unfit to be entrusted with the care and education of such child, or shall fail to provide such child with proper protection, maintenance and education, or shall fail to ensure the health and safety of the child, or is endangering the welfare of such child. . . .
In their briefs to us, both the Division and Tara ignored these limitations. The Division relied on facts in the screening summaries and Tara's mental health evaluations. Likewise, Tara relies on facts in her mental health evaluations.
II.
We first address Tara's argument that the court erred in relying on hearsay. Tara through her counsel agreed to admission into evidence of the hearsay documents, and a trial on the papers. The judge directly inquired of Tara's counsel whether the documents are "admissible on Title 9 grounds," and he answered, without qualification, "Correct."
We find no support in the record for Tara's contention before us that the documents, and hearsay found therein, were admitted "[o]ver the objection of trial counsel." In addition to his explicit consent to the admission of the documents, counsel made use of the hearsay in his summation. He referred to embedded hearsay statements in the screening summaries, contrary to the limitation he secured, to argue that Christopher was a habitual liar. He also invoked the hearsay statements of the psychologist who evaluated Christopher. Acknowledging Christopher's hearsay allegations of abuse or neglect, counsel argued they were not credible and at most supported the provision of services.
Incongruously, Tara also asserts on appeal that she "did not have efficient representation by counsel," which resulted in the court's fact-finding. It is unclear whether this referred to trial counsel's decision to consent to a trial on the papers. However, this isolated comment is unsupported by any additional argument in support of a claim of ineffective assistance of counsel. We therefore do not address it. See In re Bloomingdale Convalescent Ctr., 233 N.J. Super. 46, 48 n.1 (App. Div. 1989) (noting an issue not briefed is waived); Noye v. Hoffman-La Roche, Inc., 238 N.J. Super. 430, 432 n.2 (App. Div.) (matter not argued in the brief deemed "abandoned"), certif. denied, 122 N.J. 147 (1990); cf. N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 311 (2007) (permitting a claim of ineffective assistance of counsel on direct appeal in a parental termination case, but requiring that "appellate counsel . . . provide a detailed exposition of how the trial lawyer fell short and a statement regarding why the result would have been different had the lawyer's performance not been deficient").
We recognize that the documents admitted into evidence contained embedded hearsay subject to objection, notwithstanding the admissibility of Division records. N.J.S.A. 9:6-8.46(a)(3) allows admission into evidence of Division records "of any condition, act, transaction, occurrence or event relating to a child in an abuse or neglect proceeding . . . [as] proof of that condition, act, transaction, occurrence or event" if it meets the prerequisites of admission of a business record. See also R. 5:12-4(d) (stating that documents prepared by Division staff are admissible if they satisfy the requirements of the business records exception to the hearsay rule, N.J.R.E. 803(c)(6) and 801(d)).
In other words, the judge must find "it was made in the regular course of the business . . . and . . . it was in the regular course of such business to make it, at the time of the condition, act, transaction, occurrence or event, or within a reasonable time thereafter." Ibid.
However, hearsay embedded in such records must satisfy a separate hearsay exception. See N.J. Div. of Child Prot. & Permanency v. R.W., 438 N.J. Super. 462, 466-67 (App. Div. 2014) (noting that notwithstanding admissibility of Division records that meet the business records exception, hearsay embedded therein must meet other hearsay exceptions in order to be admitted). See also Div. of Youth & Family Servs. v. M.G., 427 N.J. Super. 154, 173-74 (App. Div. 2012) (stating that trial court should have excluded expert opinion, although contained in otherwise admissible business records, absent specific findings regarding trustworthiness).
In this case, for example, the investigation summary included statements of Tara's daughter, K.M. (Katherine), to the summary's author. Katherine alleged Tara physically abused and neglected her and Christopher in the past. But Katherine permanently left Tara's home when she was fifteen and, at the time the Division caseworker interviewed her, she had not seen Christopher in three years. The investigation summary also included hearsay statements of Charlotte, Christopher's paternal aunt, which in turn repeated statements to her by Katherine and Christopher. Additionally, the summary included the hearsay statements of Tara's substance abuse counselor, who reported statements Tara had previously made to her.
Tara's own statements are admissible as statements of a party-opponent. N.J.R.E. 803(b)(1). Christopher's out-of-court statements are admissible as those of a child victim, subject to the statute's corroboration proviso, which we discuss below. N.J.S.A. 9:6-8.46(a)(4). By contrast, the statements of another person, such as Charlotte or the substance abuse counselor, recounting statements made by Tara or Christopher, must satisfy a separate exception.
Tara is estopped from arguing that the court relied on inadmissible hearsay, because she relied on selected hearsay herself. Additionally, the Division relied on her attorney's consent to the admission into evidence of the documents. Had she taken a contrary position, the Division could have attempted to call various hearsay declarants as witnesses. See N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340-41 (2010) (applying invited error doctrine and holding that defendant's failure to object "deprived the Division of the opportunity to overcome any objection and deprived the trial court of the necessity to make a ruling").
Even if estoppel or the invited error doctrine did not dispose of Tara's argument, we apply the principle that hearsay that is subject to a well-founded objection is generally evidential if no objection is made. State v. Ingenito, 87 N.J. 204, 224 n.1 (1981) (Schreiber, J., concurring). See also Morris v. United States, 813 F.2d 343, 348 (11th Cir. 1987) (stating that "if evidence of this kind [that is, hearsay] is admitted without objection, it is to be considered, and accorded its natural probative effect, as if it were in law admissible") (quoting Spiller v. Atchison, Topeka & Sante Fe Ry. Co., 253 U.S. 117, 130, 40 S. Ct. 466, 472, 64 L. Ed. 810, 819 (1920)); Newsom v. United States, 335 F.2d 237, 238-39 (5th Cir. 1964); In re Petagno, 24 N.J. Misc. 279, 283-84 (Ch. 1946) (same); J.A. Bock, Consideration, in determining facts, of inadmissible hearsay evidence introduced without objection, 79 A.L.R.2d 890 (2014) (stating that "overwhelming weight of authority" supports the rule that inadmissible hearsay may be considered evidential when it enters the record without objection, and it "should be given its natural and logical probative effect"); Kenneth S. Broun, 1 McCormick on Evidence § 245 at 181 (7th ed. 2013) ("If otherwise inadmissible hearsay evidence is received without objection, it typically may be considered and, if apparently reliable, is sufficient to sustain a verdict or finding of fact."); id. § 54 at 381. The probative effect of objectionable hearsay, admitted without objection, depends upon those facts and circumstances surrounding the making of the statement that would affect its trustworthiness.
Our Court has declared that the admission of hearsay without objection is subject to a plain error analysis; it did so in a criminal jury trial. State v. Frisby, 174 N.J. 583, 591 (2002) ("Because no objection was advanced with respect to that hearsay evidence at trial, it must be judged under the plain-error standard: that is, whether its admission 'is of such a nature as to have been clearly capable of producing an unjust result.'") (quoting R. 2:10-2).
Frisby involved the prosecution of a mother, Monica Frisby, for the death of her son. Id. at 587. The State did not prosecute the father, Richard Patterson, although the mother claimed the boy died during a period of time when she left him with Patterson to babysit. Id. at 588-91. Patterson testified he was not asked to babysit, and he was elsewhere the evening the boy died. Id. at 589. The jury heard objectionable hearsay when a police officer testified that the father's testimony was "substantiated" by other witnesses, who did not testify. Id. at 591-92. The Court concluded the trial was a "pitched credibility battle" between the mother and father, and the officer's hearsay testimony was "necessarily harmful and warrant[ed] reversal." Id. at 596.
Other courts have recognized that a plain error rule may apply to the admission, without objection, of objectionable hearsay in a criminal jury trial. See Smith v. United States, 343 F.2d 539, 542 (5th Cir.) ("If there is no timely objection to hearsay, the jury may consider it for whatever probative value it may have. The courts, however, may still reverse a conviction based on hearsay evidence if there has been a plain error affecting substantial rights of the accused."), cert. denied, 382 U.S. 861, 86 S. Ct. 122, 15 L. Ed. 2d 99 (1965). See also United States v. Harris, 437 F.2d 686, 691 (D.C. Cir. 1970) (recognizing that hearsay evidence, "in the absence of objection may be accorded within reason its natural probative effective" although "plain or fundamental defects or errors affecting substantial rights may be noticed"); United States v. Rosenberg, 194 F.2d 583, 596 n.9 (2d Cir. 1952) (stating that while admission of objectionable hearsay without objection is evidential, the court may "notice egregious errors . . . if they seriously affect the fairness, integrity or public reputation of judicial proceedings") (internal quotation marks and citation omitted), cert. denied, 3443 U.S. 838, 73 S. Ct. 20, 97 led 652 (1952).
In general, it is not the judge's role or responsibility, particularly in a bench trial with represented parties, to intervene with a well-founded hearsay objection, whenever counsel choose not to raise one of their own. When objectionable hearsay is admitted in a bench trial without objection, we presume that the fact-finder appreciates the potential weakness of such proofs, and takes that into account in weighing the evidence. See In re Civil Commitment of A.X.D., 370 N.J. Super. 198, 202-03 (App. Div. 2004) (stating that "possible prejudicial impact of complex diagnoses included in medical records [despite N.J.R.E. 808] was of less concern" in bench trial); In re Civil Commitment of J.M.H., 367 N.J. Super. 599, 613 (App. Div. 2003) (stating that risk of fact-finder's misuse of hearsay utilized by testifying expert "does not pose as serious a concern" in bench trial), certif. denied, 179 N.J. 312 (2004).
On the other hand, it is certainly within a trial judge's discretion to interpose such objections, or alert counsel that objectionable hearsay shall not be considered.
As the trial court may give such evidential weight to objectionable hearsay that is appropriate under the circumstances, an appellant faces an especially high hurdle in an appeal from a civil bench trial to establish that the admission of such evidence constitutes "plain error" — that is, that the admission of such evidence was "clearly capable of producing an unjust result." R. 2:10-2. See McCormick on Evidence, § 52 at 368 (suggesting that the consideration of "relevant, trustworthy evidence" is not likely to be deemed plain error, because it is not "likely to cause justice to miscarry," absent violation of an exclusionary rule of evidence designed "to promote an extrinsic social policy").
Our conclusion that various embedded hearsay statements were evidential is not at odds with N.J.S.A. 9:6-8.46(b)(2), which states that "only competent, material and relevant evidence may be admitted" in a fact-finding hearing. Hearsay does not relate to proof's relevance, see N.J.R.E. 401, or competence, see N.J.R.E. 601. Indeed, based on the principle of invited error, inadmissible hearsay was deemed acceptable evidence in M.C. III, supra, 201 N.J. at 342.
Applying these principles, we are not persuaded that the court committed plain error by considering the embedded hearsay in documents admitted into evidence. However, as discussed below in Point IV, we are nonetheless persuaded that there was insufficient credible evidence to support the court's finding. In so doing, we consider the trustworthiness of certain embedded hearsay statements.
III.
We consider next Tara's argument that Christopher's statements were not sufficiently corroborated. Although Christopher's out-of-court statements were admissible, pursuant to N.J.S.A. 9:6-8.46(a)(4), "no such statement[s], if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect." Ibid. The limitation pertains to the sufficiency of the child-victim's statements as proof. Under the statute, "a child's hearsay statement may be admitted into evidence, but may not be the sole basis for a finding of abuse or neglect." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 33 (2011) (emphasis added).
Corroboration may include "eyewitness testimony, a confession, an admission or medical or scientific evidence." N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 166 (App. Div. 2003). However, corroborative evidence may be circumstantial, as we have recognized that there often is no direct physical or testimonial evidence to support a child's statements. N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 436 (App. Div. 2002). Physical evidence of assault is certainly corroborative, but it is often unavailable. Ibid. "The corroborative evidence need not relate directly to the alleged abuser, it need only provide support for the out-of-court statements." Ibid. Corroboration may also be established by evidence of emotional impacts, such as nightmares and other psychological conditions. Ibid.
It is not necessary here to resolve the question whether inadmissible hearsay may serve as corroboration under the statute, particularly where the inadmissible hearsay has been admitted by consent. See N.J. Div. of Child Prot. & Permanency v. M.C., 435 N.J. Super. 405, 422 (App. Div.) (suggesting, but not deciding, that inadmissible hearsay may not satisfy the corroboration requirement), certif. granted, 220 N.J. 41 (2014). Therefore, we do not rely on Charlotte's, Katherine's, or the substance abuse counselor's out-of-court statements for corroboration purposes. Nor need we accept the Division's argument that Christopher's repetition of his allegations serve as corroboration. Cf. State v. D.G., 157 N.J. 112, 125 (1999) (stating that, in assessing trustworthiness of a child's hearsay statement under N.J.R.E. 803(c)(27) — as distinct from corroboration of the statement — a court may also consider among other factors, "consistency of repetition").
Corroboration is satisfied in this case by the observations of the Division worker who wrote the investigation summary, Tara's own admissions, and the unrefuted psychological evaluation of Christopher. The Division worker reported that the "home is in a freezing and dark state." Tara admitted she kept the house cold, although she said she did so for medical reasons. That evidence corroborated Christopher's allegation that his mother kept the house uncomfortably cold.
We decline to rely on the evaluation prepared by a psychiatrist to assist the child study team at Christopher's public school. The psychiatrist explicitly stated that his opinions, offered within a reasonable degree of medical certainty, were offered solely for the purpose of supporting educational planning, and "to assist in the coordination of medical/mental health care obtained privately, if indicated." The expert stated that the report was "not intended, nor is it appropriate for legal deliberations . . . or other non-educational/non-clinical matters." --------
Christopher also alleged that his mother sometimes locked him in his room, and other times locked him out of the house; she deprived him of food on occasion; and would subject him to corporal punishment, striking him with a dog leash and punching him. He also asserted that his mother restricted his reading. He claimed his mother was paranoid, and inquired intrusively about his activities.
In her interview with the Division worker, Tara displayed apparently paranoid behavior. The worker reported, "[Tara] disclosed she feels her neighbors listen through the wall and have been following her. She states she feels harassed by them as well as her landlord." Tara accused Christopher of stealing from her and allowing "strange people in the home." She said that the "Holy Ghost [was] telling her to just leave everything alone and let [Christopher] go." Tara was "rushed in the conversation, moved around nervously and talked in a whispering manner."
The psychological evaluator concluded that Christopher suffered from an adjustment disorder with mixed disturbance of emotions and conduct. The psychologist tied Christopher's mental health status to the history of physical abuse and emotional mistreatment that Christopher described.
Emotionally, evidence suggests that [Christopher] may currently experience moderate levels of fear, anger, and sadness associated with his personal history. Cognitively, evidence suggests that [Christopher] may currently experience thoughts associated with hostility, low self-esteem, suspicion, rejection, resentment, and projected blame.
In sum, we are satisfied that the court did not rely on Christopher's out-of-court statements as the "sole evidence" in support of its finding, and thus, the corroboration provision of N.J.S.A. 9:6-8.46(a)(4) was satisfied.
IV.
We next consider Tara's argument that the court's finding lacks the support of sufficient, credible evidence. We accord deference to the Family Court's fact-finding in part because of the court's "special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998). However, that deference is perhaps tempered when the trial court did not hear testimony, or make credibility determinations based on the demeanor of witnesses. Cf. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009) ("[W]hen no hearing takes place, no evidence is admitted, and no findings of fact are made, . . . . appellate courts need not afford deference to the conclusions of the trial court."). We shall uphold the court's fact finding if supported by sufficient, substantial and credible evidence in the record. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). However, we will not hesitate to set aside a ruling that is "wide of the mark." P.W.R., supra, 205 N.J. at 38.
We also accord no deference to the trial court's "interpretation of the law and the legal consequences that flow from established facts." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). The Division "must prove that the child is 'abused or neglected' by a preponderance of the evidence, and only through the admission of 'competent, material and relevant evidence.'" P.W.R., supra, 205 N.J. at 32 (quoting N.J.S.A. 9:6-8.46(b)).
The statutory definition of an "abused or neglected child" consists of seven subparts. Although the court did not expressly identify the provision upon which it based its finding, we surmise based on the court's decision that it relied on N.J.S.A. 9:6-8.21(c)(4), which declares a child to be abused or neglected if the child's
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 . . . to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so, or (b) 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 . . . .
In conducting our review of the trial court's finding, we have examined the evidence admitted for the purpose of the abuse or neglect fact-finding hearing on January 2, 2013. However, we also consider the statements Christopher made at the April 11, 2013, compliance hearing, which raise significant questions about Christopher's credibility, which the trial court failed to address. After being sworn, Christopher indicated that he had made false statements: "When the court case was first opened, I was I guess you would say a little nervous and didn't know quite how to handle the situation so I exaggerated certain parts of the case. Some of the allegations were highly exaggerated." (emphasis added). We may consider this statement, which is already in the record before us, in assessing whether the court's finding is supported by sufficient evidence. Cf. Ballurio v. Castellini, 28 N.J. Super. 368, 373 (App. Div. 1953) ("An appellate court may avail itself of authentic evidence outside of the record before it of matters occurring since the decree of the trial court when such course is necessary to prevent a miscarriage of justice, [or] to avoid a useless circuity of proceedings . . . .") (internal quotation marks and citation omitted).
Here, the court found that the abuse or neglect consisted of "isolating the child, keeping the child in a cold, dark, uncomfortable home, beating the child, and starving the child." Considering each finding, we are unpersuaded that they were supported by sufficient credible evidence.
We reach that conclusion without questioning that Tara is apparently in need of mental health services, as is Christopher, and both may be in need of other Division services. The abuse or neglect finding is distinct from the finding that a parent and child are in need of services pursuant to Title 30. See N.J. Div. of Child Prot. & Permanency v. L.W., 435 N.J. Super. 189, 196 (App. Div. 2014).
We briefly comment on the need for services, as distinct from the finding of abuse or neglect. Although Tara's extreme religiosity by itself is not a basis for judicial intervention, that religiosity was mixed with apparent symptoms of paranoia, and a fatalistic surrender to the will of her god. As she disclosed to the substance abuse counselor, Tara also has a history of mental illness. She was diagnosed as bipolar, but was not under psychiatric or psychological treatment and was not taking any medication for that condition (although she was taking a variety of medications, including those often associated with the treatment of cardiac conditions). This combination of conditions may well have interfered with her ability to appropriately parent, and justified the provision of services.
Moreover, Tara's past history as a victim of domestic violence, and her own substance abuse, may have had a significant impact on Christopher's psychological development and current mental health status. Tara admitted a past history of substance abuse. We recognize that she insisted that she had been abstinent from illegal drugs for several years, and she claimed to use alcohol in moderation. She also tested negative for drug use on multiple occasions, beginning at the outset of this case. Christopher was also exposed to the domestic violence against his mother by Donald, against whom she obtained a restraining order. Even if substance abuse and domestic violence were no longer present in the household, their impact conceivably persisted and warranted the provision of services.
However, the need for services under Title 30 does not necessarily justify a finding of abuse or neglect under Title 9. The finding that Christopher was isolated was based primarily in Christopher's claim that his mother sometimes locked him in his room, and barred him from reading science fiction, which she considered "evil." The court found that he was "deprived of stimulation."
Although Christopher may well have chafed under his mother's piousness and strictness, the evidence falls short of demonstrating isolation that rises to the level of abuse or neglect. The record evidence demonstrates that Christopher was not cut off from the modern world. The Division worker noted that he had a television in his room. In his discussions with Dr. Gambone, Christopher talked about numerous out-of-home activities, friendships, and a girlfriend.
The finding that the temperature of the house was so cold as to constitute physical abuse also lacks sufficient evidence in the record. Christopher's allegation was supported by the general observation of the Division worker that the house was "extremely cold" and "freezing." However, the statement was unsupported by any specificity. The photographs of the home taken during the Division worker's inspection depicts what appears to be Tara, standing by a full, open refrigerator. She is wearing a sleeveless dress. If the house were cold enough to constitute physical abuse, Tara presumably would have been wearing something warmer.
The court's finding of physical assaults or corporal punishment are supported by Christopher's own allegations, and his sister's claim that she observed such physical abuse when she lived in the household. We recognize that prior acts of abuse or neglect are evidential in Title Nine cases, notwithstanding N.J.R.E. 404(b). See N.J.S.A. 9:6-8.46(a)(1) (stating that "proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child"). However, Katherine's out-of-court statements lack inherent trustworthiness. Katherine admitted that she made no such allegation previously, although she was out of the household and free from potential retaliation by Tara, and although she would have had a motive to do so, to protect her sibling. Katherine likely harbored animosity toward her mother. Moreover, even assuming Tara resorted to excessive corporal punishment when Katherine resided in the home, that occurred at least three years earlier, and may have been associated with her past substance abuse.
Arrayed against this proof is the absence of any evidence or signs of physical injury, or reports of physical injury at school. Christopher alleged that his mother covered his bruises with make-up before he went to school. However implausible that sounds, it is even more implausible that the make-up would not have been detected, or that Christopher, already a teenager, would not have removed it.
Christopher also alleged that he was deprived of adequate food. Tara denied Christopher's claim. The refrigerator was well-stocked, according to the Division worker's inspection, and store receipts indicated that Tara purchased groceries before Christopher made this allegation. There was no indication that he suffered from inadequate nutrition, based on medical records, or observations of his physical appearance. The court noted the paternal aunt's statement that the children were made to fast for religious reasons, but the statement lacks probative value, as it is based on the hearsay statements of Christopher. In sum, we are not satisfied there was sufficient, competent evidence to support the court's conclusion that Tara was "starving" Christopher.
Finally, the court's finding of abuse or neglect cannot survive the substantial questions about Christopher's credibility, which were evident at the fact-finding hearing, and heightened by his subsequent admission that he "highly exaggerated" his allegations. Christopher did not specify what, in particular, he lied about, and neither the court nor any of the counsel for the parties pursued the matter. However, as it stands, Christopher's admission, along with other record evidence, casts such doubt on the court's finding that we are constrained to set it aside.
Reversed. We direct that Tara's name be removed from the child abuse registry within fourteen days.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
See also N.J.S.A. 9:6-8.47(b) (prohibiting a court from receiving, before completing a fact-finding hearing, reports prepared by the probation department or the Division for dispositional purposes).