Opinion
DOCKET NO. A-4539-11T1
03-18-2014
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. E.S., Defendant-Appellant. IN THE MATTER OF N.S., I.S. and K.S., minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael S. Harwin, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Valerie R. Butler, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors N.S. and K.S. (Phyllis G. Warren, Assistant Deputy Public Defender, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor I.S. (Lisa M. Black, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Ostrer.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FN-03-20-11.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael S. Harwin, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Valerie R. Butler, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors N.S. and K.S. (Phyllis G. Warren, Assistant Deputy Public Defender, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor I.S. (Lisa M. Black, Designated Counsel, on the brief). PER CURIAM
E.S. (Elias) appeals from the Family Part's finding that he sexually abused his thirteen-year-old granddaughter, N.S. (Naomi), and inflicted excessive corporal punishment upon her, as well as his son, I.S. (Isaac). Elias principally argues: (1) Naomi's hearsay statements that he assaulted her lacked corroboration, and therefore were an inadmissible basis for the court's finding; and (2) his attorney provided ineffective assistance of counsel, mainly by consenting to a trial on the papers and failing to introduce into evidence an alleged diary of Naomi. Having reviewed Elias's arguments in light of the facts and applicable legal principles, we affirm.
We have fictionalized the names of those involved to maintain their privacy.
I.
We discern the following facts from the documentary record. Elias had informal custody of Naomi for several years. Elias is Naomi's maternal grandfather, and thirty-six years her senior. Elias lived with his girlfriend and soon-to-be-wife, D.B. (Debra). The household also included Elias's and Debra's daughter, K.S. (Kara), a toddler; Elias's son, Isaac, who is two years older than Naomi; and, for a period of time, K.K. (Kelly), a ten-year-old over whom Debra had kinship legal guardianship. Although Isaac was, technically, Naomi's uncle, they considered each other siblings.
The record does not include a formal order granting Elias custody. Reportedly, Naomi believed that Elias was her father.
Naomi reported the sexual assaults to her maternal aunt in August 2010. That prompted multiple interviews and evaluations of Naomi by police, Division staff, and the CARES Institute (CARES). Naomi alleged that Elias engaged in intercourse with her on multiple occasions over an extended period of time. She reported that the last incident occurred a month earlier.
Naomi stated that when Elias sexually assaulted her, he covered her face with a pillow and claimed that he was cleaning her vagina with a Q-tip. Naomi asserted that on one occasion, she removed Elias's penis from her vagina because of the pain she experienced.
Naomi stated that Elias often watched her shower. Once, after she left the shower, he insisted upon shaving her pubic hair. Afterwards, he sexually assaulted her. She claimed he also occasionally rubbed lotion on her breasts, stating he needed to do so because she had sensitive skin.
She stated that she experienced vaginal discharge. Elias took her to the pediatrician, who stated that she should see an obstetrician/gynecologist because the doctor believed she might be sexually active.
Naomi also reported that Elias inflicted corporal punishment upon her. When she vomited in the kitchen after having difficulty swallowing medicine, he struck her repeatedly.
No one in the family was an eyewitness to the sexual assaults. But, Isaac confirmed that he saw pubic hair in the bathroom sink. He also observed his father rub lotion on Naomi's back and sides while she had on a towel, because she had rough skin. He confirmed that his father used corporal punishment against him and Naomi. He overheard Naomi get "in trouble" when she vomited in the kitchen. He stated that his father struck him with a closed fist and a belt.
A physician from CARES found that Naomi was at an advanced stage of genital development, and had a "healed partial transection at the 7 o'clock position and a small hymenal tag at the 12 o'clock position." The partial transection was consistent with a "blunt penetrating injury to the vagina" that later healed. Naomi also reported that she had nightmares. A CARES psychologist concluded she suffered from post-traumatic stress.
In interviews with police, Elias admitted that he shaved Naomi's pubic hair, but claimed he did so for hygienic reasons, because Naomi had reported a cut in the area. He asserted that Debra was present when he trimmed the hair; however, Debra later controverted that claim. He also asserted that rather than vomit, Naomi purposely spit out medicine; in response, he said he pushed her (as opposed to striking her), and Debra was present. However, Debra also denied being present at that incident. Elias also admitted he used a belt to discipline the children.
In his initial interview with police, two days after the initial report of Naomi's allegations, Elias asserted that he found a notebook of Naomi's, in which she said she had sex with a boy. He claimed that he had punished her in response. However, in other interviews with Division caseworkers the same day, Elias reportedly asserted that Naomi was not sexually active.
The Division filed a Title 9 verified complaint in August 2010, seeking custody, care and supervision of Naomi, and alleging the various acts of sexual assault and corporal punishment.
The complaint, which was later amended in November 2010, also sought the Division's care and supervision of the other children in the household.
While the Title 9 case was pending, Elias was indicted and charged with first-degree aggravated sexual assault of a victim less than thirteen years old, N.J.S.A. 2C:14-2a(1); first-degree aggravated sexual assault of a child less than thirteen years old related by blood or affinity, N.J.S.A. 2C:14-2a(2)(a); second-degree aggravated sexual assault of a victim less than thirteen years old and the actor is at least four years older than the victim, N.J.S.A. 2C:14-2(b); third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a; and two counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a.
We glean these facts from Elias's judgment of conviction for second-degree endangering. The indictment is not included in the record.
In advance of the fact-finding hearing on the Division's allegations against Elias, the Division's counsel suggested that the trial proceed on the papers. Elias's counsel at the time objected. However, that attorney was permitted to withdraw, with Elias's consent, because of illness.
At a later conference with the court, Elias's new attorney consented to the procedure by which the Division would introduce eight identified documents, without objection, and counsel would make closing arguments. Elias's counsel had secured a previous adjournment to confer with his client about the procedural issue. In agreeing to the procedure, Elias's counsel explained:
[T]here are still serious pending criminal charges against my client . . . . In cases where that is so we often . . . choose this procedure because . . . a client has a right not to incriminate himself, and there are a number of other reasons why we're choosing . . . this route. But my client, I'm sure, would want Your Honor to know that just because we're taking this route doesn't in any way mean . . . that he . . . has done anything inappropriate. . . . So this path was chosen because of the criminal charges . . . pending.
The documents admitted into evidence were: (1) a Division screening summary dated August 17, 2010; (2) a Division investigation summary of the same date; (3) the CARES physician's examination report; (4) a Willingboro Police Department report dated August 17, 2010; (5) an evaluation from CARES, which included a mental health evaluation of Naomi; (6) the CARES physician's curriculum vitae; (7) a Willingboro police investigation report from January 1 and May 27, 2011; and (8) a Willingboro police investigation report from February 18, 2011. The court confirmed that Elias's counsel had no objection to the documents' admissibility in evidence, expressly stating that counsel could lodge "objections to certain parts of the exhibits as well and we'll have to rule on them." Elias did not seek to introduce any exhibits in defense.
During his closing statement, Elias's counsel highlighted inconsistencies in Naomi's several statements to police, Division, medical and mental health examiners, and family members. The inconsistencies pertained principally to details of her allegations of corporal punishment.
Counsel also emphasized that Naomi had reportedly disclosed in her notebook that she had a sexual encounter with a boy. An overriding theme of the defense was that Naomi had concocted her claim that Elias sexually assaulted her because he punished her for engaging in sex with a boy. Defense counsel quoted directly from the notebook, although it was not admitted in evidence and the quotations did not appear in the Division's exhibits.Counsel also argued that the evidence did not corroborate Naomi's allegations, as required by N.J.S.A. 9:6-8.46.
We granted Elias's motion to supplement the record to include photocopies of pages from the alleged notebook, solely for the purpose of considering his ineffective assistance of counsel claim.
In the Division's closing, counsel responded that Naomi's allegations were generally consistent as they pertained to the sexual assault. She argued that Naomi's allegations were corroborated. Isaac saw pubic hair in the bathroom; he observed his father apply lotion to Naomi when clad in a towel; and Isaac confirmed that Elias pushed Naomi. A medical examination confirmed a blunt penetrating injury to the hymen. Elias admitted that he cut Naomi's pubic hair. Questioning Elias's credibility, she noted inconsistencies in Elias's statements, including his assertions that Naomi was not sexually active, and she had sex with a boy and was being punished. Counsel also highlighted that Debra controverted Elias's claims that she was present when he cut Naomi's pubic hair. Counsel also noted that the alleged notebook was not in evidence.
Judge Philip E. Haines issued a written decision on March 29, 2012, finding that Elias had sexually abused Naomi, N.J.S.A. 9:6-8.21(c)(3), and used excessive corporal punishment against Naomi and Isaac, N.J.S.A. 9:6-8.21(c)(4). The court found that Naomi's allegation of sexual assault was corroborated by, among other items of evidence: the CARES report of traumatic injury to the hymen; Naomi's nightmares and post-traumatic stress; the admission that Elias touched Naomi by shaving her pubic hair; and Naomi's statement that she went to the doctor regarding her vaginal discharge, and the doctor referred her to an OB/GYN because it appeared she was sexually active. The court noted that Debra denied Elias's claim that he shaved Naomi's pubic hair in Debra's presence. Judge Haines entered a conforming fact-finding order and dismissal of litigation.
Elias's appeal followed. While the appeal was pending, defendant entered a guilty plea on July 2, 2012, to one count of second-degree endangering the welfare a child, N.J.S.A. 2C:24-4a. Apparently, defendant did not admit to acts of sexual abuse, as the judgment of conviction noted that he was not subject to Megan's Law, see N.J.S.A. 2C:7-2(b)(2), and the court did not impose mandatory penalties for a sex offense. See N.J.S.A. 2C:14-10, 2C:43-3.6. The record also does not reflect whether the victim in the admitted offense was Naomi or Isaac. Pursuant to the plea agreement, defendant received a downgraded sentence of a flat three-year term, with no objection to the Intensive Supervision Program from the State. Among other mitigating factors, the Criminal Part judge found "[t]here were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense."
We granted the State's motion to supplement the record with Elias's judgment of conviction. The State did not include a transcript of Elias's allocution, or his sentencing.
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Elias presents the following points for our consideration:
POINT I
SINCE N.S.'S STATEMENTS WERE NOT CORROBORATED, E.S. COULD NOT BE FOUND GUILTY OF ABUSE AND NEGLECT BASED ON SEXUAL CONTACT.
POINT IA
N.S. WENT TO THE DOCTOR REGARDING HER DISCHARGE AND THE DOCTOR REFERRED HER TO AN OBSTETRICIAN/GYNECOLOGIST BECAUSE IT LOOKED AS IF SHE WAS SEXUALLY ACTIVE.
POINT IB
THE CARES INSTITUTE REPORT SHOWED THAT N.S. HAD A HEALED PARTIAL TRANSECTION OF THE HYMEN, WHICH IS CONSISTENT WITH A BLUNT PENETRATING INJURY TO THE VAGINA. THE CARES REPORT ALSO INDICATED THAT N.S. ENDORSED SYMPTOMS OF POSTTRAUMATIC STRESS IN REACTION TO THE REPORTED SEXUAL ABUSE. N.S. INDICATED SHE OFTEN EXPERIENCES WHAT HAPPENED THROUGH NIGHTMARES.
POINT IC
E.S. ADMITTED TO SHAVING N.S.'S PUBIC AREA BECAUSE N.S. CAME TO HIM CRYING THAT SHE CUT HER PUBIC AREA. THE TRIAL JUDGE FOUND THIS TESTIMONY NOT CREDIBLE BECAUSE D.B. DENIED SEEING E.S. SHAVE N.S.'S PUBIC AREA.
POINT II
SINCE N.S.'S STATEMENTS WERE NOT CORROBORATED, E.S. COULD NOT BE FOUND GUILTY OF ABUSE AND NEGLECT BASED ON EXCESSIVE CORPORATE PUNISHMENT.
POINT III
THE TRIAL COURT'S CREDIBILITY FINDINGS ARE NOT ACCURATE AND THEREFORE N.S.'S STATEMENT CANNOT BE RELIED UPON AS ACCURATE.
POINT IV
BOTH OF E.S.'S TRIAL COUNSEL WERE INEFFECTIVE AND THEREFORE E.S. IS ENTITLED TO A NEW TRIAL.
II.
We accord deference to the Family Court's fact-finding because of the court's "special expertise" in family matters. Cesare v. Cesare, 154 N.J. 394, 413 (1998). We do so notwithstanding that the trial court did not hear testimony, or make credibility determinations based on the demeanor of witnesses. However, we owe 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).
We turn first to Elias's argument that Naomi's statements were not corroborated and therefore inadmissible; as a result, he argues there was insufficient proof of his abuse. We disagree.
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.'" N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011) (quoting N.J.S.A. 9:6-8.46(b)). The statute 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." N.J.S.A. 9:6-8.46(a)(4). 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). "The corroborative evidence need not relate directly to the alleged abuser, it need only provide support for the out-of-court statements." Ibid.
Physical evidence of assault is certainly corroborative, but it is rare "because the sex offenses committed against children tend to be nonviolent offenses such as petting, exhibitionism, fondling and oral copulation." Ibid. (internal quotation marks and citation omitted). However, in this case, physical evidence of assault was presented, in the form of the physician's evaluation that Naomi suffered a blunt penetrating injury to her hymen. Moreover, the statements — from both Naomi and Elias — that Elias cut his thirteen-year-old granddaughter's pubic hair — constitute direct evidence of inappropriate sexual contact, and corroborative evidence of the sexual assault that Naomi said followed the pubic hair cutting.
Corroboration may also be established by evidence of emotional impacts, such as nightmares and other psychological conditions. Ibid. In this case, the psychologist who examined Naomi noted that she experienced nightmares, and diagnosed her with post-traumatic stress.
Elias argues that the corroborative evidence was itself inadmissible hearsay, and corroborative evidence may not consist of hearsay. We are unpersuaded. Hearsay, even if subject to a well-founded objection, is evidential if no objection is made. State v. Ingenito, 87 N.J. 204, 225 n.1 (1981) (Schreiber, J., concurring); In re Petagno, 24 N.J. Misc. 279, 283-84 (Ch. 1946) ("When hearsay evidence is admitted without objection it is to be considered and given its natural probative effect as if it were in law admissible." (citing Diaz v. United States, 223 U.S. 442, 450, 32 S. Ct. 250, 252, 56 L. Ed. 500, 503 (1912))); 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").
Elias consented to the admission of the documents into evidence, and trial upon the papers. The court expressly inquired whether his counsel intended to object to any part of the documents. He waived any objection to the hearsay embedded in the documents. Moreover, he is estopped from arguing that the court relied on inadmissible hearsay, because the Division obviously relied on his consent to the admission into evidence of the documents. Had he taken a contrary position, the Division would have been able to call live witnesses. See N.J. Div. of Youth & Family Servs. v. M.C., 201 N.J. 328, 340-41 (2008) (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"). We note there was no evidence in the record that Naomi was fearful or reluctant to testify. Rather, she reportedly desired to do so.
Alternatively, Elias argues that his counsel was ineffective by failing to register an objection to hearsay contained in the documents. He asserts his counsel was also ineffective by failing to attempt to introduce into evidence the alleged notebook of Naomi. We consider this argument under the two-pronged standard for assessing claims of ineffective assistance of counsel articulated in Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 698 (1984) (defendant must establish (1) that his counsel's performance was deficient and he made errors so serious that counsel was not functioning as guaranteed by the Sixth Amendment and (2) that defendant was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different). See N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 308-09 (2007) (applying Strickland test to a claim of ineffective assistance of counsel in a Title 9 abuse and neglect case); State v. Fritz, 105 N.J. 42, 58 (1987) (applying Strickland standard to collateral attack of conviction).
We discern no deficient performance. As Elias's counsel explained on the record, trying the case on the papers was a strategy he adopted in the face of the pending criminal case. Elias apparently wanted to avoid taking the stand and waiving his right to remain silent. However, based on the procedure the two sides adopted, Elias was able to present his version of events — embedded in the police and Division reports — without taking the stand. Had the two sides scrupulously challenged embedded hearsay, the Division may have had an objection to self-serving hearsay statements of Elias. See Alves v. Rosenberg, 400 N.J. Super. 553, 563-64 (App. Div. 2008) ("Defendant's self-serving, exculpatory representations" do not qualify as admissions of a party opponent).
Under the trial-on-the-papers procedure, Elias's attorney highlighted inconsistencies in Naomi's statements without her taking the stand and attempting to explain them. Finally, he was able to utilize Naomi's diary — even quoting from it despite the fact it was not admitted into evidence — without the necessity of laying a foundation regarding its authenticity, and without risking the possibility that Naomi would explain the quoted entry.
Nor was it deficient of Elias's counsel to withhold objections to the embedded hearsay, assuming for the sake of argument that any such objections would have been well-founded. There is no reason to believe that had Elias's counsel indicated an intention to object to embedded hearsay in the documents, the Division would have been unable to produce witnesses. Indeed, as noted, the record reflects that Naomi was willing and able to testify at trial.
Given our disposition, we need not address at length the Division's argument that Elias's guilty plea provides a basis, by itself, to affirm the court's finding. However, absent the indictment, and Elias's allocution, we are at a loss to determine with certainty what Elias admitted in the criminal case. As noted, it appears his plea did not involve his sexual assault of Naomi. In any event, a plea of guilty is merely evidential, but not preclusionary. Eaton v. Eaton, 119 N.J. 628, 644 (1990).
Elias's remaining arguments, to the extent we have not addressed them, lack sufficient merit to warrant discussion in a written opinion. See R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION