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RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2095-12T2
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,1
Plaintiff-Respondent,
v.
G.V.,
Defendant-Appellant.
__________________________________________
IN THE MATTER OF C.V., A MINOR.
___________________________________________
Submitted September 9, 2014 – Decided January 7, 2015
Before Judges Messano and Hayden.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Passaic
County, Docket No. FN-16-62-12.
Joseph E. Krakora, Public Defender, attorney
for
appellant
(Mary
Potter,
Designated
Counsel, on the brief).
John J. Hoffman, Acting Attorney General,
attorney
for
respondent
(Andrea
M.
Silkowitz, Assistant Attorney General, of
1
Effective June 29, 2012, the Division of Youth and Family
Services was renamed the Division of Child Protection and
Permanency.
L. 2012, c. 16.
We shall refer to it as the
Division.
counsel; Ann Avram Huber,
General, on the brief).
Joseph E.
Guardian,
Lodeserto,
brief).
Deputy
Attorney
Krakora, Public Defender, Law
attorney
for
minor
(Karen
Designated
Counsel,
on
the
PER CURIAM
In this Title Nine case,2 defendant G.V. (Gary)3 appeals
from the Family Part order finding that he sexually abused his
son C.V. (Conner).
should
not
have
dispositional
He also contends that the Family Part judge
terminated
hearing
under
hearing under N.J.S.A. 9:2-2.
in
light
of
the
record
and
the
litigation
N.J.S.A.
without
9:6-8.50
and
holding
a
Baures4
a
Having reviewed Gary's arguments
applicable
legal
principles,
we
affirm.
I.
The Division first became involved with the family in 2006
when
bone.
Gary
admitted
to
breaking
ten-month-old
Conner's
femur
After Gary completed court-ordered services, the case was
dismissed.
In 2010, Gary filed a complaint to obtain custody of
Conner from Conner's mother, R.D. (Rachel), who consented to the
custody change due to her unstable housing.
2
N.J.S.A. 9:6-8.21 to -8.73.
3
We use pseudonyms to protect the family's privacy.
4
Baures v Lewis, 167 N.J. 91 (2001).
2
A-2095-12T2
On February 16, 2011, the Division received a referral from
Gary's neighbor, alleging he heard Gary every day screaming and
cursing
at
five-year-old
Conner.
The
next
day,
Division
caseworker Ilvia Ortiz spoke to Conner at his school.
Conner
disclosed that his father regularly yelled and cursed at him,
and sometimes hit him, spanked him, and threw him on the floor.
Conner denied being injured or being frightened of Gary.
also
reported
seeing
his
father
intoxicated
and
Conner
witnessing
domestic violence between his parents.
On that same day, Ortiz interviewed Gary and Rachel.
Gary
admitted that he sometimes yelled at his son, cursed out of
frustration, and at times spanked him.
Gary adamantly denied
physical abuse, domestic violence, or drug or alcohol abuse.
Nevertheless, Gary agreed to cooperate with the Emergency Child
Aid Program (ECAP) and to accept Family Preservation Services.
During this time, Rachel filed a custody complaint in the Family
Part to regain custody of Conner.
Thereafter, the Division's and ECAP's attempts to contact
Gary and provide services were unsuccessful.
for
Conner's
safety,
the
Division
filed
a
Due to concerns
complaint
in
the
Family Part to obtain an order to investigate on April 8, 2011.
At the hearing on the Division's application, the Family Part
judge decided to remove Conner from Gary's custody due to the
3
A-2095-12T2
history of severe physical abuse of the child, recent referrals
and
disclosures
of
physical
abuse
and
substance
Gary's failure to comply with agreed-upon services.
the
judge
sua
sponte
supervision of Conner.
gave
the
Division
custody,
abuse,
and
As such,
care,
and
The judge also merged Rachel's pending
complaint for custody with the Division matter5 and permitted the
Division to place Conner in Rachel's temporary physical custody
after her home was inspected.
On July 25, 2011, the Division received a referral from
Conner's therapist, Teran Chartier, stating that Conner reported
sexual
abuse
Prosecutor's
by
Gary.
Office
took
Two
a
days
later,
statement
the
from
Passaic
County
Chartier.
The
therapist explained that she began treating Conner because he
was having "nightmares of blood and people killing people" and
was "terrified of the bathroom even with all the lights on."
Chartier stated that Conner had made a sexual abuse disclosure
after approximately five sessions.
Chartier later reported to
the Division that Conner had difficulty distinguishing reality
from fantasy.
5
In the Family Part, cases concerning child welfare issues under
Title Nine are heard under the FN docket.
Cases concerning
custody, visitation and support, but not the dissolution of a
marriage are heard under the FD docket.
Cases involving the
dissolution of a marriage are heard under the FM docket.
4
A-2095-12T2
On
July
specialist
28,
with
2011,
the
Giselle
Henriquez,
Prosecutor's
Office,
a
child
interview
interviewed
Conner
regarding the sexual abuse allegations in the presence of Ortiz,
the
Division
caseworker.
Conner
disclosed
that
his
father
touched his penis over his underwear as his father was getting
him dressed for school.
Conner also related that he slept in
the same bed as his father and that his father lay on top of him
sometimes while they slept.
During the interview, Conner stated
that his father touched his "peanuts"6 "inside his clothes," but
"outside of his underwear" with his hand.
He described a game
he called "cave time," which consisted of Conner going under the
blankets on Gary's bed and Gary lying on top of Conner.
Even
so, when questioned about whether his father touched him on his
"peanuts" during "cave time," Conner responded that his father
touched his "peanuts" while getting dressed and taking a bath.7
On September 13 and 14, 2011, psychologist Jacquelyn DoranCunningham,
Ph.D.,
of
the
Audrey
Hepburn
Children's
House,
affiliated with Hackensack University Medical Center, performed
a
psychosocial
evaluation
of
Conner
for
the
Division.
Dr.
Cunningham also spoke with Rachel, who related that, when Conner
6
Conner's word for penis.
7
The Prosecutor's office ultimately determined not to pursue
criminal charges because information was inconclusive as to
whether the touch was accidental or sexual.
5
A-2095-12T2
first moved back in with her, he had nightmares every night and
was afraid of the dark.
Rachel also told Dr. Cunningham that
Conner "has some difficulty distinguishing real from pretend."
In her report, Dr. Cunningham stated that Conner "appeared
hesitant
when
asked
to
provide
information
regarding
sexual
abuse."
Dr. Cunningham noted that Conner "could not define the
truth or a lie," and after she defined the terms and Conner
identified a truth and lie, Conner stated it was better to lie
"because if someone tells the truth, they'll go to jail."
According to Dr. Cunningham's report, Conner also described
having nightmares and stomachaches, previously suffering from
headaches, and fearing that his mother "might die with a knife
in [her] throat."
When asked about suicidal ideation, Conner
said, "My mom yells at me when I tell her I want to die."
Dr. Cunningham reported that Conner spontaneously described
that his father "used to get on top of me at
nighttime." When asked to describe the last
time it occurred, [Conner] reported that he
and his father were in his father's bed
under the covers.
[Conner] indicated that
he was wearing a pajama shirt and shorts but
no underpants.
He reported that his father
was wearing a pajama top but no pants. . . .
[Conner] reported that he was "laying [sic]
on the bed on his stomach" and his father
was "sometimes on top of me and sometimes
beside me."
He stated that his father was
"doing stuff" but would not elaborate on his
response.
6
A-2095-12T2
After identifying body parts using figures, Conner stated
that his father "squeezes my peanuts really hard" with his hand
and also stated that his father had touched his buttocks with
his
hands
and
described
the
incident
as
"it
felt
like
hard
peanuts outside of my butt" and his father's penis touched his
buttocks.
Conner
also
reported
"grow" while he squeezed it.
watching
his
father's
penis
He indicated that "pee" came out
of his penis in the bed after his father was 'on top of me.'"
At the conclusion of the interview, Dr. Cunningham asked
Conner if anyone had told him what to say.
my mom.
Conner stated "Yes,
I get confused about what to talk to you about."
Dr. Cunningham found Conner's disclosures were consistent
with his disclosures to Chartier and Henriquez and "provided
additional
multiple
disclosure"
about
idiosyncratic
the
alleged
details
abuse.
The
through
piecemeal
doctor
concluded,
"[b]ased on [Conner's] accounts of inappropriate sexual contact
provided
during
the
interview
and
to
his
therapist,
and
[Conner's] reports of his symptoms, sexual abuse is clinically
supported."
On October 4, 2011, the Division moved to terminate the
April complaint for an order to investigate and to file a new
verified complaint for custody, care, and supervision based on
the new allegations.
At the hearing on the motion, the Division
7
A-2095-12T2
sought to "correct the record procedurally" because in April
2011 it "should have dismissed the order to investigate and
filed a new separate complaint for care and supervision."
The
Division's attorney explained that although the Division was not
seeking custody, the new complaint as drafted included a request
for custody, as well as care and supervision, in order not to
violate
Gary's
right
to
a
"full
hearing"
concerning
custody
pursuant to N.J Div. of Youth & Family Servs. v. G.M., 198 N.J.
382 (2009).
The Division acknowledged that generally a hearing
was required to "determine whether or not custody should be
transferred to the non-custodial parent . . . at the termination
of the litigation."
However,
the
Division's
counsel
represented
that
the
parties and their respective attorneys had conferred about these
issues before the hearing and agreed to the dismissal of the
pending
litigation
hearing.
without
a
fact-finding
or
a
dispositional
Both parties further agreed to joint custody of Conner
with Rachel having residential custody under the FD docket case.
The
family
complaint
judge
and
granted
granted
the
the
motion
Division
Conner under the new complaint.
to
care
dismiss
and
the
April
supervision
of
The order specified: "With
consent of all parties who are represented by counsel, [Conner]
shall remain in the joint legal custody of his parents (pursuant
8
A-2095-12T2
to FD-16-240-10), but will remain in the physical custody of
[Rachel]."
At the March 6, 2012 fact-finding hearing,8 Ortiz was the
sole witness for the Division.
The judge admitted, without
objection, the Division's screening summaries and investigation
summaries
from
2006
and
2011,
Dr.
Cunningham's
report
from
Conner's September 2011 evaluation, and the DVD of the interview
of Conner by the Prosecutor's Office.
Gary's attorney specified
that she had "no objection" to this evidence.
admitted,
over
Gary's
objection,
Chartier's
The judge also
statement
to
the
Prosecutor's Office regarding Conner's initial disclosure under
the "fresh complaint" exception.9
On May 24, 2012, the trial judge issued an oral decision
finding
that
Gary
abused
or
neglected
Conner
pursuant
to
N.J.S.A. 9:6-8.21(c)(3) because he "committed an act of sexual
abuse by touching [Conner] in his penis and other acts."
The
judge noted that he primarily relied on Ortiz's testimony and
Dr. Cunningham's
report.
The judge reasoned that while the
Prosecutor's Office did not charge Gary criminally, "the Audrey
8
There were several fact finding hearings that occurred in this
case, but only the March 6 hearing included witness testimony.
9
Defendant does not challenge this ruling on appeal.
9
A-2095-12T2
Hepburn evaluator indicated that the clinical findings supported
the allegations made by [Conner]."
I am also finding that the allegations are
supported by what [Conner] said and who he
said it to.
I watched the tape and I
listened carefully to what he said. . . .
He still indicated enough information to the
interviewer that in my opinion was just a
little too detailed for a child of that age.
The judge recognized that Conner had an active imagination
but determined that the abuse claims, which were told to the
Prosecutor's
"[T]he
child
investigator
provided
and
Dr.
Cunningham,
idiosyncratic
details
were
that
credible.
normally
a
child will not provide to anyone when describing these kinds of
acts."
The judge also found that defendant's denial of what
Conner said lacked credibility.
During the six months following the fact-finding hearing,
the court held several compliance review hearings.
A continuing
problem addressed by the judge concerned Rachel's apparent move
to Pennsylvania without the court's permission, which interfered
with
Conner's
services
and
Gary's
visitation.
Rachel
represented that she was pregnant, had no home in New Jersey,
and was too ill to travel.
Nevertheless, the judge ordered
Rachel, among other things, to move back to New Jersey, to reregister Conner at his New Jersey school, and to arrange for her
relatives to transport Conner to visits if she was unable.
10
The
A-2095-12T2
judge forcefully informed Rachel that while she had an open FD
matter, she was not permitted to leave the jurisdiction absent
permission of the court and threatened to have her arrested.
Rachel then filed a motion under the FD docket for permission to
leave the State with Conner.
On November 29, 2012, the Division moved to dismiss the
litigation as it had no further child welfare concerns about
Conner.
The law guardian concurred.
Gary's counsel, who had
not represented defendant at the initiation of the litigation,
requested a G.M. hearing, stating that "a finding has to be made
that
it's
Division
not
and
safe
the
to
Law
return
the
Guardian
[child]
reminded
to
the
[Gary.]"
court
that
The
the
Division never had custody during this litigation because of the
parties' custody agreement under the FD docket case.
The Family
judge
since
ordered
the
litigation
to
be
terminated
the
conditions were remediated and custody was to remain as it was
at the start of the litigation.10
This appeal followed.
10
Immediately after dismissing the Title Nine litigation, the
judge held a hearing under the FD docket. No transcript of this
hearing is in the record. According to the FD order, the judge
continued Conner in the joint legal custody of both parents, and
in the physical custody of Rachel.
The judge also granted
Rachel's application for relocation to Pennsylvania with Conner.
Gary has not appealed this FD order.
11
A-2095-12T2
II.
Before
improperly
because
us,
Gary
admitted
the
doctor
first
argues
and
relied
did
not
on
that
Dr.
testify,
the
trial
Cunningham's
the
report
judge
report,
contained
embedded hearsay, constituted a net opinion, and was based on an
unrecorded interview.
Gary claims that, although he did not
object to the report's admission at the fact-finding hearing,
its admission constitutes plain error as it deprived him of his
due process rights.
Gary further contends the trial court's
finding was not supported by substantial credible evidence in
the record, and that Conner's out-of-court statements regarding
abuse were not corroborated and were unreliable.
Our scope of review "is to decide whether the findings made
could
reasonably
have
been
reached
on
substantial
credible
evidence present in the record when considering the proofs as a
whole, giving due regard to the opportunity of the trial judge
to determine credibility."
N.J. Div. of Youth & Family Servs.
v. A.G., 344 N.J. Super. 418, 442-43 (App. Div. 2001) (citing
Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J.
474, 484 (1974)), certif. denied, 171 N.J. 44 (2002).
Special
deference
of
to
the
family
court
"expertise in family matters[.]"
is
accorded
because
its
Cesare v. Cesare, 154 N.J.
394, 413 (1998).
12
A-2095-12T2
However, when a trial court's determination results from a
review
of
documentary
evidence,
such
as
the
case
here,
our
standard of review is broader than if the court made findings
based upon testimonial evidence.
See G.M., supra, 198 N.J. at
396; State v. Reevey, 417 N.J. Super. 134, 146-47 (App. Div.
2010), certif. denied, 206 N.J. 64 (2011).
the
issue
to
be
decided
is
an
'alleged
Further, "[w]here
error
in
the
trial
judge's evaluation of the underlying facts and the implications
to be drawn therefrom,' we expand the scope of our review."
N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605
(2007) (quoting In re Guardianship of J.T., 269 N.J. Super. 172,
188-89 (App. Div. 1993)).
conclusions
and
the
Moreover, the trial judge's legal
application
of
those
facts are subject to plenary review.
conclusions
to
the
Manalapan Realty, L.P. v.
Twp. Comm. of the Twp. of Manalapan, 140 N.J. 366, 378 (1995).
Title
Nine's
guiding
circumstances
principle
and
is
actions
the
protection
that
threaten
of
children
from
their
welfare.
G.S. v. Dep't of Human Servs., Div. of Youth & Family
Servs., 157 N.J. 161, 176 (1999) (citing State v. Demarest, 252
N.J. Super. 323, 331 (App. Div. 1991)).
"[A]ny determination
that the child is an abused or neglected child must be based on
a
preponderance
of
the
evidence
and
.
.
.
only
material and relevant evidence may be admitted."
13
competent,
N.J.S.A. 9:6-
A-2095-12T2
8.46(b).
Relevant
to
the
allegations
here,
an
abused
and
neglected child includes one whose parent or guardian "commits
or allows to be committed an act of sexual abuse against the
child[.]"
N.J.S.A. 9:6-8.21(c)(3).
"[I]ssues
not
raised
below
will
ordinarily
not
be
considered on appeal unless they are jurisdictional in nature or
substantially
implicate
the
public
interest."
N.J.
Div.
of
Youth & Family Servs. v. M.C. III, 201 N.J. 328, 339 (2010).
Additionally, "'[t]he doctrine of invited error operates to bar
a disappointed litigant from arguing on appeal that an adverse
decision below was the product of error, when that party urged
the
lower
error.'"
court
to
adopt
the
proposition
now
alleged
to
be
Id. at 340 (quoting Brett v. Great Am. Recreation,
Inc., 144 N.J. 479, 503 (1996)).
"'[A] defendant cannot beseech
and request the trial court to take a certain course of action,
and upon adoption by the court, take his chance on the outcome
of
the
trial,
procedure
he
prejudicial.'"
and
if
sought
.
unfavorable,
.
.
then
claiming
it
condemn
to
be
the
very
error
and
Ibid. (alteration in original) (quoting State v.
Jenkins, 178 N.J. 347, 358 (2004)).
To demonstrate reversible
error when the error was invited, "the question is whether the
'particular error . . . cut mortally into the substantive rights
of
the
defendant[.]'"
State
v.
14
Corsaro,
107
N.J.
339,
345
A-2095-12T2
(1987) (alteration in original) (internal quotation marks and
citations omitted); see also State v. A.R., 213 N.J. 542, 561-62
(2013).
If
fundamental
the
doctrine
miscarriage
automatically."
of
of
invited
justice,'
error
it
"would
will
not
'cause
be
a
applied
A.R., supra, 213 N.J. at 562 (quoting M.C. III,
supra, 201 N.J. at 342).
Gary contends that "[g]iven the complexity of the analysis
which
is
necessarily
involved
in
reaching
a
conclusion
that
sexual abuse is clinically supported, cross examination of the
expert is necessary in order to avoid a denial of basic due
process."
the
As Dr. Cunningham did not testify, Gary states that
court's
consideration
of
the
doctor's
miscarriage of justice mandating reversal."
report
"was
a
We do not agree.
The Division "shall be permitted to submit into evidence,
pursuant
personnel
to
N.J.R.E.
or
803(c)(6)
professional
and
801(d),
consultants."
reports
R.
by
staff
5:12-4(d).
Generally, to be admissible, the Division reports must satisfy
the
prerequisites
N.J.R.E. 803(c)(6).
for
admission
as
a
business
record
under
M.C. III, supra, 201 N.J. at 346-47.
In
M.C. III, however, the Court held that where the Division had
not
satisfied
the
N.J.R.E.
803(c)(6)
prerequisites
solely
because the appellant had expressly consented to the admission
of the report at trial, its admission was proper "without the
15
A-2095-12T2
necessity of the Division's compliance with the strictures of
the Rules."
Id. at 348.
Thus, Dr. Cunningham's report was
admissible with Gary's consent.
Gary argues that even if the report were admissible, the
judge should not have relied on Dr. Cunningham's expert opinion.
"An expert medical opinion contained in a report is generally
inadmissible under this test because of the complexity of the
analysis involved in arriving at the opinion and the consequent
need for the other party to have an opportunity to cross-examine
the expert."
N.J. Div. of Youth & Family Servs. v. B.M., 413
N.J. Super. 118, 130 (App. Div. 2010); see also N.J.R.E. 808.
"[W]hen the expert is not produced as a witness, [N.J.R.E. 808]
requires the exclusion of his or her expert opinion, even if
contained in a business record, unless the trial judge makes
specific
findings
regarding
trustworthiness."
N.J.
Div.
of
Youth & Family Servs. v. M.G., 427 N.J. Super. 154, 174 (App.
Div. 2012) (holding that consultants hired by the Division to
evaluate
parental
fitness
were
erroneously
admitted
over
objection).
Gary's reliance on M.G. is misplaced as in M.G. the report
was admitted over the objection of the defendant's counsel.
at 164-65.
III.
Id.
Rather, this case is squarely controlled by M.C.
In M.C. III the defendant consented to the admission at
16
A-2095-12T2
trial
of
a
doctor's
report
finding
marks
consistent
with
physical abuse but on appeal claimed it was plain error for the
doctor not to have testified.
36, 338-39.
M.C. III, supra, 201 N.J. at 335-
The Court held that the defendant could not agree
to the document being entered without the doctor testifying,
then on appeal, claim that the doctor should have testified.
Id. at 341-42.
As
in
M.C.
III,
here
Gary
assented
to
the
report's
admission by allowing the report to be entered without objection
and not demanding that the doctor testify.
Thus, he invited the
error by taking his chances with the report's admission.
See
id.
the
at
342.
Indeed,
by
not
objecting,
Gary
prevented
Division from laying the requisite foundation for the business
records exception, denied the trial court the opportunity to
make any findings of trustworthiness and prevented the Division
from having Dr. Cunningham appear to testify.
See id. at 341.
Moreover, no fundamental miscarriage of justice occurred, see
A.R., supra, 213 N.J. at 562, because the trial judge relied
principally
on
the
statements
attributed
to
Conner
in
the
report, which were admissible under N.J.S.A. 9:6-8.46(a)(4).
Gary also contends that the opinion that sexual abuse was
clinically supported was a net opinion as it was based solely on
17
A-2095-12T2
Conner's statements with "no analysis, evidential support, or
clinical data to buttress her conclusion."
We disagree.
An expert's opinion must be based upon "facts or data . . .
perceived
by
hearing."
or
made
known
N.J.R.E. 703.
to
the
expert
at
or
before
the
"[A]n expert's bare opinion that has
no support in factual evidence or similar data is a mere net
opinion which is not admissible and may not be considered."
Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372
(2011).
"This prohibition against a 'net opinion' bars expert
testimony based on unfounded speculation or mere possibilities."
Costantino v. Ventriglia, 324 N.J. Super. 437, 451 (App. Div.
1999), certif. denied, 163 N.J. 10 (2000).
We are satisfied that Dr. Cunningham's report is not a net
opinion.
The doctor's facts and data were derived from numerous
Division
reports,
court
orders,
the
Prosecutor's
close-out
report, the psychological evaluations of Gary and Rachel, Gary's
psychiatric
evaluation,
and
interviews
with
Division's caseworker, Rachel, and Conner.
Henriquez,
the
Moreover, in her
comprehensive evaluation, the doctor fully explained her opinion
in the summary and formulation.
Consequently, Dr. Cunningham's
conclusions were clearly not based on "unfounded speculation or
mere possibilities."
Ibid.
18
A-2095-12T2
Gary next asserts that in State v. Michaels, 136 N.J. 299
(1994),
the
Supreme
Court
required
that
all
interviews
with
children concerning sexual abuse, be recorded because of the
ability of certain interview techniques to produce unreliable
accusations and taint a child's memory.
Since Dr. Cunningham's
interviews were not recorded, Gary claims that reliance on it,
"represents a miscarriage of justice."
This
claim
miscomprehends
We cannot agree.
Michaels,
which
simply
states
that "[a]s a matter of sound interviewing methodology, nearly
all experts agree that initial interviews should be videotaped."
Michaels, supra, 136 N.J. at 313 n.1.
Gary has not established
evidence of suggestive or coercive interview techniques which
would require the court to hold a hearing on the reliability of
Conner's statements.
See id. at 321.
Gary simply speculates
that Conner "could have been asked leading questions, repeated
questions in the face of negative responses, or any number of
other prohibited suggestive interview methods could have been
used."
This speculation is woefully insufficient to demonstrate
Gary's
claim
that
a
miscarriage
of
justice
resulted
from
admitting the interviews into evidence.
In sum, as in M.C. III, Gary's counsel did not object to
the admission of Dr. Cunningham's report thereby depriving the
Division of the opportunity of laying any requisite foundation
19
A-2095-12T2
for its admission.
admission
of
the
Gary has not presented evidence that the
challenged
report
constituted
a
fundamental
miscarriage of justice and thus, under M.C. III, the invited
error doctrine precludes defendant's objection to the admission
of the report.
Gary also argues the trial court erred in relying on the
"unrecorded embedded hearsay statements attributed to" Conner in
Dr. Cunningham's report.
We disagree.
"[P]revious statements made by [a] 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).
Cunningham
and
others
undoubtedly admissible.
Thus,
related
Conner's
to
his
statements
sexual
to
abuse
Dr.
were
The remaining issue is whether they
were sufficiently corroborated so as to permit a finding of
abuse and neglect.
"It would be a rare case where evidence could be produced
that would directly corroborate the specific allegation of abuse
between the child and the perpetrator[.]"
N.J. Div. of Youth &
Family Servs. v. Z.P.R., 351 N.J. Super. 427, 435 (App. Div.
2002).
Clearly, the most effective corroborative evidence would
be "'eyewitness testimony, a confession or admissions by the
20
A-2095-12T2
accused,
and
medical
or
scientific
testimony
documenting
abuse[;]'" however, "case law does not require that the evidence
be that specific before it can be deemed corroborative of the
child's
out-of-court
statements."
Id.
at
435-36
(citations
omitted).
"[T]he corroboration requirement must reasonably be held to
include indirect evidence of abuse.
a
child
semen
victim's
stain
on
precocious
a
child's
psychological evidence.'"
Such evidence has included
knowledge
blanket,
a
of
sexual
child's
activity,
nightmares
Id. at 436 (citation omitted).
a
and
"The
corroborative evidence need not relate directly to the alleged
abuser[;]
it
statements."
Here,
need
only
provide
support
for
the
statements
related
to
his
out-of-court
Ibid.
Conner's
abuse
were
corroborated by his precocious knowledge of sexual activity, his
nightmares,
bathroom.
well
fear
of
getting
out
of
bed,
and
fear
of
the
Conner's detailed knowledge of sexual activity was
beyond
that
of
a
six-year-old
child.
Based
on
this
corroborating evidence, the judge's reliance on the statements
attributed to Conner contained in Dr. Cunningham's report was
certainly
supra,
344
supported
N.J.
by
Super.
substantial
at
442-43,
credible
evidence,
and
statements
the
A.G.,
were
admissible to prove Conner's allegation of sexual abuse.
21
A-2095-12T2
Finally,
Gary
claims
that
Conner's
statements
were
inherently unreliable given his admission to being coached by
Rachel, his lack of spontaneous recollection, and his lack of
understanding of the difference between fantasy and reality as
well as a truth and a lie.
weighed
the
difficulty
possible
evidence
telling
including
reality
"coaching,"
We are satisfied that the judge
and
from
found
Conner's
fantasy,
that
young
and
Conner's
his
age,
his
mother's
statements
were
nevertheless reliable, which is entitled to our deference.
See
N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81,
88 (App. Div. 2006).
From our review of the record we are
satisfied that there was sufficient credible evidence in the
record to support the judge's finding that Gary sexually abused
Conner.
III.
Next,
Gary
asserts
that
the
trial
judge
committed
reversible error by failing to conduct a dispositional hearing,
as required by G.M., supra, 198 N.J. at 387-88, to determine
whether it would be safe to return Conner to Gary, his former
custodial parent before the Division became involved.
Again, we
disagree.
If abuse or neglect is established as a result of the factfinding hearing, the second step is the "dispositional hearing."
22
A-2095-12T2
N.J.S.A. 9:6-8.45.
determine
custody
G.M.,
A dispositional hearing must be held to
"whether
of
the
supra,
the
parent
198
children
from
N.J.
at
whom
may
safely
the
return"
children
387-88.
Notably,
were
to
the
removed.
"transfer
of
physical custody during a Title Nine action to the non-custodial
parent is a placement under Title Nine."11
Id. at 405.
However,
where a parent consents to a custody arrangement under an FD
docket case and does not challenge that order embodying the FD
case, he cannot expect a dispositional hearing to be held at the
end of the FN litigation.
N.J. Div. of Youth & Family Servs. v.
W.F., 434 N.J. Super. 288, 299 (App. Div.), cert. denied, 218
N.J. 275 (2014); see also N.J. Div. of Youth & Family Servs. v.
J.D., 417 N.J. Super. 1, 23 (App. Div. 2010) (holding that where
parents
in
an
FN
action
agree
to
a
judicial
custody
determination under N.J.S.A. 9:2-4, they may not later protest
the procedures followed).
11
On the other hand, "a parent . . . may always initiate a
request for change in custody against the other parent[.]" Id.
at 402 n.3. In N.J. Dep't of Children & Families, Div. of Youth
& Family Servs. v. I.S., 214 N.J. 8, cert. denied, __ U.S. __,
134 S. Ct. 529, 187 L. Ed. 2d 380 (2013), the court transferred
custody of a child under an FM docket and the child-protective
litigation was dismissed at the same time.
I.S., supra, 214
N.J. at 40-41.
Although not strictly in compliance with G.M.,
the manner in which custody was transferred was upheld because
"the consolidated procedure followed by the court did not result
in any cognizable harm to" the parent. Id. at 41-42.
23
A-2095-12T2
The record shows that when the Division sought to dismiss
its April complaint, the Division acknowledged that before such
a
dismissal,
a
dispositional
hearing
under
G.M.
should
ordinarily be held to determine if it was safe to return the
child from the parent from whom he was removed.
198
N.J.
at
387-88.
However,
before
the
G.M., supra,
hearing
on
the
dismissal motion, the parties and their attorneys conferred and
all agreed to dismiss the April complaint without any hearings
and with an agreement that both parents had joint custody and
Rachel had residential custody.
Thus, although Gary had a right
at that point to have a dispositional hearing, he consented to
forego a hearing and to give Rachel residential custody under
the
FD
docket.
The
instant
case
then
proceeded
Division having care and supervision, but not custody.
judge
dismissed
the
instant
case,
he
merely
with
the
When the
continued
the
custody arrangement consented to by the parents at the close of
the previous case and addressed further issues under the FD
docket.
We find no error in the family judge deciding not to
hold a dispositional hearing in this case as the Division did
not remove the child from Gary's custody during this proceeding.
Finally, Gary contends a Baures hearing on Rachel's request
to relocate to Pennsylvania should have been held in the FN
24
A-2095-12T2
case.
We find this argument to be without sufficient merit to
warrant extended discussion.
R. 2:11-3(e)(1)(E).
Suffice it to say that the record is clear that, during the
litigation,
the
judge
did
not
give
Rachel
permission
to
permanently relocate to Pennsylvania.
As the parties consented
to
the
joint
custody
of
Conner
under
FD
docket,
Rachel
appropriately filed a motion under the FD docket for permission
to relocate.
Additionally, Gary does not point to any error in
the judge's eventual Baures analysis and has not appealed the
judge's decision under the FD docket.
Affirmed.
25
A-2095-12T2