                                     RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4216-17T1

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

         Plaintiff-Respondent,

v.

N.Y.,

         Defendant-Appellant,

and

L.C. and A.S.D.,

     Defendants.
____________________________

IN THE MATTER OF K.C., M.Y.,
D.T.Y., N.Y., and N.D.C.,

     Minors.
____________________________

                   Submitted March 23, 2020 – Decided April 13, 2020

                   Before Judges Sabatino and Geiger.
            On appeal from the Superior Court of New Jersey,
            Chancery Division, Family Part, Passaic County,
            Docket No. FN-16-0079-17.

            Joseph E. Krakora, Public Defender, attorney for
            appellant (Robyn A. Veasey, Deputy Public Defender,
            of counsel; Marina Ginzburg, Designated Counsel, on
            the brief).

            Gurbir S. Grewal, Attorney General, attorney for
            respondent (Jane C. Schuster, Assistant Attorney
            General, of counsel; Viviane Cristina Sullivan, Deputy
            Attorney General, on the brief).

            Joseph E. Krakora, Public Defender, Law Guardian,
            attorney for minor, N.D.C. (Rachel E. Seidman,
            Assistant Deputy Public Defender, on the brief).

PER CURIAM

      Defendant N.Y. (Nick)1 appeals from an April 11, 2018 Family Part order

terminating litigation in this Title Nine case; a January 3, 2018 order dismissing

his minor daughter, N.D.C. (Natalie), from the litigation because a guardianship

complaint was filed; and the underlying June 21, 2017 order finding that he

sexually abused and neglected Natalie. We affirm.




1
   We refer to the parties and the children by initials and fictitious names to
preserve their confidentiality and for ease of reference. R. 1:38-3(d)(12).



                                                                         A-4216-17T1
                                        2
        Nick is the biological father of Natalie; L.C. (Lacy) is her biological

mother.2 Nick and Lacy were married but had separated in 2014, due to Nick's

extramarital affair with V.K. (Valerie). Their marriage produced Natalie and

N.Y. (Noelle), among other children.

        In the fall of 2015, Natalie and Noelle, and some of their siblings, were

residing with Nick, Valerie, and Valerie's children in Paterson. Natalie was then

thirteen and Noelle was eleven.

        Sometime thereafter, Natalie was arrested when she and a group of friends

stole a woman's car keys from her person and began driving her car around

Paterson. When police tried to pull the vehicle over, the driver stopped suddenly

and all passengers, including Natalie, fled. Natalie was soon apprehended,

subsequently placed on house arrest, and required to wear an ankle monitor.

        In the summer of 2016, Natalie was sentenced to probation for one year

and her ankle monitor was removed. Soon thereafter, she began staying out late

and acting disobediently. On August 3, 2016, Valerie threatened to report

Natalie's behavior to her probation officer. In response, Natalie ran away from

home. Natalie's godmother, D.Z. (Dana), and her godmother's adult daughter,

R.Z. (Rachel), were contacted about Natalie's disappearance.


2
    Lacy has not challenged the trial court's rulings or participated in this appeal.
                                                                            A-4216-17T1
                                          3
      After searching Paterson, Rachel found Natalie and brought her back to

Dana's home. Eventually, Natalie disclosed to both Dana and Rachel that on

several recent occasions, Nick had grabbed her buttocks and breasts, and made

lewd comments to her. Natalie intimated that Nick's behavior had been ongoing

from November 2015 to July 2016, but to her knowledge did not involve any of

her siblings.

      After hearing her accusations, Rachel took Natalie to the police and

subsequently to the Passaic County Prosecutor's Office where Natalie provided

a statement detailing the sexual abuse. The police notified the Division of Child

Protection and Permanency (Division).        Division caseworkers interviewed

Natalie and her family.       During the interviews, Natalie reiterated her

accusations. Both Nick and Valerie denied the claims, attributing them to

Natalie's displeasure with following their rules.

      On September 20, 2016, Natalie underwent a psychosocial evaluation by

Kirsten Byrnes, Psy.D., a staff psychologist at Audrey Hepburn Children's

House (AHCH). Anthony D'Urso, Psy.D., served as supervising psychologist.

The resulting report explained that during the evaluation Natalie recounted her

accusations against Nick, explained her current emotional state, and informed

Byrnes that she witnessed multiple instances of domestic violence and substance


                                                                        A-4216-17T1
                                        4
abuse in her homelife. The report found clinical evidence of physical abuse;

emotional abuse; exposure to intimate-partner violence, substance abuse, and

firearms; and inappropriate sexual boundaries.

      On October 20, 2016, the Division filed a verified complaint under Title

Nine for custody, care and supervision of Natalie and Noelle. The fact-finding

hearing took place over five non-consecutive days in 2017.             At issue was

whether Natalie was an abused and neglected child under N.J.S.A. 9:6-

8.21(c)(3). The Division presented testimony by D'Urso, Natalie, and Division

investigator Mario Jumique. Neither Nick nor Lacy testified during the hearing.

      The parties stipulated that D'Urso is an expert in child psychology and

sexual abuse of children.        D'Urso testified that he is the "supervising

psychologist and section chief" at AHCH and, along with co-directing the

facility, he is "responsible for all of the mental health services."

      D'Urso testified that Natalie was referred to AHCH by the Division in

September 2016, for a psychosocial evaluation relating to allegations of sexual

behavior by her father, Nick. The interview and report primarily related to

Natalie's "emotional functioning and any treatment related services or

recommendations that would be appropriate for her." D'Urso confirmed that




                                                                           A-4216-17T1
                                         5
Byrnes interviewed Natalie but stated that he was part of the entire process "from

the referral until the signature that's on the report."

      D'Urso recounted how, during her interview, Natalie expressed that her

father fondled her and made sexual advances towards her on multiple occasions.

D'Urso explained that a Millon Adolescent Clinical Inventory test was

administered on Natalie, which "is a general measure of emotional functioning

so it assesses . . . anxiety, depression, relationships, self-esteem, worry,

sexualized discomfort, as well as things like attitude towards parents, [and]

school." The test revealed that Natalie is "anxious and depressed," experiences

"social isolation," and "that she had some emotional difficulties." Natalie was

diagnosed with "persistent depressive disorder" and "child physical abuse."

      Natalie testified in camera. 3 She stated that Nick's sexual advances began

one night in November 2015 while she was sleeping in her room and suddenly

awoken by Nick. Nick asked Natalie to speak with him in the hallway. During

the conversation, Nick asked Natalie whether she was having sex and if he could

"break [her] off?" He subsequently grabbed her forearm. Natalie broke free of



3
  Under Rule 5:12-4(b), a trial judge may permit a child's testimony to be "taken
privately in chambers." On appeal, defendant has not challenged the judge's
decision to permit Natalie to testify in camera.


                                                                         A-4216-17T1
                                          6
Nick's grip, responded, "no," and walked back to her room, locking the door

behind her. Natalie testified that she later discovered the phrase, "break you

off," was sexual in nature and "was scared" of being "rape[d]" by Nick. 4

      Natalie then testified that in January 2016, while she was in the kitchen

washing dishes, Nick came up behind her and wrapped his arms around her

waist. When she pushed Nick away, he began laughing and called her "a punk."

Natalie testified that Noelle was also in the kitchen and exchanged a "weird

look" with her following Nick's embrace.       In fact, Noelle previously told

Division investigators that she had seen Nick embrace Natalie "a couple of

times" and reenacted their encounter by "brush[ing] her hand across her chest

and buttocks."

      Next, Natalie testified that in March 2016, Nick was lying on the couch

while holding her baby sibling. Nick called Natalie and asked her to put the

baby to bed. When Natalie leaned over the couch to pick the baby up, Nick

"touched" Natalie's breast. When Natalie asked him what he was doing, Nick

responded by laughing and then going to sleep.




4
 In its decision, the court stated that "in contemporary vernacular [the phrase]
means to engage in sexual intercourse."
                                                                        A-4216-17T1
                                       7
       Finally, Natalie recounted an evening in July 2016, where she was lying

in bed and "heard the door creep open." She assumed it was one of her siblings,

so she continued lying still. Eventually, she began to sense someone staring at

her intensely; when Natalie turned, she saw Nick in the doorway. Nick then

reached out and tried to touch Natalie's buttocks, but she began yelling. Nick

responded by laughing while exiting the room. Natalie detailed how Nick's

behavior made her feel "hopeless" and led to suicidal ideations.

       Natalie was extensively cross-examined by defense counsel in an effort to

attack her credibility. Nick contended that Natalie was accusing him of sexual

abuse because she was frustrated with multiple unrelated issues, including: (1)

having to babysit her siblings and change their diapers all the time; (2) Nick

cheating on Lacy with Valerie; (3) Valerie threatening to call Natalie's probation

officer if she continued acting out; and (4) instances of emotional and physical

abuse, separate from the sexual abuse allegations.

       Following Natalie's testimony, the parties submitted written summations

and the record was closed. The judge issued a June 20, 2017 oral opinion finding

the Division had proven that Natalie was an abused and neglected child under

N.J.S.A. 9:6-8.21(c)(3). An order reflecting the ruling was entered the following

day.


                                                                         A-4216-17T1
                                        8
      Specifically, the judge found "[t]here were several incidents in which

[Nick] subjected [Natalie] to inappropriate sexual contact." "[B]ased upon the

weight of the credible testimony," the judge found Nick "touched [Natalie] in

her intimate areas and was asked by [Nick] whether [she] would allow -- him to

break her off." The judge further found that Nick "wrapped his arms around

[Natalie's] waist and pulled her body close to his," making "her feel

uncomfortable." The judge also found that Nick "cupped her breast and smacked

her buttocks."

      The judge noted "D'Urso testified that [Natalie] recounted the same

incidents during the course of her psychological evaluation." The judge also

noted that Jumique testified that "[Natalie's] account of [Nick's] inappropriate

conduct did not waiver during the investigation."

      The judge determined that Nick committed the acts of abuse for the

purpose of sexual gratification or humiliation of Natalie. The judge commented

that Natalie's psychological evaluation supported this finding because she

displayed "signs of anxiety, depression, social isolation, impaired interpersonal

relationships" and resulted in "findings of inappropriate sexual boundaries."

      The judge found D'Urso's testimony "to be direct and credible as well as

highly informative."    Likewise, he found Jumique's testimony to be "non


                                                                         A-4216-17T1
                                       9
evasive, direct and consistent . . . and credible." The judge found that Natalie

"withstood the cross[-]examination" and her "testimony was consistent, not only

with the statements made to the Division as reflected in their various

investigations," but also with her statements during her psychosocial

examination. The judge noted that defense counsel conducted robust cross-

examination of Natalie that intensely tested her credibility and accusations she

made.

        The judge rejected defendant's contention that this was just friendly,

nonsexual play and "all fun and games." Based on these findings, he determined

that Natalie was sexually abused by Nick, qualifying her an abused and

neglected child under N.J.S.A. 9:6-8.21(c)(3). The Law Guardian advocates that

we should affirm the trial court's decision.

        On November 14, 2017, both Nick and Lacy completed a voluntary

surrender of their parental rights to Natalie and Noelle. This appeal followed.

        Nick raises the following points for our consideration:

              I. THE TRIAL COURT'S FACT-FINDING DECISION
              MUST BE REVERSED AS DCPP DID NOT PROVE
              BY THE PREPONDERANCE OF THE CREDBILE
              EVIDENCE THAT NICK SEXUALLY ABUSE[D]
              NATALIE AND THE TRIAL COURT'S FINDINGS
              WERE NOT SUPPORTED IN THE RECORD.



                                                                        A-4216-17T1
                                        10
            a. NATALIE'S OUT-OF-COURT STATEMENTS
            REGARDING THE ALLEGED SEXUAL ABUSE
            WERE NOT CORROBORATED. AS REQUIRED
            UNDER N.J.S.A. 9:6[-]8.46(A)(4) AND THEREFORE
            DCPP    DID      NOT      PROVE      BY   THE
            PREPONDERANCE OF THE EVIDENCE THAT
            NICK SEXUALLY ABUSED NATALIE. (Not raised
            below).

            b. NICK'S DUE PROCESS RIGHT[S] WERE
            VIOLATED BECAUSE HE WAS NOT ABLE TO
            CROSS[-]EXAMINE         THE      MEDICAL
            PROFESSIONAL        WHO  PERFORMED   THE
            PSYCHOLOGICAL EVALUATION ON NATALIE.
            (Not raised below).

      In reviewing the decision of a family court, we "defer to the factual

findings of the trial court," New Jersey Division of Youth & Family Services v.

E.P., 196 N.J. 88, 104 (2008), in recognition of the "family courts' special

jurisdiction and expertise in family matters," New Jersey Division of Youth &

Family Services v. M.C. III, 201 N.J. 328, 343 (2010) (quoting Cesare v. Cesare,

154 N.J. 394, 413 (1998)). "Concomitantly, reviewing courts should defer to

the trial court's credibility determinations" as well. N.J. Div. of Youth & Family

Servs. R.G., 217 N.J. 527, 552 (2014). It is "[o]nly when the trial court's

conclusions are so 'clearly mistaken' or 'wide of the mark'" that we will intervene

and make our own findings "to ensure that there is not a denial of justice." E.P.,

196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J.


                                                                          A-4216-17T1
                                       11
596, 605 (2007)). However, "[a] trial court's interpretation of the law and the

legal consequences that flow from established facts are not entitled to any

special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140

N.J. 366, 378 (1995) (citations omitted). The court's interpretation of the law or

its legal conclusions are reviewed de novo. State in Interest of A.B., 219 N.J.

542, 554-55 (2014).

      We first address the contention that admission of the psychosocial

evaluation and D'Urso's testimony in relation to that evaluation was error.

Defense counsel did not object to the admission of the psychosocial evaluation

report or D'Urso's testimony. We conclude, contrary to the objection now raised

on appeal, that the report was properly admitted.

      We review a court's evidentiary rulings under an abuse of discretion

standard. N.J. Div. of Child Prot. & Permanency v. N.T., 445 N.J. Super. 478,

492 (App. Div. 2016) (citing State v. Kuropchak, 221 N.J. 368, 385 (2015)). We

reverse discretionary determinations, as with all rulings on the admissibility of

evidence, only "when the trial judge's ruling was 'so wide of the mark that a

manifest denial of justice resulted.'" N.J. Div. of Youth & Family Servs. v.

M.G., 427 N.J. Super. 154, 172 (App. Div. 2012) (quoting State v. Carter, 91




                                                                         A-4216-17T1
                                       12
N.J. 86, 106 (1982)). Evidentiary rulings not objected to will be reversed only

if deemed plain error. R. 2:10-2.

      The admissibility of evidence in Title 9 actions is governed by statute,

court rule, and the rules of evidence. N.J.S.A. 9:6-8.46(b) provides that only

"competent, material and relevant" evidence may be admitted in such actions

and that a finding of abuse and neglect must be proved by "a preponderance of

the evidence." Further, N.J.S.A. 9:6-8.46(a)(3) provides that business records

of any hospital, public or private institution, or agency, relating to a child in an

abuse or neglect proceeding, shall be admissible in evidence if the judge finds

that it was made in the regular course of the business, and such records "shall

be prima facie evidence of the facts contained [therein]."              "All other

circumstances of the making of the memorandum, record or photograph,

including lack of personal knowledge of the making, may be proved to affect its

weight, but they shall not affect its admissibility." N.J.S.A. 9:6-8.46(a)(3).

      The ACHC Report

      Rule 5:12-4(d) permits the Division to submit into evidence, pursuant to

N.J.R.E. 803(c)(6) and 801(d), "reports by staff personnel or professional

consultants" and states, "[c]onclusions drawn from the facts stated therein shall

be treated as prima facie evidence, subject to rebuttal." N.J.R.E. 801(d) defines


                                                                           A-4216-17T1
                                        13
the term "business" to include "government agencies" and N.J.R.E. 803(c)(6)

allows into evidence a statement in a writing of acts, events, conditions, and —

subject to N.J.R.E. 808—opinions or diagnoses made at or near the time of

observation by a person with personal knowledge or from information supplied

by such person, "if the writing . . . was made in the regular course of business

and it was the regular practice of that business to make it" unless the source or

circumstances of preparation indicate it is not "trustworthy."

      The AHCH report was obtained by the Division in the ordinary course of

business. Its author is a "professional consultant" engaged by the Division. The

circumstances under which the report was made and the manner in which it was

prepared provided sufficient indication of its trustworthiness and "supply a

reasonably high degree of reliability as to the accuracy of the facts contained

therein." In re Guardianship of Cope, 106 N.J. Super. 336, 344 (App. Div.

1969).   Thus, the report was admissible under N.J.S.A. 9:6-8.46(a)(3) and

N.J.R.E. 803(c)(6) pursuant to Rule 5:12-4(d).

      Since the report was admissible, the report could be relied upon as proof

of any "condition, act, transaction, occurrence or event" reflected therein.

N.J.S.A. 9:6-8.46(a)(3). Further, the conclusions drawn from the facts set forth

in the report "shall be treated as prima facie evidence, subject to rebuttal." R.


                                                                        A-4216-17T1
                                      14
5:12-4(d). There was no factual "embedded hearsay" contained in the report

that was relied upon by the trial court and not otherwise shown by the testimony.

Accordingly, the judge properly relied upon the report in finding that Natalie

had been abused and neglected.

      D'Urso's Testimony

      We reject the argument that D'Urso's opinion testimony should have been

barred. This argument is unsupported by the factual record, N.J.R.E. 703, and

case law. Admitting D'Urso's testimony was not an abuse of discretion, much

less plain error.

      Contrary to Nick's argument, the Division was not required to present

Byrne's testimony merely because she conducted Natalie's interview.              An

expert's opinion must be based upon "facts or data . . . perceived by or made

known to the expert at or before a hearing." N.J.R.E. 703. "Indeed, an expert's

testimony may be based on the work done or even hearsay evidence of another

expert, particularly when, as here, the latter's work is supervised by the former."

State v. Dishon, 297 N.J. Super. 254, 281 (App. Div. 1997) (citing State v.

Stevens, 136 N.J. Super. 262, 264 (App. Div. 1975)). N.J.R.E. 808 does not

compel a contrary result.

      N.J.R.E. 808 provides:


                                                                          A-4216-17T1
                                       15
                   Expert opinion which is included in an
            admissible hearsay statement shall be excluded if the
            declarant has not been produced as a witness unless the
            trial judge finds that the circumstances involved in
            rendering the opinion, including the motive, duty, and
            interest of the declarant, whether litigation was
            contemplated by the declarant, the complexity of the
            subject matter, and the likelihood of accuracy of the
            opinion, tend to establish its trustworthiness.

      Here, D'urso collaborated on the ACHC report and co-signed it as

supervising psychologist. D'Urso testified during the fact-finding hearing and

was cross-examined at length by defense counsel. Defense counsel did not

object to the admission of the ACHC report or D'Urso's testimony. Moreover,

Nick does not raise or brief any alleged N.J.R.E. 808 violation on appeal.

      We find these facts distinguishable from those in Division of Youth &

Family Servs. v. M.G., 427 N.J. Super. 154 (App. Div. 2012) and Division of

Youth & Family Servs. v. N.T., 445 N.J. Super. 478, 501 (App. Div. 2016). In

M.G., the parent objected to "permit[ting] the Division to rely upon the written

reports of the psychologists without requiring the Division to produce the

experts for cross-examination." M.G., 427 N.J. Super. at 172. Similarly, in

N.T., over the stepfather's objection, the trial court admitted the complex

diagnosis and opinion contained in a report without the expert testifying. N.T.,

445 N.J. Super. at 502.


                                                                        A-4216-17T1
                                      16
      Moreover, as noted in N.T, "a party is free to waive objection to the

admission of hearsay." Id. at 503. In cases where, as here, a party makes "a

strategic decision to try the case based on the documents, instead of possibly

facing a witness's direct testimony, it would be unfair to reverse on this issue."

Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 238, 342 (2010). "Under

those circumstances, we hold that defendant is barred by the doctrine of invited

error from contesting for the first time on appeal the admission of the various

documents." Ibid. That is what occurred in this case. We are convinced that

"no fundamental injustice [resulted] that would warrant relaxing the invited

error doctrine." Ibid.

      Here, the parties stipulated that D'Urso is an expert in psychology,

specializing in the sexual abuse and maltreatment of children. The facts relayed

by D'Urso were derived from his active participation in the clinical process.

Natalie's interview and evaluation were conducted under his supervision, which

encompassed the content and scope of the questions utilized in the interviews as

well as the information obtained therefrom.        As the judge noted, D'Urso

"described in detail the process of rounding cases and discussing them and

reviewing reports, [making him] fully familiar with the investigation evaluation

and report writing."


                                                                         A-4216-17T1
                                       17
      Further, the information relied upon by D'Urso in formulating his opinion

was that ordinarily relied upon by experts in his profession. If the facts or data

are "of a type reasonably relied upon by experts in the particular field in forming

opinions or inferences upon the subject, the facts or data need not be admissible

in evidence." Ibid. See also State v. Torres, 183 N.J. 554, 576 (2005); Dishon,

297 N.J. Super. at 280-81.

      For the first time on appeal, Nick argues that his right to due process was

violated because he could not confront Byrne and cross-examine her. We

disagree.

      We recognize that "[a]lthough the Sixth Amendment right to

confrontation is not applicable in civil proceedings, due process guarantees civil

litigants a measure of confrontation." A.B. v. Y.Z., 184 N.J. 599, 604 (2005)

(citing In re Wolf, 231 N.J. Super. 365, 376-77 (App. Div. 1989)). We apply

recent Confrontation Clause case law by analogy without holding that the Due

Process Clause for civil proceedings is equally stringent.

      The right to confrontation may be waived by failure to object to the

offending evidence. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 313 n.3

(2009); accord State v. Williams, 219 N.J. 89, 98 (2014). The defendant must

raise his Confrontation Clause objections. Melendez-Diaz, 557 U.S. at 327;


                                                                          A-4216-17T1
                                       18
accord Williams, 219 N.J. at 99, 101. Here, despite being put on notice that the

Division would be calling D'Urso to testify, Nick did not notify the Division that

he intended to object to D'Urso's testimony. See Williams, 219 N.J. at 102

(explaining that after such notice, the defense should be required to notify the

State of its objection to the expected expert testimony on Confrontation Clause

grounds).    Likewise, Nick did not object to D'Urso's testimony during the

hearing. In short, Nick failed to raise or preserve his due process claim. That

claim is waived.

      Moreover, Nick was afforded "a measure of confrontation" through

extensive cross-examination of D'Urso. We thus conclude that the failure to

object was not "clearly capable of producing an unjust result." Id. at 99 (quoting

R. 1:7-5).

      Additionally, not "every analyst involved in a testing process must testify

in order to satisfy confrontation rights." State v. Roach, 219 N.J. 58, 77 (2014)

(citing State v. Michaels, 219 N.J. 1, 33 (2014)). Nor is the primary analyst

involved in the testing always required to testify to avoid a Confrontation Clause

violation. Ibid. Instead, a supervisor may supervise the testing and serve as the

assigned independent reviewer of a lab analyst's work, and then testify about the

test results in a report that he authored, signed, and certified. Michaels, 219 N.J.


                                                                           A-4216-17T1
                                        19
at 6-7. The supervisor is not required to personally observe the testing. Roach,

219 N.J. at 78 (citing Michaels, 219 N.J. at 45-46).

      Finally, we conclude that Nick's claim that D'Urso should not have been

permitted to testify is barred by the invited-error doctrine. "The invited-error

doctrine is intended to 'prevent defendants from manipulating the system' and

will apply 'when a defendant in some way has led the court into error' while

pursuing a tactical advantage that does not work as planned." Williams, 219

N.J. at 100 (citing State v. A.R., 213 N.J. 542, 561-62 (2013)). Nick did not

object at trial to D'Urso's testimony or the admission of the AHCH report.

Instead, he strategically used the fact that D'Urso's did not perform Natalie's

interview and the perceived limitations of the ACHC report to his advantage in

attempting to show the relative weakness of the Division's case. " The doctrine

of invited error does not permit a defendant to pursue a strategy of allowing a

substitute witness to testify—hopefully to his advantage—and then when the

strategy does not work out as planned, cry foul and win a new trial." Id. at 101.

      Proof of Sexual Abuse by a Preponderance of the Evidence

      We next address Nick's argument that the Division did not prove he

sexually abused Natalie by a preponderance of the credible evidence. Title 9

defines an "abused or neglected child" as "a child less than [eighteen] years of


                                                                        A-4216-17T1
                                      20
age 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). The Division bears the

burden to prove abuse or neglect by a preponderance of the "competent, material

and relevant evidence." N.J.S.A. 9:6-8.46(b).

      The Legislature has defined "sexual abuse" to mean "contacts or actions

between a child and a parent or caretaker for the purpose of sexual stimulation

of either that person or another person." N.J.S.A. 9:6-8.84. Sexual abuse

includes engaging a child in "any sexually explicit conduct or simulation of such

conduct," molestation, incest, "sexual contact as defined in N.J.S.A. 2C:14-1,"

or "a prohibited sexual act as defined in N.J.S.A. 2C:24-4." Ibid.

      The Legislature has addressed the sufficiency of evidence in Title Nine

proceedings. Under N.J.S.A. 9:6-8.46(a)(4), an uncorroborated statement of

sexual abuse by a child is admissible in an abuse or neglect proceeding, but an

uncorroborated statement standing alone is not "sufficient to make a fact finding

of abuse or neglect." N.J. Div. of Child Prot. & Permanency v. J.A., 436 N.J.

Super. 61, 66-67 (App. Div. 2014) (quoting N.J.S.A. 9:6-8.46(a)(4)). Therefore,

"a child's hearsay statement may be admitted into evidence, but may not be the

sole basis for a finding of abuse or neglect." Ibid. (quoting N.J. Div. of Youth

& Family Servs. v. P.W.R., 205 N.J. 17, 33 (2011)).              However, "the


                                                                        A-4216-17T1
                                      21
corroboration requirement of the statute does not apply where the child victim

testifies to the abuse at a fact-finding hearing." N.J. Div. of Child Prot. &

Permanency v. Y.A., 437 N.J. Super. 541, 542 (App. Div. 2014). Here, Natalie

testified in camera during the fact-finding hearing, described the sexual abuse,

and answered all the questions asked by defense counsel. "Her testimony was

subjected to the rigors of cross-examination and her presence at the fact-finding

hearing permitted the judge to assess her demeanor and credibility." Id. at 547-

48. "Under these circumstances . . . N.J.S.A. 9:6-8.46(a)(4) is inapplicable" and

corroboration was not required. Id. at 548.

      The trial court appropriately evaluated the evidence presented, made

findings of fact that are supported by credible evidence in the record, and

correctly applied controlling law. Given our own review of the record and the

deferential standard with which we undertake that review, we discern no basis

to overturn the finding of abuse and neglect.

      Affirmed.




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