                                      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                                 NOT FOR PUBLICATION WITHOUT THE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-2696-17T4

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

C.C.,

          Defendant-Appellant,

and

L.C.,

          Defendant.


IN THE MATTER OF K.C.,
C.C., JR., and S.C.,

          Minors.


                   Submitted December 5, 2018 - Decided May 14, 2019

                   Before Judges Fuentes and Accurso.
              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Essex County, Docket
              No. FN-07-0473-16.

              Joseph E. Krakora, Public Defender, attorney for
              appellant (David A. Gies, Designated Counsel, on the
              briefs).

              Gurbir S. Grewal, Attorney General, attorney for
              respondent (Jason W. Rockwell, Assistant Attorney
              General, of counsel; Mary L. Harpster, Deputy
              Attorney General, on the brief).

              Joseph E. Krakora, Public Defender, Law Guardian,
              attorney for minors (David B. Valentin, Assistant
              Deputy Public Defender, on the brief).

PER CURIAM

        Defendant C.C. appeals from a January 19, 2017 fact-finding order, made

appealable by a subsequent order terminating the Title Nine proceeding, that he

sexually abused his daughter Nicole and inflicted excessive corporal punishment

on her twin brother Tom,1 arguing the Division failed to corroborate their

allegations as required by N.J.S.A. 9:6-8.46(a)(4). Because we agree with the

Division of Child Protection and Permanency, as well as the Law Guardian, that

there is substantial credible evidence in the record to support Judge Forrest's




1
    These are fictitious names we use to guard the children's privacy.
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                                         2
finding that the Division carried its burden under both N.J.S.A. 9:6-8.21(c)(3)

and -8.21(c)(4)(b), we affirm.

      The Division brought this action after fourteen-year-old Nicole told her

mother, L.C., that her father had started touching her sexually when she was

nine,2 and had been engaging in vaginal intercourse with her since she was about

twelve. L.C. testified through an interpreter at the fact-finding hearing that

Nicole was sitting right next to her shivering and shaking when she made these

revelations. L.C. was shocked and asked Nicole if she were sure about what she

was saying. L.C. testified she believed Nicole was telling the truth based on

how she looked when she confided in her, and, as she later learned, that Nicole

had been cutting herself.

      L.C. confronted her husband the same day Nicole spoke to her. She

testified she was not "feeling so well" at the time and could not remember

everything she said to him, but acknowledged the conversation got loud. She

claimed she was asking him if it was true and he was crying and "denying

everything," but that she kept on asking. The court sustained defense counsel's



2
  The family was from the Dominican Republic. The children lived with their
mother there for several years after their father emigrated to the United States.
They joined him here when the twins were nine.


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                                       3
objection to L.C. testifying further about what defendant said based on the

marital privilege.3

      L.C. took Nicole to the hospital the next morning and reported her

allegations to the Division and the police. Both the case worker for the Division

and a police officer who interpreted for L.C. in her dealings with the police

testified she told them that when she confronted her husband, he went to his

knees and apologized, promising to be a better person and asking for another

chance. The case worker further noted that Tom told him he overheard parts of

the conversation between his parents. He heard his mother confronting his

father, and his father saying, "Sorry, give me another chance.         I will do

anything." He also heard his mother say, "This was your child. How could

you?" and his father reply, "It was a mistake."


3
   As noted by the trial judge, there are two forms of marital privilege. The
privilege invoked here, N.J.R.E. 509, "protects communications between
spouses unless the communication occurs when they are 'living separate and
apart under a divorce from bed and board.'" State v. Mauti, 416 N.J. Super. 178,
193 (App. Div. 2010), aff'd. 208 N.J. 519 (2012). The testimonial privilege in
N.J.R.E. 501(2) applies only in criminal proceedings and restricts "the State
from compelling the spouse to testify against the accused." Id. at 192. As the
Court noted in State v. Szemple, 135 N.J. 406, 415 (1994), "the privilege does
not protect against the testimony of third persons who have overheard (either
accidentally or by eavesdropping) an oral communication between husband and
wife." (quoting 1 McCormick on Evidence § 82 (Strong ed., 4th ed. 1992)
(footnotes omitted)); see also Biunno, Weissbard & Zegas, Current N.J. Rules
of Evidence, cmt. on N.J.R.E. 509 (2019).
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                                       4
      When the worker asked Tom whether he was aware that his father was

inappropriately touching his twin, Tom said Nicole never told him, but he

suspected. He revealed he saw his sister and their father naked together in his

parents' room a few years before. When he asked what was going on, his sister

grabbed her clothes and left the room without looking at him. Tom said his

father "made like nothing happened." On another occasion the year before

Nicole finally told their mother, he heard his sister scream "Don't touch me"

from their parents' bedroom. He said his mother was at work on both occasions.

      Tom also revealed his father had punched him and whipped him with a

belt, showing the case worker healed welts on his back. The medical report

admitted in evidence described twelve or thirteen well-healed scars on his back,

measuring seven to eight inches each. Both children claimed their father had

threatened them, with Nicole reporting he told her he would kill her and her

mother if she ever told. Both children told authorities they were afraid of him.

      Although Nicole provided the case worker, the emergency room personnel

and the police officers who interviewed her the same detailed account she had

provided her mother the day before, she recanted those allegations ten days later.

When Nicole was interviewed as part of her psychosocial evaluation after her

father had been barred from the family home, Nicole told the psychologist her


                                                                           A-2696-174
                                        5
statements to her mother were "not the truth" and that "it didn't really happen."

In his own evaluation, Tom reported feeling sad and angry at his father. He

denied fearing his father. He said he wished his family was back together and

that his father did not do "what he did."

      Because the prosecutor's office directed the case worker not to interview

defendant, the worker did not ask him any questions. Defendant did not testify

at the fact-finding hearing.

      After hearing the testimony, Judge Forrest put his decision on the record.

The judge found all three witnesses credible, finding each answered questions

directly and without evasion on both direct and cross examination. Addressing

Nicole's recantation, the judge found more powerful L.C.'s impression of her

daughter's truthfulness when she first disclosed the abuse. Noting L.C.'s actions

in taking Nicole to the hospital and contacting the police and the child welfare

authorities "speak that she believed her," the judge found L.C. "acted

responsibly in taking appropriate action to care for her children based on her

evaluation of the believability of the allegations."

      Judge Forrest found Tom's statements of being beaten with a belt

corroborated by the linear scars on his back. The judge noted Tom's report of

overhearing his mother confronting his father the night Nicole told her of the


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                                         6
abuse and his father saying he was sorry and it was a mistake. He also noted

Tom's report of walking in on his father and sister naked in bed and another time

hearing Nicole scream at their father not to touch her. The judge found the

children's statements and "the physical evidence as noted by the medical

professionals is all consistent and corroborative." He further found defendant's

"statements scream out of consciousness of guilt, admissions and [are] clearly

corroborative of the children's statements." Based on the credibility of the

witnesses and his analysis of the evidence, the judge found the Division met its

burdens of proving both Nicole and Tom were abused and neglected children as

defined in N.J.S.A. 9:6-8.21(c)(3) and -8.21(c)(4)(b).

      Defendant appeals, arguing the trial court erred in finding defendant

sexually assaulted his daughter because Nicole's allegation was not corroborated

by eyewitness testimony, an admission or medical evidence. Specifically, he

contends Tom's statement about what he overheard his father say was not

consistent with his mother's testimony that defendant had denied everything and

he did not hear his father admit to any sexual act. Defendant also argues L.C.'s

report of confronting defendant "is not enough to corroborate Nicole's allegation

either" as it produced only a denial from defendant. Defendant further contends

"Tom's statements are not consistent with Nicole's allegation of abuse" and not


                                                                          A-2696-174
                                       7
"sufficient to constitute corroboration." Finally, he argues the hospital records

and psychosocial evaluations indicate no physical injury to Nicole, other than

the self-inflicted cuts to her arm.

      As to Tom, defendant argues the judge's conclusion that defendant used

excessive corporal punishment was erroneous because the Division failed to

show Tom suffered actual harm and that the manner in which Tom was

disciplined was improper. Defendant argues Tom's lack of specificity as to

when defendant disciplined him deprived the court of an ability to examine

"when or why he disciplined his children."        Defendant further argues the

Division failed to show actual harm, noting "Tom required no medical treatment

or attention at any time."

      We find those arguments, which are premised entirely on alleged errors in

the judge's fact finding, utterly without merit.       The trial court "has the

opportunity to make first-hand credibility judgments about the witnesses who

appear on the stand; it has a 'feel of the case' that can never be realized by a

review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J.

88, 104 (2008) (citation omitted). We are not free to overturn the factual

findings and legal conclusions of a trial judge "unless we are convinced that they

are so manifestly unsupported by or inconsistent with the competent, relevant


                                                                           A-2696-174
                                        8
and reasonably credible evidence as to offend the interests of justice." Rova

Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citation

omitted).

      Our review of the trial court's factual findings in this abuse and neglect

proceeding is strictly limited to determining whether those findings are

supported by adequate, substantial and credible evidence in the record. N.J. Div.

of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002).

Because the trial judge's findings that defendant sexually abused his daughter

Nicole and inflicted excessive corporal punishment on his son Tom have such

support in this record, we are bound by them in deciding the appeal. See Rova

Farms, 65 N.J. at 484.

      We affirm the abuse and neglect finding in this matter substantially for

the reasons expressed by Judge Forrest in his thorough and thoughtful opinion

of January 19, 2017.

      Affirmed.




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