                                      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                                NOT FOR PUBLICATION WITHOUT THE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-3196-17T4

DEPARTMENT OF CHILDREN
AND FAMILIES,

          Petitioner-Respondent,

v.

T.G.,

     Respondent-Appellant.
_____________________________

                    Argued May 30, 2019 – Decided June 20, 2019

                    Judges Accurso, Vernoia and Moynihan.

                    On appeal from the New Jersey Department of Children
                    and Families, Division of Child Protection and
                    Permanency, Docket No. 14-0941.

                    Victoria Danielle Miranda argued the cause for
                    appellant (Williams Law Group, LLC, attorneys;
                    Allison C. Williams, of counsel and on the briefs;
                    Victoria Danielle Miranda, on the briefs).

                    Alicia Y. Bergman, Deputy Attorney General, argued
                    the cause for respondent (Gurbir S. Grewal, Attorney
                    General, attorney; Melissa H. Raksa, Assistant
            Attorney General, of counsel; Christina Anne Duclos,
            on the brief).

PER CURIAM

      In this appeal, appellant T.G.1 challenges a Department of Children and

Families, Division of Child Protection and Permanency (Division), final agency

decision affirming a substantiated finding that he sexually abused his daughter's

twelve-year-old friend, Olive, during a sleepover at his home. Because the

Division's findings are based on expert testimony that constitutes an

inadmissible net opinion, we reverse and remand for further proceeding s.

                                       I.

      Following a July 2014 referral and subsequent investigation, the Division

notified T.G. he was substantiated for sexual abuse and molestation of Olive.

He appealed the determination and the matter was referred to the Office of

Administrative Law for a hearing before an Administrative Law Judge (ALJ).

The evidence showed that immediately following the referral, Division

caseworker Tracey Lawrence spoke to Olive, who reported that she slept at




1
   We use initials and pseudonyms to identify the parties, children and their
families and others to protect the confidentiality of the matters related to the
alleged child abuse. See N.J.S.A. 9:6-8.10a.
                                                                         A-3196-17T4
                                       2
T.G.'s home in or around March 2014 with her close friend, T.G.'s daughter

Josephine, and that T.G. touched her vaginal area during the evening.

      Lawrence later spoke to Olive and her mother, Alice. Olive further

explained that during the sleepover, T.G. came into the room where Olive and

Josephine laid on separate couches. During his first two visits, T.G. put his

hands under Olive's pants and touched her vaginal area until she shifted on the

couch. On the last occasion, Olive shifted before T.G. touched her and he said

"good night girls" and left the room. Olive reported that she recalled a camera

flash while T.G. was present, and believed he may have taken a picture of her.

According to Olive, Josephine was asleep during the times T.G. was in the room.

Olive said she was scared to report what occurred because she feared for what

would happen to Josephine.

      Alice told Lawrence that Olive disclosed T.G.'s actions to her and Olive's

father, Matt, during a June 2014 vacation. Olive insisted on wearing shorts

under a dress that Alice requested Olive wear to a restaurant, and during the

discussion concerning Olive's demand, she told her parents what T.G. did during

the sleepover.   After Olive's disclosure, Alice recalled changes in Olive's

behavior that she believed were now explained, including Olive putting on

shorts under dresses, hiding, locking the bathroom door, refusing to go to


                                                                        A-3196-17T4
                                       3
Josephine's home and making excuses for her decision not to go, and asking

Josephine to stay over at their house instead of going to Josephine's home as she

had often done in the past.

      Lawrence also interviewed Olive's older sibling, Carl, who was in the

process of transitioning from female to male. The evidence showed Olive was

supportive of Carl's transition, which had been ongoing for more than two years

prior to Olive's disclosure. Carl, who is many years older than Olive, was not

on the June 2014 vacation during which Olive made the disclosure.

      Lawrence also interviewed Matt, who explained that during the months

prior to Olive's disclosure she mentioned on several occasions that she had

something to tell her parents, but would then "brush it off" and not say anything.

He also stated that Olive made the disclosure during the vacation, and that he

was in disbelief because his and T.G.'s families had grown close over the years.

      Olive participated in a recorded forensic video interview on July 23, 2014.

She again reported what she alleged occurred during the sleepover, adding that

T.G. also touched her breasts under her shirt and that she remembered hearing

the click of a camera. Olive reported that following the incident, she avoided

T.G.'s house, and went over only once for Josephine's birthday sleepover but

wore both shorts and sweatpants on that occasion "so nothing could happen."


                                                                          A-3196-17T4
                                        4
The video recording of the forensic interview was admitted in evidence and

played during the hearing.

      Karena Ferrer, M.A., is employed by the Regional Diagnostic and

Treatment Center, and was qualified as an expert in mental health with a

subspecialty in child abuse and neglect.       She performed a psychosocial

evaluation of Olive on August 11, 2014, "to assess for sexual abuse and related

symptomatology."

      Ferrer testified that Olive reported T.G.'s actions to her, and that Olive

was initially scared to disclose what occurred because she did not think anyone

would believe her. Ferrer considered the results of a child behavioral checklist

that Alice completed, the Youth Self Report, Trauma Symptom Checklist for

Children and Beck Youth Inventory that Olive completed, a transcript of Olive's

forensic interview, Division records and Alice's reports concerning Olive's

behavior in formulating her diagnostic impression that Olive experienced sexual

abuse. Ferrer acknowledged the checklists and inventory did not reveal any

symptomatology, but explained that not every child who is a victim of sexual

abuse is "highly symptomatic." Her opinion that Olive experienced sexual

abuse, which she offered to a "professional degree of certainty," was based on




                                                                        A-3196-17T4
                                       5
the consistency of Olive's reporting, Olive's lack of a motive to lie, Alice's

account of Olive's behavior and Division records.

      Division caseworker Natalie Cabrera testified that the Division opened a

second investigation on September 17, 2014, to determine whether Josephine,

who was Olive's age, had been the victim of any sexual abuse.            Cabrera

interviewed Josephine twice, and Josephine denied any abuse. The Division

rendered a determination that its investigation of abuse against Josephine was

"unfounded."

      Cabrera also interviewed T.G. and his wife, Diane, and explained the

nature of the allegations against T.G. but initially did not disclose that Olive

made the allegations. T.G. denied ever touching any child during Josephine's

sleepovers with her friends. Diane similarly denied that T.G. engaged in such

conduct and that he ever had an opportunity to do so. Cabrera described T.G.

as shocked when he was informed that Olive made the allegation he sexually

abused her.

      Matt testified regarding his family's close relationship with T.G.'s family

and Olive's disclosure of the sexual abuse. Matt explained that Olive was

concerned the disclosure would affect her friendship with T.G.'s daughter. He

further noted changes in Olive's behavior including her refusal to go to T.G.'s


                                                                         A-3196-17T4
                                       6
home to see Josephine, and her refusal to go to T.G.'s vacation home when T.G.

came to pick her up with Josephine. He testified Olive did not want to attend a

birthday sleepover at T.G.'s house and agreed to go only after some prodding,

but called early the next morning for Matt to come get her. Matt also explained

that when Olive was asked why she no longer wanted to go to T.G.'s house as

she had routinely done in the past, she said T.G. and his wife argue a lot and she

did not like being there. Matt testified he had never known T.G. and his wife to

argue. Matt also explained that Olive was distressed about seeing T.G. at a

summer camp that Josephine was also attending. Matt testified Olive "was

unable to sleep, crying, [and] very upset" the night before she was scheduled to

arrive at the camp and said she was afraid she would see T.G.

      T.G. testified, described his family's relationship with Olive's family, the

girls' sleepover routines, and denied the allegations.

      Dr. Mark Singer, Ph.D., testified on T.G.'s behalf and was accepted as an

expert in sexual abuse and child abuse cases. He reviewed the Division's reports,

Olive's psychosocial evaluations and forensic interview, and interviewed T.G.,

Diane and Josephine.      Dr. Singer utilized the Adult Adolescent Parenting

Inventory, Second Edition, and the Melan Clinical Multi-Auxiliary Inventory,

Third Edition, and concluded T.G. understands and values children's needs, is a


                                                                          A-3196-17T4
                                        7
somewhat secretive individual reluctant to disclose personal information and

likely to engage in moralistic, perfectionistic thinking, and that nothing in the

psychological testing "correlated significantly with what we know about . . .

child sex offenders." T.G. also completed a Sexual Violence Risk Assessment,

and Dr. Singer concluded T.G. did not have characteristics associated with

known violent sex offenders. He concluded, within a reasonable degree of

psychological certainty, that T.G. did not have the characteristics found in

sexual offenders and was a "low risk" for such behavior.

      Dr. Singer did not interview or meet with Olive.         He admitted her

behaviors could "be seen in children who have been exposed to inappropriate

sexual behavior," but noted alternative explanations for her conduct could exist.

      In the ALJ's written decision, she found that Alice, Diane, Josephine and

Carl lacked knowledge concerning T.G.'s alleged sexual abuse of Olive. The

ALJ found Matt credible and that his testimony was "believable." The ALJ

found "no credible evidence" supporting T.G.'s assertion that Carl's transition

was a "factor" in Olive's assertions against T.G. The ALJ further found T.G.

was "highly motivated to deny the charges against him," and that Olive was

credible because she "had more to lose than gain in stating that . . . her best

friend's father had inappropriately touched her."


                                                                         A-3196-17T4
                                       8
      The ALJ also found Ferrer's testimony credible and persuasive. He found

Ferrer "was accepted without objection as an expert in mental health with a sub-

specialty in child abuse and neglect, credibly testified that [Olive's] delay in

disclosing did not indicate that her allegations were less than truthful" and

Olive's father and mother both indicated she had "hesitat[ed] to disclose

something" for some time.       The ALJ further determined that Dr. Singer

"acknowledged that trauma can influence behavior and that a child might not

want to remember an event." The judge found both experts noted "children can

often not accurately state when a past event occurred."

      The ALJ found Ferrer's opinion "that [Olive] experienced sexual abuse

based upon the consistency of [Olive's] statements corroborated by her parent's

statements as to [Olive's] behavior, information in the [Division] records and

information obtained during the [Division] investigation, to be persuasive."

Conversely, the judge found "Dr. Singer's criticism of Ferrer for relying upon

the information provided by [Olive] and her mother and the tests she

administered . . . as disingenuous" because Dr. Singer used similar tests and also

relied on self-reporting by T.G., Diane and Josephine.

      The ALJ found Olive's statements were materially consistent, her

credibility was enhanced by her failure to recant, and her statements that T.G.


                                                                          A-3196-17T4
                                        9
inappropriately touched her were credible and corroborated by evidence

including Olive's behavior. The ALJ found Dr. Singer's opinion that T.G. was

likely not a sexual offender was unpersuasive. The judge concluded the Division

proved by a preponderance of the credible evidence that T.G. sexually abused

Olive by touching her under her clothes, including her vaginal area, while Olive

was sleeping overnight at T.G.'s home.

      The Division issued a final agency decision adopting the ALJ's findings

and decision and affirming the substantiated finding of sexual abuse. This

appeal followed.

                                       II.

      "Our review of administrative agency action is limited." Russo v. Bd. of

Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011). A reviewing court

will presume the validity of the "administrative agency's exercise of its

statutorily delegated responsibilities." Lavezzi v. State, 219 N.J. 163, 171

(2014). Thus, "an appellate court ordinarily should not disturb an administrative

agency's determinations or findings unless there is a clear showing that (1) the

agency did not follow the law; (2) the decision was arbitrary, capricious, or

unreasonable; or (3) the decision was not supported by substantial evidence." In




                                                                         A-3196-17T4
                                      10
re Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413,

422 (2008).

      "The burden of demonstrating that the agency's action was arbitrary,

capricious or unreasonable rests upon the [party] challenging the administrative

action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div. 2006). "[T]he

test is not whether an appellate court would come to the same conclusion . . .

but rather whether the factfinder could reasonably so conclude upon the proofs."

Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (quoting Charatan v. Bd. of

Review, 200 N.J. Super. 74, 79 (App. Div. 1985)). The court "may not vacate

an agency determination because of doubts as to its wisdom or because the

record may support more than one result."        In re N.J. Pinelands Comm'n

Resolution PC4-00-89, 356 N.J. Super. 363, 372 (App. Div. 2003). "Where . . .

the determination is founded upon sufficient credible evidence seen from the

totality of the record and on that record findings have been made and conclusions

reached involving agency expertise, the agency decision should be sustained."

Gerba v. Bd. of Trs., Pub. Emps.' Ret. Sys., 83 N.J. 174, 189 (1980).

      T.G. argues the Division's substantiation of Olive's sexual abuse

allegations is not supported by substantial credible evidence and that the

Division erred by relying on Olive's statements to the Division, to her parents


                                                                         A-3196-17T4
                                      11
and during the forensic interview because they are not corroborated by

competent material evidence. He further argues the Division erred by rejecting

his testimony denying the allegations as not credible, and accepting Ferrer's

opinions and rejecting those offered by Dr. Singer.

      A substantiated finding of sexual abuse is required where a preponderance

of the evidence establishes that an individual who qualifies as a "[p]arent or

guardian" within the meaning of N.J.S.A. 9:6-8.21(a) "commits or allows to be

committed an act of sexual abuse against [a] child" under the age of eighteen.

N.J.S.A. 9:6-8.21(c)(3).   A substantiated finding of sexual abuse must be

founded on "competent, material and relevant evidence." N.J.S.A. 9:6-8.46(b).

      Here, the ALJ found Olive's statements to her parents, the Division and

during her forensic interview were credible and, in part, relied on those

statements to support the determination that the Division established by a

preponderance of the evidence that T.G. committed sexual abuse against Olive.

The ALJ further found T.G.'s testimony denying the allegations to be not

credible. The ALJ credited Olive's consistent repetition of the essential details

of the sexual abuse, the absence of any motive for her reporting the abuse and

the fact that she had too much to lose—her friendship with Josephine—and

nothing to gain by making the report, in her reasoned assessment of Olive's


                                                                         A-3196-17T4
                                      12
credibility.   The ALJ, who observed T.G. testify, found he was "highly

motivated to deny the charges against him" and that his denials were not credible

based on his "testimony and demeanor." We accord substantial deference to the

credibility determinations of the trial judge, N.J. Div. of Child Prot. and Perm.

v. N.B., 452 N.J. Super. 513, 521 (App. Div. 2017), and T.G. offers no basis to

depart from that deference here.

      We reject T.G.'s claim the ALJ and Division could not properly rely on

Olive's statements because she did not testify at the hearing and her out-of-court

statements were not corroborated as required under N.J.S.A. 9:6-8.46(a)(4). 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).   The statute

"constitutes a statutorily created exception to the hearsay rule but independent

evidence of corroboration is required in order to find abuse or neglect." N.B.,

452 N.J. Super. at 522.

      "The most effective types of corroborative evidence may be eyewitness

testimony, a confession, an admission or medical or scientific evidence." N.J.

Div. of Child Prot. & Permanency v. A.D., 455 N.J. Super. 144, 157 (App. Div.


                                                                           A-3196-17T4
                                       13
2018) (quoting N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155,

166 (App. Div. 2003)). But that list is not exhaustive. "A child's statement need

only be corroborated by '[s]ome direct or circumstantial evidence beyond the

child's statement itself.'" Ibid. (alteration in original) (quoting N.B., 452 N.J.

Super. at 522). Corroborative evidence must "'only provide support' for the

child's statements," ibid. (quoting N.B., 452 N.J. Super. at 521), and need not be

"'offender-specific,' because ' [i]t 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," ibid. (alteration in original) (quoting N.J.

Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 435 (App. Div.

2002)).

        Corroborative evidence may be circumstantial, but it "must be

independently admissible for a court to deem it corroborative of a child's

statement." Ibid. The consistency of the child's statements is distinct from and

will not on its own constitute corroboration, but consistency may be considered.

Ibid.

        We conclude the Division satisfied its burden of presenting some evidence

corroborating Olive's statements concerning T.G.'s sexual abuse and, as a result,

the ALJ and Division could properly rely on Olive's out of court statements to


                                                                            A-3196-17T4
                                        14
support their fact findings. See N.J.S.A. 9:6-8.46(a)(4). As the ALJ found,

Olive's statements were corroborated by her father's testimony concerning the

changes in her behavior, including her unwillingness to go to T.G.'s home "as

she had previously done, to be with and sleep overnight with her best friend ,"

Josephine; her proffer of false excuses for her refusal to go to T.G.'s home2; the

changes in the way she dressed—wearing shorts under dresses—; and her crying

at the possibility of seeing T.G. during her arrival at a summer camp. Moreover,

T.G.'s expert, Dr. Singer, testified Olive's behavior was consistent with a child

who has been the victim of sexual abuse. See Z.P.R., 351 N.J. Super. at 436

(noting that "age-inappropriate behavior is one of the behavioral signs

associated with child sexual abuse"); cf. N.B., 452 N.J. Super. at 522 (finding

in part that a child's prior statements were not corroborated because "the child's

behavior did not sufficiently corroborate emotional harm").

      T.G. contends Olive's behavior does not corroborate her out-of-court

statements as required under N.J.S.A. 9:6-8.46(a)(4) because there are

alternative explanations for the behavior. For example, he claims her behavior


2
  As explained by Matt during his testimony, Olive said she did not want to go
to T.G.'s home as she had frequently and routinely done in the past because T.G.
and his wife argued a lot, but T.G. testified that he and his wife did not argue a
lot and they never argued while Olive or any of Josephine's other friends were
present.
                                                                          A-3196-17T4
                                       15
may have been the product of Carl's transition from female to male, and because

Olive was a preteen or suffered from social issues. The record, however, is

devoid of any evidence that Carl's transition caused Olive to make a report

against T.G., and the evidence shows she was supportive of the transition and

that Carl was not present during the vacation when Olive reported T.G.'s action.

Similarly, there is no evidence Olive's status as a preteen or any putative but

unidentified social issues caused her to assert that T.G. sexually abused her. In

any event, the theoretical possibility that Olive's behavior may be an indicia of

something other than sexual abuse does not require rejection of the ALJ's

reliance on Olive's out-of-court statements. It is enough that her behavior, as

detailed in her father's admissible testimony, "provide[s] support for the out-of-

court statements." L.A., 357 N.J. Super. at 166 (quoting Z.P.R., 351 N.J. Super.

at 436).

      Our conclusion the court properly considered Olive's out-of-court

statements does not, however, alone permit the affirmance of the Division's

order. The ALJ might have, but did not, base her finding that T.G. sexually

abused Olive exclusively on Olive's out-of-court statements.            The ALJ

considered other evidence she found credible in determining that T.G. engaged

in the sexually abusive actions that supported the substantiated finding T.G.


                                                                          A-3196-17T4
                                       16
sexually abused Olive. Most importantly, the ALJ found Ferrer's testimony that

Olive "experienced sexual abuse . . . to be persuasive" in determining the sexual

abuse occurred.

      T.G. asserts the ALJ should not have relied on Ferrer's testimony because

it constituted an inadmissible net opinion. 3 The net opinion rule is a "corollary

of [Rule 703] . . . which forbids the admission into evidence of an expert's

conclusions that are not supported by factual evidence or other data." Polzo v.

Cty. of Essex, 196 N.J. 569, 583 (2008) (first alteration in original) (citation

omitted).   Experts must "be able to identify the factual bases for their

conclusions, explain their methodology, and demonstrate that both the factual

bases and the methodology are reliable." Townsend v. Pierre, 221 N.J. 36, 55

(2015) (citation omitted).

      "[A] trial court may not rely on expert testimony that lacks an appropriate

factual foundation and fails to establish the existence of any standard about

which the expert testified." Pomerantz Paper Corp. v. New Cmty. Corp., 207

N.J. 344, 373 (2011). "A standard which is personal to the expert is equivalent




3
   T.G. moved to bar Ferrer's testimony before she testified. Following her
testimony, T.G. moved for her testimony to be stricken, in part because it
constituted a net opinion. The ALJ denied both requests.
                                                                          A-3196-17T4
                                       17
to a net opinion." Ibid. (quoting Taylor v. DeLosso, 319 N.J. Super. 174, 180

(App. Div. 1999)).

      Ferrer's opinion that Olive was the victim of sexual abuse constituted an

inadmissible net opinion. Ferrer testified that the self-report checklists and tests

she administered to Olive and her mother did not yield any symptomatology of

sexual abuse. When asked for the basis for her "diagnostic impression" that

Olive was sexually abused, Ferrer stated her opinion was "[b]ased on the

consistency of [Olive's] report throughout the investigation, as well as [Olive's]

mom's account, and as well as the information that was provided by the Division

investigator and the Division's records." She also testified her opinion was

based on "conversation," "consistency" and "lack of motive."

      Ferrer's opinion is otherwise unsupported by reference to any standard

establishing the reliability of her methodology, if any, for arriving at her

opinion. See Townsend, 221 N.J. at 54 (citation omitted). Ferrer was neither

asked for nor identified any standard upon which her opinion was based. An

expert's conclusion should be "excluded if it is based merely on unfounded

speculation and unquantified possibilities," Vuocolo v. Diamond Shamrock

Chems. Co., 240 N.J. Super. 289, 300 (App. Div. 1990), but that is what Ferrer

offered here. Lacking any reference to a standard for her conclusions, Ferrer


                                                                            A-3196-17T4
                                        18
offered nothing more than a statement of personal opinion; in other words, an

inadmissible net opinion.

      The administrative rules provide an ALJ with latitude in admitting

evidence, but an expert's opinion must be "[w]ithin the scope of the special

knowledge, skill, experience or training possessed by the witness." N.J.A.C.

1:1-15.9(b)(2). Ferrer did not point to any special knowledge, skill, experience

or training providing the standard upon which her conclusory net opinion was

based. The ALJ erred by admitting Ferrer's opinion testimony and by relying

upon it to support her conclusion T.G. committed sexual abuse on Olive. See,

e.g., Riley v. Keenan, 406 N.J. Super. 281, 295-96 (App. Div. 2009) (finding an

inadmissible net opinion where an expert did not reference any objective or

toxicological studies or publications supporting the expert's opinion).

      We are constrained to reverse and remand for a new trial because it is clear

the ALJ and Division relied on Ferrer's opinion, which the ALJ found

persuasive, in weighing the evidence and assessing the credibility of the

witnesses, including Olive. It was error for the ALJ and the Division to do so

because Ferrer's net opinion did not constitute competent evidence that Olive

was subject to sexual abuse. We do not offer an opinion on the adequacy of the




                                                                          A-3196-17T4
                                      19
competent evidence otherwise presented, 4 including Olive's out-of-court

statements, because "[t]o do so would arrogate to us the role of the [ALJ] as

fact-finder." Z.P.R., 351 N.J. Super. at 436-37. On remand, it will "be up to the

[ALJ and Division] to weigh all of the evidence, make determinations as to

credibility and weight of that evidence, and come to a final determination as to

whether the allegation of [sexual] abuse has been proven by a preponderance of

the evidence." Id. at 437. The matter shall be assigned to a different ALJ on

remand because the ALJ who conducted the hearing has already made credibility

determinations.

      Because we conclude that a remand is required due to the court's reliance

on Ferrer's net opinion, it is unnecessary to address T.G.'s remaining arguments

that the ALJ and Division erred in their assessment of the credibility of the

witnesses, including Ferrer and Dr. Singer.

      Reversed and remanded for further proceedings consistent with this

opinion. We do not retain jurisdiction.




4
  We also do not offer an opinion concerning the admissibility of any of the
other testimony or evidence presented because there is no challenge to the
admissibility of other testimony or evidence on appeal. Nothing in this opinion
bars the parties from objecting to testimony or evidence on remand, and the ALJ
shall address such objections based on the record before it.
                                                                         A-3196-17T4
                                      20
