                                      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                                NOT FOR PUBLICATION WITHOUT THE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 NOS. A-5173-17T1
                                                                    A-5866-17T1

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

T.J. and J.F., Jr.,

          Defendants-Appellants,

and

B.G.,

     Defendant.
____________________________

IN THE MATTER OF JM.F.
and J.G.,

     Minors.
____________________________

                    Submitted November 4, 2019 – Decided July 30, 2020

                    Before Judges Messano and Vernoia.
            On appeal from the Superior Court of New Jersey,
            Chancery Division, Family Part, Hudson County,
            Docket No. FN-09-0331-15.

            Joseph E. Krakora, Public Defender, attorney for
            appellant T.J. (Robyn A. Veasey, Deputy Public
            Defender, of counsel; Thomas Gerard Hand,
            Designated Counsel, on the brief).

            Joseph E. Krakora, Public Defender, attorney for
            appellant J.F., Jr. (Robyn A. Veasey, Deputy Public
            Defender, of counsel; John Andrew Albright,
            Designated Counsel, on the briefs).

            Gurbir S. Grewal, Attorney General, attorney for
            respondent (Jason Wade Rockwell, Assistant Attorney
            General, of counsel; Nedda Alvarez, Deputy Attorney
            General, on the brief).

            Joseph E. Krakora, Public Defender, Law Guardian,
            attorney for minor JM.F. (Olivia Belfatto Crisp,
            Assistant Deputy Public Defender, of counsel and on
            the brief).

PER CURIAM

      In a December 22, 2015 fact-finding order, the Family Part determined

defendants T.J. (Tara) 1 and J.F., Jr. (Joe) (collectively referred to as

"defendants") abused or neglected their seven-year-old daughter Jm.F. (Jane) by

failing to support Jane following her disclosure she was sexually abused by


1
  We employ initials and pseudonyms to protect records and information from
disclosure that are excluded from public access under Rule 1:38-3(d)(12).


                                                                       A-5173-17T1
                                      2
Kevin, the son of Joe's paramour; denying Jane's claims of sexual abuse and

threatening Jane if she continued to disclose the abuse; and depriving Jane of

counseling services required to address her exposure to Kevin's abuse, domestic

violence between Tara and her paramour, B.G. (Ben), and Tara's substance

abuse.2   Tara and Joe separately appealed from the court's order, and we

consolidated the appeals. Having considered the record in light of the applicable

legal principles, we are convinced there is substantial credible evidence

supporting the court's findings and determinations, and we affirm.

                                        I.

      The evidence presented during the fact-finding hearing shows that in

February 2015, seven-year-old Jane lived with Tara and Tara's and Ben's eight-

month-old daughter, J-L.G. (Judy). On weekends, Jane visited Joe at the home

he shared with his paramour and Kevin, who was thirteen.

      Due to Jane's behavioral issues in school, Tara arranged for Jane to have

in-home therapy sessions. During a February 25, 2015 session, Jane disclosed

to licensed therapist Marcella Prosper that she did not like going to Joe 's house

because Kevin touched her, kissed her, and stuck his tongue in her mouth. Jane


2
  The Division's complaint asserted Ben abused or neglected Jane, but the court
dismissed the claim against Ben at the conclusion of the Division's case at the
fact-finding hearing.
                                                                          A-5173-17T1
                                        3
also reported Kevin touched her "down there," "put his hand in [her] panties,"

and laid on top of her. Jane described her apprehension about reporting Kevin,

explaining she believed she would get in trouble.

       At Prosper's request, Jane repeated the accusations to Tara. According to

Prosper, Tara "seemed to get angry and she started yelling at [Jane]," said she

did not believe Jane and accused Jane of "lying," and said Jane "always [told]

stories." Prosper informed Tara that she had an obligation to report the alleged

sexual abuse to the New Jersey Division of Child Protection and Permanency

(Division). Tara did not report the alleged abuse to the Division, but Prosper

did.

       The following day, Division caseworker Hikeema Raeford spoke with Joe

about Jane's allegations concerning Kevin. Joe said that although "he would not

say his daughter is a liar, . . . she does lie about a lot of different things." Joe

expressed "doubts" about the allegations; said he "believe[d] that something may

have happened" but that Jane was "exaggerating"; and informed Raeford he was

"almost 100% sure the allegations are false." Joe further explained he told Jane

"it is okay to tell the truth," and informed her about the "consequences of lying."

Joe told Raeford he spoke to Jane about the allegations; she said she did not

want to tell him what happened because she thought she "was going to get beat";


                                                                            A-5173-17T1
                                         4
and he did not understand Jane's concern because he had never beaten her and

had, instead, only spanked her two or three times in her life.

      Joe also said he did not want the Division involved; he was not interested

in cooperating with the Division; he was conducting his own investigation into

Jane's allegations; and he was declining any services from the Division for him

and Jane. He reported to Raeford that Kevin denied the allegations, and Kevin

and Jane were never alone, and did not sleep together, at his home. Joe requested

Raeford keep him informed of each step of the investigation and said he wanted

to be present at any future interviews with Jane.

      Raeford told Tara the Hudson County Prosecutor's Office (HCPO) agreed

to investigate the allegations and wanted to interview Jane. Tara initially said

she would bring Jane to the HCPO after school and later asked Raeford if she

could be in the room with Jane during the interview. When Raeford told Tara

she could not be in the room during the interview, Tara said she would not permit

Jane to be interviewed by the HCPO and would not permit Raeford in her home

to interview Jane. Tara reported that Joe advised her not to allow Raeford into

her home to speak with Jane. The HCPO never interviewed Jane.

      Raeford received a telephone call from Joe, who reminded Raeford that

he told her to keep him informed of each step of the investigation. He told


                                                                         A-5173-17T1
                                        5
Raeford he "shutdown" everything and informed Tara and Kevin's mother not to

cooperate with the Division or the HCPO. Raeford informed Joe the Division

was not investigating an abuse or neglect claim, but instead was interested in

providing services. Joe told Raeford he would conduct the investigation and he

would not allow the Division in Jane's home or to provide Jane any services.

      Raeford and another caseworker went to Tara's home to interview Jane,

but no one answered the door. Raeford called Joe and asked if Jane was with

him. Joe denied Jane was with him and reminded Raeford he previously told

her he did not want her speaking to the child. He told Raeford he instructed

Tara to leave the home and flee with Jane and Judy. Raeford informed Joe she

would contact the police to obtain access to Jane.

      The local police arrived at Tara's home, and, at the same time, Joe

appeared. Joe told the police Tara and Jane were in the home and he would have

Tara open the door. As it turned out, Jane opened the door, and the police

entered the home and spoke with Tara. Joe told the officers he was opposed to

Jane being interviewed by the HCPO without a parent in the room and the

Division was making more out of the allegations than was warranted. The

officers advised Joe that Raeford needed to speak with Jane and that he could

be present, but Joe declined.


                                                                       A-5173-17T1
                                       6
      Raeford interviewed Jane, who reported she was in second grade. Jane

said she wanted to tell Raeford about Kevin, but she would be beaten if she did

so. Jane then disclosed that on two occasions Kevin touched her vaginal area,

which she referred to as her "cooch," on top of and underneath her underwear,

and that he also tried to kiss her. Jane denied that Kevin tried putting his tongue

in her mouth, but said he touched the upper part of her buttocks.

      Jane also revealed that Tara and Ben smoked marijuana. She described

marijuana as "brown," said it "smelled funny," and referred to it as "weed." Jane

also reported that Tara did not smoke weed, and that she knows what "weed" is

because Ben smoked it in the bathroom.

      Jane told Raeford both that Tara does not drink alcohol and that Tara

drinks "one beer a day." According to Raeford, Jane also said Tara "drinks

alcohol" and demonstrated Tara's demeanor "once [while Tara] was drinking

while holding" Judy. Jane demonstrated to Raeford that Tara held Judy in her

arms, with Tara's "legs collapsing and her head falling down as if she was

sleeping." Jane reported she could not wake up Tara, and she took Judy from

Tara's arms and put the infant in bed.

      Jane also reported that Tara and Ben sometimes fought. She said that Ben

choked Tara around the neck, and that she intervened to prevent him from


                                                                           A-5173-17T1
                                         7
harming her mother. Jane also told Raeford Tara and Ben fought "each other

with pots" and Ben once threw bottles at Tara.

      After Raeford's February 26, 2015 interview with Jane, Tara advised

Raeford she would not cooperate with the Division or the HCPO regarding Jane's

allegations concerning Kevin. Raeford advised Joe there were concerns about

domestic violence and substance abuse in Tara's home, and Joe said "whatever

is going on he would take care of the situation." Tara and Joe stated they would

not voluntarily submit for drug or psychological tests unless ordered to do so by

the court, but they each agreed to a safety protection plan prohibiting any contact

between Kevin and Jane.

      Following the therapy session at which Jane made the sexual abuse

disclosures, Prosper observed that it became increasingly difficult to schedule

subsequent in-home therapy sessions with Jane. Prosper had three more therapy

sessions with Jane after the initial disclosures, but, although additional therapy

sessions were approved, they were never conducted because Tara did not

respond to Prosper's efforts to schedule them. Joe informed Raeford that he

instructed Tara not to allow Prosper in Tara's home to provide Jane services to

address her behavioral issues.




                                                                           A-5173-17T1
                                        8
      After the disclosures were first made, Tara was initially receptive to the

Division's involvement and told Raeford she could speak to Jane at Tara's home,

but she then said Joe advised her not to allow Raeford into the home or to speak

with Jane. According to Raeford, after her initial interview with Jane, and until

Jane and Judy were later removed by the Division on April 22, 2015, Tara was

unwilling to do anything the Division requested. Raeford explained that after

the children were removed, Tara "started to comply" with the Division's

requests.

      On March 17, 2015, the Division filed a verified complaint against Tara,

Joe, and Ben for the care and supervision of Jane and eight-month-old Judy.

During a hearing held the same day, the Division relayed to the court Jane's

reports concerning Kevin's sexual abuse and Tara and Ben's fighting and use of

marijuana. The Division also reported Joe's statements that he did not want the

Division to investigate the sexual abuse allegations and Tara's refusal to

participate in a formal interview with the Division. The Division sought care

and supervision of Jane and Judy and an evaluation of Jane at the Audrey

Hepburn Children's House (AHCH), a diagnostic and treatment center for

children. The court ordered the requested relief, granting the Division care and

supervision of the children and directing that Jane be evaluated at AHCH.


                                                                         A-5173-17T1
                                       9
      The Division arranged for an April 21, 2015 psychosexual evaluation of

Jane with Dr. Kirsten Byrnes at AHCH. Immediately following the evaluation,

Dr. Byrnes reported to Raeford that Jane initially denied any sexual contact by

Kevin, but then said he "attempted to touch her butt and kiss her." Jane also told

Dr. Byrnes she did not want to further discuss Kevin's actions because she feared

Tara would find out and she would be "whooped." Dr. Byrnes advised Raeford

that Jane said Tara beat her with a belt and wire and punched her in the stomach,

and that Joe beats her with his hands and a belt. Dr. Byrnes further reported

Jane said Tara told her not to disclose anything regarding sexual abuse or

substance abuse, and Tara and Ben told Jane "the family would not be able to

move to North Carolina 3 and she would be beat" if she made such disclosures.

      After speaking with Dr. Byrnes, Raeford told Tara she needed to speak

further with Jane. Tara refused and said she wanted to speak with Dr. Byrnes.

Tara spoke with Dr. Byrnes and left AHCH with Jane without speaking to

Raeford. Raeford later called Joe, who said Jane was with him, but Joe refused




3
   The maternal grandmother had plans to move to North Carolina, and Tara
planned to move there with the children.



                                                                          A-5173-17T1
                                       10
to provide Raeford his location. Raeford was unable to reach Tara on the

telephone and went to Tara's home, but Tara and Jane were not there.

      Based on information supplied by Dr. Byrnes, the Division immediately

attempted a Dodd 4 removal of the children. Raeford, however, was unable to

contact or find Tara and the children until April 22, 2015 when, with the

assistance of the Human Services Police Department, Raeford removed the

children from Tara's custody.

      Jennifer Wisely, a Division intake worker, interviewed Jane during the

removal. Jane said Tara was angry with her following the AHCH evaluation

and told Jane she was going to be taken away. Jane reported Tara told her not

to talk about Ben and if she did, Jane "would get beaten and . . . not be able to

go to North Carolina with the family." Nonetheless, Jane told Wisely she was

tired of lying, Tara and Ben "fight both physically and verbally," and Ben

"smokes marijuana in the bathroom" of her home. Jane further stated that Tara

did not believe her allegations about Kevin "and was yelling at her and calling




4
  A "Dodd removal" is an emergency removal of a child from the custody of a
parent without a court order, as authorized by N.J.S.A. 9:6-8.29, which is a
provision within the Dodd Act, N.J.S.A. 9:6-8.21 to -8.82.


                                                                         A-5173-17T1
                                      11
her bad names." She also reported there had not been any recent incidents

between Tara and Ben.

      The Division filed an amended verified complaint against Tara, Joe, and

Ben for care, supervision, and custody of Jane and Judy. At the April 24, 2015

removal hearing, the court granted the Division care, custody, and supervision

of the children and ordered weekly supervised visitation by Tara and Joe until

placement of the children with a family, with liberal supervised visits thereafter.

      The court later conducted a fact-finding hearing on the allegations of

abuse or neglect against Tara, Joe, and Ben during which the Division presented

Prosper, Raeford, Wisely, and Dr. Anthony Vincent D'Urso as witnesses.

      Dr. D'Urso was qualified as an expert in the field of psychology and is the

section chief and supervising psychologist at the AHCH. Based on his review

of Dr. Byrnes's clinical assessment of Jane and the standards in the Diagnostic

and Statistical Manual of Mental Disorders III (DSM), 5 Dr. D'Urso diagnosed

Jane with "disorders of extreme stress not otherwise specified." According to

Dr. D'Urso, "this particular diagnosis, in essence, . . . is [p]ost [t]raumatic

[s]tress [d]isorder with not one [triggering] event, but multiple [triggering]


5
   The DSM is "an authoritative text published by the American Psychiatric
Association that classifies mental disorders." Rodriguez v. Wal-Mart Stores,
Inc., 237 N.J. 36, 59 (2019).
                                                                           A-5173-17T1
                                       12
events that lead to the same problems of emotion." Dr. D'Urso based the

diagnosis on Jane's "dysregulated behaviors that [were] . . . reported in multiple

sources, school reports, by [Tara], by [Joe]," including "problems in school,"

"social isolation," reports of being "bullied," "anger and acting out," and "a lot

of avoidant behavior."     Dr. D'Urso also explained Jane described somatic

responses to stress, stomach difficulties, and problems with sleep that are typical

of children with the disorder.

      Dr. D'Urso noted that during her psychosocial evaluation, Jane "recanted

that [Kevin] had touched her." However, in part based on Jane's "sexualized

knowledge," Dr. D'Urso concluded the underlying claim of inappropriate sexual

contact was clinically supported and that Jane's recantation was a "function of

family support, [such] that if a child's getting support for a disclosure, they're

less likely to recant."

      Dr. D'Urso noted other triggers for Jane's stress disorder that were

clinically supported. He found Jane's statements about her parents' use of

corporal punishment clinically supported a concern about physical abuse that

needed to be addressed. He also found Jane's reports of marijuana and alcohol

use by Tara clinically supported a need to address possible substance abuse as a

cause of Jane's stress disorder. He explained that he did not conclude as a matter


                                                                           A-5173-17T1
                                       13
of fact that Jane's parents actually used corporal punishment or that Tara used

marijuana or alcohol. Instead, he testified that Jane's statements clinically

supported a determination those issues should be addressed in Jane's treatment.

      Dr. D'Urso found Tara's and Joe's responses to Jane's reports to the

Division clinically supported emotional abuse of Jane. He explained that prior

to Jane's disclosures concerning Kevin's sexual abuse, Tara and Joe were aware

Jane had "emotional and behavioral problems" because Jane was already

receiving in-home therapy sessions, and it was "important to get at the source of

those behavioral difficulties and emotional reactions." He testified that where

there is a delay in seeking treatment, a child's "emotional deterioration"

continues "accruing and affecting [ ] behaviors" "until such time as [her] parents

say it's okay to get therapy."

      He further testified Tara's and Joe's actions following Jane's initial

disclosure "block[ed] . . . an attempt to explore" Kevin's sexual abuse of Jane

and "the services that could have been put in place and could have then explored

[Jane's] various reactions and statements were halted and not in place." Dr.

D'Urso also explained Tara's and Joe's efforts to prevent Jane from reporting the

sexual abuse caused her emotional harm. He testified that "no child is served

well emotionally by saying something that is untrue, and conversely, no child is


                                                                          A-5173-17T1
                                       14
served by having to deny something that happened to them." Dr. D'Urso cited

Jane's statement that she "started this whole thing," as supporting his conclusion

that her parents' efforts to stop her from discussing the sexual abuse and other

family related triggers for her stress placed an "emotional responsibility" on her

"that should [not] be put on a child . . . [and] leads to re-victimization."

        Joe and Ben moved for judgment after the Division presented its evidence.

The court granted Ben's motion, finding Jane's statements concerning the alleged

domestic violence between Ben and Tara and Ben's alleged use of marijuana,

even if accepted as true, were too general and inadequate to support a finding he

abused or neglected Jane or Judy. The court denied Joe's motion, finding the

evidence was adequate to establish a prima facie case he abused or neglected

Jane.

        Tara called three witnesses, E.J., T.B., and C.S., each of whom had

occasion to observe Tara parent Jane. They each testified they had seen Tara

properly care for Jane.

        Joe testified on his own behalf and admitted he told Raeford he would

conduct his own investigation into his daughter's allegations concerning Kevin.

Joe denied coaching Jane prior to any interviews, telling Jane to lie to

investigators, or instructing Tara to flee with the children.            On cross-


                                                                               A-5173-17T1
                                        15
examination, Joe acknowledged Jane displayed emotional and behavioral

problems, but he said he did not believe she required services. Joe admitted

telling Tara not to cooperate with the Division's investigation.

      On December 22, 2015, the court rendered a decision from the bench. The

court summarized the testimony of Raeford concerning her interactions and

conversations with Tara and Joe and her interview of Jane. Although it did not

mention Wisely by name, the court also cited and relied on her testimony

concerning her interview with Jane following the removal.

      The court found credible Dr. D'Urso's testimony regarding Jane's

emotional issues and her parents' actions following her report that Kevin

sexually abused her. The court noted Dr. D'Urso diagnosed Jane with "extreme

stress, complex trauma, PTSD stemming from . . . multiple events," and that

Jane exhibited "stomach difficulties, problems with sleep, and psychological

symptoms" Dr. D'Urso described as "psychic numbing."

      The court accepted Dr. D'Urso's testimony that Jane's report of sexual

abuse by Kevin was supported by sexualized knowledge that would not be

typically expected from a child of her age. The court further relied on Dr.

D'Urso's testimony that Jane's recantation of her claims regarding Kevin and

provision of details regarding the sexual abuse clinically supported Jane 's


                                                                      A-5173-17T1
                                       16
statements her parents were upset about her making the report and pressured her

not to disclose Kevin's actions. The court relied on Dr. D'Urso's opinion Jane

suffered an aggravation of her emotional issues by her parents' lack of support,

and their failure to continue her counseling, and they re-victimized her by

pressuring her not to disclose the abuse.

      The court found Tara's witnesses credible but their knowledge limited; the

court found they had no knowledge concerning Jane's issues and her parents'

actions and their testimony added little to the alleged abuse or neglect at issue.

The court found Joe was forthright about his view the Division should not be

involved in his family's affairs, but the court determined Joe "was not qualified

to evaluate the situation."

      The court found Jane was threatened by her parents not to make

disclosures to the Division and that her parents "were not supportive in having

appropriate evaluations and appropriate counseling." The court determined the

parents' lack of support of Jane following her disclosure of Kevin's sexual abuse,

and their threats if she continued to make the disclosures, "re-victimized [her]

and caused more emotional harm by depriving her of the counseling she badly

needed."




                                                                          A-5173-17T1
                                       17
      The court concluded Tara and Joe abused or neglected Jane by failing to

provide her with the minimum degree of care and thereby causing her emotional

harm. The court based its determination on "the lack of support, the threats, the

deprivation of counseling that was so sorely needed because of a lot of things:

the domestic violence, the substance abuse, and the sexual abuse[.]"

      The court entered an order finding Tara and Joe abused or neglected Jane

by failing to support Jane following her disclosure she was sexually abused by

Kevin; by denying Jane's claims of sexual abuse and threatening Jane if she

continued to disclose the abuse; and by depriving Jane of counseling services

required to address her exposure to Kevin's abuse, domestic violence between

Tara and Ben, and Tara's substance abuse.

                                       II.

      Prior to addressing Tara's and Joe's arguments, we summarize the

principles applicable to a consideration of an order finding abuse or neglect.

Our review of the "fact-findings of the Family Part judge" is strictly limited.

N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 577 (App.

Div. 2010) (citing Cesare v. Cesare, 154 N.J. 394, 411 (1998)). "[F]indings by

the trial judge are considered binding on appeal when supported by adequate,

substantial and credible evidence." N.J. Div. of Youth & Family Servs. v.


                                                                         A-5173-17T1
                                      18
Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (quoting Rova Farms Resort,

Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974)). "[A]n appellate court

should not disturb the 'factual findings and legal conclusions of the trial judge

unless [it is] convinced that they are so manifestly unsupported by or

inconsistent with the competent, relevant and reasonably credible evidence as to

offend the interests of justice.'" Cesare, 154 N.J. at 412 (second alteration in

original) (quoting Rova Farms, 65 N.J. at 484). However, we need not defer to

the trial court on questions of law. N.J. Div. of Youth & Family Servs. v. V.T.,

423 N.J. Super. 320, 330 (App. Div. 2011).

      To establish a child has been abused or neglected under Title Nine, the

Division must show by a preponderance of the "competent, material and relevant

evidence" that a child is an "abused or neglected" child as defined in N.J.S.A.

9:6-8.21. N.J.S.A. 9:6-8.46(b). An "abused or neglected child" is

            a child whose physical, mental, or emotional condition
            has been impaired or is in imminent danger of
            becoming impaired as the result of the failure of his [or
            her] parent or guardian . . . to exercise a minimum
            degree of care . . . in providing the child with proper
            supervision or guardianship, by unreasonably inflicting
            or allowing to be inflicted harm, or substantial risk
            thereof, including the infliction of excessive corporal
            punishment; or by any other acts of a similarly serious
            nature requiring the aid of the court[.]

            [N.J.S.A. 9:6-8.21(c)(4).]

                                                                         A-5173-17T1
                                         19
      "Whether a parent or guardian has failed to exercise a minimum degree of

care is to be analyzed in light of the dangers and risks associated with the

situation." G.S. v. Dep't of Human Servs., 157 N.J. 161, 181-82 (1999). Failure

to exercise a "minimum degree of care" requires "conduct that is grossly or

wantonly negligent, but not necessarily intentional."      Dep't of Children &

Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 299-300 (2011)

(quoting G.S., 157 N.J. at 178).       "[T]he concept of willful and wanton

misconduct implies that a person has acted with reckless disregard for the safety

of others." G.S., 157 N.J. at 179 (citing Fielder v. Stonack, 141 N.J. 101, 123

(1995)).

      To determine if a parent failed to exercise the requisite "minimum degree

of care," "the inquiry should focus on the harm to the child and whether that

harm could have been prevented had the guardian performed some act to remedy

the situation or remove the danger." Id. at 182. "[A] guardian fails to exercise

a minimum degree of care when he or she is aware of the dangers inherent in a

situation and fails adequately to supervise the child or recklessly creates a risk

of serious injury to that child." Id. at 181. In deciding whether a child has been

abused or neglected, courts "must base [their] findings on the totality of the

circumstances . . . ." V.T., 423 N.J. Super. at 329.


                                                                          A-5173-17T1
                                       20
      The court should focus on the "parent's conduct at the time of the incident

to determine if a parent created an imminent risk of harm to a child." Dep't of

Children & Families, Div. of Child Prot. & Permanency v. E.D.-O., 223 N.J.

166, 189 (2015). A child need not be "actually irreparably impaired by parental

inattention or neglect" for a court to find that a parent failed to exercise a

minimum degree of care. See In re Guardianship of D.M.H., 161 N.J. 365, 383

(1999) (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 616

n.14 (1986)).

      In their separate briefs on appeal, Tara and Joe make similar arguments.

They assert the court's findings of fact are not supported by credible evidence

because they are based on Jane's uncorroborated statements to Prosper, Raeford,

Wisely, and Dr. Byrnes, and the Dr. D'Urso's testimony, which they claim is not

competent evidence. They also contend there is insufficient credible evidence

supporting the court's finding they abused or neglected Jane. Joe makes an

additional argument; he claims the court erred by denying his motion for an

involuntary dismissal following the close of the Division's case.

      An essential premise of the court's abuse or neglect finding is that Jane

was the victim of sexual abuse by Kevin; Jane witnessed domestic violence

between Tara and Ben; and Jane witnessed Tara's abuse of alcohol. Indeed, it


                                                                         A-5173-17T1
                                      21
was Tara's and Joe's alleged efforts to prevent Jane's disclosure of those

incidents and actions, and their purported failure to obtain counseling related to

her exposure to them, upon which the court made its abuse and neglect finding.

      Tara and Joe argue the finding of abuse or neglect must be reversed

because it is based in part on Jane's allegations of sexual abuse by Kevin, Tara's

substance abuse, domestic violence between Tara and Ben, and Tara's and Joe's

threats of punishment and repercussions if Jane made disclosures about the

sexual abuse and her parents. They contend the court's reliance on Jane's

statements to the Division caseworkers and Dr. Byrnes was not corroborated by

competent evidence and therefore could not provide a basis for the court 's abuse

or neglect finding.

      In Title Nine proceedings, a child's hearsay statements "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); see also N.J. Div.

of Child Prot. & Permanency v. S.K., 456 N.J. Super. 245, 272 (App. Div. 2018).

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.J. Div. of Child Prot. & Permanency v. N.B., 452 N.J. Super. 513,


                                                                          A-5173-17T1
                                       22
522 (App. Div. 2017). We review de novo a court's determination a child's

hearsay statements have been sufficiently corroborated under N.J.S.A. 9:6-

8.46(a)(4). N.J. Div. of Child Prot. & Permanency v. A.D., 455 N.J. Super. 144,

157 (App. Div. 2018).

        "The most effective types of corroborative evidence may be eyewitness

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

(quoting N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 166

(App. Div. 2003)). However, "[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 Z.P.R., 351 N.J. Super. at

435).     Corroborative evidence may be circumstantial, but it "must be

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

statement." Ibid.




                                                                           A-5173-17T1
                                       23
      We find no competent evidence supporting the court's finding of domestic

violence between Tara and Ben. Jane reported physical altercations between

Tara and Ben—including the throwing of pots and pans and Ben's alleged

choking of Tara—but Tara's out-of-court statements concerning the alleged

domestic violence are not otherwise corroborated. Lacking such corroboration,

the court could not properly rely on Jane's reports of domestic violence, see

N.B., 452 N.J. Super. at 522, to support its finding Tara and Joe abused or

neglected Jane.

      In contrast, Jane's oft-repeated statements Kevin sexually assaulted her

were sufficiently corroborated to support the court's finding Jane was the victim

of sexual abuse. In each of her reports, Jane's descriptions of Kevin's actions

demonstrated a "precocious sexual knowledge" for a child of Jane's age.6 Z.P.R.,

351 N.J. Super. at 436 (citation omitted). They were therefore supported by "the

necessary corroboration required by N.J.S.A. 9:6-8.46[(a)](4)." Ibid. Thus,

independent of any other evidence supporting a determination Jane was sexually




6
  Jane reported the details of Kevin's sexual abuse to Prosper and Raeford when
she was seven years old, and she made her reports to Wisely and Dr. Byrnes
when she was eight years old.



                                                                         A-5173-17T1
                                      24
abused by Kevin, her statements describing Kevin's actions were sufficiently

corroborated to support the court's finding Kevin sexually abused Jane. 7

      There was also competent circumstantial evidence corroborating Jane's

statements she was told by Tara and Joe not to report Kevin's sexual abuse and

threatened by them with punishment if she did so. Joe told Raeford he did not

want Jane interviewed by the Division or the HCPO; he "shutdown" any

cooperation by Jane, Tara, or himself with the Division; and he stated any

investigation of Jane's allegations were to be conducted solely by him. Tara told

Raeford that Joe instructed her not to allow Jane to be interviewed, and Joe

admitted at trial he told Tara not to cooperate with the Division. Joe's admission

he "shutdown" the investigation was a declaration he took the steps required to

squelch any further disclosures by Jane, since she was the sole source of the

allegations against Kevin. That evidence corroborates Jane's statements Joe

directed her not to report Kevin's sexual abuse to anyone.


7
   Because Jane's statements describing Kevin's sexual abuse are sufficiently
corroborated by her precocious sexual knowledge to support the court's
determination the sexual abuse occurred, and Dr. Byrne's report, Dr. D'Urso,
and the court found Jane's precocious sexual knowledge corroborated her reports
about Kevin's abuse, it is unnecessary to address the claim Dr. D'Urso
incorrectly relied on the accommodation portion of the Child Sexual Assault
Abuse Accommodation Syndrome analysis to conclude Jane's psychological
issues provided clinical support for her statements concerning Kevin's sexual
abuse. See generally State v. J.L.G., 234 N.J. 265 (2018).
                                                                            A-5173-17T1
                                       25
      Moreover, Joe said Jane was either lying or exaggerating about the sexual

abuse, and he was convinced Jane was not telling the truth. He also admitted

discussing Jane's allegation concerning Kevin with her and explaining the

"consequences" of lying. Joe also reported that Jane said she was afraid to tell

him what occurred because she was fearful she would receive a beating; and he

admitted there had been occasions he spanked her. In our view, Joe's admissions

and statements corroborate Jane's statements because they are wholly consistent

with Jane's reports that she was afraid to make the disclosures because she feared

the consequences from Joe if she did so. See N.B., 452 N.J. Super. at 522

(requiring only "[s]ome direct or circumstantial evidence" supporting a child's

statements to permit proper reliance on the statements to support an abuse or

neglect finding under N.J.S.A. 9:6-8.46(a)(4)).

      Similarly, Tara responded to Jane's initial report to Prosper with

immediate anger and disbelief, expressing her dissatisfaction with Jane's

statements and immediately labelling Jane a liar. Tara did not report Jane's

sexual abuse allegations to the Division as Prosper directed, and Tara thereafter

made clear to Raeford and Wisely that she and Joe would not cooperate with the

investigation of Jane's allegations and did not want Jane to provide any

information. Like Joe, Tara did all she could to prevent Jane from making


                                                                          A-5173-17T1
                                       26
further reports to the Division about Kevin's sexual abuse, and Tara's statements

and actions are consistent with, and provide evidence supporting, Jane 's reports

that Tara instructed Jane not to make any further disclosures.

      Jane's report that Tara threatened the family would not move to North

Carolina if she disclosed information to the Division is also corroborated by the

evidence that Tara planned to relocate to North Carolina with her children to

reside with or near Tara's family. Tara admitted that was her plan. Jane's

statement her mother threatened not to make a planned move to another State if

Jane made any further disclosures exhibited a knowledge beyond that which can

be reasonably expected of an eight-year-old child. Her statement revealed an

adult exercise of a diabolical leverage over a child: do not make any reports

concerning Kevin or our family or you will be responsible for disrupting our

family's plan to move to North Carolina. In our view, it is reasonable to infer

that, at her age, Jane could not have conjured up such a threat unless, of course,

it was true. See Z.P.R., 351 N.J. Super. at 436 (finding evidence of age-

inappropriate knowledge provides corroboration for a child's out-of-court

statements under N.J.S.A. 9:6-8.46(a)(4)). Thus, the evidence provided some

support for Jane's report of Tara's threats of punishment and repercussions, and

corroborate Jane's statements.


                                                                          A-5173-17T1
                                       27
      We also find Jane's very limited statements concerning Tara's substance

abuse were sufficiently corroborated by the child's description of Tara's physical

condition. Jane reported one instance of Tara's use of alcohol, describing Tara's

wobbly legs, inability to stand, collapsing in a chair, and passing out while

holding infant Judy in a manner that demonstrated a precocious knowledge of

the effects of alcohol for a child of her age. Ibid.

      We reject Joe's claim the court improperly relied on Dr. D'Urso's

testimony that Jane's initial denial Kevin sexually abused her during her

evaluation by Dr. Byrnes was "more consistent with recantation than a false

positive," and that during the evaluation Jane demonstrated knowledge of the

difference between a truth and a lie. Joe's claim the testimony "transgressed

from a clinical finding to 'truth telling,'" see State v. J.Q., 130 N.J. 554, 582

(1993), is belied by the record.       Dr. D'Urso's testimony concerning the

recantation explained in part his conclusion Jane's family did not support her

disclosure of information concerning Kevin.            When considered in proper

context, the testimony was not an expression of opinion on the truthfulness of

Jane's statements.   Similarly, the testimony about Jane's knowledge of the

difference between a truth and a lie was presented as part of an explanation of

the psychological evaluation process used at AHCH; Dr. D'Urso explained that


                                                                          A-5173-17T1
                                       28
one of the baseline standards for the evaluation is ensuring the child understands

the difference between a truth and a lie. Thus, contrary to Joe's contention, Dr.

D'Urso did not offer an opinion as to Jane's truthfulness, and there is nothing in

the record showing that the court relied on any affirmative testimony from Dr.

D'Urso the child was truthful in making its fact-findings or abuse or neglect

determination.8

      In sum, we reject Tara's and Joe's claims that there was insufficient

competent evidence supporting the court's findings that Kevin sexually abused

Jane, Tara on one occasion abused alcohol, and Tara and Joe directed Jane not

to make disclosures and threatened her with punishment if she did so. The court

properly relied on Jane's out-of-court statements establishing those facts because

her statements were sufficiently corroborated as required by N.J.S.A. 9:6-

8.46(a)(4), and the court otherwise found the statements credible.

      Tara and Joe also contend the court's findings of fact do not support the

court's legal conclusion that they abused and neglected Jane. Joe argues the


8
   We also observe there was no objection to the portions of Dr. D'Urso's
testimony upon which Joe's argument is based. For the reasons noted, we are
satisfied that even if it was error to admit the testimony, it was not clearly
capable of producing an unjust result. R. 2:10-2. The judge found Jane's
statements were sufficiently corroborated and credible independent of any
purported opinion of Dr. D'Urso that Jane's statements about Kevin were
truthful.
                                                                          A-5173-17T1
                                       29
court's finding he deprived Jane of needed counseling services is undermined by

evidence showing that the only service ordered by the court was for the AHCH

evaluation and Jane appeared for the evaluation when it was scheduled, which

was the day before Jane was removed from Tara's and his care and custody. He

contends the record is bereft of evidence supporting the court 's determination

that he or Tara ever blocked counseling for Jane. Tara similarly argues the

court's determination she and Joe abused or neglected Jane is not supported by

credible evidence and the court's determination they failed to "support Jane

following her disclosure she was sexually abused by Kevin," even if true, does

not constitute abuse or neglect under the circumstances presented here.

      Tara's and Joe's arguments fail to account for the basic principle that a

court must consider the dangers and risks presented by the situation in which

the child is found to determine whether a parent has failed to exercise a

minimum degree of care. G.S., 157 N.J. at 181-82. Before Jane made her initial

disclosures, she was already a child that both her school and parents recognized

required counseling.   Her initial disclosure was made during a counseling

session arranged by Tara as a result of Jane's problematic behavioral issues. It

is within that context and situation that Tara's and Joe's actions supporting the

court's abuse or neglect finding must be considered.


                                                                          A-5173-17T1
                                      30
      The court's findings Tara and Joe did not support Jane following her

disclosures are supported by evidence they did what they could not to cooperate

in the Division's investigation and, more significantly, dissuaded Jane from

making any further disclosures and threatened punishment and repercussions if

she did. We agree their respective failures to believe Jane's allegations would

not support an abuse or neglect finding, but the court aptly determined their

failure to provide Jane with support, coupled with their threats of punishment if

she made further disclosures, established they abused or neglected the child.

      Their conduct did not constitute mere negligence or even gross

negligence. See T.B., 207 N.J. at 299-300 (explaining a failure to exercise a

minimum degree of care requires proof of conduct that is grossly or wantonly

negligent). They acted intentionally to prevent their seven-year-old daughter,

who they knew otherwise suffered from psychological issues, from making

truthful disclosures she was sexually abused and about other family issues. Joe

said he shut everything down, and he did not do it by accident. He and Tara

threatened Jane with punishment if she did not follow their directives and made

clear that if she did, she would be punished.

      They argue there is no evidence they interfered with Jane's counseling

because the court never ordered counseling prior to Jane's removal from their


                                                                         A-5173-17T1
                                      31
custody. However, they ignore Jane was in counseling when she made the initial

disclosures.   Prosper testified that, although there were some counseling

sessions after the initial disclosures, approval for further counseling was

obtained but no further counseling occurred because Tara, in accordance with

Joe's direction that Jane not be available to make further disclosures, did not

respond to efforts to schedule it. Tara's actions in this regard are consistent with

her and Joe's decision to prevent Jane from making any further disclosures. Tara

and Joe did not want Jane to make any disclosures, so the further counseling

Jane needed, and required, ended. The record therefore supports the court's

finding Tara and Joe deprived Jane of necessary counseling.

      Tara's and Joe's actions were intentional and undertaken in abject

disregard of Jane's ongoing psychological needs and issues. The totality of the

circumstances establish they failed to exercise the minimum degree of care

required to assist Jane in addressing and resolving her behavioral and

psychological issues by interrupting her counseling, and they created a risk of

further emotional and psychological harm by not only failing to support Jane but

also by threatening her with punishment if she made honest disclosures about

being a victim of sexual abuse and a witness to her mother's substance abuse.

See G.S., 157 N.J. at 182 (explaining that in determining whether there was a


                                                                            A-5173-17T1
                                        32
failure to provide the minimum degree of care, "the inquiry should focus on the

harm to the child and whether that harm could have been prevented had the

guardian performed some act to remedy the situation or remove the danger").

      Dr. D'Urso explained that deprivation of the counseling posed an ongoing

risk of harm to Jane because she required the counseling before the disclosures

were even made. But there is more. Tara's and Joe's actions re-victimized Jane

by making Jane feel responsible for what followed her disclosures. Dr. D'Urso

also opined that it did not serve Jane emotionally that she was told by her parents

to deny what actually happened and not truthfully explain what actually

occurred. Thus, Tara's and Joe's conduct resulted in actual emotional harm to

Jane, as well as a risk of ongoing emotional harm.

      Any arguments made by Tara and Joe that we have not expressly

addressed are without sufficient merit to warrant discussion in a written opinion.

R. 2:11-3(e)(1)(E).

      Affirmed as to A-5173-17. Affirmed as to A-5866-17.




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                                       33
