                     RECORD IMPOUNDED

                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-0238-13T2

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
                                             APPROVED FOR PUBLICATION
         Plaintiff-Respondent,
                                                November 3, 2014
v.
                                                APPELLATE DIVISION
Y.A.,

          Defendant-Appellant.
________________________________

IN THE MATTER OF R.A., I.A., S.A.,
and Y.A.,

          Minors.
_________________________________

         Submitted: October 28, 2014 – Decided: November 3, 2014

         Before Judges Reisner, Haas and Higbee.

         On appeal from Superior Court of New Jersey,
         Chancery   Division,   Family   Part,  Essex
         County, Docket No. FN-07-400-10.

         Joseph E. Krakora, Public Defender, attorney
         for appellant (Beth Anne Hahn, Designated
         Counsel, on the briefs).

         John J. Hoffman, Acting Attorney General,
         attorney    for   respondent  (Andrea  M.
         Silkowitz, Assistant Attorney General, of
         counsel; Diane L. Scott, Deputy Attorney
         General, on the brief).

         Joseph E. Krakora, Public Defender, Law
         Guardian, attorney for minor R.A. (Lisa M.
         Black, Designated Counsel, on the brief).
          Joseph E. Krakora, Public Defender, Law
          Guardian, attorney for minors I.A., S.A. and
          Y.A. (Todd Wilson, Designated Counsel, on
          the brief).

          The opinion of the court was delivered by

HAAS, J.A.D.

    In this appeal, we address the issue of whether N.J.S.A.

9:6-8.46(a)(4) requires that the in camera testimony of a child

victim of sexual abuse be independently corroborated in order to

prove abuse or neglect under Title 9.                N.J.S.A. 9:6-8.21 to -

8.73.   Based upon our review of the record and applicable law,

we hold that the corroboration requirement of the statute does

not apply where the child victim testifies to the abuse at a

fact-finding hearing.        We therefore affirm the trial judge's

finding that the Division of Child Protection and Permanency

(Division)     met   its   burden    of    proving    that   defendant   Y.A.

committed an act of sexual abuse against his daughter, R.A.

                                      I.

    In May 2010, when R.A. was fourteen years old, she "gave

her teacher a letter" stating that one day, when she was getting

out of the shower and wearing only a towel, defendant came into

the bathroom and "wanted to put lotion on her."                   The child

stated defendant then rubbed the lotion on her legs and then

"pressed on her vagina."            R.A. told defendant that "it hurt"




                                       2                            A-0238-13T2
and that she could put the lotion on herself.             R.A. did not know

the specific date on which this incident occurred, but estimated

it happened sometime between 2008 and 2009.

      Later that night, R.A. and defendant were playing the word

game "hangman" and defendant spelled out "can I play with your

stuff again."         A third incident occurred in June 2009, when

R.A.'s mother, Q.B., was in the hospital giving birth to R.A.'s

youngest sibling.       That night, R.A. remembered going to bed with

her underwear on and defendant getting into the bed with her.

When R.A. awoke, she was no longer wearing her underwear.                  R.A.

stated in the letter that she "wants to die and run away."

      The    school    notified      the    Division,   and    a    caseworker

interviewed R.A.        At the fact-finding hearing, the caseworker

testified     that,    during   this       interview,   R.A.   repeated     the

allegations set forth in the letter.              Q.B. agreed to a safety

plan under which defendant would not be permitted to live in the

home.     Five days later, however, Q.B. contacted the Division to

request that R.A. be removed from the home "before she gets put

out."     Q.B. stated that R.A. said she was going to run away and

threatened to kill herself.          The child went missing that night,

but appeared at school the following day.               At that point, Q.B.

took her to a hospital crisis center.             When R.A. was discharged,

the     Division   conducted    an    emergency    removal     of   the   child




                                       3                              A-0238-13T2
pursuant    to   N.J.S.A.      9:6-8.29    and    8.30;       assumed     custody      and

supervision      of    R.A.;     and   placed    the     child      in    an    approved

resource home.

       A licensed clinical social worker conducted an evaluation

of R.A. in preparation for the fact-finding hearing.                       The social

worker testified that R.A. told her that "her father touched her

vaginal area, putting lotion on her.                   Following that he had --

they were playing a game of hangman.               He said, can I touch your

stuff again?       She reported she was hurt 'cause this is supposed

to be her father."           R.A. also stated that defendant got into bed

with her one night and, when she woke up, she was no longer

wearing her underwear.

       R.A. testified in camera in the trial judge's chambers and

the    attorneys      were   permitted    to    submit    questions,           which   the

judge screened and then posed to R.A.1                 The child testified that

defendant touched her in a "sexual manner" in her "vagina area."

This   incident       occurred    when   R.A.    got    out    of   the    shower      and

defendant touched her vagina while applying lotion.                            The child

stated that, after she asked defendant to stop, "he got up and I

saw his penis erect."            Later that day, R.A. testified defendant


1
  Under Rule        5:12-4(b), a trial judge may permit a child's
testimony to        be "taken privately in chambers."     On appeal,
defendant has      not challenged the judge's decision to permit R.A.
to testify in      camera.



                                          4                                      A-0238-13T2
told her, "I want to play with your stuff."                              The child also

recounted the incident where defendant got into bed with her and

"I woke up with my panties off."

       In response to the attorneys' questions, R.A. struggled to

provide specific dates for the three incidents.                               She believed

the first two incidents occurred on the same day sometime in

2008, but she could not remember the date.                          The third incident

took place in June 2009.                    R.A. also explained that the letter

she    gave    to    her    teacher      about      the   incidents      was     part   of   a

journal she kept.

       Defendant did not testify at the hearing.                         An investigator

from    the     Public      Defender's        Office      testified      on    defendant's

behalf.       The investigator stated that defendant was in jail from

January 2008 through October 2008.

       At     the   conclusion         of    the    hearing,     the     judge    issued     a

thorough oral opinion.                 The judge relied upon R.A.'s testimony

in     finding      that     defendant        abused      her,     and    made     detailed

credibility         findings     concerning         the   child's      testimony.         The

judge stated that R.A. was "an extremely reluctant witness[,

who] sat in the chair practically curled up in a ball."                                   The

child began to cry as she talked about the first incident and,

"[b]y    the     time      she   got    to    the    second      incident,     tears    were

pouring down her cheek. . . . [Y]ou could hear the anger in her




                                               5                                    A-0238-13T2
voice when she talked about" defendant.        The judge noted that

R.A. "didn't remember dates[,]" but attempted to be responsive

to the attorneys' requests for same.

    The judge further explained:

              I found [R.A.] to be credible. I found
         that . . . she was forthcoming, that she was
         reluctant, that she did not want to talk
         about this, that she was very emotionally
         traumatized   by   the   events   that   she
         described. Particularly the allegation here
         is sexual abuse, but it -- it's very
         difficult to say. This was attempted sexual
         abuse. This was sexual abuse by even asking
         your biological daughter to allow you to
         touch her stuff.

              . . . I find that what you really see
         by these notes is how troubled [R.A.] is by
         an incident that admittedly had taken place
         probably at least a year before.       And I
         think it's likely that . . . she was
         emotionally harmed by this.         And she
         certainly was placed at serious risk of harm
         by a father that would ask a child to allow
         him to fondle her private parts.

This appeal followed.

                                 II.

    On appeal, defendant argues that the judge erred by finding

that he abused R.A.     He asserts that R.A.'s statements were not

corroborated and, therefore, there was insufficient evidence in

the record to support the judge's finding.     We disagree.

    In   pertinent    part,   N.J.S.A.   9:6-8.21(c)(4)   defines    an

"abused or neglected child" as:




                                  6                           A-0238-13T2
           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 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[.]

Our review of the trial judge's factual finding of abuse or

neglect   is   limited;   we   defer       to   the    court's   determinations

"'when supported by adequate, substantial, credible evidence.'"

N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super.

77, 89 (App. Div. 2008) (quoting Cesare v. Cesare, 154 N.J. 394,

412   (1998)).     The    trial   court         is    best   suited   to    assess

credibility, weigh testimony and develop a feel for the case,

and we extend special deference to the Family Part's expertise.

N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328,

342-43 (2010); Cesare, supra, 154 N.J. at 413.

      Unless the trial judge's factual findings are "so wide of

the mark that a mistake must have been made" they should not be

disturbed, even if we would not have made the same decision if

we had heard the case in the first instance.                 N.J. Div. of Youth

& Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citation and

internal quotation marks omitted).                   "It is not our place to




                                       7                                   A-0238-13T2
second-guess or substitute our judgment for that of the family

court,     provided      that    the     record     contains          substantial       and

credible evidence to support" the judge's decision.                            N.J. Div.

of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012).

A finding of abuse or neglect must be based on the preponderance

of the evidence.         N.J. Div. of Youth & Family Servs. v. G.M.,

198 N.J. 382, 398 (2009); N.J.S.A. 9:6-8.46(b).

     Here, there is ample evidence in the record to support the

judge's    conclusion      that       defendant     abused       R.A.         The    child

provided    credible     testimony       detailing       the    three    incidents      of

abuse.      R.A.    consistently       stated     that    defendant       touched       her

vagina while applying lotion to her; asked her later that day if

he could "touch [her] stuff again?"; and got into bed with her

on another occasion where the child woke up to find she was no

longer    wearing     underwear.         While    the    child    was    not    able     to

provide    the     specific      dates     on     which    all        three    incidents

occurred, the judge specifically found that this failure was of

no   moment      given    the     overall        credibility      of     the        child's

testimony.       "Because a trial court 'hears the case, sees and

observes the witnesses, [and] hears them testify,' it has a

better    perspective     than    a    reviewing        court    in    evaluating       the

veracity witnesses."        Pascale v. Pascale, 113 N.J. 20, 33 (1988)

(quoting Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961)




                                           8                                    A-0238-13T2
(alteration in original)).                Applying this standard, we discern

no   basis     for     disturbing         the      judge's        reasoned   credibility

determinations.

      Contrary to defendant's contention, R.A.'s statements did

not need to be "corroborated" in order to be considered as proof

of   abuse    or   neglect.         In    pressing         this    argument,    defendant

mistakenly relies upon N.J.S.A. 9:6-8.46(a)(4), which 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."

(Emphasis added).            Thus, this statute permits third parties,

such as Division caseworkers, foster parents, police officers,

or   hospital        personnel,      to     testify         concerning       out-of-court

statements     made     to   them    by    a       child    who    has   allegedly   been

abused.      See, e.g., N.J. Div. of Youth & Family Servs. v. L.A.,

357 N.J. Super. 155, 161-62 (App. Div. 2003); N.J. Div. of Youth

& Family Servs. v. Z.P.R., 351 N.J. Super. 427, 430-31 (App.

Div. 2002).

      Because the child is not testifying at trial, however, the

statute      requires    that     the     child's          "previous     statements"    be

corroborated.         N.J.S.A.      9:6-8.46(a)(4).               "The   most   effective

types of corroborative evidence may be eyewitness testimony, a




                                               9                                 A-0238-13T2
confession,       an     admission       or   medical      or   scientific      evidence.

However, corroborative evidence need not relate directly to the

accused.      By       its     nature,    corroborative         evidence      'need   only

provide support for the out-of-court statements.'"                           L.A., supra,

357 N.J. Super. at 166 (quoting Z.P.R., supra, 351 N.J. Super.

at 436)).

    In      this       case,    however,           R.A.   testified     in   camera    and

responded to all of the questions posed to her by the parties'

attorneys.        Rather than the Division relying upon her "previous

statements," the child described the allegations of abuse in

person.     Her testimony was subjected to the rigors of cross-

examination        and    her     presence          at    the   fact-finding      hearing

permitted    the       judge    to    assess        her   demeanor    and    credibility.

Under     these    circumstances,             we     conclude    that    N.J.S.A.     9:6-

8.46(a)(4) is inapplicable.                   To construe the statute otherwise

would mean that a child who, as here, is capable of coming to

court and testifying would be defenseless against her abuser

unless the Division could produce independent corroboration for

the child's testimony.               That result would be completely at odds

with the purpose of Title 9 to protect children from abuse.                             We

therefore reject defendant's argument on this point.




                                               10                                A-0238-13T2
                        III.

    [At the court's direction, Section III of
    its opinion, which concerns discrete issues,
    has been redacted from the published opinion
    because it does not meet the criteria set by
    Rule 1:36-2(d) for publication.]

Affirmed.




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