                                     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                                NOT FOR PUBLICATION WITHOUT THE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-5400-17T2

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

         Plaintiff-Respondent,

v.

E.R.-M.,

         Defendant-Appellant,

and

C.R., S.G.R.-M, and A.M.,

     Defendants.
_________________________

IN THE MATTER OF B.R.,
S.M., and T.R.,

     Minors.
________________________

                   Submitted May 20, 2020 – Decided June 10, 2020

                   Before Judges Haas and Mayer.
             On appeal from the Superior Court of New Jersey,
             Chancery Division, Family Part, Essex County, Docket
             No. FN-07-0273-17.

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

             Gurbir S. Grewal, Attorney General, attorney for
             respondent (Jane C. Schuster, Assistant Attorney
             General, of counsel; Diane L. Scott, Deputy Attorney
             General, on the brief).

             Joseph E. Krakora, Public Defender, Law Guardian,
             attorney for minor B.R. (Linda Vele Alexander,
             Designated Counsel, on the brief).

PER CURIAM

       Defendant E.R.-M. (Eric)1 appeals from a May 12, 2017 fact-finding

order, finding that he sexually abused his then six-year old son, B.R. (Ben). We

affirm.

       Ben, born on June 29, 2010, is the biological child of co-defendant C.R.

(Cathy), his mother, and Eric.2 On October 1, 2016, the local police contacted

the New Jersey Department of Child Protection and Permanency (Division) after

Eric reported he found a bruise on Ben's face.       According to Eric, Cathy


1
    We use pseudonyms to protect the parties in accordance with Rule 1:38-3(d).
2
    Eric and Cathy are divorced.
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                                       2
threatened Ben with a belt because Ben was fighting with his younger sister.

Ben said his mother waved the belt, it accidentally slipped, and struck him in

the face. Ben denied his mother hit him in the past.

      The Division investigated and found the allegations against Cathy were

"established." As a result, the Division provided in-home services to the family.

One month later, the Division received a referral from a counselor who

conducted an in-home psychosocial assessment of Ben.            As part of the

assessment, the counselor asked Cathy if Ben exhibited any sexualized

behaviors. Cathy believed Ben had been pulling his penis, causing his penis to

become chafed. When Cathy asked her son if he was pulling his penis, Ben said

Eric pulled his penis. Ben told his mother the incidents occurred during Ben's

visits with his father while Ben showered. On another occasion, Cathy told the

counselor she saw Ben "walking funny," and Ben explained his penis hurt

because his father was pulling it.

      Ben was then interviewed by a Division Intake Investigator, Quiana

James. During this interview, Ben denied Eric touched him inappropriately and

denied any sexual abuse. However, Ben told the Division's investigator that his

penis hurt two or three times, and he told Cathy about those times. Ben was




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                                       3
subsequently examined at a hospital for sexual abuse, but no medical evidence

of abuse was found.

      On November 9, 2016, during a video-recorded forensic interview with

Jocelyn Rivera, Ben disclosed sexual abuse by Eric. He explained Eric touched

his "pee," and confirmed the area where his father touched him on an

anatomically correct picture. Ben described the manner in which Eric touched

him, indicated his father only touched him when the two were alone, and the

touching occurred in the living room or bathroom at Eric's house. According to

Ben, these touches "made him sad." Ben also told the interviewer that he felt

hurt "when [Eric] touches him in a bad way." Ben further explained that when

he asked his father to stop, Eric did not stop and denied doing anything improper.

      Ben told the forensic interviewer the last time his father touched his penis

occurred in July 2018. Ben stated Eric "touched his penis in the bathroom while

[Ben] was sitting on the toilet." Ben said his father's touches "made his body

feel sad." When Ben returned home, he told his mother about the incident.

      A few weeks after the forensic interview, Ben participated in a

psychosocial evaluation conducted by Daisy Rimli, a licensed social worker and

expert in child abuse and neglect. During Rimli's evaluation, Ben described his

father's sexual abuse which mirrored the statement he gave to Rivera. Based on


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                                        4
her evaluation, Rimli concluded Ben was sexually abused by Eric. She opined

Ben was "significantly impacted by the sexual abuse he endured by his father

and is experiencing feelings of guilt and fear that his father will be incarcerated."

Rimli also expressed concern about Cathy's lack of response to Ben's disclosure

of his father's sexual abuse.

      The Division filed a verified complaint for care and supervision, alleging

Eric and Cathy abused, neglected, and endangered the welfare of Ben. The

Family Part judge signed the Division's order to show cause for care and

supervision of the children and ordered in-home therapy for Ben. The judge

allowed Cathy supervised contact with Ben. However, Eric was to have no

contact with Ben until further order. In addition, the judge required all pleadings

filed in the case to be transcribed into Spanish because English was not Eric's

first language.

      In a follow up hearing held on January 4, 2017, the judge continued the

Division's care and supervision of the children. Eric was allowed to have contact

with Ben limited to supervised therapeutic visits.

      On March 22, 2017, the judge held a fact-finding hearing. On that date,

Cathy "knowingly, willingly and voluntarily admitted . . . [t]here is an ongoing

need for services given the issues that persist within the family and the child's


                                                                            A-5400-17T2
                                         5
behavioral issues."    The judge also rescinded the requirement that Cathy's

contact with the children be supervised.

      The fact-finding hearing addressing the allegations against Eric could not

proceed on March 22 because the Division's report regarding Eric's sexual abuse

of Ben, unbeknownst to all counsel, was a preliminary investigation report. The

judge then adjourned the hearing to allow the Division to submit a finalized

investigation summary.

      The judge subsequently continued the fact-finding hearing over three non-

consecutive days. The Division's witnesses included: Daisy Rimli, LCSW;

Quiana James, a Division investigator; and Jocelyn Rivera, the forensic

interviewer. Eric did not present any witnesses.

      Rimli testified on behalf of the Division as an expert in child abuse and

neglect. Prior to her testimony, defense counsel conducted a voir dire regarding

Rimli's qualifications to testify as an expert. After counsel's voir dire, the judge

admitted Rimli as an expert in the field of child abuse and neglect.

      As part of its proofs, the Division also sought to admit Ben's video-

recorded forensic interview with Rivera.       The interview was conducted in

English and therefore had to be translated into Spanish for Eric to understand

the import of the evidence. However, the court interpreter at the fact-finding


                                                                           A-5400-17T2
                                         6
hearing explained she was not permitted to interpret a video played during the

hearing. The judge then asked the Division's attorney if there was a transcript

of the video and counsel advised no transcript existed.

      The judge explained Eric's due process rights required that he understand

everything said during the videotaped interview to present a defense. Eric's

attorney objected to the admission of the videotaped interview if the court

interpreter was unable provide a simultaneous Spanish translation.

      Thereafter, the court interpreter confirmed interpreters were not allowed

to transcribe videotaped testimony. The judge then required the Division to

transcribe the videotaped forensic interview over defense counsel's objection to

any delay of the fact-finding hearing. The judge instructed the Division to

obtain a transcript of Ben's forensic interview in Spanish within twenty days and

adjourned the trial.

      When the parties returned to court for the continued fact-finding hearing

on April 27, 2017, the judge asked counsel if there were any unresolved issues

before the forensic interviewer testified. Neither counsel raised any issues and

the Division moved the videotaped interview into evidence without objection.

      At the conclusion of the hearing, on May 12, 2017, the judge provided a

detailed oral decision. He summarized the evidence presented and addressed


                                                                        A-5400-17T2
                                       7
defense counsel's objections to various evidence.        Specifically, the judge

allowed both the initial investigation summary and the final investigation

summary to be admitted into evidence because Eric's counsel had ample time

during the trial recess to address the findings in the final investigation summary.

      The judge found Rimli's testimony credible because "[s]he was

straightforward with her answers, she made eye contact, she was not defensive,

admitted when she had not reviewed something," and "did not try to embellish

[Ben's] symptoms."     He deemed Rimli's expert opinions presented "a fair

approach to information provided during cross-examination and a fair analysis

of that information. She reached her conclusions based on all of the information

and [indicated] that one inconsistency in the midst of all that information would

not change her opinion."

      The judge also found Ben's statements regarding Eric's sexual abuse were

corroborated by Rimli's testimony According to Rimli, Ben "exhibited signs of

trauma," such as "feeling sad about the sexual abuse, not wanting to talk about

the sexual abuse . . . , and [becoming] tearful and sad when speaking of the

impact of the sexual abuse [on] the relationship with his father, which he

described as good."     In fact, the judge found Ben's statements about his

relationship with his father "is a legitimate manner for a child of that age to


                                                                          A-5400-17T2
                                        8
describe his emotions and by offering examples of when he also feels that way

offers [Ben] credibility."

      Regarding Rivera, who conducted the videotaped forensic interview, the

judge found her testimony credible because she "did not ask leading or

suggestive . . . questions" of Ben during the interview. In addition, the judge

determined Rivera "fully explained her interview technique" during the hearing.

      In reviewing the testimony of James, the Division's investigator, the judge

found her testimony credible because "[s]he was direct in her answers" and

"made eye contact with her questioners." The judge also noted James "admitted

information [that] was not helpful to" the Division, including Ben's initial denial

that his father touched him inappropriately. The judge explained he gave no

weight to James' testimony regarding information not included in her report and

did not rely on the Division's conflicting investigative reports.

      The judge then set forth his factual findings and legal conclusions,

determining the Division "sustained its burden by a preponderance of the

evidence that [Eric] sexually abused [Ben] in contravention of the statute." The

judge explained Eric's "actions amounted to efforts to coerce [Ben] to engage in

sexually explicit conduct," N.J.S.A. 9:6-8.84(a); constituted molestation of Ben

by accosting him "in a hostile and aggressive manner," N.J.S.A. 9:6-8.84(b); and


                                                                          A-5400-17T2
                                        9
amounted to sexual contact "defined as an intentional touching by the victim or

actor either directly or through clothing of the victim's or actors' intimate parts

for the purpose of degrading or humiliating the victim or sexually arousing or

gratifying the actor," N.J.S.A. 9:6-8.84(c).

      As to Ben's mother, the judge found Cathy failed to provide proper

supervision of Ben and exposed him to further risk for sexual abuse.

      In a May 12, 2017 fact-finding order, the judge concluded the Division

proved by a preponderance of the evidence that Eric and Cathy abused or

neglected Ben. He also scheduled future compliance review hearings to ensure

Ben's parents complied with the court-ordered service.

      In a June 13, 2018 order, the judge terminated the litigation because the

"conditions [had] been remediated." Eric and Cathy were awarded joint legal

custody of Ben, with Cathy continuing to have physical custody of Ben.

      On appeal, Eric raises the following arguments:

                                     I.

            TRIAL COUNSEL DID NOT PROVIDE ADEQUATE
            LEGAL REPRESENTATION TO [ERIC] WHEN
            COUNSEL FAILED TO OFFER EVIDENCE IN
            [ERIC]'S DEFENSE ALTHOUGH THE RECORD
            REFLECTS EXCULPATORY EVIDENCE EXISTED
            AT THE TIME OF THE FACT-FINDING (Not Raised
            Below)


                                                                          A-5400-17T2
                                          10
                                    II.

            TRIAL COUNSEL DID NOT PROVIDE ADEQUATE
            LEGAL REPRESENTATION TO [ERIC] WHEN
            COUNSEL       STIPULATED      TO     THE
            QUALIFICATION[S] OF DAISY RIMLI, LCSW, AS
            AN EXPERT IN THE AREA OF CHILD ABUSE AND
            NEGLECT (Not Raised Below).

                                    III.

            TRIAL COUNSEL DID NOT PROVIDE ADEQUATE
            LEGAL REPRESENTATION TO [ERIC] WHEN
            COUNSEL DID NOT REQUEST A [RULE] 104
            HEARING        TO   CHALLENGE      THE
            TRUSTWORTHINESS OF THE TESTIMONY OF
            ADMINISTRATIVE ASSISTANT AND FORENSIC
            INTERVIEWER JOCELYN RIVERA AND THE
            VIDEOTAPED INTERVIEW OF THE CHILD (Not
            Raised Below).

                                    IV.

            THE RECORD IS DEVOID OF CONFIRMATION
            THAT THE VIDEOTAPED CHILD INTERVIEW
            WAS [INTERPRETED] OR TRANSLATED FOR
            [ERIC]  IN  ACCORDANCE          WITH    A.O.C.
            DIRECTIVE NO. 01-17 (Not Raised Below).

                                    V.

            THERE IS INSUFFICIENT EVIDENCE TO
            SUPPORT A FINDING OF ABUSE OR NEGLECT
            UNDER N.J.S.A. 9:6-8.21.

      We defer to the Family Court's fact-finding because of the court's "special

expertise" in family matters and its "superior ability to gauge the credibility of

                                                                         A-5400-17T2
                                          11
the witnesses who testify before it." N.J. Div. of Youth & Family Servs. v. F.M.,

211 N.J. 420, 448 (2012). Our review of a court's factual findings in an abuse

and neglect case is strictly limited to determining whether those findings are

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

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

2002).

      Parents charged with civil abuse and neglect in Title Nine cases have a

constitutional right to counsel under Article I, paragraph 1 of the New Jersey

Constitution, and a statutory right under N.J.S.A. 9:6-8.43(a). N.J. Div. of Child

Prot. & Permanency v. G.S., 447 N.J. Super. 539, 555 (App. Div. 2016). In

determining effectiveness of a parent's attorney in cases filed by the Division,

we apply the two-part test set forth in Strickland v. Washington, 466 U.S. 668,

694 (1984) and adopted by the New Jersey Supreme Court in State v. Fritz, 105

N.J. 42, 58 (1987). See N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J.

301, 307 (2007). To succeed on a claim of inadequate legal representation, a

parent must demonstrate: (1) counsel's performance was objectively deficient;

and (2) the deficient performance prejudiced the defense such that results of the

proceeding would have been different. G.S., 447 N.J. Super. at 555 (citing

Strickland, 466 U.S. at 687).


                                                                         A-5400-17T2
                                       12
      We review a court's evidentiary rulings under an abuse of discretion

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

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

reverse discretionary determinations on the admissibility of evidence only

"when the trial judge's ruling was 'so wide of the mark that a manifest denial of

justice resulted.'" N.J. Div. of Youth & Family Servs. v. M.G., 427 N.J. Super.

154, 172 (App. Div. 2012) (quoting State v. Carter, 91 N.J. 86, 106 (1982)).

      We first consider Eric's argument that his counsel failed to provide him

adequate legal representation in three instances: counsel's failure to offer

exculpatory evidence; counsel's stipulation to Rimli's qualifications; and

counsel's failure to request a N.J.R.E. 104 hearing regarding Rivera's testimony.

      Eric argues his trial counsel failed to present exculpatory evidence at the

fact-finding hearing because his attorney did not call the investigator who took

the statement in which Ben denied any abuse by his father as a witness for the

defense. Based on our review of the hearing transcripts, this issue was raised

and highlighted several times during the trial. In rendering his decision, the

judge considered Ben's initial denial of abuse by his father. Because the judge

considered Ben's initial statement, defense counsel did not need to present the

testimony of that witness.


                                                                        A-5400-17T2
                                      13
      Nor was defense counsel's decision to forego having Eric's treating

therapist testify evidence of inadequate legal representation.      The therapist

treated Eric after the abuse was discovered. Therefore, the witness could only

offer testimony as to his present opinion regarding Eric's therapeutic progress

and not past behaviors.

      Eric next argues his trial attorney failed to challenge the qualifications of

Daisy Rimli as an expert witness. The record fails to support Eric's contention.

Based on the transcript, Eric's attorney conducted voir dire of Rimli prior to the

judge qualifying her as an expert witness. Counsel examined Rimli on the type

and number of evaluations she performed in her career as well as the number of

times she testified in court as an expert witness. Eric failed to suggest how

further questioning of Rimli's qualifications or her educational background

would have resulted in a more favorable outcome. To the contrary, it is likely

Eric's attorney was aware that further exploration of Rimli's qualifications

through extensive voir dire questioning would strengthen her credibility as an

expert, which would have been detrimental to Eric's defense.

      We next consider Eric's claim that his trial counsel should have requested

an N.J.R.E. 104 hearing prior to the testimony of Jocelyn Rivera, the forensic

interviewer. According to Eric, if a N.J.R.E. 104 hearing had been conducted,


                                                                          A-5400-17T2
                                       14
the evidence "would . . . not have withstood the scrutiny of credible evidence

based upon the sparse credentials of the interviewer and the inability to make

credibility determinations of the child based on the disqualification of the

interviewer." However, a N.J.R.E. 104 hearing was not required because Rivera

did not testify as an expert witness for the Division. Rivera, in her capacity as

a fact witness, provided the foundation for admission of Ben's video recorded

forensic interview.

      The manner in which an attorney addresses evidence and witnesses

presented to the court is a matter of trial strategy and cannot form the basis for

a claim of inadequate legal representation. See State v. Arthur, 184 N.J. 307,

320-21 (2005); N.J. Div. of Youth & Family Servs. v. B.H., 391 N.J. Super. 322,

347-48, 351 (App. Div. 2007). Eric's attorney vigorously cross-examined the

Division's witnesses. In addition, defense counsel made timely objections to

evidence she believed to be improper. Having reviewed the record, we are

satisfied Eric's attorney provided more than adequate legal representation. Even

if counsel's performance was inadequate, Eric failed to demonstrate how his

attorney's inadequacies prejudiced his defense.

      We next consider Eric's argument that his right to due process was violated

because there was no Spanish transcript of Ben's videotaped forensic interview.


                                                                         A-5400-17T2
                                       15
Here, the judge required the Division to ensure Eric's rights were protected by

recessing the trial and instructing the Division to provide a Spanish transcript of

the interview within twenty days. When the fact-finding hearing resumed, the

judge asked if the parties had any outstanding issues prior to Rivera, the

interviewer, testifying. Neither counsel advised the judge of any outstanding

issues. The Division moved the videotaped interview into evidence, and Eric's

attorney did not object.

      In a November 21, 2019 order, we allowed the Division to supplement the

record on appeal in response to Eric's argument that the "record is devoid of

confirmation that the videotaped child interview was interpreted or translated

for the father in accordance with A.O.C. Directive No. 01-17." In lieu of

providing a transcript of the interview in Spanish, the Division's attorney sent

an email to all counsel confirming a copy of the videotape would be provided to

the court interpreter's unit in advance of the continued hearing, the interpreter

would preview the videotape, and the interpreter would then interpret the

videotape in real time when the parties returned to court. Because all counsel

agreed to this procedure, there was no objection to playing the videotaped

forensic interview during the fact-finding hearing. We are satisfied Eric's due

process rights were not violated because he had the benefit of a simultaneous


                                                                          A-5400-17T2
                                       16
interpretation of the forensic interview, in Spanish, when the videotape was

played in court.

      We turn to Eric's claim that the evidence was insufficient to support a

finding of abuse or neglect under N.J.S.A. 9:6-8.21. We disagree.

      The Division is required to demonstrate by a preponderance of the

evidence that Ben was abused or neglected as defined within Title 9. See

N.J.S.A. 9:6-8.46(b). When a parent "commits or allows to be committed an act

of sexual abuse against the child," a finding of abuse or neglect may be entered.

N.J.S.A. 9:6-8.21(c)(3).

      In cases involving child abuse and neglect, hearsay statements by children

regarding the abuse and neglect are permitted provided the statements are

corroborated. N.J.S.A. 9:6-8.46(a)(4). The corroborating evidence need only

support the child's out-of-court statements, either by direct or circumstantial

evidence, and does not need to be unassailable or conclusive. N.J. Div. of Child

Prot. & Permanency v. N.B., 452 N.J. Super. 513, 521-22 (App. Div. 2017). The

corroborating evidence "need not relate directly to the alleged abuser" because

such evidence is extremely rare in a child abuse case. Z.P.R., 351 N.J. Super.

at 436.   We have held corroborating evidence includes "a child victim's




                                                                        A-5400-17T2
                                      17
precocious knowledge of sexual activity." Ibid. (quoting State v. Swan, 790

P.2d 610, 615-16 (1990)).

       Eric argues there is no corroborating evidence of Ben's statements in this

case. We are satisfied Ben's statements of sexual abuse by his father were

sufficiently corroborated. When Cathy saw Ben pull on his penis, Ben reported

that was what Eric did to him. Ben was six years old at the time he reported his

father's behavior to Cathy, and the judge deemed Ben's statement was evidence

of age-inappropriate sexual behavior sufficient to corroborate the allegations of

sexual abuse. In addition, Ben described to the forensic interviewer exactly how

Eric pulled his penis and the locations where the abuse occurred. The judge also

found Rimli's testimony, based on her psychosocial evaluation of Ben, amply

corroborated Ben's statements to support a finding that Eric sexually abused his

son.

       The Family Part judge rendered a detailed decision from the bench setting

forth the facts and the applicable law.      He summarized the documentary

evidence and testimony presented at the hearing. He set forth the weight he

assessed to each item of evidence considered. He also made detailed credibility

findings as to each witness. The judge's reasons were thoughtful and complete

and warrant our deference.      In sum, the Family Part judge appropriately


                                                                        A-5400-17T2
                                       18
evaluated the evidence presented, made findings of fact supported by the

credible evidence in the record, and correctly applied controlling law. Given

our own review of the record and the deferential standard with which we

undertake that review, we discern no basis to overturn the judge's finding that

Eric abused or neglected his son.

      Affirmed.




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                                     19
