Dcpp v. M.B., C.A.M., and A.M., in the Matter of R.M., S.M., and A.M. ( 2024 )

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NOT FOR PUBLICATION WITHOUT THE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-2020-22
NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,
Plaintiff-Respondent,
v.
M.B. and A.M.,
Defendants,
and
C.A.M.,
Defendant-Appellant.
_________________________
IN THE MATTER OF R.M.,
S.M., and A.M., minors.
_________________________
Submitted June 4, 2024 – Decided July 1, 2024
Before Judges Smith and Perez Friscia.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FN-07-0103-22.
Jennifer Nicole Sellitti, Public Defender, attorney for
appellant (David A. Gies, Designated Counsel, on the
briefs).
Matthew J. Platkin, Attorney General, attorney for
respondent (Sookie Bae-Park, Assistant Attorney
General, of counsel; Renee Greenberg, Deputy
Attorney General, on the brief).
Jennifer Nicole Sellitti, Public Defender, Law
Guardian, attorney for minors (David B. Valentin,
Assistant Deputy Public Defender, on the brief).
PER CURIAM
Defendant, C.A.M. 1 (Caden or defendant) appeals from an August 10,
2022 order of the Family Part finding he abused and neglected his stepdaughter
S.M. (Stella). We affirm for the following reasons.
I.
M.B. (Maisie) is the mother of Stella, R.M. (Rhys), and A.M. (Aimee).
Maisie began a relationship with Caden, the father of Aimee, in 2018. Maisie's
former boyfriend A.M. (Albert), who is the father of Stella and Rhys, resided in
1
We use initials and fictitious names for the parents and children to protect
their privacy and the confidentiality of the record. R. 1:38-3(d)(12).
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Florida.2 Maisie, Caden, and the three children lived together in an apartment
in Newark.
On September 29, 2021, Maisie reported to police that Caden hit her, and
the police made a referral to the Division of Child Protection and Permanency
(DCPP) because Maisie reported Aimee witnessed the assault. Maisie and the
children went to stay with her sister in Jersey City. Aminah Ahmad, a DCPP
caseworker, visited the family the following day to begin the Division's
investigation. During the visit, Maisie told the caseworker that her mother
(Stella's maternal grandmother) and sister (Stella's maternal aunt) told her that
Stella, who was seven years old, 3 disclosed Caden had been sexually assaulting
her. Maisie reported that Stella told the maternal grandmother and aunt Caden
"puts his private on her while he touches his private part and makes her sit on
his lap."
The caseworker then interviewed Stella privately, who reported Caden
wakes her up at night and brings her to the bathroom, and that he started waking
her up "in the summer." When asked what happens when she goes into the
2
No findings were made against Maise or A.M. and they are not parties to this
appeal.
3
Stella was born in December 2013.
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bathroom with Caden, Stella answered that he makes her watch "nasty" stuff on
his phone, and makes her undress, sit on his private part and he "moves up and
down." Stella added that "it hurts" because "his private part goes in a little bit."
That night, Maisie reported the assault to police, stating that Stella told the
maternal grandmother Caden started assaulting her in September 2020 and
continued until "the summertime." Stella was not taken to a hospital for
examination.
DCPP's next in-home visit was November 10, 2021, during which the
caseworker observed the children playing together and both Stella and Rhys
reported they felt safe in their mother's care. When asked about Stella's
behavior, Maisie reported that she has been fine but has an addiction problem
with using her cell phone and playing mobile games that is causing issues with
school and sleep.
DCPP conducted another home-visit on December 9, 2021, by which time
Maisie had moved with the children back to Newark to an apartment next door
to Caden, although Maisie said she was looking for a new home. Maisie told
the caseworker that Stella recanted her allegations. The caseworker interviewed
Stella in private, and when asked if she remembered the conversation they had
she replied "yes, he didn’t do anything to me, we didn't live with him." Stella
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could not answer why she told the caseworker the story she did, and when asked
if someone told her to say that Caden didn't do what she reported he did, she did
not respond. The caseworker also interviewed Maisie, who said she had been in
contact with Caden, who lived next door. Maisie told the caseworker that Caden
understood that he couldn't see or speak to the children.
When caseworkers visited on February 9, 2022, Maisie said she had been
in contact with Caden and admitted Caden had contact with Aimee but denied
that he had any contact with Stella. Maisie also stated that she was waiting to
schedule a forensic video interview (FVI) with Stella, which the police
eventually scheduled for February 17, 2022 at the Essex County Prosecutor's
Office.
On February 16, 2022, a social worker at Stella's school made a referral
to DCPP, reporting that Stella told a teacher her whole body hurt, and that her
stepdad has been having sex with her every day. Stella also stated Caden had
been putting his hands down her pants while her mom was sleeping. Stella told
the teacher her mom knows and "is taking [her] to the police station tomorrow
to say it never happen[ed]." A caseworker responded to the school to interview
Stella. Stella said she knew the caseworker was there because "her 'daddy'
touches her in her privates and that it happens every day."
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When asked what was happening the next day, Stella said her mother was
taking her to talk to the police. She then said that her mother told her to say
nothing happened, because if she talked, she would end up in foster care and not
see her brother or sister again. Stella also said her mother promised her
"Robux"4 if she told the police nothing happened. When interviewed by
caseworkers, Maisie denied threatening Stella with foster care, but did admit she
told Stella "Tomorrow is a big day," and not to tell people their family business.
The following day, Stella was interviewed by investigators at the Essex
County Prosecutor's Office. During the FVI, Stella stated that Caden touched
her genitals with his hands as he took off her clothes while her family was asleep.
She also reported that Caden licked her genitals in the kitchen of the apartment.
She further disclosed Caden made her sit on his genitals while he sat on the
bathtub in the bathroom and that his private part went inside her. When asked,
Stella described Caden's penis as "hard." She stated that he made her sit on his
penis until he was "finished." When asked what finished meant, Stella said she
didn't know, but said that there was yellow, sticky stuff that got on her hand,
and she did not like it.
4
Robux is the virtual currency used in the online gaming platform "Roblox."
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On February 23, 2022, DCPP initiated a child-protection action under
N.J.S.A. 9:6-8:21 and N.J.S.A. 30:4C-12 seeking care and supervision of the
three children.
On March 1, 2022, Stella was evaluated by licensed psychologist Diane
E. Snyder, Ph.D. Prior to her evaluation, Dr. Snyder viewed Stella's FVI,
interviewed the DCPP caseworker, and reviewed the division's records. At the
outset of the evaluation, Dr. Snyder established that Stella knew the difference
between a truth and a lie and asked her if she agreed to tell the truth. Stella did
not agree, and Dr. Snyder understood her response to mean that there were
certain things that Stella would not talk about, and not that Stella would be
untruthful about the things she would talk about.
Dr. Snyder observed Stella as "a listless, possibly depressed child, who
spoke in a low tone." Stella told Dr. Snyder that Caden touched her private part
with his hand "a lot . . . 100 days" and that he touched her genital area with his
"part" "a lot of times . . . 100 times." Stella described Caden sitting on the edge
of the bathtub naked and Stella on his lap, face to face. Stella explained, "I was
looking at the bathtub," clarifying that she did not look at Caden. Stella stated
that Caden would make her touch his penis. Stella said that these incidents took
place in the bathroom at night when her mother was asleep. When asked about
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exposure to sexually explicit material, Stella confirmed, "Dad showed me a lot."
Stella told Dr. Snyder that Caden's penis went inside her and that a white liquid
would come out of his penis.
Dr. Snyder asked a series of questions to assess whether Stella was
experiencing any problem behaviors. Stella said that she worries about herself
but couldn't articulate what she was worried about. Stella reported it takes her
"20 hours" to fall asleep, and that she experiences recurrent intrusive thoughts
regarding the sexual abuse multiple times per day, every day. Dr. Snyder's
report indicated that due to Maisie's current non-support of the abuse allegations,
Stella was at risk of recantation. Dr. Snyder's report concluded with a diagnosis
of post-traumatic stress disorder.
A Title Nine hearing was held on August 10, 2022. The parties stipulated
to the authenticity of the FVI and agreed to watch it outside the courtroom. Dr.
Snyder testified as an expert in psychology and child abuse and neglect for the
Division. Dr. Snyder testified consistent with her report and recounted the
allegations Stella described. In regard to Stella's indication that she was not
willing to tell the truth about some things, Dr. Snyder testified that she regularly
asked Stella throughout the evaluation whether what she was saying was a true
or a lie. Twice Stella responded that a topic was something she was not willing
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to talk about: whether her mother or stepfather drinks alcohol, and whether there
were other bad things that happened to her. When asked about the allegations
she previously made, Dr. Snyder testified Stella indicated that she would
truthfully report "some things" but would not report everything he did to her.
In regard to Stella's comments that the abuse happened "a lot, 100 times"
and whether that was exaggeration, Dr. Snyder testified that it was her opinion
this was "child speak," which is common when children want to express
something happens a lot: "it's a gazillion times, it's a hundred billion times, it's
a lot. It's every day. It's a thousand times a day." Dr. Snyder testified that in her
opinion, using this language would not cause her to think it was an unreliable
statement.
Dr. Snyder also testified that Stella’s knowledge of sexual details was
precocious for an eight-year-old. Dr. Snyder testified that "her described
experience and [during] her FVI . . . she's having an a-typical experience for an
[eight]-year-old. She had ejaculate on her hand and she's saying I had to get [it
off my hand]." Dr. Snyder further testified that describing the penis as hard
would not be common knowledge for a child.
Aminah Ahmad, the DCPP caseworker assigned to Stella's case, also
testified. She testified about Stella’s September 2021 and February 2022
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disclosures of sexual abuse by Caden. She testified that Stella reported that her
mother warned if she said something happened "DYFS would take her away and
that if she [did not] she will give her Robux."
Following the hearing, the court found DCPP showed by a preponderance
of the evidence that Stella was abused or neglected. The court found Stella's
out-of-court statements regarding sexual abuse were corroborated by: the expert
opinion and diagnosis of post-traumatic stress disorder (PTSD) by Dr. Snyder;
her consistent statements made to multiple sources; and the precocious sexual
knowledge exhibited when describing the abuse. Specifically, the court found
that Stella’s descriptions of oral sex, Caden’s penis being hard, and "the color
[and] the texture of the ejaculate" was precocious knowledge an eight-year-old
would otherwise not know. The court also credited the testimony of Dr. Snyder
and her diagnosis of PTSD.
Defendant raises the following points on appeal:
I. THE FAMILY PART JUDGE'S DETERMINATION
THAT THE EIGHT-YEAR OLD'S OUT-OF-COURT
STATEMENTS WERE CORROBORATED IS NOT
SUPPORTED BY THE RECORD.
A. The eight-year-old's unreliable out-of-
court statements do not corroborate her
sexual abuse allegations through either
consistency or precocious knowledge.
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B. The Family Part judge erred by relying
on the child abuse psychologist's expert
opinion that the eight-year-old suffered
from PTSD as corroboration of the
child's out-of-court statements.
II.
A.
"[W]e accord substantial deference and defer to the factual findings of the
Family Part if they are sustained by 'adequate, substantial, and credible evidence'
in the record." N.J. Div. of Child Prot. & Permanency v. N.B., 452 N.J. Super.
513, 521 (App. Div. 2017) (quoting N.J. Div. of Youth & Fam. Servs. v. R.G.,
217 N.J. 527, 552 (2014)). We ordinarily accord such deference because of the
Family Part's "special jurisdiction and expertise," N.J. Div. of Youth & Fam.
Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (quoting Cesare v. Cesare, 154 N.J.
394, 413 (1998)), and its "opportunity to make first-hand credibility judgments
about the witnesses . . . [and have] a 'feel of the case' that can never be realized
by a review of the cold record," N.J. Div. of Youth & Fam. Servs. v. E.P., 196
N.J. 88, 104 (2008) (quoting N.J. Div. of Youth & Fam. Servs. v. M.M., 189
N.J. 261, 293 (2007)).
"Nevertheless, if the trial court's conclusions are 'clearly mistaken or wide
of the mark,' an appellate court must intervene to ensure the fairness of the
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proceeding." N.J. Div. of Youth & Fam. Servs. v. L.L., 201 N.J. 210, 226-27
(2010) (alteration in original) (quoting E.P., 196 N.J. at 104). We owe no
deference to the trial court's legal conclusions, which we review de novo. N.J.
Div. of Child Prot. & Permanency v. A.B., 231 N.J. 354, 369 (2017).
B.
Under N.J.S.A. 9:6-8.21(c), an abused or neglected child is one whose
parent or guardian:
(3) commits or allows to be committed an act of sexual
abuse against the child; (4) or 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 . . . (b) in providing the child
with proper supervision or guardianship, by
unreasonably inflicting or allowing to be inflicted
harm, or substantial risk thereof . . . .
"Abuse and neglect cases 'are fact-sensitive.'" N.J. Div. of Child Prot. &
Permanency v. E.D.-O., 223 N.J. 166, 180 (2015) (quoting N.J. Div. of Youth
& Fam. Servs. v. T.B., 207 N.J. 294, 309 (2011)). "The Division bears the
burden of proof at a fact-finding hearing . . . ." N.J. Div. of Youth & Fam. Servs.
v. A.L., 213 N.J. 1, 22 (2013) (citing N.J.S.A. 9:6-8.46(b)). To prevail in a Title
Nine proceeding, DCPP must show by a preponderance of the "competent,
material and relevant evidence" that the parent or guardian abused or neglected
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the affected child. N.J.S.A. 9:6-8.46(b); accord N.J. Div. of Youth & Fam.
Servs. v. P.W.R., 205 N.J. 17, 32 (2011) (quoting N.J.S.A. 9:6-8.46(b)). There
must be "proof of actual harm or, in the absence of actual harm," through
"competent evidence adequate to establish [the child was] presently in imminent
danger of being impaired physically, mentally or emotionally." N.J. Div. of
Youth & Fam. Servs. v. S.I., 437 N.J. Super. 142, 158 (App. Div. 2014) (citation
omitted).
N.J.S.A. 9:6-8.46(a)(4) 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." "A child's statement need
only be corroborated by '[s]ome direct or circumstantial evidence beyond the
child's statement itself.'" N.J. Div. of Child Prot. & Permanency v. A.D., 455
N.J. Super. 144, 156 (App. Div. 2018) (quoting N.B., 452 N.J. Super. at 522).
"The most effective types of corroborative evidence may be eyewitness
testimony, a confession, an admission or medical or scientific evidence." Ibid.
(quoting N.J. Div. of Youth & Fam. Servs. v. L.A., 357 N.J. Super. 155, 166
(App. Div. 2003)). Such indirect evidence has included "a child victim's
precocious knowledge of sexual activity, a semen stain on a child's blanket, a
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child's nightmares and psychological evidence." N.J. Div. of Child Prot. &
Permanency v. I.B., 441 N.J. Super. 585, 591 (App. Div. 2015) (quoting N.J.
Div. of Youth & Fam. Servs. v. Z.P.R., 351 N.J. Super. 427, 435 (App. Div.
2002)). Evidence of "age-inappropriate sexual behavior" can also provide the
necessary corroboration required under N.J.S.A. 9:6-8.46(a)(4). Z.P.R., 351
N.J. Super. at 436.
III.
Defendant argues the court's finding of abuse and neglect is not supported
by the record because Stella's allegations were not sufficiently corroborated.
Defendant argues: Stella's out-of-court statements were unreliable and
inconsistent because she recanted her allegations; Stella did not agree to tell the
truth in her evaluation with Dr. Snyder; Stella's allegations are inconsistent
because she did not inform any source other than the FVI interviewer that Caden
engaged in oral sex with her; the conclusion Stella's sexual knowledge was
precocious is problematic because she had access to the internet and could have
viewed sexual material on her cell phone; and Dr, Snyder's report was not
reliable. We are unpersuaded.
Stella's out-of-court statements consistently described sexual abuse by
Caden. Stella made several out-of-court statements, first disclosing abuse to her
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family and the DCPP caseworker in September 2021. Stella next reported
allegations to school staff and a DCPP caseworker in February 2022. Stella then
subsequently reported abuse in her February 2022 FVI and March 2022
evaluation with Dr. Snyder. Each time, Stella reported Caden would take her
into the bathroom, pull down her pants, touch her genitals, and make her sit on
his lap. Stella's disclosure of an additional detail regarding oral sex to Dr.
Snyder does not render her allegations inconsistent.
Additionally, defendant's assertion that Stella's statements to Dr. Snyder
are unreliable because Stella would not agree to be truthful mischaracterizes Dr.
Snyder's report and testimony. Dr. Snyder indicated that she understood Stella
to mean that she would not disclose everything that had happened but would
truthfully discuss topics she was willing to talk about. Dr. Snyder addressed
this by frequently checking with Stella to see if she was being truthful. Notably,
this understanding of Stella's comments is supported by her refusal to talk about
certain subjects such as her parents' alcohol usage and other bad things that may
have happened.
Similarly, defendant's argument that Stella's statements are unreliable
because she recanted is unpersuasive. DCPP's investigation first revealed that
Maisie reported that Stella had recanted, and when asked Stella responded "yes,
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he didn't do anything to me, we didn't live with him" but would not respond to
follow up questions. However, Stella later re-alleged the same abuse to her
teacher, the prosecutor's office, and Dr. Snyder. Additionally, Dr. Snyder's
report noted that Stella was at risk of recantation due to Maisie's lack of support
of her allegations. Most notably, Stella told DCPP staff that Maisie told her if
she said Caden abused she would be placed in foster care, while if she did not,
she would be given Robux. Indeed, Maisie admitted telling Stella not to tell
others "family business." The trial court's finding that Stella did not recant is
supported by the record.
The record also supports the trial court's finding that Stella's out-of-court
statements were sufficiently corroborated. First, Stella's statements included
detailed descriptions of abuse and precocious sexual knowledge that are a-
typical for an eight-year-old. See Z.P.R., 351 N.J. Super. at 436 ("[W]e have no
doubt that evidence of age-inappropriate sexual behavior could provide the
necessary corroboration required by N.J.S.A. 9:6–8.46a(4)."). The court's
finding that Stella's sexual knowledge—which included description of the color
and texture of ejaculate, how his penis felt hard, and a description of oral sex —
was beyond that of a typical eight-year-old is supported by the record.
Defendant's argument that Stella could have been exposed to sexual content on
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the internet is mere speculation, and defendant has not offered any evidence that
Stella was viewing such material on her own.
Second, the court properly relied on the unrebutted expert report and
testimony of Dr. Snyder. The court's determination finding Dr. Snyder's
testimony credible is entitled to substantial deference. See E.P., 196 N.J. at 104
(2008) (quoting M.M., 189 N.J. at, 293). Dr. Snyder's opinion included a
diagnosis of PTSD based on: an allegation of sexual violence; recurrent
intrusive thoughts; sleep disturbances; and an observed cognitive or mood
disturbance. See I.B., 441 N.J. Super. at 591 (quoting Z.P.R., 351 N.J. Super.
at 435). While defendant argues that the diagnosis of PTSD did not consider the
"other things" Stella did not wish to talk about, her report did clearly indicate
that her recurrent intrusive thoughts involved "all the things (sex abuse) he
([Caden]) did."
Stella's out-of-court statements, corroborated by her precocious
knowledge and Dr. Snyder's expert opinion, sufficiently established abuse and
neglect by a preponderance of the evidence.
Affirmed.
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