DCPP VS. A.D, D.H. AND D.C. IN THE MATTER OF N.D., DI.C., DIA.C, L.C. AND A.C. (FN-07-0365-15, ESSEX COUNTY AND STATEWIDE)(RECORD IMPOUNDED) , 455 N.J. Super. 144 ( 2018 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3127-15T3
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v. APPROVED FOR PUBLICATION
June 11, 2018
A.D. and D.H.,
APPELLATE DIVISION
Defendants,
and
D.C.,
Defendant-Appellant.
______________________________________
IN THE MATTER OF N.D., DI.C., DIA.C.,
L.C. and A.C., Minors.
______________________________________
Submitted December 18, 2017 – Decided June 11, 2018
Before Judges Messano, Accurso and Vernoia.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex
County, Docket No. FN-07-0365-15.
Joseph E. Krakora, Public Defender, attorney
for appellant (Thomas G. Hand, Designated
Counsel, on the briefs).
Christopher S. Porrino, Attorney General,
attorney for respondent (Andrea M.
Silkowitz, Assistant Attorney General, of
counsel; Sheena M. Rinkle, Deputy Attorney
General, on the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor N.D. (Margo
E.K. Hirsch, Designated Counsel, on the
brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for the minors, DI.C.,
DIA.C., L.C. and A.C. (Melissa R. Vance,
Assistant Deputy Public Defender, on the
brief).
The opinion of the court was delivered by
VERNOIA, J.A.D.
Defendant, D.C., appeals from a Family Part order finding
he abused or neglected his fifteen-year-old stepdaughter, N.D.
(Nancy),1 by "comitt[ing] acts of sexual abuse against" her.
Because we conclude there was sufficient credible evidence in
the record supporting the court's factual findings and abuse or
neglect determination, we affirm.
I.
On February 12, 2015, the Division of Child Protection and
Permanency (Division) responded to a Newark Police Department
referral that defendant was arrested for sexually abusing Nancy.
Defendant is Nancy's stepfather, and father to DiA.C., born in
2002, Di.C., born in 2005, L.C., born in 2008, and A.C., born in
2011.
1
We employ initials and pseudonyms to protect the children's
privacy.
2 A-3127-15T3
Nancy reported to Newark police officers and the Division
that during the evening of February 7, 2015, defendant asked her
to check on him by text message because he was going out
drinking. She explained defendant left their home and she spoke
with him at approximately 4:00 a.m. the following morning when
he called her and asked if she was awake. Defendant then asked
Nancy to come downstairs so they could leave to get food. Nancy
agreed, got in defendant's vehicle when he arrived home, and
defendant then drove to a dark street. According to Nancy,
defendant parked the vehicle, kissed her on the lips and neck,
and forcibly inserted his finger into her vagina. Defendant
stopped when Nancy's mother, A.D., called him on the phone
asking where they were. Defendant then took Nancy to a fast
food restaurant, where he bought food for them.
Nancy further reported that on their way home, defendant
asked if she was angry with him, and that he felt "stupid" for
what he had done. Nancy said defendant had sexually abused her
since she was twelve years old. A.D. told the Division
caseworker that defendant confirmed he took Nancy with him to
purchase food on the night of the alleged sexual assault, but
denied ever sexually assaulting Nancy.
Nancy also reported prior instances of inappropriate sexual
contact with defendant. She stated defendant once "tested" her
3 A-3127-15T3
to see if she would do anything sexual with boys by touching her
on her thigh area close to her vagina and buttocks. She told
defendant to stop, and he told her she passed his "test." Nancy
reported that when she was a young child, defendant took her
clothes off while she was sleeping, but was interrupted when her
mother walked into the room. Nancy also reported that defendant
tried to hump her buttocks area when she was twelve while he was
intoxicated.
In his February 12, 2015 statements to Newark police and
the Division, defendant said he exchanged text messages with
Nancy on February 7, 2015, because "she would always check on
him if he [went] out to drink." Defendant admitted asking Nancy
to come downstairs and get into his car, and getting food with
her during the early hours of February 8, 2015. Defendant
confirmed he received a phone call from A.D. while they were
getting food, asking where they were. Defendant stated he told
A.D. that they were getting food, and returned home with Nancy
soon thereafter. Defendant denied ever touching Nancy
inappropriately.
Defendant admitted to taking Nancy "through a test about
boys." Defendant stated he only "talked her through
everything," and "never physically touched her." Defendant also
admitted he took Nancy's clothes off while she was sleeping when
4 A-3127-15T3
she was a young child, but did so because she fell asleep in
dirty clothes. Defendant denied humping Nancy's buttocks when
she was twelve.
In an interview conducted that same day, A.D. stated that
on February 8, 2015, at approximately 4:00 a.m., she noticed
defendant and Nancy were not home. She then called defendant at
approximately 4:30 a.m., and he said he called Nancy to come
downstairs and took her to get food. A.D. indicated that Nancy
and defendant then returned home.
Following her report on February 12, 2015, Nancy went to
the Newark Beth Israel Medical Center for a physical
examination, which revealed her hymen was not intact and she
suffered from pain and tenderness in her vaginal area. The
examining physician, Dr. Kereese Gayle, wrote in her notes that
her "clinical impression" was that Nancy had been sexually
assaulted and listed "sexual abuse of adolescent" as her
diagnosis.
On February 25, 2015, the Division filed a verified
complaint and order to show cause in the Law Division, seeking
the care and supervision of Nancy as well as defendant's four
biological children. The court granted the Division's request,
and ordered that defendant "remain out of the home," and "shall
5 A-3127-15T3
not have any contact with [the children] until further order of
the court."
On March 11, 2015, Nancy was admitted to the Newark Beth
Israel Medical Center's Children's Crisis Intervention Services
Unit (Crisis Unit) for a psychological evaluation. The
discharge summary described Dr. Lindsay Liotta's findings and
showed Nancy expressed feelings of suicide, anxiety and
depression. The discharge summary stated that Nancy had a
"history of being assaulted by [defendant]," the most recent
incident being two months prior to her admission in the Crisis
Unit. The discharge summary listed post-traumatic stress
disorder (PTSD) as a "diagnosis at discharge."
The court held a fact-finding hearing, but Dr. Gayle and
Dr. Liotta were not called to testify. Over defense counsel's
objection, the court admitted in evidence portions of Dr.
Gayle's report, including her diagnosis Nancy was sexually
assaulted, and Nancy's psychological records as "notes or
observations of the doctors," and rejected defendant's assertion
they included inadmissible complex diagnoses. After hearing
testimony from Division caseworker Wilmer Mendez and reviewing
Nancy's medical and psychological records, the court found the
Division established by a preponderance of the evidence that
defendant abused or neglected Nancy by "comitt[ing] acts of
6 A-3127-15T3
sexual abuse," and placed his four biological children at
significant risk of harm under N.J.S.A. 9:6-8.21(c).
In an oral decision, the court concluded Nancy's
allegations regarding the February 8, 2015 sexual assault were
corroborated, because defendant "corroborated . . . all of the
facts provided in [Nancy's] account of what occurred on the
subject night with the exception of the actual sexual assault."
The court also found Nancy "made consistent disclosures"
regarding the sexual assault, and determined it was "certainly
satisfied that [Nancy's] statement was corroborated, [and] . . .
credible."
The court placed particular emphasis on Dr. Gayle's
clinical finding that Nancy had been sexually assaulted, and
determined the Crisis Unit's discharge summary suggested that
Nancy "had not had" PTSD or become anxious and suicidal "prior
to these allegations of sexual abuse."
In its subsequent written decision, the court found
defendant abused or neglected Nancy by sexually assaulting her
on February 8, 2015, and sexually abusing her on prior
occasions. The court found defendant gave Nancy a "test" where
he rubbed her thigh close to her vagina. The court further
found defendant humped Nancy on a previous occasion, and took
her clothes off while she was sleeping. The court found
7 A-3127-15T3
defendant's admissions "sufficiently corroborate[d] [Nancy's]
statements."
The court concluded defendant's history of inappropriate
sexual conduct with Nancy placed all of the children "at
substantial risk of injury," as defendant "ha[d] not addressed
any sexual [deviance]." In its fact-finding order, the court
noted that defendant had "not admitted that this abuse occurred
or taken any steps to address the sexual abuse and mitigate the
risk of harm he poses to the other children which places the
children at significant risk of harm." The court ordered that
the children remain in the care and supervision of the Division,
and ordered defendant's placement on the Child Abuse Registry.
On February 22, 2016, after a series of compliance
hearings, the court entered an order terminating the abuse or
neglect proceedings by the consent of all parties, ordering that
defendant have no contact with Nancy, and that a prior order
requiring that defendant have no contact with his biological
children outside of Division supervision remain in effect. 2 This
appeal followed.
Defendant presents the following arguments for our
consideration:
2
Defendant was no longer living with A.D., Nancy, and his
biological children at the time the court entered its order
terminating the litigation.
8 A-3127-15T3
LEGAL ARGUMENT
THE TRIAL COURT ERRED IN FINDING THAT
[DEFENDANT] COMMITTED AN ACT OF ABUSE OR
NEGLECT AGAINST NANCY BECAUSE NO CREDIBLE
EVIDENCE WAS PROVIDED TO CORROBORATE NANCY'S
ALLEGATIONS UPON WHICH THE TRIAL COURT MADE
ITS FINDINGS.
A. The Trial Court Erred in Finding That
Nancy's Allegations Were Corroborated By
Multiple Re-Tellings To Different People And
By [Defendant's] Statements.
B. The Trial Court Erred . . . When It
Relied On Inadmissible Evidence In Making
Its Findings Of Fact.
II.
Defendant argues the court erred by finding abuse or
neglect based solely on Nancy's statements, which he contends
were not corroborated as required by N.J.S.A. 9:6-8.46(a)(4).
Defendant challenges the court's finding that Nancy's allegation
of sexual abuse was corroborated by her repetition of the
allegation, by his own statements to police and Division
caseworkers, and by medical and psychological reports introduced
into evidence at the fact-finding hearing.
We are guided by the well-established principle that "[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
9 A-3127-15T3
(App. Div. 2017) (quoting N.J. Div. of Youth & Family Servs. v.
R.G., 217 N.J. 527, 552 (2014)). This is "[b]ecause of the
family courts' special jurisdiction and expertise in family
matters." N.J. Div. of Youth & Family Servs. v. M.C. III, 201
N.J. 328, 343 (2010) (alteration in original) (quoting Cesare v.
Cesare, 154 N.J. 394, 413 (1998)).
"The Division bears the burden of proof at a fact-finding
hearing and must prove . . . harm . . . by a preponderance of
the evidence." N.J. Dep't of Children & Families, Div. of Youth
& Family Servs. v. A.L., 213 N.J. 1, 22 (2013). In satisfying
their burden, the Division's proofs must be "competent, material
and relevant." N.J.S.A. 9:6-8.46(b). A Family Court's
determination of whether the Division's proofs are admissible is
"left to the . . . court's discretion, and its decision is
reviewed under an abuse of discretion standard." N.J. Div. of
Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 571 (App.
Div. 2010).
We do not, however, accord the "same degree of deference"
to Family Court findings that are based on a "misunderstanding
of the applicable legal principles . . . ." N.J. Div. of Youth &
Family Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (App. Div.
2002) (citing Manalapan Realty, LP v. Twp. Comm. of Manalapan,
140 N.J. 366, 378 (1995)). We therefore review a trial court's
10 A-3127-15T3
legal conclusions de novo. State v. Smith, 212 N.J. 365, 387
(2012).
The trial court based its abuse or neglect finding in part
on Nancy's statement that defendant sexually assaulted her on
February 8, 2015. The court considered Dr. Gayle's medical
report, the Crisis Unit's discharge summary and defendant's own
statements as corroborative evidence of Nancy's statement
describing the sexual assault.
Because the trial court's rulings "essentially involved the
application of legal principles and did not turn upon contested
issues of witness credibility," we review the court's
corroboration determination de novo. See N.B., 452 N.J. Super.
at 521 (reviewing de novo the trial court's determination that a
child's statements were corroborated as required by N.J.S.A.
9:6-8.46(a)(4)).
Under N.J.S.A. 9:6-8.46(a)(4), "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." See N.J. Div. of Youth & Family
Servs. v. P.W.R., 205 N.J. 17, 32-33 (2011).
A child's statement need only be corroborated by "[s]ome
direct or circumstantial evidence beyond the child's statement
11 A-3127-15T3
itself." N.B., 452 N.J. Super. at 522. "The most effective
types of corroborative evidence may be eyewitness testimony, a
confession, an admission or medical or scientific evidence."
N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. at
155, 166 (App. Div. 2003). However, corroboration of child
sexual abuse does not have to 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 . . . ." Z.P.R., 351 N.J.
Super. at 435. Rather, corroborative evidence "need only
provide support" for the child's statements and may be
circumstantial. N.B., 452 N.J. Super. at 521. The evidence
must be independently admissible for a court to deem it
corroborative of a child's statement. See id. at 524-26
(finding evidence was insufficient to corroborate the child's
statement because it constituted inadmissible hearsay).
In N.B., we cautioned that "courts must protect against
conflating a statement's reliability with corroboration," id. at
522, and determined "consistency alone does not constitute
corroboration," id. at 523. We further noted that "in
assessing the trustworthiness of a child's hearsay statement
under N.J.R.E. 803(c)(27) . . . a court may consider . . .
12 A-3127-15T3
'consistency of repetition,'" but that determination is
"distinct from corroboration of the statement". Id. at 523 n4.
It is unclear whether the court relied on Nancy's
repetition and consistency of her account of the February 8,
2015 incident to find corroboration, or simply to assess her
credibility. In any event, the mere repetition and consistency
of Nancy's statements are insufficient to support a finding of
corroboration under N.J.S.A. 9:6-8.46(a)(4). Id. at 523. We
therefore consider whether defendant's statement, Dr. Gayle's
medical report and the Crisis Unit's discharge summary provide
the corroboration required under N.J.S.A. 9:6-8.46(a)(4).
Defendant argues the conclusions in the medical report and
the Crisis Unit's discharge summary could not have corroborated
Nancy's statement because they were inadmissible. Defendant
asserts Dr. Gayle's conclusion that Nancy was sexually assaulted
and Dr. Liotta's conclusion that Nancy suffered from PTSD as a
result of the assault constituted inadmissible statements of
complex diagnoses. We agree.
Medical reports created by Division consultants for
purposes of investigating allegations of abuse or neglect are
generally admissible in fact-finding hearings as business
records. N.J. Div. of Child Prot. & Permanency v. N.T., 445
N.J. Super. 478, 487 (App. Div. 2016); N.J.S.A. 9:6-8.46(a)(3).
13 A-3127-15T3
However, expert conclusions or diagnoses within such reports are
subject to a further admissibility determination under N.J.R.E.
808. N.J. Div. of Youth & Family Servs. v. M.G., 427 N.J.
Super. 154, 173 (App. Div. 2012); accord N.B., 452 N.J. Super.
at 525-26; see also N.T., 445 N.J. Super. at 487 (holding that
a non-testifying expert's "diagnoses and opinions in a Division
report are inadmissible hearsay, unless the trial court
specifically finds they are trustworthy under the criteria in
N.J.R.E. 808").
Under N.J.R.E. 808, a court may admit a non-testifying
expert's diagnosis and opinion if it finds "that the
circumstances involved in rendering the opinion, including the
motive, duty, and interest of the declarant, whether litigation
was contemplated by the declarant, the complexity of the subject
matter, and the likelihood of accuracy of the opinion, tend to
establish its trustworthiness." N.T., 445 N.J. Super. at 501.
"An expert medical opinion contained in a report is
generally inadmissible under [this] test because of the
complexity of the analysis involved in arriving at the opinion
and the consequent need for the other party to have an
opportunity to cross-examine the expert." Ibid. (citation
omitted); see also Konop v. Rosen, 425 N.J. Super. 391, 405
(App. Div. 2012) (citations omitted) (noting that "medical
14 A-3127-15T3
opinions in hospital records should not be admitted under the
business records exception where the opponent will be deprived
of an opportunity to cross-examine the declarant on a critical
issue such as the basis for the diagnosis or cause of the
condition in question").
In N.T., 445 N.J. Super. at 490, we applied the above
principles in determining whether the trial court erred by
admitting a non-testifying psychologist's evaluation diagnosing
the child with PTSD. We determined that although the
psychologist's factual observations were admissible, the
opinions and diagnoses contained in the evaluation were not.
Id. at 500. We concluded that psychological evaluations, like
medical opinions, "generally 'entail[] the exercise of
subjective judgment rather than a straightforward, simple
diagnosis based upon objective criteria or one upon which
reasonable professionals could not differ.'" Id. at 501
(alteration in original) (quoting M.G., 427 N.J. Super. at 174).
We further noted that an "evaluation of a mental state . . . is
among the most 'complex diagnoses.'" Ibid. (citation omitted).
In James v. Ruiz, 440 N.J. Super. 45, 72 (App. Div. 2015),
we determined the trial court erred in admitting a non-
testifying doctor's disputed conclusion that a CT-scan revealed
a "disc bulge." We noted that even though we had "no reason to
15 A-3127-15T3
believe that the 'motives, duties and interest[s]' of [the
doctor] were anything other than benign," id. at 72, his
conclusions were "sufficiently complex and controversial to
require them to be excluded" under N.J.R.E. 808, id. at 73.
Dr. Gayle's statement in the medical report that Nancy was
sexually assaulted was inadmissible because it is "sufficiently
complex and controversial," ibid., constitutes an opinion on "a
critical issue such as the . . . cause of the condition in
question," Rosen, 425 N.J. Super. at 405, and is based on Dr.
Gayle's "subjective judgment," N.T., 445 N.J. Super. at 500.
We find no basis to conclude that Dr. Gayle's conclusion was
based solely on objective criteria, or upon criteria "which
reasonable professionals could not differ." Id. at 501. It was
error for the trial court to admit and rely upon that portion of
Dr. Gayle's report containing her conclusion and diagnosis that
Nancy was sexually assaulted.
For the same reasons, the Crisis Unit's discharge summary
stating Nancy suffered from PTSD as a result of alleged sexual
abuse was inadmissible under N.J.R.E. 808. As we noted in N.T.,
"evaluation of a mental state . . . is among the most 'complex
diagnoses.'" Id. at 501; see also N.B., 452 N.J. Super. at 526
(holding that the trial court erred in admitting the
psychologist's PTSD diagnosis because PTSD "is a complex
16 A-3127-15T3
diagnosis given the disorder's definitions, which notably
include a wide variety of symptoms, and is not a monolithic
disease with a uniform structure that does not permit individual
variation").
We find no basis to depart from these principles, and
conclude the court erred in admitting the PTSD diagnosis without
testimony from Dr. Liotta regarding how she reached that
diagnosis. N.B., 452 N.J. Super. at 526. Thus, neither the
Crisis Unit's PTSD diagnosis nor Dr. Gayle's conclusion that
Nancy was sexually assaulted constituted admissible
corroborative evidence of Nancy's statement under N.J.S.A. 9:6-
8.46(a)(4). Ibid.
Because we conduct a de novo review of the court's
determination of whether there was sufficient corroboration to
permit reliance on Nancy's statements, we next consider whether
there was other admissible evidence supporting a finding of
corroboration under N.J.S.A. 9:6-8.46(a)(4). See id. at 521.
Based on our review of the record, we are convinced that
although the court erred by admitting Dr. Gayle's diagnosis that
Nancy was sexually assaulted, Dr. Gayle's factual and objective
findings that Nancy suffered from tenderness in her vaginal area
and her hymen was not intact provided "some" admissible
17 A-3127-15T3
circumstantial evidence corroborating Nancy's statements. Id.
at 522.
In N.B., the trial court relied upon a non-testifying
psychologist's report that the child suffered from PTSD "as a
result of exposure to domestic violence" to support its finding
of sufficient corroboration under N.J.S.A. 9:6-8.46(a)(4). Id.
at 523. On appeal, we determined that although the conclusion
was an inadmissible complex diagnosis, the psychologist's
objective "factual observations" were admissible. Id. at 526;
see also N.T., 445 N.J. Super. at 490 (determining factual
observations are admissible).
Dr. Gayle's factual observations, made four days after the
alleged sexual assault, that Nancy had tenderness in her vaginal
area and that her hymen was not intact constituted "some"
circumstantial evidence corroborating Nancy's statement that
defendant "forcibly" digitally penetrated her vagina. See N.B.,
452 N.J. Super. at 522 (requiring "[s]ome direct or
circumstantial evidence beyond the child's statement"). We do
not determine that Dr. Gayle's factual observations
independently establish that Nancy was sexually assaulted. That
issue is not before us. Rather, we determine only that Dr.
Gayle's objective findings of injuries to Nancy's vaginal area
provide some circumstantial evidence corroborating Nancy's
18 A-3127-15T3
statement that defendant sexually assaulted her in the manner
she described in her statements. Id. at 521-22.
Moreover, the court did not err in finding defendant's
statements provided additional corroboration of Nancy's
statements. Defendant argues that he "only admitted to being
with Nancy at the time of [the] allegations," and "[p]resence,
alone cannot satisfy the corroboration requirement." This
argument ignores, however, that defendant did not simply state
he was with Nancy at the time of the alleged assault, but rather
he corroborated many of the details concerning the circumstances
Nancy described surrounding the alleged sexual assault, with the
exception of the sexual assault itself. We are convinced that
his admission of those details, when coupled with Dr. Gayle's
objective findings of injuries to Nancy's vaginal area, provide
more than sufficient corroboration of Nancy statements
describing the sexual assault to satisfy the requirements of
N.J.S.A. 9:6-8.46(a)(4).
In Z.P.R., there was no direct evidence corroborating the
child's sexual assault allegation. 351 N.J. Super. at 432.
Rather, the Division presented evidence that the child possessed
"precocious sexual knowledge." Id. at 436. The trial court
determined this did not sufficiently corroborate the child's
statements regarding a parent's alleged sexual abuse. Ibid. We
19 A-3127-15T3
reversed, holding that "we have no doubt that evidence of age-
inappropriate sexual behavior could provide the necessary
corroboration required by N.J.S.A. 9:6-8.46(a)(4)." Ibid.In N.J. Div. of Youth & Family Servs. v. H.B., 375 N.J.
Super. 148, 154-55 (App. Div. 2005) the Division3 alleged that
the defendant exposed her daughter, Cathy, to "the risk of
emotional and physical harm by permitting her husband . . . ,
Cathy's stepfather, to reside in the home after learning" that
Cathy had accused him of sexually molesting her. On appeal, the
Division argued that the trial court erred in determining the
stepfather's Megan's Law status was inadmissible to corroborate
Cathy's allegations he sexually assaulted her. Id. at 156. We
reversed, holding that "the details of [the stepfather's prior
conviction for a sex offense was] directly relevant to
establishing whether he in fact molested Cathy . . . [because
they] may . . . reveal similarities in the 'plan' or
'preparation' utilized by [the defendant] . . . ." Id. at 181.
Although "eyewitness testimony, a confession, [or] an
admission," would be most effective in establishing
corroboration, L.A., 357 N.J. Super. at 166, only "[s]ome direct
or circumstantial evidence . . . is required," N.B., 452 N.J.
3Pursuant to L. 2012, c. 16, effective June 29, 2012, the
Division of Youth and Family Services was renamed the Division
of Child Protection and Permanency.
20 A-3127-15T3
Super. at 522. Defendant's admissions corroborated almost every
detail of Nancy's statements concerning the alleged sexual
assault, including the text message exchange between them
earlier in the night, when he picked her up, where they went,
and when they returned. The court did not err in finding that
defendant's statements sufficiently corroborated Nancy's
account, because they "provid[ed] support for" her statement,
N.B., 452 N.J. Super. at 521, and "relate[d] directly to"
defendant, L.A., 357 N.J. Super. at 166. In addition, Dr.
Gayle's objective findings provided some evidence corroborating
the only detail defendant denied – that he forcibly digitally
penetrated Nancy's vagina.
We are therefore satisfied Nancy's statement was
sufficiently corroborated and the Division provided sufficient
credible evidence supporting the court's finding that defendant
abused or neglected Nancy by sexually assaulting her on February
8, 2015, and placed his biological children at substantial risk
of harm as a result. N.B., 452 N.J. Super. at 513, 521.
We also observe that defendant does not contend the court
erred in its findings concerning his four biological children,
or argue that Nancy's remaining sexual assault allegations
supporting that finding were uncorroborated. Generally, an
issue not briefed on appeal is deemed waived. Jefferson Loan
21 A-3127-15T3
Co. v. Session, 397 N.J. Super. 520, 525 n.4 (App. Div. 2008);
Zavodnick v. Leven, 340 N.J. Super. 94, 103 (App. Div. 2001).
We nevertheless consider whether Nancy's remaining allegations
of prior instances of sexual abuse were sufficiently
corroborated to support the court's finding of abuse or neglect.
As noted, the court's abuse or neglect finding was not
limited to the February 8, 2015 sexual assault. The court also
based its abuse or neglect finding on Nancy's reports that
defendant sexually touched her on three prior occasions. With
regard to her statement regarding the "test," defendant admitted
he "took [Nancy] through a test about boys," but denied having
physical contact. He stated he did so to teach Nancy "what boys
can do to get slick and get their feel off on young girls." As
with the February 8, 2015 assault, the only fact defendant
failed to corroborate was the inappropriate sexual touching
itself. Although defendant makes no arguments otherwise, we
find that his admission concerning the administration of the
"test" provide some evidence supporting Nancy's version of the
event and therefore provides sufficient corroboration of Nancy's
account under N.J.S.A. 9:6-8.46(a)(4). N.B., 452 N.J. Super. at
522.
Nancy also reported that defendant took her clothes off
while she was sleeping. Defendant admitted he did so, but
22 A-3127-15T3
denied any sexual intentions. We again find defendant's
admission provided sufficient corroboration of Nancy's statement
to permit the court's reliance on Nancy's version of the event.
Ibid.
Lastly, Nancy described that defendant humped her from
behind when she was twelve. Our review of the record, however,
reveals no admissible evidence corroborating Nancy's statement
concerning that event. Nancy's mere repetition of her account
was insufficient. Id. at 523.
Although the Division did not provide sufficient
corroboration to warrant the court's consideration of Nancy's
statement concerning that event, we are satisfied the totality
of the admissible evidence corroborates Nancy's statements
concerning the other events and supports the court's findings of
abuse or neglect of the five children.
Defendant's remaining arguments are without merit
sufficient to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E).
Affirmed.
23 A-3127-15T3