DEPARTMENT OF CHILDREN AND FAMILIES VS. T.G. (DIVISION OF CHILD PROTECTION AND PERMANENCY) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-3196-17T4
DEPARTMENT OF CHILDREN
AND FAMILIES,
Petitioner-Respondent,
v.
T.G.,
Respondent-Appellant.
_____________________________
Argued May 30, 2019 – Decided June 20, 2019
Judges Accurso, Vernoia and Moynihan.
On appeal from the New Jersey Department of Children
and Families, Division of Child Protection and
Permanency, Docket No. 14-0941.
Victoria Danielle Miranda argued the cause for
appellant (Williams Law Group, LLC, attorneys;
Allison C. Williams, of counsel and on the briefs;
Victoria Danielle Miranda, on the briefs).
Alicia Y. Bergman, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Melissa H. Raksa, Assistant
Attorney General, of counsel; Christina Anne Duclos,
on the brief).
PER CURIAM
In this appeal, appellant T.G.1 challenges a Department of Children and
Families, Division of Child Protection and Permanency (Division), final agency
decision affirming a substantiated finding that he sexually abused his daughter's
twelve-year-old friend, Olive, during a sleepover at his home. Because the
Division's findings are based on expert testimony that constitutes an
inadmissible net opinion, we reverse and remand for further proceeding s.
I.
Following a July 2014 referral and subsequent investigation, the Division
notified T.G. he was substantiated for sexual abuse and molestation of Olive.
He appealed the determination and the matter was referred to the Office of
Administrative Law for a hearing before an Administrative Law Judge (ALJ).
The evidence showed that immediately following the referral, Division
caseworker Tracey Lawrence spoke to Olive, who reported that she slept at
1
We use initials and pseudonyms to identify the parties, children and their
families and others to protect the confidentiality of the matters related to the
alleged child abuse. See N.J.S.A. 9:6-8.10a.
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T.G.'s home in or around March 2014 with her close friend, T.G.'s daughter
Josephine, and that T.G. touched her vaginal area during the evening.
Lawrence later spoke to Olive and her mother, Alice. Olive further
explained that during the sleepover, T.G. came into the room where Olive and
Josephine laid on separate couches. During his first two visits, T.G. put his
hands under Olive's pants and touched her vaginal area until she shifted on the
couch. On the last occasion, Olive shifted before T.G. touched her and he said
"good night girls" and left the room. Olive reported that she recalled a camera
flash while T.G. was present, and believed he may have taken a picture of her.
According to Olive, Josephine was asleep during the times T.G. was in the room.
Olive said she was scared to report what occurred because she feared for what
would happen to Josephine.
Alice told Lawrence that Olive disclosed T.G.'s actions to her and Olive's
father, Matt, during a June 2014 vacation. Olive insisted on wearing shorts
under a dress that Alice requested Olive wear to a restaurant, and during the
discussion concerning Olive's demand, she told her parents what T.G. did during
the sleepover. After Olive's disclosure, Alice recalled changes in Olive's
behavior that she believed were now explained, including Olive putting on
shorts under dresses, hiding, locking the bathroom door, refusing to go to
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3
Josephine's home and making excuses for her decision not to go, and asking
Josephine to stay over at their house instead of going to Josephine's home as she
had often done in the past.
Lawrence also interviewed Olive's older sibling, Carl, who was in the
process of transitioning from female to male. The evidence showed Olive was
supportive of Carl's transition, which had been ongoing for more than two years
prior to Olive's disclosure. Carl, who is many years older than Olive, was not
on the June 2014 vacation during which Olive made the disclosure.
Lawrence also interviewed Matt, who explained that during the months
prior to Olive's disclosure she mentioned on several occasions that she had
something to tell her parents, but would then "brush it off" and not say anything.
He also stated that Olive made the disclosure during the vacation, and that he
was in disbelief because his and T.G.'s families had grown close over the years.
Olive participated in a recorded forensic video interview on July 23, 2014.
She again reported what she alleged occurred during the sleepover, adding that
T.G. also touched her breasts under her shirt and that she remembered hearing
the click of a camera. Olive reported that following the incident, she avoided
T.G.'s house, and went over only once for Josephine's birthday sleepover but
wore both shorts and sweatpants on that occasion "so nothing could happen."
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The video recording of the forensic interview was admitted in evidence and
played during the hearing.
Karena Ferrer, M.A., is employed by the Regional Diagnostic and
Treatment Center, and was qualified as an expert in mental health with a
subspecialty in child abuse and neglect. She performed a psychosocial
evaluation of Olive on August 11, 2014, "to assess for sexual abuse and related
symptomatology."
Ferrer testified that Olive reported T.G.'s actions to her, and that Olive
was initially scared to disclose what occurred because she did not think anyone
would believe her. Ferrer considered the results of a child behavioral checklist
that Alice completed, the Youth Self Report, Trauma Symptom Checklist for
Children and Beck Youth Inventory that Olive completed, a transcript of Olive's
forensic interview, Division records and Alice's reports concerning Olive's
behavior in formulating her diagnostic impression that Olive experienced sexual
abuse. Ferrer acknowledged the checklists and inventory did not reveal any
symptomatology, but explained that not every child who is a victim of sexual
abuse is "highly symptomatic." Her opinion that Olive experienced sexual
abuse, which she offered to a "professional degree of certainty," was based on
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the consistency of Olive's reporting, Olive's lack of a motive to lie, Alice's
account of Olive's behavior and Division records.
Division caseworker Natalie Cabrera testified that the Division opened a
second investigation on September 17, 2014, to determine whether Josephine,
who was Olive's age, had been the victim of any sexual abuse. Cabrera
interviewed Josephine twice, and Josephine denied any abuse. The Division
rendered a determination that its investigation of abuse against Josephine was
"unfounded."
Cabrera also interviewed T.G. and his wife, Diane, and explained the
nature of the allegations against T.G. but initially did not disclose that Olive
made the allegations. T.G. denied ever touching any child during Josephine's
sleepovers with her friends. Diane similarly denied that T.G. engaged in such
conduct and that he ever had an opportunity to do so. Cabrera described T.G.
as shocked when he was informed that Olive made the allegation he sexually
abused her.
Matt testified regarding his family's close relationship with T.G.'s family
and Olive's disclosure of the sexual abuse. Matt explained that Olive was
concerned the disclosure would affect her friendship with T.G.'s daughter. He
further noted changes in Olive's behavior including her refusal to go to T.G.'s
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home to see Josephine, and her refusal to go to T.G.'s vacation home when T.G.
came to pick her up with Josephine. He testified Olive did not want to attend a
birthday sleepover at T.G.'s house and agreed to go only after some prodding,
but called early the next morning for Matt to come get her. Matt also explained
that when Olive was asked why she no longer wanted to go to T.G.'s house as
she had routinely done in the past, she said T.G. and his wife argue a lot and she
did not like being there. Matt testified he had never known T.G. and his wife to
argue. Matt also explained that Olive was distressed about seeing T.G. at a
summer camp that Josephine was also attending. Matt testified Olive "was
unable to sleep, crying, [and] very upset" the night before she was scheduled to
arrive at the camp and said she was afraid she would see T.G.
T.G. testified, described his family's relationship with Olive's family, the
girls' sleepover routines, and denied the allegations.
Dr. Mark Singer, Ph.D., testified on T.G.'s behalf and was accepted as an
expert in sexual abuse and child abuse cases. He reviewed the Division's reports,
Olive's psychosocial evaluations and forensic interview, and interviewed T.G.,
Diane and Josephine. Dr. Singer utilized the Adult Adolescent Parenting
Inventory, Second Edition, and the Melan Clinical Multi-Auxiliary Inventory,
Third Edition, and concluded T.G. understands and values children's needs, is a
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somewhat secretive individual reluctant to disclose personal information and
likely to engage in moralistic, perfectionistic thinking, and that nothing in the
psychological testing "correlated significantly with what we know about . . .
child sex offenders." T.G. also completed a Sexual Violence Risk Assessment,
and Dr. Singer concluded T.G. did not have characteristics associated with
known violent sex offenders. He concluded, within a reasonable degree of
psychological certainty, that T.G. did not have the characteristics found in
sexual offenders and was a "low risk" for such behavior.
Dr. Singer did not interview or meet with Olive. He admitted her
behaviors could "be seen in children who have been exposed to inappropriate
sexual behavior," but noted alternative explanations for her conduct could exist.
In the ALJ's written decision, she found that Alice, Diane, Josephine and
Carl lacked knowledge concerning T.G.'s alleged sexual abuse of Olive. The
ALJ found Matt credible and that his testimony was "believable." The ALJ
found "no credible evidence" supporting T.G.'s assertion that Carl's transition
was a "factor" in Olive's assertions against T.G. The ALJ further found T.G.
was "highly motivated to deny the charges against him," and that Olive was
credible because she "had more to lose than gain in stating that . . . her best
friend's father had inappropriately touched her."
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The ALJ also found Ferrer's testimony credible and persuasive. He found
Ferrer "was accepted without objection as an expert in mental health with a sub-
specialty in child abuse and neglect, credibly testified that [Olive's] delay in
disclosing did not indicate that her allegations were less than truthful" and
Olive's father and mother both indicated she had "hesitat[ed] to disclose
something" for some time. The ALJ further determined that Dr. Singer
"acknowledged that trauma can influence behavior and that a child might not
want to remember an event." The judge found both experts noted "children can
often not accurately state when a past event occurred."
The ALJ found Ferrer's opinion "that [Olive] experienced sexual abuse
based upon the consistency of [Olive's] statements corroborated by her parent's
statements as to [Olive's] behavior, information in the [Division] records and
information obtained during the [Division] investigation, to be persuasive."
Conversely, the judge found "Dr. Singer's criticism of Ferrer for relying upon
the information provided by [Olive] and her mother and the tests she
administered . . . as disingenuous" because Dr. Singer used similar tests and also
relied on self-reporting by T.G., Diane and Josephine.
The ALJ found Olive's statements were materially consistent, her
credibility was enhanced by her failure to recant, and her statements that T.G.
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inappropriately touched her were credible and corroborated by evidence
including Olive's behavior. The ALJ found Dr. Singer's opinion that T.G. was
likely not a sexual offender was unpersuasive. The judge concluded the Division
proved by a preponderance of the credible evidence that T.G. sexually abused
Olive by touching her under her clothes, including her vaginal area, while Olive
was sleeping overnight at T.G.'s home.
The Division issued a final agency decision adopting the ALJ's findings
and decision and affirming the substantiated finding of sexual abuse. This
appeal followed.
II.
"Our review of administrative agency action is limited." Russo v. Bd. of
Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011). A reviewing court
will presume the validity of the "administrative agency's exercise of its
statutorily delegated responsibilities." Lavezzi v. State, 219 N.J. 163, 171
(2014). Thus, "an appellate court ordinarily should not disturb an administrative
agency's determinations or findings unless there is a clear showing that (1) the
agency did not follow the law; (2) the decision was arbitrary, capricious, or
unreasonable; or (3) the decision was not supported by substantial evidence." In
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re Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413,
422 (2008).
"The burden of demonstrating that the agency's action was arbitrary,
capricious or unreasonable rests upon the [party] challenging the administrative
action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div. 2006). "[T]he
test is not whether an appellate court would come to the same conclusion . . .
but rather whether the factfinder could reasonably so conclude upon the proofs."
Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (quoting Charatan v. Bd. of
Review, 200 N.J. Super. 74, 79 (App. Div. 1985)). The court "may not vacate
an agency determination because of doubts as to its wisdom or because the
record may support more than one result." In re N.J. Pinelands Comm'n
Resolution PC4-00-89, 356 N.J. Super. 363, 372 (App. Div. 2003). "Where . . .
the determination is founded upon sufficient credible evidence seen from the
totality of the record and on that record findings have been made and conclusions
reached involving agency expertise, the agency decision should be sustained."
Gerba v. Bd. of Trs., Pub. Emps.' Ret. Sys., 83 N.J. 174, 189 (1980).
T.G. argues the Division's substantiation of Olive's sexual abuse
allegations is not supported by substantial credible evidence and that the
Division erred by relying on Olive's statements to the Division, to her parents
A-3196-17T4
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and during the forensic interview because they are not corroborated by
competent material evidence. He further argues the Division erred by rejecting
his testimony denying the allegations as not credible, and accepting Ferrer's
opinions and rejecting those offered by Dr. Singer.
A substantiated finding of sexual abuse is required where a preponderance
of the evidence establishes that an individual who qualifies as a "[p]arent or
guardian" within the meaning of N.J.S.A. 9:6-8.21(a) "commits or allows to be
committed an act of sexual abuse against [a] child" under the age of eighteen.
N.J.S.A. 9:6-8.21(c)(3). A substantiated finding of sexual abuse must be
founded on "competent, material and relevant evidence." N.J.S.A. 9:6-8.46(b).
Here, the ALJ found Olive's statements to her parents, the Division and
during her forensic interview were credible and, in part, relied on those
statements to support the determination that the Division established by a
preponderance of the evidence that T.G. committed sexual abuse against Olive.
The ALJ further found T.G.'s testimony denying the allegations to be not
credible. The ALJ credited Olive's consistent repetition of the essential details
of the sexual abuse, the absence of any motive for her reporting the abuse and
the fact that she had too much to lose—her friendship with Josephine—and
nothing to gain by making the report, in her reasoned assessment of Olive's
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credibility. The ALJ, who observed T.G. testify, found he was "highly
motivated to deny the charges against him" and that his denials were not credible
based on his "testimony and demeanor." We accord substantial deference to the
credibility determinations of the trial judge, N.J. Div. of Child Prot. and Perm.
v. N.B., 452 N.J. Super. 513, 521 (App. Div. 2017), and T.G. offers no basis to
depart from that deference here.
We reject T.G.'s claim the ALJ and Division could not properly rely on
Olive's statements because she did not testify at the hearing and her out-of-court
statements were not corroborated as required under N.J.S.A. 9:6-8.46(a)(4). The
statute 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." N.J.S.A. 9:6-8.46(a)(4). The statute
"constitutes a statutorily created exception to the hearsay rule but independent
evidence of corroboration is required in order to find abuse or neglect." N.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 Child Prot. & Permanency v. A.D., 455 N.J. Super. 144, 157 (App. Div.
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2018) (quoting N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155,
166 (App. Div. 2003)). But that list is not exhaustive. "A child's statement need
only be corroborated by '[s]ome direct or circumstantial evidence beyond the
child's statement itself.'" Ibid. (alteration in original) (quoting N.B., 452 N.J.
Super. at 522). Corroborative evidence must "'only provide support' for the
child's statements," ibid. (quoting N.B., 452 N.J. Super. at 521), and need not be
"'offender-specific,' because ' [i]t would be a rare case where evidence could be
produced that would directly corroborate the specific allegation of abuse
between the child and the perpetrator," ibid. (alteration in original) (quoting N.J.
Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 435 (App. Div.
2002)).
Corroborative evidence may be circumstantial, but it "must be
independently admissible for a court to deem it corroborative of a child's
statement." Ibid. The consistency of the child's statements is distinct from and
will not on its own constitute corroboration, but consistency may be considered.
Ibid.We conclude the Division satisfied its burden of presenting some evidence
corroborating Olive's statements concerning T.G.'s sexual abuse and, as a result,
the ALJ and Division could properly rely on Olive's out of court statements to
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support their fact findings. See N.J.S.A. 9:6-8.46(a)(4). As the ALJ found,
Olive's statements were corroborated by her father's testimony concerning the
changes in her behavior, including her unwillingness to go to T.G.'s home "as
she had previously done, to be with and sleep overnight with her best friend ,"
Josephine; her proffer of false excuses for her refusal to go to T.G.'s home2; the
changes in the way she dressed—wearing shorts under dresses—; and her crying
at the possibility of seeing T.G. during her arrival at a summer camp. Moreover,
T.G.'s expert, Dr. Singer, testified Olive's behavior was consistent with a child
who has been the victim of sexual abuse. See Z.P.R., 351 N.J. Super. at 436(noting that "age-inappropriate behavior is one of the behavioral signs
associated with child sexual abuse"); cf. N.B., 452 N.J. Super. at 522 (finding
in part that a child's prior statements were not corroborated because "the child's
behavior did not sufficiently corroborate emotional harm").
T.G. contends Olive's behavior does not corroborate her out-of-court
statements as required under N.J.S.A. 9:6-8.46(a)(4) because there are
alternative explanations for the behavior. For example, he claims her behavior
2
As explained by Matt during his testimony, Olive said she did not want to go
to T.G.'s home as she had frequently and routinely done in the past because T.G.
and his wife argued a lot, but T.G. testified that he and his wife did not argue a
lot and they never argued while Olive or any of Josephine's other friends were
present.
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may have been the product of Carl's transition from female to male, and because
Olive was a preteen or suffered from social issues. The record, however, is
devoid of any evidence that Carl's transition caused Olive to make a report
against T.G., and the evidence shows she was supportive of the transition and
that Carl was not present during the vacation when Olive reported T.G.'s action.
Similarly, there is no evidence Olive's status as a preteen or any putative but
unidentified social issues caused her to assert that T.G. sexually abused her. In
any event, the theoretical possibility that Olive's behavior may be an indicia of
something other than sexual abuse does not require rejection of the ALJ's
reliance on Olive's out-of-court statements. It is enough that her behavior, as
detailed in her father's admissible testimony, "provide[s] support for the out-of-
court statements." L.A., 357 N.J. Super. at 166 (quoting Z.P.R., 351 N.J. Super.
at 436).
Our conclusion the court properly considered Olive's out-of-court
statements does not, however, alone permit the affirmance of the Division's
order. The ALJ might have, but did not, base her finding that T.G. sexually
abused Olive exclusively on Olive's out-of-court statements. The ALJ
considered other evidence she found credible in determining that T.G. engaged
in the sexually abusive actions that supported the substantiated finding T.G.
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sexually abused Olive. Most importantly, the ALJ found Ferrer's testimony that
Olive "experienced sexual abuse . . . to be persuasive" in determining the sexual
abuse occurred.
T.G. asserts the ALJ should not have relied on Ferrer's testimony because
it constituted an inadmissible net opinion. 3 The net opinion rule is a "corollary
of [Rule 703] . . . which forbids the admission into evidence of an expert's
conclusions that are not supported by factual evidence or other data." Polzo v.
Cty. of Essex, 196 N.J. 569, 583 (2008) (first alteration in original) (citation
omitted). Experts must "be able to identify the factual bases for their
conclusions, explain their methodology, and demonstrate that both the factual
bases and the methodology are reliable." Townsend v. Pierre, 221 N.J. 36, 55
(2015) (citation omitted).
"[A] trial court may not rely on expert testimony that lacks an appropriate
factual foundation and fails to establish the existence of any standard about
which the expert testified." Pomerantz Paper Corp. v. New Cmty. Corp., 207
N.J. 344, 373 (2011). "A standard which is personal to the expert is equivalent
3
T.G. moved to bar Ferrer's testimony before she testified. Following her
testimony, T.G. moved for her testimony to be stricken, in part because it
constituted a net opinion. The ALJ denied both requests.
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to a net opinion." Ibid. (quoting Taylor v. DeLosso, 319 N.J. Super. 174, 180
(App. Div. 1999)).
Ferrer's opinion that Olive was the victim of sexual abuse constituted an
inadmissible net opinion. Ferrer testified that the self-report checklists and tests
she administered to Olive and her mother did not yield any symptomatology of
sexual abuse. When asked for the basis for her "diagnostic impression" that
Olive was sexually abused, Ferrer stated her opinion was "[b]ased on the
consistency of [Olive's] report throughout the investigation, as well as [Olive's]
mom's account, and as well as the information that was provided by the Division
investigator and the Division's records." She also testified her opinion was
based on "conversation," "consistency" and "lack of motive."
Ferrer's opinion is otherwise unsupported by reference to any standard
establishing the reliability of her methodology, if any, for arriving at her
opinion. See Townsend, 221 N.J. at 54 (citation omitted). Ferrer was neither
asked for nor identified any standard upon which her opinion was based. An
expert's conclusion should be "excluded if it is based merely on unfounded
speculation and unquantified possibilities," Vuocolo v. Diamond Shamrock
Chems. Co., 240 N.J. Super. 289, 300 (App. Div. 1990), but that is what Ferrer
offered here. Lacking any reference to a standard for her conclusions, Ferrer
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offered nothing more than a statement of personal opinion; in other words, an
inadmissible net opinion.
The administrative rules provide an ALJ with latitude in admitting
evidence, but an expert's opinion must be "[w]ithin the scope of the special
knowledge, skill, experience or training possessed by the witness." N.J.A.C.
1:1-15.9(b)(2). Ferrer did not point to any special knowledge, skill, experience
or training providing the standard upon which her conclusory net opinion was
based. The ALJ erred by admitting Ferrer's opinion testimony and by relying
upon it to support her conclusion T.G. committed sexual abuse on Olive. See,
e.g., Riley v. Keenan, 406 N.J. Super. 281, 295-96 (App. Div. 2009) (finding an
inadmissible net opinion where an expert did not reference any objective or
toxicological studies or publications supporting the expert's opinion).
We are constrained to reverse and remand for a new trial because it is clear
the ALJ and Division relied on Ferrer's opinion, which the ALJ found
persuasive, in weighing the evidence and assessing the credibility of the
witnesses, including Olive. It was error for the ALJ and the Division to do so
because Ferrer's net opinion did not constitute competent evidence that Olive
was subject to sexual abuse. We do not offer an opinion on the adequacy of the
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competent evidence otherwise presented, 4 including Olive's out-of-court
statements, because "[t]o do so would arrogate to us the role of the [ALJ] as
fact-finder." Z.P.R., 351 N.J. Super. at 436-37. On remand, it will "be up to the
[ALJ and Division] to weigh all of the evidence, make determinations as to
credibility and weight of that evidence, and come to a final determination as to
whether the allegation of [sexual] abuse has been proven by a preponderance of
the evidence." Id. at 437. The matter shall be assigned to a different ALJ on
remand because the ALJ who conducted the hearing has already made credibility
determinations.
Because we conclude that a remand is required due to the court's reliance
on Ferrer's net opinion, it is unnecessary to address T.G.'s remaining arguments
that the ALJ and Division erred in their assessment of the credibility of the
witnesses, including Ferrer and Dr. Singer.
Reversed and remanded for further proceedings consistent with this
opinion. We do not retain jurisdiction.
4
We also do not offer an opinion concerning the admissibility of any of the
other testimony or evidence presented because there is no challenge to the
admissibility of other testimony or evidence on appeal. Nothing in this opinion
bars the parties from objecting to testimony or evidence on remand, and the ALJ
shall address such objections based on the record before it.
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