DCPP VS. A.E. AND I.B. IN THE MATTER OF R.B. (FN-07-0460-12, ESSEX COUNTY AND STATEWIDE) (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NOT FOR PUBLICATION WITHOUT THE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-4191-15T4
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
A.E.,
Defendant,
and
I.B.,
Defendant-Appellant.
__________________________________
IN THE MATTER OF R.B.,
a Minor.
__________________________________
Argued May 21, 2018 - Decided June 19, 2018
Before Judges Messano, Accurso and O'Connor.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex
County, Docket No. FN-07-0460-12.
Victoria D. Miranda argued the cause for
appellant (Williams Law Group, attorneys;
Allison C. Williams, of counsel and on the
brief; Victoria D. Miranda, on the brief).
Michelle Mikelberg, Deputy Attorney General,
argued the cause for respondent (Gurbir S.
Grewal, Attorney General, attorney; Andrea
M. Silkowitz, Assistant Attorney General, of
counsel; Michelle Mikelberg, on the brief).
Todd Wilson, Designated Counsel, argued the
cause for minor (Joseph E. Krakora, Public
Defender, Law Guardian, attorney; Todd
Wilson, on the brief).
PER CURIAM
This abuse and neglect matter returns to us following our
remand for the judge to consider the testimony of a psychologist
offered by the Division of Child Protection and Permanency to
corroborate five-year-old Rose's report of sexual abuse by her
father, defendant I.B.1 N.J. Div. of Child Prot. & Permanency v.
I.B., 441 N.J. Super. 585, 598 (App. Div. 2015). Upon
consideration of the testimony, the judge found it corroborated
Rose's allegations and entered a finding that I.B. abused or
neglected his daughter. We affirm.
We provided the background of this case in our prior
opinion.
The Division claimed that defendant
father I.B. committed an act of sexual abuse
against his five-year-old daughter, Rose, by
calling her into the bathroom at their home
and telling her to touch his penis. Some
days later, Rose spontaneously revealed this
incident to her mother, A.E., a medical
doctor who had trained as a gynecologist in
1
We use initials and pseudonyms to protect the child's privacy.
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the family's native Sudan. Rose's mother
initially discounted the allegation. She
assumed the child may have accidently seen
her father naked and been naturally curious,
given her age, prompting the child's
conversation with her. When she asked Rose
about it sometime later, however, the child
got upset and said she didn't want to talk
about it because it made her stomach hurt.
After several more such conversations in
which the child shared additional details,
including that her father had washed "the
glue" from her hands afterward, A.E. sought
a restraining order against her husband in
which she revealed the child's allegation.
Court personnel advised A.E. that she should
report the incident to the Division.
[I.B., 441 N.J. Super. at 588 (footnotes
omitted).]
We noted "both parents acknowledged marital discord pre-
dating the allegation of sexual abuse," and that I.B
"categorically denied the child's account." Ibid. He claimed
his wife, A.E., "coached their daughter to make false
allegations against him." Ibid.
Describing the investigation, we wrote that
[f]ollowing an initial interview by a
Division caseworker, Rose participated in a
videotaped interview conducted by a
certified forensic interviewer at Wynona's
House Child Advocacy Center. Rose recounted
the allegation to the interviewer, providing
some specific details such as the television
program she had been watching when her
father called her into the bathroom as well
as the particular towel he had wrapped
around him. Using anatomically correct
dolls to demonstrate what had occurred, the
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five-year old placed the female doll's hand
on the male doll's penis and moved the hand.
She reported that her father was silent as
he "finished peeing." At the end of the
interview, Rose spontaneously asked the
interviewer whether "touching butts [the
word she used to describe the vagina, penis
and buttocks on anatomical drawings] is [a]
good thing or not a good thing?"
Following the interview, the Division
filed its complaint and referred Rose to the
Metropolitan Regional Child Abuse Diagnostic
and Treatment Center. Staff psychologist
Justin Misurell, Ph.D., conducted a
psychosocial evaluation of the child based
on the videotape of the forensic interview,
Division records, and a clinical interview
of Rose. In that interview, Rose confirmed
the statements she made during the forensic
interview and "reported that she frequently
experiences nightmares about 'bad things
like getting locked in the bathroom.'" She
also reported that her parents used to often
argue, that she thinks frequently about
those incidents, and that they make her feel
sad.
Misurell diagnosed Rose as suffering
from Adjustment Disorder with mixed
disturbance of emotions and conduct and
concluded her "statements and presentation
are consistent with a child who has
experienced sexual abuse." He found she
"has exhibited trauma related symptoms"
including intrusive thoughts about the
incident, nightmares, and has engaged in
active attempts to avoid thinking about the
abuse. Misurell attributed Rose's symptoms
to "her sexual abuse experience and exposure
to marital discord."
[I.B., 441 N.J. Super. at 589 (alterations
in original).]
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The trial judge ruled Dr. Misurell's testimony
inadmissible. Id. at 589-90. Although rejecting I.B.'s
assertion that A.E. coached their daughter to lie about the
incident after hearing A.E.'s testimony, the judge nevertheless
found inconsistencies in the timeline she offered and ultimately
determined the Division lacked any corroboration of the child's
report of her father's abuse. Id. at 590.
We concluded the judge erred in striking "psychological
evidence of emotional effects" routinely admitted in Title Nine
cases to assist judges "'to understand the evidence or to
determine a fact in issue.' N.J.R.E. 702; [N.J. Div. of Youth &
Family Servs. v.] Z.P.R., 351 N.J. Super. [427,] 439 [(App. Div.
2002)]." Id. at 591-92. We expressed our expectation that "the
judges in these cases [will] rigorously evaluate expert
testimony offered to corroborate a child's allegation of abuse,"
but held that "so long as the proffered testimony meets the
requirements of N.J.R.E. 702 and [State v. ]Kelly, [97 N.J. 178(1984)], as the evidence offered here does, the questions should
be directed to the weight and not the admissibility of the
testimony." I.B., 441 N.J. Super. at 596-97 (footnotes
omitted).
Accordingly, because we held "the expert's opinion was
admissible as substantive evidence to corroborate the child's
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allegation of abuse," we remanded "for consideration of the
expert's report and testimony," with instructions to the judge
"to weigh all of the evidence, including Misurell's testimony,
make determinations as to the credibility and weight of that
evidence, and come to a final determination as to whether the
allegation of abuse has been proven by a preponderance of the
evidence." Id. at 598. Allowing for the possibility that the
trial judge's decision to exclude "the expert's testimony may
have resulted in the . . . judge not probing the expert's
opinion as he would otherwise, we [did] not foreclose the judge
from recalling the expert to address any questions the judge
might have regarding his testimony." Ibid.
On remand, the trial court provided the parties the
opportunity to brief whether Dr. Misurell should be permitted to
testify and the weight the court should afford the testimony.
The Division opposed reopening the record for Dr. Misurell's
testimony, arguing it was unnecessary as he had already
testified to his opinions at length. I.B. argued the court
should reopen the record to address specific issues raised by
this court, including "how, or why, Dr. Misurell attributed
[Rose's] nightmares to sexual abuse, and not to her parents'
marital discord." The court elected to hear additional
testimony from Dr. Misurell as requested by I.B. The judge
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questioned the psychologist at length, focusing particularly on
the symptoms the child was reported to have exhibited and their
relation to: the expert's diagnosis of adjustment disorder; the
child's use of different descriptors for the conduct at
different times; and why the expert concluded the child's
nightmares were more likely related to her alleged sexual abuse
than to her parents' marital discord or the shunning the family
suffered following the child's disclosure. The judge also
probed whether the expert considered that the child's nightmares
only began after the child's report of the incident, days or
perhaps weeks after the incident occurred and asked what "red
flags" would have caused the psychologist to question the
validity of the child's disclosure. I.B.'s counsel cross-
examined the expert, getting him to concede the acrimonious
relationship between her parents undoubtedly played a role in
the child's distress, and that the enormous variability in
children's reactions to sexual abuse makes diagnosis difficult.
After hearing the testimony, the judge issued an oral
opinion from the bench, concluding the expert's testimony
corroborated Rose's report of sexual abuse by her father. The
judge stated he found Dr. Misurell "very credible, honest and
straight-forward in his testimony." The judge was particularly
impressed by the expert's acknowledgment of the limits of
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psychological evidence, recapping his testimony on the point by
saying, "look, if you're looking for the answer in a
psychologist to tell you whether the incident happened, I can't.
I can only tell you that she is suffering from this syndrome and
that this syndrome is consistent."
Again expressing the opinion that "this was an extremely
close case," for the reasons discussed at length in his decision
after the fact-finding hearing in 2012, the judge pronounced
himself satisfied based on Dr. Misurell's testimony that Rose
suffered from an adjustment disorder, "pre-post traumatic
stress," consistent with abuse, providing "the corroboration
necessary for a determination in this case."
I.B. appeals, arguing the trial court erred by giving undue
weight to Dr. Misurell's testimony and "making legal
determinations that do not flow from the facts presented at
trial." I.B. further argues Dr. Misurell's testimony did not
provide sufficient corroboration for Rose's out-of-court
statements, and thus "cannot be used to sustain a finding of
sexual abuse," and that he was deprived of the effective
assistance of counsel during the fact finding hearing. Having
reviewed the record, we conclude none of those arguments is of
sufficient merit to warrant extended discussion in a written
opinion. R. 2:11-3(e)(1)(E).
8 A-4191-15T4
I.B.'s arguments as to the judge's assessment of Dr.
Misurell's testimony reduce to quarrels with the judge's fact-
finding, which we are simply in no position to reject. We will
not overturn the factual findings and legal conclusions of a
trial judge sitting in a non-jury case "unless we are convinced
that they are so manifestly unsupported by or inconsistent with
the competent, relevant and reasonably credible evidence as to
offend the interests of justice[.]" Seidman v. Clifton Sav.
Bank, S.L.A., 205 N.J. 150, 169 (2011) (alteration in original)
(quoting In re Trust Created By Agreement Dated December 20,
1961, ex rel. Johnson, 194 N.J. 276, 284 (2008)). Deference is
especially appropriate in a case such as this where "the
evidence is largely testimonial and involves questions of
credibility." Ibid.As the Supreme Court has observed, because the trial court
"'hears the case, sees and observes the witnesses, [and] hears
them testify,' it has a better perspective than a reviewing
court in evaluating the veracity of witnesses." Pascale v.
Pascale, 113 N.J. 20, 33 (1988) (alteration in original)
(quoting Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961)).
The Court has instructed reviewing courts to accord a special
"deference to family court factfinding" in light of "the family
9 A-4191-15T4
courts' special jurisdiction and expertise in family matters."
Cesare v. Cesare, 154 N.J. 394, 413 (1998).
Having reviewed the record, we are satisfied the trial
judge fulfilled all of his obligations on remand. The judge
admitted Dr. Misurell's testimony and rigorously questioned the
expert in order to understand the limits of the testimony and
the weight the court should accord it. After weighing the
expert's testimony in light of the other evidence in the record,
the judge concluded the psychological evidence corroborated
Rose's report of her father's sexual abuse. See Z.P.R., 351
N.J. Super. at 436. We find no error in the judge's assessment
of the evidence or his conclusion that the Division proved its
case by a preponderance of the evidence. I.B.'s contention that
he was deprived the effective assistance of counsel on remand is
utterly without merit. See R. 2:11-3(e)(1)(E).
Affirmed.
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