Opinion
DOCKET NO. A-4700-13T3
05-02-2016
DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF CHILD PROTECTION AND PERMANENCY, Petitioner-Respondent, v. B.F., Respondent-Appellant.
Pfeiffer, Bruno, Minotti & DeEsch, attorneys for appellant (Paul J. Bender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Marlene Botros, Deputy Attorney General, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Rothstadt. On appeal from New Jersey Department of Children and Families, Division of Child Protection and Permanency, Docket No. AHU 07-1104. Pfeiffer, Bruno, Minotti & DeEsch, attorneys for appellant (Paul J. Bender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Marlene Botros, Deputy Attorney General, on the brief). PER CURIAM
B.F. (Bob) appeals from a final decision of the Division of Child Protection and Permanency (Division) finding he sexually abused his former girlfriend, C.D.'s (Charlene), then-three-year-old son, A.M. (Alan), by digital penetration, resulting in the addition of Bob's name to the child abuse registry. After the Division substantiated the abuse by Bob, he appealed. An administrative law judge (ALJ) conducted a hearing and recommended the Division's substantiation of abuse be changed to "unfounded," finding the Division failed to prove that "[Alan] is a neglected child," and "that the credible, competent evidence [fell] significantly short of demonstrating [Bob] committed or allowed to be committed an act of sexual abuse against [Alan]." The Division filed exceptions to the ALJ's decision and Bob responded. The Director issued a written decision rejecting the ALJ's findings and recommendation.
We have fictionalized the names of the parties to protect their identities.
On June 29, 2012, the New Jersey Division of Youth and Family Services was renamed the Division of Child Protection and Permanency. L. 2012, c. 16.
The Division forwards findings of abuse to a central registry maintained by the Department of Children and Families. N.J.S.A. 9:6-8.11.
See N.J.A.C. 1:1-18.4.
On appeal, Bob argues the Division's final determination should be reversed because it was filed after the statutory deadline for acceptance or rejection of the ALJ's recommendation. He also contends that the Director "disregarded" the ALJ's credibility determinations, and that the decision to reject the judge's recommendation was not supported by "sufficient, competent, credible evidence and conclusions of law," but rather by "evidentiary and factual issues not contained in the record." The Division disagrees and urges us to affirm, arguing its decision was adequately supported and filed in a timely manner.
We have carefully considered the parties' contentions in light of our review of the record and applicable legal principles. We reverse.
The facts that led to the hearing as derived from the record can be summarized as follows. Alan was born in 2003 and is Charlene's adopted son. Charlene began dating Bob in 2006, but Alan and his five-year-old brother, M.M. (Max), only understood that Bob was her friend. Soon after Charlene and Bob's romance began, the children began to refer to Bob as "Daddy," although Charlene never told them that was acceptable. On two occasions in December 2006, Charlene had Bob babysit for the children while she was out. It was on one of those occasions that the incident giving rise to the allegations against Bob occurred.
Prior to the incident, on December 8, 2006, Alan was seen by a doctor in a hospital's emergency room, where it was determined his colon was impacted with stool and he was treated for constipation. Although Charlene was present for Alan's examination, she did not observe the doctor doing anything to Alan's rectum — i.e. inserting a finger or enema — and did not know if Alan was manually disimpacted. Hospital records only indicated Alan received a glycerin suppository and milk of magnesia to help treat his constipation.
According to the testimony of Eugene M. Decker, D.O., an intestine becomes impacted when "the lower rectal region sigmoid colon is full of very large stools because of . . . infrequent bowel movements. . . . Many times they have to have procedures called a disimpaction . . . where . . . a doctor digitally goes in to remove stool. . . . It can also be done by instruments[, such as] a rigid sigmoid scope. . . . [,] an analscope, . . . [or] a colonoscope," depending where the impaction is located. Further, although Charlene testified that she does not know if any of the procedures were conducted, she told Decker "it was done digitally by the emergency room doctor."
On December 22, 2006, Bob stayed with the children while Charlene was out. When she returned, she found Alan upset because Bob hit Max and "stuck his finger in [Alan's] hiney." According to Charlene, when she confronted Bob about the allegation, he stated that it probably happened while he was helping Alan clean himself after using the toilet. Charlene told Bob that her children were already toilet trained and did not need assistance with cleaning themselves afterwards. Charlene later called the Division's abuse hotline, but was told that due to the high call volume, they could not handle her call and directed her to call the police. Charlene did not follow those instructions.
According to Charlene's testimony, Alan demonstrated what occurred, by "open[ing] his legs and put[ting] his hand down there with his underwear on." Charlene's could not recall, however, whether this happened during Alan's initial disclosure or a later one.
The next morning Bob apologized to Alan. According to Charlene, on the same day, Alan went to her grandmother's house, where he stated that Bob touched his buttocks and penis.
Instead of pursuing the matter, Charlene tried to put it behind her and the family, attributing the incident to a mistake. However, her relationship with Bob began to break down after the holidays. By the end of the year, the relationship was over and Bob had no further contact with the children. However, Charlene and Bob continued to communicate through emails they exchanged between January 1 and January 11, 2007. As expressed in her emails, the focus of Charlene's anger was not Bob's alleged abuse of Alan, but his discussions with Charlene's sister and his giving Charlene's laptop computer to her sister. In Charlene's last email on January 11, 2007, she characterized Bob's actions regarding her sister and the computer as being the "act of evilness" that "sealed [his] coffin," in terms of their relationship.
Also on January 11, 2007, Charlene contacted the police after Alan "again told her that [Bob] touched his butt," and the police contacted the Division. According to the officer, as recorded by the Division's intake worker,
[Charlene] stated [Alan] reported that [Bob] put his fingers up his butt to stop the "poo-poo" and he has also touched his "pee-pee" and wiggled it, making it come alive. When [Charlene] asked the child to explain what he means, she reported that [Alan] rolled on his back, put his legs up and then put his fingers in his butt. After he made the disclosure, she immediately contacted the police. When asked if [Bob] was ever in a caregiver role for the children, the reporter replied no, however he may have changed a pamper for [Alan], but nothing else.
As a result of the reporting, both the Division and the county prosecutor commenced investigations. The county prosecutor's investigation included an interview of the child by Detective Kristen Houck and a physical examination of Alan by Decker.
The doctor conducted his examination on January 23, 2007. Before beginning, Charlene told Decker "[t]here [was] digital penetration of [Alan's] rectal area that . . . had occurred at several different times, more than one time, but several different times." Decker asked Alan what had happened and Alan stated Bob "touched my hiney and pee-pee . . . [w]ith his fingers . . . [h]e stuck his finger in my hiney . . . [h]e pinched my booty and I said 'ow.'" Alan also stated, "[h]e touched my booty," and pointed to his rear end. He "spontaneously" demonstrated what occurred "by pointing towards his anal region with his index finger."
In his examination report, Decker concluded:
The report was not written until two years later on February 11, 2009.
In summation, the examination revealed a distortion to [Alan's] rectal region at the 6 and 12 o'clock regions. These two distorted areas were lighter appearing tissue versus the rest of the anal verge region. These areas are consistent with trauma and subsequent scar formation, after potential insertion of a foreign object in the anal region.
Decker, however, did not know if the "lighter appearing tissue" was in fact scar tissue because he "did not actually take a piece of sample and test it," or how long the purported scar tissue was present before his examination. Decker acknowledged it could have been there from the beginning of Alan's life. Decker testified that, based on his experience, what he saw was "consistent with scar tissue" and he did not know what else it could have been. He could not, however, confirm that it was caused by digital penetration without reference to the historical information he was given by Charlene. Decker opined that the scarring could not have been caused by Alan's constipation or his colon being impacted, or by a properly-performed disimpaction. He did state, however, "any sort of trauma to that area . . . can [lead to] scar tissue formation."
The interview of Alan conducted by Houck was videotaped, but the tape was not available at the hearing. There was, however, a draft transcript of the interview, which was prepared by Houck's secretary but not signed by Houck. From the transcript, it appeared that Alan disclosed to Houck that Bob "touch[ed] his hiney" and "stuck his finger in [Alan's] hiney." The interview was observed from another room by the Division's case worker, Jennifer Kirkman.
On May 1, 2007, the Division informed Bob that its investigation substantiated the allegations of child abuse. Bob appealed the initial determination and requested a hearing before an ALJ.
The hearing was conducted over four days between June 2011 and February 2012. Charlene, Decker, Houck, and Kirkman testified on behalf of the Division. Bob attended but did not testify and did not call any witnesses. After considering the testimony presented and the exhibits admitted into evidence, the ALJ issued a thirty-nine-page written decision and order.
The ALJ began by recounting the facts leading up to the Division's involvement before setting forth in detail the substance of each witness's testimony and the inconsistencies in their statements. The judge then reviewed the applicable law relating to the Division's finding that a child has been abused or neglected and the case law controlling her assessment of the witnesses' credibility and the "nature of the evidence presented," describing when hearsay evidence is admissible in these proceedings. The judge, relying on N.J.S.A. 9:6-8.46(a)(4), noted that for Alan's hearsay statements to be considered, they "must be sufficiently corroborated in order to support any ultimate finding of abuse." Applying this requirement, and in light of Charlene's testimony that Bob had no further contact with the children after December 31, 2006, the ALJ concluded there was one incident of alleged abuse, that Alan's disclosure in January 2007 related to the earlier episode, and that there was no corroboration of the allegations regarding Bob touching Alan's penis.
The ALJ turned next to the evidence the Division relied upon to support its contention Bob abused Alan by digital penetration. The evidence included Alan's disclosures to Charlene, her grandmother, Houck, and Decker, and the doctor's medical findings. The judge rejected the Division's argument, stating she did "not embrace the [Division's] stance that it has satisfied its burden of proving that [Bob] sexually abused [Alan]."
The judge reviewed the issues she had with each of the witnesses' testimony. For example, she discounted Houck's testimony because the detective did not have the videotape of her interview with Alan and could not independently recall "what [Alan] did or meant" during the interview. To the extent the judge was able to glean what Alan said during the interview from the draft transcript, many of his statements "did not make sense" or "were inconsistent." The judge was also concerned Alan had been "coached" because Charlene testified that "she constantly rehearsed scenarios with her children, including how to deal with a fire and molestation."
The judge questioned Kirkman's testimony about her reliance on Decker's report for substantiating the abuse because: the report was not written until years later; Decker testified he never spoke to anyone at the Division about his findings; and there were no references to conversations between him and anyone at the Division, even though Kirkman testified she spoke to him on the phone. Moreover, while Decker concluded the scar formation was consistent with "insertion of a foreign object in the anal region," Kirkman's report stated it was Decker's opinion that it was consistent "with an adult finger." Finally, Kirkman could not explain why the Division's report was changed from a finding of "unfounded" to "substantiated" or why the change occurred on the day the Division advised Bob's attorney "the matter was being transmitted to the OAL [Office of Administrative Law]" for a hearing.
Addressing Charlene's testimony, the judge stated she found it
to be inherently inconsistent and at variance with, and discredited in significant respects by, her prior renditions to the Prosecutor's Office and others. A canvas[s] of her testimony and the evidence as a whole casts substantial doubt on the accuracy and reliability of her recollection and version of the alleged events, along with the believability of her testimony as to those events and other matters. [Charlene's] demeanor at the hearing clearly disclosed her strong feelings against [Bob], and the e-mails she sent to [him] are inherently contradictory to and inconsistent with her subsequent actions, statements and testimony.
Citing Charlene's testimony about her finding Bob in Alan's bedroom in the middle of a night in the summer of 2006 — in an unusual if not compromising position — and certain observations Charlene made during the ensuing months, as well as the December 22 disclosure, the judge found "[t]he strength of her testimony" was "significantly impaired by, and irreconcilable with, her failure to report the disclosure or take other action until January 11, 2007, her emails to [Bob], and her continuation of a dating relationship with him until December 31, 2006." The ALJ then reviewed the inconsistencies between Charlene's testimony and the various statements she had made during the investigation since her initial reporting. Based on these credibility determinations, the judge found from Charlene's testimony that Alan told her Bob had "stuck his finger in his hiney" but "afford[ed] no weight to the remainder of [Charlene's] testimony." She was also satisfied that Alan made similar disclosures to Houck and Decker, but that "without more, [they were] insufficient to support an ultimate finding of abuse."
The judge then addressed the medical evidence, finding Decker to be credible, but that the totality of his testimony and the other evidence "fell short of establishing the necessary causal connection between [Alan's] statements and the results of Decker's physical examination." The judge observed that, while Decker opined that Alan displayed what appeared to be scar tissue, Decker admitted that he could not confirm that it was because the tissue was not tested, that he could not be certain as to what had been inserted into Alan, and that "it was possible" that the tissue abnormality he observed "could have been present since day two of [Alan's] life." Addressing the hospital records of Alan's December 8, 2006 visit, the ALJ noted that although the hospital records did not indicate either way, Decker testified that Charlene told him Alan was manually disimpacted at the hospital. According to Charlene's testimony, although she did not see the doctors use an enema or perform a manual disimpaction, she also did not know whether any disimpaction was in fact done. When comparing the dates of the events, the judge observed "the hospital visit [was] later than the two- to four-week period that Decker explained is necessary for scar tissue to form." The judge concluded by finding "based upon the totality of the evidence, the nature of th[e] abnormality, without more, d[id] not provide sufficient corroboration for [Alan's] statement that [Bob] stuck his finger in his rectum."
Decker explained this was the minimum time period "from [the] initial injury to allow the body to form a scar." He confirmed to the judge that the scar tissue could have formed a year prior.
The ALJ entered an order on May 28, 2013, reversing the Division's substantiation of abuse and directing its "records be modified to reflect a finding of 'unfounded.'"
On June 13, 2007, the Division filed exceptions to the ALJ's determinations, both factual and legal. Bob's attorneys filed an objection to the Division's exceptions, arguing it was untimely and directed to the wrong person, but included an "untimely" response to the Division's submission. A series of orders were entered extending the period for exceptions and for the filing of the agency's final decision. The last order, dated February 26, 2014, extended the deadline to April 9, 2014.
On March 27, 2014, the Director issued the Division's written final decision, rejecting the ALJ's recommendation. The Director found that the ALJ's credibility determinations were not supported by the record, and that her legal conclusion regarding Decker's testimony being insufficient to corroborate Alan's disclosure was incorrect.
The Director began by reviewing the testimony before the ALJ and the judge's findings and conclusions. She specifically addressed and discounted the ALJ's findings regarding inconsistencies in and omissions from the witnesses' testimony. For example, the Director noted that while the judge observed Kirkman never interviewed Alan, Kirkman did watch his interview by Houck, so any lack of weight given to her testimony on that basis was unjustified. The Director also stated, "[t]he ALJ's emphasis on the caseworker's role in this matter displays a lack of familiarity with the substantiation process." She explained why the caseworker's form would have been changed from "unfounded" to "substantiated," and observed, "[i]t is not the caseworker who determines whether to uphold allegations of abuse or neglect but the agency." Similarly, the Director stated that while Decker's report did not mention penetration by a finger, he did testify to that possibility. The Director did not, however, mention the ALJ's credibility determination regarding Charlene.
After considering the ALJ's credibility findings, the Director turned to whether sufficient corroboration of Alan's statements about Bob's abuse was adduced at the hearing. Relying upon N.J.S.A. 9:6-8.46(a)(4), our opinion in New Jersey Division of Youth & Family Services v. Z.P.R., 351 N.J. Super. 427, 436 (App. Div. 2002), and an unpublished opinion, the Director concluded Alan's statements were sufficiently corroborated. The Director quoted from the Court's opinion in State v. D.G., 157 N.J. 112, 125 (1999), regarding "key factors a court should consider in determining if hearsay evidence from a child is reliable." She cited Decker's observation of what could have been scarring and his opinion that it could have been caused by digital penetration, and Alan's consistent repetition of the allegation to his mother, Houck, and Decker. In addition, she relied on both Houck's and Decker's testimony, stating, "they believed [Alan's] report of the sex abuse allegations, noting that a child of such tender years would not repeat what an adult related to them occurred."
Bob filed a timely appeal from the Division's final decision.
Turning first to Bob's procedural argument, he contends that the Division "failed to either file a final decision or seek an extension of time within the forty-five (45) day period from the previous extension, ending on February 23, 2014." According to Bob, because the Division did not submit a request for an extension until February 25, 2014, the ALJ's decision should have been deemed accepted, and the Director's final decision should be without any effect. The Division disagrees and argues that because the request for an extension was signed by the Director on February 21, 2014, the Division satisfied its obligation to make the request before the expiration of the time provided to accept or reject the ALJ's recommendation, even though the request was not mailed to the OAL until February 25, 2014. Quoting our decision in Rollins Environmental Services (NJ), Inc. v. Weiner, 269 N.J. Super. 161, 171-72 (App. Div. 1993), the Division argues the circumstances did not warrant "depriv[ing the Director] of [her] statutory responsibility to decide the issues before [her]." We find no merit to Bob's argument.
The Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -15, sets forth the requirement that an agency head render a decision accepting or rejecting an ALJ's recommendation within forty-five days, subject to extension for good cause. N.J.S.A. 52:14B-10(c); see also N.J.A.C. 1:1-18.6(e). The method for an agency to seek an extension of that period is set forth in N.J.A.C. 1:1-18.8, which states in pertinent part:
(a) Time limits for filing an initial decision, filing exceptions and replies and issuing a final decision may be extended for good cause.
(b) A request for extension of any time period must be submitted no later than the day on which that time period is to expire. This requirement may be waived only in case of emergency or other unforeseeable circumstances.
[N. J.A.C. 1:1-18.8(a)-(b).]
Prior to recent amendments to the cited statute and regulation, we repeatedly held that, absent a showing of bad faith, inexcusable negligence, or gross indifference on the part of an agency head, a technical flaw in applying for an extension may not be used to invalidate the agency head's ability and responsibility to issue a final decision in a contested matter. See Newman v. Ramapo Coll. of N.J., 349 N.J. Super. 196, 201-02 (App. Div. 2002); Rollins, supra, 269 N.J. Super. at 171-72; Mastro v. Bd. of Trs., Pub. Emps.' Ret. Sys., 266 N.J. Super. 445, 451 (App. Div. 1993).
On January 17, 2014, the Legislature approved an amendment to N.J.S.A. 52:14B-10(c), which took effect on March 18, 2014, and sought to "eliminate the provision authorizing the unlimited extension of th[e] 45-day time period, and provide, instead, for a single extension of no more than 45 days for good cause shown." Statement to A. 1521 (Oct. 18, 2012). In 2015, the Legislature amended N.J.A.C. 1:1-18.8(e) to reflect the legislative intent behind the amendment to N.J.S.A. 52:14B-10(c). See 46 N.J.R. 2299(a) (Dec. 1, 2014).
We discern from our review of the record no facts to support any argument that, despite the brief delay in emailing its request for an extension to the OAL, the Division was not diligently pursuing the performance of its obligation to consider the ALJ's decision and render a timely decision.
We begin our consideration of Bob's substantive challenge to the Division's decision by recognizing the limited role we perform in reviewing final agency determinations. The Division is the state agency responsible for the "care, custody, guardianship, maintenance, and protection of children." N.J.S.A. 30:4C-2(a). In an abuse and neglect case, the Division must prove by "a preponderance of the evidence" that the child has been abused or neglected, and "only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(b); see also Dep't of Children & Families, Div. of Child Prot. & Permanency v. E.D.-O., 223 N.J. 166, 190 n.4 (2015).
When an appeal is filed from the Division's initial determination, pursuant to the APA, "an ALJ, who has been assigned to review a disputed matter involving a State agency, is charged with issuing a decision that contains recommended findings of fact and conclusions of law that are 'based upon sufficient, competent, and credible evidence.'" In re Taylor, 158 N.J. 644, 655 (1999) (quoting N.J.S.A. 52:14B-10(c)). The director of the agency then, as the "primary factfinder," has the "ultimate authority, upon a review of the record submitted by the ALJ[,] to adopt, reject or modify the recommended report and decision of the ALJ." N.J. Dep't of Pub. Advocate v. N.J. Bd. of Pub. Utils., 189 N.J. Super. 491, 507 (App. Div. 1983) (citing N.J.S.A. 52:14B-10(c)); see also E.D.-O., supra, 223 N.J. at 190; Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 586-87 (1988) (explaining the relationship between an ALJ's initial decision and the agency's final decision).
The director's review is circumscribed by statute and regulation. Generally, "the agency head may reject or modify findings of fact, conclusions of law or interpretations of agency policy in the decision, [as long as he or she] state[s] clearly the reasons for doing so." N.J.S.A. 52:14B-10(c); see also N.J.A.C. 1:1-18.6(c). However, an agency head may only reject credibility findings if he or she determines the ALJ's findings were "arbitrary, capricious or unreasonable or [were] not supported by sufficient, competent, and credible evidence in the record." N.J.S.A. 52:14B-10(c); see also N.J.A.C. 1:1-18.6(c). "In rejecting or modifying any findings of fact, [including those regarding credibility,] the agency head shall state with particularity the reasons for rejecting the findings and shall make new or modified findings supported by sufficient, competent, and credible evidence in the record." N.J.S.A. 52:14B-10(c); see also N.J.A.C. 1:1-18.6(b), (d). However, it is not for "the agency head to disturb [a] credibility determination, made after due consideration of the witnesses' testimony and demeanor during the hearing." H.K. v. State, 184 N.J. 367, 384 (2005) (agency's expertise irrelevant because ALJ's credibility decision mandated a finding based on settled law); see also Clowes, supra, 109 N.J. at 587. Further, the ALJ's credibility determinations need not be explicitly enunciated if the record as a whole makes these findings clear. Taylor, supra, 158 N.J. at 659-60.
The regulation details the requirements imposed on the agency head if the ALJ's fact findings or legal conclusions are modified or rejected. It states:
The order or final decision rejecting or modifying the initial decision shall state in clear and sufficient detail the nature of the rejection or modification, the reasons for it, the specific evidence at hearing and interpretation of law upon which it is based and precise changes in result or disposition caused by the rejection or modification.
[N. J.A.C. 1:1-18.6(b).]
In an appeal from the director's determination to reject or modify an ALJ's credibility or factual findings, we conduct a limited review. Taylor, supra, 158 N.J. at 656. However, it has been recognized, that there is a "particularly strong need for careful appellate review" where the agency's factual findings are contrary to those of the ALJ. In re Lalama, 343 N.J. Super. 560, 565-66 (App. Div. 2001). Ultimately, we must uphold the final decision of a state administrative agency "unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record," In re Herrmann, 192 N.J. 19, 27-28 (2007), as we must defer to the expertise of a state administrative agency. Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992), "even if [we] feel[] that [we] would have reached a different result." Clowes, supra, 109 N.J. at 588. We "need not[, however,] defer[] to the Director on the issue of the credibility of the witnesses" in the same fashion we do in considering an appeal from her determination, because, unlike the ALJ, "who heard the live testimony, and . . . was in a position to judge the witnesses' credibility," "the Director based [her] decision, on [only her] . . . review[] of the transcripts and documentary evidence submitted by the parties." Clowes, supra, 109 N.J. at 587; see also S.D. v. Div. of Med. Assistance & Health Servs., 349 N.J. Super. 480, 483-84 (App. Div. 2002).
The question of substantial evidence is relevant in matters where, as here, the ALJ and the agency are at odds. N.J. Dep't of the Pub. Advocate, supra, 189 N.J. Super. at 505. "[I]n the last analysis it is the agency's function, not the [ALJ]'s, to make the findings of fact and select the ultimate decision, and where there is substantial evidence supporting each result it is the agency's choice that governs." Id. at 505 (alteration in original). However, the ALJ's report is part of the record and weighs against the agency's decision when they are in conflict. Id. at 508.
We apply these standards of review to Bob's challenge to the Director's rejection of the ALJ's finding of facts and credibility determinations. We initially observe that his challenges highlight the Director's and ALJ's different views regarding the sufficiency of Alan's repeated disclosures and of Decker's opinion as to whether his examination of Alan led to a conclusion that he had been assaulted.
In reaching her conclusion, the Director rejected the ALJ's credibility findings and relied on case law to support her determination that Alan's disclosures were adequately corroborated. We find error in both.
We conclude from our review of the Director's decision that she did not limit her review to determine whether the ALJ's credibility determinations were adequately supported. Rather, she simply disagreed with the ALJ's credibility findings without ever considering the ALJ's determination that Charlene was not credible and was biased, as evinced by her emails and demonstrated by the inconsistences in her testimony and her explanation of how she regularly coached her children to react to various situations. That unbelievable testimony was what the Director ultimately relied upon, at least in part, when holding that Alan's disclosures were corroborated by his repeating them at different times to different people.
We reach the same conclusion regarding the Director's treatment of Decker's testimony. As to expert testimony, the agency head and this court should "rely on the [ALJ]'s acceptance of the credibility of the expert's testimony and the [ALJ]'s fact-findings based thereon" because, again, the judge "is better positioned to evaluate the witness'[s] credibility, qualifications, and the weight to be accorded [the expert's] testimony." In re Guardianship of DMH, 161 N.J. 365, 382 (1999).
In this instance, the ALJ determined Decker did not establish that Alan demonstrated evidence of actual scarring because the suspicious tissue was never tested. Moreover, Decker was not able to determine how long the tissue discoloration existed and stated that it could have been in that state for the child's entire life, and was not able to attribute the alleged scarring to a particular cause without Charlene's proffered explanation. The Director simply rejected the ALJ's findings rather than deferring to the judge.
Also, contrary to the Director's legal conclusion, our decision in Z.P.R. did not stand for the proposition that a putative child victim's own statements could serve as the corroborating evidence for admission of the hearsay statements being relied upon. Rather, in Z.P.R. we observed "that evidence of age-inappropriate sexual behavior could provide the necessary corroboration required by N.J.S.A. 9:6-8.46a(4)[, and that t]he corroborative evidence need not relate directly to the alleged abuser, it need only provide support for the out-of-court statements." Z.P.R., supra, 351 N.J. Super. at 436. We have also held that, "[i]f accepted by the fact-finder, . . . psychological testimony [can] serve as indirect corroboration of the child's allegation of sexual abuse." N.J. Div. of Child Prot. & Permanency v. I.B., 441 N.J. Super. 585, 595 (App. Div. 2015) (citing Z.P.R., supra, 351 N.J. Super. at 436).
We stated the requirement could be satisfied with evidence of the child's:
precocious sexual knowledge, as well as abnormal and sexualized behavior as corroborative of children's hearsay statements regarding abuse. It is well accepted that such age-inappropriate behavior is one of the behavioral signs associated with child sexual abuse. . . . [W]e noted as one of the facts militating in favor of the reliability of out-of-court statements of child sex abuse victims was the child's exhibiting knowledge of sexual practices beyond her reasonably anticipated imagination.
[Z.P.R., supra, 351 N.J. Super. at 436 (citations omitted).]
The Director rejected the ALJ's findings as to Decker's testimony without even mentioning them in the final decision and concluded "Decker's testimony, report, and expert opinion serve to corroborate [Alan]'s statements and is the type of competent evidence that N.J.S.A. 9:6-8.46(a) and N.J.A.C. 1:1-15.5 require as support of the child victim's hearsay statement." In reaching that conclusion, the Director failed to limit her inquiry to whether there was sufficient credible evidence to support the ALJ's findings.
The Director discussed only the ALJ's finding regarding the two-year period between Decker's examination of Alan and Decker not recalling the conversation with Kirkland. --------
In sum, we conclude the Director overstepped the boundaries of her role by failing to give the ALJ's determinations the deference to which they were entitled. As a result, the agency's final decision must be reversed and Bob's name must be removed from the registry.
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION