Opinion
08-21-2013
DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF CHILD PROTECTION AND PERMANENCY, Petitioner-Respondent, v. D.T., Respondent-Appellant.
Mark J. Molz argued the cause for appellant. Julie B. Christensen, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Christensen, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Sapp-Peterson and Haas.
On appeal from the Department of Children and Families, Division of Child Protection and Permanency, Agency Docket No. AHU 07-902.
Mark J. Molz argued the cause for appellant.
Julie B. Christensen, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Christensen, on the brief). PER CURIAM
Defendant D.T. appeals from an order of the Department of Children and Families (DCF), Division of Child Protection and Permanency (Division), affirming the finding of abuse and entering his name in the child abuse registry pursuant to N.J.S.A. 9:6-8.11. We affirm.
Following an investigation that commenced in June 2007, the Division substantiated allegations of sexual molestation by D.T. of T.M., a minor and friend of his son, S.T., when T.M. spent time at D.T.'s home. D.T. requested an administrative hearing and the matter was transmitted to the Office of Administrative Law (OAL) for a contested hearing before an Administrative Law Judge (ALJ). N.J.S.A. 52:14B-1 to -15.
The hearing was held on several dates between March 11, 2011 and April 13, 2012 before ALJ John R. Futey. Three witnesses testified on behalf of the Division: Linda Burnett, the Division's case manager; T.M.'s mother, K.M.; and Dr. Martin A. Finkel, Professor of Pediatrics and the Medical Director of the Child Abuse Research Institute (CARES) within the University of Medicine and Dentistry of New Jersey. The documentary evidence considered by the ALJ consisted of: (1) a June 12, 2007 screening summary; (2) a referral response report; (3) an eight-page contact sheet; (4) a certified CARES evaluation dated June 14, 2007; (5) the Division's documentation of responses; (6) a Department of Children and Families (DCF) findings letter; (7) two DVD interviews of T.M. conducted by the Burlington County Prosecutor's Office (BCPO); and (8) Dr. Finkel's curriculum vitae. For the defense, in addition to D.T.'s testimony, K.T., his spouse, and S.T., his son, testified on his behalf.
The evidence from which the ALJ reached his initial decision and recommendation revealed that on June 12, 2007, the Division received a referral from the BCPO concerning seven-year-old T.M.'s allegation that he was sexually molested by D.T., the father of his friend, S.T., on several occasions when at S.T.'s house. That day, Burnett met with investigators at the BCPO. Although T.M. had been interviewed the previous day when the case was initiated, T.M. requested a second interview because he wanted to disclose more information about D.T. Burnett observed that interview through closed circuit television. She also viewed a video recording of T.M.'s first interview with BCPO Detective Jennifer Ayers.
During T.M.'s initial interview with Detective Ayers, he alleged that D.T. touched him inappropriately during sleepovers with S.T. T.M. disclosed that on one such occasion, D.T. made him take a shower and was present in the bathroom, helping him wash his body while he stood outside the shower. When T.M. exited the shower, D.T. touched his "weenie." T.M. stated that D.T. had also touched him at other times while T.M. was clothed. T.M. refused to comment on whether he had ever touched D.T. as well. He stated these encounters occurred whenever the other children were either asleep or playing elsewhere in the house. T.M. also stated that on one occasion, the abuse occurred while D.T.'s wife was in Arizona.
In his second interview with Detective Ayers, T.M. reported that once, after D.T. made T.M. take a shower, he inserted the tip of his finger into T.M.'s anus while the two of them were in the master bedroom. T.M. stated that sometimes when he slept on a couch located outside D.T.'s room, D.T. would "sneak out" of his room to fondle his penis while he slept. When asked how he knew D.T. touched him if he was asleep, T.M. told the detective that his mother "figured it out" and he believed his mother was right. T.M. reluctantly admitted he touched D.T.'s penis two to three times with his finger. He denied that D.T. had oral contact with his penis or he with D.T's penis, stating "that would be disgusting" and was something he "does not like to talk about."
When asked if he ever touched anybody else in a sexual manner, T.M. stated that he and S.T touched each other's penises. He repeatedly stated D.T. "brainwashed" him to touch D.T.'s penis and S.T.'s penis as well. T.M. also accused D.T. of humping him with his clothes on. He told Detective Ayers he did not tell his mother the details of his initial interview or why he wanted to speak with the detective a second time.
As noted earlier, T.M. did not testify at the administrative hearing. However, the two recorded interviews were entered into evidence. Additional statements attributed to him were introduced through other witnesses.
Burnett testified that in substantiating D.T. for child abuse, she relied upon T.M.'s interviews at the BCPO and his disclosures to Dr. Finkel, who examined him at the direction of the Division. She viewed T.M.'s interviews at the BCPO and spoke to K.M. as part of her investigation. K.M. told her that T.M. often spent time at S.T.'s house because her other child, E.M., was autistic and required much of her attention. K.M. also told her that S.T.'s mother was rarely home, but the family employed an au pair.
K.M. explained to Burnett that T.M. had been exhibiting some age inappropriate sexual behaviors, so she spoke to him about it. She did not describe the behaviors to Burnett. Rather, she told Burnett she asked T.M. where he learned the offensive touching and wanted to know if anyone had touched him. When he didn't respond, she began to list the names of adults with whom he visited. T.M. denied that the first two adults she referenced had touched him but became hysterical and inconsolable when she mentioned D.T.'s name and stated that D.T. had touched him.
Burnett did not speak with D.T. directly. Another caseworker, Philip Yansak, contacted D.T. about the allegations. D.T. denied molesting T.M. or assisting him in the shower.
On cross-examination, defense counsel asked Burnett whether she would have substantiated D.T. for sexual abuse had she known K.M. had kept some facts from her, such as T.M.'s sexually inappropriate interactions with his siblings, his bedwetting, and the fact that following some research on the internet, T.M.'s parents suspected he was being sexually abused. Burnett replied that the missing information should have been revealed but insisted she would not change her opinion that abuse had been substantiated. Burnett admitted she did not ask how many sleepovers T.M. had with S.T., nor did she inquire as to when the last sleepover occurred. She also admitted that T.M.'s statement to Detective Ayers that his mom told him D.T. would sneak out and touch him while he was sleeping raised some issues, but stated she did not believe T.M.'s mom planted the idea of the sexual abuse in T.M.'s head.
Dr. Finkel was qualified, without objection, as an expert in the area of the medical diagnosis of child sexual abuse. Prior to physically examining T.M., Dr. Finkel spoke with T.M.'s parents to obtain the child's medical history and the background information regarding the alleged sexual abuse. He learned from K.M. that once while being bathed, T.M. told K.M. that his "hiney hurts" and K.M. observed a red bruise on his butt. She also told the doctor that T.M. reported to her that he and S.T. touched each other in the bathroom because they thought it was funny. Dr. Finkel testified that K.M. stated she approached S.T.'s mother, K.T., about their sons' behavior, but K.T. dismissed it.
K.M. advised Dr. Finkel that the night before she questioned T.M., she had punished him for touching his two-year-old sister's genitalia while they were in the bathtub together. She stated that she and her husband researched T.M.'s behavior on the internet and thereafter believed that T.M. had been sexually abused. She then explained how she questioned T.M. about his sexually inappropriate behavior and T.M.'s eventual disclosure that D.T. touched him.
During his private interview with T.M., Dr. Finkel asked T.M. why he decided to tell his parents about the abuse, and T.M. responded, "I didn't actually tell. My mom figured it out," and added that he felt better for having told his mother. T.M. explained that D.T. told him to keep their interactions a secret or T.M. would no longer be invited over. T.M. told Dr. Finkel that D.T. touched him with "the thing that he pees from." He described D.T.'s genitalia as being the "same as mine but bigger and hairy." T.M. also stated D.T. made him and S.T. touch each other's penises, D.T. made him touch D.T.'s penis, D.T. put his mouth on T.M.'s penis, and D.T. attempted to put his penis into his mouth but he resisted. When asked to describe the sensation of having D.T.'s finger in his buttocks, T.M. stated it felt like "something was going to come out of my butt." T.M. characterized the acts as "disgusting" and "embarrassing." He denied that D.T. showed him pornography or took any photographs of him.
Following the interview, Dr. Finkel conducted a physical examination of T.M. and found no physical markers of sexual abuse. Nonetheless, he concluded, based upon his experience, that T.M.'s responses were typical of a sexually abused child. He opined that T.M.'s use of idiosyncratic terms in explaining sexual acts and body parts, such as his description of the penis and what it felt like when D.T. penetrated him, confirmed these events occurred.
On cross-examination, Dr. Finkel admitted that T.M.'s disclosure to him differed somewhat from what T.M. had told investigators at the BCPO; specifically, T.M. told Dr. Finkel D.T. had oral contact with his penis, whereas he previously denied such contact in his interview with Detective Ayers. However, the doctor disagreed with counsel's suggestion that this inconsistency undermined T.M.'s credibility, explaining that children become more comfortable talking about the details of a sexual encounter the more they speak with experienced individuals and that the process can be therapeutic for them. He added that new details may also emerge based on how a question is posed to the child. Despite the inconsistency, he remained firm in his opinion that the manner in which T.M. detailed the encounters supported a finding that he actually experienced them.
In her testimony, K.M. recounted that she met D.T. at a child's birthday party in the neighborhood in December 2004. They eventually exchanged phone numbers to facilitate play dates for their sons, who had become friends over the school year. Sometime in 2005, the boys began to get together for play dates, outings and sleepovers a few times a month. K.M. testified that D.T. was very helpful and willing to watch T.M., as her other son, E.M., required special attention. K.M. estimated T.M. slept at S.T.'s house about five to six times.
In the summer of 2006, T.M. disclosed to her that S.T. touched his younger brother N.T.'s penis with his feet while N.T. was urinating. K.M. told T.M. that was inappropriate and asked if S.T. touched T.M. as well. T.M. admitted that he and S.T. touched each other's penises because they thought it was funny. K.M. testified she admonished T.M. but, after speaking with K.T., she chalked the boys' actions up to normal boy behavior, much like passing gas and burping. K.M. was aware that T.M. took showers when he slept over at S.T.'s house but allowed it because, when asked, T.M. stated he was comfortable doing so.
During a sleepover in the winter of 2007, K.M. testified that D.T. called her because T.M. was crying hysterically. Despite the lateness of the hour, K.M. brought him home. T.M. refused to tell her why he was crying and eventually cried himself to sleep. She recalled that T.M. was recovering from pneumonia and bronchitis but that she had given his medication to K.T. She therefore assumed he was just exhausted and reacting to his asthma medication. However, a few days later, T.M. complained that his "hiney hurts" and she saw a red mark and a scratch near T.M.'s anus, but T.M. would not tell her what happened. In addition, around this time, T.M. began to urinate on himself at school several times a week and appeared withdrawn. He was also experiencing nightmares and was reluctant to go into the bathroom at home. T.M., however,
K.M. testified that one night, T.M. asked if she would still love him "if he did something bad." She assured him that she would. T.M., however, did not reveal why he asked the question. Around April or May 2007, T.M. told K.M. he no longer wanted to go to S.T.'s house, so the visits stopped. Soon thereafter, K.M. learned that T.M. had told his two-year-old sister to put her mouth on his penis. She also noticed T.M.'s brother, E.M., inserting his finger into his own anus. She confronted T.M., who admitted that he once inserted his finger into E.M.'s anus.
K.M. testified that she and her husband researched T.M.'s behavioral issues online and, based on the results, they suspected he was being sexually molested. Then, on the morning of June 10, 2007, K.M. left T.M. and his sister in the house while she walked E.M. to his school bus. When she returned, T.M. confessed to K.M. that he made his sister lick his penis while K.M. was away. She screamed at T.M., asking where he learned these behaviors and naming the adults with whom he interacted, starting with two female neighbors. T.M. denied that anything occurred with those two neighbors. When K.M. mentioned D.T.'s name, T.M. immediately began to scream and ran into K.M.'s bedroom, repeating "you hate me, you hate me." She recounted that T.M. was crying so hard that he vomited on the bed. K.M. stated that T.M. cried inconsolably for about ten minutes, at which point he stated "Yes. Yes. Yes. It was him. It was him." K.M. tried to console T.M., telling him it was not his fault and that D.T. had brainwashed him into thinking it was okay to touch other people's private parts.
K.M. immediately contacted her mother, who came to the house and discussed the matter with her. Under cross-examination, K.M. admitted T.M. was present during this discussion, but insisted, however, that she and her mother were not standing close enough to T.M. for him to hear, and stated that T.M., at that point, was still crying hysterically. She, however, agreed that T.M. learned the word "brainwashing" from her when she used the word to assure him that D.T.'s actions were not his fault.
In her testimony, K.T., D.T.'s wife, denied knowing whether T.M. and D.T had ever been left alone together. She testified that she was a neonatal nurse and worked the day shift, leaving home between 5:00 a.m. and 6:00 a.m. and returning around the dinner hour. She stated that she occasionally worked the evening shift, but on those occasions, about once a month, the family's au pair was present with D.T. and their children. She also testified that she traveled once a year for work. She explained that whenever T.M.'s clothes were washed during a sleepover, she or the au pair washed them. She stated that the one time she recalled T.M. taking a shower during a sleepover, D.T. remained downstairs or outside while she provided T.M. with a towel through a crack in the door. According to K.T., T.M. had slept over about three or four times. She denied that K.M. ever alerted her to any sexual touching between T.M. and her children.
D.T. testified on his own behalf. He denied T.M.'s allegations. He denied that T.M. slept overnight on a couch outside of his bedroom. On the evening when he contacted T.M.'s parents to pick up the child, he stated that, according to T.M., he had missed his medication that night. D.T. denied that T.M. had been crying hysterically. Instead, he described T.M. as being anxious and just "was not himself." D.T. stated he told T.M.'s parents to come and pick him up, which they did without incident.
Judge Futey questioned S.T. in camera. He was thirteen at the time of the hearing. He denied knowing about any touching between his father and T.M. as well as between himself and T.M. He stated T.M. slept over about once or twice. He could not recall their sleeping arrangements during the sleepovers.
The ALJ subsequently issued a written opinion. He first found that D.T. had the opportunity to engage in sexually inappropriate conduct with T.M. He noted K.T.'s admission, under cross-examination, that she traveled away from the family home once a year, worked an overnight shift once a month, and her acknowledgement that T.M. could have been at her home on those occasions when she was not at home. He noted that although K.T. claimed there was always someone home with the children in addition to D.T., such as her mother or the au pair, and although D.T. claimed the family regularly spent three-day weekend jaunts away from home, no corroborating evidence had been presented.
Turning to the interviews conducted at the BCPO, he found there was no indication that the investigator "employed improper questioning techniques" or asked "overtly leading questions." Further, while finding that the investigator showed "some bias toward the accused when she told the child 'you did nothing wrong; D.[T.] did,'" he noted the "comment was made at the end of the interview and thus did not taint [T.M.'s] answers in that interview." He concluded that the "first interview was generally reliable and, most importantly, was not [tainted] by any actions by the investigators."
With respect to the second interview, which was conducted the next day, the judge found that part of the interview was "a bit dubious because the interview was precipitated by a leading question by the investigator." He noted that the interview occurred because T.M. wanted to tell the investigator something, but once at the BCPO, he immediately became reluctant to talk, prompting the investigator to ask him leading questions, one which questioned whether D.T. had ever used his finger in a sexual manner. T.M. then told the investigator a story about how D.T. inserted his finger into his "butt." Although questioning the reliability of the statement in that context, when considered along with the fact that T.M. made a similar statement to Dr. Finkel and the circumstances under which he repeated the story, the ALJ found the statements given by T.M. were reliable.
Focusing upon the testimony and opinions expressed by Dr. Finkel, the ALJ rejected the contention that Dr. Finkel's testimony was influenced by monetary gain derived from his contractual relationship with the Division. Rather, the ALJ credited the doctor's testimony:
I FIND that there has been absolutely no proof that either Dr. Finkel or his corporation have compromised their professional or ethical responsibility regarding this child or the manner in which Dr. Finkel conducted the evaluation or arrived at his conclusions. Rather, I found him to be most credible, believable, professional, and impartial. Accordingly, I attached great weight to his findings and conclusions, which were that the statements by T.M. were based upon some specific events
to which he had been subjected. And, after having considered all the testimony adduced, the source of that impact upon the child rested with D.T., whom the child had unequivocally identified as the source of that molestation. As stated by Dr. Finkel in his report:
[T.M.] has described a spectrum of inappropriate sexual interactions initiated by his friend's father that include reciprocal genital touching, genital to genital touching, oral genital contact performed on [T.M.] with an attempt to have [T.M.] do the same, as well as digital penetration of the anal sphincter. These activities were related to [T.M.] in a way that [was] apparently not intimidating or frightening but rather potentially loving and engaging. [T.M.] described the feeling as one that felt good and in fact he made an idiosyncratic statement that he was doing this to other kids to share that good feeling. [T.M.] was told to keep this a secret and it is the secrecy that has allowed these activities to persist over time. . . .By contrast, respondent produced no expert to rebut the findings and conclusions of Dr. Finkel or to otherwise successfully challenge the truthfulness of the statements made to Dr. Finkel by the child during that independent interview.
In addition, even though the initial questioning by Ayers in the second interview appeared to trigger the description of the digital anal penetration by [D.T.] at that time and thus it raised at least some immediate question about the reliability of
those statements made to her then, T.M. nonetheless made the same comments to Dr. Finkel when he conducted his independent assessment of the child a week later. Dr. Finkel independently found in his interview of the child that T.M.'s graphic description of the digital anal penetration was consistent with someone who had actually experienced it. As he further described it[,] "This is the kind of description that kids provide routinely following digital rectal examination and[/]or having experience with inappropriate digital anal penetration." . . . This represents a significant corroboration of those events, and, absent any viable proofs to demonstrate that the prior questioning by Ayers triggered an untruthful statement by the child, it appears more likely than not that the events did occur with D.T., as the child described them, prior prompting by Ayers notwithstanding. No expert proofs were offered to contradict Dr. Finkel's assessments, and, further, there was no successful effort to challenge or demonstrate that the prior second interview questioning by Ayers had any impact upon or otherwise controlled or otherwise triggered the quantum of the responses from T.M. to the examining physician. Dr. Finkel could not see how the child could have made up those graphic descriptions.
Based upon these findings, the ALJ determined that the "greater body of the proofs amply demonstrate[d] that D.T. abused T.M." and found there was "good cause" for the Division to have made a "finding of substantiated child abuse against D.T. with reference to T.M., who was a child entrusted to his care periodically, under the facts specific to this case." The Director concurred with the ALJ and issued a final decision concluding that "D.T. committed an act of sexual abuse pursuant to N.J.S.A. 9:6-8.21(c)(3)[.]" The present appeal followed.
On appeal D.T. contends: (1) T.M.'s out-of-court statements were unreliable and failed the test adopted in State v. Micahels, 136 N.J. 299, 317 (1994), for the admission of such statements; (2) Dr. Finkel's testimony could not rise any higher than T.M.'s out-of-court statements, and (3) the trial court erred in accepting Burnett's testimony. We address each contention in turn.
I.
Preliminary to our discussion is iteration of our standard of review. We employ a limited scope of review over administrative determinations. Williams v. Dep't of Corr., 330 N.J. Super. 197, 203 (App. Div. 2000). We will not disturb the ultimate decision of an agency unless it is shown that the decision was arbitrary, capricious or unreasonable, or that it violated legislative policies expressed or implied in the act governing the agency, ibid., "or is not supported by substantial credible evidence in the record as a whole." Kaprow v. Bd. of Educ. of Berkeley Twp., 131 N.J. 572, 591 (1993). See Prado v. State, 186 N.J. 413, 427 (2006), certif. denied, 190 N.J. 394 (2007); D.L. v. Bd. of Educ. of Princeton Reg'l Sch. Dist., 366 N.J. Super. 269, 273 (App. Div. 2004).
Nonetheless, while our scope of review is limited, it is not relegated to a mere rubber-stamping of agency action. State-Operated School Dist. of the City of Newark v. Gaines, 309 N.J. Super. 327, 332 (App. Div.), certif. denied, 156 N.J. 381 (1998). Rather, we "undertake a 'careful and principled consideration of the agency['s] record and findings.'" Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587 (2001) (citing Riverside Gen. v. N.J. Hosp. Rate Setting Comm'n, 98 N.J. 458, 468 (1985)). Upon doing so, if we are satisfied "'that the evidence and the inferences to be drawn therefrom support the agency head's decision, then [we] must affirm, even if [we] feel[] that [we] would have reached a different result [ourselves].'" Id. at 587 (quoting Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 ( 1988)). See N.J. State League of Municipalities v. Dep't of Cmty. Affairs, 158 N.J. 211, 222 (1999) (holding that "a reviewing court is not to substitute its judgment for that of the agency").
In Michaels, supra, 136 N.J. at 312, our Supreme Court determined that the reliability of a child's in-court testimony may be undermined by improper interrogation techniques that can distort a child's recollection of events. A trial court is required to conduct a pretrial taint (or Michaels') hearing, N.J.R.E. 104, if a defendant makes a showing of "some evidence" that the statements of a child complaining witness were the product of suggestive or coercive interview techniques. Id. at 320, (quoting Watkins v. Sowders, 449 U.S. 341, 350, 101 S. Ct. 654, 659, 66 L. Ed. 2d 549, 557 (1981) (Brennan, J., dissenting)).
Sufficient grounds to justify a taint hearing include, but are not limited to, interrogative practices such as "the absence of spontaneous recall, interviewer bias, repeated leading questions, multiple interviews, incessant questioning, vilification of [a] defendant, ongoing contact with peers and references to their statements, and the use of threats, bribes and cajoling, as well as the failure to videotape or otherwise document the initial interview sessions." Id. at 321.
If a defendant establishes sufficient evidence of unreliability, the burden shifts to the State to prove by clear and convincing evidence that, in the totality of the circumstances, the statement and proffered testimony "retain a degree of reliability sufficient to outweigh the effects of the improper interview techniques." Ibid.
At a Michaels hearing, the State may call experts regarding the suggestive capacity of the procedures employed, and it may demonstrate the reliability of the proffered testimony by independent indicia of reliability. Id. at 321-22. The court must determine whether the questioning, "examined in light of all relevant circumstances, gives rise to the substantial likelihood that the child's recollection of actual events has been irremediably distorted and the statements and the testimony concerning those events are unreliable." Id. at 322.
Among the factors the Supreme Court has deemed probative to that determination are:
1. The person to whom the child made the statement;
2. Whether the statement was made under conditions likely to elicit truthfulness;
3. Whether the child's recitation exhibits unusual or above age level familiarity with sex or sexual functions;
4. Post event and post recitation distress;
5. Any physical evidence of abuse; and
6. Any congruity between the defendant's confession or statement.
[Id. at 317-18 (citing State v. D.R., 136 N.J. 348, 358 (1988)).]
Abuse or neglect actions are controlled by the standards set forth in Title Nine. See N.J. Div. of Youth & Family Servs. v. M.C. (III), 201 N.J. 328, 343, (2010) (citing N.J.S.A. 9:6-8.21 to -8.73). The purpose animating Title Nine "is to provide for the protection of children under 18 years of age who have had serious injury inflicted upon them . . . ." N.J.S.A. 9:6- 8.8. The Division bears the burden of establishing abuse or neglect by a preponderance of "competent, material and relevant evidence." N.J.S.A. 9:6-8.46(b). Under N.J.S.A. 9:6-8.46, "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).
In his decision, Judge Futey found that although T.M.'s inconsistent answers, his repeated use of the word "brainwashed" and the circumstances that led to the initial disclosure "raise some concerns about the reliability of the child's statements[,] . . . . the child's comments and actions at that [first] interview do not in themselves cause the interviewing technique to become rejected outright since an analysis of Ayer's techniques there do not appear to violate Michaels." The ALJ found that Detective Ayers did not make any statements of bias against D.T., assume his guilt, or ask blatantly leading questions. He determined that the investigator's statement that T.M. would "feel way better" if he told the truth is not impermissible, noting that T.M. provided inconsistent answers about whether certain acts occurred, the number of times and circumstances under which they occurred. Judge Futey also noted that T.M. expressed discomfort multiple times during the interview, stating he wanted to "jump out of a window" and "jump in a garbage can" and described the interview as being "in jail." The judge additionally found that T.M. stated he "didn't want to talk about" certain questions. The ALJ viewed T.M.'s use of the word "brainwashed," which K.M. admitted he learned from her, as raising suspicion. However, he concluded these inconsistencies were not a result of Ayer's actions. While acknowledging the leading nature of the questioning in the second interview, Judge Futey noted that T.M. repeated the story to Dr. Finkel without similarly leading questions.
Although D.T. claims T.M. was interviewed five to six times, the record shows that T.M. was questioned four times: first by his mother, twice by Ayers and, lastly, by Dr. Finkel. There is no evidence in the record that during the discussion between K.M. and her mother, T.M. was part of that discussion, even if he was nearby. Nor is there any evidence in the record that police twice interviewed T.M. prior to his interview with Detective Ayers. However, assuming T.M. had been interviewed five or six times, there is no evidence that any of the interviews led T.M. to distort his account of the events.
While multiple interviews may distort a young child's account of an event, there is no strict prohibition on multiple interviews. Rather, the focus is on the repetition of questions, which this record does not reflect. Michaels, supra, 136 N.J. at 310. Judge Futey found T.M.'s account credible, and of chief importance to the judge was the fact that T.M. described the sexual acts using age-appropriate and idiosyncratic language such as "weenie," and "the thing he pees with," as well as his description of the sensation of being penetrated anally. He concluded these statements provided "significant corroboration" of the charged events.
The ALJ also relied upon Dr. Finkel's testimony that T.M.'s statement "is the kind of description that kids provide routinely following . . . digital anal penetration." Finally, the ALJ found that T.M.'s age-inappropriate sexual acts with his siblings are likewise corroborative of his statements against D.T., especially in the absence of proof of an alternate source of such knowledge of these types of acts.
We have previously held a child's exhibition of age-inappropriate sexual behavior can be corroborative of sexual abuse. In Division of Youth and Family Services v. Z.P.R., we held that the trial court erred in failing to acknowledge the subject child's precocious sexual knowledge as corroborative of his hearsay statement that he learned them from the defendant. 351 N.J. Super. 427, 436 (App. Div. 2002). "'[I]n order to give any real effect to the child victim hearsay statute, the corroboration requirement must reasonably be held to include indirect evidence of abuse. Such evidence has included a child victim's precocious knowledge of sexual activity . . . .'" Ibid. (quoting State v. Swan, 114 Wash. 2d 613 (1990), cert. denied, 498 U.S. 1046, 111 S. Ct. 752, 112 L. Ed. 2d 772 (1991)); see also State v. J.O., 130 N.J. 554, 563-64 (1994) (finding age inappropriate behavior is one of the behavioral signs associated with child sexual abuse); State v. D.R., 214 N.J. Super. 278, 298 (App. Div. 1986), rev'd on other grounds, 109 N.J. 348 (1988) (stating the child victim's knowledge of sexual practices "beyond her reasonably anticipated imagination" militated in favor of finding her hearsay statements reliable).
Here, K.M., whose testimony Judge Futey credited, described T.M.'s "precocious sexual knowledge" and his incessant sexual actions with his siblings, including persuading his two-year-old sister to fellate him and inserting his finger in his brother's rectum. We have deemed conduct of this nature as "abnormal and sexualized behavior" which we have found to be corroborative of a child's hearsay statements regarding abuse. Z.P.R., supra, 351 N.J. Super. at 436 (citation and quotation marks omitted). Therefore, we perceive no error in the judge's conclusion that the investigative techniques used in this matter did not offend Michaels and that T.M.'s statements were generally reliable.
II.
D.T. challenges Judge Futey's reliance upon Dr. Finkel's report and testimony for two reasons: (1) he is not a trained child sexual abuse psychologist, and (2) he was unaware of T.M.'s "exposure to sexual concepts and used a flawed logic to opine that [T.M.] had to have learned about sex from D.T." More specifically, D.T. urges that because Dr. Finkel is a trained pediatrician concerned with a child's physiological issues, his testimony should have been limited to the absence of physical indicia of abuse in this case. We disagree.
The admissibility of expert testimony is governed by N.J.R.E. 702. That rule provides: "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." Our Court has explained that:
[N.J.R.E. 702] has three [basic] requirements for the admission of expert testimony: (1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness
must have sufficient expertise to offer the intended testimony.
[State v. Jenewicz, 193 N.J. 440, 454 (2008) (citations omitted).]
At the hearing, the parties stipulated that Dr. Finkel was qualified as an expert in the area of the medical diagnosis of child sexual abuse. The doctor explained that in his role as the Director of the CARES, he interviews around 300 children a year. He testified that he is a member of several professional groups dedicated to the diagnosis and treatment of child abuse and neglect. He has also authored a textbook titled the Medical Evaluation of Child Sexual Abuse, contributed to other published texts, and lectured extensively on the subject. Dr. Finkel's report and testimony were offered on the subject of child abuse after he personally interviewed and performed a physical examination of T.M.
While Dr. Finkel is not a psychologist or psychiatrist, his testimony was proper, as it did not relate to T.M.'s state of mind. Rather, it focused on T.M.'s descriptions of his physical experience during his sexual contacts with D.T. For instance, Dr. Finkel opined that T.M.'s description of digital anal penetration was consistent with the kind of description "kids provide routinely following digital rectal examination . . . ." D.T. did not offer expert testimony to rebut Dr. Finkel's investigative method or opinion. The objections to Dr. Finkel's qualification to render his expert opinion were relevant to the weight the ALJ accorded the testimony, not to the admissibility of this testimony. See Koseoglu v. Wry, 431 N.J. Super. 140, 160-61 (2013) ("An expert's skill or knowledge go to the weight to be given to their testimony." (citation and quotation marks omitted)).
Also, D.T. alleges Dr. Finkel's opinion is flawed because he was unaware of T.M.'s exposure to sexual concepts, which he argues T.M. could have cultivated from just one viewing of cable television, as opposed to any sexually inappropriate behavior by D.T. However, Dr. Finkel asked T.M. whether he had been exposed to pornography, which T.M. denied. Furthermore, although suggesting an alternate source for T.M.'s exposure, no evidence of the alternate source was proffered. Defense counsel questioned K.M. extensively about her children's exposure to adult-themed programming. K.M. denied that T.M.'s knowledge about sexual conduct, namely, anal penetration and fellatio, may have been derived from TV shows. She testified she did not "have any movies or DVDs in [her] home that would be considered inappropriate for children[,]" and she was "not really sure" if she had HBO at that time. The judge credited K.M.'s testimony in this regard. Thus, the ALJ did not err in concluding there was no evidence that "any of K.M.'s children were inappropriately exposed to or provided access to pornographic material by their parents at any time whatsoever."
III.
Finally, D.T. argues that Burnett admitted some of Detective Ayers' interviewing techniques were suggestive and revised her initial opinion that abuse was substantiated after she learned at trial that K.M. did not provide her with all the pertinent information during her investigation. He submits the ALJ erred in failing to accept this interpretation of Burnett's testimony. From our review of the record, we do not agree that Burnett revised her initial opinion. Moreover, even if she did, it was not her testimony upon which the ALJ significantly relied in reaching his conclusions.
During cross-examination, Burnett expressed concerns similar to those later raised by the ALJ; specifically, T.M.'s statement that his mom told him D.T. touched him while he was asleep, K.M.'s admission that she and her husband researched T.M.'s behavior on the internet, T.M.'s sexually inappropriate behavior towards his siblings, and Detective Ayers' repetition of a question after it had been answered, which resulted in T.M. changing his initial response. When defense counsel asked Burnett directly whether these new facts would cause her to withdraw her opinion, she replied that she would have had to investigate the new facts further to determine if it would warrant amendment of her opinion. In addition, she categorically stated she did not believe these new facts "nullify [T.M.'s] disclosure." That her initial findings were not based upon full disclosure by K.M. did not render her testimony incompetent. Instead, the new disclosures impacted the weight, if any, the judge accorded her testimony. Moreover, Judge Futey expressly noted that his factual findings rested primarily upon the testimony of Dr. Finkel, K.T., D.T., and his review of the video statements of D.T. to the BCPO.
In short, based upon our review of the record, we are satisfied there is a residuum of competent evidence supporting the final agency decision. We review a cold record, lacking the opportunity, as did Judge Futey, to assess the demeanor of the witnesses and evaluate their credibility in the context of a contested hearing. We exceed our limited authority when we substitute our evaluation of credibility of individual witnesses. As long as the findings are supported by adequate credible and competent evidence and the conclusions are derived from those findings and are consistent with applicable law, we must affirm the agency action. We are convinced the finding of abuse here was reached by adherence to these standards.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION