DCPP VS. P.E., S.M., T.T. AND E.H.IN THE MATTER OF S.T., N.E. AND L.T.(FN-20-12-12, UNION COUNTY AND STATEWIDE)(RECORD IMPOUNDED)(CONSOLIDATED)

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NOT FOR PUBLICATION WITHOUT THE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-1961-14T2

A-2103-14T2

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

P.E. and S.M.,

Defendants-Appellants,

and

T.T. and E.H.,

Defendants.

__________________________________

IN THE MATTER OF S.T., N.E. and

L.T.,

Minors.

___________________________________

Argued May 8, 2017 – Decided May 15, 2017

Before Judges Sabatino, Haas and Geiger.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Union County,

Docket No. FN-20-12-12.

Thomas G. Hand, Designated Counsel, argued the

cause for appellant P.E. (Joseph E. Krakora,

Public Defender, attorney; Mr. Hand, on the

briefs).

Joseph F. Kunicki, Designated Counsel, argued

the cause for appellant S.M. (Joseph E.

Krakora, Public Defender, attorney; Mr.

Kunicki, on the briefs).

Alicia Y. Bergman, Deputy Attorney General,

argued the cause for respondent (Christopher

S. Porrino, Attorney General, attorney; Andrea

M. Silkowitz, Assistant Attorney General, of

counsel; Jane E. Kutch, Deputy Attorney

General, on the brief).

Nancy P. Fratz, Assistant Deputy Public

Defender, argued the cause for minors (Joseph

E. Krakora, Public Defender, Law Guardian,

attorney; Ms. Fratz, on the brief).

PER CURIAM

In these consolidated appeals, defendant P.E.1 appeals from

a March 5, 2012 Family Part order2 determining that he sexually

abused his eleven-year-old stepdaughter S.T. ("Samantha") on a

number of occasions over a six-month period between August 2010

and February 2011. Defendant S.M., who is P.E.'s wife, also

appeals from the portion of the March 5 order, which found that

S.M. abused or neglected Samantha by permitting P.E. to re-enter

1 We use initials and fictitious names to protect the privacy of

the family.

2 This order became appealable as of right after the trial court

entered a final order terminating litigation on November 12, 2014.

2 A-1961-14T2

the home and have contact with Samantha, and her two siblings,

N.E. ("Nora") and L.T. ("Lori"), in violation of a safety plan

that S.M. entered with the Division of Child Protection and

Permanency ("Division") in order to protect the children from P.E.

We affirm.

I.

We derive the following facts from the record developed at

the fact-finding hearing. P.E. and S.M. are married. S.M. is the

biological mother of Samantha, born in September 1999, and Lori,

born in October 2001. P.E. is the biological father of Nora, born

in May 2000.

On March 22, 2011, the Division received a referral from

Samantha's school that alleged that P.E. had sexually abused

Samantha. The child disclosed the abuse to two of her classmates

after participating in a "Touching Safety Program" at the school.

Samantha's classmates told a teacher, who reported the allegation

to the principal. Samantha told the school officials that P.E.

had started touching her in a sexual manner prior to the start of

the current school year. Samantha also stated that P.E. warned

her that if she told anyone that he touched her, S.M. would throw

P.E. out of the house and the family would have no food to eat.

That same day, Tamekia Chatman, a Division investigator, went

to Samantha's home to interview her and S.M. Chatman testified

3 A-1961-14T2

that Samantha asserted that on at least ten occasions between

August 2010 and February 2011, P.E. fondled her breasts and touched

her vagina. P.E. touched the child with his hands, his penis, and

also with his lips. The child stated that she told P.E. to stop,

but the assaults continued over a six-month period.

Samantha told Chatman that the assaults usually happened in

P.E.'s bedroom. Sometimes S.M. and the other children were home

when the incidents occurred and sometimes they were not. Usually,

P.E. would tell Samantha that he "needed help with something" in

his room and, once she entered, he would "lay her down" and fondle

her, or touch her while she was standing.

Samantha stated that the P.E.'s final assault occurred on the

last Sunday of February 2011. On that date, P.E. pulled the

child's pants down and put his lips on her body.

Chatman spoke to the two other children. Both denied ever

being assaulted by P.E. or witnessing him assault their sister.

Before Chatman arrived at the home, Samantha's school had

advised S.M. of the child's allegations. S.M. told Chatman that

she confronted P.E., who started crying. However, S.M. stated

that P.E. then denied the allegations. Nevertheless, S.M. agreed

to keep P.E. out of the home and away from the children until the

Division completed its investigation.

4 A-1961-14T2

Chatman learned from Samantha's school that the child was a

"gifted student." However, after she disclosed P.E.'s actions,

the school reported that Samantha's "[s]tandardized test scores"

dropped off.

On March 22, 2011, Chatman accompanied Samantha to the

prosecutor's office, where the child was interviewed by Detective

Sofia Santos. Although Detective Santos did not administer a

formal "oath" to Samantha, the detective asked the child several

times whether she knew the difference between the truth and a lie

and whether she would be truthful during the interview. Samantha

agreed to tell the truth.

In the interview that followed, Samantha provided an account

of P.E.'s actions that was virtually identical to the ones she

previously gave to school officials and Chatman. The child's

responses as to when the abuse began, what occurred during these

incidents, and the last assault in February 2011 were consistent

with her prior disclosures. Detective Santos videotaped the

interview, and the Division played the DVD during the fact-finding

hearing.

5 A-1961-14T2

Detective Santos also interviewed S.M.3 S.M. stated that when

she questioned Samantha, the child initially told her that P.E.

would squeeze her too tight when "he held her." However, Samantha

later told S.M. that P.E. had been touching her in an inappropriate

manner.

Detective Santos next spoke with P.E., who denied ever

assaulting Samantha. However, P.E. did admit that because Samantha

was "the one that helps us with the computer[,]" which he kept in

his room, he would ask the child to come into his room to assist

him with the device. P.E. also stated that he was home sick with

the child on the day in February 2011 when Samantha asserted the

final assault occurred.4

On April 7, 2011, Dr. Gladibel Medina, who was qualified at

the hearing as an expert in pediatrics "with . . . specialized

knowledge about child sexual abuse," examined Samantha. The child

again gave a consistent account of what transpired between P.E.

and herself. Samantha "described hand contact of her breast

region, oral contact of her breast region, hand contact of her

3 S.M. told the detective that she could read, write, and

understand the English language and had a bachelor's degree in

social services.

4 After the interview was completed, the police arrested P.E. on

outstanding traffic warrants, but he was not charged in connection

with assaulting Samantha at that time.

6 A-1961-14T2

front genital area and penis contact of her front genital area by

[P.E.] on multiple occasions over the past year."

Dr. Medina found no evidence of physical injury or trauma.

However, the child described the "emotional stress" she felt

because of P.E.'s actions and because "she didn't want to hurt"

S.M. Although Dr. Medina noted that Samantha was "tr[ying] to act

as normal as possible, . . . her stress gave her difficulties

concentrating and also sleeping[.]"

Dr. Medina also opined that the fact that P.E. threatened

that the family would suffer if Samantha told anyone what he was

doing, was "significant" and that the stress the child was under

was "the most common presentation in children who have been

abused." Dr. Medina further stated that Samantha's emotional

difficulties could "present as school performance or behavioral

problems[.]" Dr. Medina recommended that Samantha participate in

counseling.

On April 12, 2011, Chatman visited S.M. at the family home

to make sure that P.E. was not living there. S.M. told Chatman

that neither she nor the children had seen or spoken to P.E. since

he left the home on March 22. Chatman reported that S.M. again

agreed that P.E. had "to remain outside the home until further

investigation" was completed.

7 A-1961-14T2

On May 25, 2011, Chatman conducted another visit to determine

if S.M. was keeping P.E. out of the home as she had agreed on

March 22. S.M. again reported that P.E. had not been present in

the home since that date.

On June 29, 2011, Chatman prepared a written case plan

memorializing S.M.'s prior agreement to keep P.E. out of the home

where Samantha was residing. The plan documented that S.M. "agreed

to keep [P.E.] out of the home until all services recommended by

the Division are completed by [P.E.], such as counseling and a

psychological evaluation." Chatman and S.M. signed the case plan

on June 29.

On July 15, 2011, the Division filed a verified complaint for

care and supervision of the three children under Title Nine and

Title Thirty. On that same date, the trial judge issued an order

to show cause granting the Division's request. The judge's order

also noted that "[t]here are serious allegations made by a child

in the home that [P.E.] engaged in inappropriate sexual acts with

the child. If he is barred from the home, care and supervision

by [the Division] is appropriate." The order further provided

that P.E. was "barred from all contact by phone, in person, or any

other means with all the children in the home until this matter

returns to court." On July 29, 2011, the Division received a

referral from the prosecutor's office stating that P.E. was again

8 A-1961-14T2

residing in the family home with S.M., Samantha, and the two other

children. Natasha Walden, a Division supervisor, testified at the

hearing concerning the Division's investigation of this referral.

S.M. told a Division caseworker that P.E. was not living in

or visiting the home. However, S.M. admitted that P.E. called her

at the residence on a daily basis. S.M. gave the caseworker an

address where P.E. purportedly lived but, upon further

investigation, the Division learned that P.E. had only asked the

owner of that residence if he could use that location as a mailing

address.

When the caseworker spoke to Samantha, the child stated that

P.E. last called the house a couple of months prior to the

interview. Lori told the caseworker that she had spoken to P.E.

on the telephone the day before. Lori also acknowledged that P.E.

frequently stayed overnight in the home or would sometimes leave

at night and return in the morning.5 Nora reported that she had

seen P.E. in May and last spoke to him on the telephone on July

4. Based upon the violation of the March 22, 2011 agreement that

S.M. keep P.E. out of the home, the Division made arrangements for

the three children to temporarily reside with S.M.'s sister.

5 During their interviews with Detective Santos, P.E. and S.M.

both acknowledged that prior to Samantha's disclosures, P.E.

usually worked overnight and returned home in the mornings.

9 A-1961-14T2

At the hearing, the Division also presented the testimony of

C.J., who was P.E. and S.M.'s neighbor. C.J. testified that she

saw P.E. exiting the home in late June 2011, a date she remembered

because it was the same night as a concert she was going to attend.

C.J. also saw P.E. at the home on July 4, 2011, and again on

several other occasions in July and August 2011.

After the Division rested its case, the Law Guardian called

Samantha as a witness. Samantha testified in the trial judge's

chambers with only the judge and her attorney present. However,

P.E. and S.M.'s attorneys, and the Deputy Attorney General on

behalf of the Division, provided the judge with proposed questions

in advance, and were able to listen to the testimony in the

courtroom on a speaker. Prior to her testimony, Samantha promised

to tell the truth.

After Samantha provided the trial judge with some background

information concerning her age, her siblings, and her parents, the

judge questioned the child about her allegation that P.E. had

sexually assaulted her. At that time, Samantha stated, "Well, I

actually don't remember that. I don't remember it, like that far

back." Samantha also testified that she did not remember telling

anyone at her school about the assaults. The judge then asked the

child, "Did [P.E.] ever touch you improperly?" Samantha replied,

"I don't recollect . . . like inappropriately . . . [a]s far as

10 A-1961-14T2

I remember." The child also denied remembering speaking to a

detective about the incidents.

At that point, the trial judge terminated the questioning and

returned to the courtroom. After discussing the matter with the

attorneys, the judge decided not to attempt to ask Samantha any

additional questions. The judge explained that Samantha had "been

put through quite a bit" and he did "not want to further the trauma

of going through this."

The Law Guardian did not call any other witnesses. In her

summation, the Law Guardian supported the Division's position that

P.E. had sexually abused Samantha and that S.M. had abused or

neglected the children by permitting P.E. to return to the home

in violation of her agreement. P.E. and S.M. did not testify or

call any witnesses.

On March 5, 2012, the trial judge rendered a thorough oral

opinion.6 The judge found that the Division had demonstrated by

a preponderance of the evidence that P.E. sexually assaulted

Samantha and that S.M. abused or neglected the children by failing

to abide by her agreement to keep P.E. away from them while the

matter was under investigation and all services were completed.

6 The judge delivered his oral decision by reading from a written

opinion he had prepared. The judge provided the parties with a

copy of the written opinion for their convenience.

11 A-1961-14T2

With regard to Samantha's accounts of the incidents with

P.E., the judge found that during her interview with Detective

Santos on the day she disclosed the assaults, Samantha was

articulate, specific, and frank about what

[P.E.] had been doing. The detail, which

[Samantha] provided, makes it virtually

certain that the improper sexual abuse by

[P.E.] occurred. It is difficult to fathom

how any objective observer reading the

transcript and seeing the interview on DVD

could doubt that at that time [Samantha] was

telling the painful truth. On multiple

occasions, [P.E.] sexually abused his . . .

stepdaughter[.]

The judge next addressed Samantha's lack of memory of these

events when she testified at the hearing. In giving this

"recantation" little weight, the judge stated:

This lovely, ambitious child . . . has

obviously been put in the middle of a very

difficult situation. She was so verbal and

well-spoken and congenial on all other matters

unrelated to the sexual abuse. As soon as

questions about the sexual abuse started,

[Samantha] obviously felt the need to cover

up what had happened in order to protect

herself, her mother, her stepfather, and her

siblings from further problems. Her testimony

of sexual abuse in the area was obviously

rehearsed.

She is now [thirteen] years of age. In

her statement to the Prosecutor's Office she

claimed that the last time [P.E.] sexually

abused her was in February 2011. [Samantha]

gave a very stark statement to the Prosecutor

on March 22[,] 2011. It is impossible to

believe that this . . . outgoing, friendly,

and well-spoken child did not recall the

12 A-1961-14T2

numerous statements she gave less than a year

before she came to court.

Based upon these observations of the child as she gave her

statement to Detective Santos and when she testified in chambers,

the judge concluded:

I specifically find by far more than the

greater weight of the evidence that [P.E.]

sexually abused [Samantha] on numerous

occasions in violation of our statute,

N.J.S.A. 9:6-8.21. I find [Samantha's]

multiple statements affirming that her

stepfather sexually abused her to be

trustworthy. She noted that her stepfather

would say he was sorry after the abuse. That

is quite credible. [Samantha's] late

recantation was obviously false.

Turning to the allegations against S.M., the judge found that

S.M. "failed to exercise the minimum degree of care the law

requires by her failure to provide the child with proper

guardianship" under Title Nine. The judge found that S.M. "was

very aware of the serious allegations that had been made against

[P.E.] involving the sexual abuse of her child." Yet, S.M.

permitted P.E. to return to the home and have contact with Samantha

and her siblings.

In so ruling, the trial judge specifically found that C.J.'s

testimony concerning her observations of P.E. at the home in late

June and early July 2012 was credible. C.J.'s testimony also

corroborated Lori's account of P.E.'s repeated visits to the home

13 A-1961-14T2

and telephone contact with the children. Because S.M. had agreed

in the case plan to bar P.E. from the home, the judge found that

she "was grossly negligent" toward Samantha's safety.

II.

After the trial court entered an order terminating the

litigation on November 12, 2014, P.E.'s and S.M.'s appeals

followed. On appeal, P.E. argues that "the trial court erred in

finding that [he] committed an act of abuse and neglect against

Samantha because no credible evidence was provided to support the

trial court's findings." In her appeal, S.M. asserts that "there

was no evidence of a nexus between the violation of the court

order and an imminent danger or substantial risk of harm." We

disagree with defendants' contentions.7

7The Division continues to support the trial court's determination

and asserts that the court's findings concerning both P.E. and

S.M. are "supported by substantial credible evidence and should

be affirmed." However, the Law Guardian, on behalf of the three

children, now asserts "no position" on the merits of defendants'

respective appeals. The Law Guardian explains that it has taken

that tact because "[t]he family is reunified, [Samantha] is good,

and all look forward to closure." In his reply brief, P.E.

complains that the Law Guardian has taken "no position" on the

question of whether he abused or inappropriately neglected

Samantha as the trial judge found. However, this argument lacks

merit. The Law Guardian acts as an independent advocate for the

children, not for their parents. Div. of Youth & Family Servs.

v. Robert M., 347 N.J. Super. 44, 70 (App. Div.), certif. denied,

174 N.J. 39 (2002). Law [G]uardians are obliged to make

recommendations as to how a child client's desires may best be

accomplished, [and] to express any concerns regarding the child's

14 A-1961-14T2

Our review of the trial judge's factual finding of abuse or

neglect is limited; we defer to the court's determinations "when

supported by adequate, substantial, credible evidence." N.J. Div.

of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App.

Div. 2008) (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)).

The trial court is best suited to assess credibility, weigh

testimony and develop a feel for the case, and we extend special

deference to the Family Part's expertise. N.J. Div. of Youth &

Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010); Cesare,

supra, 154 N.J. at 413. Unless the trial judge's factual findings

are "so wide of the mark that a mistake must have been made" they

should not be disturbed, even if we would not have made the same

decision if we had heard the case in the first instance. N.J.

Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)

(internal quotation marks and citation omitted). "It is not our

place to second-guess or substitute our judgment for that of the

family court, provided that the record contains substantial and

credible evidence to support" the judge's decision. N.J. Div. of

Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012).

safety. . . ." Ibid. By advocating on behalf of the three

children that the current status quo should be maintained in this

case, the Law Guardian has properly discharged that responsibility

without taking sides on the merits of the abuse or neglect finding

on behalf of the children.

15 A-1961-14T2

In pertinent part, N.J.S.A. 9:6-8.21(c) defines an "abused

or neglected child" as a child:

whose parent or guardian . . . (3) commits or

allows to be committed an act of sexual abuse

against the child; [or] (4) a child whose

physical, mental, or emotional condition has

been impaired or is in imminent danger of

becoming impaired as the result of the failure

of his parent or guardian . . . to exercise a

minimum degree of care . . . (b) in providing

the child with proper supervision or

guardianship, by unreasonably inflicting or

allowing to be inflicted harm, or substantial

risk thereof, including the infliction of

excessive corporal punishment; or by any other

acts of a similarly serious nature requiring

the aid of the court[.]

A court does not have to wait until a child is actually harmed

or neglected before it can act in the welfare of that minor. N.J.

Div. of Youth & Family Servs. v. V.M., 408 N.J. Super. 222, 235-

36 (App. Div.) (citing In re Guardianship of D.M.H., 161 N.J. 365,

383 (1999)), certif. denied, 200 N.J. 505 (2009). Nor does harm

to the child need to be intentional in order to substantiate a

finding of abuse or neglect. M.C. III, supra, 201 N.J. at 344.

In determining a case of abuse or neglect, the court should

base its determination on the totality of the circumstances. N.J.

Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329

(App. Div. 2011). A finding of abuse or neglect must be based on

a preponderance of the evidence. N.J.S.A. 9:6-8.46(b).

16 A-1961-14T2

A.

Applying these standards to this matter, we are satisfied

that there was competent, credible evidence in the record to

support the trial judge's finding by a preponderance of the

evidence that P.E. sexually abused Samantha over a six-month

period. N.J.S.A. 9:6-8.21(c)(3). Accordingly, we reject P.E.'s

contention that there was insufficient evidence of corroboration

of Samantha's statements concerning the sexual assaults as

required by N.J.S.A. 9:6-8.46(a)(4).

N.J.S.A. 9:6-8.46(a)(4) provides that "previous statements

made by the child relating to 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." Corroboration may include

"eyewitness testimony, a confession, an admission or medical or

scientific evidence." N.J. Div. of Child Prot. & Permanency v.

Y.A., 437 N.J. Super. 541, 547 (App. Div. 2014) (quoting N.J. Div.

of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 166 (App.

Div. 2003)). However, corroborative evidence may also be

circumstantial, as we have recognized that there often is no direct

physical or testimonial evidence to support a child's statements.

N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427,

436 (App. Div. 2002). "The corroborative evidence need not relate

17 A-1961-14T2

directly to the alleged abuser, it need only provide support for

the out-of-court statements." Ibid.

Physical evidence of assault is certainly corroborative, but

it is rare "because the sex offenses committed against children

tend to be nonviolent offenses such as petting, exhibitionism,

fondling and oral copulation." Ibid. (citation omitted). Thus,

corroboration may also be established by evidence of emotional

impacts, such as nightmares and other psychological conditions.

Ibid.

While much of the Division's evidence derives from Samantha's

statements detailing P.E.'s sexual assaults, there is sufficient

corroboration in the record to support those statements based upon

Dr. Medina's expert testimony. After examining the child, Dr.

Medina opined, based upon her "specialized knowledge about child

sexual abuse," that the "emotional stress" Samantha was

experiencing because of the assaults manifested itself in the

"difficulties" the child was having "concentrating and also

sleeping."

According to Dr. Medina's uncontradicted expert testimony,

Samantha's stress as a result of the assaults and of P.E.'s threats

that the family would suffer if the child revealed what had

occurred, was "significant" and constituted "the most common

presentation in children who have been abused." However, Dr.

18 A-1961-14T2

Medina also noted that Samantha's emotional difficulties could

"present as school performance . . . problems[.]" As noted above,

the Division documented that Samantha's standardized test scores

fell during this period.

Thus, contrary to P.E.'s contention, Samantha's statements

concerning his assaultive behavior was amply corroborated by Dr.

Medina's expert testimony and evaluation of the child. Z.P.R.,

supra, 351 N.J. Super. at 456. However, for the first time on

appeal, P.E. now argues that Dr. Medina's corroboration of the

sexual assault was an impermissible net opinion. This argument

also lacks merit.

First, P.E. did not challenge Dr. Medina's qualifications to

provide expert testimony on child sexual abuse at trial. He also

did not object to any portion of her testimony. Although under

the plain error rule we will consider allegations of error not

brought to the trial court's attention that have a clear capacity

to produce an unjust result, see Rule 2:10-2; we generally decline

to consider issues that were not presented at trial. Nieder v.

Royal Indem. Ins. Co. 62 N.J. 229, 234 (1973). As the Supreme

Court has cogently explained:

Appellate review is not limitless. The

jurisdiction of appellate courts rightly is

bounded by the proofs and objections

critically explored on the record before the

trial court by the parties themselves.

19 A-1961-14T2

Although "[o]ur rules do not perpetuate mere

ritual[,]" we have insisted that in opposing

the admission of evidence, a litigant "must

make known his position to the end that the

trial court may consciously rule upon it."

State v. Abbott, 36 N.J. 63, 76 (1961). This

is so because "[t]he important fact is that

the trial court was alerted to the basic

problem[.]" Id. at 68. In short, the points

of divergence developed in the proceedings

before a trial court define the metes and

bounds of appellate review.

[State v. Robinson, 200 N.J. 1, 19 (2009).]

As noted, P.E.'s present contention that Dr. Medina rendered

only a net opinion was not raised before the trial court.

Therefore, we need not review it under the circumstances of this

case.

In any event, "[w]e rely on the trial [judge's] acceptance

of the credibility of the expert's testimony and the court's fact-

findings based thereon, noting that the trial court is better

positioned to evaluate the witness' credibility, qualifications,

and the weight to be accorded [his] testimony." D.M.H., supra,

161 N.J. at 382 (citing Bonnco Petrol, Inc. v. Epstein, 115 N.J.

599, 607 (1989)). Therefore, we exercise limited review of a

trial judge's decision to admit or exclude expert testimony. See

Townsend v. Pierre, 221 N.J. 36, 52-53 (2015) ("The admission or

exclusion of expert testimony is committed to the sound discretion

of the trial court."); Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008)

20 A-1961-14T2

(stating that trial court's evidentiary decision to admit expert

testimony is reviewed for an abuse of discretion).

The Court in Townsend reviewed the law on net opinions.

Expert opinions must be grounded in "facts or data derived from

(1) the expert's personal observations, or (2) evidence admitted

at the trial, or (3) data relied upon by the expert which is not

necessarily admissible in evidence but which is the type of data

normally relied upon by experts." Townsend, supra, 221 N.J. at

53 (quoting Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008)).

The net opinion rule is a "corollary of [N.J.R.E. 703] . . . which

forbids the admission into evidence of an expert's conclusions

that are not supported by factual evidence or other data." Id.

at 53-54 (quoting Polzo, supra, 196 N.J. at 183).

Therefore, an expert is required to "give the why and

wherefore that supports the opinion, rather than a mere

conclusion." Id. at 54 (quoting Borough of Saddle River v. 66 E.

Allendale, LLC, 216 N.J. 115, 144 (2013)). The net opinion rule

directs that experts "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." Id. at

55 (quoting Landrigan v. Celotex Corp., 127 N.J. 404, 417 (1991)).

On the other hand, "[t]he net opinion rule is not a standard

of perfection." Id. at 54. An expert may ground an opinion in

21 A-1961-14T2

his or her personal experience and training. See State v.

Townsend, 186 N.J. 473, 495 (2006); Rosenberg v. Tavorath, 352

N.J. Super. 385, 403 (App. Div. 2002) ("Evidential support for an

expert opinion is not limited to treatises or any type of

documentary support, but may include what the witness has learned

from personal experience."). The failure to rely on sources the

opponent deems important, or to organize one's opinion in a way

the adversary considers appropriate, does not warrant exclusion

as a net opinion. Townsend, supra, 221 N.J. at 54. These matters

are left for cross-examination. Id. at 54-55.

Applying these principles, we discern no basis for P.E.'s

complaint that Dr. Medina rendered a net opinion. Dr. Medina

fully explained the grounds for her conclusions and was subject

to cross-examination concerning them. Dr. Medina's many years of

experience and training as a board-certified pediatrician

specializing in cases involving child sexual abuse, including her

most recent position as the medical director of the Dorothy B.

Hersh Regional Child Protection Center in New Brunswick, provided

an ample foundation for her expert opinion that Samantha's

emotional stress was caused by P.E.'s assaults. Under these

circumstances, Dr. Medina's findings plainly did not constitute

an impermissible net opinion. She was well qualified, her

testimony and written report addressed all the relevant issues,

22 A-1961-14T2

and her conclusions were firmly supported by the facts in the

record.

We are also not persuaded by P.E.'s contention that the trial

judge failed to give adequate weight to Samantha's "recantation"

at the hearing when she told the judge that she did not remember

reporting the sexual assaults to anyone or that P.E. had assaulted

her. The judge meticulously summarized the evidence in his

decision before finding Samantha's out-of-court statements to be

more credible than her in-court recantation.

As noted above, Samantha's previous statements, one of which

was videotaped after Detective Santos advised the child of the

need to be truthful, were properly considered by the trial judge

because they were corroborated. Y.A., supra, 437 N.J. Super. at

547. Accordingly, the judge "could properly reject as incredible

the testimony of [Samantha] at trial which was inconsistent with

[her] prior statements." State in the Interest of R.V., 280 N.J.

Super. 118, 121 (App. Div. 1995).

The trial judge's credibility findings on this issue were

well supported by the record. The judge explained that he found

Samantha's sudden lack of memory to be entirely inconsistent with

the great level of detail included in her prior statements to

Chatman, Detective Santos, and Dr. Medina. He also observed that

the child's demeanor during this portion of her testimony appeared

23 A-1961-14T2

to be "rehearsed" and out of character with that displayed in the

earlier portion of her testimony at the hearing, and in the video-

taped statement she gave to Detective Santos. Under these

circumstances, we perceive no grounds for disturbing the judge's

reasoned determination that Samantha was telling the truth in her

earlier statements and that her "late recantation was obviously

false."

Finally, P.E. cites State v. Clawans, 38 N.J. 162 (1962), and

argues that the trial judge should have drawn an adverse inference

against the Division because it did call Samantha's classmates as

witnesses concerning the statements she made to them about P.E.'s

sexual assaults. This argument also lacks merit.

Once again, P.E. did not raise this contention before the

trial judge and, therefore, we are not obligated to consider it

for the first time on appeal. Robinson, supra, 200 N.J. at 19.

Moreover, the factfinder may only draw an adverse inference "when

a party's failure to present evidence 'raises a natural inference

that the party so failing fears exposure of those facts would be

unfavorable to him [or her].'" Torres v. Pabon, 225 N.J. 167, 181

(2016) (quoting Clawans, supra, 38 N.J. at 170). Therefore, "the

adverse inference instruction 'is not invariably available

whenever a party does not call a witness who has knowledge of

relevant facts.'" Ibid. (quoting State v. Hill, 199 N.J. 545,

24 A-1961-14T2

561 (1999)). Indeed, the inference can only be drawn if the absent

witness's "testimony would have been superior to that already

utilized in respect to the fact to be proved." Id. at 181-82

(quoting Clawans, supra, 38 N.J. at 171).

Here, the Division presented the testimony of Chatman and Dr.

Medina concerning Samantha's assertion that P.E. sexually

assaulted her at least ten times over a six-month period and then

told her not to disclose the assaults to anyone because the family

would suffer. The Division also presented a DVD of the interview

Detective Santos conducted with Samantha. As noted above, Samantha

stated during that interview that she knew the difference between

the truth and a lie and that she promised to tell the truth. Thus,

any additional testimony from Samantha's classmates would have

been cumulative, rather than "superior to that already utilized"

to prove the sexual assaults. Accordingly, we affirm the trial

judge's determination by a preponderance of the evidence that P.E.

sexually abused Samantha in violation of N.J.S.A. 9:6-8.21(c)(3).

B.

For the following reasons, we also reject S.M.'s argument

that the trial judge erred in finding that she abused or neglected

Samantha and her two siblings by permitting P.E. to return to the

house in violation of a safety plan that was put in place on March

22, 2011 when Samantha's allegations were first disclosed. There

25 A-1961-14T2

is clearly sufficient credible evidence to support the judge's

determination.

Pursuant to N.J.A.C. 3A:10-3.2(d), "a [Division] child

protective investigator shall, in the event that a factor which

makes the child unsafe has been identified, develop and implement

a safety plan to assure the child's safety with the parent or

caregiver." This regulation further provides that "[i]f the safety

plan cannot assure the safety of the alleged child victim, the

child protective investigator shall remove the alleged child

victim from the home[.]"

Here, Chatman, who was the Division's investigator, met with

S.M. on March 22, 2011, the day Samantha reported that P.E. had

been sexually assaulting her for months. At that time, S.M. agreed

to keep P.E. out of the home and away from the children until the

Division completed its investigation.

Thereafter, Chatman followed up with S.M. on April 12, 2011,

and again on May 25, 2011, to confirm that S.M. was abiding by the

safety plan and preventing P.E. from entering the home until the

was completed. S.M. continued to assert that P.E. had not been

at the home since March 22, 2011.

On June 29, 2011, Chatman prepared a written case plan that

included S.M.'s agreement to keep P.E. out of the home until all

services had been completed. S.M. signed the case plan. After

26 A-1961-14T2

the Division filed its complaint for care and supervision of the

children on July 15, 2011, the trial judge included the restraint

against P.E. being at the home or contacting the children in a

court order issued on that date.

In support of its allegation that S.M. violated the safety

plan by permitting P.E. to re-enter the home, the Division

presented the testimony of defendants' neighbor, C.J., who saw

P.E. at the home at the end of June 2011, on July 4, 2011, and on

other occasions in July and August 2011. The trial judge found

that C.J.'s testimony was credible.

Defendants' children also told a Division caseworker that

P.E. had been contacting the children and visiting the home.

Samantha reported that she spoke to P.E. at least once on the

telephone; Nora stated she saw P.E. at the home in May and spoke

to him on July 4; and Lori stated that P.E. had stayed overnight

at the home after the safety plan was put in place. The children's

statements were properly admitted in evidence because they were

corroborated by C.J.'s observations of P.E. at the home. Y.A.,

supra, 437 N.J. Super. at 547.

N.J.A.C. 3A:10-7.5(a)(2) specifically states that in

determining whether abuse or neglect has been substantiated, the

Division "shall consider . . . [t]he perpetrator's failure to

comply with court orders or clearly established or agreed-upon

27 A-1961-14T2

conditions designed to ensure the child's safety, such as a child

safety plan or case plan[.]" Here, the uncontradicted evidence

presented at the hearing amply demonstrated that S.M. permitted

P.E. to enter the home in violation of the March 22, 2011 child

safety plan to which she voluntarily agreed; the June 29, 2011

written case plan; and the trial court's July 15, 2011 order

granting care and supervision of the three children to the

Division.

S.M. argues that even if she violated the safety plan, the

Division failed to demonstrate "a nexus" between that clear

violation "and an imminent danger or substantial risk of harm" to

the children. This argument is clearly without merit.

Samantha alleged that P.E. sexually assaulted her on at least

ten occasions. Her account of these events was consistent and

detailed. Under these circumstances, the Division had two options

to protect Samantha and her siblings from the danger of further

abuse while it and the prosecutor's office continued their

investigation: (1) the children could be removed from defendants'

home and placed elsewhere, or (2) P.E. could voluntarily leave the

home, with S.M. ensuring that he did not return until the

investigation was completed. S.M. agreed to the latter

alternative, which enabled the children to stay with her at home,

while removing the source of the danger, P.E.

28 A-1961-14T2

We have long recognized that even if there is no evidence

that a child has been physically or emotionally harmed, a trial

court may make a finding of abuse or neglect "based on proof of

imminent danger and substantial risk of harm." N.J. Dep't of

Children & Family Servs. v. A.L., 213 N.J. 1, 23 (2013). S.M. was

fully aware of the allegations against P.E., including the fact

that he threatened that the family would be without food if

Samantha reported the abuse. S.M. also voluntarily agreed to the

March 22, 2011 safety plan, which was designed to keep P.E. away

from the children to ensure that another sexual assault did not

occur.

Yet, S.M. repeatedly violated the safety plan, thus

permitting a man accused of sexually abusing one of her children

to have unsupervised contact with all three of them. Although

there is no evidence that P.E. sexually assaulted Samantha again

after her March 22, 2011 disclosure or harm the other two children,

the trial judge's determination that S.M.'s "gross negligence"

placed Samantha and her sisters in danger of such harm is

unassailable. Therefore, we affirm the judge's conclusion that

S.M. abused or neglected the children by violating the safety

plan.

Affirmed.

29 A-1961-14T2