DCPP VS. N.L. N/K/A N.B., N.D.-F., K.C. AND R.F., IIIN THE MATTER OF B.F. AND R.F., III(FN-08-0040-16, GLOUCESTER COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court."

Although it is posted on the internet, this opinion is binding only on the

parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0752-16T2

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

N.L. n/k/a N.B., N.D.-F. and

K.C.,

Defendants,

and

R.F., II,

Defendant-Appellant.

______________________________

IN THE MATTER OF B.F. and

R.F., III, Minors.

______________________________

Submitted October 2, 2017 – Decided November 21, 2017

Before Judges Whipple and Rose.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Gloucester

County, Docket No. FN-08-0040-16.

Joseph E. Krakora, Public Defender, attorney

for appellant (Thomas G. Hand, Designated

Counsel, on the briefs).

Christopher S. Porrino, Attorney General,

attorney for respondent (Melissa H. Raksa,

Assistant Attorney General, of counsel; Jaime

Millard-Tindall, Deputy Attorney General, on

the brief).

Joseph E. Krakora, Public Defender, Law

Guardian, attorney for minor B.F. (Todd

Wilson, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, Law

Guardian, attorney for minor R.F. III (Rachel

E. Seidman, Assistant Deputy Public Defender,

on the brief).

PER CURIAM

Defendant R.F., II,1 appeals from a January 19, 2016 Family

Part order2 determining he sexually abused his five-year-old son,

B.F. We affirm.

I.

We derive the following facts from the record developed at

the January 14, 2016 fact-finding hearing. On July 20, 2015, the

Division of Child Protection and Permanency ("Division") received

a referral stating B.F. disclosed to his stepsister, S.D, that

defendant had twice anally penetrated him. Division intake

supervisor Lynette Ficcaglia testified at the hearing that

Division workers met with B.F., his stepmother N.D.F., S.D., and

1

We use initials to protect the privacy of the parties. See R.

1:38-12(d)(12).

2

This order became appealable as of right after the trial court

entered a final order terminating litigation on September 6, 2016.

2 A-0752-16T2

B.F.'s other siblings at their home to investigate the allegations.

Ficcaglia did not personally investigate B.F.'s claims, but

approved the investigation and "dealt with the investigator step

by step throughout the night."

Ficcaglia testified that, although B.F. confirmed he had told

S.D. "something that was the truth," he did not disclose the sexual

abuse to the Division workers. During her interview, S.D.

confirmed B.F.'s disclosures to her. Ficcaglia testified further

that Division workers "spoke with the half-brother that was in the

house, too, who confirmed, also."3

As a result of B.F.'s disclosures, the Gloucester County

Prosecutor's Office was contacted, and B.F. was interviewed by the

on-call detective. Division workers observed the interview via

closed-circuit television, and Ficcaglia summarized the interview

at trial. B.F. told the detective that after showering together,

his father laid B.F. on his stomach, laid on top of B.F., and put

his penis in B.F.'s buttocks. B.F. stated defendant used a

lubricant from a bottle with a pink cap, and the abuse occurred

3

It is unclear whether Ficcaglia referenced B.F.'s stepbrother or

half-brother: according to the Division's investigative summary,

B.F.'s nineteen-year-old stepbrother, D.D., told the intake worker

B.F. confirmed that "'dad put his penis in my butt,'" but B.F.'s

six-year-old half-brother, R.F., III, did not disclose to the

intake worker that he or B.F. was sexually assaulted. R.F., III

was named in the instant matter, and was represented at the hearing

and on appeal by a separate law guardian.

3 A-0752-16T2

on more than one occasion. The intake worker summarized the

interview in her investigative summary.

To corroborate B.F.'s allegations of abuse, the Division

relied on the expert testimony of Dr. Stephanie Lanese, a

pediatrician employed by the CARES Institute, a regional child

abuse facility at Rowan University. Defense counsel stipulated

to Dr. Lanese's expertise in general and child abuse pediatrics.

On July 22, 2015, Dr. Lanese conducted an evaluation of B.F.

at the CARES Institute. Dr. Lanese opined B.F. had been sexually

abused. She based her conclusion on a number of factors,

including: B.F.'s idiosyncratic details of the sexual abuse, such

as describing the "pink-topped tube," and removal of his clothing

prior to the act; B.F.'s explicit sexual knowledge for a child of

his age; and that B.F. had never seen pictures of naked people.

Dr. Lanese noted her physical examination of B.F. did not

reveal any medical evidence of abuse. Dr. Lanese explained,

however, "[i]t is uncommon to see physical injury for sexual

abuse." Specifically, injury might occur in five to ten percent

of examinations performed within "[twenty-four] to [seventy-two]

hours" of the occurrence.

In addition to the testimony of Dr. Lanese and Ficcaglia, the

Division moved into evidence: the Division's investigation

summary (P1); Dr. Lanese's evaluation of B.F.; (P2); Dr. Lanese's

4 A-0752-16T2

evaluation of R.F., III (P3); and Dr. Lanese's curriculum vitae

(P4). Neither B.F. nor defendant testified at the hearing, and

defendant presented no witnesses or evidence. Nor did the law

guardians present any witnesses or evidence.4

On January 19, 2016, in an oral decision, the court found the

Division met its burden of establishing by a preponderance of the

evidence that defendant committed acts of sexual abuse against

B.F. The court recounted the testimony of Dr. Lanese and

Ficcaglia, finding both witnesses credible. The court observed

that B.F. had made several admissions to his siblings, mother, and

detective, as witnessed by the Division workers. Although the

judge also relied on the documentary evidence in his decision, he

noted he did not consider any embedded hearsay in finding the

sexual abuse was established.

Defendant appeals the trial court's order. Defendant raises

the following overlapping arguments for our review: the court

failed to make adequate findings and conclusions of law; the court

relied on inadmissible hearsay to corroborate B.F.'s allegations;

Dr. Lanese's ultimate conclusion was outside her expertise; and

the court did not properly consider B.F.'s recantation. The

4

Subsequent to the fact-finding hearing, and prior to the court's

decision, B.F.'s law guardian filed a motion for emergent relief

to continue the hearing to present the testimony of B.F.'s two

therapists. Defendant opposed the motion, which the court denied.

5 A-0752-16T2

Division and law guardians urge us to affirm the court's order.

After reviewing the record in light of the contentions advanced

on appeal, we affirm.

II.

Our Supreme Court has set forth the standards that govern our

review of abuse or neglect matters as follows:

[A]ppellate courts defer to the factual

findings of the trial court because it has the

opportunity to make first-hand credibility

judgments about the witnesses who appear on

the stand; it has a feel of the case that can

never be realized by a review of the cold

record. Indeed, we recognize that [b]ecause

of the family courts' special jurisdiction and

expertise in family matters, appellate courts

should accord deference to family court

factfinding.

[N.J. Div. of Youth & Family Servs. v. M.C.

III, 201 N.J. 328, 342-43 (2010) (second

alteration in the original) (citations and

internal quotation marks omitted).]

"[I]f there is substantial credible evidence in the record

to support the trial court's findings, we will not disturb those

findings." N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J.

210, 226 (2010). However, "if the trial court's conclusions are

'clearly mistaken or wide of the mark[,]' an appellate court must

intervene to ensure the fairness of the proceeding." Id. at 227

(alteration in original) (quoting N.J. Div. of Youth & Family

Servs. v. E.P., 196 N.J. 88, 104 (2008)). We also owe no deference

6 A-0752-16T2

to the trial court's legal conclusions, which we review de novo.

State v. Smith, 212 N.J. 365, 387 (2012) (citations omitted),

cert. denied, 568 U.S. 1217, 133 S. Ct. 1504, 185 L. Ed. 2d 558

(2013).

An "abused or neglected child" under Title 9 means, in

pertinent part, a child under the age of eighteen whose parent or

guardian "commits or allows to be committed an act of sexual abuse

against the child." N.J.S.A. 9:6-8.21(c)(3). The trial judge has

a duty to conduct a fact-finding hearing to determine whether the

Division has proved such abuse or neglect "by a preponderance of

the competent, material and relevant evidence." N.J. Div. of

Youth & Family Servs. v. C.H., 428 N.J. Super. 40, 62 (App. Div.

2012). "Under the preponderance standard, a litigant must

establish that a desired inference is more probable than not. If

the evidence is in equipoise, the burden has not been met."

Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 169 (2006) (citations

and internal quotation marks omitted).

Before applying these principles to the record evidence,

however, we address defendant's argument that the court erred in

relying on embedded hearsay statements contained in the

investigation summary of the Division intake worker who did not

testify. Specifically, defendant challenges the court's admission

of the intake worker's observations of the detective's interview

7 A-0752-16T2

of B.F, and B.F.'s statements to his stepsister, S.D, and

stepbrother, D.D. Defendant's claims lack merit.

"We grant substantial deference to the trial judge's

discretion on evidentiary rulings." N.J. Div. of Youth & Family

Servs. v. M.G., 427 N.J. Super. 154, 172 (App. Div. 2012)

(citations omitted). Of course, that discretion must conform to

applicable legal standards. See, e.g., Gotlib v. Gotlib, 399 N.J.

Super. 295, 309 (App. Div. 2008).

Pursuant to N.J.S.A. 9:6-8.46(b), evidence adduced in an

abuse or neglect hearing must be "competent, material and

relevant." See N.J. Div. of Youth & Family Servs. v. G.M., 198

N.J. 382, 398, (2009). That requirement is consistent with the

principle that Title 9 fact-finding hearings must be conducted

with sufficient formality and general adherence to fundamental

evidentiary rules. See, e.g., N.J. Div. of Youth & Family Servs.

v. I.Y.A., 400 N.J. Super. 77, 90-91 (App. Div. 2008).

Furthermore, it is well-settled that, in matters involving

the alleged abuse of children, our rules of evidence are

"supplemented by statute and court rule[s]." N.J. Div. of Youth

& Family Servs. v. L.A., 357 N.J. Super. 155, 166 (App. Div. 2003).

Rule 5:12-4(d) specifically permits the Division to submit in

evidence "reports by staff personnel," but it must do so "pursuant

8 A-0752-16T2

to N.J.R.E. 803(c)(6) and 801(d)," which refer to the business

record exception to the hearsay rule.

Moreover, reports admitted pursuant to Rule 5:12-4(d) are

subject to other hearsay limitations, including those imposed by

N.J.R.E. 805 concerning embedded hearsay statements.5 See, e.g.,

N.J. Div. of Child Prot. & Permanency v. N.T., 445 N.J. Super.

478, 496 (App. Div. 2016) (quoting In re Guardianship of Cope, 106

N.J. Super. 336, 343 (App. Div. 1969)). In Cope, we held, "the

[Division] should be permitted to submit into evidence, pursuant

to [former] Evidence Rules 63(13) and 62(5), reports by [Division]

staff personnel . . . prepared from their own firsthand knowledge

of the case." Cope, supra, 106 N.J. Super. at 343; See also,

N.J. Div. of Child Prot. & Permanency v. B.O., 438 N.J. Super.

373, 385 (App. Div. 2014).

Here, defendant concedes the Division's investigative summary

was properly admitted in evidence pursuant to Rule 5:12-4. He

claims, however, because the Division worker who prepared the

5

N.J.R.E. 805 states:

A statement within the scope of an exception

to Rule 802 shall not be inadmissible on the

ground that it includes a statement made by

another declarant which is offered to prove

the truth of its contents if the included

statement itself meets the requirements of an

exception to Rule 802.

9 A-0752-16T2

report did not testify at trial, her memorialized observations of

B.F.'s statements to the detective constitute inadmissible

hearsay. Among other things, defendant argues the caseworker had

turned the case over to the prosecutor's office and, as such, her

observations do not fall within the business records exception

pursuant to N.J.R.E. 803(c)(6).

We are unpersuaded by defendant's arguments. Although the

caseworker did not participate in the interview, she witnessed it

in real time and summarized B.F.'s statements in her investigative

summary. Although the intake worker did not testify at trial,

Ficcaglia's undisputed testimony confirmed the summary was

prepared in the regular course of the intake worker's business.

Moreover, defendant did not object at trial specifically to

Ficcaglia's testimony summarizing the interview. Rather, defense

counsel objected generally to any statements "attributed to [his]

client" and any statement that does not have "an independent

exception to the hearsay rule." Defense counsel emphasized "the

most objectionable [e]mbedded hearsay is contained on Page 7" of

the investigative summary, all of which pertain to defendant's

admission to the detective that he penetrated B.F., the charges

against defendant, and the outcome of B.F.'s examination with Dr.

Lanese. The court invited the parties to submit in evidence a

redacted version of the investigative summary, but defense counsel

10 A-0752-16T2

responded, "I don't object to the [c]ourt reviewing the document."

Thus, it is unclear whether defendant objected specifically to the

statements made by B.F. to the detective. It is likewise unclear

whether defendant objected to B.F.'s statements to his step-

siblings, S.D., and D.D., contained in the investigative summary.

In any event, we conclude the trial court properly admitted

B.F.'s statements to the detective through Ficcaglia, and as

contained in the investigative summary, and B.F.'s statements to

his step-siblings, pursuant to N.J.S.A. 9:6-8.46(a)(4). That

subsection states, "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." See N.T., supra, 445 N.J. Super. at 497.

"Thus, a child's hearsay statement may be admitted into evidence,

but may not be the sole basis for a finding of abuse or neglect."

N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 33

(2011).

We are satisfied B.F.'s statements to the detective were

sufficiently corroborated. We have recognized that corroboration

may include "eyewitness testimony, a confession, an admission or

medical or scientific evidence." N.J. Div. of Youth & Family Servs.

v. L.A., 357 N.J. Super. 155, 166 (App. Div. 2003). However,

11 A-0752-16T2

corroborative evidence may also be circumstantial because often

there 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) (recognizing

corroboration may include, "'a child victim's precocious knowledge

of sexual activity[.]'").

While much of the Division's evidence derives from B.F.'s

statements detailing defendant's sexual assaults, there is

sufficient corroboration in the record to support those statements

based upon Dr. Lanese's unrefuted expert testimony. Specifically,

Dr. Lanese is a medical doctor, specializing in pediatric child

abuse. On cross-examination of her credentials, she acknowledged

she is not a psychologist, but has greater expertise in psychology

"than the average person; because of [her] experience in the child

abuse field, and the reasons [they] actually provide treatment,

and ask for these children to go to treatment." Although Dr.

Lanese would not make a psychological diagnosis as part of her

examination, she explained "it's very difficult to separate your

psychological and your physiologic. Things that happen

emotionally to you can also affect you physically. So, I

understand the psychological component enough, of how it may affect

the body itself."

12 A-0752-16T2

We are satisfied Dr. Lanese's expertise in child abuse

pediatrics dispels defendant's claims that her findings went

beyond pediatrics. Thus, contrary to defendant's contention,

B.F.'s statements detailing two accounts of sexual penetration by

defendant were corroborated by Dr. Lanese's expert testimony and

evaluation of the child. Z.P.R., supra, 351 N.J. Super. at 436.

Additionally, for the first time on appeal, defendant argues

Dr. Lanese's corroboration of the sexual assault was an

impermissible net opinion. This argument also lacks merit.

Defendant did not challenge Dr. Lanese's qualifications as a

child abuse expert at trial. During cross-examination of her

credentials, defense counsel elicited that Dr. Lanese was not an

expert in psychology, but he did he not object to any portion of

her testimony, nor seek to have it stricken. 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 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.

13 A-0752-16T2

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)

(alterations in original).]

Defendant's present contention that Dr. Lanese rendered a net

opinion was not raised before the trial court, and we need not

consider it in this case.

Nevertheless, admission of Dr. Lanese's opinion was not plain

error. In considering whether expert testimony was properly

admitted, "we rely on the trial court'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 her testimony." In re Guardianship

of D.M.H., 161 N.J. 365, 382 (1999) (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

14 A-0752-16T2

committed to the sound discretion of the trial court."); Hisenaj

v. Kuehner, 194 N.J. 6, 12, (2008) (stating that trial court's

evidentiary decision to admit expert testimony is reviewed for an

abuse of discretion).

The rule prohibiting net opinions is a "corollary" of N.J.R.E.

703, Townsend, supra, 186 N.J. at 494, which provides an expert's

testimony "may be based on 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 in forming opinions on the same

subject." Weissbard & Zegas, Current N.J. Rules of Evidence,

comment 1 on N.J.R.E. 703 (2017). Thus, the net opinion rule can

be considered a "restatement of the established rule that an

expert's bare conclusions, unsupported by factual evidence, [are]

inadmissible." Buckelew v. Grossbard, 87 N.J. 512, 524 (1981).

The net opinion rule "requir[es] that the expert 'give the why and

wherefore' that supports the opinion, 'rather than a mere

conclusion.'" Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J.

344, 372 (2011) (quoting Polzo v. Cty. of Essex, 196 N.J. 569, 583

(2008)).

For example, "a trial court may not rely on expert testimony

that lacks an appropriate factual foundation and fails to establish

15 A-0752-16T2

the existence of any standard about which the expert testified."

Id. at 373 (citing Suanez v. Egeland, 353 N.J. Super. 191 (App.

Div. 2002)). Therefore, an expert offers an inadmissible net

opinion if he or she "cannot offer objective support for his or

her opinions, but testifies only to a view about a standard that

is 'personal.'" Ibid.

Applying these principles, we discern no basis for

defendant's argument that Dr. Lanese rendered a net opinion.

Rather, she fully explained the grounds for her conclusions and

was subject to cross-examination by three attorneys concerning

them. Dr. Lanese is a board-certified child abuse pediatrician.

At the time of her testimony, she had specialized in this area for

nearly seven years and testified in abuse and neglect cases

approximately one to two times per month. She was well qualified,

her testimony and written report addressed all the relevant issues,

and her conclusions were firmly supported by the facts in the

record. Therefore, we discern no error, much less plain error,

in the court's admitting her testimony.

We also are not persuaded by defendant's contention that the

trial judge failed to give adequate weight to B.F.'s recantation

to his family members. Dr. Lanese explained that the specific and

detailed account as related by B.F. suggested to her that he did

not lie about the abuse. She elaborated:

16 A-0752-16T2

When a child says they lied, usually those

children can't tell us the further details.

They make one statement that, "Oh so and so

touched me." And then, they can't tell me how

they felt. Or what happened after. They may

not know about the pink-topped tube, or the

pink tube. He wouldn't be able to tell me

that dad laid on him.

Those other statements are what builds the

picture of sexual abuse. The lack of detail

would make me more concerned that he did lie.

But, the fact that he has those details, and

for a five-year-old to remember those details,

if someone was feeding it to him, they just

don't have the ability to remember that well.

And, he indicates that he never saw any

pictures of naked people; so, being exposed

to something like pornography, was not

something that he reported to me. So, he

couldn't have witnessed something.

So, in the end, I was left to say this is a

child who, so far, has been saying that this

happened to him. And, when he gets to me,

now, he's saying he lied. But he's had a

couple days with family, who maybe didn't

believe him.

As noted above, B.F.'s previous statements were properly

accepted by the trial judge because they were corroborated. N.J.

Div. of Child Prot. & Permanency v. Y.A., 437 N.J. Super. 541, 547

(App. Div. 2014). Unfortunately, however, the trial court did not

make any direct findings concerning B.F's purported lie. We do

know, however, that the court "found Dr. Lanese to be a highly

credible witness in her examination, as well as under cross-

examination by the [l]aw [g]uardians, as well as defense counsel."

17 A-0752-16T2

The record, therefore, supports the court's implicit rejection of

B.F.'s purported lie.

We are satisfied that the trial court's omission to explain

the basis of this key determination is not fatal to the ultimate

finding that the Division established, by a preponderance of the

competent material and relevant evidence, that B.F. was abused by

defendant as defined in N.J.S.A. 9:6-8.21. The court's decision

was consistent with B.F.'s earlier statements, and Dr. Lanese's

expert testimony, which the trial judge found credible.

Finally, we are unpersuaded by defendant's argument that the

court's findings of fact and conclusions of law were so inadequate

as to warrant reversal. Where, as here, "'the evidence is largely

testimonial and involves questions of credibility,'" we defer to

the trial judge's factual findings. Sipko v. Koger, Inc., 214

N.J. 364, 376 (2013) (quoting Cesare v. Cesare, 154 N.J. 394, 412

(1998)).

In sum, we discern sufficient credible evidence in the record

as a whole to support the trial court's finding of sexual assault

constituting abuse and neglect. R. 2:11-3(e)(1)(A).

Defendant's remaining arguments lack sufficient merit to

warrant further discussion in our opinion. R. 2:11-3(e)(2).

Affirmed.

18 A-0752-16T2