RECORD IMPOUNDED

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4068-18T3

NEW JERSEY DIVISION 

OF CHILD PROTECTION 

AND PERMANENCY,

Plaintiff-Respondent,

v.

J.M.,

Defendant-Appellant,

and

J.F. and S.A.,

Defendants.

__________________________

IN THE MATTER OF N.F.

and S.M., minors.

__________________________

Submitted September 14, 2020 – Decided

Before Judges Sabatino and Gooden Brown.

NOT FOR PUBLICATION WITHOUT THE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.

September 18, 2020
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A-4068-18T3

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Hudson County, 

Docket No. FN-09-0222-18.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Robyn A. Veasey, Deputy Public Defender, 

of counsel; Kevin G. Byrnes, Designated Counsel, on 

the briefs).

Gurbir S. Grewal, Attorney General, attorney for 

respondent (Melissa H. Raksa, Assistant Attorney 

General, of counsel; Sara M. Gregory, Deputy Attorney 

General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian,

attorney for minors (Meredith Alexis Pollock, Deputy 

Public Defender, of counsel; David Valentin, Assistant 

Deputy Public Defender, on the brief).

PER CURIAM

Defendant J.M.1, the mother of N.F., appeals the Family Part's fact-finding 

determination that she neglected N.F., in violation of N.J.S.A. 9:6-8:21(c), by 

failing to protect N.F. from repetitive sexual contact over a two-year period, by 

a male boarder who lived in their home. 

Defendant's primary argument is that the trial judge improperly relied on 

hearsay statements presented by the Division of Child Protection and 

Permanency ("the Division"). For the reasons that follow, we affirm.

1 We use initials in this opinion to protect the minors' privacy. R. 1:38-3(d)(11)

and (12).
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A-4068-18T3

I.

Factual Background

The Division's proofs at the fact-finding hearing may be summarized as 

follows. Defendant is the biological mother of two daughters: N.F. ("Nancy") 

who was born in March 2007; and N.F.'s older sister S.M. ("Sharon"), who was 

born in March 2002.2 Nancy's biological father, J.F., is separated from 

defendant but he lives on the first floor of the same building where defendant 

and the two daughters reside. The biological father of Sharon, S.A., is also 

separated from defendant but he resides elsewhere. Neither father is a party to 

this appeal. At the times relevant to this case, the upstairs unit was occupied by 

defendant, her two daughters, a maternal uncle, J.M., and a boarder, P.N. 

According to the Division's proofs, starting in 2015, Nancy reported to 

defendant that P.N. had been touching her inappropriately. Nevertheless, P.N. 

continued residing as a boarder in defendant's residence.

About two years later, in July 2017, Nancy again told defendant that P.N. 

had touched her in ways that made her feel uncomfortable. Nancy also told

2 We use the same fictitious first names for the daughters as are used in the 

Division's brief.
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defendant that P.N. had showed her nude photos. Defendant instructed Nancy 

to avoid P.N., but she took no other action.

In January 2018, the Division received a referral from Nancy's school, 

reporting that a man renting a room in her unit had been touching her breasts 

and vagina. According to the report, Nancy had informed defendant of these 

sexual contacts, but defendant simply told her to stay away from him. 

Investigation by the Division and the County Prosecutor

The Division then conducted an investigation into these allegations. A 

case worker interviewed Nancy, who detailed the repeated incidents of sexual 

contact by P.N. According to Nancy, P.N. would inappropriately touch her 

when he was alone with her, such as when defendant was out running errands 

with her sister. As described by Nancy, P.N. would touch her breasts or vagina. 

She also recounted an incident when she was home alone with P.N. when he 

came out of the shower and exposed his penis to her, causing Nancy to run into 

her bedroom. 

As described by Nancy, P.N. began touching her and engaging in other 

inappropriate acts when he first moved into the house about two-and-a-half 

years earlier, when Nancy was eight years old. She explained to both the 

Division's case worker and an investigator from the county prosecutor's office 
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that when she reported P.N.'s conduct to defendant, defendant simply told her to 

avoid P.N. and promised to speak with him about it. 

When interviewed by the prosecutor's investigator about these allegations,

defendant admitted that Nancy had told her P.N. had touched her, but initially 

claimed that Nancy was pointing to her shoulders as the place where he had done 

so. Later on, defendant admitted that Nancy had told her that P.N. had touched 

her breasts and vagina over her clothing. Defendant also admitted that Nancy 

had told her that P.N. had shown her videos of naked women. 

According to defendant, she did ask P.N. about these allegations, but he 

denied them. She described P.N. as a "trustworthy man," and refused to believe 

Nancy's contentions until she had more proof of the abuse.

Following this investigation, P.N. was arrested and charged with sexual 

assault of a minor and other offenses. Defendant and Nancy's father, J.F., were 

also arrested, and charged with endangering the welfare of a child.3 The 

Division conducted an emergency removal of Nancy and her sister from the 

home and initially placed them in the care of a maternal cousin.

3 Apparently, those criminal charges against defendant and J.F. were dropped.
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The Present Title Nine Case

The Division filed the present abuse-or-neglect case against defendant and 

J.F. under Title Nine. At the ensuing two-day fact-finding hearing in May 2018 

the Division presented two witnesses: the case worker, Mauricio Diaz, and an 

expert psychologist, Dr. Anthony D'Urso. 

Diaz recounted to the judge the steps he had undertaken to investigate the 

allegations and to safeguard the children's safety. Dr. D'Urso then testified that 

he had reviewed the case documents and the detective's videotaped interview of

Nancy, and concluded that the acts of sexual abuse were "clinically supported." 

In addition to the two testifying witnesses, the Division presented the 

investigation reports and other documents, including a psychological evaluation 

of Nancy. 

Defendant chose not to testify at the hearing, and she did not present any 

witnesses on her own behalf. 

The Judge's Decision

After considering the evidence, Judge Lois Lipton issued an oral opinion 

on July 16, 2018. In her decision, the judge notably found the testimony of both 

Diaz and Dr. D'Urso to be credible. By contrast, the judge found defendant's 

version of "what she was told and what she wasn't told" to be lacking in 
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A-4068-18T3

credibility. In particular, the judge noted that "[i]t does not make sense" if 

defendant thought that Nancy was touched only on the shoulder, that she would 

tell P.N. that she would "kick him out," if the alleged touching were true.

The judge then applied the governing law under Title Nine. She 

concluded that defendant's failure to report Nancy's allegations of repeated 

sexual abuse by P.N. to the police or the Division constituted "grossly and 

wantonly negligent" conduct, which resulted in "harm to the child and serious 

risk of future harm." 

Among other things, the judge found that Nancy's statements had been 

corroborated in part by the clinical assessment of Dr. D'Urso and also by the 

evaluation performed by the other expert who had interviewed Nancy. The 

judge also pointed to defendant's own admission that Nancy had reported P.N.'s 

improper conduct to her. The judge disbelieved defendant's contention that 

Nancy had only said that P.N. touched Nancy on the shoulder, as being 

inconsistent with her alleged instruction to Nancy to try to get proof of P.N.'s 

conduct on her cell phone. 

Having canvassed these proofs, Judge Lipton concluded the Division had 

met its burden of proving abuse or neglect as to the defendant by a 

preponderance of the evidence. By contrast, the judge found the Division had 
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not similarly proven abuse or neglect by J.F. The judge noted that Nancy had 

consistently told the Division's case worker, prosecutor's office, and the clinical 

evaluators that she had not told her father "at any time" about being 

inappropriately touched. In addition, the judge found no other evidence that J.F. 

had been advised by defendant, nor by anyone else, about improper sexual 

conduct. Instead, J.F.'s information was "filtered through" defendant, "who 

wanted P.N. to remain in the home."4

The Appeal

On appeal, defendant argues: (1) the trial court erred in basing its findings 

of neglect "solely on the child's uncorroborated out-of-court hearsay 

declarations," and (2) the court erred in admitting opinion testimony of a clinical

psychologist, Dr. D'Urso, "on the issue of whether there had been child sex 

abuse."

The Law Guardian joins with the Division in opposing these points on 

appeal, and in arguing that we affirm the trial court's decision. 

4

 The Division does not appeal this determination of no abuse or neglect as to 

J.F.
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II.

The pertinent legal standards under Title Nine we apply here are well 

established. An abused or neglected child under Title Nine is one 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, as herein defined, 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; . . . .

[N.J.S.A. 9:6-8.21(c)(4)(b).]

The Supreme Court established that the phrase "minimum degree of care" 

under the statute "refers to conduct that is grossly or wantonly negligent, but not 

necessarily intentional." G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 

(1999). A parent or guardian falls short of the "minimum degree of care" 

standard "when he or she is aware of the dangers inherent in a situation and fails 

adequately to supervise the child or recklessly creates a risk of serious injury to 

that child." N.J. Div. of Child Prot. & Permanency v. A.B., 231 N.J. 354, 369 

(2017) (quoting G.S., 157 N.J. at 181). 

Our scope of review of the Family Part judge's fact-finding determination 

of abuse or neglect is limited. We must defer to the factual findings of the 
10 A-4068-18T3

Family Part if they are sustained by "adequate, substantial, and credible 

evidence" in the record. N.J. Div. of Child Prot. & Permanency v. N.B., 452 

N.J. Super. 513, 521 (App. Div. 2017) (citation omitted). That deference is 

justified because of the Family Part's "special jurisdiction and expertise in 

family matters." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 

343 (2010) (citation omitted). The reviewing court grants particular deference 

to the trial court's credibility determinations, N.J. Div. of Youth & Family Servs. 

v. M.M., 189 N.J. 261, 279 (2007), and only overturns its determinations 

regarding the underlying facts and their implications when the "findings went 

so wide of the mark that a mistake must have been made." Ibid. (internal 

quotation omitted). That said, an appellate court does not give special deference 

to the trial court's interpretation of the law, which it reviews de novo. D.W. v. 

R.W., 212 N.J. 232, 245-46 (2012).

Applying these well-settled principles here, we affirm the Family Part's 

determination that defendant was grossly negligent in failing to protect her 

daughter from the repeated sexual abuse by her boarder, P.N. We do so 

substantially for the reasons articulated in Judge Lipton's bench opinion. We 

amplify our conclusion with a few additional comments. 
11 A-4068-18T3

First, we are satisfied the trial court did not misapply evidentiary 

principles in its fact finding or unfairly rely on hearsay statements. Title Nine 

contains a special exception to the hearsay doctrine, N.J.S.A. 9:6-8.46(a)(4). 

That exception prescribes that "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." Ibid. 

Although the most effective corroborative evidence may be eyewitness 

testimony or a confession, the "corroborative evidence 'need only provide 

support for the out-of-court statements.'" N.J. Div. of Youth & Family Servs. v. 

L.A., 357 N.J. Super. 155, 166 (App. Div. 2003) (quoting N.J. Div. of Youth & 

Family Servs. v. Z.P.R., 351 N.J. Super. 427, 436 (App. Div. 2002)). There 

must be some evidence in addition to the child's statement itself, and such 

evidence may be circumstantial. N.J. Div. of Youth & Family Servs. v. N.B., 

452 N.J. Super. 513, 522 (App. Div. 2017). 

In Z.P.R., we noted that, in cases of sexual abuse such as the present 

matter, 

[t]he child victim is often the only eyewitness to the 

crime, and physical corroboration is rare because the 

sex offenses committed against children tend to be 

nonviolent offenses such as petting, exhibitionism, 
12 A-4068-18T3

fondling . . . . Consequently, in 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.

[351 N.J. Super. at 436 (internal citation omitted).]

To be sure, in N.B., 452 N.J. Super. at 522, we observed that "courts must protect 

against conflating a statement's reliability with corroboration." Moreover, 

"consistency alone does not constitute corroboration." Id. at 523. 

Here, there are essentially two distinct issues that bear upon defendant's 

culpability for neglect: (1) whether P.N. sexually abused Nancy and (2) whether 

defendant was sufficiently aware of the abuse and nevertheless failed to take 

action. As to the first question, defendant does not challenge the sufficiency of 

the corroboration of Nancy's statements regarding sexual abuse by P.N. Indeed, 

the record supports the court's finding that the Division provided sufficient 

corroboration as to the occurrence of the sexual wrongdoing. The Division 

determined that Nancy's statements were confirmed -- not just by their 

consistency over time, but by the sensory details that she described, her 

emotional responses to the abuse, and her lack of exaggeration. 

The second pivotal question relates to the proof of defendant's awareness 

of her daughter's victimization. The trial court reasonably found such awareness 

had been proven by the Division. The judge's decision was not, as defendant 
13 A-4068-18T3

argues on appeal, "solely" based on the child's hearsay statements. In fact, 

defendant's awareness was established not only by Nancy's multiple and 

consistent assertions that she had reported the sexual abuse to others, but also 

by defendant's own admissions and behavior. 

Although defendant initially claimed that Nancy had told her that P.N. had 

merely touched her on the shoulder, defendant subsequently admitted to 

Detective Luz-Mary Jimenez that Nancy told her P.N. had touched her on her 

breasts and vagina. Defendant further admitted that Nancy had told her P.N.'s 

touching made her feel uncomfortable. Defendant also admitted that, on a 

second occasion, Nancy disclosed to her that P.N. had touched her on her 

buttocks. Defendant further admitted, in response to Detective Jimenez's 

questioning about pornographic videos, that Nancy had alleged that P.N. 

"showed her videos of girls and boys."

Defendant further acknowledged that Nancy's older sister Sharon told her 

that P.N. kissed her or "did something like that to her." In addition, defendant 

admitted to Diaz that she had "failed her daughters," and was "fully aware that 

she made a big mistake" in not taking appropriate action to stop P.N. 

In addition to these admissions by defendant, Nancy's allegations are also 

consistent with the assertions by her older sister, Sharon, that she herself had at 
14 A-4068-18T3

least conversations with their mother asking her to "do something" about P.N.'s 

abuse. Sharon also stated that when she was in the fourth grade, P.N. licked her 

cheek, although she did not report that particular incident. 

As the trial judge pointed out, defendant's own conduct in failing to react 

responsibly to Nancy's allegations is also indicative of an awareness that more 

had occurred than merely P.N. touching Nancy's shoulder. For example, 

defendant's suggestion to Nancy that she try to take a cell phone video or photo

of P.N.'s behavior belies her claim that the conduct was benign. Moreover, 

defendant's assurances that she would address the matter with P.N. directly (or 

indirectly with the assistance of Nancy's father) is also indicative that she 

believed Nancy's allegations were not imaginary or insignificant. 

In sum, there was ample proof of corroboration here to enable the trial 

court to admit Nancy's out-of-court assertions into evidence and also to find 

them sufficiently credible to rely upon them.

Turning to defendant's second legal argument, we discern no harmful error 

stemming from the court's consideration of Dr. D'Urso's expert testimony. The 

expert, who notably was unrebutted by a competing defense expert, provided a 

useful conceptual and clinical framework to help the court in assessing Nancy's 
15 A-4068-18T3

allegations, and the severity of the harm that resulted from defendant's failure to 

take protective action. 

Dr. D'Urso's fleeting mention of the term "accommodation" during his 

testimony and its inclusion in a related report was a far cry from a full-blown 

expert presentation of Child Sexual Abuse Accommodation Syndrome 

("CSAAS"), a theory which the Supreme Court has since deemed unreliable. 

See State v. J.L.G., 234 N.J. 265, 272 (2018). 

Dr. D'Urso did not make or present a CSAAS diagnosis in this case. In 

fact, Nancy was never diagnosed by anyone with CSAAS, and instead was found 

to have adjustment disorder with anxiety. The dangers of misuse or prejudice

of CSAAS concepts in this context before an experienced Family Part judge are 

unlike those existing in a jury trial. Indeed, the judge did not even mention 

CSAAS in her decision. 

We are mindful of our admonition in N.B., 452 N.J. Super. at 523, that 

mental health professionals should not "opine about the trustworthiness of a 

child's hearsay statements." We recognize in this regard the trial court did 

consider, to some extent, Dr. D'Urso's expert views about Nancy's credibility,

based upon her clinical presentation. Nonetheless, even if those references are 
16 A-4068-18T3

ignored, there remains ample evidence in the record to support the trial court's 

findings of defendant's gross negligence as a parent.

As a final point, we must acknowledge that the prime wrongdoer in this 

matter is, of course, P.N., assuming the alleged sexual misconduct did occur. 

The record does not inform us of exactly what happened with the criminal 

charges against P.N., and we need not know them for purposes of adjudicating 

this civil appeal. It is worth noting that defendant does not claim that she was 

threatened by P.N. to ignore her daughter's allegations or physically coerced or 

intimidated by him. 

Because of her fiduciary responsibilities as a parent, defendant was 

obligated to take some action to try to protect her daughter, even if she was not 

herself the perpetrator. Indeed, it is well established that a parent fails to 

exercise a minimum degree of care when she is aware of the dangers inherent in 

a situation and fails to protect her child from harms that are being inflicted by 

another member of the household. See, e.g., N.J. Div. of Prot. & Permanency 

v. J.L.G., 450 N.J. Super. 113, 121 (App. Div. 2015), aff'd o.b., 229 N.J. 113 

(2017).
17 A-4068-18T3

To the extent we have not otherwise addressed them, all other arguments 

raised by defendant lack sufficient merit to warrant discussion. R. 2:11-

3(e)(1)(E).

Affirmed.