### RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2020- 22
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent,

v. M.B. and A.M., Defendants, and C.A.M., Defendant-Appellant.

_________________________ IN THE MATTER OF R.M., S.M., and A.M., minors.

______________________ _ __

Submitted June 4, 2024

– Decided July 1, 202 4 Before Judges Smith and Perez Friscia.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 2020

- 22 On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No

. FN

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- 0103 -22. Jennifer Nicole Sellitti, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, on th e briefs). Matthew J. Platkin, Attorney General, attorney for respondent (Sookie Bae-Park, Assistant Attorney General, of counsel; Renee Greenberg, Deputy Attorney General, on the brief). Jennifer Nicole Sellitti, Public Defender, Law Guardian, attorney for minors (David B. Valentin, Assistant Deputy Public Defender, on the brief).
PER CURIAM Defendant, C.A.M. 1 (Caden or defendant) appeals from an August 10, 2022 order of the Family Part finding he abused and neglected his stepdaughter S.M. (Stella). We affirm for the following reasons

. I. M.B. (Maisie) is the mother of Stella, R.M. (Rhys), and A.M. (Aimee). Maisie began a relationship with Caden, the father of Aimee, in 2018. Maisie's former boyfriend A.M. (Albert), who is the father of Stell a and Rhys, resided in

1 We use initials and fictitious names for the parent s and children to protect their privacy and the confidentiality of the record

. R. 1:38 -3(d)(12).3 A- 2020

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Florida. 2 Maisie, Caden, and the three children lived togethe r in an apartment in Newark. On September 29, 2021, Maisie reported to police th at Caden hit her, and the police made a referral to the Division of Child Protection and Permanency (DCPP) because Maisie reported Aimee witnessed the assault. Maisie and the children went to stay with her sister in Jersey Cit y. Aminah Ahmad, a DCPP caseworker, visited the family the following day to begin the Division's investigation. During the visit, Maisie told the c aseworker that her mother (Stella's maternal grandmother) and sister (Stella' s maternal aunt) told her that Stella, who was seven years old, 3 disclosed Caden had been sexually assaulting her. Maisie reported that Stella told the maternal grandmother and aunt Caden "puts his private on her while he touches his priva te part and makes her sit on his lap." The caseworker then interviewed Stella privately, w ho reported Caden wakes her up at night and brings her to the bathroo m, and that he started waking her up "in the summer." When asked what happens wh en she goes into the

2 No findings were made against Maise or A.M. and the y are not parties to this appeal.

3 Stella was born in December 2013.4 A- 2020

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bathroom with Caden, Stella answered that he makes her watch "nasty" stuff on his phone, and makes her undress , sit on his private part and he "moves up and down." Stella added that "it hurts" because "his private part goes in a little bit." That night, Maisie reported the assault to police, stating that Stella told the maternal grandmother Caden started assaulting her i n September 2020 and continued until "the summertime." Stella was not t aken to a hospital for examination. DCPP's next in-home visit was November 10, 2021, du ring which the caseworker observed the children playing together a nd both Stella and Rhys reported they felt safe in their mother's care. Wh en asked about Stella's behavior, Maisie reported that she has been fine bu t has an addiction problem with using her cell phone and playing mobile games that is causing issues with school and sleep. DCPP conducted another home-visit on December 9, 20 21, by which time Maisie had moved with the children back to Newark t o an apartment next door to Caden, although Maisie said she was looking for a new home. Maisie told the caseworker that Stella recanted her allegations . The caseworker interviewed Stella in private, and when asked if she remembered the conversation they had she replied "yes, he didn’t do anything to me, we d idn't live with him." Stella5 A- 2020

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could not answer why she told the caseworker the st ory she did, and when asked if someone told her to say that Caden didn't do wha t she reported he did, she did not respond. The caseworker also interviewed Maisie, who said she had been in contact with Caden, who lived next door. Maisie to ld the caseworker that Caden understood that he couldn't see or speak to the chi ldren. When caseworkers visited on February 9, 2022, Maisi e said she had been in contact with Caden and admitted Caden had contac t with Aimee but denied that he had any contact with Stella. Maisie also s tated that she was waiting to schedule a forensic video interview (FVI) with Stel la, which the police eventually scheduled for February 17, 2022 at the E ssex County Prosecutor's Office. On February 16, 2022, a social worker at Stella's s chool made a referral to DCPP, reporting that Stella told a teacher her w hole body hurt, and that her stepdad has been having sex with her every day. St ella also stated Caden ha d been putting his hands down her pants while her mom was sleeping. Stella told the teacher her mom knows and "is taking [her] to t he police station tomorrow to say it never happen[ed]." A caseworker responde d to the school to interview Stella. Stella said she knew the caseworker was th ere because "her 'daddy' touches her in her privates and that it happens eve ry day."6 A- 2020

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When asked what was happening the next day, Stella said her mother was taking her to talk to the police. She then said th at her mother told her to say nothing happened, because if she talked, she would end up in foster care and not see her brother or sister again. Stella also said her mother promised her "Robux" 4 if she told the police nothing happened. When int erviewed by caseworkers, Maisie denied threatening Stella with foster care, but did admit she told Stella "Tomorrow is a big day," and not to tell people their family business. The following day, Stella was interviewed by invest igators at the Essex County Prosecutor's Office. During the FVI, Stella stated that Caden touched her genitals with his hands as he took off her clot hes while her family was asleep. She also reported that Caden licked her genitals in the kitchen of the apartment. She further disclosed Caden made her sit on his gen itals while he sat on the bathtub in the bathroom and that his private part w ent inside her. When asked, Stella described Caden's penis as "hard." She stat ed that he made her sit on his penis until he was "finished." When asked what fin ished meant, Stella said she didn't know, but said that there was yellow, sticky stuff that got on her hand, and she did not like it.

4 Robux is the virtual currency used in the online gaming platform "Roblox."7 A- 2020

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On February 23, 2022, DCPP initiated a child-protec tion action under N.J.S.A. 9:6- 8:21 and N.J.S.A. 30:4C-12 seeking care and supervision of the three children. On March 1, 2022, Stella was evaluated by licensed psychologist Diane E. Snyder, Ph.D. Prior to her evaluation, Dr. Snyd er viewed Stella's FVI, interviewed the DCPP caseworker, and reviewed the d ivision's records. At the outset of the evaluation, Dr. Snyder established th at Stella knew the difference between a truth and a lie and asked her if she agre ed to tell the truth. Stella did not agree, and Dr. Snyder understood her response t o mean that there were certain things that Stella would not talk about, an d not that Stella would be untruthful about the things she would talk about. Dr. Snyder observed Stella as "a listless, possibly depressed child, who spoke in a low tone." Stella told Dr. Snyder that Caden to uched her private part with his hand "a lot . . . 100 days" and that he to uched her genital area with his "part" "a lot of times . . . 100 times." Stella described Caden sitting on the edge of the bathtub naked and Stella on his lap, face to face. St ella explained, "I was looking at the bathtub," clarifying that she did not look at Caden. Stella stated that Caden would make her touch his penis. Stella sa id that these incidents took place in the bathroom at night when her mother was asleep. When asked about8 A- 2020

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exposure to sexually explicit material, Stella conf irmed, "Dad showed me a lot." Stella told Dr. Snyder that Caden's penis went insi de her and that a white liquid would come out of his penis. Dr. Snyder asked a series of questions to assess wh ether Stella was experiencing any problem behaviors. Stella said th at she worries about herself but couldn't articulate what she was worried about. Stella reported it takes her "20 hours" to fall asleep, and that she experiences recurrent intrusive thoughts regarding the sexual abuse multiple times per day, every day. Dr. Snyder's report indicated that due to Maisie's current non-s upport of the abuse allegations, Stella was at risk of recantation. Dr. Snyder's repo rt concluded with a diagnosis of post-traumatic stress disorder. A Title Nine hearing was held on August 10, 2022. Th e parties stipulated to the authenticity of the FVI and agreed to watch it outside the courtroom. Dr. Snyder testified as an expert in psychology and chi ld abuse and neglect for the Division. Dr. Snyde r testified consistent with her report and recounte d the allegations Stella described. In regard to Stella' s indication that she was not willing to tell the truth about some things, Dr. Snyder testified that she regularly asked Stella throughout the evaluation whether what she was saying was a true or a lie. Twice Stella responded that a topic was something she was not willing9 A- 2020

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to talk about: whether her mother or stepfather dr inks alcohol, and whether there were other bad things that happened to her. When a sked about the allegations she previously made, Dr. Snyder testified Stella in dicated that she would truthfully report "some things" but would not repor t everything he did to her. In regard to Stella's comments that the abuse happe ned "a lot, 100 times" and whether that was exaggeration, Dr. Snyder testi fied that it was her opinion this was "child speak," which is common when childr en want to express something happens a lot: "it's a gazillion times, i t's a hundred billion times, it's a lot. It's every day. It's a thousand times a day." Dr. Snyder testified that in her opinion, using this language would not cause her to think it was an unreliable

statement. Dr. Snyder also testified that Stella’s knowledge o f sexual details was precocious for an eight-year-old. Dr. Snyder testi fied that "her described experience and [during] her FVI . . . she's having an a-typical experience for an [eight]-year-old. She had ejaculate on her hand an d she's saying I had to get [it off my hand]." Dr. Snyder further testified that d escribing the penis as hard would not be common knowledge for a child. Aminah Ahmad, the DCPP caseworker assigned to Stell a's case, also testified. She testified about Stella’s September 2021 and February 202210 A- 2020

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disclosures of sexual abuse by Caden. She testifie d that Stella reported that her mother warned if she said something happened "DYFS would take her away and that if she [did not] she will give her Robux." Following the hearing, the court found DCPP showed by a p reponderance of the evidence that Stella was abused or neglected . The court found Stella's

out

- of -court statements regarding sexual abuse were corro borated by: the expert opinion and diagnosis of post -traumatic stress disorder (PTSD) by Dr. Snyder; her consistent statements made to multiple sources; and the precocious sexual knowledge exhibited when describ ing the abuse. Specifically, the court found that Stella’s descriptions of oral sex, Caden’s penis being hard, and "the color [and] the texture of the ejaculate" was precocious knowledge an eight-year-old would otherwise not know. The court also credited the test imony of Dr. Snyder and her diagnosis of PTSD. Defendant raises the following points on appeal:
I. THE FAMILY PART JUDGE'S DETERMINATION THAT THE EIGHT-YEAR OLD'S OUT- OF -COURT STATEMENTS WERE CORROBORATED IS NOT SUPPORTED BY THE RECORD.
A. The eight-year-old's unreliable out- of

court statements do not corroborate her sexual abuse allegations through either consistency or precocious knowledge.11 A- 2020

- 22 B. The Family Part judge erred by relying on the child abuse psychologist's expert opinion that the eight -year-old suffered from PTSD as corroboration of the child's out- of -court statements.

II. A. "[W]e accord substantial deference and defer to th e factual findings of the Family Part if they are sustained by 'adequate, sub stantial, and credible evidence' in the record." N.J. Div. of Child Prot. & Permane ncy v. N.B., 452 N.J. Super. 513, 521 (App. Div. 2017) (quoting N.J. Div. of You th & Fam. Servs. v. R.G. , 217 N.J. 527, 552 (2014)). We ordinarily accord su ch deference because of the Family Part's "special jurisdiction and expertise," N.J. Div. of Youth & Fam. Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (quoting Cesa re v. Cesare, 154 N.J. 394, 413 (1998)), and its "opportunity to make firs t-hand credibility judgments about the witnesses . . . [and have] a 'feel of the case' that can never be realized by a review of the cold record," N.J. Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth & F am. Servs. v. M.M., 189 N.J. 261, 293 (2007)). "Nevertheless, if the trial court's conclusions are 'clearly mistaken or wide of the mark,' an appellate court must intervene to ensure the fairness of the12 A- 2020

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proceeding." N.J. Div. of Youth & Fam. Servs. v. L .L., 201 N.J. 210, 226- 27 (2010) (alteration in original) (quoting E.P., 196 N.J. at 104). We owe no deference to the trial court's legal conclusions, w hich we review de novo. N.J. Div. of Child Prot. & Permanency v. A.B., 231 N.J. 354, 369 (2017).
B. Under N.J.S.A. 9:6-8.21(c), an abused or neglected child is one whose parent or guardian:

(3) commits or allows to be committed an act of sex ual abuse against the child; (4) or a child whose physi cal, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the resu lt of the failure of his parent or guardian . . . to e xercise a minimum degree of care . . . (b) in providing the c hild with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof . . . . "Abuse and neglect cases 'are fact-sensitive.'" N. J. Div. of Child Prot. & Permanency v. E.D.- O. , 223 N.J. 166, 180 (2015) (quoting N.J. Div. of Yo uth & Fam. Servs. v. T.B., 207 N.J. 294, 309 (2011)). "The Division bears the burden of proof at a fact-finding hearing . . . ." N.J. Div. of Youth & Fam. Servs. v. A.L., 213 N.J. 1, 22 (2013) (citing N.J.S.A. 9:6 -8.46(b)). To prevail in a Title Nine proceeding, DCPP must show by a preponderance of the "competent, material and relevant evidence" that the parent or guardian abused or neglected13 A- 2020

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the affected child. N.J.S.A. 9:6-8.46(b); accord N .J. Div. of Youth & Fam. Servs. v. P.W.R., 205 N.J. 17, 32 (2011) (quoting N .J.S.A. 9:6-8.46(b)). There must be "proof of actual harm or, in the absence of actual harm," through "competent evidence adequate to establish [the chil d was] presently in imminent danger of being impaired physically, mentally or em otionally." N.J. Div. of Youth & Fam. Servs. v. S.I., 437 N.J. Super. 142, 1 58 (App. Div. 2014) (citation omitted). N.J.S.A. 9:6-8.46(a)(4) provides that "previous sta tements made by the child relating to any allegations of abuse or negle ct 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." "A c hild's statement need only be corroborated by '[s]ome direct or circumsta ntial evidence beyond the child's statement itself.'" N.J. Div. of Child Pro t. & Permanency v. A.D., 455 N.J. Super. 144, 156 (App. Div. 2018) (quot ing N.B., 452 N.J. Super. at 522). "The most effective types of corroborative evidence may be eyewitness testimony, a confession, an admission or medical or scientific evidence." Ibid. (quoting N.J. Div. of Youth & Fam. Servs. v. L.A., 357 N.J. Super. 155, 166 (App. Div. 2003)). Such indirect evidence has incl uded "a child victim's precocious knowledge of sexual activity, a semen st ain on a child's blanket, a14 A- 2020

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child's nightmares and psychological evidence." N. J. Div. of Child Prot. & Permanency v. I.B., 441 N.J. Super. 585, 591 (App. Div. 2015) (quoting N.J. Div. of Youth & Fam. Servs. v. Z.P.R., 351 N.J. Sup er. 427, 435 (App. Div. 2002)). Evidence of "age-inappropriate sexual beha vior" can also provide the necessary corroboration required under N.J.S.A. 9:6 -8.46(a)(4). Z.P.R., 351 N.J. Super. at 436.
III. Defendant argues the court's finding of abuse and n eglect is not supported by the record because Stella's allegations were not sufficiently corroborated. Defendant argues: Stella's out- of -court statements were unreliable and inconsistent because she recanted her allegations; Stell a did not agree to tell the truth in her evaluation with Dr. Snyder; Stella's a llegations are inconsistent because she did not inform any source other than th e FVI interviewer that Caden engaged in oral sex with her; the conclusion Stella 's sexual knowledge was precocious is problematic because she had access to the internet and could have viewed sexual material on her cell phone; and Dr, S nyder's report was not reliable. We are un persuaded. Stella's out- of -court statements consistently described sexual abu se by Caden. Stella made several out- of -court statements, first disclosing abuse to her15 A- 2020

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family and the DCPP caseworker in September 2021. Stella next reported allegations to school staff and a DCPP caseworker i n February 2022. Stella then subsequently reported abuse in her February 2022 FV I and March 2022 evaluation with Dr. Snyder. Each time, Stella repo rted Caden would take her into the bathroom, pull down her pants, touch her g enitals, and make her sit on his lap. Stella's disclosure of an additional deta il regarding oral sex to Dr. Snyder does not render her allegations inconsistent

. Additionally, defendant's assertion that Stella's statements to Dr. Snyder are unreliable because Stella would not agree to be truthful mischaracterizes Dr. Snyder's report and testimony. Dr. Snyder indicate d that she understood Stella to mean that she would not disclose everything that had happened but would truthfully discuss topics she was willing to talk a bout. Dr. Snyder addressed this by frequently checking with Stella to see if s he was being truthful. Notably, this understanding of Stella's comments is supporte d by her refusal to talk about certain subjects such as her parents' alcohol usage and other bad things that may have happened. Similarly, defendant's argument that Stella's state ments are unreliable because she recanted is unpersuasive. DCPP's inves tigation first revealed that Maisie reported that Stella had recanted, and when asked St ella responded "yes,16 A- 2020

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he didn't do anything to me, we didn't live with hi m" but would not respond to follow up questions. However, Stella later re-alle ged the same abuse to her teacher, the prosecutor's office, and Dr. Snyder. Additionally, Dr. Snyder's report noted that Stella was at risk of recantation due to M aisie's lack of support of her allegations. Most notably, Stella told DCPP staff that Maisie told her if she said Caden abused she would be placed in foster care, while if she did not, she would be given Robux. Indeed, Maisie admitted telling Stella not to tell others "family business." The trial court's findin g that Stella did not recant is supported by the record. The record also supports the trial court's finding that Stella's out- of -court statements were sufficiently corroborated. First, Stella's statements included detailed descriptions of abuse and precocious sexua l knowledge that are atypical for an eight-year-old. See Z.P.R., 351 N.J . Super. at 436 ("[W]e have no doubt that evidence of age-inappropriate sexual beh avior could provide the necessary corroboration required by N.J.S.A. 9:6

– 8.46a(4)."). The court's finding that Stella's sexual knowledge

— which included description of the color and texture of ejaculate, how his penis felt hard, and a description of oral sex

— was beyond that of a typical eight-year-old is supp orted by the record. Defendant's argument that Stella could have been ex posed to sexual content on17 A- 2020

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the internet is mere speculation, and defendant has not offered any evidence that Stella was viewing such material on her own. Second, the court properly relied on the unrebutted expert report and testimony of Dr. Snyder. The court's determination finding Dr. Snyder's testimony credible is entitled to substantial defere nce. See E.P., 196 N.J. at 104 (2008) (quoting M.M., 189 N.J. at, 293). Dr. Snyde r's opinion included a diagnosis of PTSD based on: an allegation of sexua l violence; recurrent intrusive thoughts; sleep disturbances; and an obse rved cognitive or mood disturbance. See I.B., 441 N.J. Super. at 591 (quo ting Z.P.R. , 351 N.J. Super. at 435). While defendant argues that the diagnosis of PTSD did not consider the "other things" Stella did not wish to talk about, h er report did clearly indicate that her recurrent intrusive thoughts involved "all the things (sex abuse) he ([Caden]) did." Stella's out- of -court statements, corroborated by her precocious knowledge and Dr. Snyder's expert opinion, sufficie ntly established abuse and neglect by a preponderance of the evidence. Affirmed.