DOCKET NO.

A-2095-12T2
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

In re C.V.
Decided Jan 7, 2015

DOCKET NO. A-2095-12T2 In this Title Nine case,2 defendant G.V. (Gary)3
appeals from the Family Part order finding that he
01-07-2015
sexually abused his son C.V. (Conner). He also
NEW JERSEY DIVISION OF CHILD contends that the Family Part judge should not
PROTECTION AND PERMANENCY, Plaintiff- have terminated the litigation without holding a
Respondent, v. G.V., Defendant-Appellant. IN dispositional hearing under N.J.S.A. 9:6-8.50 and
THE MATTER OF C.V., A MINOR. a Baures 4 hearing under N.J.S.A. 9:2-2. Having

Joseph E. Krakora, Public Defender, attorney for reviewed Gary's arguments in light of the record
appellant (Mary Potter, Designated Counsel, on and applicable legal principles, we affirm.
the brief). John J. Hoffman, Acting Attorney 2 N.J.S.A. 9:6-8.21 to -8.73.

General, attorney for respondent (Andrea M.

3 We use pseudonyms to protect the family's
Silkowitz, Assistant Attorney General, of counsel;
privacy.
Ann Avram Huber, Deputy Attorney General, on
the brief). Joseph E. Krakora, Public Defender, 4 Baures v Lewis, 167 N.J. 91 (2001).

Law Guardian, attorney for minor (Karen

Lodeserto, Designated Counsel, on the brief). I.
The Division first became involved with the
PER CURIAM family in 2006 when Gary admitted to breaking
ten-month-old Conner's femur bone. After Gary
RECORD IMPOUNDED completed court-ordered services, the case was
NOT FOR PUBLICATION WITHOUT THE dismissed. In 2010, Gary filed a complaint to
APPROVAL OF THE APPELLATE DIVISION obtain custody of Conner from Conner's mother,
Before Judges Messano and Hayden. On appeal R.D. (Rachel), who consented to the custody
from Superior Court of New Jersey, Chancery 3 change due to her unstable housing. *3
Division, Family Part, Passaic County, Docket No.
On February 16, 2011, the Division received a
FN-16-62-12. Joseph E. Krakora, Public Defender,
referral from Gary's neighbor, alleging he heard
attorney for appellant (Mary Potter, Designated
Gary every day screaming and cursing at five-
Counsel, on the brief). John J. Hoffman, Acting
year-old Conner. The next day, Division
Attorney General, attorney for respondent (Andrea
caseworker Ilvia Ortiz spoke to Conner at his
2 M. Silkowitz, Assistant Attorney General, of *2
school. Conner disclosed that his father regularly
counsel; Ann Avram Huber, Deputy Attorney
yelled and cursed at him, and sometimes hit him,
General, on the brief). Joseph E. Krakora, Public
spanked him, and threw him on the floor. Conner
Defender, Law Guardian, attorney for minor
denied being injured or being frightened of Gary.
(Karen Lodeserto, Designated Counsel, on the
brief). PER CURIAM

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 In re C.V. DOCKET NO. A-2095-12T2 (N.J. Super. Jan. 7, 2015)

Conner also reported seeing his father intoxicated took a statement from Chartier. The therapist
and witnessing domestic violence between his explained that she began treating Conner because
parents. he was having "nightmares of blood and people
killing people" and was "terrified of the bathroom
On that same day, Ortiz interviewed Gary and
even with all the lights on." Chartier stated that
Rachel. Gary admitted that he sometimes yelled at
Conner had made a sexual abuse disclosure after
his son, cursed out of frustration, and at times
approximately five sessions. Chartier later
spanked him. Gary adamantly denied physical
reported to the Division that Conner had difficulty
abuse, domestic violence, or drug or alcohol
5 distinguishing reality from fantasy. *5
abuse. Nevertheless, Gary agreed to cooperate
with the Emergency Child Aid Program (ECAP) On July 28, 2011, Giselle Henriquez, a child
and to accept Family Preservation Services. interview specialist with the Prosecutor's Office,
During this time, Rachel filed a custody complaint interviewed Conner regarding the sexual abuse
in the Family Part to regain custody of Conner. allegations in the presence of Ortiz, the Division
caseworker. Conner disclosed that his father
Thereafter, the Division's and ECAP's attempts to
touched his penis over his underwear as his father
contact Gary and provide services were
was getting him dressed for school. Conner also
unsuccessful. Due to concerns for Conner's safety,
related that he slept in the same bed as his father
the Division filed a complaint in the Family Part
and that his father lay on top of him sometimes
to obtain an order to investigate on April 8, 2011.
while they slept. During the interview, Conner
At the hearing on the Division's application, the
stated that his father touched his "peanuts"6
Family Part judge decided to remove Conner from
"inside his clothes," but "outside of his
4 Gary's custody due to the *4 history of severe
underwear" with his hand. He described a game he
physical abuse of the child, recent referrals and
called "cave time," which consisted of Conner
disclosures of physical abuse and substance abuse,
going under the blankets on Gary's bed and Gary
and Gary's failure to comply with agreed-upon
lying on top of Conner. Even so, when questioned
services. As such, the judge sua sponte gave the
about whether his father touched him on his
Division custody, care, and supervision of Conner.
"peanuts" during "cave time," Conner responded
The judge also merged Rachel's pending
that his father touched his "peanuts" while getting
complaint for custody with the Division matter5
dressed and taking a bath.7
and permitted the Division to place Conner in
Rachel's temporary physical custody after her 6 Conner's word for penis.

home was inspected. 7 The Prosecutor's office ultimately

5 In the Family Part, cases concerning child determined not to pursue criminal charges
welfare issues under Title Nine are heard because information was inconclusive as to
under the FN docket. Cases concerning whether the touch was accidental or sexual.
custody, visitation and support, but not the
dissolution of a marriage are heard under On September 13 and 14, 2011, psychologist
the FD docket. Cases involving the Jacquelyn Doran-Cunningham, Ph.D., of the
dissolution of a marriage are heard under Audrey Hepburn Children's House, affiliated with
the FM docket. Hackensack University Medical Center, performed
a psychosocial evaluation of Conner for the
On July 25, 2011, the Division received a referral Division. Dr. Cunningham also spoke with Rachel,
from Conner's therapist, Teran Chartier, stating 6 who related that, when Conner *6 first moved
that Conner reported sexual abuse by Gary. Two back in with her, he had nightmares every night
days later, the Passaic County Prosecutor's Office

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 In re C.V. DOCKET NO. A-2095-12T2 (N.J. Super. Jan. 7, 2015)

and was afraid of the dark. Rachel also told Dr. father's penis "grow" while he squeezed it. He
Cunningham that Conner "has some difficulty indicated that "pee" came out of his penis in the
distinguishing real from pretend." bed after his father was 'on top of me.'"

In her report, Dr. Cunningham stated that Conner At the conclusion of the interview, Dr.
"appeared hesitant when asked to provide Cunningham asked Conner if anyone had told him
information regarding sexual abuse." Dr. what to say. Conner stated "Yes, my mom. I get
Cunningham noted that Conner "could not define confused about what to talk to you about."
the truth or a lie," and after she defined the terms
Dr. Cunningham found Conner's disclosures were
and Conner identified a truth and lie, Conner
consistent with his disclosures to Chartier and
stated it was better to lie "because if someone tells
Henriquez and "provided additional multiple
the truth, they'll go to jail."
idiosyncratic details through piecemeal
According to Dr. Cunningham's report, Conner disclosure" about the alleged abuse. The doctor
also described having nightmares and concluded, "[b]ased on [Conner's] accounts of
stomachaches, previously suffering from inappropriate sexual contact provided during the
headaches, and fearing that his mother "might die interview and to his therapist, and [Conner's]
with a knife in [her] throat." When asked about reports of his symptoms, sexual abuse is clinically
suicidal ideation, Conner said, "My mom yells at supported."
me when I tell her I want to die."
On October 4, 2011, the Division moved to
Dr. Cunningham reported that Conner terminate the April complaint for an order to
spontaneously described investigate and to file a new verified complaint for
custody, care, and supervision based on the new
that his father "used to get on top of me at
allegations. At the hearing on the motion, the
nighttime." When asked to describe the
8 Division *8 sought to "correct the record
last time it occurred, [Conner] reported
procedurally" because in April 2011 it "should
that he and his father were in his father's
have dismissed the order to investigate and filed a
bed under the covers. [Conner] indicated
new separate complaint for care and supervision."
that he was wearing a pajama shirt and
The Division's attorney explained that although
shorts but no underpants. He reported that
the Division was not seeking custody, the new
his father was wearing a pajama top but no
complaint as drafted included a request for
pants. . . . [Conner] reported that he was
custody, as well as care and supervision, in order
"laying [sic] on the bed on his stomach"
not to violate Gary's right to a "full hearing"
and his father was "sometimes on top of
concerning custody pursuant to N.J Div. of Youth
me and sometimes beside me." He stated
& Family Servs. v. G.M., 198 N.J. 382 (2009).
that his father was "doing stuff" but would
The Division acknowledged that generally a
not elaborate on his response.
hearing was required to "determine whether or not
7 *7 custody should be transferred to the non-custodial
parent . . . at the termination of the litigation."
After identifying body parts using figures, Conner
stated that his father "squeezes my peanuts really However, the Division's counsel represented that
hard" with his hand and also stated that his father the parties and their respective attorneys had
had touched his buttocks with his hands and conferred about these issues before the hearing
described the incident as "it felt like hard peanuts and agreed to the dismissal of the pending
outside of my butt" and his father's penis touched litigation without a fact-finding or a dispositional
his buttocks. Conner also reported watching his hearing. Both parties further agreed to joint

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 In re C.V. DOCKET NO. A-2095-12T2 (N.J. Super. Jan. 7, 2015)

custody of Conner with Rachel having residential I am also finding that the allegations are
custody under the FD docket case. The family supported by what [Conner] said and who
judge granted the motion to dismiss the April he said it to. I watched the tape and I
complaint and granted the Division care and listened carefully to what he said. . . . He
supervision of Conner under the new complaint. still indicated enough information to the
The order specified: "With consent of all parties interviewer that in my opinion was just a
who are represented by counsel, [Conner] shall little too detailed for a child of that age.
remain in the joint legal custody of his parents
The judge recognized that Conner had an active
9 (pursuant *9 to FD-16-240-10), but will remain in
imagination but determined that the abuse claims,
the physical custody of [Rachel]."
which were told to the Prosecutor's investigator
At the March 6, 2012 fact-finding hearing,8 Ortiz and Dr. Cunningham, were credible. "[T]he child
was the sole witness for the Division. The judge provided idiosyncratic details that normally a child
admitted, without objection, the Division's will not provide to anyone when describing these
screening summaries and investigation summaries kinds of acts." The judge also found that
from 2006 and 2011, Dr. Cunningham's report defendant's denial of what Conner said lacked
from Conner's September 2011 evaluation, and the credibility.
DVD of the interview of Conner by the
During the six months following the fact-finding
Prosecutor's Office. Gary's attorney specified that
hearing, the court held several compliance review
she had "no objection" to this evidence. The judge
hearings. A continuing problem addressed by the
also admitted, over Gary's objection, Chartier's
judge concerned Rachel's apparent move to
statement to the Prosecutor's Office regarding
Pennsylvania without the court's permission,
Conner's initial disclosure under the "fresh
which interfered with Conner's services and Gary's
complaint" exception.9
visitation. Rachel represented that she was
8 There were several fact finding hearings pregnant, had no home in New Jersey, and was too
that occurred in this case, but only the ill to travel. Nevertheless, the judge ordered
March 6 hearing included witness Rachel, among other things, to move back to New
testimony. Jersey, to re-register Conner at his New Jersey
9 Defendant does not challenge this ruling on school, and to arrange for her relatives to transport
appeal.
11 Conner to visits if she was unable. The *11 judge
forcefully informed Rachel that while she had an
On May 24, 2012, the trial judge issued an oral open FD matter, she was not permitted to leave the
decision finding that Gary abused or neglected jurisdiction absent permission of the court and
Conner pursuant to N.J.S.A. 9:6-8.21(c)(3) threatened to have her arrested. Rachel then filed a
because he "committed an act of sexual abuse by motion under the FD docket for permission to
touching [Conner] in his penis and other acts." leave the State with Conner.
The judge noted that he primarily relied on Ortiz's
On November 29, 2012, the Division moved to
testimony and Dr. Cunningham's report. The judge
dismiss the litigation as it had no further child
reasoned that while the Prosecutor's Office did not
welfare concerns about Conner. The law guardian
10 charge Gary criminally, "the Audrey *10 Hepburn
concurred. Gary's counsel, who had not
evaluator indicated that the clinical findings
represented defendant at the initiation of the
supported the allegations made by [Conner]."
litigation, requested a G.M. hearing, stating that "a
finding has to be made that it's not safe to return
the [child] to [Gary.]" The Division and the Law

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 In re C.V. DOCKET NO. A-2095-12T2 (N.J. Super. Jan. 7, 2015)

Guardian reminded the court that the Division accorded because of its "expertise in family
never had custody during this litigation because of matters[.]" Cesare v. Cesare, 154 N.J. 394, 413
the parties' custody agreement under the FD 13 (1998). *13
docket case. The Family judge ordered the
However, when a trial court's determination results
litigation to be terminated since the conditions
from a review of documentary evidence, such as
were remediated and custody was to remain as it
the case here, our standard of review is broader
was at the start of the litigation.10 This appeal
than if the court made findings based upon
12 followed. *12
testimonial evidence. See G.M., supra, 198 N.J. at
10 Immediately after dismissing the Title Nine 396; State v. Reevey, 417 N.J. Super. 134, 146-47
litigation, the judge held a hearing under (App. Div. 2010), certif. denied, 206 N.J. 64
the FD docket. No transcript of this hearing (2011). Further, "[w]here the issue to be decided is
is in the record. According to the FD order, an 'alleged error in the trial judge's evaluation of
the judge continued Conner in the joint the underlying facts and the implications to be
legal custody of both parents, and in the
drawn therefrom,' we expand the scope of our
physical custody of Rachel. The judge also
review." N.J. Div. of Youth & Family Servs. v.
granted Rachel's application for relocation
G.L., 191 N.J. 596, 605 (2007) (quoting In re
to Pennsylvania with Conner. Gary has not
Guardianship of J.T., 269 N.J. Super. 172, 188-89
appealed this FD order.
(App. Div. 1993)). Moreover, the trial judge's legal
Before us, Gary first argues that the trial judge conclusions and the application of those
improperly admitted and relied on Dr. conclusions to the facts are subject to plenary
Cunningham's report, because the doctor did not review. Manalapan Realty, L.P. v. Twp. Comm. of
testify, the report contained embedded hearsay, the Twp. of Manalapan, 140 N.J. 366, 378 (1995).
constituted a net opinion, and was based on an
Title Nine's guiding principle is the protection of
unrecorded interview. Gary claims that, although
children from circumstances and actions that
he did not object to the report's admission at the
threaten their welfare. G.S. v. Dep't of Human
fact-finding hearing, its admission constitutes
Servs., Div. of Youth & Family Servs., 157 N.J.
plain error as it deprived him of his due process
161, 176 (1999) (citing State v. Demarest, 252
rights. Gary further contends the trial court's
N.J. Super. 323, 331 (App. Div. 1991)). "[A]ny
finding was not supported by substantial credible
determination that the child is an abused or
evidence in the record, and that Conner's out-of-
neglected child must be based on a preponderance
court statements regarding abuse were not
of the evidence and . . . only competent, material
corroborated and were unreliable.
and relevant evidence may be admitted." N.J.S.A.
Our scope of review "is to decide whether the 14 9:6- *14 8.46(b). Relevant to the allegations here,
findings made could reasonably have been reached an abused and neglected child includes one whose
on substantial credible evidence present in the parent or guardian "commits or allows to be
record when considering the proofs as a whole, committed an act of sexual abuse against the
giving due regard to the opportunity of the trial child[.]" N.J.S.A. 9:6-8.21(c)(3).
judge to determine credibility." N.J. Div. of Youth
"[I]ssues not raised below will ordinarily not be
& Family Servs. v. A.G., 344 N.J. Super. 418,
considered on appeal unless they are jurisdictional
442-43 (App. Div. 2001) (citing Rova Farms
in nature or substantially implicate the public
Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J.
interest." N.J. Div. of Youth & Family Servs. v.
474, 484 (1974)), certif. denied, 171 N.J. 44
M.C. III, 201 N.J. 328, 339 (2010). Additionally,
(2002). Special deference to the family court is
"'[t]he doctrine of invited error operates to bar a

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 In re C.V. DOCKET NO. A-2095-12T2 (N.J. Super. Jan. 7, 2015)

disappointed litigant from arguing on appeal that admission of the report at trial, its admission was
an adverse decision below was the product of 16 proper "without the *16 necessity of the Division's
error, when that party urged the lower court to compliance with the strictures of the Rules." Id. at
adopt the proposition now alleged to be error.'" Id. 348. Thus, Dr. Cunningham's report was
at 340 (quoting Brett v. Great Am. Recreation, admissible with Gary's consent.
Inc., 144 N.J. 479, 503 (1996)). "'[A] defendant
Gary argues that even if the report were
cannot beseech and request the trial court to take a
admissible, the judge should not have relied on Dr.
certain course of action, and upon adoption by the
Cunningham's expert opinion. "An expert medical
court, take his chance on the outcome of the trial,
opinion contained in a report is generally
and if unfavorable, then condemn the very
inadmissible under this test because of the
procedure he sought . . . claiming it to be error and
complexity of the analysis involved in arriving at
prejudicial.'" Ibid. (alteration in original) (quoting
the opinion and the consequent need for the other
State v. Jenkins, 178 N.J. 347, 358 (2004)). To
party to have an opportunity to cross-examine the
demonstrate reversible error when the error was
expert." N.J. Div. of Youth & Family Servs. v.
invited, "the question is whether the 'particular
B.M., 413 N.J. Super. 118, 130 (App. Div. 2010);
error . . . cut mortally into the substantive rights of
see also N.J.R.E. 808. "[W]hen the expert is not
the defendant[.]'" State v. Corsaro, 107 N.J. 339,
produced as a witness, [N.J.R.E. 808] requires the
15 345 *15 (1987) (alteration in original) (internal
exclusion of his or her expert opinion, even if
quotation marks and citations omitted); see also
contained in a business record, unless the trial
State v. A.R., 213 N.J. 542, 561-62 (2013). If the
judge makes specific findings regarding
doctrine of invited error "would 'cause a
trustworthiness." N.J. Div. of Youth & Family
fundamental miscarriage of justice,' it will not be
Servs. v. M.G., 427 N.J. Super. 154, 174 (App.
applied automatically." A.R., supra, 213 N.J. at
Div. 2012) (holding that consultants hired by the
562 (quoting M.C. III, supra, 201 N.J. at 342).
Division to evaluate parental fitness were
Gary contends that "[g]iven the complexity of the erroneously admitted over objection).
analysis which is necessarily involved in reaching
Gary's reliance on M.G. is misplaced as in M.G.
a conclusion that sexual abuse is clinically
the report was admitted over the objection of the
supported, cross examination of the expert is
defendant's counsel. Id. at 164-65. Rather, this
necessary in order to avoid a denial of basic due
case is squarely controlled by M.C. III. In M.C. III
process." As Dr. Cunningham did not testify, Gary
17 the defendant consented to the admission at *17
states that the court's consideration of the doctor's
trial of a doctor's report finding marks consistent
report "was a miscarriage of justice mandating
with physical abuse but on appeal claimed it was
reversal." We do not agree.
plain error for the doctor not to have testified.
The Division "shall be permitted to submit into M.C. III, supra, 201 N.J. at 335-36, 338-39. The
evidence, pursuant to N.J.R.E. 803(c)(6) and Court held that the defendant could not agree to
801(d), reports by staff personnel or professional the document being entered without the doctor
consultants." R. 5:12-4(d). Generally, to be testifying, then on appeal, claim that the doctor
admissible, the Division reports must satisfy the should have testified. Id. at 341-42.
prerequisites for admission as a business record
As in M.C. III, here Gary assented to the report's
under N.J.R.E. 803(c)(6). M.C. III, supra, 201 N.J.
admission by allowing the report to be entered
at 346-47. In M.C. III, however, the Court held
without objection and not demanding that the
that where the Division had not satisfied the
doctor testify. Thus, he invited the error by taking
N.J.R.E. 803(c)(6) prerequisites solely because the
his chances with the report's admission. See id. at
appellant had expressly consented to the

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 In re C.V. DOCKET NO. A-2095-12T2 (N.J. Super. Jan. 7, 2015)

342. Indeed, by not objecting, Gary prevented the Gary next asserts that in State v. Michaels, 136
Division from laying the requisite foundation for N.J. 299 (1994), the Supreme Court required that
the business records exception, denied the trial all interviews with children concerning sexual
court the opportunity to make any findings of abuse, be recorded because of the ability of certain
trustworthiness and prevented the Division from interview techniques to produce unreliable
having Dr. Cunningham appear to testify. See id. accusations and taint a child's memory. Since Dr.
at 341. Moreover, no fundamental miscarriage of Cunningham's interviews were not recorded, Gary
justice occurred, see A.R., supra, 213 N.J. at 562, claims that reliance on it, "represents a
because the trial judge relied principally on the miscarriage of justice." We cannot agree.
statements attributed to Conner in the report,
This claim miscomprehends Michaels, which
which were admissible under N.J.S.A. 9:6-8.46(a)
simply states that "[a]s a matter of sound
(4).
interviewing methodology, nearly all experts agree
Gary also contends that the opinion that sexual that initial interviews should be videotaped."
abuse was clinically supported was a net opinion Michaels, supra, 136 N.J. at 313 n.1. Gary has not
18 as it was based solely on *18 Conner's statements established evidence of suggestive or coercive
with "no analysis, evidential support, or clinical interview techniques which would require the
data to buttress her conclusion." We disagree. court to hold a hearing on the reliability of
Conner's statements. See id. at 321. Gary simply
An expert's opinion must be based upon "facts or
speculates that Conner "could have been asked
data . . . perceived by or made known to the expert
leading questions, repeated questions in the face of
at or before the hearing." N.J.R.E. 703. "[A]n
negative responses, or any number of other
expert's bare opinion that has no support in factual
prohibited suggestive interview methods could
evidence or similar data is a mere net opinion
have been used." This speculation is woefully
which is not admissible and may not be
insufficient to demonstrate Gary's claim that a
considered." Pomerantz Paper Corp. v. New Cmty.
miscarriage of justice resulted from admitting the
Corp., 207 N.J. 344, 372 (2011). "This prohibition
interviews into evidence.
against a 'net opinion' bars expert testimony based
on unfounded speculation or mere possibilities." In sum, as in M.C. III, Gary's counsel did not
Costantino v. Ventriglia, 324 N.J. Super. 437, 451 object to the admission of Dr. Cunningham's
(App. Div. 1999), certif. denied, 163 N.J. 10 report thereby depriving the Division of the
(2000). 20 opportunity of laying any requisite foundation *20
for its admission. Gary has not presented evidence
We are satisfied that Dr. Cunningham's report is
that the admission of the challenged report
not a net opinion. The doctor's facts and data were
constituted a fundamental miscarriage of justice
derived from numerous Division reports, court
and thus, under M.C. III, the invited error doctrine
orders, the Prosecutor's close-out report, the
precludes defendant's objection to the admission
psychological evaluations of Gary and Rachel,
of the report.
Gary's psychiatric evaluation, and interviews with
Henriquez, the Division's caseworker, Rachel, and Gary also argues the trial court erred in relying on
Conner. Moreover, in her comprehensive the "unrecorded embedded hearsay statements
evaluation, the doctor fully explained her opinion attributed to" Conner in Dr. Cunningham's report.
in the summary and formulation. Consequently, We disagree.
Dr. Cunningham's conclusions were clearly not
"[P]revious statements made by [a] child relating
based on "unfounded speculation or mere
to any allegations of abuse or neglect shall be
19 possibilities." Ibid. *19
admissible in evidence; provided, however, that no

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 In re C.V. DOCKET NO. A-2095-12T2 (N.J. Super. Jan. 7, 2015)

such statement, if uncorroborated, shall be N.J. Super. at 442-43, and the statements were
sufficient to make a fact finding of abuse or admissible to prove Conner's allegation of sexual
neglect." N.J.S.A. 9:6-8.46(a)(4). Thus, Conner's 22 abuse. *22
statements to Dr. Cunningham and others related
Finally, Gary claims that Conner's statements were
to his sexual abuse were undoubtedly admissible.
inherently unreliable given his admission to being
The remaining issue is whether they were
coached by Rachel, his lack of spontaneous
sufficiently corroborated so as to permit a finding
recollection, and his lack of understanding of the
of abuse and neglect.
difference between fantasy and reality as well as a
"It would be a rare case where evidence could be truth and a lie. We are satisfied that the judge
produced that would directly corroborate the weighed the evidence including Conner's young
specific allegation of abuse between the child and age, his difficulty telling reality from fantasy, and
the perpetrator[.]" N.J. Div. of Youth & Family his mother's possible "coaching," and found that
Servs. v. Z.P.R., 351 N.J. Super. 427, 435 (App. Conner's statements were nevertheless reliable,
Div. 2002). Clearly, the most effective which is entitled to our deference. See N.J. Div. of
corroborative evidence would be "'eyewitness Youth & Family Servs. v. R.L., 388 N.J. Super. 81,
21 testimony, a confession or admissions by the *21 88 (App. Div. 2006). From our review of the
accused, and medical or scientific testimony record we are satisfied that there was sufficient
documenting abuse[;]'" however, "case law does credible evidence in the record to support the
not require that the evidence be that specific judge's finding that Gary sexually abused Conner.
before it can be deemed corroborative of the
child's out-of-court statements." Id. at 435-36 III.
(citations omitted). Next, Gary asserts that the trial judge committed
reversible error by failing to conduct a
"[T]he corroboration requirement must reasonably
dispositional hearing, as required by G.M., supra,
be held to include indirect evidence of abuse. Such
198 N.J. at 387-88, to determine whether it would
evidence has included a child victim's precocious
be safe to return Conner to Gary, his former
knowledge of sexual activity, a semen stain on a
custodial parent before the Division became
child's blanket, a child's nightmares and
involved. Again, we disagree.
psychological evidence.'" Id. at 436 (citation
omitted). "The corroborative evidence need not If abuse or neglect is established as a result of the
relate directly to the alleged abuser[;] it need only fact-finding hearing, the second step is the
provide support for the out-of-court statements." 23 "dispositional hearing." *23 N.J.S.A. 9:6-8.45. A
Ibid. dispositional hearing must be held to determine
"whether the children may safely return" to the
Here, Conner's statements related to his abuse
custody of the parent from whom the children
were corroborated by his precocious knowledge of
were removed. G.M., supra, 198 N.J. at 387-88.
sexual activity, his nightmares, fear of getting out
Notably, "transfer of physical custody during a
of bed, and fear of the bathroom. Conner's detailed
Title Nine action to the non-custodial parent is a
knowledge of sexual activity was well beyond that
placement under Title Nine."11 Id. at 405.
of a six-year-old child. Based on this
However, where a parent consents to a custody
corroborating evidence, the judge's reliance on the
arrangement under an FD docket case and does
statements attributed to Conner contained in Dr.
not challenge that order embodying the FD case,
Cunningham's report was certainly supported by
he cannot expect a dispositional hearing to be held
substantial credible evidence, A.G., supra, 344
at the end of the FN litigation. N.J. Div. of Youth
& Family Servs. v. W.F., 434 N.J. Super. 288, 299

8
 In re C.V. DOCKET NO. A-2095-12T2 (N.J. Super. Jan. 7, 2015)

(App. Div.), cert. denied, 218 N.J. 275 (2014); see dispositional hearing, he consented to forego a
also N.J. Div. of Youth & Family Servs. v. J.D., hearing and to give Rachel residential custody
417 N.J. Super. 1, 23 (App. Div. 2010) (holding under the FD docket. The instant case then
that where parents in an FN action agree to a proceeded with the Division having care and
judicial custody determination under N.J.S.A. 9:2- supervision, but not custody. When the judge
4, they may not later protest the procedures dismissed the instant case, he merely continued
24 followed). *24 the custody arrangement consented to by the
11 On the other hand, "a parent . . . may
parents at the close of the previous case and
addressed further issues under the FD docket. We
always initiate a request for change in
custody against the other parent[.]" Id. at
find no error in the family judge deciding not to
402 n.3. In N.J. Dep't of Children & hold a dispositional hearing in this case as the
Families, Div. of Youth & Family Servs. v. Division did not remove the child from Gary's
I.S., 214 N.J. 8, cert. denied, ___ U.S. ___, custody during this proceeding.
134 S. Ct. 529, 187 L. Ed. 2d 380 (2013),
Finally, Gary contends a Baures hearing on
the court transferred custody of a child
Rachel's request to relocate to Pennsylvania
under an FM docket and the child-
protective litigation was dismissed at the
25 should have been held in the FN *25 case. We find
same time. I.S., supra, 214 N.J. at 40-41. this argument to be without sufficient merit to
Although not strictly in compliance with warrant extended discussion. R. 2:11-3(e)(1)(E).
G.M., the manner in which custody was
Suffice it to say that the record is clear that, during
transferred was upheld because "the
the litigation, the judge did not give Rachel
consolidated procedure followed by the
permission to permanently relocate to
court did not result in any cognizable harm
to" the parent. Id. at 41-42.
Pennsylvania. As the parties consented to joint
custody of Conner under the FD docket, Rachel
--------
appropriately filed a motion under the FD docket
The record shows that when the Division sought for permission to relocate. Additionally, Gary does
to dismiss its April complaint, the Division not point to any error in the judge's eventual
acknowledged that before such a dismissal, a Baures analysis and has not appealed the judge's
dispositional hearing under G.M. should ordinarily decision under the FD docket.
be held to determine if it was safe to return the
Affirmed. I hereby certify that the foregoing is a
child from the parent from whom he was removed.
true copy of the original on file in my office.
G.M., supra, 198 N.J. at 387-88. However, before
the hearing on the dismissal motion, the parties CLERK OF THE APPELLATE DIVISION
and their attorneys conferred and all agreed to
dismiss the April complaint without any hearings
and with an agreement that both parents had joint
custody and Rachel had residential custody. Thus,
although Gary had a right at that point to have a