On appeal from Superior Court, Chancery Division, Family Part, Sussex County.
Shebell, Gruccio and Landau. The opinion of the court was delivered by Landau, J.A.D. Shebell, J.A.D., concurring in part and dissenting in part.
This case was initiated by the complaint of the Division of Youth and Family Services (DYFS) pursuant to the provisions of N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12, after the physician of four month old D.T. reported, and subsequent examination confirmed, that she had been sexually abused.
D.T. is the daughter of K.T. and P.T. On August 12, 1987, she was cared for by her great aunt M.J.H., great uncle J.H. and cousins D.H. and J.H. between 7 a.m. and 5 p.m. when her father K.T. took her home. M.J.H. testified that no one had any contact with the infant out of her presence.
At 6:15 p.m. the T.s brought D.T. to the home of a friend, A.F., who baby-sat while P.T. attended a physical therapy session necessitated by an earlier accident. A.F.'s husband and two grandchildren, B.C. and G.C., were present, but A.F. testified that she was present at all times during the approximately 1 1/4 hour period when she was babysitting. At 7:30 p.m., P.T. and K.T. came to take the child home. D.T. was at home with her parents that evening. No one noticed anything unusual about the child on the 12th.
At 7:00 a.m. on the 13th, P.T. again took D.T. to M.J.H.'s house. M.J.H. had been assisting in D.T.s care since P.T.s accident. The baby's cousin, J.H., who was also at the H. house that day, testified that she did not abuse D.T.
At about 8:00 a.m., M.J.H. changed D.T.'s diapers, and noticed no injury. Shortly thereafter, however, she detected that D.T.
was feverish, and so P.T. called her physician's office stating that D.T. was "wheezing". An afternoon appointment was scheduled. Later, as the child seemed worse, another call was made and the doctor suggested that D.T. be given Tylenol and a tepid bath.
M.J.H. and P.T. bathed D.T., and as M.J.H. applied lotion to the infant, both observed redness in her vaginal area. P.T. immediately brought D.T. to the physician's office. His examination disclosed bruising and swelling within her vagina sufficient to prompt him to contact DYFS.
As a result, a joint investigation by DYFS and the Sussex County Prosecutor's office immediately commenced. With the agreement of K.T. and P.T., the baby was examined at about 7:00 p.m. on August 13 by Dr. Ilene Hershman who found bruising on the left side of the labia majora, reddish purple bruising on the labia minor, deep red bruising on the clitoris, and bruising around the hymen. She diagnosed sexual abuse.
Dr. Hershman had several opportunities to opine as to when the abuse occurred. Although her statements varied somewhat, it is fair to say that she concluded that the abuse occurred, at most, within the 24 hours prior to her 7:00 p.m. examination, and more likely within about 12 hours. Dr. Hershman's initial examination report concluded: "[P]hysical existence of acute genital trauma with penetration within 24 hours of exam. The penetration does not appear to be penile. It may be digital or caused by a small blunt object." A culture taken by Dr. Hershman during the examination tested positive for chlamydia, a sexually transmitted bacteria. The evidence does not show how long it takes for that infection to develop, but it can be transmitted at birth. In subsequent tests, both K.T. and P.T. tested negative for this infection.
Initially, K.T. and P.T. signed a Division Service Agreement which agreed to D.T.s temporary placement with relatives and supervised visitation. They also agreed to cooperate with the investigation.
On August 14, the T.s took D.T. and disappeared, prompting an unsuccessful police search. On August 17, however, they appeared with the child at the Hopatcong Police Department. A Voluntary Foster Home Placement Agreement was executed and D.T. was temporarily placed in a foster home. On August 31, 1987, an Initial Court Order approving the foster home placement was entered, although the T.s had already begun efforts to end the voluntary placement. On August 26, because of these efforts, DYFS filed a verified Complaint for Protective Services With Custody. See N.J.S.A. 9:6-8.21, et seq.; N.J.S.A. 30:4C-12; R. 5:12-1, et seq. Following four days of hearings in September, the trial judge granted a motion for dismissal of DYFS' complaint at the end of its proofs, ...