On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, FN-11-71-02. Phyllis G. Warren argued the cause for appellants (Peter A. Garcia, Acting Public Defender, attorney; Ms. Warren, of counsel and on the brief).
Before Judges Havey, Coburn, and Weissbard.
The opinion of the court was delivered by: Weissbard, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Minor children, W.A.R., born December 26, 1996, and I.D.R., born April 17, 1998, by their Law Guardian, appeal from an order of the Family Part dismissing an amended complaint filed by the Division of Youth and Family Services ("DYFS"), insofar as it alleged that the children had been abused or neglected, pursuant to N.J.S.A. 9:6-8.21 to -8.73, by their mother, Z.P.R. *fn1 We reverse and remand for further proceedings.
On March 20, 2001, Z.P.R. and W.R. signed a fifteen day informed consent to place their sons, W.A.R. and I.D.R., in foster care or with a relative due to unstable housing. *fn2 In March 2001, DYFS placed W.A.R. and I.D.R. in the same foster home. On June 1, 2001, their foster mother, Mrs. M., called DYFS and reported that she witnessed I.D.R. performing fellatio on W.A.R. and that she wanted the boys removed from her home within two weeks. On June 3, 2001, W.A.R. told Mrs. M. that he learned this behavior from his mother Z.P.R. On June 5, 2001, DYFS caseworker A.W.S. visited Mrs. M.'s home; afterwards, A.W.S. filed a referral in which she stated that W.A.R. told her that Z.P.R. "licked his private area" and I.D.R.'s private area as well. DYFS notified the Mercer County Prosecutor's Office and the Trenton Police Department, who conducted an investigation; however, Trenton Police closed its case when it was unable to get a disclosure from either W.A.R. or I.D.R. concerning the sexual abuse allegations.
On June 17, 2001, W.A.R. was removed from his first foster home and placed in Mrs. W.'s therapeutic foster home. On June 19, 2001, DYFS made a referral through Prevention Education for a sexual abuse assessment of W.A.R. and I.D.R. *fn3 I.D.R. was placed at Angel's Wings on June 20, 2001 and was moved to a second foster home on August 21, 2001. On August 31, 2001, Z.P.R. gave birth to N.D.P. and signed a fifteen day informed consent form that same day to place N.D.P. into foster care or with a relative. Z.P.R. subsequently revoked the consent forms for N.D.P., W.A.R., and I.D.R.
On September 11, 2001, DYFS filed a verified complaint requesting custody of W.A.R., I.D.R., and N.D.P. DYFS was granted custody of the three children on September 13, 2001. At that time, the court ordered that W.A.R. and I.D.R. be evaluated by Dorothy B. Hersh Regional Child Protection Center ("CPC") or Dr. Kathryn Hall, a leading psychologist based in Princeton, and that their sexual abuse counseling at Prevention Education be discontinued until further order of the court. The court also ordered DYFS to make an inspection of Z.P.R.'s apartment to assess whether N.D.P. could be returned to her. On September 24, 2001, Z.P.R. requested increased visitation with her children, which the judge granted. At that time, the boys had not been evaluated, so the court ordered that W.A.R. and I.D.R. be evaluated within "the next 2 weeks either at CPC or [by] Kathryn Hall." Z.P.R. agreed to a psycho-sexual evaluation.
On October 5, 2001, a foster sister in W.A.R.'s second foster home reported to the foster mother Mrs. W. that she observed sexual activity between W.A.R. and another foster brother, H. Specifically, Mrs. W. stated that she heard A., a 10-year-old foster child living in the home, scream that H. was on top of W.A.R. Mrs. W. stated that she rushed upstairs to where the boys were and saw them in their underwear. H. told a caseworker that as he and W.A.R. were putting on their pajamas, W.A.R. told H. to get on top of him. H. stated that W.A.R. told him that W.A.R. "had sex with his [W.A.R.'s] mother." "'This worker asked H., 'did you and W.A.R. have sex?' He said, 'no, we fake it, but W.A.R. said it's like what he do with his mother.'"
On October 10, 2001, DYFS completed a referral response report in regards to this incident. W.A.R. reported to a caseworker that he learned such behavior from his mother.
That same day, October 10, DYFS requested an emergent hearing because neither Dr. Hall nor CPC could perform evaluations of W.A.R. and I.D.R. by the court-ordered October 25 deadline. At that time, the court scheduled a fact-finding hearing for October 16, 2001 because Z.P.R. wanted her children back. At the request of DYFS and the Law Guardian, the October 16 hearing was adjourned, but eventually took place on October 23, 30, and November 14, 2001. The Law Guardian interviewed W.A.R. in camera in the presence of the judge; W.A.R. reported no abuse during this interview. Z.P.R. testified on her own behalf, denying the allegations.
On November 14, 2001, the judge ruled that there was insufficient evidence to sustain a finding that Z.P.R. sexually abused her children. The Title 9 portion of the complaint was dismissed, and the children remained in DYFS' custody pursuant to Title 30. Therapy and counseling were ordered, and the court ruled that DYFS would follow its procedure "to ensure that there is suitable housing for the children." The trial judge also reinstated visitation between Z.P.R. and her children. Although there were further hearings and rulings in connection with the Title 30 matters, they are not relevant to the issues before us, all of which arise from the fact-finding hearing dealing with the abuse allegations. On appeal the Law Guardian raises the following issues:
POINT I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO RECOGNIZE THAT THE INAPPROPRIATE SEXUAL BEHAVIOR AND KNOWLEDGE OF [W.R.] AND [I.D.R.] CORROBORATED THE CHILDREN'S OUT OF COURT DISCLOSURES OF SEXUAL ABUSE.
POINT II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY REJECTING AS UNRELIABLE THE THREE OUT-OF-COURT DISCLOSURES OF ABUSE AND ACCEPTING AS TRUE THE IN CAMERA DENIAL OF SEXUAL ABUSE.
POINT III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY REFUSING TO ALLOW THE DIVISION'S EXPERT TO TESTIFY AT ...