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New Jersey Division of Youth and Family Services v. H.B.

February 16, 2005

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-APPELLANT,
v.
H.B. AND L.M.B., DEFENDANTS-RESPONDENTS.
IN THE MATTER OF C.B., A MINOR.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Warren County, FN-21-17-04.

Before Judges Lefelt, Fuentes and Falcone.

The opinion of the court was delivered by: Fuentes, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 4, 2005

In this appeal, we hold that certain evidentiary rulings and factual findings made by the Family Part used to uphold its decision to dismiss this child sexual abuse case were erroneous and not based on competent evidence. The court's final determination was thus legally insupportable, requiring that the matter be remanded for a new fact-finding hearing.

We also hold that in adopting Megan's Law, N.J.S.A. 2C:7-1 to -19, and the child protection laws embodied in Title 9, the Legislature envisioned, as a matter of public policy, a comprehensive level of cooperation between county prosecutors, the unit of government primarily responsible for the enforcement of our State's criminal laws, and the Division of Youth and Family Services (DYFS), the state agency responsible for the protection of our State's children. This public policy was needlessly undermined here.

Finally, we hold that when an investigation concerning allegations of abuse and neglect of a child requires the removal and separation of a central family member, DYFS has a special duty to closely monitor the case and keep abreast of any development that might call into question the continued need for the separation. This heightened sensitivity was conspicuously absent here.

I.

DYFS appeals from the final judgment of the Chancery Division Family Part dismissing its abuse and neglect complaint, filed pursuant to the provisions of Title 9, against defendant L.M.B. ("Linda"), the mother of a thirteen-year-old girl whom we will refer to as Cathy.*fn1 In its complaint, DYFS alleged that Linda exposed her daughter to the risk of emotional and physical harm by permitting her husband ("Lawrence"*fn2), Cathy's stepfather, to reside in the home after learning that the child had accused him of sexually molesting her over an eighteen-month period.

The Family Part conducted a fact-finding hearing, as defined in N.J.S.A. 9:6-8.44, to determine whether Cathy had been abused or neglected by her mother's actions. A number of witnesses testified, including two physicians and two risk assessment specialists. Linda testified that Cathy had recanted and claimed to have fabricated the allegations of molestation against her stepfather in retaliation for his failure to timely complete household renovations and as a misguided attempt to force him to participate in anger management counseling.

The hearing judge issued a letter-opinion finding that DYFS had not presented sufficient credible evidence to corroborate the child's initial allegations of sexual abuse. Without corroboration, a complaint based only on the child's allegations is unsustainable as a matter of law. N.J.S.A. 9:6-8.46a. The judge further stated, however, that even"assuming that there was evidence of corroboration," DYFS had failed to show that the child had been abused or neglected by the mother's unilateral decision to permit the stepfather to return to live with her daughter.

DYFS now argues that the Family Part committed reversible error by: (1) declining to order the county prosecutor to turn over the Megan's Law file containing information supporting the classification of the stepfather as a sex offender; (2) rejecting the application of the Law Guardian requesting the court to interview the child in camera and outside the presence of her mother and counsel; (3) refusing to admit into evidence statements made by the stepfather and Cathy's friend"Teresa,"*fn3 or alternatively, allowing the use of these statements for the limited purpose of impeaching Linda's credibility; (4) failing to treat the testimony of the physician who examined Cathy at DYFS's request as evidence corroborating the initial allegations of sexual abuse; and (5) failing to properly consider the testimony of the risk assessment specialist as bearing on the question of Linda's ability or willingness to protect Cathy from her stepfather. Although not directly raised before the Family Part, DYFS also argues that the hearing judge erred when she failed to apply the provisions of N.J.S.A. 9:2-4.1b in determining whether the stepfather's return to the marital home was in the child's best interest.

Both Linda and the Law Guardian, acting on Cathy's behalf, argue that the Family Part correctly concluded that DYFS had failed to present sufficient evidence corroborating the allegations of sexual abuse. They also argue that Linda's decision to permit her husband to return to live with her daughter was proper and justified by the child's repeated recantations and by DYFS's refusal to respond to Linda's requests to re-interview her daughter.

After analyzing the record, we hold that the Family Part erred: (1) when it declined to direct the Warren County Prosecutor's Office to release the stepfather's Megan's Law file to the Deputy Attorney General (DAG) prosecuting the abuse and neglect case; (2) when it denied the Law Guardian's application for the court to interview the child in camera; and (3) when it found that the child's alleged recantation was sufficiently reliable to justify defendant's unilateral decision to permit the stepfather to cohabitate with his alleged victim. We thus reverse the order dismissing the Title 9 action and remand the matter for further proceedings.

II. The Investigation

Cathy was born on November 8, 1989. She was thirteen years old at the commencement of this case. Linda divorced Cathy's father in March 1992, the same year she began dating Lawrence. Linda and Lawrence moved in together in 1996 and were married in June 1997. Cathy and Linda's mother complete the household. Cathy's bedroom is on the first floor of the house, near the only bathroom and near her grandmother's room. The bedroom shared by her mother and stepfather is on the second floor.

On May 30, 2003, while on an overnight visit, Cathy told her friend Teresa that she was being sexually molested by her stepfather. Teresa's mother overheard the girls' conversation and immediately contacted the local police department. Without her mother's knowledge, Cathy was taken to the Alpha Borough police station that same night where she was interviewed by investigators from the Warren County Prosecutor's Office.

Cathy gave a recorded statement under oath, in which she related a detailed description of the sexual abuse allegedly suffered at the hands of her stepfather. The statement consisted of questions posed to Cathy by a prosecutor's investigator and her answers. Also present during the questioning were a police officer from Alpha Borough and another prosecutor's investigator.

According to Cathy, Lawrence had been molesting her for over one and a half years. The first incident occurred around August 2001. He started entering her bedroom at approximately three or four o'clock in the morning and using both his hands to sexually touch her under her clothes. This occurred "every other day and then it got to every day of the week," with the most recent incident occurring just one week prior to the date of her statement.

Cathy stated that, with few exceptions, the abuse always occurred in her bedroom. She gave the following description of how the abuse would usually occur:

[INVESTIGATOR]: Okay, when he comes into your room, you say usually between 3:00 and 4:00 a.m., before he leaves for work?

[CATHY]: M-hm.

[INVESTIGATOR]: Is he dressed for work or is he dressed in his pajamas or...

[CATHY]: No, he's dressed for work.

[INVESTIGATOR]: Oh, he's already dressed for work...

[CATHY]: M-hm.

[INVESTIGATOR]: In his work clothes.

[CATHY]: Yeah.

[INVESTIGTOR]: Okay, and you have your own bedroom on the first floor.

[CATHY]: Yeah.

[INVESTIGATOR]: And it's next to your grandmother's... bedroom?

[CATHY]: M-hm.

[INVESTIGATOR]: Has your grandmother ever said anything or heard anything?

[CATHY]: No, no, she just doesn't like him.

[INVESTIGATOR]: But she's never heard this go on or...

[CATHY]: No.

The first incident she described involved waking up to find her stepfather "going up [her] shirt and down [her] pants" and squeezing her breasts. She stated that she tried to push him away and said"stop, please stop." He would also touch and hold her vagina underneath her clothes. She described another incident "about a half year ago, [or] a couple of months ago," saying that "[a]ll he did was just reach down, uh, my pants and he just stuck his finger up my vagina," and she told him to please stop because it hurt. Following that incident, the frequency of abuse decreased to every other day of the week.

She described another incident that occurred about siX months prior to the date of her statement. She was awakened by her stepfather grabbing her breasts, then unzipping his"pants and [making her] hold [his penis] and... tug on it." She told him"please stop, stop, and then he stopped." Cathy also alleged that one afternoon, a week prior to May 30, 2003, Lawrence reached up her shirt to touch her breast while they were in the living room and her mother was in the kitchen. She was able to stop him by kicking him in the leg.

On approximately five separate occasions during the afternoon, Lawrence"would get ads... Playboy stuff where he saw naked girls... on the internet." He would call her into the room to say"perverted things like... oh she needs to waX and... she has a big bush." Lawrence also told her that she would lose her virginity before getting engaged. She was uncertain what he meant by these comments. Although he never threatened her, Lawrence asked her whether she told anyone about his conduct. He also told her that he hoped she would not.

Twelve-year-old Teresa, whom Cathy referred to as her"best friend," also gave a taped statement to police investigators. She said that Cathy had told her about Lawrence's molestation and that she feared he would rape her. Teresa provided similar details of the abuse.

That same night, Lawrence was brought to the Alpha Borough Police Department and was questioned by investigators from the prosecutor's office. After he was read his rights under Miranda,*fn4 he gave a taped statement, under oath, denying Cathy's allegations of abuse. He indicated that, as the first person to get up in the morning, he would customarily go downstairs to use the bathroom and begin preparing the morning coffee. He would then go back upstairs, get dressed, say goodbye to his wife, return downstairs and go into Cathy's bedroom to kiss her goodbye before leaving for work.

The investigator then asked Lawrence the following questions:

[INVESTIGATOR]: Okay. Now when you go in and you kiss your daughter goodbye, do you ever touch her while you're in there?

[LAWRENCE]: No, I don't touch her. If the blanket's down, I pull it up over top of her.

[INVESTIGATOR]: Okay. Has there ever been a time where she could've perceived that you were attempting to touch her breasts or her vagina?

[LAWRENCE]: Never her vagina. Maybe when I pulled the cover up, she could perceive that...

[INVESTIGATOR]: Okay. Has that ever actually occurred?

[LAWRENCE]: No.

Lawrence also indicated that he has, on occasion, entered the bathroom while Cathy is in the shower, but that he never looked at her. However, when asked whether Cathy ever discussed with him that she felt he had touched her inappropriately, he replied:

Yes, she said once that, uh, my wife was sitting next to me on the couch, and, uh, she had come across, um, her front side down on me on my, over my lap and stuff and she had said about me touching her breasts, and I said no, I didn't, and my wife, who was right there, said no, she didn't, or no, I didn't either.

Finally, when asked whether he knew of any reason why Cathy would wrongly accuse him of having molested her, Lawrence indicated"no." He said his relationship with his stepdaughter had not changed and that there were no problems between the two of them.

III. DYFS Involvement

After interviewing the children, the investigators notified DYFS, which in turn dispatched a Special Response Unit (DYFS/SPRU) to the police station where Cathy had been interviewed. The"Documentation of Response" report filed reflects that Cathy reiterated the allegations of abuse to a DYFS/SPRU representative, including Lawrence's alleged admonition not to tell anyone about what he had done. According to the DYFS/SPRU report, Cathy understood Lawrence's words as a"threat to herself or her mom, hence she had not told her mother."

At around 1:40 a.m., the prosecutor's investigators requested the Division's representative to return Cathy to Teresa's house. According to the DYFS/SPRU report, Linda agreed to have Cathy remain at Teresa's house while she (Linda) waited for Lawrence to complete his interview with the prosecutor's investigators. The report noted that the DYFS/SPRU representative"advised mom of the need to keep [the] child away from the stepfather, if he is released after the interview." Linda was also told that a DYFS representative would be contacting her on Monday, June 2, 2003, for a follow up visit.

On Saturday, May 31, 2003, at around 6:00 a.m., a DYFS/SPRU representative spoke to Linda via telephone and informed her that Teresa's mother would pick up Cathy's clothes and school related possessions. Once again, according to the DYFS/SPRU report, Linda informed the Division that Lawrence had agreed to leave the house to enable Cathy to return home on Monday. Under the heading of"Summary of Conclusions/Assessment," the DYFS/SPRU report concludes with the following statement:

This is an incident of alleged sexual abuse.

At this time, there is no conclusive information to assess the validity of the allegation, but safety of child [Cathy] was assured by mom making plans for child to be removed from the location of the residence of the alleged perp, pending further investigative process, by the prosecutors, and DYFS.

According to entries made in a DYFS Referral Response Report, DYFS's next contact with Cathy was on Monday, June 2, 2003. Division caseworker Kevin Riehl visited Cathy at her school and explained that he wanted to speak to her about the allegations of sexual molestation she had made against her stepfather:"I asked her how she was doing and she said'not too good lately.' I asked her to explain what she meant and she said'my stepfather has been touching me a lot.'" Cathy then described to Riehl the same graphic and disturbing details of abuse she had described two days before in her statement to the prosecutor's investigators.

Riehl also asked Cathy whether she had discussed her situation with her mother:"I asked [her] if she thought that her mother was aware of any of this and she said'No.'... She said that her mother had become very upset in the past when [Lawrence] threatened to leave her. She didn't want to put her mother through this again." Cathy also told Riehl that she was afraid of Lawrence.

Later that afternoon, Riehl went to Linda's house to discuss with her the details of Cathy's statement. Although no one was home when he arrived, he was soon joined by Cathy's grandmother who denied any knowledge of the abuse. At her suggestion, Riehl telephoned Linda at her work and they agreed to meet. When he arrived at her work place, Linda apologized and told him that attorney Scott Wilhelm had advised her not to speak with him at this time.

On June 5, 2003, Riehl telephoned Linda to schedule another meeting. According to Riehl, she once again declined to meet with him and told him that she had an appointment with attorney Robert Paterson on June 9, 2003. Riehl emphasized to Linda the importance of meeting as soon as possible and told her to contact him immediately after her meeting with Paterson. Later that same day, Riehl telephoned Lawrence, who also declined to speak to him on the advice of attorney Scott Wilhelm.

The next documented contact between DYFS and Linda occurred on June 25, 2003, when Riehl met with Linda at her home. Although not physically present, Linda's attorney Robert Paterson"was on the phone via teleconference." Riehl reviewed the details of Cathy's allegations with Linda, including how Cathy indicated that Lawrence would come into her bedroom early in the morning before the rest of the family was up and about. Linda disputed this account of the family's early morning activities and appeared incredulous as to Cathy's allegations of abuse. Riehl described her statements as follows:

I asked her if [Lawrence] was up for a period of time before she woke up and she said"No, I get up early also to get [Cathy] ready for school." [Linda] didn't seem to believe that it was possible for [Lawrence] to do such a thing. She seemed hurt. I asked [Linda] if [Cathy] ever approached her about any concern regarding [Lawrence] and she said no.

Despite these reservations, Linda indicated that she supported her daughter"100 percent." Riehl also wrote that Linda claimed Cathy had told her she misses and loves Lawrence and wanted him to return home. There is no mention or discussion, however, of any recantation by Cathy. In fact, Riehl's notes of the meeting indicate that he requested Linda's consent for Cathy to be examined by a DYFS-selected physician. Although she had"no problem" with the request, Linda wanted to speak to her attorney first before agreeing to any tests. Cathy's medical examination took place on July 23, 2003.

Riehl's final entry on the Referral Response Report was made on November 7, 2003. It documents that the Division had received notice that Lawrence had returned to the home. Riehl immediately responded to the residence to verify the allegation. Linda not only confirmed that Lawrence had resumed living with her and Cathy, but indicated that she made this decision based on Cathy's alleged recantation and upon the advice of her (Linda's) attorney.

At the fact-finding hearing, Linda testified that Lawrence had moved back into the house on October 15, 2003. She gave the following description of the events that led to her decision to permit Lawrence to resume cohabitating with her daughter: after several hundred conversations with my daughter about everything and where [sic] I was totally convinced... that nothing had happened and she kept asking for him [Lawrence] to come back, what I did was I took the time to talk to my daughter that nobody wanted to do. I wanted to find out the truth. I had the truth. I was totally convinced at that point that nothing happened.

In fact, fearing that Cathy might face some type of legal repercussion for allegedly"lying" to the police, Linda testified that she retained an independent attorney for her daughter"to protect her interests." Thus, in addition to the advice of her own counsel, Linda had the sophistication and intellectual wherewithal to ...


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