On appeal from a Final Decision of the Director, Division of Youth and Family Services, No. 5039-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: December 17, 2008
Before Judges Cuff, Fisher and Baxter.
Following an investigation, the Division of Youth and Family Services (DYFS) notified S.O. that it had substantiated an allegation of sexual abuse of his daughter by him. He appealed. The matter was transmitted to the Office of Administrative Law (OAL) as a contested matter. Following an evidentiary hearing, an administrative law judge (ALJ) rendered an initial decision in which she found that S.O. sexually abused his daughter. The DYFS Director adopted the findings issued by the ALJ and concurred with the conclusion that S.O. sexually abused his daughter. It is from this decision that S.O. appeals. We affirm.
S.O. and M.O. married in 1996. Their daughter, their only child, was born in 1997. The first complaint of inappropriate touching of his daughter by S.O. occurred in November 2000. Because the child had an ear infection and was exhibiting behavioral problems, her parents and maternal grandmother took the child to her pediatrician. The parents advised the doctor that the child had stated that S.O. had touched her vaginal area. The doctor counseled the parents but did not make a referral to DYFS because her physical examination revealed nothing amiss and the parents and the maternal grandmother were confident nothing of the sort had happened.
The next report of inappropriate touching occurred in August 2001. At a well-child visit, the maternal grandmother advised the doctor that the child had blurted out at the dinner table that her father was a "bad daddy" because he "touched her in her pechie."*fn1 Both the mother and maternal grandmother expressed concerns to the pediatrician about S.O.'s relationship with his daughter. The visit to the pediatrician coincided with S.O. leaving the marital residence.
The pediatrician made a referral to DYFS because this was the second allegation of improper touching by S.O. DYFS, in turn, contacted the county prosecutor. After investigations by both organizations, no criminal charges were filed and DYFS found the allegation unsubstantiated.
The child, however, commenced counseling with a licensed social worker and therapist. On November 12, 2002, DYFS received a second referral from the therapist. The therapist reported that the child was "[s]ticking to her story that her father had touched her [vagina]." In addition, the therapist reported that the child disclosed that when her father lived in the home, he had "white sticky stuff that came out from his [penis]" that he would put in her mouth.
DYFS conducted another investigation. It also referred the matter once again to the county prosecutor, who declined to conduct an investigation based on the prior investigation of the family. The assigned DYFS worker spoke to the maternal grandmother, the mother, the child, and her father. The child's therapist also submitted a letter in which she reported that over the course of a year in play therapy, the child had remained consistent in her allegations against her father. On December 19, 2002, DYFS substantiated sexual abuse of the child by her father. He has consistently denied all allegations of sexual abuse and filed an appeal with the agency.
Soon after substantiating an act of sexual abuse, DYFS referred the child to the Audrey Hepburn Children's House at Hackensack Hospital where she was evaluated by a psychologist. During the evaluation, the psychologist stated that the child spontaneously disclosed sexual abuse by her father. She also reported that the child described the smell of seminal fluid and found this statement a very "idiosyncratic response." Her clinical impression was "Sexual Abuse: Probable Substantiation."
Before the OAL, DYFS presented the testimony of the child's pediatrician, the DYFS workers who investigated the report of sexual abuse and who substantiated the report of sexual abuse, the psychologist from Audrey Hepburn Children's House, the child's therapist, and her mother. S.O. testified in his defense and also presented a psychologist who had conducted custody and visitation evaluations for the Family Court during the matrimonial proceedings between S.O. and his wife (the court psychologist), and S.O.'s treating psychologist.
The court psychologist issued four reports to the court during the pre- and post-matrimonial proceedings regarding S.O. and also submitted these reports and testified on behalf of S.O. before the ALJ. Initially, he had recommended suspension of visitation because the child had such antipathy to her father and displayed considerable emotional distress about the prospect of contact with her father. Later, he recommended therapeutic visits in a supervised manner to facilitate reunification. In his final report, he opined that there was a high probability that sexual abuse did not occur and the mother and maternal grandmother had coached the child. The court psychologist also questioned the qualifications of the child's therapist and suggested the therapist may have unwittingly reinforced the initial allegations.
S.O.'s treating psychologist testified that he had seen S.O. in individual and group sessions. He testified that he had detected nothing in S.O.'s history that would lead him to believe that S.O. sexually abused his daughter. He conceded, however, that he had never interviewed the child, her mother or grandmother and had little experience with sexual offenders.
Following the hearing, the ALJ rendered an initial decision in which she made six findings of fact:
1. In November 2000, when [the child] first reported being sexually abuse[d] by her father, she was three and one-half years old. On Thanksgiving Day 2000, [her] father sexually abused her by touching her vagina.
2. In April 2001, on Easter Sunday, [the child] was sexually abused by her father, in her own bed room.
3. In August 2001, when [the child] was four and one-half years old, she continued to be sexually abused by ...