April 13, 2009
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF S.K., A MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, FN-20-171-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 4, 2009
Before Judges Lihotz and Messano.
Following a fact-finding hearing in this Title 30 litigation filed by the Division of Youth and Family Services (D.Y.F.S.) against defendant N.K. and his paramour, S.J., the trial judge concluded that defendant had "abused" the couple's infant daughter, S.K., who was born on November 7, 2002. The judge's June 12, 2006 order specifically determined that defendant had [F]ailed to provide appropriate supervision and guardianship by exposing the child to domestic violence he perpetrated on the child's mother and by failing to maintain appropriate boundaries, i[.]e., by routinely sleeping with the child in his bed and by inappropriate and bizarre behavior[,] e[.]g[.,] the extreme attention he paid to the child's vaginal area.
Although the litigation was ultimately terminated at D.Y.F.S.'s request, and defendant's parental rights to his daughter were not severed, defendant appeals the finding of abuse.
He raises the following points for our consideration:
THE DIVISION DID NOT PROVE ABUSE OR NEGLECT BY A PREPONDERANCE OF THE COMPETENT, MATERIAL AND RELEVANT EVIDENCE.
THE LAW GUARDIAN HAD A CONFLICT OF INTEREST AND SHOULD HAVE BEEN DISQUALIFIED TO REPRESENT S.K. (Not Raised Below)
THE LAW GUARDIAN FAILED TO PROPERLY REPRESENT THE BEST INTERESTS OF S.K. IN THIS PROCEEDING.
THE DIVISION SHOULD BE REQUIRED TO REMOVE [DEFENDANT] FROM THE CHILD ABUSE REGISTRY.
Both D.Y.F.S. and the child's law guardian urge us to affirm the trial judge's order. We have considered the arguments raised in light of the record and applicable legal standards. We affirm.
D.Y.F.S. first became involved with S.K. when a referral was received at the State Central Registry from M.C., defendant's great-aunt, on November 30, 2005. M.C. reported that defendant and S.K. had spent the prior weekend at her home in Ardmore, Pennsylvania. Defendant and his daughter were sharing an "aero bed" and M.C. became concerned when S.K. said that her "coochie pooh hurt and her daddy did it." N.K., who overheard the remark, told his daughter to go to the bathroom, and he followed. M.C. heard S.K. scream, but she did not see any tears when the child emerged from the bathroom. Defendant told his great-aunt that the child's vagina was sensitive and that the doctor told him to apply Vaseline regularly. N.K. pulled down S.K.'s pajamas and underwear and put Vaseline on her vagina. M.C. saw discoloration on S.K.'s panties.
M.C. reported that defendant then asked her if his father was a pedophile and whether he had "raped [his] mother." The conversation ended when M.C. explained that his mother and father had engaged in "consensual" sex when his mother was just sixteen. M.C. reported that defendant was "obsessed with [S.K.]," "always ha[d] her around him," and "dress[ed] her up like a doll baby in spotless clothing." M.C. did not understand how S.K. could be "dressed so spotless and have stains in her panties."
After further investigation that we detail below, D.Y.F.S. filed an Amended Verified Complaint pursuant to N.J.S.A. 30:4C-12 seeking the care, custody and supervision of S.K. on February 2, 2006.*fn1 At the fact-finding hearing on April 26, 2006, the judge inquired "what section of the statute [D.Y.F.S. was] relying upon." The Deputy Attorney General indicated that the "case came referred  as a matter of sexual abuse," but "the main issue that [D.Y.F.S.] [wa]s moving forward upon . . . relate[d] to domestic violence which was uncovered as part of the investigation." He cited N.J.S.A. 9:6-8.21(c)(4)(b) as the section under which D.Y.F.S. was proceeding, and further noted that defendant was the only "target" of the proceedings, since S.J. had "separated" herself from defendant.
D.Y.F.S. investigator Eleanor Lesperance, who was assigned to the "Conflict Investigations Unit," testified that she began her investigation to "assess the welfare of [S.K.]" after M.C.'s report.*fn2 She spoke to M.C. who relayed additional details. For example, M.C. wanted S.K. to sleep in the bed with defendant's mother, who was also visiting for the weekend, but defendant insisted that S.K. sleep on the air bed with him. Earlier during the weekend visit, defendant returned to the house at 11:30 p.m. after being out for the evening, and awoke S.K., who had fallen asleep in M.C.'s bed, and carried her back to sleep with him on the air bed.
Lesperance interviewed defendant at work on the morning of December 1, 2005. He became very agitated and abruptly ended the meeting, but called Lesperance later that day to resume the interview in the afternoon. Lesperance did not feel he was forthcoming with his answers. Defendant acknowledged that he and S.J. were not getting along, that she was moving out of the apartment the couple shared with S.K. at his request, but he denied there had been any incidents of domestic violence. Defendant expressed reservations about allowing S.K. to be interviewed because he was concerned she might say something that D.Y.F.S. would misinterpret and that D.Y.F.S. would "run with th[at] information." Regarding his relationship with S.K., defendant indicated that he did everything for the child and that S.J. was a marginal parent at best. S.K. usually slept with him in his bed, occasionally slept with her mother in a separate bedroom, but never slept in her own bed.
Defendant was "so angry to think someone would say he sexually abuse[d] his daughter," though Lesperance had not indicated she was investigating such an allegation. Defendant "spontaneously added . . . that he [wa]s obsessed with his daughter but he c[ould not] help it." Defendant told Lesperance that both he and S.J. bathed the child, and that she had "a very sensitive vaginal area." Defendant claimed that he had taken the child to a pediatrician "on several occasions" and was advised how to treat the problem. A "nurse friend" told him to apply Vaseline to the area, so he did. Lesperance noted, however, that when she secured S.K.'s medical records, there was only one reference to the problem of a vaginal infection in the chart.
Lesperance interviewed S.K. on two occasions, but found it difficult to obtain any information from the child given her age. Nonetheless, S.K. confirmed that she usually slept with defendant in his bed, and sometimes with her mother. S.J. was interviewed on the evening of December 1, 2005 at the couple's apartment. She confirmed that she was moving out shortly, with S.K., something defendant "finally realized." S.J. told Lesperance that on the evening of November 28, defendant became upset with her because "she was not responding to him sexually and his ego was hurt." Defendant pushed her hard, and she fell. He twisted her arm behind her back "so hard she thought he was about to break it[,]" and choked her. S.J. drove herself to the hospital and was fitted with a sling for the arm and given a tetanus shot. Hospital records were admitted in evidence confirming S.J.'s treatment.
S.J. claimed there were domestic violence incidents in the past, but that this was the worst. S.K. woke up because S.J. was screaming, at which point the couple stopped arguing. When S.J. returned from the hospital, S.K. asked her "Did daddy hurt you?" S.J. told Lesperance that defendant would never harm S.K., although she was concerned about defendant's temper, noting that in the past, he had punched holes in the apartment walls.
S.J. was also concerned about defendant's relationship with his daughter, noting it was "very scary how obsessed he [wa]s with [S.K.]." She noted defendant "believe[d] [S.K.] [wa]s his alone," and he did not need to consider S.J.'s opinion regarding the child. S.J. also confirmed that S.K. had a history of vaginal infections.
Lesperance spoke to personnel at the office of Dr. Alan Lubin, S.K's pediatrician, who confirmed that S.K. was in his office "for all well child visits," and, in August 2005, was seen for a mild vaginal infection. When interviewed, S.K.'s preschool teacher, Maria Avon, indicated that S.K.'s social, behavioral and cognitive development was normal and the child did not exhibit any sexualized behavior that might be indicative of abuse.
S.K.'s maternal grandmother, S.B., expressed a concern for S.J. and S.K.'s safety due to her observation of defendant's verbal abuse, disrespect, and belittling comments towards S.J. S.B. indicated that defendant and S.J. have had several physical and verbal confrontations throughout their relationship that required police intervention. S.B. told Lesperance that defendant always threatened he would kill S.J. before allowing her to take S.K. away from him. S.B. claimed defendant was "strangely possessed" with his daughter, "more so than any man she had ever seen." When S.K. was born, defendant was obsessed with her perineal area, constantly washing it, and not letting anybody else bathe her.
S.B. was concerned that there was something sexual in the relationship between defendant and his daughter. During November 2005, S.K. was at her grandmother's home and spontaneously told S.B. that "daddy hurt my poo-poo." S.B. also witnessed S.K. crying in her sleep or clenching her fists tightly.
A.M., defendant's mother, was also interviewed by Lesperance. Although she spent the weekend in M.C.'s house with defendant and S.K., she witnessed no inappropriate behavior. A.M. believed S.K. was a "happy, good little girl," though she reported that defendant once asked her if it was normal for a nine-month old infant to sexually "hump a pillow." She told defendant to check with the pediatrician, and he apparently did, telling A.M. that the doctor told him to "keep an eye on the behavior and see if she outgrows it."
Lesperance was also present during a videotaped interview of S.K. conducted by investigator George Treillhaas of the Middlesex County prosecutor's office.*fn3 S.K. did not provide any information during this interview that indicated she had been molested. D.Y.F.S. also referred S.K. to Dr. Linda Shaw of the Central Jersey Child Protection Center (CPC) for an interview and examination. The CPC interview was rescheduled and took place on January 23, 2006, but it did not reveal any signs of sexual or physical abuse to S.K. On the way home from the interview, while riding in the car with S.J. and Lesperance, S.K. was uncharacteristically yelling at her mother, saying, "Sit down [S.]," "[p]ack your bags and get out [S.]," and "[s]top that crying [S.]." S.K. then pretended to cry and sob. S.J. told Lesperance that the child "is very smart, hears everything[,] and takes it all in."
In her investigative report, Lesperance concluded that "the sexual abuse and neglect of [S.K.] [wa]s substantiated." However, during her testimony, Lesperance said she did not conclude there was "any molestation" of S.K. by defendant, only that the nature of the "genital contact that people were reporting" was so unusual that it warranted further concern for the safety of the child. Lesperance additionally concluded that S.K. had been exposed to domestic violence between defendant and S.J., and that the child was beginning to exhibit uncharacteristic behavior toward her teachers. On cross-examination, Lesperance admitted that her report did not conclude domestic violence was substantiated, but indicated that in hindsight, a finding of emotional abuse or neglect should have been included based on the incidents of domestic violence observed by S.K.
During questioning by the judge,*fn4 Lesperance noted that the Essex County prosecutor's office was not filing any charges against defendant based upon the November 28, 2005 domestic violence incident between defendant and S.K. Lesperance did not obtain any police reports regarding responses to reports of domestic violence because the Newark police department would not release any documents without a subpoena.*fn5 Lesperance acknowledged that after her investigation, she believed she had to make the finding of abuse otherwise "there would be no services for the family."
D.Y.F.S. called Margaret Pittaluga, a licensed clinical social worker, as its second and final witness at the fact-finding hearing. Pittaluga interviewed S.K. on two occasions to determine the "clinical validation of child sexual abuse." Pittaluga was not able to "validate any allegation of sexual abuse," but testified that S.K. talked about defendant "g[iving] her mother a difficult time." The child reported seeing defendant "pack her mother's stuff and thr[o]w it away." S.K. reported seeing defendant "push  the door on her mother," and the child recalled crying along with her mother as a result. Pittaluga asked S.K. what generally made her sad, and the child spontaneously offered that her father made her sad.
On June 12, 2006, the judge rendered her oral decision. After recounting much of the above testimony, the judge concluded D.Y.F.S. had "established by a preponderance of the evidence that [S.K.] is an abused child because [defendant] failed to prov[ide] this child with proper guardianship and supervision[.]" She further found that defendant had inflicted harm upon S.K. and posed "the substantial risk of future harm by his acts of domestic violence and by his inappropriate touching of [S.K.] and sleeping with her which is certainly age inappropriate." The judge noted the "effect [of witnessing the domestic violence] on [S.K.] was startling." The child "model[ed] [her parent's] behavior," by copying "her mother's crying and her father's yelling." Recognizing that "so many of the things that [defendant] was accused of doing are things that any conscientious parent does all the time[,]" such as teaching proper hygiene and quieting a "cranky child" by sleeping with her in the same bed, the judge found defendant's behavior was "a little more than that." Instead, the judge concluded defendant displayed "a true obsession with this child's genitalia." She entered the order under review.*fn6
"[I]n reviewing the factual findings and conclusions of the trial judge, we are obliged to accord deference to the  court's credibility determination and the judge's 'feel of the case' based upon . . . her opportunity to see and hear the witnesses." Div. of Youth and Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (quoting Cesare v. Cesare, 154 N.J. 394, 411-13, (1998)), certif. denied, 190 N.J. 257 (2007). We also recognize the special expertise of those judges assigned to the Family Part. Cesare, supra, 154 N.J. at 412-13. "However, where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded. Still, even in those circumstances we will accord deference unless the trial court's findings went so wide of the mark that a mistake must have been made." Div. of Youth and Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotations and citations omitted).
Defendant argues that there was "insufficient, competent evidence" for the judge to have made a finding that he abused or neglected S.K. He contends that there was no finding of sexual abuse, yet, the testimony in this regard, and Lesperance's investigation of the initial allegation, tainted the entire procedure. We disagree.
The statute provides in relevant part:
"Abused or neglected child" means . . . (4)  a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian, as herein defined, to exercise a minimum degree of care . . . (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court[.] [N.J.S.A. 9:6-8.21(c)(4)(b).]
A finding of abuse or neglect must be based on a preponderance of the evidence and "only competent, material and relevant evidence may be admitted." N.J.S.A. 9:6-8.46(b).
"Under the preponderance standard, 'a litigant must establish that a desired inference is more probable than not. If the evidence is in equipoise, the burden has not been met.'" Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 169 (2006) (quoting Biunno, Current N.J. Rules of Evidence, comment 5a on N.J.R.E. 101(b)(1) (2005)). "The evidence must demonstrate that the offered hypothesis is a rational inference, that it permits the trier of fact to arrive at a conclusion grounded in a preponderance of probabilities according to common experience." In re Estate of Reininger, 388 N.J. Super. 289, 298 (Ch. Div. 2006) (citing Joseph v. Passaic Hosp. Ass'n, 26 N.J. 557, 574-75 (1958)).
As used in the statute, "the phrase 'minimum degree of care' refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999). "Conduct is considered willful or wanton if done with the knowledge that injury is likely to, or probably will, result." Ibid. (citing McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970)). The central focus of the inquiry should be whether there was actual harm to the child that could have been prevented by the parent. Id. at 182. "[N]on-intentional conduct is sufficient to warrant a finding of abuse if injury to the child is demonstrated." Div. of Youth and Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004) (citing G.S., supra, 157 N.J. at 175-82), certif. denied, 182 N.J. 426 (2005).
In S.S., we reversed a finding of abuse and neglect against a mother who was herself the victim of domestic violence, despite the fact that her twenty-one month old son had been directly exposed to the violent incidents. S.S., supra, 372 N.J. Super. at 15. We concluded,
Our concern with the court's rationale lies in the fact that emotional harm to the child as the result of witnessing domestic abuse was assumed by the D.Y.F.S. case worker . . . and by the fact-finding judge. Yet, there is absolutely no evidence in the record to support that assumption or the further assumption that by initially refusing proffered advice to obtain a restraining order and seeking a reduction in her husband's bail, appellant necessarily emotionally endangered her child. No witness stated as a matter of fact that evidence of emotional injury to the child appeared, either as demonstrated by changes in the child's willingness to socialize, or observations of excessive crying, aggression or passivity, clinging, separation anxiety, sleep disturbances or any other change in the child's behavior that could be associated, in a non-verbal infant, with stress, distress or emotional difficulty. All evidence indicates that the child remained a happy, healthy, emotionally secure twenty-one-month-old baby. [Id. at 22.]
In the present case, the judge specifically distinguished S.S., noting that here, defendant was the perpetrator of the domestic violence, and S.K. was older and had demonstrated the negative consequences of having witnessed the violent incidents. We agree with the judge that these distinctions make a difference.
There was ample evidence in the present case to support the conclusion that defendant had perpetrated domestic violence upon S.J. and that S.K. had witnessed or heard some of the violent incidents. The judge took note of defendant's behavior as "controlling," noting this was typical of those who commit violence in the home.
More importantly, there was ample evidence that S.K. suffered emotional harm as a result of witnessing her father's domestic abuse of her mother. S.K. mimicked the behavior of her parents, her teacher noticed a change in certain behavior, Lesperance herself witnessed S.K.'s imitation of her father's verbal abuse of her mother, the child knew her mother had been injured in the November 25, 2005 assault, and she spontaneously expressed a feeling that her father made her "sad." This proof is precisely the type of evidence we found wanting in S.S. We therefore concur with the judge's conclusion that S.K. "has been unmistakably affected by her exposure to domestic violence[,]" and conclude that D.Y.F.S. proved the necessary elements of a statutory violation by the preponderance of the evidence separate and apart from any of the allegations regarding defendant's "obsession" with his daughter's genitalia.
We find the balance of the arguments raised by defendant to be of insufficient merit to warrant any extensive discussion in this opinion. R. 2:11-3(e)(1)(E). We add only the following brief comments.
The argument in Point II, i.e., that an inherent conflict of interest existed because the law guardian and D.Y.F.S.' "star witness" were both "members of the Office of the Law Guardian," was not raised below, and we refuse to consider it for the first time on appeal. Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973).
In Point III, defendant contends that S.K.'s law guardian "did nothing other than support" D.Y.F.S., thus failing to "zealously advocate the client's cause." In re Adoption of a Child by E.T., 302 N.J. Super. 533, 539 (App. Div.), certif. denied, 152 N.J. 12 (1997). The examples cited by defendant fail to demonstrate any support for this proposition, and we reject the contention.
The argument in Point IV presumes our reversal of the fact-finding order. Since we affirm, the contention is moot. We do note, however, that in her February 7, 2008 order, the trial judge required D.Y.F.S. to delete from the Central Registry "any reference to sexual abuse by [defendant]." We assume this was done because the record does not disclose anything to the contrary.