On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FN-11-81-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Espinosa.
Defendant L.M. ("Lois")*fn1 appeals from an order that memorialized a finding of abuse or neglect, based upon her failure to protect her daughter, M.P. ("Maria"). We affirm.
Lois is the biological mother of five children, Maria and M.P. ("Michael"), whose father is M.P. ("Martin"); L.G., ("Lisa"), whose father is K.G. ("Kyle") and S.M. and J.M. ("Sally" and "Jack"), her children with her present husband, S.M. ("Stanley").
In November 2007, Maria, age 14, resided with her mother and stepfather, her brother Michael, age 11, and her half-sisters Lisa, age 5, and Sally, age 2.*fn2 On November 6, 2007, Maria was disciplined for inappropriate use of text-messaging by the suspension of her text-messaging service. In response to her request to have the privilege reinstated, Stanley told her that he would restore the service if she helped her mother around the house. Maria complied. However, when Lois was not present, he told her that the text-messaging service would be restored that night if she wore a certain pair of shorts later in the evening. The shorts in question were purchased at Victoria's Secret, pink and very short, with buttons on the front and "Hot Hot Pink" written on the rear. Maria agreed and Stanley called the wireless provider to restore the texting services.
When Maria discovered that her picture messaging service was not activated, she complained to Stanley. He agreed to call to resolve the issue and said, "I'll be in in a little bit," and added, "Don't forget our deal." Lois asked Stanley what he was talking about. Stanley replied that he was referring to Maria's agreement to help her around the house. Stanley later went to Maria's room, called the wireless provider to restore the picture messaging function, and then left to go to his bedroom.
Maria went to sleep, wearing the pink shorts under her sweat pants. At approximately 12:30 a.m., Stanley returned to Maria's bedroom. He asked if she was wearing the shorts. She replied, "Yeah." Stanley said, "Oh, let me see," and lifted the blankets and pulled down her sweat pants. Maria asked him to stop and leave her alone, stating that she was tired and sleeping, and turned toward the wall. Stanley then took her hand and put it on his bare penis. Maria pulled her hand away and asked him to leave her alone but Stanley again took her hand and placed it on his penis. She pulled her hand away again and Stanley left the room.
It was customary for Stanley to wake Maria in the morning. On the following morning, he called her and told her that he did not come into her room the previous night. She replied, "Oh." He responded, "Yeah."
That morning, Maria discussed her stepfather's actions with her cousin, "Jill," and asked Jill to ask her mother what she should do. As a result, Maria sought out her guidance counselor at school and told her what had happened the night before. The school reported Maria's account to her father, Martin, the Hamilton Township Police Department and the Division of Youth and Family Services (DYFS). Martin brought Maria from school to the police department, where she gave a statement.
Gary Byrne, an investigator with DYFS, testified that, from the first time he met Lois at Maria's school, her biggest concern was about her losing her home if Stanley went to jail, rather than Maria's welfare. She stated, "I cannot have him leave because I need him to pay for the mortgage and the rest of the bills." When asked if she believed her daughter, Lois said,
"I don't know what to believe but I can't put my husband out because I will lose my home." Investigator Byrne stated, "At no point did she ask how [Maria] was doing during the course of the day." Stanley was arrested and charged with aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a) and endangering the welfare of a child, N.J.S.A. 2C:24-4(b)(1): Lois asked about having ...