On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FN-15-149-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 5, 2010
Before Judges Wefing and Payne.
Defendant, J.M., appeals from an order, entered in Title 9 litigation following a fact-finding hearing, determining that he sexually abused his daughter, I.M., in violation of N.J.S.A. 9:6-8.21.*fn2 We affirm.
The record establishes that, in January 2009, I.M., who was undergoing therapy as the result of a history of lying and thievery,*fn3 reported to her therapist that, eighteen months earlier when she was nine years old, her father had come into her room in the night, exposed himself, and forced her to touch his genitals. On January 14, 2009, the therapist reported I.M.'s allegations to the Division of Youth and Family Services (DYFS). On January 15, 2009, DYFS intake worker, Stephanie Leonard, was assigned to investigate the matter. She proceeded to interview I.M. at her school in the presence of a school staff member. At that time, I.M. stated that her father, while sleepwalking, came into her room at night, pulled down his pants, and then made her touch his genitals "just for a couple of seconds." When I.M. became upset, her father carried her into the T.V. room and then into her parents' bedroom. She reported that she told her mother on the following morning what had occurred. Although I.M. initially stated that this conduct had occurred more than once, she retracted that statement and claimed that only one incident had taken place. Additionally,
I.M. stated that her father had diabetes and, when his blood sugar was low, he sleepwalked - a statement that no other person confirmed. I.M. stated that she, too, had diabetes, but later admitted that she did not.
At that point, the investigation was transferred to a different intake worker, Anna Luibil. That evening, Luibil, in the company of two men from the prosecutor's office, including Detective Steele, went to I.M.'s residence, where Luibil interviewed I.M. in her bedroom. During the interview, I.M. stated that her father had come into her bedroom, picked her up, and carried her into the marital bedroom, where he placed her on the bed and covered her with a sheet. Then, while sitting next to her, he took her hand and placed it on his penis. When I.M. withdrew her hand, her father brought her back to her own bedroom. On the following day, I.M. told her mother that her father had done a "gross thing." Her mother then confronted her father and told him to stop such conduct.
Upon learning I.M.'s story, Steele directed that I.M.'s mother and father be interviewed at the prosecutor's office. The whole family, as well as Luibil, went to that location and, while there, Luibil witnessed the interviews of the mother and father over closed circuit television. According to Luibil, the father stated that he was "very surprised" when confronted by his wife on the morning after the alleged incident, and that he did not recall what I.M. stated had taken place and thought he must have been sleepwalking. He admitted that he had awakened late the next morning on the couch in the T.V. room, not in his own bed. Luibil testified:
He could not explain it to himself, but he said, but if the child, if my daughter said that that's what happened, you know, I'm not saying that she's lying and then eventually, you know, he said that he didn't remember that it happened, but he believed his daughter.
Luibil testified that at no point did the father deny that the sexual conduct had occurred. Upon further questioning, Luibil stated that the father admitted to having a glass of wine before retiring and speculated that "[m]aybe I drank too much." Luibil also testified that he "might have been on medication for a disorder." She stated that the father had said that this was the second time that he had sleepwalked, and then later said that the incident may have been stress-related, claiming "[h]e could have been mentally burnt out, physically burnt out, shell-shocked." The father denied any sexual attraction to his daughter.
When the mother was interviewed, she stated that she had slept through the night, but had been told by I.M. of the episode the next morning. According to the mother, I.M. stated that "he tried to make me touch it." The ...