On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-231-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodriguez, C.L. Miniman and LeWinn.
The Division of Youth and Family Services (DYFS) appeals from the March 31, 2010 order of the trial court dismissing its abuse and neglect complaint against defendants H.D. and A.D., who are the adoptive parents of the minor, S.D. This order was entered on defendants' motion, in which S.D.'s law guardian joined, at the conclusion of the presentation of DYFS's evidence at a fact-finding hearing. For the reasons that follow, we reverse and remand for further proceedings.
DYFS filed a civil complaint for child abuse and neglect against H.D. in April 2009, based upon allegations made at that time by H.D.'s niece, J.G., that H.D. had sexually assaulted her in the presence of S.D. some years earlier. In April 2009, J.G. was "having problems" in school, leading the principal to speak with J.G.'s mother, M.G. M.G. told the principal that in October 2008, J.G. had reported to her being sexually abused and M.G. believed this was the reason for J.G.'s problems in school.*fn1
School officials then contacted DYFS.
Kelly Nester, a family service specialist with DYFS, along with a DYFS caseworker interviewed J.G. at school. J.G. described an incident that had occurred a few years earlier at her birthday party held at the home of H.D. and A.D.
J.G. stated that "on that day [H.D.] asked her and . . . [S.D.] to go upstairs into his bedroom for massages . . . .
[W]hen they went upstairs [H.D.] gestured for her to lie on the bed." J.G. laid down and then H.D. "pulled her pants . . . down . . and unzipped his pants" and inserted his penis into her vagina. J.G. "pushed him off . . . of her and pulled her pants back up and went downstairs back to the party." During this time, according to J.G., S.D. was "also in the room lying on the bed . . . trying to ignore what was going on." J.G. told Nester that she had reported this incident to her aunt, D.R., and had also spoken to her older sister and her mother, M.G., about it.
Nester ended the interview at this point, deciding that J.G.'s account "was substantial enough to report to the local authorities and to the prosecutor's office," adding that it is "the protocol to have . . . [a] child victim interviewed only one time" and this should occur at the prosecutor's office.
Nester contacted the Bergen County Prosecutor's Office to arrange an interview of J.G. She also contacted "centralized screening" at DYFS to generate an open case so that S.D.'s "safety could be assessed" since J.G. stated that S.D. was present during H.D.'s sexual assault.
J.G. was interviewed at length by members of the prosecutor's office on two occasions, April 20 and May 4, 2009. During those interviews, at times J.G. recounted the incident as she had described it to Nester; at other times, in response to somewhat leading questions, J.G. stated that it may have been a dream. During a medical examination by Dr. Leslie Ann Elton on May 14, 2009, J.G. described the incident to the doctor in a manner consistent with what she had told Nester.
J.G. also underwent a psychological evaluation with Dr. Patricia Sermabeikian. Dr. Sermabeikian opined that J.G. "had some anxiety" and "expressed . . . a lot of concern about . . . the impact of her disclosure on her family." J.G. also told Dr. Sermabeikian that she "dreamt about the abuse." The doctor concluded that J.G. "presented as if it had really ...