On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FN-06-0067-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Payne and Baxter.
Defendant father, J.G., appeals a July 15, 2010 order of the Family
Part finding, by clear and convincing evidence, that he committed acts
of child abuse pursuant to N.J.S.A. 9:6-8.21c(1), (3) and (4) when he,
on two occasions, sexually assaulted his daughter, fictitiously
"Jane," and when he administered excessive corporal punishment to her
younger brother, fictitiously "Jim," in Jane's presence.*fn1
J.G. appeals as well from an order terminating litigation that was entered on the
Because J.G. did not appear at the fact-finding hearing, evidence introduced by the Division of Youth and Family Services (DYFS) was uncontroverted. That evidence established that the mother, L.M., and the father, J.G., had three children together, an older daughter fictitiously designated as "Carol," Jane, and Jim.
At some point, Carol had been sexually assaulted by her mother's then-boyfriend. She had acted out, she had refused to attend school, and she had left her mother's custody. As a result, Carol had been placed by DYFS in a residential facility.
Although appearing in the caption, she was not a subject of these proceedings.
The mother had difficulties finding adequate housing, and for a period of time, she and her two remaining children lived in a shelter. As a result of her lack of housing, approximately one year before disclosure of the events giving rise to the present action, custody of Jane and Jim had been transferred to the father. Stephanie Iglesias, who had been assigned by DYFS as the children's caseworker in July 2008, testified at the hearing that she visited the father's residence on a monthly basis, but had no concerns about the living arrangements. She was aware that the father drank liquor on a daily basis, but she did not know what quantity he drank. Iglesias had never seen the father drunk or observed bottles of alcohol around the home. However, her visits to the home had all been in the afternoon.*fn2
On Friday, May 8, 2009, Jane, who was celebrating her sixteenth birthday, was granted permission by her father to spend the night with a friend. During the next day, her father called her repeatedly, cursing at her. Realizing that he had been drinking, Jane became frightened and stopped answering her father's calls. Eventually, Jane disclosed to her friend's mother and then to a teacher that her father had raped her on two occasions while drunk. The police were called, and a Vineland police officer named Runkle took her to the police station and notified DYFS.
As a result, Carrie McClain, an intake and special response unit (SPRU) worker was called at 12:10 a.m. on Sunday May 10. McClain contacted Officer Runkle who stated that Jane had been reported missing by her father on May 9, but the father had not disclosed that he in fact knew where his daughter was. When Runkle located and then spoke to Jane, she informed him that she was afraid to go home because her father "rapes her." The last time it had occurred was at the end of January or the beginning of February. When asked, Officer Runkle informed McClain that he regarded Jane's story as credible, since she was "sitting there trembling."
McClain responded to the police headquarters at 1:15 a.m., and at 2:00 a.m. Jane's mother arrived. McClain overheard the mother talking to Jane and asking her if the story were true, which Jane said it was. At 2:30, McClain, in the company of Officer Runkle and another DYFS worker, interviewed Jane, who stated that just before Christmas and again at the end of January her father had entered her bedroom, drunk, had taken off her clothing as well as his own, and then proceeded to fondle her and commit sexual intercourse. After he had ejaculated into a condom, he left, telling her that this was their little secret. Jane's brother was not in the residence when either sexual assault took place.
Jane confirmed that her father drank alcohol every day, including both hard liquor and beer. She stated additionally that her father abused her brother, and that he would "beat him up," kick and hit him.
McClain determined as the result of her interview with Jane that both she and Jim should be removed from their father's custody. Jim was picked up from his home at about 3:30 a.m., and, after a number of contacts had refused to take the children in, at 7:00 a.m., they were taken to a shelter in Cape May.*fn3 The two children were later placed with their mother.
On May 14, 2008, Jane, accompanied by her mother, was taken by Iglesias for an examination by Martin A. Finkel, D.O., a Professor of Pediatrics at the University of Medicine and Dentistry of New Jersey and the Medical Director of its Child Abuse Research Education & Service Institute. Dr. Finkel, who testified at the fact-finding hearing and also wrote a report that was introduced into evidence, obtained a medical history from Jane's mother. He then obtained a history of the two incidents in a private conversation with Jane. Her description of what had occurred was very similar to that which had been given to McClain. However, Jane stated additionally, that the sexual penetration had "hurted" and that she had bled and experienced a burning sensation when she urinated after the December assault. According to the doctor, "[o]bservation of blood and dysuria confirms with medical certainty that [Jane] had blunt force penetrating trauma."
Upon questioning by Dr. Finkel, Jane denied experiencing any physical discipline by her father, but she said: "He would beat my brother, punch him, kick him. He said that if Jim wants to be a man he has to be treated like one."*fn4
The doctor then conducted a complete physical examination, including an adult gynecological examination and testing, but nothing remarkable was revealed. However, when the doctor introduced the vaginal speculum, Jane stated that it felt just like her father's penis.
On May 15, 2009, Iglesias took both Jane and Jim for interviews with Detective McCormick at the Vineland Police Department. Iglesias, who was in a separate room, heard the interviews and took notes as to their content. For a third time, Jane consistently reported the details of the two sexual attacks upon her by her father. She reported that she had never had sex before. Jane ...