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Department of Children and Families, Division of Youth and Family v. F.D

August 2, 2011

DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF YOUTH AND FAMILY SERVICES, PETITIONER-RESPONDENT,
v.
F.D., RESPONDENT-APPELLANT.



On appeal from a Final Decision by Director, Division of Youth and Family Services, Docket No. AHU 07-553.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 10, 2011

Before Judges Messano and Waugh.

F.D. appeals from the final administrative decision of the Department of Children and Families (DCF), Division of Youth and Family Services (DYFS) that: 1) affirmed the ALJ's initial decision that F.D. sexually abused his daughter; and 2) placed his name on the central registry. N.J.S.A. 9:6-8.11. F.D. raises the following points on appeal:

POINT I. THE TRIAL COURT ERRED BY SUA SPONTE BRINGING A MOTION ON BEHALF OF [DCF] TO QUASH A SUBPONEA [SIC] COMPELLING THE TESTIMONY OF A PRIOR CASEWORKER REGARDING PRIOR ALLEGATIONS.

POINT II. THE TRIAL COURT'S FINDING THAT F.D. COMMITTED REPEATED ACTS OF SEXUAL ABUSE AGAINST A.M.D. WAS UNSUPPORTED BY COMPETENT, SUBSTANTIAL AND WAS [SIC] CREDIBLE EVIDENCE.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

By way of background, F.D. and N.D., the parents of a daughter, A.M.D., and a son, F.D. III, were divorced in September 2005 when A.M.D. was ten-years old. On May 25, 2006, A.M.D. reported to a therapist, Dr. Tracey Adams, that F.D. had been sexually molesting her for the past three or four years. Adams made a referral to DYFS. On July 3, DYFS advised F.D. that its "investigation [of the sexual abuse allegations] determined . . . neglect was substantiated." F.D. requested an administrative hearing.

DYFS also contacted the prosecutor's office. Investigators interviewed A.M.D., F.D. and Adams, on May 25 and 26. Ultimately, on September 5, 2006, the prosecutor's office closed its investigation and referred the matter back to DYFS.

In the interim, the parties' post-judgment disagreements regarding issues in their divorce resulted in ongoing motion practice. In May 2006, N.D. obtained a domestic violence temporary restraining order against F.D. On September 25, they entered into a consent order under the FM docket in which, among other things, the parties agreed to communicate only through counsel, N.D. dismissed her domestic violence complaint, and F.D. agreed to "suspend his parenting time with [A.M.D.] and . . . not go to her home[,] school or any other place she may be until further order."

During pre-hearing proceedings before the ALJ, DCF moved to permit A.M.D. to testify in camera. The request was ultimately supported by the certification of Erika Ryan, Ph.D., a therapist then treating the child. Ryan concluded with "high probability" that testifying in the presence of F.D. would result in "severe [repercussions] and have significant negative impact on [A.M.D.'s] continued treatment." Over F.D.'s objection, the ALJ granted DCF's motion.

The hearing took place on July 20 and December 18, 2009. A.M.D. testified in camera responding to questions posed by the ALJ and counsel.*fn1 Her audio testimony was contemporaneously transmitted to another hearing room where the attorneys and F.D. were present.

A.M.D. was now nearly fourteen-years old. She described incidents of sexual molestation by F.D. beginning when she was six-years old. Among other things, F.D. "kissed [her] all over," including "[her] breasts, [her] . . . privates, . . . [her] whole body." F.D. would remove all his clothes and "put [her] in the shower . . . ." F.D. would not use a washcloth but "would go all over [her] body, go near [her] vagina and . . . would try to make ...


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