On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-278-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne, Reisner and Accurso.
S.C., father of M.C., appeals from the trial court's dismissal of a Title 9 action following a finding that he abused M.C. and the approval of the Division of Youth and Family Services's (DYFS or Division) permanency plan of termination of his and his wife, L.C.'s, parental rights to their daughter, followed by adoption. This appeal has been consolidated with L.C.'s appeal in which she contended that DYFS's failure to prove her abuse or neglect in the Title 9 proceeding required the dismissal of the complaint and the return of M.C. to her care. L.C. also contended with S.C. that the trial court erred in approving the Division's permanency plan.
Following submission of her appeal, however, L.C. agreed to kinship legal guardianship of M.C. We are thus dismissing L.C.'s appeal at her request by this opinion. Further, after he filed his appeal, S.C. executed a voluntary surrender of his parental rights to M.C. Because of these procedural developments during the course of this appeal, S.C.'s arguments in Points I and II of his brief, that the trial court erred in conducting a permanency hearing and continuing an order giving DYFS custody over M.C., and further erred in approving a concurrent permanency plan based upon its erroneous finding that L.C. was unwilling to disengage from S.C., have been rendered moot. Accordingly, we limit our consideration to the issue raised in Point III of S.C.'s brief, that the trial court erred in finding by a preponderance of the evidence that S.C. abused or neglected M.C. We likewise limit our rendition of the facts and procedural history to what is necessary to resolve this sole remaining issue on S.C.'s appeal.
S.C. and L.C. are the biological parents of a daughter, M.C., born in December 2005. S.C. also has a daughter, K.M., three years older than M.C., from a prior marriage. In 2008, M.C., then three, resided with S.C. and L.C., and K.M., then six, resided with her mother but spent every other weekend with S.C. and his family. On October 18, 2008, DYFS received a referral from a police officer reporting that K.M. had disclosed to a family friend that S.C. had entered the bedroom she was sharing with M.C. at S.C.'s house on October 11, 2008, straddled her and held her down with his legs while he placed his hands under her nightgown and inserted his finger into her vagina.
K.M. reported that she asked S.C. to stop, but that he laughed and ignored her. The assault continued for five or ten minutes during which time K.M. reported that M.C. was sleeping in the same room.
Darlene Fusco, a Special Protective Response Unit (SPRU) worker responded to the Hudson County Prosecutor's special victim's unit on October 13, 2008, to observe Sergeant Chonda Rosario's interview with K.M. via closed circuit television.
K.M. stated that she understood the difference between the truth and a lie and correctly identified male and female body parts from a picture on the wall. In response to a question from the investigator, K.M. reported that S.C. and "J.J."*fn1 had touched her in a way that made her uncomfortable. K.M. told the investigator that her father had twice touched her "pud," her word for her vagina, once "this weekend" and once "the other weekend" while she was on her bed. K.M. was able to demonstrate what she had described with anatomically correct dolls by taking the hand of the male doll and touching it to the vaginal area of the female doll, saying it "was two fingers" and using a "pushing motion as to indicate digital penetration." K.M. told the investigator that she told S.C. to stop but that he ignored her.
Ms. Fusco also observed S.C.'s interview with a detective from the prosecutor's office. While S.C. denied knowing why he was being interviewed, Fusco noted that S.C. referred to the "night of the incident" before the detective revealed what K.M. had alleged. S.C. admitted that K.M. had slept in his bed on the night in question but denied touching her inappropriately. He also reported that on the nights K.M. stayed at his house, she usually slept with his wife, L.C., because K.M. refused to sleep alone.
L.C., however, advised Fusco in a conversation shortly afterwards that K.M. usually slept with S.C. in his bed, because K.M. did not like sleeping alone or with her. L.C. stated that she generally slept in M.C.'s room when K.M. was visiting. L.C. confirmed that K.M. had slept with S.C. in his bed the prior weekend. L.C. did not believe that S.C. had sexually assaulted K.M., but recalled that the prior Sunday, K.M., who usually wanted to spend every moment with her father, had uncharacteristically decided to accompany L.C. and M.C. to do the laundry instead of remaining at home alone with S.C.
L.C. was interviewed at the prosecutor's office the following day. Fusco, who observed the ...