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New Jersey Division of Youth and Family Services v. A.H. and Z.G

May 23, 2012

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
A.H. AND Z.G., DEFENDANTS-APPELLANTS. IN THE MATTER OF A.R. AND A.H., MINORS.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-202-10.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 8, 2012

Before Judges Fisher, Baxter and Nugent.

In these consolidated appeals, a mother, Z.G., and a stepfather, A.H., appeal from a judge's July 12, 2010 finding that A.H. sexually abused his thirteen year old stepdaughter, A.R. (Ann),*fn1 and that the child's mother, Z.G., who knew about the sexual abuse, left her daughter alone with A.H. for a period of two weeks, thereby exposing the child to the risk of further sexual abuse by A.H. We reverse the finding that A.H. abused or neglected A.R., see N.J.S.A. 9:6-8.21(c), because we conclude that the Division of Youth and Family Services (the Division or DYFS) failed to satisfy the requirement of N.J.S.A. 9:6-8.46 that DYFS corroborate a child's out-of-court statements relating to any allegations of abuse or neglect. The finding of abuse and neglect against the mother was dependent upon the proofs against A.H., in that she was found to have abused and neglected her daughter only by failing to protect the child from further abuse by A.H. In light of our determination that the charges against the stepfather must be vacated, it follows that the findings of abuse and neglect against the mother must also fail. We reverse the findings of abuse and neglect as to both parents. In light of that determination, we need not address the other issues presented.

I.

On November 20, 2009, the Division was notified by Ann's school that she reported to a teacher that her stepfather, A.H., had been sexually abusing her for several years. A DYFS caseworker, Julia Borras, immediately interviewed Ann at the school. Ann reported that her stepfather had sexually molested her on two occasions. The first incident occurred approximately two years earlier, when Z.G. was in El Salvador, and the second incident occurred in the early part of November 2009, when Z.G. went to Las Vegas for two weeks to visit her own mother, leaving Ann home alone with her stepfather and younger brother, A.H.*fn2

Borras did not, however, take a formal statement from Ann because DYFS protocol required DYFS caseworkers to arrange for the alleged victim and the suspect or suspects to be interviewed by law enforcement and the DYFS caseworker jointly. In keeping with that protocol, Borras notified Z.G. that she, Borras, would be transporting Z.G. to the Hudson County Prosecutor's Office for an interview. During the ride to the Prosecutor's Office, Borras did not discuss with Z.G. any of the details of Ann's allegations.

In a videotaped interview, which Borras observed from an adjacent room, Ann told Detective Jessica Cruz that her stepfather sexually molested her on two occasions. As she had reported to Borras, Ann told the detective that the first occasion was approximately two years earlier, when her mother went to El Salvador due to a death in the family and left Ann in her stepfather's care. According to Ann, her stepfather touched her breast and vagina with his hands on the first occasion. In December 2008, Ann told her mother what had happened.

Z.G. later informed Ann that when she confronted A.H., he "promised . . . that he wouldn't do it again." Ann reported that her mother became very depressed and sad after Ann's disclosure. Ann also recalled a heated argument between her mother and stepfather, during which the police were called. That argument occurred shortly after Ann disclosed to her mother in December 2008 that her stepfather had sexually abused her.

During the videotaped interview, Ann described the second incident, which occurred during her mother's November 2009 trip to Las Vegas. When asked to describe the November 2009 incident, Ann stated that her stepfather ordered her into a bedroom, and told her to lie on the bed, after which he removed some of her clothing. A.H. then began touching her breast and vagina, and proceeded to put his penis on top of her vagina. At that time, she saw "something come out of his penis." Her stepfather ordered her to take a shower and threatened to kill her if she told anyone what had happened.

Ann told Detective Cruz that she did not inform her mother about the November 2009 incident because her mother became depressed as a result of Ann's earlier discovery of sexual abuse in December 2008, and Ann did not want her mother to become depressed again. However, it had "been violating her mind and she wanted to get it off her chest," so she told three of her girlfriends, who encouraged her to tell a teacher. Ann followed her friends' advice.

After Detective Cruz completed her interview of Ann, Detective William Caicedo interviewed Z.G. Initially, Z.G. denied having "domestic problems" with her husband, A.H. When the detective confronted her about an incident a few months earlier, when police were called to her home, she stated "[m]aybe months or a year ago," she and A.H. had been involved in a heated argument over A.H.'s claim that she had not been washing his clothes properly. According to Z.G., the argument escalated when she raised her voice at A.H., which infuriated him, prompting Ann to call the police.

When Detective Caicedo confronted Z.G. about Ann's allegations of sexual abuse by A.H., Z.G. admitted she had "lied" at the beginning of the interview. She proceeded to admit that Ann told her that A.H. "touch[ed] her" when Z.G. was in El Salvador. Z.G. admitted that even though she was aware that her husband had sexually molested her daughter, she nonetheless left her daughter in A.H.'s care when she went to Las Vegas. She explained that when she confronted her husband about molesting Ann, he initially denied it, but a few days later, after she continued to confront him, A.H. finally admitted what he had done. According to Z.G., A.H. told her "Yes, but only one time." He then begged Z.G. for forgiveness.

Z.G. explained to the detective that she knew she had "made a very big mistake" and "that sooner or later, [Ann] was going to speak up." She recognized the consequences of her failure to protect her daughter from A.H., stating "I know that I made a mistake and I have committed a big sin, a very big one in covering [it] up. . . . There's nothing I can say. I have to pay."

At the conclusion of Z.G.'s interview, the police arrested her for endangering the welfare of her child by failing to protect her from further sexual abuse.

Detective Caicedo then proceeded to interview A.H., starting the interview by reading A.H. his Miranda*fn3 warnings and placing him under oath. During the interview, A.H. acknowledged the heated argument with Z.G. when police were called. He also acknowledged that Z.G. had left Ann in his care when she went to Las Vegas, but he denied that he sexually abused Ann. He asserted ...


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