On appeal from the Department of Children and Families, Division of Youth and Family Services, Docket No. 08-0935.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Espinosa and Kennedy.
Defendant appeals from a final agency determination of abuse rendered by the Division of Youth and Family Services (DYFS or the Division) pursuant to N.J.S.A. 9:6-8.21(c). We reverse.
DYFS' involvement in this matter began with a referral from the Millville Police Department in May 2008. In March 2008, A.H. ("Anne"),*fn1 a fifteen-year-old girl, told a friend that she had been raped by her uncle, F.M. ("Fred"), one evening during the summer of 2007. She could not identify the date or month but believed the incident occurred in June or July.
Fred's home had been designated as a neutral visitation location for Anne to see her biological father. She regularly visited and slept at Fred's home on the weekends, beginning in 1994, and continuing until March 2008, even though her father had ceased visiting her some time during 2007-08. On these visits, Anne slept in the attic with her two male cousins, seventeen-year-old F.M., Jr. ("Fred, Jr.") and fifteen-year-old A.M. ("Andy"). The only bed in the room was a bunk bed with a twin bed on top and a fold-out futon on the bottom.
On the night in question, Andy was sleeping in the top bunk and both Fred, Jr. and Anne were sleeping on the futon. In her first interview by the police, Anne stated that Fred came into the room at about midnight, wearing pajama bottoms. She reported that he touched her chest for approximately fifteen minutes, touched her vaginal area and then inserted his penis into her for approximately one hour. Anne said Fred removed her clothing and that she attempted to fight him off the entire time he was there. She also stated that Fred, Jr. remained asleep throughout the alleged incident.
Anne continued weekend overnight visits at Fred's home until she reported the assault in March 2008. At that time, there was no physical evidence of an assault. The State declined prosecution.
A DYFS caseworker was assigned and an investigation commenced. When she met with Anne, the caseworker did not ask her to describe what happened to her. In her report, the caseworker wrote that she told Anne "she does not need details about what happened, but explained that she was aware that [Anne] was sexually abused. [Anne] stated yes." The caseworker interviewed Anne's mother and sister, but did not attempt to interview Fred, Jr., Andy or anyone who might have been present at the time of the alleged assault.
The caseworker also arranged for counseling for Anne and for her to be examined by Martin A. Finkel, D.O., of the CARES Institute of the University of Medicine and Dentistry of New Jersey. Dr. Finkel interviewed Anne's mother and then obtained a history from Anne and performed a physical examination. Anne told Dr. Finkel that Fred touched her breast and genital area under her clothing, digitally penetrated her and then penetrated her with his penis. She stated that she felt sick afterward and could not fall asleep. She went to the bathroom to urinate and told Dr. Finkel that it was hard to do so and hurt.
Dr. Finkel's diagnostic assessment stated in part:
The historical information that has been provided clearly details this young girl experiencing a one time incident of age inappropriate genital touching and genital to genital contact. The genital touching that she experienced was perceived as involving penetration into the structures of the vagina; she also describes genital to genital contact but she was uncertain as to the degree of penetration. Based on her physical examination, it appears that any genital to genital contact was limited to penetration into the structures of the vaginal vestibule.*fn2 As a result of the genital touching and genital to genital contact, she complained of discomfort afterwards. . . . Her description of a burning sensation ...