July 10, 2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
E.R., DEFENDANT-APPELLANT. IN THE MATTER OF M.L.A. AND A.G., MINORS.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-377-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 21, 2012 -
Before Judges Fuentes, Koblitz and Haas.
In this Title 9 action brought by the Division of Youth and Family Services (the Division), defendant E.R. appeals from the judgment of the Family Part finding she abused and neglected her now adult daughter M.L.A. by violating a safety plan entered by the Division through which defendant agreed not to permit her paramour A.G., Sr., to have access to M.L.A. or to enter the house where defendant and M.L.A. resided. The safety plan was predicated upon M.L.A.'s accusation that A.G., Sr. had sexually molested her from ages twelve to fifteen. We affirm.
Defendant has three children, two daughters, M.L.A.*fn1
and M.R., who are both now over the age of majority, and a
son A.G., Jr., who is now five years old. A.G., Sr. is the boy's
biological father. During a two-year period from January 2006 through
May 2008, the Division received three referrals alleging defendant had
neglected her two then-teenaged daughters.
The first report in 2006 alleged defendant had been seen visibly intoxicated and urinating on herself. The reporter was especially concerned because defendant was six weeks pregnant at the time. The caller also alleged that defendant had been diagnosed with, and was being treated for, major depression with psychotic features. A few days later, the Division received a call from an individual stating that M.L.A., who was fourteen years old at the time, was seen going to school in clothes stained with menstrual blood, while also exhibiting other indications of extremely poor personal hygiene. Upon further investigation, the Division deemed both allegations unfounded.
The Division received another referral in 2007 alleging that M.L.A. had failed the eighth grade due to poor attendance. She was also falling asleep during class. The reporter again alleged that M.L.A. had serious problems with personal hygiene, repeatedly wearing filthy clothes to school. At a meeting with school authorities, family members appeared to be under the influence of illicit drugs. Once again the allegations were deemed unfounded; the Division closed the case in 2008.
The incident that gave rise to this appeal occurred two years later. On June 9, 2010, the Division received a referral alleging that defendant's live-in paramour, A.G., Sr., had sexually molested M.L.A. from ages twelve to fifteen. The reporter also alleged that M.L.A. had told defendant about the abuse but defendant "did not believe the molestation occurred."
M.L.A. confirmed the allegations of sexual abuse in an interview conducted that same day by Division caseworker Wyonia Muir. According to M.L.A., A.G., Sr. sexually abused her on three occasions, starting when she was twelve years old and ending when she was fifteen years old. There was also one incident of physical abuse that occurred when A.G., Sr. threw a water bottle at M.L.A.'s face after she came to her mother's defense in an argument between A.G., Sr. and defendant. M.L.A. also told Muir that A.G., Sr. smoked marijuana and regularly consumed alcohol in the house. M.L.A. was seventeen years old at the time of her interview with Muir.
Defendant told the Division investigator that she did not believe her daughter's allegations. Despite her misgivings about her daughter's veracity, however, defendant agreed to obtain a restraining order against A.G., Sr. on M.L.A.'s behalf. That same day, the Division assigned homemakers to defendant's residence on a twenty-four hour basis and established a safety plan pursuant to which defendant was required to keep A.G., Sr. away from the children.
Despite her ostensible commitment to her daughter's safety, defendant failed to adhere to the Division's safety plan. On June 10, 2010, the homemaker on duty reported to the Division that at approximately 12:30 a.m., A.G, Sr. attempted to return to defendant's residence and was rebuffed only after the homemaker told him to leave. According to the Division caseworker, when she contacted defendant to inform her about this incident, defendant candidly admitted that A.G., Sr. had been to her residence the night before and she told him he could not stay. Despite that, defendant also admitted that she subsequently allowed A.G., Sr. to enter the home, and she did not secure the restraining order against A.G., Sr. to preclude him having any contact with M.L.A. because she thought her daughter had lied about the abuse. Defendant had thus decided to remain loyal to A.G., Sr. In fact, the Division's records show that defendant stated that she "wants nothing to do with her daughter."
That same day, the Division executed an emergency removal of both M.L.A. and A.G., Jr. pursuant to N.J.S.A. 9:6-8.29 and N.J.S.A. 9:6-8.30. Four days thereafter, the Division filed an order to show cause (OTSC) and verified complaint in the Family Part seeking an order granting it custody of defendant's two minor children. On the return date of the OTSC, the court directed that the children remain in the custody of the Division and ordered defendant and A.G., Sr. to attend domestic violence counseling. The court also directed defendant and M.L.A. to attend family counseling and the children to undergo a medical evaluation at the Audrey Hepburn Children's House. The court also restrained A.G., Sr. from having any contact with M.L.A., directed him to submit to a psychological evaluation, and awarded him supervised visitation with his biological son A.G., Jr. Defendant was likewise limited to supervised access to the children.
On July 27, 2010, Dr. Paulett Diah, M.D. examined M.L.A. at the Audrey Hepburn Children's House to determine whether there was any physical evidence to corroborate her claims of sexual abuse. Based on this examination, Dr. Diah could neither confirm nor deny the allegations of sexual abuse. Dr. Diah nevertheless noted that M.L.A.'s "consistent disclosure should not be discredited" based solely on the inconclusive results of the examination.
Dr. Vivian Chern Shnaidman, M.D. performed a mental health evaluation of defendant on August 4, 2010. Dr. Chern Shnaidman diagnosed defendant with adjustment disorder with depressed mood, and personality disorder, not otherwise specified (NOS), with borderline and dependent features. Dr. Chern Shnaidman found that defendant "does not accept responsibility for her own actions and mistakes in life." Dr. Elouise J. Berry-McBride, Ph.D., a staff psychologist at the Audrey Hepburn Children's House, performed a psychosocial evaluation on M.L.A. on August 19, 2010. Dr. Berry-McBride opined that M.L.A.'s allegations of sexual abuse, exposure to domestic violence, exposure to alcohol abuse, and neglect were clinically supported.
Division caseworker Muir and Dr. Chern Shnaidman testified at the fact-finding hearing consistent with the facts described earlier. By the time the case reached the trial court in the form of a formal fact-finding hearing, M.L.A. had reached the age of majority. Defendant moved to dismiss the abuse and neglect charges, arguing the Family Part did not have jurisdiction because the alleged victim was not a child under the age of eighteen. The court denied defendant's motion to dismiss. Given the sensitive nature of the allegations, the court also decided to allow M.L.A. to testify in camera. Despite defendant's initial objection to this procedure, the parties ultimately reached an agreement, permitting M.L.A. to testify in the trial judge's chambers.*fn2
Under this agreement, counsel for both sides were present during M.L.A.'s testimony in the judge's chambers; defendant was given real-time audio access to the in camera proceedings while she remained seated in the courtroom. This same audio link permitted two-way communication between defendant and her counsel, thereby given them the means to confer after the witness's direct and cross-examination to determine if additional questioning was necessary.
M.L.A. testified consistent with the statements she made to the Division when she was first interviewed by Muir. The first incident of impropriety with sexual overtones occurred when she was twelve years old, approximately two months after A.G., Sr. moved into the apartment. She had been standing on a stepladder in her room, when A.G., Sr. entered the room.
[H]e said that he wanted to hold the ladder or something so I wouldn't fall. And I told him it's okay, you know, the stepladder, I'm probably not going to fall. And then he started to touch my thigh, like kind of like stroke it a little bit. So I got down and I got this Betty Boop like eye thing, you put on your eyes, I don't know what you call it. But I showed it to him trying to distract him, and he put it on me and then kissed me [on the lips], so I got out [of] the room.
The second incident occurred when M.L.A. was twelve or thirteen years old; M.L.A. and defendant were both sleeping in defendant's bed. A.G., Sr. came into the bedroom, and "reached over my mother and me and he started touching me in a private area." On further questioning to ascertain what M.L.A. meant by the words "private area," she testified that A.G., Sr. touched her "on top of [her] vagina," without penetration. She was scared and pretended to be asleep until "eventually the touching just stopped[.]" At the time, she was wearing pajamas consisting of pants and a shirt.
M.L.A. reported the inappropriate touching to her older sister, M.R.*fn3 A week thereafter, defendant "pulled" M.L.A. into a room in which A.G., Sr. and M.R. were also present, and asked her if A.G., Sr. had touched her. According to M.L.A., she left without saying anything in response to her mother's question. When asked on direct examination to explain her conduct, M.L.A. stated: "I really didn't want to talk about it. And it was kind of scary, him[, A.G., Sr.,] being in the room."
The final incident occurred when M.L.A. was fifteen years old. She was on the floor by the front door, crying, after her mother threatened to leave the home. A.G., Sr. came over seemingly to comfort M.L.A. and fondled her breasts. She pushed him away without further incident. M.L.A. believed that A.G., Sr. may have been at least partially intoxicated during the first and last incident because his breath had a strong odor of alcohol.
According to Division caseworker Muir, defendant knew that her daughter had accused A.G., Sr. of sexually inappropriate behavior. Defendant nonetheless steadfastly refused to believe her daughter's account of events because M.L.A. did not personally confront A.G., Sr. with these accusations. As a last attempt to convince her mother, M.L.A. testified that, when she reached age seventeen, she reported the incidents to a school social worker.
Based on this evidence, the court found the Division had sustained it burden of showing defendant abused or neglected her minor daughter by failing to take the action necessary to protect her from being sexually molested by A.G., Sr. It is from this judgment that defendant appealed.*fn4
Our scope of review here is limited. We are bound to give great deference to the Family Part's findings because of its "special jurisdiction and expertise in family matters . . . ." Cesare v. Cesare, 154 N.J. 394, 413 (1998); N.J. Div. of Youth & Family Servs. v. H.B., 375 N.J. Super. 148, 172 (App. Div. 2005). The court's assessment of a witness's credibility is "entitled to deferential respect by the reviewing court." H.B., supra, 375 N.J. Super. at 172 (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). We should thus treat the trial court's findings as binding so long as they are supported by "adequate, substantial and credible evidence." Rova Farms, supra, 65 N.J. at 484; see also Cesare, supra, 154 N.J. at 411-12.
Defendant argues the evidence does not support a finding of abuse and neglect. We disagree. A child is deemed "abused or neglected" if he or she is less than 18 years of age and his or her parent or guardian, (1) inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ; . . . [or] (3) commits or allows to be committed an act of sexual abuse against the child . . . . [N.J.S.A. 9:6-8.21(c)(1) and (3).]
A finding of abuse or neglect must be "based on a preponderance of the evidence," and the record must consist only of "competent, material and relevant evidence . . . ." N.J.S.A. 9:6-8.46(b). A finding of abuse or neglect cannot be based solely on "previous statements made by the child relating to any allegation of abuse or neglect" without further corroboration. N.J.S.A. 9:6-8.46(a)(4).
Here, the findings of abuse and neglect were substantiated by M.L.A.'s testimony, which the judge found credible. Defendant's misconduct lies in her steadfast loyalty to her paramour while ignoring her legal responsibility to protect her daughter from his unwelcome and inappropriate sexual advances. Indeed, defendant admitted to allowing her paramour back into her home, with potentially unfettered access to M.L.A., despite her previous commitment to the Division to do otherwise.
Although we are satisfied that none of the arguments raised by defendant have sufficient merit to warrant extensive discussion in a written opinion, Rule 2:11-3(e)(1)(E), we nevertheless provide the following brief comments.
Defendant argues that M.L.A. could not have sought the protections of N.J.S.A. 2A:84A-32.4, which allows a minor, sixteen years of age or younger, to testify via video in an action brought pursuant to N.J.S.A. 9:6-8.21, because she was above age sixteen at the time she testified. Although this argument appears to have substantive merit, defendant's agreement to the procedure and manner employed by the court to receive M.L.A.'s testimony renders this issue moot. Independent of this consideration, the procedure utilized here in the agreement contained adequate safeguards to protect and preserve defendant's right to confront the witness against her. Defendant also had the means to confer with counsel during the witness' testimony, thereby assisting in her own defense. Any possible error associated with this approach is clearly harmless and incapable of impeaching the correctness of the court's ultimate ruling. See A.B. v. Y.Z., 184 N.J. 599, 606 (2005).