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New Jersey Division of Youth and Family Services,*Fn1 v. C.O

November 27, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-292-10/FN-02-333-10.

Per curiam.



Submitted October 10, 2012

Before Judges Fisher, Alvarez, and Waugh.

Defendant S.H. (Sally*fn2 ) appeals the Family Part's December 6, 2011 order finding that she had subjected her daughter A.H. (Amy) to "abuse or neglect" within the meaning of N.J.S.A. 9:6-8.21. We affirm.


We discern the following facts and procedural history from the record on appeal.

Sally and C.O. (Charles) had a brief romance which ended several months before Amy was born in November 2006. Because of Sally's resistance to allowing Charles to have any parenting time with Amy, there was protracted litigation in the Family Part. The judge handling the non-dissolution matter expressed concern about Sally's desire for control that was not necessarily in Amy's best interest. Because of the litigation, Charles was not able to have any contact with Amy until shortly before her first birthday, at which time he began supervised parenting time. Charles was eventually accorded unsupervised parenting time on a weekly basis.

Amy came to the Division's attention on April 6, 2010, after Sally took Amy to Hackensack University Medical Center and reported that Amy had disclosed that Charles had inserted a vibrating device into her vagina the previous day. When a Division caseworker and a police detective interviewed Sally at the hospital, they learned that the alleged assault had taken place during parenting time in New York State, where Charles resides. Consequently, the police investigation was referred to the police in the county in which Charles resided, and the initial child abuse investigation was referred to the county's Child Protective Services (CPS) agency. The Division, however, remained involved because Amy was a New Jersey resident.

The police in New York concluded that there was no evidence of abuse. That conclusion was based, in part, on the following:

(1) Amy's physical examination revealed no signs of abuse, (2) Sally and her mother gave conflicting accounts concerning Amy's alleged disclosure and their actions, and (3) interviews with guests at a party attended by Charles and Amy at the time of the alleged abuse produced no evidence supporting the allegation.

Both the Division and the CPS agency also concluded that there had been no sexual abuse. In addition to the results of the medical examination, those determinations were based, in part, upon the following: (1) photographs taken of Amy's genital and anal area on April 5 did not show any injury in the vaginal area,*fn3 (2) a video of the party attended by Charles and Amy during the visit at issue showed Amy playing happily and in no visible distress, and (3) the conclusion by the Center for Evaluation and Counseling (CEC) that it could not validate allegations of sexual abuse and its concerns that statements made by Amy had been prompted by Sally.

While the investigation was taking place, Sally continued to make additional allegations of sexual and other abuse against Charles, none of which were substantiated. Sally also insisted that Amy have an additional invasive physical examination and tests that were, in the Division's opinion, unwarranted in light of the results of the initial physical examination. The results of the additional examination and testing involved no indication of sexual abuse.

The Division ultimately concluded that Sally's continuing conduct was harmful to Amy. Consequently, it filed a complaint for care and supervision on May 13. A Family Part judge issued an order to show cause on May 13. The order gave joint legal custody to Sally and Charles, but residential custody of Amy was transferred to Charles. The Division was awarded "care and supervision." The Law Guardian Program was directed to assign a law guardian for Amy. The order also directed that the parties and Amy participate in evaluations by CEC.

The return on the order to show cause was June 29. Case management conferences were held in July, August and September. The fact-finding hearing began with opening statements in November and continued on twelve trial days during December (two days), January 2011 (one day), February (three days), March (four days), April (one day), and July (one day). A total of sixteen witnesses testified, of whom seven were mental health professionals.

On December 6, 2011, Judge Bonnie J. Mizdol issued a written opinion in which she determined that the Division had sustained its burden of proof. She summarized her conclusions as follows:

Based on the totality of the evidence, it is clear to this Court that [Sally] has exhibited a pattern of reckless disregard and that harm to [Amy] has resulted. [Amy] has been subjected to repeated unnecessary medical, physical and psychological examinations. [Sally] has disregarded the fact that her conduct would cause [Amy] harm by planting suggestive seed after seed to elicit disclosures of sexual abuse which simply did not exist. The Court finds that [Sally] attempted to shape and manipulate the child's behavior to further her goal to isolate [Charles] from any meaningful parental relationship with his ...

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