DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF CHILD PROTECTION AND PERMANENCY, Petitioner-Respondent,
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued Date: May 1, 2013
On appeal from the Department of Children and Families, Division of Child Protection and Permanency, Agency Docket No. AHU 07-902.
Mark J. Molz argued the cause for appellant.
Julie B. Christensen, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Christensen, on the brief).
Before Judges Axelrad, Sapp-Peterson and Haas.
Defendant D.T. appeals from an order of the Department of Children and Families (DCF), Division of Child Protection and Permanency (Division), affirming the finding of abuse and entering his name in the child abuse registry pursuant to N.J.S.A. 9:6-8.11. We affirm.
Following an investigation that commenced in June 2007, the Division substantiated allegations of sexual molestation by D.T. of T.M., a minor and friend of his son, S.T., when T.M. spent time at D.T.'s home. D.T. requested an administrative hearing and the matter was transmitted to the Office of Administrative Law (OAL) for a contested hearing before an Administrative Law Judge (ALJ). N.J.S.A. 52:14B-1 to -15.
The hearing was held on several dates between March 11, 2011 and April 13, 2012 before ALJ John R. Futey. Three witnesses testified on behalf of the Division: Linda Burnett, the Division's case manager; T.M.'s mother, K.M.; and Dr. Martin A. Finkel, Professor of Pediatrics and the Medical Director of the Child Abuse Research Institute (CARES) within the University of Medicine and Dentistry of New Jersey. The documentary evidence considered by the ALJ consisted of: (1) a June 12, 2007 screening summary; (2) a referral response report; (3) an eight-page contact sheet; (4) a certified CARES evaluation dated June 14, 2007; (5) the Division's documentation of responses; (6) a Department of Children and Families (DCF) findings letter; (7) two DVD interviews of T.M. conducted by the Burlington County Prosecutor's Office (BCPO); and (8) Dr. Finkel's curriculum vitae. For the defense, in addition to D.T.'s testimony, K.T., his spouse, and S.T., his son, testified on his behalf.
The evidence from which the ALJ reached his initial decision and recommendation revealed that on June 12, 2007, the Division received a referral from the BCPO concerning seven-year-old T.M.'s allegation that he was sexually molested by D.T., the father of his friend, S.T., on several occasions when at S.T.'s house. That day, Burnett met with investigators at the BCPO. Although T.M. had been interviewed the previous day when the case was initiated, T.M. requested a second interview because he wanted to disclose more information about D.T. Burnett observed that interview through closed circuit television. She also viewed a video recording of T.M.'s first interview with BCPO Detective Jennifer Ayers.
During T.M.'s initial interview with Detective Ayers, he alleged that D.T. touched him inappropriately during sleepovers with S.T. T.M. disclosed that on one such occasion, D.T. made him take a shower and was present in the bathroom, helping him wash his body while he stood outside the shower. When T.M. exited the shower, D.T. touched his "weenie." T.M. stated that D.T. had also touched him at other times while T.M. was clothed. T.M. refused to comment on whether he had ever touched D.T. as well. He stated these encounters occurred whenever the other children were either asleep or playing elsewhere in the house. T.M. also stated that on one occasion, the abuse occurred while D.T.'s wife was in Arizona.
In his second interview with Detective Ayers, T.M. reported that once, after D.T. made T.M. take a shower, he inserted the tip of his finger into T.M.'s anus while the two of them were in the master bedroom. T.M. stated that sometimes when he slept on a couch located outside D.T.'s room, D.T. would "sneak out" of his room to fondle his penis while he slept. When asked how he knew D.T. touched him if he was asleep, T.M. told the detective that his mother "figured it out" and he believed his mother was right. T.M. reluctantly admitted he touched D.T.'s penis two to three times with his finger. He denied that D.T. had oral contact with his penis or he with D.T's penis, stating "that would be disgusting" and was something he "does not like to talk about."
When asked if he ever touched anybody else in a sexual manner, T.M. stated that he and S.T touched each other's penises. He repeatedly stated D.T. "brainwashed" him to touch D.T.'s penis and S.T.'s penis as well. T.M. also accused D.T. of humping him with his clothes on. He told Detective Ayers he did not tell his mother the details of his initial interview or why he wanted to speak with the detective a second time.
As noted earlier, T.M. did not testify at the administrative hearing. However, the two recorded interviews were entered into evidence. Additional statements attributed to him were introduced through other witnesses.
Burnett testified that in substantiating D.T. for child abuse, she relied upon T.M.'s interviews at the BCPO and his disclosures to Dr. Finkel, who examined him at the direction of the Division. She viewed T.M.'s interviews at the BCPO and spoke to K.M. as part of her investigation. K.M. told her that T.M. often spent time at S.T.'s house because her other child, E.M., was autistic and required much of her attention. K.M. also told her that S.T.'s mother was rarely home, but the family employed an au pair.
K.M. explained to Burnett that T.M. had been exhibiting some age inappropriate sexual behaviors, so she spoke to him about it. She did not describe the behaviors to Burnett. Rather, she told Burnett she asked T.M. where he learned the offensive touching and wanted to know if anyone had touched him. When he didn't respond, she began to list the names of adults with whom he visited. T.M. denied that the first two adults she referenced had touched him but became hysterical and inconsolable when she mentioned D.T.'s name and stated that D.T. had touched him.
Burnett did not speak with D.T. directly. Another caseworker, Philip Yansak, contacted D.T. about the allegations. D.T. denied molesting T.M. or assisting him in the shower.
On cross-examination, defense counsel asked Burnett whether she would have substantiated D.T. for sexual abuse had she known K.M. had kept some facts from her, such as T.M.'s sexually inappropriate interactions with his siblings, his bedwetting, and the fact that following some research on the internet, T.M.'s parents suspected he was being sexually abused. Burnett replied that the missing information should have been revealed but insisted she would not change her opinion that abuse had been substantiated. Burnett admitted she did not ask how many sleepovers T.M. had with S.T., nor did she inquire as to when the last sleepover occurred. She also admitted that T.M.'s statement to Detective Ayers that his mom told him D.T. would sneak out and touch him while he was sleeping raised some issues, but stated she did not believe T.M.'s mom planted the idea of the sexual abuse in T.M.'s head.
Dr. Finkel was qualified, without objection, as an expert in the area of the medical diagnosis of child sexual abuse. Prior to physically examining T.M., Dr. Finkel spoke with T.M.'s parents to obtain the child's medical history and the background information regarding the alleged sexual abuse. He learned from K.M. that once while being bathed, T.M. told K.M. that his "hiney hurts" and K.M. observed a red bruise on his butt. She also told the doctor that T.M. reported to her that he and S.T. touched each other in the bathroom because they thought it was funny. Dr. Finkel testified that K.M. stated she approached S.T.'s mother, K.T., about their sons' behavior, but K.T. dismissed it.
K.M. advised Dr. Finkel that the night before she questioned T.M., she had punished him for touching his two-year-old sister's genitalia while they were in the bathtub together. She stated that she and her husband researched T.M.'s behavior on the internet and thereafter believed that T.M. had been sexually abused. She then explained how she questioned T.M. about his sexually inappropriate behavior and T.M.'s eventual disclosure that D.T. touched him.
During his private interview with T.M., Dr. Finkel asked T.M. why he decided to tell his parents about the abuse, and T.M. responded, "I didn't actually tell. My mom figured it out, " and added that he felt better for having told his mother. T.M. explained that D.T. told him to keep their interactions a secret or T.M. would no longer be invited over. T.M. told Dr.
Finkel that D.T. touched him with "the thing that he pees from." He described D.T.'s genitalia as being the "same as mine but bigger and hairy." T.M. also stated D.T. made him and S.T. touch each other's penises, D.T. made him touch D.T.'s penis, D.T. put his mouth on T.M.'s penis, and D.T. attempted to put his penis into his mouth but he resisted. When asked to describe the sensation of having D.T.'s finger in his buttocks, T.M. stated it felt like "something was going to come out of my butt." T.M. characterized the acts as "disgusting" and ...