NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent,
M.K., Defendant-Appellant. IN THE MATTER OF R.K., N.K., Aw.K., W.K., Ab.K., Minors.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 25, 2013 
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-392-11.
Joseph E. Krakora, Public Defender, attorney for appellant (Jill G. Kail, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Renee Greenberg, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, attorney for minors R.K. and N.K. (Todd Wilson, Designated Counsel, on the brief).
Before Judges Grall, Nugent and Accurso.
M.K. appeals a determination of the Family Part. The judge found that she neglected her daughters, R.K. and N.K., in violation of N.J.S.A. 9:6-8.21c(4)(b), by "fail[ing] to protect them after learning that" Sonny,  their older brother, "sexually abused them." The Division of Youth and Family Services (Division) opposes the appeal, but the children's law guardian does not. The law guardian has advised that R.K., who is now emancipated, and N.K., who was returned to the custody and care of her parents at the conclusion of the fact-finding and dispositional hearings, do not support continuation of the order memorializing the finding of neglect.
The Division also charged the girls' father, Mr. K., with abuse and neglect, but those charges were dismissed for failure of proof at the conclusion of the fact-finding hearing. Consequently, Mr. K. has not participated in this appeal.
In a separate proceeding conducted prior to the fact-finding hearing in this case, Sonny was tried on a juvenile delinquency complaint based on his sisters' allegations. Although R.K. and N.K. recanted their allegations prior to the hearing, they retracted their recantations and testified on behalf of the State and in the presence of their mother at Sonny's trial. The judge who heard the evidence in that case concluded that the State did not prove the charges.
The primary question on appeal is whether the judge could determine, without the girls' testimony, that M.K.'s failure to protect them amounted to gross negligence. The judge barred the children's testimony on the law guardian's motion. The Division did not support the motion, and defendants opposed it. Because the children's testimony — either in court or in camera and subject to an appropriate protective order as authorized by Rule 5:12-4(b) — was necessary to a determination of M.K.'s neglect, we reverse and remand for further proceedings.
R.K., N.K. and Sonny are three of the eight children born to M.K. and her husband Mr. K., after they immigrated to the United States from Palestine. Sonny was born in 1989, R.K. in 1994 and N.K. in 1997. Sonny is the eldest of the Ks' children.
The Division had contact with the K family on three prior occasions, none involving allegations of sibling-to-sibling misconduct or abuse. The Division investigated a black eye sustained by an older daughter in 1995 and an allegation that the children were playing outside, without supervision, during school hours in 1998. In February 2010, the Division investigated a report from N.K.'s school advising that the child had said her father had been hitting her and R.K. with his hand and a belt ever since he learned that R.K. was "bisexual." The "referent" also said the girls had been trying "to get into shelters for [a] week." In all three instances, the Division closed the case without litigation.
With respect to the 2010 allegation, the Division concluded that Mr. K.'s disciplinary measures, while less than appropriate, did not amount to "abuse." Before making that determination, the Division interviewed all of the children and their parents, and both parents admitted that Mr. K. hit the children on the back of their necks with an open hand when they did not listen to him. The Division had also suggested alternative means of discipline and placed "homemakers" with the family to observe their interactions before closing that case.
In April 2011, R.K. and N.K. first alleged that their brother Sonny had sexually abused them. At that time, R.K. was sixteen and N.K. was thirteen.
The girls disclosed the sexual abuse after R.K. was located by a police officer investigating a missing persons complaint filed by M.K. and Mr. K. On the morning of April 5, 2011, R.K. left home as if she were going to school. She had told her mother she had an "in-school" suspension, but she actually had a three-day "in-home" suspension for repeatedly cutting a class. When R.K. did not come home at the expected hour, her parents tried but failed to contact R.K. through her friends. Consequently, they notified the police that she was missing.
On the evening of April 6, a police officer, with the assistance of a friend of R.K.'s, located R.K. and brought her to police headquarters. R.K. told him she was afraid her father "was going to kill her." His report indicates that R.K. also told him her father had arranged for her to marry her cousin, which she did not want to do; that her father wanted her to drop out of school and marry; and that he had beaten her about her body with a closed fist and hit her in the face during the summer of 2010, when her brother Sonny told him she had kissed a girl. Finally, the officer's report indicates that R.K. said Sonny tried to sexually assault her when she was five or six and a few times after that; that their mother found them together when she was about seven; and that Sonny had also tried to molest N.K. in the past but had not done so recently.
The police contacted the Division and the Special Victims Unit (SVU) of the Hudson County Prosecutor's Office. The Division assumed legal and physical custody of R.K. on an emergency basis that night, placed her in a foster home and subsequently obtained court approval of the removal. The SVU took the lead in investigating the allegations of sexual abuse.
Officers from the SVU interviewed R.K., N.K. and Sonny on April 7. R.K. and N.K. were interviewed separately, and both were placed under oath and told that their statements were being recorded. Their recorded statements, and the subsequent repetitions of them reported by others, were the only evidence admitted at the fact-finding hearing tending to show what M.K. knew and did about Sonny's alleged sexual abuse.
Some context is needed. There were two bedrooms in the Ks' home for their children — one for the boys and one for the girls. By R.K.'s account, given during the recorded interview, she was about five years old on the night Sonny first assaulted her. It was hot and the children were sleeping in the living room, which had an air conditioner. Sonny was watching a pornographic movie on television. He rolled from the couch on top of R.K. and tried to imitate what he had seen on television. He took her pants off, but not her underwear, and attempted to get his penis in but did not. After that incident, Sonny did the same thing "on and off, on and off, like" — "whenever he got a chance."
The information about what M.K. knew and saw was disclosed during the colloquy that immediately followed R.K.'s statement about Sonny abusing her when "he got a chance." All statements that can be understood to refer to what M.K. saw and did are italicized and in bold-face type.
R.K.: I would sleep on purpose in the room, so he won't do do [sic] it.
Detective: Uh hmmm.
R.K.: [B]ut like my mother would be like why are you sleeping in the room?
Detective: Oh so he would only get it when you're sleep out?
R.K.: On the floor.
Detective: On the floor on one spot?
R.K.: At first, he tried it on the floor, and then my mom, and one night he tried to do it again, and I kicked him, I made loud noise, like I banged on the couch so my mom could hear.
Detective: Uh hmmm.
R.K.: And then my mom woke up and she came out in the living room. Like she came and he heard a noise, so I "kicked him off like really fast, and then she saw him like, get off and then and like on the couch he jumped[, ] and then she saw him and she was like oh and she started yelling, yelling at him, and she told me not to, to make sure I don't tell my dad about this cause my dad would kill him.
Detective: Like what did she tell him?
R.K.: She was like are you crazy she's a little girl. Um I don't think of this, I wouldn't think you would do something like this. You're like, that's your little sister, as, as, I can't say, it's against our religion, especially you're underage and everything you know.
R.K.: [L]ike that, um I don't, I don't remember what he said to her, but I didn't tell my dad. Um I'm not allowed to tell my dad.
Detective: Uh hmmmm.
R.K.: An um after that he did it like sometimes like you know, like on and off. Like he'll would go once a week. I move now, I went to sleep in the room.
R.K.: Cause my mother knows he would try to, so she put me in my own room. But he would try to sneak in my room and try to do it.
Detective: The same way?
R.K.: No, he would like rub, touch, rub and get on top of me.
Detective: Rub what?
R.K.: Like he go like that.
Detective: You don't have to tell me exactly it's okay.
R.K.: He would go like this touch all here (rubbing both of her thighs) he would massage my feet.
Detective: Uh huh.
R.K.: [L]ike that the he would get on top and try to he would just stand there rubbing himself. I don't know if my sister knew but like as we got a little bit older we start talking a little bit and they was like yeah, yeah we notice that, we notice that, we knew that.
Detective: Did they saw [sic] what he did?
R.K.: I don't' know if they was watching when they was sleeping, when, when they were pretending to be sleeping I don't know. I don't know it, I don't know.
Detective: They didn't say that, what did they say exactly?
R.K.: Oh, they was like, oh. One of my sister, I remember texted my girl telling her that he did that to us too, I remember talking about it.
During that interview, R.K. never indicated that M.K. was aware of any incident between her and Sonny other than the one M.K. walked in on. R.K. never mentioned having any conversations with M.K. about Sonny either before or after that incident, but she was asked if she did.
R.K.'s only other discussion of information M.K. had about Sonny's conduct was in the context of talking about N.K. and Sonny. That portion of the interview follows:
Detective: What's your, what's your younger sister[']s name?
R.K.: [N.K.], and after.
Detective: What, How old is she?
R.K.: Thirteen, after he was on me like around ten he stopped, like I got older, and he then like, he like started with her, like he did it once or twice with her I don't know. He did it cause we was all in the living room.
R.K.: And my mom and everybody, and she was in the room and then he was in the room with her, and my mother was like all of us are in the room where's [N.K.] and my brother and then, she, she was like oh she's inside, and then, they, they, they're was in there for long and then my mom walked in on them and then she started yelling the same thing she said to me to him to me.
Detective: Where wa[s], what room were they in?
R.K.: [T]he girls room.
R.K.: And then.
Detective: So what you were all sleeping in one room?
R.K.: No we weren't sleeping, it was morning.
R.K.: [A]nd we all went to sleep in the living room.
Detective: Oh and your mother walk[ed in]?
Detective: Oh, okay.
R.K.: [A]nd she notice like she's miss, like she hasn't been in the living room and she, my sister was crying and we all figure ah he probably did that to her, and later on like years pas[sed] by and my sister um, like we were talking about it cause we were kind of close before and I was like oh you know he did this to me and she was like, like yeah he did the same thing to me too, I was like oh that day and she was like yeah, yeah, yeah he did the same thing on that day, that day.
Detective: Did she describe what happened?
Detective: Just that, okay?
R.K.: I don't, I don't think she was comfortable describing what happened, ah cause she was young she didn't know, yeah and then um like when I was eleven, ten eleven, he would like when we were in the room and I didn't know like we were doing it and but he's like lets play a game and there was a safe. Oh and he was like I switch the light try to open the safe with the lights close and see if it works, and I was like alright. I was an idiot thinking it was a game, so I try to open and he went down on me and it was over and I didn't know.
Detective: How did he do that like?
R.K.: Cause, I was sitting, we were sitting on the floor and he was sitting right here and he just pulled my pants down and started licking.
Detective: Oh okay.
R.K.: And I didn't know what it was, and I was just playing with the safe thinking it was nothing and now I'm older like now I just notice he did that to me. I didn't know what it was called, I didn't know what it was, a sexual thing.
Detective: Uh huh.
N.K. gave a very different account of Sonny's contact with her and her mother's observation of it.
Detective: An you said you have, what was your oldest brother name again?
Detective: [Sonny], now did [Sonny] ever touch you in a way you didn't like?
N.K.: Yeah, when I was like nine.
Detective: Nine, what did he do?
N.K.: Like every time I would sleep, he would like come on top of me.
Detective: Okay what would he do on top of you?
N.K.: I don't know, I, I don't know, every time he like he would come on top of me I would be sleeping. I wake up, I see my mom, I see him get off of me.
Detective: Okay, you don't know what, you would be sleeping and then?
N.K.: Yeah, cause sometime I would get scared, I sleep in the living room with my other sister. If they watch a movie and like fall asleep in the living room.
N.K.: So I sleep with them, and like one time when I turned around when I woke up and turned around I seen him get off me, like so many times.
Detective: Oh okay, but you don't know what happened?
N.K.: Uh uh (shaking head no).
Detective: Have you seen him do this to your ...