NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent,
P.C., Defendant-Appellant. IN THE MATTER OF O.B., B.C. AND N.C., Minors
Telephonically Argued: April 10, 2014.
Approved for Publication March 5, 2015.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-0315-11.
Amy M. Williams, Designated Counsel, argued the cause for appellant ( Joseph E. Krakora, Public Defender, attorney; Ms. Williams, on the brief).
Mary C. Zec, Deputy Attorney General, argued the cause for respondent ( John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Zec, on the brief).
Noel C. Devlin, Assistant Deputy Public Defender, argued the cause for respondent O.B., a minor ( Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Devlin, on the brief).
Suzanne M. Carter, Designated Counsel, argued the cause for respondents B.C. and N.C. ( Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Carter, on the brief).
Before Judges LIHOTZ, MAVEN and HOFFMAN. The opinion of the court was delivered by MAVEN, J.A.D.
[439 N.J.Super. 406] MAVEN, J.A.D.
Defendant P.C. appeals from a Family Part order determining she neglected the emotional needs of her teenaged daughter O.B. (Olivia). At the commencement of a fact-finding hearing on the complaint filed by plaintiff the Division of Youth and Family Services (the Division) concerning conduct
by B.C., defendant's former husband, the trial judge suggested sua sponte the facts " could rise" to support a finding of neglect against defendant, even though the Division's complaint had not alleged substantive allegations that she had abused or neglected Olivia. Following an adjournment, although the Division's complaint was not amended, the same judge presided over the reconstituted fact-finding hearing reviewing the conduct of both defendant and B.C. We conclude this was error and reverse.
B.C., is Olivia's stepfather and the father of defendant's other children, Brandon and Nicole. The three children spent time with B.C. at his home on weekends.
[439 N.J.Super. 407] On May 25, 2011, the Division received a referral from Olivia's school guidance counselor stating Olivia disclosed that B.C. had engaged in a sexual relationship with her at his home. As a result of the referral, the Bergen County Prosecutor's Office interviewed Olivia, who said the sexual assaults had been occurring since 2009. Olivia had not disclosed the abuse to defendant. A Division caseworker observed the interview.
Later that day, the caseworker interviewed defendant who expressed shock and disbelief at Olivia's allegations. Defendant mentioned she had trouble in the past with Olivia making up stories. Defendant agreed to cooperate and signed a safety plan permitting the Division to interview the children and restraining B.C. from the children.
The next day, a Division caseworker investigated a claim that Olivia was " upset about the way [defendant] ha[d] been treating her" and that defendant " had cursed at her." Defendant denied cursing at Olivia, stated she was " trying to be supportive to all her children" and Olivia's statements were a surprise. When confronted by the caseworker, Olivia denied that defendant cursed at her, but then reported defendant told Brandon that she was going to send her to boarding school. Her brother and sister both reported to the caseworker similar facts. When confronted by the caseworker, defendant stated the children had misunderstood her.
On May 27, Olivia underwent a medical evaluation by Nina Agrawal, M.D. The Division provided Dr. Agrawal its intake information and the screening summary from the initial report of sexual abuse. Dr. Agrawal reported: " The examination does not confirm or deny the possibility of sexual abuse." The report also stated that " the examination should not discount [Olivia's] report of sexual abuse." Based upon " intake information provided by [439 N.J.Super. 408] [the Division]," Dr. Agrawal concluded that defendant was not supportive of Olivia and believed that she was lying. Dr. Agrawal further opined that Olivia was " at risk for recantation due to the mother's failure to support her disclosure. [Defendant's] outward support for B.C. by financially supporting his discharge from jail [wa]s placing the safety of [Olivia] and her siblings at risk for abuse." Finally, Dr. Agrawal recommended a parenting evaluation for defendant.
On June 6, the Division substantiated the sexual assault allegations against B.C. and concluded that the case would be litigated. That same day, the Division filed a verified complaint for care and supervision of Olivia, Brandon, and Nicole. The Division did not substantiate claims of abuse and neglect against defendant, but named her for dispositional purposes only. At the hearing on the return date of the order to show cause, counsel for the Division reported that while defendant continued to assert that she did not believe Olivia, defendant would support her. Counsel further confirmed that the Division's complaint did not allege any claims against defendant and that it was not proceeding against defendant. The court ordered that defendant retain legal and physical custody of Brandon and Nicole, but ordered physical custody of Olivia to continue with her grandmother.
The fact-finding trial against B.C. commenced as scheduled before a different judge. After opening statements and twenty to thirty minutes of testimony by the Division caseworker, the court became concerned regarding defendant's expressed disbelief of Olivia's allegation of sexual abuse. The judge halted the proceedings and questioned " whether defendant's treatment of the child [439 N.J.Super. 409] rose to abuse or neglect." Because defendant was present ...