DIVISION OF CHILD PROTECTION AND PERMANENCY v. D.R.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 
 

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

D.R., A.C. and B.E.,

Defendants,

and

T.W.,

Defendant-Appellant.

IN THE MATTER OF A.C. and L.H., Minors.

December 9, 2016

 

Submitted October 26, 2016 Decided

Before Judges Fuentes, Simonelli and

Gooden Brown.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FN-08-0121-13.

Joseph E. Krakora, Public Defender, attorney for appellant (Thomas G. Hand, Designated Counsel, on the brief).

Christopher S. Porrino, Attorney General, attorney for respondent (Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Arielle E. Katz, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors A.C. and L.H. (Cory H. Cassar, Designated Counsel, on the brief).

PER CURIAM

Defendant T.W. ("Tom")1 appeals from an order of the Family Part finding that he sexually abused a seven-year-old girl then under his care and supervision, thereby committing an act of child abuse under N.J.S.A. 9:6-8.21(c)(3). Defendant argues the trial court's findings were not supported by sufficient competent evidence. We disagree and affirm substantially for the reasons expressed by Judge Kevin Smith in his Memorandum of Opinion dated June 28, 2013. We derive the following facts from the record developed before the Family Part.

In December 2012, thirty-one-year-old D.R. ("Donna") and her two children, nine-year-old A.C. ("Jack") and seven-year-old L.H. ("Jill"), were residing at the Volunteers of America (VOA) shelter in the City of Camden. On December 27, 2012, the Division of Child Protection and Permanency ("the Division") received a referral from Andrea Haines, a social worker at Cooper University Hospital. According to Haines, Donna had reported to the emergency room, accompanied by her two children, to seek treatment for "flu-like symptoms." In the presence of her children, Donna told the medical staff that she had snorted heroin on a daily basis for the past two-and-one-half months. Donna stated that although she participated in a daily methadone maintenance program operated by the Urban Treatment Center, attended group sessions, and met with a counselor, she had been unable to stop using heroin. Donna asked the hospital staff to help her find a detoxification program.

Division caseworker Michelle Leyman met with Donna at the VOA shelter later that same day. Donna told Leyman that despite her methadone treatment, she had been using heroin on a daily basis for the past two-and-one-half months. Leyman also interviewed the children outside of their mother's presence. When questioned about his mother's drug addiction, Jack first mentioned concerns about his younger sister, Jill. Jack told Leyman that Tom, his mother's former boyfriend, had "touched [Jill] in an inappropriate spot and licked her." According to Jack, this occurred when their mother left the children alone with Tom at a motel. Jack told Leyman that he did not personally see the abuse because he was asleep at the time; however, Jill told him Tom had done this to her.

When Leyman questioned Donna about these allegations, she confirmed that on December 16, 2012, Jill alleged Tom had previously "touched [her] and 'licked her in the private area.'" Donna also told Leyman that she filed a domestic violence2 complaint against Tom because he had punched her in the face and had followed her to the shelter to threaten her. At the fact-finding hearing, Donna testified that she reported Jill's allegations against Tom to the Camden Police Department. According to Donna, the police told her "to go get a Restraining Order against [Tom]."

Leyman interviewed Jill on December 27, 2012.3 According to Leyman's testimony, Jill said there were times when she did not feel safe. Jill told Leyman that Tom had touched her while they were staying at the Mayfair Motel. The child was reluctant to provide specific details of the abuse. Based on Donna's severe and uncontrolled heroin addiction, as well as the sexual abuse allegations against Tom, the Division removed Donna's children from her custody.

On January 14, 2013, the Division notified the Gloucester County Prosecutor's Office (GCPO) concerning Jill's sexual abuse allegations against Tom. GCPO Detectives interviewed the children that same day and took their formal statements. On the following day, January 15, 2013, the Detectives interrogated Tom at the Cumberland County Jail. Tom admitted to lying on the bed with Jill while he was taking care of her and her older brother at the Mayfair Motel. He also confirmed that Jack was sleeping on the floor at the time. Tom denied engaging in any sexual activity with Jill. The detectives informed Tom that the GCPO was going to charge him with first degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), and second degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a).

The Division also presented the testimony of Dr. Martin A. Finkle, a physician who specializes in the treatment of child sexual abuse. Dr. Finkle evaluated Jill and spoke to her for approximately twenty-five minutes. Jill told Dr. Finkle that Tom had touched her in her "bad spot," while pointing to her genitalia. The child told him this occurred when Tom was caring for her and Jack at the Mayfair Motel. When Dr. Finkle asked who was allowed to touch her private parts, Jill responded: "Nobody." Jill also told Dr. Finkle that Tom had performed cunnilingus on her.

Dr. Finkle noted that the child was upset and very embarrassed throughout the interview. Based on the nature of the abuse, Dr. Finkle did not find any physical or forensic evidence to corroborate the child's account. However, he emphasized that absent abuse, there was "no way that a young lady like this would know about oral genital activities[.]" Finally, Dr. Finkle opined that this experience may cause profound and long-lasting psychological trauma to Jill. He recommended Jill receive trauma-focused cognitive behavioral therapy.

Against this record, Judge Smith found the Division established, by a preponderance of the evidence, that Tom abused Jill pursuant to N.J.S.A. 9:6-8.21(c)(3) and (c)(4)(b). Both the Division and the Office of the Law Guardian urge us to affirm the Family Part. Our standard of review is well-settled.

We accord deference to the Family Court's fact-finding in part because of the court's "special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998). However, that deference is perhaps tempered when the trial court did not hear testimony, or make credibility determinations based on the demeanor of witnesses. Cf. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009). ("[W]hen no hearing takes place, no evidence is admitted, and no findings of fact are made, . . . appellate courts need not afford deference to the conclusions of the trial court."). We shall uphold the court's fact finding if supported by sufficient, substantial and credible evidence in the record. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). However, we will not hesitate to set aside a ruling that is "wide of the mark." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 38 (2011).

[New Jersey Div. of Child Prot. & Permanency v. J.D., ____ N.J. Super. ____, ____ (App. Div. 2016) (slip op. at 17 18).]

Here, Judge Smith carefully reviewed the evidence presented by the Division and found, by a preponderance of the evidence, that Tom sexually abused Jill while the child was under his care and supervision. The Legislature has defined an "abused or neglected child" as "a child less than 18 years of age" against whom a parent or guardian has "commit[ed] or allow[ed] to be committed an act of sexual abuse[.]" N.J.S.A. 9:6-8.21(c)(3). The Legislature further defined "guardian" to include the "paramour of a parent, or any person, who has assumed responsibility for the care, custody, or control of a child[.]" N.J.S.A. 9:6-8.21(a).

The evidence presented by the Division also established that Tom was Jill's guardian at the time he sexually abused her. We thus affirm substantially for the reasons expressed by Judge Smith in his Memorandum of Opinion.

Affirmed.

1 Pursuant to Rule 1:38-3(d), we use initials and fictitious names to protect the confidentiality of the participants in these proceedings.

2 Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35.

3 Leyman testified that prior to her involvement in this case, she had received specific training on how to interview children victimized by sexual abuse.