NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. A.E.P.

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                                NOT FOR PUBLICATION WITHOUT THE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 NOS. A-0060-17T3
                                                                     A-0456-17T3

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

A.E.P. and F.G.,

     Defendants-Appellants.
_______________________________

IN THE MATTER OF N.G. and D.R.,

     Minors.
_______________________________

                    Submitted December 18, 2018 – Decided January 25, 2019

                    Before Judges Rothstadt, Gilson, and Natali.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Essex County, Docket
                    No. FN-07-0459-16.
            Joseph E. Krakora, Public Defender, attorney for
            appellant A.E.P. (Beth A. Hahn, Designated Counsel,
            on the briefs).

            Joseph E. Krakora, Public Defender, attorney for
            appellant F.G. (Laura M. Kalik, Designated Counsel,
            on the briefs).

            Gurbir S. Grewal, Attorney General, attorney for
            respondent (Jason W. Rockwell, Assistant Attorney
            General, of counsel; Fatime Meka, Deputy Attorney
            General, on the brief).

            Joseph E. Krakora, Public Defender, Law Guardian,
            attorney for minor N.G. (Melissa R. Vance, Assistant
            Deputy Public Defender, of counsel and on the brief).

            Joseph E. Krakora, Public Defender, Law Guardian,
            attorney for minor D.R. (Margo E.K. Hirsch,
            Designated Counsel, on the brief).

PER CURIAM

      In these consolidated appeals, defendants, who are the mother and

stepfather of a daughter, appeal from a February 28, 2017 order finding that they

abused and neglected their daughter.       The family judge, Judge James R.

Paganelli, found that the stepfather, A.E.P. (Alberto), sexually abused the then-

seventeen-year-old daughter, N.G. (Natalia), and that the mother, F.G.




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(Fabiana),1 neglected Natalia by failing to adequately protect her after the sexual

abuse was disclosed and by failing to get her appropriate treatment.

        Alberto argues that the Division of Child Protection and Permanency

(Division) failed to prove he abused Natalia and the family court improperly

shifted the burden of proof to him. Fabiana contends that there was insufficient

evidence to establish that she neglected Natalia either in failing to adequately

protect her or failing to provide adequate medical care. The Division and the

Law Guardian representing Natalia urge us to affirm the findings of abuse and

neglect.    The Law Guardian representing Natalia's younger brother, D.R.

(Dylan), argues that there was insufficient evidence to support the findings of

abuse and neglect as to either Alberto or Fabiana. Having reviewed the record

in light of the applicable law, we affirm substantially for the reasons explained

by Judge Paganelli in his thorough opinion, read into the record on February 21,

2017.

        The facts and evidence are detailed in Judge Paganelli's opinion, which he

rendered after a nine-day evidentiary hearing.       Accordingly, we need only




1
  We use initials and fictitious names for the parties and children to protect their
privacy interests and to preserve the confidentiality of the record. See R. 1:38-
3(d)(12).
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summarize some of the relevant facts. Fabiana is the mother of several children,

including Natalia, Dylan, and an adult son, F.G. (Francis).

      In May 2016, Natalia reported to the police that Alberto had sexually

molested her in late February 2016. In that regard, Natalia stated that when she

was in the family home with Alberto, he called her over, lifted up her sweater

and grabbed her breasts. When Natalia attempted to move away from Alberto,

he grabbed the back of her pants and tried to pull them down.

      While Natalia did not report the alleged assault to the police until May

2016, she did tell family members about the incident. Shortly after the incident,

Natalia informed her older brother Francis of the assault. The day after the

incident, a maternal uncle conducted a family meeting to address Natali a's

statements that she had been assaulted by Alberto. The meeting was attended

by Fabiana, Alberto, Francis, the maternal uncle, and Natalia. Alberto denied

the assault and Natalia became upset because she felt that no one at the meeting

believed her.

      Thereafter, Natalia began cutting herself, her behavior changed, and later

she reported that she attempted suicide. The counselor at Natalia's school

testified that after February 2016, Natalia spent more time at school and began

referring to her stepfather as her mother's husband, rather than as her stepfather.


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Natalia also saw the school psychiatrist several times, and there was a

determination that she required additional services, including an evaluation,

outside of school. The school counselor provided Fabiana with the name s of

three organizations that could conduct such an evaluation. Fabiana, however,

failed to arrange any evaluation. In March 2016, Fabiana was also aware of and

discussed with the school counselor that Natalia was cutting herself. Fabiana,

however, did not disclose to the counselor that Natalia had reported that she had

been sexually abused by Alberto.

      In May 2016, Natalia and Fabiana argued over Natalia smoking in the

house. As a result of that argument, Natalia left the home that night in a light

dress and without shoes. The police were alerted to Natalia's situation by a

neighbor who had provided Natalia with a jacket and shoes. After Natalia was

taken to the police station, she reported the sexual abuse by Alberto. That

information was then referred to the Division.

      Thereafter, the Division conducted an investigation and obtained

temporary custody of Natalia and care and supervision of Dylan. The Division

also filed a complaint for custody of Natalia and care and supervision of Dylan,

which charged Fabiana and Alberto with neglect and abuse.




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      At the evidentiary hearing, Judge Paganelli heard testimony from a

number of witnesses, including Natalia, Fabiana, Alberto, the maternal uncle,

Francis, Division workers, and a Division expert. Natalia testified in the judge's

chambers in accordance with procedures agreed to by all parties.

      Based on the evidence presented, Judge Paganelli made detailed

credibility and factual findings. Judge Paganelli credited Natalia's testimony

concerning the sexual abuse and he found Alberto's denial incredible. Judge

Paganelli also found Fabiana's testimony to be confused and largely incredible.

      Judge Paganelli then found that Alberto had sexually abused Natalia as

defined by  N.J.S.A. 9:6-8.21(c)(3) and  N.J.S.A. 9:6-8.84. Judge Paganelli also

found that Fabiana had neglected Natalia in two ways: (1) failing to exercise a

minimum degree of care by not protecting Natalia from Alberto after she learned

of the sexual abuse; and (2) failing to get Natalia appropriate treatment,

including appropriate medical care.

      On this appeal, Alberto argues that the Division failed to meet its burden

of proof in establishing abuse. He also argues that the family court improperly

shifted the burden to him. Fabiana contends that there was insufficient evidence

to prove that she failed to protect Natalia or failed to provide adequate medical

care to Natalia. We are not persuaded by any of these arguments.


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      Our scope of review of a trial court's fact findings is limited. N.J. Div. of

Youth & Family Servs. v. M.M.,  189 N.J. 261, 278-79 (2007). We defer to the

factual findings of the family court if those findings are "supported by adequate,

substantial, and credible evidence" in the record. N.J. Div. of Youth & Family

Servs. v. R.G.,  217 N.J. 527, 552 (2014) (citing N.J. Div. of Youth & Family

Servs. v. E.P.,  196 N.J. 88, 104 (2008)). A decision should be reversed or

modified on appeal only if the findings were "so wholly un-supportable as to

result in a denial of justice[.]" Colca v. Anson,  413 N.J. Super. 405, 413 (App.

Div. 2010) (alteration in original) (quoting Meshinsky v. Nichols Yacht Sales,

Inc.,  110 N.J. 464, 475 (1988)).      We review de novo a trial court's legal

conclusions. N.J. Div. of Youth & Family Servs. v. S.I.,  437 N.J. Super. 142,

152 (App. Div. 2014) (citing Manalapan Realty, LP v. Twp. Comm. of

Manalapan,  140 N.J. 366, 378 (1995)).

      In a child abuse and neglect case, the burden of proof is on the Division

to establish the elements of abuse and neglect. N.J. Div. of Youth & Family

Servs. v. J.Y.,  352 N.J. Super. 245, 266 (App. Div. 2002) (citing  N.J.S.A. 9:6-

8.46(b)). The Division must prove that the child has been abused or neglected

by a preponderance of the "competent, material and relevant evidence." N.J.

Div. of Youth & Family Servs. v. P.W.R.,  205 N.J. 17, 32 (2011) (citing N.J.S.A.


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9:6-8.46(b)). "Abuse and neglect cases are generally fact sensitive. Each case

requires careful, individual scrutiny." Id. at 33.

      Applying those standards and law, all of the fact findings made by Judge

Paganelli are supported by substantial, credible evidence in the record. Judge

Paganelli also correctly summarized the law and correctly applied his factual

findings to the law. Contrary to the argument made by Alberto, the burden of

proof was never shifted to him. While Judge Paganelli at one point questioned

why certain witnesses were not called by the Division, he never shifted the

burden of proof to Alberto. Judge Paganelli also identified and made factual

findings sufficient to support the finding of abuse by Alberto and neglect by

Fabiana.

      Affirmed.




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