NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. L.M and R.T., S.J., and M.S

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5310-18T2

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

Plaintiff-Respondent,

L.M.,

Defendant-Appellant,

and

R.T., S.J., and M.S.,

Defendants.
_____________________________

IN THE MATTER OF F.T.,
J.J., C.K.J., and J.S., minors.
_____________________________

Submitted December 1, 2020 – Decided December 21, 2020

Before Judges Haas, Mawla, and Natali.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Gloucester County,
Docket No. FN-08-0119-16.

Joseph E. Krakora, Public Defender, attorney for
appellant (Robyn A. Veasey, Deputy Public Defender,
of counsel; Ilea Anne Kozak, Designated Counsel, on
the briefs).

Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Amy Melissa Young, Deputy
Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minors (Meredith Alexis Pollock, Deputy
Public Defender, of counsel; Melissa R. Vance,
Assistant Deputy Public Defender, of counsel and on
the brief).

PER CURIAM

Defendant L.M. ("Laura"1) appeals from a May 20, 2016 judgment finding

she committed abuse or neglect of her children F.T. ("Fiona"), J.J. ("John"),

C.K.J. ("Chloe"), and J.S. ("Julie"). We affirm.

The following facts were adduced at the trial of this matter. Laura is the

biological mother of the children. R.T. ("Roger") is the father of Fiona, S.J.

("Sean") is the father of John and Chloe, and M.S. ("Matthew") is Julie's father.

1
We utilize fictitious names to preserve confidentiality. R. 1:38-3(d)(12).
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2
This case began on November 23, 2015, when Laura, who was then

residing in Philadelphia, contacted the Division of Child Protection and

Permanency (Division) requesting housing assistance and services for the

children. At the time, the children were residing with their maternal

grandparents, "Jane" and "Bob," in New Jersey for approximately three months.

The children's ages were as follows: Fiona, thirteen; John, six; Chloe, four; and

Julie, three.

On December 2, 2015, the Division received a referral from the

Pennsylvania Department of Human Services (DHS), advising they previously

opened a case against Laura for sexual abuse of the children, which had just

closed. The reporter advised the children had been residing with Jane and Bob

since August 27, 2015 and needed therapy to address the sexual abuse. The

reporter further disclosed Sean and Laura had criminal histories; Sean was

diagnosed with paranoid schizophrenia but was not receiving treatment; Laura

had bi-polar and personality disorder; Sean smoked PCP and marijuana; and

both Laura and Sean heavily consumed alcohol.

On December 3, 2015, the Division interviewed the children and the

maternal grandparents at their residence. The children reported they liked

staying with their grandparents and did not like living with Laura because she

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would do "bad things." Fiona explained she felt safe at her grandparents' home,

was stable there, did not want to leave, and never wanted to return to Laura.

John also stated he felt safe with his grandparents and did not feel safe wi th his

mom because Laura and Sean would touch his "pee-pee" and "butt."

The following day, the Division filed an order to show cause to remove

the children, and formally placed them with Jane and Bob pending the return

hearing on its application. On December 8, 2015, during the hearing on its

removal application2, the Division received a referral alleging Jane was unstable,

abused prescription drugs and alcohol while caring for the children, and

mistreated other family members.

As a result, a Division caseworker visited Jane and Bob's residence and

spoke with Fiona, who was home alone. Fiona reported she was well fed and

denied any alcohol abuse by her grandparents. She reported John told her about

the sexual abuse committed by Laura and Sean and recounted a time when his

parents told him to lick Chloe's private area. Fiona also stated when she asked

Chloe if her parents licked her, she "just looks away and down and said yes. "

2 The December 8, 2015 order granted the Division custody of the children and
granted Laura and Sean supervised visitation by the Division or Division
approved supervisors. Visitation with Fiona was at Fiona's discretion.
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Fiona also revealed she witnessed many instances of physical violence

between Laura and her boyfriends, as well as her siblings' fathers. She described

constantly being hit and choked by Laura, especially when she was drunk. She

recalled an incident when Laura was drunk and asked her "if she would die for

God and [Fiona] said no, so [Laura] threw her bottle of vodka into the fireplace

and began to hit [Fiona] and choked her. She also tried to put [Fiona's] head in

the fire." Fiona stated she asked Sean for help, but he did nothing.

When Jane and Bob and the younger children returned home, two police

officers approached the door and stated Laura came to the police station

claiming the children were not being cared for. The Division worker explained

the events that occurred earlier in the day and produced documents indicating

placement of the children with their grandparents. While the Division worker

was talking with the officers, one of them accompanied Fiona to retrieve John

at the school bus stop to ensure Laura was not there. When Fiona and John

returned, Fiona explained Laura came to the bus stop and she and John hid

because they feared she would take them. The worker eventually spoke with

John who reported "that his mom and dad had touched him on his pee-pee and

butt."

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Jane produced a prescription for her medication and the Division worker

found no other evidence of prescription drug abuse as the caller had claimed.

The worker also concluded the residence was suitable for the children, who were

well fed and cared for.

On the evening of December 10, 2015, while Jane, Bob, and the children

were home, Bob heard a knock on the door. When he opened the door, he saw

Laura's cousin, Diana, who wanted to speak with Jane. Bob had not seen Diana

in some time, and she did not look well, so he kept her outside of the residence

and told Jane that Diana wished to speak to her. Jane told Bob to let Diana in,

he exchanged pleasantries with Diana, and returned to a game he was playing

with the children.

Shortly after, Bob heard someone banging loudly on the door and saw it

was Laura who was pacing back and forth, demanding to see the children, and

yelling "get my fucking kids out of the house." This caused the children to flee.

Bob opened the door and informed Laura that she was not supposed to be at the

residence and that he would call the police if she did not leave. However, she

ignored him and repeatedly stated, "get my kids out of this house now." When

he turned around to see where Diana was, Laura barged in and began running

around the house calling for the children saying she wanted them "out of the

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house now." Bob and Jane tried to calm Laura down and attempted to restrain

her, but she kept yelling "get off me" and "you don't understand ." Bob called

the police at which point Laura screamed the house was on fire and to get the

kids out now. Bob and Jane ran outside and saw smoke coming from the garage,

and realized the garage was on fire.

Jane instructed Bob to move their vehicles away from the fire and then

ran to the children, who were hiding from Laura in the basement. After Bob

moved the vehicles, he returned to the house to search for the children, opened

the basement door, and the children ran out of the house toward the street . As

the children were running down the street, Jane saw Laura chasing the children

and observed Diana put Julie in the backseat of a car. Jane saw Laura run and

jump into the car.

Washington Township Police Sergeant Mike Conti responded to the report

of a fire at the residence. While in route, he received a call informing him Laura

and Diana had left the scene in a vehicle. Conti was one of the officers who

responded to the grandparents' residence two days prior and interacted with

Laura and Diana at a bus stop. As a result, he recognized Diana as the driver of

the vehicle, which he stopped on the way to the scene. As he approached the

vehicle, Conti recognized Laura sitting in the passenger seat and saw a child in

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the backseat. Diana told him the child belonged to Laura. Conti arrested both

women and Laura was charged with kidnapping, aggravated arson, burglary, and

criminal attempt.

The Division retained Stephanie V. Lanese, M.D., a forensic pediatrician

and child abuse and neglect expert, who evaluated the children regarding the

allegations of sexual and physical abuse. Dr. Lanese interviewed Bob and all

the children, except for Julie, who had only a physical examination.

John disclosed his parents touched him in the bathroom and asked him to

touch them in their private areas. He explained the touching was not merely his

parents cleaning him and further stated he witnessed his parents lick his two

younger sisters' genitals in their bedroom. He stated his parents told him not to

speak about the sexual abuse because "they would get locked up." Dr. Lanese

concluded John had been sexually abused by his parents because he described

the abuse in a genuine, consistent, and idiosyncratic way.

Chloe revealed her parents touched her private area using "a doll without

hair." She described an incident when her parents licked her private part in the

kitchen, after pouring a Slurpee on it and stated she had seen naked people on

the internet. When Dr. Lanese informed Chloe that she would conduct a

physical examination the child became uncooperative, panicked, and covered

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her eyes. She refused to answer any other questions, would not make eye contact

with the doctor, and refused the physical examination. Dr. Lanese concluded it

was "unclear if there were any acute or chronic residua to the genital area[,]"

but diagnosed Chloe as being sexually abused by her parents based on Bob's

report, John's report, and the child's description, and recommended she receive

trauma therapy.

Dr. Lanese's interview and physical examination of Julie did not reveal

evidence of sexual abuse. Because Julie was three years old, Dr. Lanese opined

she may not have been old enough to understand the context of inappropriate

touching and may have been unable to communicate what happened to her. She

concluded Julie may have been sexually abused because her brother reported

witnessing her being touched inappropriately by her parents.

Fiona denied being sexually abused and declined a physical examination.

Dr. Lanese reported Fiona was frustrated and angry throughout the interview.

She opined Fiona may have suffered sexual abuse but was not ready to discuss

it because she told Bob, "I know things and I've seen things . . . you don't want

to hear and you're not ready to hear."

However, Fiona expressed no hesitance in clearly describing physical

abuse by her mother. Fiona described that Laura aggressively "grips [her] up

A-5310-18T2
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by [her] hair or . . . throws something at [her] like [a] cup or [a] lotion bottle"

when she was drunk, and on another occasion hit Fiona with a spatula leaving

"big circles on [her] hand[,]" and ripped out Fiona's hair because she was not

cleaning and looking hard enough for beer money. She stated Laura "grip[s

Fiona] up on [her] arm [in order to make her go to bed] and put[s Fiona] in [her]

room and then leave[s]." Fiona recounted the incident where Laura was drunk

and threw a bottle of vodka into a fireplace and then pushed Fiona's face "into

the fire so that it felt like it was melting." Fiona said there was much yelling

and screaming in Laura's household and she was forced to call the police because

of the domestic violence between Laura and Sean. Dr. Lanese found Fiona's

description of the abuse reliable and genuine and concluded she had been

physically abused.

Dr. Lanese concluded Laura's behavior was psychologically detrimental

to the children "and ha[d] the potential for long-term negative consequences."

The maternal grandparents corroborated the children's reports of abuse.

Jane testified she first became concerned about sexual abuse when Chloe and

John were playing. Chloe had a skirt on and John "had his hands up on her

private parts." She pulled him aside and asked what he was doing, and he denied

any misconduct. She questioned John and asked if anyone had touched "his

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private parts in a bad way" and he responded Laura told him to lick Julie's "pee-

pee" and he told her no. She asked if anyone else touched him and he responded

that Sean, Chloe, and Julie had touched him, but denied touching by Fiona or

Matthew. Jane testified she confronted Laura about John's disclosures and Laura

said she knew about it because one of her paramours had witnessed the touching,

but Laura did not wish to discuss the matter.

Jane asked Chloe if anyone had touched her and she did not respond

verbally but stuck out her tongue and made a licking motion. Jane specifically

asked if Laura licked Chloe and the child said yes. Chloe then disclosed that

Laura, Sean, and a friend of Laura's all licked her genitals with Slurpee's. Jane

confronted Laura with these allegations and Laura became upset and

argumentative. Once Laura calmed down, Jane had Chloe and John sit down

with Laura and asked them whether Laura or Sean ever touched their private

parts in a bad way, and both children responded yes. Laura became angry and

abruptly left the house. Jane testified she immediately called the Division after

hearing the children's disclosures.

Bob testified he witnessed several instances of the children acting out

sexually, specifically Chloe grabbing Julie's genitals, as well as Chloe and John

grabbing each other's genitals. Bob testified he questioned John about his

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disclosure to Jane the day after Jane questioned him and the child stated his

parents would touch and grab his "pee-pee." He also reported his parents would

pour Slurpee's on Chloe's "pee-pee" and lick it off. He stated Laura and Sean

asked him to touch and lick his sisters' "pee-pee," but he refused.

The Division called the supervising family service specialist who

described the Division's involvement from the onset of the case as we have

recounted. He testified Laura was substantiated for: sexual abuse of John and

Chloe; physical abuse of Fiona; placing Julie at risk of harm by kidnapping her;

and placing all of the children at substantial risk of harm by starting the fire.

Recounting these facts, the trial judge concluded the Division proved

Laura committed acts of abuse or neglect. He found "the incident of [Laura]

holding . . . [Fiona] at the fireplace to be a violation of [ N.J.S.A. 9:6-8.21(c)(2).

And] . . . that under [ N.J.S.A. 9:6-8.21(c)(3), the Division proved] sexual abuse

by a preponderance of evidence against [Laura] for the sexually inappropriate

touching of . . . both [John] and [Chloe]."

Regarding the fire, the judge credited Jane and Bob's testimony that Laura

was acting "erratic, . . . highly emotional, and . . . out of character" when she

arrived at their residence the day of the incident, and did not inform Jane and

Bob there was a fire until Bob stated he was calling the police to remove Laura.

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The judge found the "preponderance of the evidence [proved the] fire was

generated by, either [Laura's] direct actions or her actions with [Diana] to cause

this fire." He concluded the Division proved "that [Laura] put the children in

serious danger." The judge also found the Division proved Laura committed

"excessive corporal punishment by hitting . . . [Fiona] with a spatula leaving

bruises [and] pulling her hair." He concluded these incidents were abuse or

neglect pursuant to N.J.S.A. 9:6-8.21(c)(4)(B).

Our review of a family court's abuse or neglect finding is limited. N.J.

Div. of Youth & Fam. Servs. v. S.H., 439 N.J. Super. 137, 144 (App. Div. 2015).

We must determine whether the decision "is supported by 'substantial and

credible evidence.'" N.J. Div. of Youth & Fam. Servs. v. F.M., 211 N.J. 420,

448 (2012), (quoting N.J. Div. of Youth & Fam. Servs. v. M.M., 189 N.J. 261,

279 (2007)). We defer to the Family Part's factual findings, because that court

has "the superior ability to gauge the credibility of the witnesses . . . and because

it possesses special expertise in matters related to the family." Ibid. A family

court's decision should not be overturned unless it went "so 'wide of the mark'"

that reversal is needed "to correct an injustice." Ibid. (quoting N.J. Div. of

Youth & Fam. Servs. v. E.P., 196 N.J. 88, 104 (2008)). The court's interpretation

of the law or its legal conclusions are reviewed de novo. State ex rel. A.B., 219

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13 N.J. 542, 554-55 (2014); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,

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

"The purpose animating Title Nine 'is to provide for the protection of

children . . . who have had serious injury inflicted upon them.'" N.J. Div. of

Youth & Fam. Servs. v. P.W.R., 205 N.J. 17, 31 (2011) (quoting N.J.S.A. 9:6-

8.8(a)). Pursuant to N.J.S.A. 9:6-8.21(c), an abused or neglected child is

a child less than 18 years of age whose parent . . . (2)
creates or allows to be created a substantial or ongoing
risk of physical injury to such child by other than
accidental means which would be likely to cause death
or serious or protracted disfigurement, or protracted
loss or impairment of the function of any bodily organ;
(3) commits or allows to be committed an act of sexual
abuse against the child; (4) or a child whose physical,
mental, or emotional condition has been impaired or is
in imminent danger of becoming impaired as the result
of the failure of his parent . . . to exercise a minimum
degree of care . . . (b) in providing the child with proper
supervision or guardianship, by unreasonably inflicting
or allowing to be inflicted harm, or substantial risk
thereof, including the infliction of excessive corporal
punishment; or by any other acts of a similarly serious
nature requiring the aid of the court[.]

The Division "must prove that the child is 'abused or neglected' by a

preponderance of the evidence, and only through the admission of 'competent,

material and relevant evidence.'" P.W.R., 205 N.J. at 32 (quoting N.J.S.A. 9:6-

8.46(b)). Each case of alleged abuse "requires careful, individual scrutiny" and

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is "generally fact sensitive." Id. at 33. The proofs must be evaluated based on

the totality of the circumstances "because the evidence can be synergistically

related." Id. at 39.

On appeal, Laura argues the children's out-of-court statements regarding

the sexual abuse were uncorroborated. She argues there was no evidence of age-

inappropriate sexual behavior exhibited by the children. She asserts she made

no confessions or admissions to support the court's finding of corroboration.

Laura also argues there was no objective evidence to corroborate Fiona's out-of-

court statements to prove the alleged excessive corporal punishment or injury to

the child. Laura argues the Division did not prove she set the fire at her parents'

residence by a preponderance of the evidence.

We reject Laura's arguments that the Division failed to prove she sexually

abused and permitted sexual abuse of John and Chloe. In an abuse or neglect

proceeding, children's out-of-court statements "relating to any allegations of

abuse or neglect shall be admissible in evidence; provided, however, that no

such statement, if uncorroborated, shall be sufficient to make a fact[-]finding of

abuse or neglect." N.J.S.A. 9:6-8.46(a)(4). Corroboration requires "direct or

circumstantial evidence beyond the child's statement itself." N.J. Div. of Child

Prot. & Permanency v. A.D., 455 N.J. Super. 144, 157 (App. Div. 2018) (citing

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N.J. Div. of Child Prot. & Permanency v. N.B., 452 N.J. Super. 513, 522 (App.

Div. 2017)). When reviewing a child's hearsay statement under N.J.R.E.

803(c)(27), the court may consider the child's repetition and consistency of

statements, but "consistency alone does not constitute corroboration." N.B., 452 N.J. Super. at 523. We review the trial court's determination of corroboration

de novo. A.D., 455 N.J. Super. at 156.

Within the context of child sexual abuse, we have stated:

The child victim is often the only eyewitness to the
crime, and physical corroboration is rare because the
sex offenses committed against children tend to be
nonviolent offenses such as petting, exhibitionism,
fondling and oral copulation. Physical corroboration
may also be unavailable because most children do not
resist, either out of ignorance or out of respect for
authority. Consequently, in order to give any real effect
to the child victim hearsay statute, the corroboration
requirement must reasonably be held to include indirect
evidence of abuse. Such evidence has included a child
victim's precocious knowledge of sexual activity, . . .
and psychological evidence.

[N.J. Div. of Youth & Fam. Servs. v. Z.P.R., 351 N.J. Super. 427,
436 (App. Div. 2002).]

The record demonstrates the Division proved the sexual abuse allegations

by a preponderance of the evidence. John and Chloe were consistent with their

detailed description of events, which they recounted at different times to

different adults, namely, the Division worker, Dr. Lanese, and the maternal

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grandparents. Both children were clear regarding who perpetrated the abuse and

readily differentiated the sexual abuse from touching which may have occurred

during a bath or toileting. They also confided in Fiona regarding the abuse. The

children even identified Laura as their abuser in her presence and Laura's

response was to leave Jane's residence. Our review of the record convinces us

the children's statements regarding the sexual abuse allegations were genuine

and there was no evidence to rebut the Division's proofs.

There was also evidence of age inappropriate behavior, which

corroborated the claims of sexual abuse, namely, John and Chloe touching each

other's genitals and Chloe similarly touching Julie, which the maternal

grandparents observed. Contrary to Laura's argument, her lack of a confession

or admission to the abuse was not fatal to the issue of corroboration, considering

the evidence of abuse adduced by the Division.

We also reject Laura's argument the Division did not prove Fiona was

subjected to excessive corporal punishment. While "[t]he law does not prohibit

the use of corporal punishment," and "a parent may inflict moderate correction

such as is reasonable under the circumstances of a case," excessive corporal

punishment is expressly prohibited. Dep't of Child. & Fams., Div. of Youth &

Fam. Servs. v. K.A., 413 N.J. Super. 504, 510 (App. Div. 2010). Although Title

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Nine does not define excessive corporal punishment, we have held "'excessive'

means going beyond what is proper or reasonable." Id. at 511. "[A] single

incident of violence against a child may be sufficient to constitute excessive

corporal punishment." Ibid. We have held "the use of an instrument to hit the

child with such force that visible marks were left, the unreasonable and

disproportionate parental response, and the fact that the incidents were not

isolated but part of a pattern of physical punishment" are factors the court may

consider when determining whether a child suffered excessive corporal

punishment. S.H., 439 N.J. Super. at 146-47.

Fiona's vivid descriptions of the litany of physical abuse perpetrated by

her mother to the Division worker and separately to Dr. Lanese amply supports

the trial judge's findings of excessive corporal punishment. When considered in

the totality of the circumstances, namely, Laura's inebriation, the incidents of

hair pulling, placing the child's face into a fire, throwing objects at the child,

and hitting the child with a kitchen implement, singularly and collectively meet

the definition of excessive corporal punishment.

Contrary to Laura's assertions, the Division was not required to adduce

evidence of Fiona's injuries to meet its burden of proof. IMO Guardianship of

DMH, 161 N.J. 365, 383 (1999). As Dr. Lanese stated: "The most significant

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impact for the child is psychological and has the potential for long-term negative

consequences. It is important that she be referred to a clinical mental health

provider for trauma-focused cognitive behavioral therapy for physical abuse."

Finally, we reject Laura's argument the Division failed to prove she started

the fire. There was no evidence presented to rebut Jane and Bob's credible

testimony that Laura's behavior on the day of the incident was erratic and was

immediately followed by the fire. The substantial credible evidence in the

record readily demonstrates the fire was a poorly conceived ruse to remove the

children from their grandparents, which placed the children at substantial risk

of harm pursuant to N.J.S.A. 9:6-8.21(c)(4)(B).

Affirmed.

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