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In re D.R.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Mar 13, 2015
DOCKET NO. A-0237-13T4 (App. Div. Mar. 13, 2015)

Opinion

DOCKET NO. A-0237-13T4

03-13-2015

NEW JERSEY DIVISON OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. E.R., Defendant-Appellant. IN THE MATTER OF D.R. and A.R., Minors.

Joseph E. Krakora, Public Defender, attorneys for appellant (John P. Monaghan, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; James D. Harris, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minor (Karen A. Lodeserto, Designated Counsel, on the brief).


RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Haas and Higbee. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FN-06-119-12. Joseph E. Krakora, Public Defender, attorneys for appellant (John P. Monaghan, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; James D. Harris, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minor (Karen A. Lodeserto, Designated Counsel, on the brief). PER CURIAM

Defendant, E.R., appeals from a Family Part order finding that she abused or neglected her two biological daughters, D.R. (age twelve) and A.R. (age nine), by failing to protect them from her former paramour's sexual abuse. For the following reasons, we affirm.

On May 31, 2012, the Division of Child Protection and Permanency (Division), formerly the Division of Youth and Family Services, received a referral that A.O., defendant's boyfriend, was sexually abusing D.R. and A.R. This referral was investigated, but both girls denied being sexually assaulted. Later that same day, a Division caseworker returned to the home and again interviewed the girls, who continued to deny being touched or abused in a sexual manner. The girls did reveal, however, that A.O. and defendant had recently gotten into a fight regarding A.O.'s drinking. Notably, defendant had sought and obtained a restraining order against A.O., and had moved the girls out of the home, only to return a few days later and drop the restraining order when A.O. promised to stop drinking.

On June 6, 2012, the Division received another referral that the girls were being sexually abused by A.O. During an interview with A.R. on June 8, 2012, she disclosed that she had "lied when she told [the Division caseworker] nothing happened, [and] she informed [the caseworker] that [A.O.] had touched her private parts." She noted that she lied because she was embarrassed and afraid the Division would take her away from her mother. With that information, A.R. and her sister were taken to the Cumberland County Prosecutor's Office for formal interviews.

A.R. revealed the details of A.O.'s sexual abuse during the interview. When asked to demonstrate the assault with dolls, A.R. pulled both dolls' pants down, placed one on top of the other, and had their genitals touching. A.R. further disclosed that this happened more than once, and that when she told her mother of the abuse, defendant "said it wasn't true."

D.R. initially denied any abuse during her interview. Ultimately, however, she described a time when A.O. grabbed her breast. In response to the touching, D.R. swung a pen and stabbed or struck A.O. D.R. told defendant about the incident around the time of the application for a restraining order, but again, defendant chose not to believe her. Despite her alleged disbelief, defendant told D.R. that she should not go near A.O.

Cumberland County Detectives then interviewed defendant, who initially denied being told of anything beyond the girls complaining of A.O. caressing their arms. As the interview continued, however, defendant admitted that D.R. and A.R. told her that A.O. touched them on their private parts. She also stated that her daughters "like to lie" and that "she doesn't believe that it happened." When asked about the restraining order and the dispute giving rise to it, defendant denied that it had anything to do with any sexual misconduct. "She indicated that it was only about his drinking." However, she acknowledged the incident "happened after she was told that [A.O.] had touched the girls." Notably, "[defendant] indicated that she had known for about 3 weeks that [A.O.] had touched the girls in a sexual manner and she continued a relationship with him."

After the above interviews were conducted, A.R. and D.R. were taken into Division custody. On June 12, 2012, both girls were evaluated by Dr. Martin A. Finkel, D.O., of the CARES Institute. A.R. told Dr. Finkel that she was first assaulted by A.O. when she was eight years old. She said that A.O. removed her clothes, touched and penetrated her genitals with his, and also penetrated her with his hand. She mentioned that this happened "a lot." Based on his evaluation, Dr. Finkel opined that "the historical information that has been provided clearly details this young girl experiencing a variety of age-inappropriate sexual activities" including "genital touching, genital to genital contact, and, as she describes, [A.O.] placing his mouth onto her genitalia as she was made to touch his genitalia."

With regard to D.R., Dr. Finkel opined that "the historical information that has been provided clearly details [D.R.] experiencing a one-time incident of age-inappropriate invasion of personal space and privacy." Dr. Finkel continued that while "the actual contact that she describes was not physically intrusive, it was psychologically intrusive, as she described she had worries and it affected her ability to focus in school." Dr. Finkel also offered that D.R. was "upset by her mom's failure to believe and protect her."

On June 12, 2012, the Division filed a verified complaint pursuant to Titles Nine and Thirty for custody of D.R. and A.R., alleging that defendant neglected her daughters by continuing a relationship and maintaining contact with A.O. while being aware of the sexual abuse. A fact-finding hearing took place on March 11, 2013, where the parties relied upon documentary evidence without the testimony of any witnesses.

On the above facts, and arguments of counsel, the judge found that defendant knew of the sexual conduct "more than a week or two before the restraining order incident." In that regard, the judge found defendant neglected the children because she had knowledge of the sexual abuse and failed to adequately protect her daughters when she moved back in with A.O. This appeal followed.

Our task as an appellate court is to determine whether the decision of the family court is supported by substantial credible evidence in the record and is consistent with applicable law. Cesare v. Cesare, 154 N.J. 394, 412 (1998). We owe particular deference to a trial judge's credibility determinations and to "the family courts' special jurisdiction and expertise." Id. at 413; see also In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999). Accordingly, a reviewing court will not disturb a trial court's abuse or neglect findings as long as they are "supported by adequate, substantial, and credible evidence." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007).

Title 9 governs abuse and neglect actions. N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 31 (2011). The underlying purpose of the legislation is to "provide for the protection of children under 18 years of age who have had serious injury inflicted upon them." N.J.S.A. 9:6-8.8(a).

Title Nine defines "abused or neglected child" as a child less than eighteen years of age

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 or guardian, herein defined, 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.



[N. J.S.A. 9:6-8.21(c).]

A child has a "right to receive protection from injuries resulting from a parent's lack of supervision." G.S. v. Dep't of Human Servs., 157 N.J. 161, 179 (1999). This includes a parent's obligation to protect a child from a "substantial risk of harm." N.J.S.A. 9:6-8.21(c)(4)(b). When analyzing whether "a [parent] has failed to exercise a minimum degree of care in protecting a child," the court must consider "the dangers and risks associated with the situation" on a "case-by-case basis." G.S., supra, 157 N.J. at 181-82. "Title 9's purpose is clear: to protect children 'who have had serious injury inflicted upon them' and make sure they are 'immediately safeguarded from further injury[.]'" N.J. Dept. of Child. & Families v. A.L., 213 N.J. 1, 18 (quoting N.J.S.A. 9:6-8.8(a)).

On appeal, defendant argues that "the facts adduced at trial did not constitute abuse [and] neglect of the minor children." She also asserts that the judge did not give appropriate weight to the evidence submitted concerning the timing of defendant's knowledge of the children's allegations. We disagree.

In its decision on the record, the judge addressed the timing issue. The judge stated:

I do think the timing's critical on this type of case. Because, the question is whether or not mom failed to act, based upon the information that she had. And, certainly, she made a lot of statements here that the Court finds troubling, with regards to being seduced and not necessarily believing the children.



But, her statements and what she did are critical issues in this case, so I was struggling with the timing a little but [sic]. But, in re-reading the one section that the Division referred the Court to, it kind of helped set forth the timing in this.

On the basis of this thorough review of the record, the court found that E.R. had knowledge of the sexual contact well before she filed for the restraining order. It was clear to the trial court that defendant "was told more than a week or two before the restraining order" of the misconduct. Thus, defendant placed her daughters in "imminent danger" by failing to investigate the allegations they were making and returning to live with A.O.

There was adequate, substantial, and credible evidence in the record to support the court's finding of neglect.

Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION


Summaries of

In re D.R.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Mar 13, 2015
DOCKET NO. A-0237-13T4 (App. Div. Mar. 13, 2015)
Case details for

In re D.R.

Case Details

Full title:NEW JERSEY DIVISON OF CHILD PROTECTION AND PERMANENCY…

Court:SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Date published: Mar 13, 2015

Citations

DOCKET NO. A-0237-13T4 (App. Div. Mar. 13, 2015)