DCPP VS. O.P. AND K v. IN THE MATTER OF M v. (FN-09-0299-16, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2019 )

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NOT FOR PUBLICATION WITHOUT THE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-5602-16T1
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
O.P.,1
Defendant-Appellant,
and
K.V.
Defendant.
_____________________________
IN THE MATTER OF THE
GUARDIANSHIP OF M.V.,
a Minor.
_____________________________
Argued January 24, 2019 – Decided May 2, 2019
1
We use initials and pseudonyms to protect the privacy rights of the litigants
and the child. R. 1:38-3(d)(12).
Before Judges Fuentes, Vernoia and Moynihan.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FN-09-0299-16.
Ryan T. Clark, Designated Counsel, argued the cause
for appellant (Joseph E. Krakora, Public Defender,
attorney; Ryan T. Clark, on the briefs).
Mohamed Barry, Deputy Attorney General, argued the
cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Jason W. Rockwell, Assistant
Attorney General, of counsel; Mohamed Barry, on the
brief).
Rachel E. Seidman, Assistant Deputy Public Defender,
argued the cause for minor (Joseph E. Krakora, Public
Defender, Law Guardian, attorney; Rachel E. Seidman,
on the brief).
PER CURIAM
Defendant O.P. (Olga) is the biological mother of M.V. (Mary), a child
born in 2008. Mary alleged her biological father, defendant K.V. (Kevin),
sexually molested her when she was six years old. The Division of Child
Protection and Permanency (Division) filed a verified complaint in the Family
Part against defendant, alleging she abused and neglected her daughter within
the meaning of N.J.S.A. 9:6-8.21(c)(3) and N.J.S.A. 9:6-8.21(c)(4).
At a fact-finding hearing conducted pursuant to N.J.S.A. 9:6-8.44, Judge
Bernadette N. De Castro found the Division established, by a preponderance of
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the evidence, that defendant abused and neglected Mary by failing to protect her
from Kevin's sexual molestation. Judge De Castro found defendant did not
exercise the minimum degree of care expected from a parent under these
circumstances. The judge further found defendant acted in a grossly negligent
or wanton manner by failing to: (1) report the sexual abuse to law enforcement
authorities in a timely manner; and (2) take appropriate action to remove Kevin
from the household. Consequently, defendant placed her daughter in imminent
and prolonged danger of substantial harm. See Div. of Child Prot. &
Permanency v. E.D.-O., 223 N.J. 166, 180-82 (2015).
In this appeal, defendant argues the Division did not prove, by a
preponderance of the evidence, that she was aware that Kevin's "one-time sexual
abuse of her daughter" exposed Mary to a substantial risk of harm. Defendant
also argues the record developed by the Division before the Family Part does
not support the judge's finding of abuse and neglect against defendant because
the child "was not left alone with the father in a private setting." We reject these
arguments and affirm substantially for the reasons expressed by Judge De Castro
in her December 6, 2016 memorandum of opinion.
We derive the following facts from the evidence presented by the Division
before Judge De Castro.
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I
At six o'clock in the morning on February 29, 2016, defendant called the
North Bergen Police Department seeking protection from Kevin under the
Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. Defendant
alleged that in the course of a verbal dispute with Kevin about the location of
car keys, Kevin physically assaulted her by pushing her down the stairs.
Defendant also told the responding police officers that approximately seventeen
months earlier, her then seven-year-old daughter Mary told her that Kevin
sexually molested her when she was six years old. The North Bergen Police
Department immediately notified the Division and the Hudson County
Prosecutor's Office (HCPO).
Division investigator Lauren Pirro responded to defendant's residence at
10:40 a.m. that same day. Pirro memorialized this initial encounter with
defendant in a report admitted into evidence at the fact-finding hearing. The
report stated:
[Defendant] greeted the worker with a handshake and
welcomed the workers into her home. The family
resides in a house, which consists of 3 separate
apartments. On the first floor of the home, [Mary's]
paternal grandparents reside. On the second floor of
the home, the worker observed [Mary's] bedroom,
which consisted [of] appropriate sleeping arrangements
where [Mary] did have her own bed and furniture. Also
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observed was a second bedroom on this floor, where
[defendant] reported she sleeps. The attic apartment
consists of another bedroom, where it was reported
[Kevin] sleeps. To enter into the second and third floor,
an individual must enter into the living room of the first
floor and go up the stairs, which has a door at the
entrance. The interview took place in the small living
room on the second floor of the home.
Defendant told Pirro that Mary resided with Kevin and his family from
January until August 2014. Defendant also disclosed her prior involvement
with "Child Protective Services in both Rhode Island and in New Jersey."
Defendant admitted to Pirro that the Rhode Island child welfare agency had
removed Mary from her care, but did not elaborate on the circumstances that
prompted the child's removal. Defendant also told Pirro that she was sexually
molested when she was six years old by her youngest brother's father. She
claimed that this man was incarcerated at the time. Defendant's childhood was
far from stable. Her maternal aunt adopted her because her biological mother
suffered from a combination of drug addiction and mental illness. 2
Defendant and Kevin had a tumultuous relationship beset by domestic
violence. Defendant has been arrested for "keying [Kevin's] car multiple times
2
In her report, Pirro noted that defendant "became very emotional when
speaking about her parents" and was unable to provide "any information about
her parents."
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out of anger due to the domestic violence." Defendant admitted that Mary was
present during these incidents "but [she] would typically stay in her bedroom
when her parents were fighting." Defendant told Pirro that Kevin has tested
positive for cocaine and she once found a "'crack pipe' in his cigarette box."
Defendant has been diagnosed "with bipolar disorder, anxiety, and depression."
Although defendant claimed she was not under any medication, she told Pirro
she had been prescribed Zoloft for anxiety and Remeron for depression. She
was previously hospitalized at Rhode Island Hospital in Pawtucket because of
her mental health issues.
Special Victims Unit Investigators from the HCPO also interviewed Mary
regarding her allegations of sexual molestation by her father. At the fact-finding
hearing before Judge De Castro, the Division presented into evidence the video
recording of Mary's interview. The record before us includes the transcript of
this interview. Mary provided the following account of her father's abuse:
INVESTIGATOR: What happened, what did you tell
your mom?
CHILD: That daddy (inaudible)
INVESTIGATOR: When did this happen?
CHILD: A long time ago.
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INVESTIGATOR: And do you remember where you
were when this happened?
CHILD: At my house.
....
INVESTIGATOR: And where were you in the house
when this happened?
....
Okay, and what did dad - - what did dad ask you to do?
Can you tell me more about that?
....
Okay. So, your dad was sick. What did your dad ask
you to do?
CHILD: Touch his private.
....
INVESTIGATOR: Okay. What part of your body
touched his body?
CHILD: My hand.
INVESTIGATOR: Okay.
CHILD: His private.
INVESTIGATOR: His private. Can you show me with
the doll what happened? So your hand touched his
private, okay. Did this happen once, more than once?
CHILD: Once.
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Mary was not receptive to the use of an anatomically correct doll to
explain what occurred. However, the child was able to describe enough details
to infer that her father induced her to masturbate him until he ejaculated.
According to Pirro, the account of the molestation Mary revealed to defendant
seventeen months earlier was consistent with the details the child described to
the HCPO's investigators. Pirro also described what the child told her directly:
Q. And what, if anything, did [Mary] report to you
regarding the sexual abuse allegation?
A. [Mary] was very hesitant to disclose any information
about the sexual abuse. She just kept saying I just don't
want my dad to go to jail. I don't want anybody to get
in trouble but then she later said that one night, she said
also that it was summer time, that she went upstairs to
her father's bedroom. She didn't know what time it was.
She said that he was laying in his bed naked and asked
her to get lotion from his drawer and rub it on his
private parts. She - -
Q. Did she describe anything about her father's private
parts?
A. She described it as hairy and soft and said that jelly
came out if it.
In the Division report, Pirro wrote that Mary told her mother of the sexual
abuse while the two of them were alone in the car. Mary "reported that her
mother yelled and she started screaming and became very angry." When Pirro
asked defendant why she did not report Kevin's sexual abuse sooner, defendant
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told her "she was fearful that [Mary] would be removed from her." Defendant
also told Pirro "that she protected [Mary] by not allowing [Kevin] to be alone
with her." Defendant also told Pirro that she talked to Kevin "immediately after
finding out that this happened and then later had a family meeting with [Kevin]
. . . [and] his brother."
On the evening of February 29, 2016, the Division conducted an
emergency removal of Mary. Division records indicate that defendant was "very
upset" and viewed herself as the victim who was being unduly punished.
Defendant told the Division caseworker that she would leave the State and take
Mary to Rhode Island. Defendant was particularly concerned about where she
was going to reside. The Division caseworker provided her with the location of
a local shelter and "contact information for the Homeless Hotline."
At 11:50 p.m. on February 29, 2016, the Division caseworker contacted
Kevin and informed him of the allegations against him and of the emergency
removal of his daughter. Kevin denied he ever sexually abused his daughter and
told the caseworker he believes defendant may have told the child to fabricate
these accusations against him. The Division filed a verified complaint against
both parents on March 2, 2016. The Family Part granted the Division's
application for custody of Mary pending the outcome of the litigation.
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On March 10, 2016, Patricia Sermabeikian, Ph.D. and LCSW, at the
Audrey Hepburn Children's House (Audrey Hepburn) evaluated Mary. The
report prepared by Dr. Sermabeikian included the child's responses to questions
concerning the sexual molestation by her father. Based on the child's answers
to a series of questions concerning this incident, the child again confirmed the
details of the molestation. The report also included the following comments the
child made concerning her parents:
[Mary] continuously asked about returning to her
family, specifically to return to her mother and father.
[Mary] reported that her mother is "crazy," and she
yells and screams. She does have a strong attachment
to her mother, and to her family. She loves her mother
and misses her. They have shared positive experiences.
She has also witnessed domestic [violence] and heard
parental conflicts, and expressed that she is fearful that
they will fight and one of them will die. She explained
that her father smokes a pipe and she believes that it is
drugs. She also expressed having positive experiences
with her father. [Mary] did not report physical abuse
by anyone. She is socially isolated by her family and
does not have friends due to the visitation issues. She
has spent the majority of her time with family members.
....
According to the information provided by [the] DCPP,
the sexual abuse was not reported to authorities by
numerous family [members], which left [Mary]
unprotected. Her separation and loss issues are
devastating for her. She cried and appeared sad, and
inconsolable. [Mary] has multiple adverse life
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experiences and has lived in a hostile home
environment. She is emotionally fragile and distressed.
[Mary] was removed via DODD [3] from her mother's
care and placed in foster care. DCPP would like to
place her with her paternal grandparents. The risk
factors are significant and are high.
At a case conference hearing held on April 27, 2016, the Deputy Attorney
General representing the Division confirmed before Judge De Castro that on
March 23, 2016, the child was placed with the paternal grandparents after Kevin
moved out of the apartment.
On April 13 and May 12, 2016, Eloise J. Berry, Ph.D., a staff psychologist
at Audrey Hepburn, conducted a parenting evaluation and clinical interview of
defendant. Dr. Berry described defendant as emotionally defensive and
dysregulated. Defendant refused to discuss with Dr. Berry her psychiatric issues
and "suggested that the evaluator should obtain her psychiatric records." When
Dr. Berry confronted defendant with Division records documenting her bipolar
disorder, anxiety, and depression diagnoses, defendant claimed she had not
taken any prescribed psychiatric medication for the past two years. Finally,
when Dr. Berry asked defendant why she did not report her daughter's sexual
3
A "Dodd removal" refers to the emergency removal of a child from a home
without a court order as authorized by N.J.S.A. 9:6-8.29 of the Dodd Act,
N.J.S.A. 9:6-8.21 to -8.82. See N.J. Div. of Youth & Family Servs. v. P.W.R.,
205 N.J. 17, 26 n.11 (2011) (citations omitted).
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abuse by Kevin, defendant appeared "emotional as she maintained that she did
nothing wrong with regard to the referral issue and that [Kevin] and his parents
had not been held accountable." Dr. Berry ultimately reached the following
clinical conclusion:
In [defendant's] attempt to present as well-adjusted
during the parenting interview and testing, she
ultimately presented as dysregulated as she was unable
to tolerate frustration or intense negative emotions
related to the referral issue. Subsequently, there is
concern regarding [defendant's] emotional stability
when under stress.
Dr. Berry recommended: (1) the Division obtain defendant's psychiatric
records; (2) defendant receive counseling to address "neglect of her daughter
and her poor judgment" that exposed the child "to unnecessary risk related to
sexual abuse and exposure to domestic violence and substance abuse"; (3)
defendant submit to an updated psychiatric evaluation and need for psychotropic
medication; (4) defendant submit to random drug screening; and (5) defendant
have supervised contacts with her daughter until these issues are addressed.
The Division also presented the testimony of psychologist Anthony
Vincent D'Urso, Ph.D., whom the parties stipulated as an expert witness in
psychology. At the request of the Division, Dr. D'Urso conducted two
psychological evaluations of Mary related to her father's sexual molestation "to
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assess her emotional functioning." The first evaluation occurred on March 10
and the second on November 3, 2016. Dr. D'Urso explained that the first
evaluation was dedicated to explaining the process to Mary "to make sure that
she understood the purpose of the evaluation."
In this initial encounter, Dr. D'Urso testified that Mary described to him
in detail what her father asked her to do. Based on Mary's account, Dr. D'Urso
opined there was "clinical support" to find Mary had been sexually abused.
When asked to elaborate, Dr. D'Urso explained that Mary "gave a description of
sexual behavior that theoretically is beyond her age and stage of development."
Dr. D'Urso also noted that the description of the sexual act Mary provided to
him was "in large part" consistent with the description the child gave to the
Division investigator and to the law enforcement investigators with the HCPO.
In this respect, Dr. D'Urso explained:
There's going to be no perfect repetitions in the multiple
interviews that occur. She gave information that was
talked about and seen in other evaluations that were
similar. So, the basis was that she had an effective
response, an emotional response to the abuse. It did not
appear to us that she had a motive to fabricate. She's
connected to her father emotionally, to her mother
emotionally, to her [paternal] grandparents
emotionally. It was a disclosure she had made
approximately 18 months before the investigation
began. She maintained the allegation in terms of the
series of interviews she was involved in in the
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investigative side as well as at [Audrey Hepburn]. So,
all those factors coming together told us that clinically
that we would treat the sexualized behavior.
Dr. D'Urso evaluated Mary again on November 3, 2016, in response to her
paternal grandfather's allegation that Mary had recanted her allegations against
her father and that defendant "had, in essence, influenced the child to make the
allegation." Dr. D'Urso testified that in the course of this second evaluation,
Mary made clear "that the events really happened. She felt shameful, guilty,
[and] shy about discussing the details again. She reported that what she said
previously was true . . . [.]" Dr. D'Urso made clear that Mary did not say
anything during this second evaluation to cause him to question his earlier
clinical opinion or provide any grounds to modify his assessment of the veracity
of her allegations of sexual molestation.
Dr. D'Urso evaluated defendant on April 13 and May 12, 2016, and Kevin
on April 22, 2016. Dr. D'Urso testified that these evaluations were designed to
determine whether they had the parenting capacity to protect their daughter.
With respect to defendant, Dr. D'Urso testified:
She indicated that [the sexual molestation] occurred
somewhere in the summer of 2014. She reported that
[Mary] told her about this, that [Mary] told her - - her
father and her uncle, initially, and then [defendant]
reported these allegations to the paternal grandparents.
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Kevin denied he sexually molested Mary and claimed defendant
coached his daughter into making the disclosure, that if
it was really true . . . she should have made this
disclosure long before she did and that this was an
outgrowth of a longstanding conflict . . . in their
relationship where she attempted to hurt him in many
different ways.
Dr. D'Urso testified that Kevin's accusations against defendant did not provide
any basis to alter his clinical assessment of Mary.
II
Against these salient facts, Judge De Castro found, by a preponderance of
the evidence, that: (1) Kevin sexually molested Mary when she was six years
old; and (2) defendant acted in a wanton and grossly negligent manner and
placed her daughter in a substantial risk of harm when she failed to timely report
the abuse to law enforcement authorities. Judge De Castro acknowledged that
pursuant to N.J.S.A. 9:6-8.46(a)(4), "a child's statements regarding sexual abuse
are not reliable unless they can be corroborated." Relying on N.J. Div. of Youth
& Family Servs. v. Z.P.R., 351 N.J. Super. 427, 436 (App. Div. 2002), Judge De
Castro found Mary's account of the sexual molestation by her father was
corroborated by her description of the act itself, which included details of sexual
activity that are reasonably beyond the knowledge of a seven-year-old child.
This was also supported by Dr. D'Urso's expert testimony.
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Judge De Castro found, by a preponderance of the evidence, that
defendant abused and neglected her seven-year-old daughter within the meaning
of N.J.S.A. 9:6-8.21(c)(4), by failing to report the sexual abuse committed by
the child's biological father for eighteen months, by allowing the child to
continue to reside in the same premises as the perpetrator of the abuse, and by
allowing the perpetrator to have unsupervised access to the child. Defendant's
conduct constituted gross negligence and placed the child at a substantial risk of
harm.
"The fact-finding hearing is a critical element of the abuse and neglect
process." N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 264
(App. Div. 2002). The judge, as the fact-finder, is there "to determine whether
the child is an abused or neglected child as defined herein." N.J.S.A. 9:6–8.44.
Our standards of review require us to defer to the Family Part's findings of fact
that are based on the credibility of witnesses, N.J. Div. of Youth & Family Servs.
v. F.M., 211 N.J. 420, 448 (2012), and are supported by substantial competent
evidence. N.J.S.A. 9:6-8.46; R. 5:12–4(d).
An "abused or neglected child" is "a child less than 18 years of age whose
parent" fails "to exercise a minimum degree of care . . . in providing the child
with proper supervision or guardianship, by unreasonably inflicting or allowing
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to be inflicted harm, or substantial risk thereof." N.J.S.A. 9:6-8.21(c)(4)(b).
Here, the Division alleged defendant failed to take timely action to protect Mary
from imminent harm. Under these circumstances, we must determine whether
defendant failed to exercise a minimum degree of care as a matter of law. G.S.
v. Dep't of Human Servs., 157 N.J. 161, 182 (1999). As the Court explained in
G.S., "the phrase 'minimum degree of care' refers to conduct that is grossly or
wantonly negligent, but not necessarily intentional." Id. at 178. The Division
must prove that defendant acted with reckless disregard for her daughter's safety.
A finding of abuse and neglect must be based on the totality of the
circumstances. N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super.
320, 329 (App. Div. 2011).
The Division presented sufficient competent evidence to satisfy this
standard. We thus affirm substantially for the reasons expressed by Judge De
Castro in her memorandum of opinion.
Affirmed.
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