Dcpp v. I.F., K.L., W.A., and L.S.-p., in the Matter of G.L. and A.A. ( 2024 )

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NOT FOR PUBLICATION WITHOUT THE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-2654-22
A-2655-22
NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,
Plaintiff-Respondent,
v.
I.F. and L.S.-P.,
Defendants-Appellants,
and
K.L. and W.A.,
Defendants.
___________________________
IN THE MATTER OF G.L. and
A.A., minors.
____________________________
Submitted September 24, 2024 – Decided October 24, 2024
Before Judges Gilson and Augostini.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Gloucester County,
Docket No. FN-08-0063-22.
Jennifer N. Sellitti, Public Defender, attorney for
appellant I.F. (David A. Gies, Designated Counsel, on
the briefs).
Jennifer N. Sellitti, Public Defender, attorney for
appellant L.S.-P. (Arthur David Malkin, Designated
Counsel, on the brief).
Matthew J. Platkin, Attorney General, attorney for
respondent (Janet Cohen, Assistant Attorney General,
of counsel; Lisa J. Rusciano, Deputy Attorney General,
on the brief).
Jennifer N. Sellitti, Public Defender, Law Guardian,
attorney for minors (Meredith Alexis Pollock, Deputy
Public Defender; Julie E. Goldstein, Assistant Deputy
Public Defender, of counsel and on the brief).
PER CURIAM
In these consolidated matters, I.F. (Ingrid) and L.S.-P. (Leon) appeal from
an October 21, 2022 order finding that they had abused and neglected Ingrid's
teenage daughter, G.L. (Gina).1 Following an evidentiary hearing, the family
court found that Leon had sexually abused Gina by inappropriately touching her
on at least two occasions. The court also found that Ingrid had neglected Gina
1
To protect privacy interests and the confidentiality of the record, we use
initials and fictitious names. R. 1:38-3(d)(12).
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2
by allowing Leon to be with Gina after Ingrid was aware that Leon had sexually
abused Gina while there was a restraining order in place prohibiting Leon from
having contact with Gina. Because the family court's findings of facts are
supported by substantial credible evidence and because its legal conclusions are
consistent with well-established law, we affirm.
I.
Ingrid is the biological mother of two daughters: Gina, born in December
2005, and A.A. (Aimee), born in May 2010. Leon is married to Ingrid and is
the stepfather of both the daughters. K.L. is the biological father of Gina and
W.A. is the biological father of Aimee. W.A. is also the brother of Leon.
Neither of the biological fathers were found to have abused or neglected either
child and they are not involved in these appeals.
The allegations that Leon had sexually abused Gina came to light in 2021.
On May 6, 2021, the Division of Child Protection and Permanency (the
Division) received a report that Gina had disclosed that Leon had sexually
abused her. The following day, a Division case worker, Jennifer Djakow, met
with and interviewed Gina, Aimee, and Ingrid. Initially, Gina, Aimee, and
Ingrid all denied experiencing or witnessing any sexual abuse. Instead, Ingrid
informed Djakow that Leon was no longer living with the family and that she
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had obtained a final restraining order (FRO) against Leon in December 2020.
Shortly thereafter, the Division reported the allegations to the Gloucester
County Prosecutor's Office.
On May 8, 2021, the Mantua Police Department contacted the Division
concerning a domestic violence incident between Ingrid and Leon. According
to the police, Gina and Aimee had witnessed an escalating fight between Ingrid
and Leon and they had texted their maternal aunt, M.F. (Mary), who in turn
called the police. Police officer Adam Hasselman responded to the home, where
he found Ingrid, Leon, and the children. Ingrid and Leon denied that they had
been arguing and instead told the officer that they had merely been talking
loudly and yelling at each other. At the officer's suggestion, Ingrid allowed the
children to leave with Mary. Leon was arrested for violating the December 2020
FRO.
On May 12, 2021, Djakow conducted a follow-up interview with Gina.
Gina informed Djakow that she had previously not told the truth, and she
reported that Leon had sexually assaulted her when she was between the ages of
twelve and fifteen. Gina also informed Djakow that Leon was still living in the
family home and that she did not feel safe.
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Djakow called the police and later that day, Detective Colleen McClauslin
interviewed Gina and Ingrid. Gina repeated to the detective that Leon had
sexually abused her. Gina described various assaults, including a time when
Leon took Gina into a room, pulled out his penis, and told her he would "put it
in her." Gina also described another assault when Leon put liquid on his finger
and touched her vagina. The detective then shared that information with Ingrid,
who stated that it was "awkward for her to believe" the report, but she
acknowledged that Gina was not a "liar."
In response to the report of sexual abuse by Leon, the Division
implemented a safety protection plan with Ingrid. Under that plan, Leon was
not to have any contact with the children. The Division also arranged for Gina
and Aimee to be examined by a medical doctor.
Shortly thereafter, on May 20, 2022, Dr. Stephanie Lanese, M.D., of the
New Jersey CARES Institute, interviewed and examined Gina and Aimee to
determine if they needed treatment for sexual abuse. 2 Gina disclosed to Dr.
2
The CARES Institute is one of four regional diagnostic and treatment centers
for child abuse. See N.J.S.A. 9:6-8.99. The Institutes were established by the
Commissioner of the Department of Children and Families in consultation with
the New Jersey Task Force on child abuse and neglect to address the medical
and mental health diagnostic and treatment needs of abused and neglected
children. Ibid.
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Lanese that Leon had sexually abused her. Gina did not want Dr. Lanese to
physically examine her, but based on Gina's statements, Dr. Lanese found that
Gina had been sexually abused by Leon and she recommended that Gina be
referred for mental health services. Dr. Lanese did not find that Aimee had been
abused.
In June 2021, the Division lifted the safety protection plan because Ingrid
signed a family agreement, which prohibited Leon from having contact with the
children. Approximately two months later, in September 2021, Ingrid and Leon
were involved in another domestic violence incident, during which Leon
allegedly attempted to strangle Ingrid. Gina witnessed that incident and, fearing
for Ingrid's safety, threw a knife at Leon. Leon was not injured, but the police
responded, and Ingrid obtained a new restraining order.
Thereafter, Leon was arrested and based on Gina's report, was charged
with aggravated criminal sexual contact and endangering the welfare of a child.
He was released pre-trial, and the criminal court issued a Sexual Offense
Restraining Order (SOR Order), which prohibited Leon from having any contact
with Gina or going to her home or school. The SOR Order also barred Leon
from having contact with Aimee.
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In November 2021, the Division received information that Leon was
violating the SOR Order. Djakow investigated that report by interviewing Gina.
Gina disclosed that Leon had been to the family's home on several occasions
and that he had gone with Ingrid, Gina, and Aimee to a movie. Gina also
reported that she felt "unsafe and uncomfortable" when Leon was around her.
Ingrid admitted that Leon had been over to the family home to fix a door
but denied that Leon had spent the night or had gone to the movies with Ingrid
and her daughters. In response, the Division initiated a new safety protection
plan, requiring the children to stay with Mary and for Mary to supervise Ingrid's
contact with the children.
In December 2021, the Division decided to seek care and supervision of
Gina and Aimee. Accordingly, they sent a Spanish-speaking case worker to
meet with Ingrid, whose primary language was Spanish. The Spanish-speaking
case worker discussed and explained the court process to Ingrid. In providing
that explanation, Ingrid was informed that the Division was concerned because
she had allowed Leon to have contact with the children while the SOR Order
was in place.
In January 2022, the Division filed a verified complaint under Title Nine
and Title Thirty seeking care and supervision of Gina and Aimee. Thereafter,
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the family court granted the Division's application for care and supervision,
directing that the children were to remain in the physical custody of Mary, with
Ingrid continuing to have legal custody and visits supervised by Mary. The
court also restrained Leon from having any contact with the children.
Later that year, a fact-finding trial was conducted on October 6 and 7,
2022, to determine if Leon and Ingrid had abused or neglected Gina and Aimee.
At the hearing, five witnesses testified: Gina, Djakow, Dr. Lanese, Officer
Hasselman, and Detective McClauslin. Neither Ingrid nor Leon testified and
neither of them called any witnesses.
Gina testified and explained how Leon had sexually assaulted her. In that
regard, Gina explained that Leon had touched her thighs, massaged her
shoulders, and touched her vagina under her clothes. She described that Leon
had exposed his penis to her and that he had put his penis against her buttocks.
She also stated that on another occasion, Leon had put a liquid on his fingers
and touched her vagina.
Gina told the court that she had reported this sexual abuse to her mother,
but she felt that Ingrid "didn't take it seriously." Gina also explained that after
the SOR Order was put in place, Leon still came over to the family home and
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saw her on several occasions. In addition, Gina told the court that Leon had
engaged in violent behavior with her and her mother.
Djakow testified concerning the Division's investigations and its findings.
She detailed what Gina had reported to her concerning Leon's sexual abuse.
Djakow also explained the Division's concerns regarding Ingrid allowing Leon
to have contact with the children after the SOR Order had been issued.
Dr. Lanese was qualified as an expert in child abuse and neglect. She
testified concerning her interview and examination of Gina and Aimee. She
explained that while Gina did not want a physical examination, she believed that
Gina had been sexually abused by Leon based on her expertise and Gina's
consistent reporting of the abuse. In that regard, Dr. Lanese recounted that Gina
had described how Leon sexually abused her over a period of several years. The
abuse began with touching, progressed to massages, and included two specific
instances. In one instance, Leon had called Gina into his bedroom, pulled out
his penis, and touched Gina's buttocks. In another instance, Gina had reported
to Dr. Lanese that Leon had put a clear liquid on his finger and then put his
finger on Gina's vagina.
In her testimony, Dr. Lanese explained that the lack of a physical
examination of Gina did not preclude her from making a diagnosis of sexual
A-2654-22
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abuse. Dr. Lanese then opined, to a reasonable degree of medical certainty, that
Gina had been sexually abused.
Detective McClauslin described her investigation of Gina's reports of
sexual abuse, including her interviews with Gina. The detective also described
Gina's disclosures concerning Leon's physical abuse of both Gina and Ingrid,
and Gina's fear of Leon.
Based on the evidence at the hearing, on October 21, 2022, the family
court placed an oral decision on the record and issued an order finding that Leon
and Ingrid had abused and neglected Gina.
The family court found that all the Division's witnesses had testified
credibly. Concerning Leon, the court found that there was substantial and
credible evidence that he had sexually assaulted Gina on at least several
occasions. In making that finding, the court relied on the testimony of Gina, as
well as the corroborative and consistent reports Gina had made to Djakow, Dr.
Lanese, and Detective McClauslin.
Regarding Ingrid, the court found that she was aware of Gina's reports
concerning Leon, that she was aware of the SOR Order, and that she understood
that the Order prohibited Leon from having contact with Gina. Despite that
knowledge, the court found that Ingrid had allowed Leon to have contact with
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Gina and Aimee and thereby had put her daughters in potentially dangerous
situations.
Several months after the October 21, 2022 fact-finding order had been
issued, on March 22, 2023, the family court dismissed the protective services
litigation. Shortly thereafter, Ingrid and Leon filed separate appeals from the
October 21, 2022 order. We consolidated those appeals.
II.
In his appeal, Leon contends that the finding of abuse was not supported
by sufficient evidence because the Division did not prove that Gina suffered
physical injuries or enduring psychological harm. He also alleges that he was
denied due process because he could not testify at the hearing given that he had
pending criminal charges.
In her appeal, Ingrid argues that the family court failed to make
particularized findings concerning the risk she posed to Gina. In that regard,
she asserts that her actions did not cause any harm to Gina. She also contends
that she had not engaged in any grossly negligent conduct.
We are not persuaded by any of these arguments. There is substantial
credible evidence that Leon sexually abused Gina. The evidence also establishes
that after Ingrid was aware of Leon's abuse of Gina, and after Ingrid was aware
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of the SOR Order prohibiting Leon from having any contact with Gina, Ingrid
allowed Leon to have contact with Gina. Ingrid's actions therefore put Gina at
substantial risk of harm.
A. The Law.
The adjudication of abuse or neglect is governed by Title Nine, which is
designed to protect children. N.J.S.A. 9:6-1 to -8.114. Under Title Nine, a child
is abused or neglected if:
[a] parent or guardian . . . 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 . . . 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 or
guardian . . . to exercise a minimum degree of care . . .
in providing the child with proper supervision or
guardianship, by unreasonably inflicting or allowing to
be inflicted harm, or substantial risk thereof . . . .
[N.J.S.A. 9:6-8.21(c).]
The statute does not require the child to suffer actual harm. N.J.S.A. 9:6-
8.21(c)(4). Instead, abuse or neglect is established when a child's "physical,
mental, or emotional condition has been impaired or is in imminent danger of
becoming impaired." Ibid. When there is an absence of actual harm, but there
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exists a substantial risk of imminent danger, the court must consider whether the
parent exercised a minimum degree of care under the circumstances. G.S. v.
Dep't of Human Servs., 157 N.J. 161, 171 (1999) (citing N.J.S.A. 9:6-
8.21(c)(4)(b)).
The failure to exercise a "minimum degree of care" refers to "conduct that
is grossly or wantonly negligent, but not necessarily intentional." Id. at 178(citation omitted); see also Dep't of Child. & Fams., Div. of Youth & Fam. Servs.
v. T.B., 207 N.J. 294, 306-07 (2011) (affirming the interpretation of "minimum
degree of care"). "Conduct is considered willful or wanton if done with the
knowledge that injury is likely to, or probably will, result." G.S., 157 N.J. at178 (citing McLaughlin v. Rova Farms, Inc., 56 N.J. 288, 305 (1970)). A parent
fails to exercise a minimum degree of care if, despite being "aware of the
dangers inherent in a situation," the parent "fails adequately to supervise the
child or recklessly creates a risk of serious injury to that child." Id. at 181
(citation omitted). Moreover, a "parent has the obligation to protect a child from
harms that can be inflicted by another parent" or person. N.J. Div. of Youth &
Fam. Servs. v. F.M., 211 N.J. 420, 449 (2012); N.J. Div. of Child Prot. &
Permanency v. K.N.S., 441 N.J. Super. 392, 399 (App. Div. 2015).
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The Division must prove by a preponderance of the competent, material,
and relevant evidence that a child is abused or neglected. N.J.S.A. 9:6-8.46(b).
That burden of proof requires the Division to demonstrate a "probability of
present or future harm." N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J.
Super. 13, 24 (App. Div. 2004). Title Nine cases are fact-sensitive, and the court
should base its findings 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) (citation
omitted).
The scope of our review of an appeal from an order finding abuse or
neglect is limited. N.J. Div. of Child Prot. & Permanency v. Y.A., 437 N.J.
Super. 541, 546 (App. Div. 2014) (citing N.J. Div. of Youth & Family Servs. v.
I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008)). We will uphold the family
court's factual findings and credibility determinations if 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) (first citing In re Guardianship of J.T.,
269 N.J. Super. 172, 188 (App. Div. 1993); then citing Cesare v. Cesare, 154
N.J. 394, 411-13 (1998)). Accordingly, an appellate court will only overturn the
court's findings if they "went so wide of the mark that the judge was clearly
mistaken." G.L., 191 N.J. at 605. We do not, however, give "special deference"
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to the family court's interpretation of the law. D.W. v. R.W., 212 N.J. 232, 245
(2012) (citing N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 183
(2010)). Consequently, we apply a de novo standard of review to legal issues.
Id. at 245-46 (citation omitted).
B. The Abuse By Leon.
The family court found substantial credible evidence supporting the
conclusion that Leon had sexually abused Gina. Gina testified and described
the sexual abuse in detail. The family court then found Gina's testimony to be
credible and "[v]ery consistent in the details, which were idiosyncratic and not
dramatically odd or strange, just really specific." The family court correct ly
found that Gina's testimony by itself established, by a preponderance of the
evidence, that Gina had been sexually abused by Leon.
The Division, however, did not simply rely on Gina's credible testimony.
It also provided the testimony of Dr. Lanese, Djakow, and Detective
McClauslin. Gina had reported the sexual abuse to all three of those witnesses
and her reporting was consistent with her trial testimony. Moreover, Dr. Lanese,
a qualified expert, opined that Gina had been sexually abused. Taken in totality,
the evidence of Leon's sexual abuse of Gina was substantial and compelling.
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We reject Leon's contention that the Division failed to prove that Gina
"suffered physical injuries or enduring psychological harm." The sexual abuse
of a minor is harmful. See State v. Higginbotham, 257 N.J. 260, 275-76 (2024)
(holding that distributing child pornography and sexually abusing children are
interrelated, and cause "continuing harm by haunting the children in years to
come[.]") (internal citation omitted); see also J.S. v. R.T.H., 155 N.J. 330, 352
(1998) (holding that a "spouse has a duty of care to take reasonable steps to
prevent or warn of the harm" resulting from the sexual abuse of a child).
We also reject Leon's argument that he was unable to defend the
allegations of abuse because of his pending criminal charges. The Fifth
Amendment of the United States Constitution "protects individuals from
providing testimonial evidence that he or she 'reasonably believes could be used
in a criminal prosecution or could lead to other evidence that might be so used.'"
N.J. Div. of Child Prot. & Permanency v. S.K., 456 N.J. Super. 245, 266 (App.
Div. 2018) (quoting Kastigar v. United States, 406 U.S. 441, 445 (1972)). "The
touchstone of the Fifth Amendment is compulsion. The inquiry must, therefore,
focus on whether an individual has been put in a position that by its very nature
is so coercive, due to either physical or psychological factors, that it compels
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the individual to make an incriminatory statement involuntary." In re
Guardianship of D.J.M., 325 N.J. Super. 150, 155 (Ch. Div. 1999).
No one compelled Leon to testify. Indeed, he elected not to testify at the
evidentiary hearing. It has long been recognized that while a party charged with
abuse or neglect of a child has the right to invoke his or her Fifth Amendment
right to silence, that right does not mean that the evidentiary hearing concerning
the abuse and neglect should be delayed. See id. at 160-61. Children have a
right to be protected and delaying abuse and neglect proceedings would interfere
with that right. Ibid. In short, a parent's or guardian's right to invoke the Fifth
Amendment must yield to the right of a child not to be left in limbo. See id. at
161-62.
C. The Neglect By Ingrid.
The family court found that Ingrid repeatedly exposed Gina to harm by
allowing Leon to be with Gina. In that regard, the court found that after Ingrid
was aware of Gina's reports of sexual abuse by Leon, and after the SOR Order
had been issued, Ingrid still permitted Leon to have contact with Gina. The
court expressly found that Ingrid had received a copy of and understood the
terms of the SOR Order. Those findings are all supported by substantial credible
evidence.
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In its definition of child abuse or neglect, Title Nine includes
circumstances where a parent or guardian allows a child to be placed in a
situation where the child is exposed to a "substantial risk" of harm. N.J.S.A.
9:6-8.21(c)(4)(b). Given that Leon had previously sexually abused Gina, and
given that Ingrid knew of that abuse and knew of the order prohibiting Leon
from having contact with Gina, the law does not require further abuse by Leon.
Leon's mere presence exposed Gina to the potential for further assaults and the
psychological stress of being present with her abuser. See generally New Jersey
Div. of Child Prot. & Permanency v. A.D., 455 N.J. Super. 144 (App. Div. 2018)
(affirming the trial court's finding that stepfather had abused stepdaughter
"Nancy," after considering and relying on Nancy's history of being sexually
abused).
In summary, there is substantial and credible evidence supporting the
family court's finding that Leon abused Gina and that Ingrid neglected her. We,
therefore, affirm all provisions of the family court's order dated October 21,
2022.
Affirmed.
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