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NOT FOR PUBLICATION WITHOUT THE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-3290-16T2
NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,
Plaintiff-Respondent,
v.
A.B.-H.,
Defendant-Appellant,
and
R.H., W.T. and W.C.,1
Defendants.
______________________________
IN THE MATTER OF A.T., C.C.
and L.H.,
Minors.
_______________________________
Submitted May 9, 2018 – Decided June 8, 2018
Before Judges Manahan and Suter.
1
No findings were made as to W.T. and W.C., the natural fathers
of Amanda and Clara, respectively, therefore they are not parties
to this appeal.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FN-09-0361-16.
Joseph E. Krakora, Public Defender, attorney
for appellant (Thomas G. Hand, Designated
Counsel, on the briefs).
Gurbir S. Grewal, Attorney General, attorney
for respondent (Jason W. Rockwell, Assistant
Attorney General, of counsel; Sara M. Gregory,
Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minors A.T., C.C., and
L.H. (Lisa M. Black, Designated Counsel, on
the brief).
PER CURIAM
Defendant A.B.-H. (Alice) appeals from a November 29, 2016
order finding that she abused and neglected her daughter A.T.
(Amanda) by failing to protect Amanda from sexual abuse by the
child's stepfather, R.H. (Ronald), therefore placing her child at
substantial risk of harm pursuant to N.J.S.A. 9:6-8.21(c)(4)(b).2
We affirm.
The New Jersey Division of Child Protection and Permanency
(Division) became involved with the family on February 22, 2016,
after receiving a referral from a staff member at Amanda's school
reporting that Amanda, then fifteen years old, had a swollen left
2
Pursuant to Rule 1:38-3(d)(12) and Rule 5:12-1, we use initials
and fictitious names of the family members for purpose of
confidentiality.
2 A-3290-16T2
cheek and slight bruising under her left eye caused by a physical
altercation with her mother and stepfather. According to the
referral, Amanda stated that she was doing her daily chores when
Ronald became enraged, telling her she was not doing a good job.
Amanda's boyfriend intervened and tried to defend Amanda but he
was put into a headlock by Ronald. Amanda attempted to pull Ronald
off of her boyfriend. At that time, Alice approached Amanda and
hit her in the face.
Amanda also reported that until approximately one year prior
to this altercation, Amanda and Ronald had a good relationship
until he inappropriately touched her, which made her
uncomfortable. As a result of the referral, the Division opened
an investigation into the allegations.
The Division sent a caseworker, Carla Sousa, to interview
Amanda at her school. Amanda told Sousa that sometime in August
2015, while lying on her bed, Ronald shaved her genitals, touched
her inappropriately with his finger and put his face "in her
private area."
Amanda also told Sousa that a few months after this occurred,
she told Alice about the incident. Alice confronted Ronald, who
denied the allegations. A few weeks later, Ronald confronted
Amanda and asked her why she told Alice about "their little
secret." Ronald then purchased a vibrator for Amanda so that she
3 A-3290-16T2
could "explore herself." Amanda stated that although Ronald
continued to live in the home, he did not touch her inappropriately
again.
After meeting with Amanda, Sousa conducted individual
interviews with Amanda's sister Clara, and with Alice and Ronald.
Clara reported that she witnessed her mother hit Amanda in the
face. She further stated that Ronald never hit her or touched her
inappropriately. Alice said that the altercation occurred because
Amanda was not doing her chores correctly. After engaging in a
verbal altercation, Alice stated that Amanda physically assaulted
both her and Ronald. Ronald acknowledged that he had an
altercation with Amanda. Sousa did not inquire about the sexual
abuse. At the conclusion of the interviews, Alice and Amanda
agreed that Amada should live with her aunt. Further, the Division
implemented homemaker services in the family home to ensure the
safety of the children.
On February 23, 2016, Detective Mark Sojak from the Hudson
County Prosecutor's Office interviewed Amanda, Ronald and Alice.
Amanda repeated the statements she made to Sousa and to school
personnel confirming that Ronald purchased the vibrator for her
and that she told her mother about Ronald's actions. She also
confirmed Ronald shaved her and inappropriately touched her.
Ronald admitted buying the vibrator for Amanda but denied shaving
4 A-3290-16T2
Amanda's private area or any sexual contact with her. Alice
confirmed that Amanda told her about the shaving incident but
disregarded the accusations after Ronald denied them and because
Amanda had a tendency to lie. When questioned by Sojak, Alice
confirmed sexual practices between her and Ronald, including his
shaving her private area. A no-contact order between Ronald and
Amanda was put into place.
Subsequently, Ronald submitted to a polygraph test, which he
failed. He was then arrested and charged with aggravated sexual
assault, child abuse and endangering the welfare of a child.
Amanda continued to reside with her aunt until the end of the
school year. Afterward, it was her intention to reside with her
maternal grandmother in South Carolina.
On March 10, 2016, Amanda underwent a psychological
evaluation at The Audrey Hepburn Children's House (AHCH), a
diagnostic child abuse center. Amanda discussed the allegations
of sexual abuse with Dr. Elouise Berry, and stated that despite
Alice's lack of support, she missed her mother and sisters and
wanted to return home. Amanda admitted having thoughts of self-
mutilation but said she had not acted upon those thoughts. She
stated that prior to the incident she did not have any academic
or social issues at school. Amanda further stated that since the
5 A-3290-16T2
incident she felt self-conscious and was worried about her safety
when around boys.
Following the clinical interview, Dr. Berry determined that
Amanda experienced a significant level of anxiety due to the
physical and sexual trauma and recommended Amanda participate in
individual trauma-focused therapy as well as group therapy with
Alice and her sisters. Dr. Berry further found the inappropriate
sexual abuse by Ronald was "clinically supported" as was the
allegation of "neglect-substantial risk of physical injury" by
Alice.
Amanda attended a second evaluation for sexual and physical
abuse at AHCH. At the conclusion of the evaluation, it was
recommended that there be no contact between Ronald and Amanda
until the completion of the investigation, and that Amanda submit
to a follow-up medical exam if necessary.
On May 10, 2016, the Division filed a verified complaint for
the protection, care and supervision of Amanda, Clara and their
sister, Lauren, which also named Alice and Ronald as defendants.
An order to show cause was conducted on May 31, 2016. At the
conclusion of the hearing, the judge granted the Division care and
supervision of the children pursuant to Title 30, based upon the
allegations in the complaint of inappropriate sexual contact. The
judge further ordered that Ronald would have supervised visitation
6 A-3290-16T2
with his natural daughter Lauren, and would not be permitted to
return to the residence in the event he was released from
incarceration.
Thereafter, on June 16, 2016, at the return of the order to
show cause hearing, the judge ordered Alice to attend a
psychological evaluation, and individual and family counseling.
Ronald was offered a psycho-social evaluation and individual
counseling by the Division upon his release from incarceration.
A compliance review hearing was held on September 22, 2016.
The judge ordered the Division assist with providing bunk beds so
that the children could sleep separately and provide more living
space, as well as a kitchen table and chairs, so that Alice and
the children could receive in-home counseling services.
On October 24, 2016, Ronald pled guilty to second-degree
endangering the welfare of a child after he admitted to purchasing
the vibrator for Amanda and that he engaged in the act of shaving
her.3
A Title 9 fact-finding commenced on November 9, 2016. The
Division presented several witnesses, including Sousa and Dr.
3
It was unclear during the plea articulation what area on Amanda
he shaved.
7 A-3290-16T2
Anthony Vincent D'Urso,4 Supervising Psychologist at AHCH. On
direct examination, Sousa stated that the Division received a
referral in February 2016, in regards to the physical abuse of
Amanda, then fifteen years old.
Sousa stated that she interviewed Amanda and that Amanda
informed her during their initial interview that in addition to
the physical abuse by Alice and Ronald, she had a "sexual encounter
with her stepfather, [Ronald.]" Sousa testified:
[Amanda] went to her bedroom and she had a
sundress on, she laid on her bed and she put
the TV on.
At that point she said that [Ronald] came
into the bedroom and . . . had taken off the
blanket and had asked her if she had shaved
her genitals. She then had said no and asked
why he was asking her that. At that point
[Ronald] had left the bedroom and then had
returned to the bedroom several minutes later
with a bowl of water and a straight razor.
At that point [Amanda] said that . . .
[Ronald] started shaving her genital areas.
[Amanda] . . . asked him . . . why he was
doing that and for him to stop, which he then
proceeded to, according to [Amanda], put his
finger on her clitoris and then put his face
in her private area and asked her if she liked
it. . . . [Amanda] had told him to get off of
her and he did.
4
Defense counsel stipulated to Dr. D'Urso's expert qualifications
as a licensed psychologist.
8 A-3290-16T2
Upon further questioning regarding other concerns of sexual
conduct, Sousa added:
[Amanda] also had informed me that prior to
that sexual contract [sic] [Ronald] . . .
purchased her a vibrator and he had told her
. . . that he would rather have her explore .
. . herself rather than have sex with other
males.
In terms of this particular episode, Sousa testified that
Amanda "informed me that she did tell her mother about both
incidents" and "that her mother, [Alice], that she smoke [sic] to
[Ronald] about the incident and that [Ronald] had denied anything
that had ever happened and that that was it."
Dr. D'Urso was the Division's second witness. He acknowledged
his signature as a co-author on the evaluation of Amanda conducted
by Dr. Berry that was marked for identification. Dr. D'Urso
testified that Amanda was seen at AHCH based upon allegations of
sexual abuse by Ronald, and allegations of "voyeuristic behavior."
During his testimony, Dr. D'Urso explained the standard interview
protocol that matches the developmental level of the child; the
clinical interview process, which determines whether the child is
able to understand simple rules and whether they understand the
difference between a truth and a lie; and the differences in the
disclosure process, which is generally described as "accidental"
when dealing with younger children and "purposeful" with older
9 A-3290-16T2
children. With regard to Amanda, Dr. D'Urso determined she had
an adequate understanding of rules, truths and lies, and that she
ultimately made purposeful disclosures in terms of the sexual
behavior of Ronald.
Dr. D'Urso testified that Amanda "had disclosed the incidents
[to her mother] earlier in the fall of 2015 according to her."
Dr. D'Urso also stated although Alice agreed that buying the
vibrator was inappropriate, she was "consistently ambivalent about
the truthfulness of the sexual behavior that existed." Dr. D'Urso
further testified that regardless of Amanda's disclosure, Alice
did not limit access to Amanda and permitted Ronald to "remain[]
living in the home and serve[] as a parent."
Dr. D'Urso opined that both the sexual and physical abuse
allegations were clinically supported by
acts that were corroborated, purchase of a
vibrator, involvement with [Ronald]. . . .
There was some concern about sexualized
behavior that sh[e] might be engaged in, so
there was a context to understand some sexual
behavior.
There was the initiation of something
that was recognized, the vibrator for purposes
of sexual exploration . . . . And then there
were further statements about sexual behavior
that existed between [Amanda] and [Ronald]
where she gave us some detail that existed
between the parents, who both acknowledged
that she should be unaware of the kind of
activity in the household.
10 A-3290-16T2
. . . .
So the factors that we would look for
clinical supports . . . so there is detail,
there is a lack [of] fabrication or a motive
to fabricate, I should say. There was some
sexualized behavior that was acknowledged or
some initiating behavior that was
acknowledged. There was some idiosyncratic
detail. There was affect. She . . . had
emotional reactivity.
In an oral decision, the judge determined that Alice did
neglect or abuse her daughter by failing to protect her after she
was informed by Amanda of the sexual abuse by Ronald. The judge
found that these actions or inactions placed all of her children
at a substantial risk of harm pursuant to N.J.S.A. 9:6-
8.21(c)(4)(b). With regard to Alice, the judge held:
[Alice] never reached out for help for
that child. She was inconsistent in
testifying that she allowed him to shave
[Amanda's] legs on graduation day, she was
present, but she also testified she would have
broken his neck even just for shaving his
[sic] legs if she hadn't given him permission
to do it.
Basically, [Alice] was totally
incredible. She lacked credibility. . . .
She didn't believe her daughter, despite
sitting here listening to her husband
articulate the facts of a second-degree child
endangering guilty plea.
The judge further held:
. . . [Alice] fail[ed] to protect that child.
She never called the Division, she didn't seek
counseling, she didn't get [Ronald] out of the
11 A-3290-16T2
house, and she still is willing to let him
come home. She not only failed to protect
that child but she really contributed to the
problems and certainly poses a risk of harm
to that child. She's shown she's not going
to protect her.
The judge further held that Ronald's conduct fit within the
definition of sexual abuse and neglect and that he "told us so
under oath, so that's . . . uncontested."
After considering the proofs, the judge concluded that the
Division had established abuse and neglect by a preponderance of
the evidence against Alice.
On appeal, Alice argues the trial court erred in finding that
she committed an act of abuse or neglect against Amanda because
no credible evidence was provided to support the trial court's
findings.5 We disagree.
Our review of the court's factual finding of neglect is
limited; we defer to the court's determinations "when supported
by adequate, substantial, credible evidence." N.J. Div. of Youth
& Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008)
(quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). The
trial court is best suited to assess credibility, weigh testimony,
and develop a feel for the case, and we extend special deference
to the Family Part's expertise. N.J. Div. of Youth & Family Servs.
5
A similar argument was raised by Alice in her reply brief.
12 A-3290-16T2
v. M.C. III, 201 N.J. 328, 342-43 (2010); Cesare, 154 N.J. at 412-
13. Unless the trial judge's factual findings "went so wide of
the mark that a mistake must have been made," N.J. Div. of Youth
& Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting Snyder
Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App.
Div. 1989)), they should not be disturbed, even if we would not
have made the same decision if we had heard the case in the first
instance. See Clark v. Clark, 429 N.J. Super. 61, 71 (App. Div.
2012). "It is not our place to second-guess or substitute our
judgment for that of the family court, provided that the record
contains substantial and credible evidence to support" the judge's
decision. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J.
420, 448-49 (2012) (citing N.J. Div. of Youth & Family Services
v. E.P., 196 N.J. 88, 104 (2008)).
Title 9 defines an "abused or neglected child" as "a child
less than [eighteen] years of age whose parent or guardian . . .
commits or allows to be committed an act of sexual abuse against
the child[.]" N.J.S.A. 9:6-8.21(c)(3). The burden is on the
Division to prove abuse or neglect by a preponderance of the
"competent, material and relevant evidence[.]" N.J.S.A. 9:6-
8.46(b); N.J. Dep't of Children & Families v. A.L., 213 N.J. 1,
22 (2013).
13 A-3290-16T2
The Legislature has defined "sexual abuse" to mean "contacts
or actions between a child and a parent or caretaker for the
purpose of sexual stimulation of either that person or another
person[,]" and includes,
(a) the employment, use, persuasion,
inducement, enticement, or coercion of any
child to engage in, or assist any other person
to engage in, any sexually explicit conduct
or simulation of such conduct; (b) sexual
conduct including molestation, prostitution,
other forms of sexual exploitation of
children, or incest; or (c) sexual penetration
and sexual contact as defined in N.J.S.[A.]
2C:14-1 and a prohibited sexual act as defined
in N.J.S.[A.] 2C:24-4.
[N.J.S.A. 9:6-8.84.]
Pursuant to N.J.S.A. 9:6-8.21(a), a "[p]arent or guardian"
means "any . . . paramour of a parent, or any person, who has
assumed responsibility for the care, custody, or control of a
child or upon whom there is a legal duty for such care."
A court does not have to wait until a child is actually harmed
before it can act in that child's welfare. N.J. Div. of Youth &
Family Servs. v. V.M., 408 N.J. Super. 222, 235-36 (App. Div.
2009) (Carchman, P.J.A.D., concurring) (citing In re Guardianship
of D.M.H., 161 N.J. 365, 383 (1999)). Nor does harm inflicted by
a defendant need to be intentional in order to substantiate a
finding of abuse or neglect. M.C. III, 201 N.J. at 344.
14 A-3290-16T2
In finding neglect, the court must base its determination 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). A
finding of neglect must be based on the preponderance of the
evidence. N.J.S.A. 9:6-8.46(b); N.J. Div. of Youth & Family Servs.
v. G.M., 198 N.J. 382, 398 (2009).
It is undisputed that Alice, based on her status in the
household, qualified as a "parent or guardian" under N.J.S.A. 9:6-
8.21(a). Given Alice's statutory status and the proofs adduced
during the hearing relative to the acts of sexual abuse, we discern
no error in the determination that Alice's conduct constituted
abuse or neglect.
Affirmed.
15 A-3290-16T2