DCPP VS. T.C., A.V., AND J.L., IN THE MATTER OF L.V., K.L., AND A.L. (FN-09-0211-18, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

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NOT FOR PUBLICATION WITHOUT THE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-2848-19
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
T.C., and A.V.,
Defendants,
and
J.L.,
Defendant-Appellant.
________________________
IN THE MATTER OF L.V.,
K.L., and A.L., Minors.
Submitted May 18, 2021 – Decided June 14, 2021
Before Judges Yannotti and Haas.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FN-09-0211-18.
Joseph E. Krakora, Public Defender, attorney for
appellant (Richard Foster, Assistant Deputy Public
Defender, of counsel and on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Sookie Bae, Assistant Attorney General, of
counsel; Julie B. Colonna, 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
J.L. appeals from an order entered by the Family Part on December 17,
2018, which found that he sexually abused his stepdaughter L.V. on multiple
occasions and abused or neglected his two children, K.L. and A.L., by placing
them at substantial risk of harm. We affirm.
I.
In November 2016, L.V., who was then eight years old, was living with
her mother T.C., J.L., and two younger stepsisters, A.L. and K.L. L.V.'s birth
father is A.V., who was at the time in the military and stationed in North
Carolina. On November 6, 2016, the Division of Child Protection and
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Permanency (Division) received a referral from the Jersey City police,
indicating that L.V. had reported to her paternal aunt P.V. that J.L. had been
sexually abusing her in the previous two years.
The Division assigned two of its workers to investigate. They met the
police, T.C., L.V., and other family members at a hospital in Jersey City. On
November 6, 2016, the Special Victims Unit (SVU) of the Hudson County
Prosecutor's Office (HCPO) later conducted interviews of L.V., J.L., and others.
L.V. told the investigators that J.L. had repeatedly assaulted her sexually. She
explained that his "private part" touched her "private part."
L.V. stated that at times, J.L. would touch her "butt" with his penis.
Sometimes his penis would touch her body on top of her clothes, and at other
times on her skin. She said that whenever these incidents occurred, no one else
was around. L.V. stated that J.L.'s penis did not touch any other part of her
body, and she did not touch his penis with her mouth.
J.L. denied sexually abusing L.V. When he was asked to explain what
happened, J.L. responded:
[S]he probably took it wrong, I guess. Sometimes we
all laying down with my daughters, it looked to me like
I [was] trying to touch her, but sometimes, you know,
how you hug, . . . to like give them love. . . . So, I guess
. . . I don't know how she took it. But it's not like I was
on her and stuff like that, but, yeah, we was just laying
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down. [T.C.] was in the living room. And[] then, I . . .
just don't understand how [could] be doing stuff when
. . . her mom is around . . . [w]e was just laying down,
you know? It's not like I can just do stuff. . . . We was
just watching TV, laying down, you know, the girls is
running around. But . . . that doesn't mean that I'm
touching her.
J.L. asserted that L.V. probably "took it" the wrong way. He said he was
not calling L.V. a liar. He stated that he hugged L.V. while they were laying
together on his bed, but he did not know "how she took it." He also stated that
when L.V. moved, "she rubbed, but that doesn't mean she . . . had [his penis] in
her hand . . . ." Initially, J.L. said L.V. always wore underwear when he hugged
her, but he stated later that sometimes she was not wearing a shirt or panties.
J.L. explained that he would wear a robe over loose underwear and there
were holes in his underwear. He denied that his penis fell out of his underwear,
but he "guess[ed]" that L.V. saw his penis when he sat down because his
underwear was "short." He stated that whenever he lay on the bed with L.V., he
tried to pull his robe over his underwear.
The Division thereafter implemented a safety protection plan, which
barred J.L. from the family home until it completed its investigation. The
Division also arranged for L.V. to be evaluated and receive counseling at Audrey
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Hepburn Children's Hospital (AHCH). J.L. was allowed supervised visitation
with K.L. and A.L.
In November 2016, the Division found that the allegations of abuse or
neglect of K.L. and A.L. had not been substantiated, but the allegations that J.L.
sexually abused L.V. were substantiated. The HCPO closed its case, without
bringing any criminal charges against J.L.
In December 2016, Dr. Patricia Sermabeikian, social work supervisor at
AHCH, performed a psychosocial evaluation of L.V. Dr. Sermabeikian and Dr.
Anthony V. D'Urso, supervising psychologist at AHCH, issued a report dated
February 22, 2017. They found that sexual abuse was clinically supported and
L.V. was suffering from Post-Traumatic Stress Disorder (PTSD).
Dr. Sermabeikian and Dr. D'Urso recommended that L.V. receive sexual
abuse specific treatment "so that she can process the sexual abuse experiences,
learn protective and coping skills and how to address her symptoms and
triggers." They stated that L.V.'s mother would benefit from being involved in
the treatment and recommended that L.V. have no contact with J.L.
In addition, in January 2017, Dr. Paulett Diah at AHCH conducted a
medical evaluation of L.V. The Division's worker informed Dr. Diah that L.V.
had recently begun to question whether the sexual assaults she had reported were
5 A-2848-19
real or a dream. In her report, which is dated February 14, 2017, Dr. Diah stated
that the physical examination neither confirmed nor denied the possibility of
sexual abuse. She said L.V. should be referred for a psychosocial evaluation to
assess any emotional trauma she might have sustained due to the reported sexual
abuse.
Thereafter, the Division referred L.V. for sexual abuse therapy. In
November 2017, the therapy provider reported to the Division that L.V. was
afraid to go home. According to the provider, L.V. said J.L. had been in the
family home. L.V. also said her mother was making her recant her statements
about J.L. and would hit her after therapy. She then denied that J.L. had sexually
abused her.
The Division investigated the report and learned that J.L. had been in the
home, despite the restrictions the Division had previously imposed. T.C. signed
a new safety protection plan and again agreed to restrictions on J.L.'s contact
with the children.
On December 27, 2017, the Division filed a verified complaint for care
and supervision of all three children under N.J.S.A. 9:6-8, N.J.S.A. 30:4C-12
and Rule 5:12-1 to -7. In the complaint, the Division alleged that all three
6 A-2848-19
children were abused or neglected. The complaint included the allegations that
J.L. sexually abused L.V.
The trial court entered an order dated January 9, 2018, granting the
Division's application for care and supervision. The court barred J.L. from
having any contact with L.V. and required supervision of his contacts with K.L.
and A.L. The court thereafter entered orders which provided, among other
things, that the children would remain under the Division's care and supervision.
The Division referred L.V. for a second evaluation at AHCH, which began
in April 2018. AHCH's evaluation was scheduled to be completed in September
2018, but it was delayed because Dr. Sermabeikian was unexpectedly
unavailable.
The evaluation continued in October 2018 and was completed later that
month. During the evaluation, L.V. stated that her mother told her the
allegations of sexual abuse were a dream. However, L.V. insisted that J.L. had
touched her, as she stated previously. She told the evaluator, "I think it was real.
I told you."
In September 2018, J.L. had a parenting evaluation at AHCH. The report
of the evaluation was signed by Dr. Kirsten Byrnes, a staff psychologist at
AHCH, and Dr. D'Urso. The report recommended that J.L. be referred to
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therapy "with someone who specializes in treating parents who have engaged
their children in sexual contact." The report stated that J.L. had to process L.V.'s
disclosures, the impact the Division had had on the family, and "develop an
appropriate safety plan to prevent any future abuse."
Judge Lois Lipton conducted a fact-finding hearing on the Division's
abuse and neglect allegations, which began in October 2018. At the hearing, the
Division presented testimony from Division workers Olivia Ahumada and
Francisco Monterrosa, who detailed the Division's involvement with the family
and the investigation of L.V.'s allegations.
The Division also presented the videos of the HCPO's interviews,
including the videos of the interviews with L.V. and J.L. In addition, the
Division presented expert testimony by Dr. D'Urso. The parties presented no
other witnesses.
During the hearing, J.L. moved to dismiss the complaint on the ground
that the Division had not yet furnished the report from L.V.'s recent evaluation
at AHCH, and the Division had not presented sufficient evidence to support its
claim of abuse or neglect regarding K.L. and A.L. The judge denied the motion.
The Division then served the report from L.V.'s second evaluation at
AHCH, which is dated October 24, 2018, and signed by Dr. Sermabeikian and
8 A-2848-19
Dr. D'Urso. The report stated that sexual abuse was clinically supported, and
L.V. was again diagnosed with PTSD. Dr. Sermabeikian and Dr. D'Urso
recommended, among other things, that L.V. receive sexual abuse specific
treatment "so that she can process her sexual abuse experiences, address her
feelings and issues related to her recantations and reaffirmations of the sexual
abuse."
When the hearing resumed in November 2018, the Division presented
expert testimony by Dr. D'Urso. He explained that the purpose of a psychosocial
evaluation is to assess, diagnose, and provide a treatment plan for the individuals
and families involved. He pointed out that AHCH does not make credibility
assessments.
Dr. D'Urso discussed L.V.'s initial evaluation at AHCH in 2016 and her
reevaluation in 2018. He testified that L.V. had provided "idiosyncratic detail,"
which indicated that she actually experienced what she described. He said that
L.V.'s responses about needing to push away involuntary thoughts about the
incidents were consistent with PTSD.
The doctor also stated that a child's inconsistent statements over time is
referred to as "piecemeal disclosure." He explained that a child is not likely to
give an interviewer every incident that occurred in one immediate narrative. The
9 A-2848-19
child might provide somewhat different responses to different interviewers over
time.
Dr. D'Urso further testified that the incidents that L.V. described were the
"core of the evaluation," and L.V. did not deviate from her allegations. He noted
that before the second evaluation, L.V. had expressed some uncertainty as to
whether the incidents were real or a dream. He opined, however, that this was
not a recantation of the allegations because the investigation had not been
completed.
Dr. D'Urso stated that during the second evaluation, L.V. reaffirmed her
allegations of sexual abuse. He said L.V. had distinguished between a dream
and being told that it was a dream. He noted that L.V. had stated quickly and
spontaneously that her described experiences were not a dream.
Dr. D'Urso further testified that J.L.'s denials of sexual abuse did not
affect the AHCH's clinical conclusions because the opinion was largely based
on L.V.'s disclosures. He noted that a person accused of sexual abuse typically
denies such allegations.
On December 17, 2018, Judge Lipton issued an oral decision, finding that
J.L. had sexually abused L.V. on several occasions. The judge further found
that J.L. abused or neglected K.L. and A.L. The judge noted that the evidence
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showed K.L. and A.L. were in and out of the bedroom where J.L. was sexually
abusing L.V. The judge found that this placed K.L. and A.L. at substantial risk
of harm.
Judge Lipton memorialized her findings in an order dated December 17,
2018. Thereafter, the trial court conducted compliance review hearings and on
February 4, 2020, entered an order terminating the litigation. This appeal
followed.
II.
On appeal, J.L. argues that the trial court's finding that he sexually abused
L.V. should be reversed because the Division failed to present sufficient
evidence to corroborate L.V.'s out-of-court statements.
A trial judge's fact-findings will be upheld on appeal if they are "supported
by adequate, substantial, and credible evidence." N.J. Div. of Child Prot. &
Permanency v. B.H., 460 N.J. Super. 212, 218 (App. Div. 2019) (quoting N.J.
Div. of Youth & Fam. Servs. v. R.G., 217 N.J. 527, 552 (2014)). "We 'accord
deference to fact[-]findings of the family court because it has the superior ability
to gauge the credibility of the witnesses who testify before it and because it
possesses special expertise in matters related to the family.'" Ibid. (quoting N.J.
Div. of Youth & Fam. Servs. v. F.M., 211 N.J. 420, 448 (2012); see also N.J.
11 A-2848-19
Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 104 (2008) (the trial judge
"has a 'feel of the case' that can never be realized by a review of the cold
record")).
However, "[a] trial court's interpretation of the law and the legal
consequences that flow from established facts are not entitled to any special
deference." R.G., 217 N.J. at 552-53 (quoting Manalapan Realty, L.P. v. Twp.
Comm. of Manalapan, 140 N.J. 366, 378 (1995)). If the trial court's rulings
"'essentially involved the application of legal principles and did not turn upon
contested issues of witness credibility,' we review the court's corroboration
determination de novo." N.J. Div. of Child Prot. & Permanency v. A.D., 455
N.J. Super. 144, 156 (App. Div. 2018).
Under N.J.S.A. 9:6-8.21(c), an abused or neglected child is a child whose
parent or guardian:
(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 or guardian . . . 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 . . . .
[Ibid.]
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Sexual abuse is defined as "contacts or actions between a child and a
parent or caretaker for the purpose of sexual stimulation of either that person or
another person." N.J.S.A. 9:6-8.84. Sexual abuse 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 . . . ."
N.J.S.A. 9:6-8.84(a).
To establish abuse or neglect under Title Nine, the Division must show by
a preponderance of the "competent, material and relevant evidence" that the
child is "abused or neglected." N.J.S.A. 9:6-8.44; N.J.S.A. 9:6-8.46(b). "Such
evidence may include 'any writing [or] record . . . made as a memorandum or
record of any condition, act, transaction, occurrence or event relating to a child
in an abuse or neglect proceeding of any hospital or any other public or private
institution or agency,'" as long as it meets requirements for admissibility "akin
to the business records exception." N.J. Div. of Youth & Fam. Servs. v. P.W.R.,
205 N.J. 17, 32 (2011) (quoting N.J.S.A. 9:6-8.46(a)(3)) (citing N.J. Div. of
Youth & Fam. Servs. v. M.C. III, 201 N.J. 328, 346-47 (2010)).
13 A-2848-19
At the hearing, the Division submitted L.V.'s out-of-court statements as
shown in her videotaped interview at the HCPO and recorded by the clinical
evaluators at AHCH. The judge noted that N.J.S.A. 9:6-8.46(a)(4) provides in
pertinent part that: "previous statements made by the child 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."
"A child's statement need only be corroborated by '[s]ome direct or
circumstantial evidence beyond the child's statement itself.'" A.D., 455 N.J.
Super. at 157 (quoting N.J. Div. of Child Prot. & Permanency v. N.B., 452 N.J.
Super. 513, 522 (App. Div. 2017)). "[C]orroboration of child sexual abuse does
not have to be 'offender-specific,' because '[i]t would be a rare case where
evidence could be produced that would directly corroborate the specific
allegation of abuse between the child and the perpetrator . . . .'" Ibid. (quoting
N.J. Div. of Youth & Fam. Servs. v. Z.P.R., 351 N.J. Super. 427, 435 (App. Div.
2002)).
"The most effective types of corroborative evidence may be eyewitness
testimony, a confession, an admission or medical or scientific evidence." Ibid.(quoting N.J. Div. of Youth & Fam. Servs. v. L.A., 357 N.J. Super. 155, 166
14 A-2848-19
(App. Div. 2003)). Such indirect evidence has included "a child victim's
precocious knowledge of sexual activity, a semen stain on a child's blanket, a
child's nightmares and psychological evidence." N.J. Div. of Child Prot. &
Permanency v. I.B., 441 N.J. Super. 585, 591 (App. Div. 2015) (quoting Z.P.R.,
351 N.J. Super. at 436). Evidence of "age-inappropriate sexual behavior" can
also provide the necessary corroboration required under N.J.S.A. 9:6-8.46(a)(4).
Z.P.R., 351 N.J. Super. at 436.
On appeal, J.L. argues that there was insufficient corroboration for L.V.'s
out-of-court statements. He contends the trial court erred by holding that
AHCH’s findings provided corroboration for L.V.'s statements. He argues that
the finding by the Division's consultants that the sexual abuse was "clinically
supported" improperly "recast[ed]" a therapeutic conclusion as a de facto
credibility finding by a witness, which the court improperly adopted.
However, as Judge Lipton found, the Division presented sufficient
evidence to corroborate L.V.'s out-of-court statements regarding the sexual
abuse, as shown in the video of the interview at the HCPO and recounted to the
clinical evaluators at AHCH. The judge noted that L.V. provided consistent
statements concerning the sexual abuse.
15 A-2848-19
As noted previously, L.V. had described the incidents as having occurred
while she was lying in bed with J.L. She stated that J.L. had been wearing shorts
or a robe, which J.L. confirmed. She also stated that J.L.'s "privates" had
touched various parts of her body, including her buttocks. The judge observed
that in her 2018 reevaluation at AHCH, L.V. reaffirmed her statements about
the sexual abuse and stated that it was not a dream.
The judge further found L.V.'s statements were corroborated by Dr.
D'Urso's expert testimony. He stated that inconsistencies due to piecemeal
disclosures are typical for children who have suffered trauma. He noted that
L.V. had experienced the sexual abuse at age eight, and the diagnosis of PTSD
was appropriate and consistent with L.V.'s symptoms, which included emotional
distress, anger, and sadness. Dr. D'Urso explained that such symptoms are
typical of persons who have experienced sexual abuse.
Judge Lipton noted that Dr. D'Urso had testified that he did not believe
L.V. had recanted her allegations. He stated that L.V. had disavowed comments
she may have made indicating she may have dreamed the incidents. The judge
found that any recantation by L.V. of her allegations was not credible.
Moreover, J.L.'s statements during his interview at the HCPO also
corroborated L.V.'s out-of-court statements. He admitted he would lay on his
16 A-2848-19
bed with L.V. to watch television, and he would do so in loose, short underwear.
He also wore a robe that he used to try to cover his underwear.
J.L. also admitted that he had hugged L.V. and asserted that she had taken
it "the wrong way." He acknowledged that during these incidents, L.V. had the
opportunity to see his exposed penis. He noted that at times, L.V. was in her
underwear and sometimes was not wearing a shirt or underwear.
Thus, there is sufficient credible evidence in the record to support the trial
court's finding that J.L. sexually abused L.V. The Division presented sufficient
evidence to corroborate L.V.'s out-of-court statements indicating that J.L.
sexually abused her on numerous occasions.
J.L. further argues that AHCH's findings were improperly conveyed
through Dr. D'Urso's testimony. He also contends the judge erred by considering
L.V.'s disclosures about what had happened to her "over a course of time to
various individuals."
We are convinced that these arguments lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E). We note, however, that Dr.
D'Urso is the supervising psychologist at AHCH, and he reviewed and signed
the evaluation reports. Dr. D'Urso had sufficient knowledge and experience to
testify regarding the findings in AHCH's evaluation reports.
17 A-2848-19
In addition, Dr. D'Urso testified that AHCH did not make finding as to
whether L.V.'s allegations were credible. AHCH determined based on L.V.'s
statements and its forensic analysis, that there was clinical support for sexual
abuse. Furthermore, the trial judge viewed the video of L.V.'s statements,
considered the related forensic evidence, and made her own assessment of L.V.'s
credibility.
III.
Next, J.L. argues he was denied due process and fundamental fairness
because the Division's corroborative evidence was "so tainted as to be
worthless" and the judge erred by "not requiring more." He argues that the
Division's evidence of corroboration was not sufficiently reliable.
J.L. contends the judge should not have admitted the video of L.V.'s
interview into evidence, because this denied him of his right to cross-
examination. He contends the trial court should have taken L.V.'s testimony in
camera pursuant to Rule 5:12-4(b). He asserts the judge improperly limited her
assessment of L.V.'s credibility to her videotaped interview and the AHCH's
findings.
We note that although "due process guarantees civil litigants a measure of
confrontation[,]" it is also a matter of public policy "to prevent further
18 A-2848-19
victimization or traumatization of young children called to testify in court
proceedings." N.J. Div. of Child Prot. & Permanency v. C.W., 435 N.J. Super.
130, 142 (App. Div. 2014) (quoting A.B. v. Y.Z., 184 N.J. 599, 604 (2005)).
Rule 5:12-4(b) provides in pertinent part that, "In the child's best interests, the
court may order that a child not be present at a hearing or trial unless the child's
testimony is necessary for the determination of the matter." The Rule further
provides that, "The testimony of a child may, in the court's discretion, be taken
privately in chambers or under such protective orders as the court may provide."
Ibid.Here, the Division informed the judge it intended to present five video
tapes of interviews, and J.L.'s counsel indicated she was not objecting to the
videos of the interviews of J.L. and L.V. However, even if his attorney had
objected to the admission of the video of L.V.'s interview, there was no
legitimate basis for such an objection.
Here, the judge was not required to compel L.V. to testify, even in camera.
Given L.V.'s age, her diagnosis of PTSD, and the evidence that she was suffering
emotional distress and other symptoms, compelling her testimony, even in
private, would undoubtedly have resulted in further victimization and
traumatization. Furthermore, a court has the discretion under N.J.S.A. 9:6-
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8.46(a) to admit out-of-court statements by child-victims of sexual abuse, and
J.L. had a sufficient opportunity to challenge the credibility of L.V.'s statements.
J.L. also contends L.V.'s testimony was necessary given the length of time
between the initial allegations and the fact-finding hearing. The record shows,
however, that the hearing was delayed in part by the need to have L.V.
reevaluated and Dr. Sermabeikian's unanticipated unavailability. The judge
found that the Division had pursued the matter with diligence. The record
supports that finding.
In support of his argument that he was denied due process and
fundamental fairness, J.L. relies upon New Jersey Division of Youth and Family
Services v. P.C., 439 N.J. Super. 404 (App. Div. 2015). In that case, the court
reversed a finding of abuse or neglect because the trial court had determined,
sua sponte, that the defendant mother should be the subject of the abuse or
neglect proceedings against the father, even though the Division had not
included any allegations against the mother in its complaint. Id. at 413.
J.L.'s reliance upon P.C. is misplaced. Here, the Division found that the
allegations that J.L. sexually abused L.V. were substantiated, and its verified
complaint set forth its allegations of sexual abuse. Thus, P.C. does not support
J.L.'s contention that he was denied due process and fundamental fairness.
20 A-2848-19
Accordingly, we reject J.L.'s assertion that the judge erred by failing to
compel L.V. to testify at the fact-finding hearing. We also reject J.L.'s assertion
that the Division's evidence was legally insufficient to corroborate L.V.'s out-
of-court statements regarding the sexual abuse. We conclude J.L. was not
denied due process and fundamental fairness in the fact-finding proceeding.
IV.
J.L. also contends there is insufficient evidence in the record to support
the court's finding that he abused or neglected K.L. and A.L. He contends the
Division failed to present specific evidence to establish that K.L. and A.L. were
put in imminent danger or substantial risk of harm by his acts or omissions.
As noted above, N.J.S.A. 9:6-8.21(c)(4)(b) defines an abused or neglected
child as one:
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 . . . .
[Ibid.]
A parent or guardian "fails to exercise a minimum degree of care when he
or she is aware of the dangers inherent in a situation and fails adequately to
21 A-2848-19
supervise the child or recklessly creates a risk of serious injury to that child."
G.S. v. Dep't of Hum. Servs., 157 N.J. 161, 181 (1999). A court need not wait
to act until a child is actually or irreparably impaired by parental inattention or
neglect. N.J. Div. of Youth & Fam. Servs. v. S.S., 372 N.J. Super. 13, 24 (App.
Div. 2004).
In her oral decision, Judge Lipton noted the evidence showed that, while
J.L. was sexually abusing L.V. on his bed, K.L. and A.L., would enter and exit
the bedroom, and there was a substantial risk these two children would observe
the sexual abuse of L.V. The judge stated that J.L. had acted recklessly and
created a serious risk of substantial harm to both children. The judge therefore
found that K.L. and A.L. were abused or neglected children under N.J.S.A. 9:6-
8.21(c)(4)(b).
We are convinced there is sufficient credible evidence in the record to
support the judge's finding. As the Law Guardian notes, a parent who sexually
abuses one child may very well sexually abuse another child. Moreover, a
parent's conduct as to one child may be considered as creating a risk of harm to
another child. N.J. Div. of Youth & Fam. Servs. v. I.H.C., 415 N.J. Super. 551,
573 (App. Div. 2010).
22 A-2848-19
J.L. argues, however, that the Division's claim of abuse or neglect as to
K.L. and A.L. failed as a matter of law because the Division did not present a
psychologist or child abuse expert to testify as to the specific harm that might
have befallen K.L. and A.L. due to their exposure to the "claimed" sexual abuse.
We disagree.
Here, Dr. D'Urso testified that L.V. had consistently stated she had been
sexually abused by J.L. He noted that she was suffering from PTSD and
experiencing emotional distress, anger, sadness, and other symptoms typical of
a child who has experienced sexual abuse. Dr. D'Urso did not testify as to the
harms young children could suffer if they are exposed to the sexual abuse of
another child.
However, the judge could reasonably infer, based on all the evidence in
this case, that K.L. and A.L.'s exposure to J.L.'s sexual abuse of L.V. placed
those children at substantial risk of harm. The judge could reasonably infer that
the children's exposure to the sexual abuse of a sibling could be traumatic and
these two children could experience symptoms similar to those experienced by
L.V.
J.L. further argues that a young child's exposure to an objectionable, ill-
advised, or even potentially harmful act does not establish abuse or neglect
23 A-2848-19
under N.J.S.A. 9:6-8.21(c)(4)(b). In support of his argument, J.L. cites New
Jersey Division of Youth and Family Services v. V.T., 423 N.J. Super. 320 (App.
Div. 2011).
In V.T., the court found that a parent or caretaker's failure to comply with
recommended drug treatment and positive tests for cocaine and marijuana at two
supervised visits did not "inherently" create a substantial risk of harm to a child.
Id. at 330. The court noted that the Division had not presented expert evidence
showing that the parent was impaired to the point of posing a risk to the child in
a supervised setting. Id. at 331.
However, the failure to comply with drug treatment and the use of illegal
substances during supervised visitation is not comparable to sexual abuse of a
child by a parent, in the family home. Thus, V.T. has no application to this
matter.
J.L. also cites New Jersey Division of Child Protection and Permanency
v. R.W., 438 N.J. Super. 462 (App. Div. 2014). There, the defendant parent
used marijuana on one occasion, while accompanied by her child. Id. at 464.
We reversed the trial court's finding of abuse or neglect, finding that the
evidence was legally insufficient to show the parent had placed the child in
imminent danger or at substantial risk of harm. Ibid.
24 A-2848-19
J.L.'s reliance upon R.W. is misplaced. Sexual abuse of an eight-year-old
child, on several occasions, in the family home, where other young children
could observe the sexual abuse, is not comparable to the use of marijuana on
one occasion.
Affirmed.
25 A-2848-19