DCPP VS. L.M., R.T., S.J, AND M.S., IN THE MATTER OF F.T., J.J., C.K.J. AND J.S. (FN-08-0119-16, GLOUCESTER COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2020 )

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NOT FOR PUBLICATION WITHOUT THE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-5310-18T2
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
L.M.,
Defendant-Appellant,
and
R.T., S.J., and M.S.,
Defendants.
_____________________________
IN THE MATTER OF F.T.,
J.J., C.K.J., and J.S., minors.
_____________________________
Submitted December 1, 2020 – Decided December 21, 2020
Before Judges Haas, Mawla, and Natali.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Gloucester County,
Docket No. FN-08-0119-16.
Joseph E. Krakora, Public Defender, attorney for
appellant (Robyn A. Veasey, Deputy Public Defender,
of counsel; Ilea Anne Kozak, Designated Counsel, on
the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Amy Melissa Young, 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
Defendant L.M. ("Laura"1) appeals from a May 20, 2016 judgment finding
she committed abuse or neglect of her children F.T. ("Fiona"), J.J. ("John"),
C.K.J. ("Chloe"), and J.S. ("Julie"). We affirm.
The following facts were adduced at the trial of this matter. Laura is the
biological mother of the children. R.T. ("Roger") is the father of Fiona, S.J.
("Sean") is the father of John and Chloe, and M.S. ("Matthew") is Julie's father.
1
We utilize fictitious names to preserve confidentiality. R. 1:38-3(d)(12).
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This case began on November 23, 2015, when Laura, who was then
residing in Philadelphia, contacted the Division of Child Protection and
Permanency (Division) requesting housing assistance and services for the
children. At the time, the children were residing with their maternal
grandparents, "Jane" and "Bob," in New Jersey for approximately three months.
The children's ages were as follows: Fiona, thirteen; John, six; Chloe, four; and
Julie, three.
On December 2, 2015, the Division received a referral from the
Pennsylvania Department of Human Services (DHS), advising they previously
opened a case against Laura for sexual abuse of the children, which had just
closed. The reporter advised the children had been residing with Jane and Bob
since August 27, 2015 and needed therapy to address the sexual abuse. The
reporter further disclosed Sean and Laura had criminal histories; Sean was
diagnosed with paranoid schizophrenia but was not receiving treatment; Laura
had bi-polar and personality disorder; Sean smoked PCP and marijuana; and
both Laura and Sean heavily consumed alcohol.
On December 3, 2015, the Division interviewed the children and the
maternal grandparents at their residence. The children reported they liked
staying with their grandparents and did not like living with Laura because she
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would do "bad things." Fiona explained she felt safe at her grandparents' home,
was stable there, did not want to leave, and never wanted to return to Laura.
John also stated he felt safe with his grandparents and did not feel safe wi th his
mom because Laura and Sean would touch his "pee-pee" and "butt."
The following day, the Division filed an order to show cause to remove
the children, and formally placed them with Jane and Bob pending the return
hearing on its application. On December 8, 2015, during the hearing on its
removal application2, the Division received a referral alleging Jane was unstable,
abused prescription drugs and alcohol while caring for the children, and
mistreated other family members.
As a result, a Division caseworker visited Jane and Bob's residence and
spoke with Fiona, who was home alone. Fiona reported she was well fed and
denied any alcohol abuse by her grandparents. She reported John told her about
the sexual abuse committed by Laura and Sean and recounted a time when his
parents told him to lick Chloe's private area. Fiona also stated when she asked
Chloe if her parents licked her, she "just looks away and down and said yes. "
2
The December 8, 2015 order granted the Division custody of the children and
granted Laura and Sean supervised visitation by the Division or Division
approved supervisors. Visitation with Fiona was at Fiona's discretion.
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Fiona also revealed she witnessed many instances of physical violence
between Laura and her boyfriends, as well as her siblings' fathers. She described
constantly being hit and choked by Laura, especially when she was drunk. She
recalled an incident when Laura was drunk and asked her "if she would die for
God and [Fiona] said no, so [Laura] threw her bottle of vodka into the fireplace
and began to hit [Fiona] and choked her. She also tried to put [Fiona's] head in
the fire." Fiona stated she asked Sean for help, but he did nothing.
When Jane and Bob and the younger children returned home, two police
officers approached the door and stated Laura came to the police station
claiming the children were not being cared for. The Division worker explained
the events that occurred earlier in the day and produced documents indicating
placement of the children with their grandparents. While the Division worker
was talking with the officers, one of them accompanied Fiona to retrieve John
at the school bus stop to ensure Laura was not there. When Fiona and John
returned, Fiona explained Laura came to the bus stop and she and John hid
because they feared she would take them. The worker eventually spoke with
John who reported "that his mom and dad had touched him on his pee-pee and
butt."
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Jane produced a prescription for her medication and the Division worker
found no other evidence of prescription drug abuse as the caller had claimed.
The worker also concluded the residence was suitable for the children, who were
well fed and cared for.
On the evening of December 10, 2015, while Jane, Bob, and the children
were home, Bob heard a knock on the door. When he opened the door, he saw
Laura's cousin, Diana, who wanted to speak with Jane. Bob had not seen Diana
in some time, and she did not look well, so he kept her outside of the residence
and told Jane that Diana wished to speak to her. Jane told Bob to let Diana in,
he exchanged pleasantries with Diana, and returned to a game he was playing
with the children.
Shortly after, Bob heard someone banging loudly on the door and saw it
was Laura who was pacing back and forth, demanding to see the children, and
yelling "get my fucking kids out of the house." This caused the children to flee.
Bob opened the door and informed Laura that she was not supposed to be at the
residence and that he would call the police if she did not leave. However, she
ignored him and repeatedly stated, "get my kids out of this house now." When
he turned around to see where Diana was, Laura barged in and began running
around the house calling for the children saying she wanted them "out of the
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house now." Bob and Jane tried to calm Laura down and attempted to restrain
her, but she kept yelling "get off me" and "you don't understand ." Bob called
the police at which point Laura screamed the house was on fire and to get the
kids out now. Bob and Jane ran outside and saw smoke coming from the garage,
and realized the garage was on fire.
Jane instructed Bob to move their vehicles away from the fire and then
ran to the children, who were hiding from Laura in the basement. After Bob
moved the vehicles, he returned to the house to search for the children, opened
the basement door, and the children ran out of the house toward the street . As
the children were running down the street, Jane saw Laura chasing the children
and observed Diana put Julie in the backseat of a car. Jane saw Laura run and
jump into the car.
Washington Township Police Sergeant Mike Conti responded to the report
of a fire at the residence. While in route, he received a call informing him Laura
and Diana had left the scene in a vehicle. Conti was one of the officers who
responded to the grandparents' residence two days prior and interacted with
Laura and Diana at a bus stop. As a result, he recognized Diana as the driver of
the vehicle, which he stopped on the way to the scene. As he approached the
vehicle, Conti recognized Laura sitting in the passenger seat and saw a child in
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the backseat. Diana told him the child belonged to Laura. Conti arrested both
women and Laura was charged with kidnapping, aggravated arson, burglary, and
criminal attempt.
The Division retained Stephanie V. Lanese, M.D., a forensic pediatrician
and child abuse and neglect expert, who evaluated the children regarding the
allegations of sexual and physical abuse. Dr. Lanese interviewed Bob and all
the children, except for Julie, who had only a physical examination.
John disclosed his parents touched him in the bathroom and asked him to
touch them in their private areas. He explained the touching was not merely his
parents cleaning him and further stated he witnessed his parents lick his two
younger sisters' genitals in their bedroom. He stated his parents told him not to
speak about the sexual abuse because "they would get locked up." Dr. Lanese
concluded John had been sexually abused by his parents because he described
the abuse in a genuine, consistent, and idiosyncratic way.
Chloe revealed her parents touched her private area using "a doll without
hair." She described an incident when her parents licked her private part in the
kitchen, after pouring a Slurpee on it and stated she had seen naked people on
the internet. When Dr. Lanese informed Chloe that she would conduct a
physical examination the child became uncooperative, panicked, and covered
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her eyes. She refused to answer any other questions, would not make eye contact
with the doctor, and refused the physical examination. Dr. Lanese concluded it
was "unclear if there were any acute or chronic residua to the genital area[,]"
but diagnosed Chloe as being sexually abused by her parents based on Bob's
report, John's report, and the child's description, and recommended she receive
trauma therapy.
Dr. Lanese's interview and physical examination of Julie did not reveal
evidence of sexual abuse. Because Julie was three years old, Dr. Lanese opined
she may not have been old enough to understand the context of inappropriate
touching and may have been unable to communicate what happened to her. She
concluded Julie may have been sexually abused because her brother reported
witnessing her being touched inappropriately by her parents.
Fiona denied being sexually abused and declined a physical examination.
Dr. Lanese reported Fiona was frustrated and angry throughout the interview.
She opined Fiona may have suffered sexual abuse but was not ready to discuss
it because she told Bob, "I know things and I've seen things . . . you don't want
to hear and you're not ready to hear."
However, Fiona expressed no hesitance in clearly describing physical
abuse by her mother. Fiona described that Laura aggressively "grips [her] up
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by [her] hair or . . . throws something at [her] like [a] cup or [a] lotion bottle"
when she was drunk, and on another occasion hit Fiona with a spatula leaving
"big circles on [her] hand[,]" and ripped out Fiona's hair because she was not
cleaning and looking hard enough for beer money. She stated Laura "grip[s
Fiona] up on [her] arm [in order to make her go to bed] and put[s Fiona] in [her]
room and then leave[s]." Fiona recounted the incident where Laura was drunk
and threw a bottle of vodka into a fireplace and then pushed Fiona's face "into
the fire so that it felt like it was melting." Fiona said there was much yelling
and screaming in Laura's household and she was forced to call the police because
of the domestic violence between Laura and Sean. Dr. Lanese found Fiona's
description of the abuse reliable and genuine and concluded she had been
physically abused.
Dr. Lanese concluded Laura's behavior was psychologically detrimental
to the children "and ha[d] the potential for long-term negative consequences."
The maternal grandparents corroborated the children's reports of abuse.
Jane testified she first became concerned about sexual abuse when Chloe and
John were playing. Chloe had a skirt on and John "had his hands up on her
private parts." She pulled him aside and asked what he was doing, and he denied
any misconduct. She questioned John and asked if anyone had touched "his
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private parts in a bad way" and he responded Laura told him to lick Julie's "pee-
pee" and he told her no. She asked if anyone else touched him and he responded
that Sean, Chloe, and Julie had touched him, but denied touching by Fiona or
Matthew. Jane testified she confronted Laura about John's disclosures and Laura
said she knew about it because one of her paramours had witnessed the touching,
but Laura did not wish to discuss the matter.
Jane asked Chloe if anyone had touched her and she did not respond
verbally but stuck out her tongue and made a licking motion. Jane specifically
asked if Laura licked Chloe and the child said yes. Chloe then disclosed that
Laura, Sean, and a friend of Laura's all licked her genitals with Slurpee's. Jane
confronted Laura with these allegations and Laura became upset and
argumentative. Once Laura calmed down, Jane had Chloe and John sit down
with Laura and asked them whether Laura or Sean ever touched their private
parts in a bad way, and both children responded yes. Laura became angry and
abruptly left the house. Jane testified she immediately called the Division after
hearing the children's disclosures.
Bob testified he witnessed several instances of the children acting out
sexually, specifically Chloe grabbing Julie's genitals, as well as Chloe and John
grabbing each other's genitals. Bob testified he questioned John about his
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disclosure to Jane the day after Jane questioned him and the child stated his
parents would touch and grab his "pee-pee." He also reported his parents would
pour Slurpee's on Chloe's "pee-pee" and lick it off. He stated Laura and Sean
asked him to touch and lick his sisters' "pee-pee," but he refused.
The Division called the supervising family service specialist who
described the Division's involvement from the onset of the case as we have
recounted. He testified Laura was substantiated for: sexual abuse of John and
Chloe; physical abuse of Fiona; placing Julie at risk of harm by kidnapping her;
and placing all of the children at substantial risk of harm by starting the fire.
Recounting these facts, the trial judge concluded the Division proved
Laura committed acts of abuse or neglect. He found "the incident of [Laura]
holding . . . [Fiona] at the fireplace to be a violation of [N.J.S.A. 9:6-8.21(c)(2).
And] . . . that under [N.J.S.A. 9:6-8.21(c)(3), the Division proved] sexual abuse
by a preponderance of evidence against [Laura] for the sexually inappropriate
touching of . . . both [John] and [Chloe]."
Regarding the fire, the judge credited Jane and Bob's testimony that Laura
was acting "erratic, . . . highly emotional, and . . . out of character" when she
arrived at their residence the day of the incident, and did not inform Jane and
Bob there was a fire until Bob stated he was calling the police to remove Laura.
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The judge found the "preponderance of the evidence [proved the] fire was
generated by, either [Laura's] direct actions or her actions with [Diana] to cause
this fire." He concluded the Division proved "that [Laura] put the children in
serious danger." The judge also found the Division proved Laura committed
"excessive corporal punishment by hitting . . . [Fiona] with a spatula leaving
bruises [and] pulling her hair." He concluded these incidents were abuse or
neglect pursuant to N.J.S.A. 9:6-8.21(c)(4)(B).
Our review of a family court's abuse or neglect finding is limited. N.J.
Div. of Youth & Fam. Servs. v. S.H., 439 N.J. Super. 137, 144 (App. Div. 2015).
We must determine whether the decision "is supported by 'substantial and
credible evidence.'" N.J. Div. of Youth & Fam. Servs. v. F.M., 211 N.J. 420,
448 (2012), (quoting N.J. Div. of Youth & Fam. Servs. v. M.M., 189 N.J. 261,
279 (2007)). We defer to the Family Part's factual findings, because that court
has "the superior ability to gauge the credibility of the witnesses . . . and because
it possesses special expertise in matters related to the family." Ibid. A family
court's decision should not be overturned unless it went "so 'wide of the mark'"
that reversal is needed "to correct an injustice." Ibid. (quoting N.J. Div. of
Youth & Fam. Servs. v. E.P., 196 N.J. 88, 104 (2008)). The court's interpretation
of the law or its legal conclusions are reviewed de novo. State ex rel. A.B., 219
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N.J. 542, 554-55 (2014); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,
140 N.J. 366, 378 (1995).
"The purpose animating Title Nine 'is to provide for the protection of
children . . . who have had serious injury inflicted upon them.'" N.J. Div. of
Youth & Fam. Servs. v. P.W.R., 205 N.J. 17, 31 (2011) (quoting N.J.S.A. 9:6-
8.8(a)). Pursuant to N.J.S.A. 9:6-8.21(c), an abused or neglected child is
a child less than 18 years of age whose parent . . . (2)
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;
(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 . . . to exercise a minimum
degree of care . . . (b) in providing the child with proper
supervision or guardianship, by unreasonably inflicting
or allowing to be inflicted harm, or substantial risk
thereof, including the infliction of excessive corporal
punishment; or by any other acts of a similarly serious
nature requiring the aid of the court[.]
The Division "must prove that the child is 'abused or neglected' by a
preponderance of the evidence, and only through the admission of 'competent,
material and relevant evidence.'" P.W.R., 205 N.J. at 32 (quoting N.J.S.A. 9:6-
8.46(b)). Each case of alleged abuse "requires careful, individual scrutiny" and
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is "generally fact sensitive." Id. at 33. The proofs must be evaluated based on
the totality of the circumstances "because the evidence can be synergistically
related." Id. at 39.
On appeal, Laura argues the children's out-of-court statements regarding
the sexual abuse were uncorroborated. She argues there was no evidence of age-
inappropriate sexual behavior exhibited by the children. She asserts she made
no confessions or admissions to support the court's finding of corroboration.
Laura also argues there was no objective evidence to corroborate Fiona's out-of-
court statements to prove the alleged excessive corporal punishment or injury to
the child. Laura argues the Division did not prove she set the fire at her parents'
residence by a preponderance of the evidence.
We reject Laura's arguments that the Division failed to prove she sexually
abused and permitted sexual abuse of John and Chloe. In an abuse or neglect
proceeding, children's out-of-court statements "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." N.J.S.A. 9:6-8.46(a)(4). Corroboration requires "direct or
circumstantial evidence beyond the child's statement itself." N.J. Div. of Child
Prot. & Permanency v. A.D., 455 N.J. Super. 144, 157 (App. Div. 2018) (citing
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N.J. Div. of Child Prot. & Permanency v. N.B., 452 N.J. Super. 513, 522 (App.
Div. 2017)). When reviewing a child's hearsay statement under N.J.R.E.
803(c)(27), the court may consider the child's repetition and consistency of
statements, but "consistency alone does not constitute corroboration." N.B., 452
N.J. Super. at 523. We review the trial court's determination of corroboration
de novo. A.D., 455 N.J. Super. at 156.
Within the context of child sexual abuse, we have stated:
The child victim is often the only eyewitness to the
crime, and physical corroboration is rare because the
sex offenses committed against children tend to be
nonviolent offenses such as petting, exhibitionism,
fondling and oral copulation. Physical corroboration
may also be unavailable because most children do not
resist, either out of ignorance or out of respect for
authority. Consequently, in order to give any real effect
to the child victim hearsay statute, the corroboration
requirement must reasonably be held to include indirect
evidence of abuse. Such evidence has included a child
victim's precocious knowledge of sexual activity, . . .
and psychological evidence.
[N.J. Div. of Youth & Fam. Servs. v. Z.P.R., 351 N.J. Super. 427,
436 (App. Div. 2002).]
The record demonstrates the Division proved the sexual abuse allegations
by a preponderance of the evidence. John and Chloe were consistent with their
detailed description of events, which they recounted at different times to
different adults, namely, the Division worker, Dr. Lanese, and the maternal
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grandparents. Both children were clear regarding who perpetrated the abuse and
readily differentiated the sexual abuse from touching which may have occurred
during a bath or toileting. They also confided in Fiona regarding the abuse. The
children even identified Laura as their abuser in her presence and Laura's
response was to leave Jane's residence. Our review of the record convinces us
the children's statements regarding the sexual abuse allegations were genuine
and there was no evidence to rebut the Division's proofs.
There was also evidence of age inappropriate behavior, which
corroborated the claims of sexual abuse, namely, John and Chloe touching each
other's genitals and Chloe similarly touching Julie, which the maternal
grandparents observed. Contrary to Laura's argument, her lack of a confession
or admission to the abuse was not fatal to the issue of corroboration, considering
the evidence of abuse adduced by the Division.
We also reject Laura's argument the Division did not prove Fiona was
subjected to excessive corporal punishment. While "[t]he law does not prohibit
the use of corporal punishment," and "a parent may inflict moderate correction
such as is reasonable under the circumstances of a case," excessive corporal
punishment is expressly prohibited. Dep't of Child. & Fams., Div. of Youth &
Fam. Servs. v. K.A., 413 N.J. Super. 504, 510 (App. Div. 2010). Although Title
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Nine does not define excessive corporal punishment, we have held "'excessive'
means going beyond what is proper or reasonable." Id. at 511. "[A] single
incident of violence against a child may be sufficient to constitute excessive
corporal punishment." Ibid. We have held "the use of an instrument to hit the
child with such force that visible marks were left, the unreasonable and
disproportionate parental response, and the fact that the incidents were not
isolated but part of a pattern of physical punishment" are factors the court may
consider when determining whether a child suffered excessive corporal
punishment. S.H., 439 N.J. Super. at 146-47.
Fiona's vivid descriptions of the litany of physical abuse perpetrated by
her mother to the Division worker and separately to Dr. Lanese amply supports
the trial judge's findings of excessive corporal punishment. When considered in
the totality of the circumstances, namely, Laura's inebriation, the incidents of
hair pulling, placing the child's face into a fire, throwing objects at the child,
and hitting the child with a kitchen implement, singularly and collectively meet
the definition of excessive corporal punishment.
Contrary to Laura's assertions, the Division was not required to adduce
evidence of Fiona's injuries to meet its burden of proof. IMO Guardianship of
DMH, 161 N.J. 365, 383 (1999). As Dr. Lanese stated: "The most significant
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impact for the child is psychological and has the potential for long-term negative
consequences. It is important that she be referred to a clinical mental health
provider for trauma-focused cognitive behavioral therapy for physical abuse."
Finally, we reject Laura's argument the Division failed to prove she started
the fire. There was no evidence presented to rebut Jane and Bob's credible
testimony that Laura's behavior on the day of the incident was erratic and was
immediately followed by the fire. The substantial credible evidence in the
record readily demonstrates the fire was a poorly conceived ruse to remove the
children from their grandparents, which placed the children at substantial risk
of harm pursuant to N.J.S.A. 9:6-8.21(c)(4)(B).
Affirmed.
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