                                      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                                NOT FOR PUBLICATION WITHOUT THE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-0702-17T1

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

K.W.,

          Defendant-Appellant,

and

M.W.,

          Defendant.


IN THE MATTER OF S.W., J.W.,
and A.W.,

          Minors.


                    Submitted February 6, 2019 – Decided March 15, 2019

                    Before Judges Currier and Mayer.
              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Bergen County,
              Docket No. FN-02-0146-14.

              Joseph E. Krakora, Public Defender, attorney for
              appellant (Andrew R. Burroughs, 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 minor S.W. (Meredith A. Pollock, Deputy
              Public Defender, of counsel; Cory H. Cassar,
              Designated Counsel, on the brief).

PER CURIAM

        Defendant K.W. (Kurt) 1 appeals from two fact-finding orders determining

he abused and neglected his daughter, S.W. (Sasha).         After reviewing the

contentions in light of the record and applicable principles of law, we affirm.

        Kurt and defendant M.W. (Mariah) 2 are married and the parents of Sasha

and her two younger brothers, J.W. (Jerry) and A.W. (Alan). In October 2013,

plaintiff New Jersey Division of Child Protection and Permanency (Division)



1
   We use pseudonyms and initials for the privacy of the parties. R. 1:38-
3(d)(12).
2
    Mariah did not appeal from the fact-finding order.
                                                                         A-0702-17T1
                                        2
received a referral from a staff member at St. Clare's Hospital advising that

Sasha, twelve, was admitted for cutting herself and expressing a suicidal

ideation.   Sasha recounted to staff members that Kurt touched her vagina,

buttock, and chest when she was nine years old and in her parents' bed. The day

after this occurred, Sasha stated she told Mariah what had happened, but Mariah

told Sasha that Kurt "made a mistake" and "may have been drunk when he had

touched her."

      The hospital staff member also told the Division that: 1) Mariah stated

Kurt is an alcoholic and "get[s] drunk every day"; 2) Kurt has a history of

physically abusing Sasha, Jerry, and Mariah; 3) Kurt hit Sasha with his hand

four to five months ago, causing bruises; and 4) Kurt is bipolar.

      Division   caseworker    Stephanie    Wilson   investigated   the   report,

interviewing Kurt, Mariah, and Jerry.      Kurt stated Sasha started scratching

herself several months earlier, and that over the past two weeks, she "began

cutting herself with a razor on her arms, then her stomach and legs," causing the

parents to take their daughter for a psychiatric evaluation.         During the

evaluation, Sasha disclosed she planned to take Kurt's prescription medications

to commit suicide. Kurt also told Wilson he suffered from depression and was

under the care of a psychiatrist. He denied drinking to intoxication, explaining


                                                                          A-0702-17T1
                                       3
he could not have more than two alcoholic beverages in a week because of his

psoriasis medicine.

      In her interview, Mariah stated Sasha began scratching herself at the

beginning of the summer, but Mariah did not take her to a therapist or counselor.

Mariah thought Sasha stopped scratching herself, but learned that after she broke

up with her boyfriend at the end of August 2013, Sasha began cutting herself

with a razor. Mariah hid all of the sharp items in the household and took Sasha

for a psychiatric evaluation. Sasha was subsequently transported to St. Clare's

because during the evaluation she expressed suicidal ideations.

      Mariah further reported to Wilson: 1) Kurt had been diagnosed with ADD,

bipolar disorder, and depression; 2) drank two rum and cokes a week; and 3)

prior to Kurt starting a new medication, she was concerned about his drinking

because he used to drink every day.

      Wilson also interviewed eight-year-old Jerry at his home. Jerry said Kurt

drank beer or soda and "has a big bottle with water that he puts into his soda."

Wilson subsequently observed an empty 1.5-liter bottle of rum in the home.

Jerry also stated Kurt hit him with an open hand two years ago, but the slap did

not leave marks or bruises. Jerry denied Alan had been hit or spanked.




                                                                         A-0702-17T1
                                       4
      Wilson interviewed Sasha at St. Clare's, asking her about the cutting,

Kurt's physical abuse, any domestic violence in the household, and her report of

sexual abuse.

      Sasha related she was in the hospital because of the cutting and her plan

to overdose on Kurt's prescription medication. She stated she felt bullied at

school. Sasha explained she cuts herself to "feel something" and "partly to feel

alive," and she hid the cutting from her family and friends. She originally

scratched herself with various objects, but had recently begun cutting herself

with a razor. Wilson inspected the cuts on Sasha's forearms and observed fifty

small cuts, likely from a razor, along with scars on the top of her forearms from

scratching herself.

      Sasha also told Wilson that Kurt drank two cups of rum and coke every

night, and he sometimes got mad, yelled, and threw objects. Sasha stated Kurt

used to hit her with an open hand on her face, leg, butt, and arm, but he had

stopped four to five months ago after beginning a new medication. Sasha said

Kurt did not hit Alan, but spanked Jerry when he was younger.

      Sasha denied any domestic violence in the household, but described two

incidents between Kurt and Mariah. The first involved Kurt pinning Mariah

against the refrigerator during an argument two to three years earlier. The


                                                                         A-0702-17T1
                                       5
second occurred in 2012, when Kurt was holding a metal rake and threatened to

hit the walls with it. Sasha called the police, who came to the home. Mariah

declined to seek a temporary restraining order.

      Sasha also discussed the alleged incident of sexual abuse. Sasha stated

she went into her parents' bed when she was eight or nine. While in the bed,

Kurt touched Sasha under her underwear in "the front and the back" before

touching Sasha's vagina for a few minutes. Sasha explained she attempted to

get away from Kurt, but he pulled her closer. Sasha stated when Kurt was done,

she ran into her brother's room, grabbed her knees, and started crying and

shaking. When Mariah entered the room to ask Sasha what was wrong, Sasha

told her Kurt had touched her intimate parts. Mariah "laughed it off" and said it

was a mistake. Sasha reminded her mother of the incident "once or twice," but

Mariah told Sasha not to tell anyone.

      In interviews with the police and the Bergen County Prosecutor's office,

Sasha reiterated her allegations of sexual abuse. After the interviews, Mariah

told Sasha this was "all her fault."    Sasha asserted Mariah took away her

cellphone because she was worried Sasha would tell people what happened.

Mariah told Wilson she did not know if she could fully support Sasha because

she did not believe Sasha's allegations about Kurt.


                                                                         A-0702-17T1
                                        6
      In his interview with the prosecutor's office, Kurt denied inappropriately

touching Sasha. However, Kurt later described an incident where he was "half

asleep" and put his hand on Sasha, believing her to be Mariah, before Sasha

brushed it away. Kurt was subsequently charged with aggravated sexual assault,

N.J.S.A. 2C:14-2(a)(1), and endangering the welfare of a child, N.J.S.A. 2C:24-

4. He was remanded to jail pending the posting of bail.

      The Division was concerned for Sasha's safety if she remained in the

home, and asked Mariah if there was a family member that Sasha could stay

with. Because Mariah did not want her mother or sister to know about the

situation, the Division initiated a Dodd3 removal, and Sasha was placed with her

maternal grandmother (Krystal).

      During a visit by Division caseworkers in January 2014, Sasha recounted

a second incident when Kurt inappropriately touched her. This event occurred

the week before the original allegation. Sasha was again in her parent's bed with

both her parents, when Kurt put his hands down Sasha's pajama pants and




3
  A Dodd removal is an emergency removal of a child from the home without a
court order, pursuant to the Dodd Act, which, as amended, is found
at N.J.S.A. 9:6-8.21 to - 8.82.


                                                                         A-0702-17T1
                                       7
touched her. She clarified she only told her mother about this incident and not

the one reported to the Division in October.

      In a comprehensive report, the Division substantiated the allegation that

Kurt sexually, physically and emotionally abused and neglected Sasha, and the

Division established the allegation that Mariah neglected Sasha. See Dep't of

Children & Families v. D.B., 443 N.J. Super. 431, 441-42 (App. Div. 2015)

(discussing the four-tier framework of "substantiated," "established," "not

established," and "unfounded" allegations of abuse or neglect). Kurt and Mariah

were prevented from having any contact with Sasha until further court order.

      In the fact-finding trial, representatives of the Division and an evaluating

psychologist testified. Additionally, Sasha's and Kurt's videotaped statements

given to the prosecutor's office were played.      Sasha testified in chambers,

recounting her allegations of sexual abuse. Mariah offered the report from

Sasha's psychological examination into evidence, but did not present any

witnesses. Kurt did not present any evidence or witnesses at trial.

      In a comprehensive forty-seven page written opinion issued July 25, 2014,

Judge Margaret M. Foti found Kurt physically, sexually, and emotionally abused

Sasha. She also concluded Mariah failed to protect Sasha from Kurt's abuse.




                                                                          A-0702-17T1
                                        8
      Judge Foti found Sasha's "testimony about these two acts of sexual abuse

to be very credible, given that her in-court account of the abuse was highly

consistent with reports that she made in the past." She noted the "wealth of

evidence in the record to corroborate [Sasha's] account of abuse," and referred

to the examining psychologist's conclusion that there was clinical support for

sexual abuse. The judge stated she was "not troubled" at the timing of the two

disclosures of sexual abuse because she was satisfied with the psychologist's

"uncontroverted explanation that a child's account of incidences of abuse is not

always exact," and the account "will vary depending upon the child's memory at

the time."

      In addressing the allegation of physical abuse, Judge Foti noted "the

record is replete with credible and/or corroborated reports from both [Jerry] and

[Sasha] that [Sasha] was very often the victim of . . . [Kurt's] physical abuse."

(emphasis in the original). The judge recounted the incidents of Kurt striking

Sasha with a cellphone in the head, pushing her against the wall and hitting her

in the arm and stomach after Sasha covered her brother's mouth for "being loud,"

and Kurt striking her in the vaginal area. The judge found those particular

instances were "excessive corporal punishment" that "exceed[ed] the bounds of

parental autonomy needed for child-rearing." She also noted "[the psychologist]


                                                                         A-0702-17T1
                                       9
relied on these specific examples to opine that physical abuse was clinically

supported."

         In its finding of emotional abuse, Judge Foti referred to Kurt calling Sasha

"ugly," "stupid," and a "slut," likely added to Sasha's poor self-esteem as she

was simultaneously being bullied at school. In referring to the psychologist's

testimony, the judge determined Kurt "impaired [Sasha's] emotional condition

by sexually abusing her and by exposing her to an environment fraught with

physical abuse, alcohol abuse, and domestic violence."

         In addressing the charges leveled against Mariah, Judge Foti concluded

she made "zero effort" to address Sasha's cutting, her claims of sexual abuse,

and the domestic violence in the household. The judge found "all of these

failures directly or indirectly facilitated or contributed to [Sasha's] physical,

sexual, and emotional abuse, making [Mariah] complicit by omission."

         Following the trial, Sasha continued living with her grandmother. The no-

contact order between Sasha and Mariah was vacated in September 2014. After

months of psychiatric care and treatment, Sasha returned to Mariah's custody in

December 2015. The no-contact order between Kurt and Sasha remained in

place.




                                                                             A-0702-17T1
                                         10
      On February 10, 2016, at around 1:00 a.m., Sasha received text messages

from Kurt in a group chat that included Mariah. The messages stated Sasha

"ruined [Kurt's] life," the family's money was running low, and accused Sasha

of lying, ruining Jerry and Alan's lives, and demanded Sasha "take back what

[Sasha] said about [Kurt], or [Jerry and Alan] w[ould] never forgive [Sasha]."

Thereafter, Mariah came into Sasha's bedroom and deleted the messages from

her daughter's cellphone.

      Sasha reported the incident to a counselor the following day. Sasha told

the counselor that Mariah "blames her for what happened to the family," and

that Sasha was considering recanting her allegations to "make things easier on

the family."

      In a subsequent interview with the prosecutor's office, Sasha stated Kurt

came to the family's home "sometime in October," while Sasha was present .

Sasha stayed in her room for most of Kurt's visit. Mariah told Kurt "you are not

supposed to be here," but did not make Kurt leave or contact anyone about his

visit. Kurt told Mariah he "did not care and was going to chance it," staying at

the home and making dinner for the family. Kurt also warned Jerry and Alan

not to say anything about his visit.




                                                                        A-0702-17T1
                                       11
      Sasha described three other incidents, between September 2015 and

January 2016, where Kurt came to the home while Sasha was present and Mariah

allowed his entry. Sasha also reported that in December 2015 she texted Kurt

on Mariah's phone, asking him to bring bagels to the home. Kurt replied, asking

why Sasha was contacting him as they were not allowed to speak. Sasha ended

the exchange, but the next morning Kurt texted Sasha "hi."

      The Division interviewed Alan and Jerry about Kurt's visits to the home.

Alan stated that even though Kurt was not permitted in the home, he still came

even when Sasha was present. Alan also told the Division that Kurt talked with

Sasha at the house and Mariah did not intervene. Jerry denied Kurt ever entered

the home, but only stood at the front door when visiting. Jerry stated that

although Sasha tried to talk to Kurt, he did not respond to her.

      Kurt was charged with witness tampering, N.J.S.A. 2C:28-5(a), and

disobeying a judicial order, N.J.S.A. 2C:29-9(a). Mariah was charged with

witness tampering, N.J.S.A. 2C:28-5(a), disobeying a judicial order, N.J.S.A.

2C:29-9(a), and hindering prosecution, N.J.S.A. 2C:29-3(a)(3). The Division

performed an emergency Dodd removal, placing Sasha, Jerry, and Alan in a

foster home. On February 24, 2016, the Division released its investigative

summary, substantiating an allegation of neglect against Kurt and Mariah.


                                                                       A-0702-17T1
                                       12
      On October 27, 2016, Judge Jane Gallina-Mecca conducted a fact-finding

hearing. Sasha testified to Kurt's home visits, the text message exchanges

between them, and Mariah's deletion of the February 10, 2016 text messages.

Sasha also corroborated that Mariah did not remove Kurt from the home, tell

him to leave, or warn him she would notify the authorities if he continued to

stay. The judge found her testimony credible.

      On February 10, 2017, Judge Gallina-Mecca produced a well-reasoned

written opinion, finding Kurt and Mariah "subjected [Sasha] to abuse and

neglect by exposing her to an imminent risk of substantial harm by violating the

no contact orders." Judge Gallina-Mecca determined there was a "legal basis

for continued court and agency intervention," and "a foundation for the Division

to have continuing custody of [Sasha]."

      In her reasoning, Judge Gallina-Mecca explained the no-contact order was

"critical" to protect Sasha from further sexual, physical, and emotional abuse

from Kurt.    Therefore, Kurt's recurrent contact with Sasha was "grossly

negligent" because it "re-victimized" her. Judge Gallina-Mecca also expressed

concern over the content of Kurt's February 10, 2016 text messages to Sasha ,

finding Kurt "bullied" and "threaten[ed]" Sasha to recant her allegations and

such conduct was "absolutely harmful" to his daughter.


                                                                        A-0702-17T1
                                      13
      We uphold a trial judge's fact-findings if they are "supported by adequate,

substantial, and credible evidence." N.J. Div. of Youth & Family Servs. v. R.G.,

217 N.J. 527, 552 (2014) (citing N.J. Div. of Youth & Family Servs. v. E.P., 196

N.J. 88, 104 (2008)). "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." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448

(2012) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)).

      We begin with Kurt's assertions regarding the July 2014 order. He argues

the trial court relied on uncorroborated statements and insufficient credible

evidence in determining he sexually, physically, and emotionally abused Sasha.

We disagree.

      "Abuse and neglect actions are controlled by the standards set forth in

Title Nine of the New Jersey Statutes." N.J. Div. of Youth & Family Servs. v.

P.W.R., 205 N.J. 17, 31 (2011) (citations omitted). An "'abused' or 'neglected

child'" is defined as one under the age of eighteen

            whose physical, mental, or emotional condition has
            been impaired or is in imminent danger of becoming
            impaired as the result of the failure of [her] parent or
            guardian . . . to exercise a minimum degree of care . . .
            in providing the child with proper supervision or


                                                                          A-0702-17T1
                                       14
            guardianship, by unreasonably inflicting or allowing to
            be inflicted harm, or substantial risk thereof.

            [N.J.S.A. 9:6–8.21(c)(4)(b).]

      At a fact-finding hearing, the Division is required to prove "by a

preponderance of the competent, material and relevant evidence" that the

defendant abused and neglected Sasha. N.J. Div. of Youth & Family Servs. v.

C.H., 428 N.J. Super. 40, 62 (App. Div. 2012).

      We are satisfied the substantial credible evidence in the record supports

Judge Foti's conclusion that Kurt sexually, emotionally, and physically abused

Sasha.   We affirm substantially for the reasons expressed in Judge Foti's

thorough and well-reasoned opinion.

      We are also unpersuaded by Kurt's argument that the trial court erred in

finding his violation of the no-contact order established abuse and neglect. We

defer to Judge Gallina-Mecca's credibility findings. We further note all of the

family members admitted that Kurt came to and stayed at the family home,

despite the order preventing him from doing so. We affirm substantially for the

reasons expressed in Judge Gallina-Mecca's comprehensive opinion.

      Affirmed.




                                                                       A-0702-17T1
                                      15
