                                      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                                NOT FOR PUBLICATION WITHOUT THE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-5602-16T1

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

O.P.,1

          Defendant-Appellant,

and

K.V.

     Defendant.
_____________________________

IN THE MATTER OF THE
GUARDIANSHIP OF M.V.,

     a Minor.
_____________________________

                    Argued January 24, 2019 – Decided May 2, 2019

1
  We use initials and pseudonyms to protect the privacy rights of the litigants
and the child. R. 1:38-3(d)(12).
            Before Judges Fuentes, Vernoia and Moynihan.

            On appeal from Superior Court of New Jersey,
            Chancery Division, Family Part, Hudson County,
            Docket No. FN-09-0299-16.

            Ryan T. Clark, Designated Counsel, argued the cause
            for appellant (Joseph E. Krakora, Public Defender,
            attorney; Ryan T. Clark, on the briefs).

            Mohamed Barry, Deputy Attorney General, argued the
            cause for respondent (Gurbir S. Grewal, Attorney
            General, attorney; Jason W. Rockwell, Assistant
            Attorney General, of counsel; Mohamed Barry, on the
            brief).

            Rachel E. Seidman, Assistant Deputy Public Defender,
            argued the cause for minor (Joseph E. Krakora, Public
            Defender, Law Guardian, attorney; Rachel E. Seidman,
            on the brief).

PER CURIAM

      Defendant O.P. (Olga) is the biological mother of M.V. (Mary), a child

born in 2008. Mary alleged her biological father, defendant K.V. (Kevin),

sexually molested her when she was six years old. The Division of Child

Protection and Permanency (Division) filed a verified complaint in the Family

Part against defendant, alleging she abused and neglected her daughter within

the meaning of N.J.S.A. 9:6-8.21(c)(3) and N.J.S.A. 9:6-8.21(c)(4).

      At a fact-finding hearing conducted pursuant to N.J.S.A. 9:6-8.44, Judge

Bernadette N. De Castro found the Division established, by a preponderance of

                                                                      A-5602-16T1
                                      2
the evidence, that defendant abused and neglected Mary by failing to protect her

from Kevin's sexual molestation. Judge De Castro found defendant did not

exercise the minimum degree of care expected from a parent under these

circumstances. The judge further found defendant acted in a grossly negligent

or wanton manner by failing to: (1) report the sexual abuse to law enforcement

authorities in a timely manner; and (2) take appropriate action to remove Kevin

from the household. Consequently, defendant placed her daughter in imminent

and prolonged danger of substantial harm.           See Div. of Child Prot. &

Permanency v. E.D.-O., 223 N.J. 166, 180-82 (2015).

      In this appeal, defendant argues the Division did not prove, by a

preponderance of the evidence, that she was aware that Kevin's "one-time sexual

abuse of her daughter" exposed Mary to a substantial risk of harm. Defendant

also argues the record developed by the Division before the Family Part does

not support the judge's finding of abuse and neglect against defendant because

the child "was not left alone with the father in a private setting." We reject these

arguments and affirm substantially for the reasons expressed by Judge De Castro

in her December 6, 2016 memorandum of opinion.

      We derive the following facts from the evidence presented by the Division

before Judge De Castro.


                                                                            A-5602-16T1
                                         3
                                       I

      At six o'clock in the morning on February 29, 2016, defendant called the

North Bergen Police Department seeking protection from Kevin under the

Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. Defendant

alleged that in the course of a verbal dispute with Kevin about the location of

car keys, Kevin physically assaulted her by pushing her down the stairs.

Defendant also told the responding police officers that approximately seventeen

months earlier, her then seven-year-old daughter Mary told her that Kevin

sexually molested her when she was six years old. The North Bergen Police

Department immediately notified the Division and the Hudson County

Prosecutor's Office (HCPO).

      Division investigator Lauren Pirro responded to defendant's residence at

10:40 a.m. that same day.      Pirro memorialized this initial encounter with

defendant in a report admitted into evidence at the fact-finding hearing. The

report stated:

             [Defendant] greeted the worker with a handshake and
             welcomed the workers into her home. The family
             resides in a house, which consists of 3 separate
             apartments. On the first floor of the home, [Mary's]
             paternal grandparents reside. On the second floor of
             the home, the worker observed [Mary's] bedroom,
             which consisted [of] appropriate sleeping arrangements
             where [Mary] did have her own bed and furniture. Also

                                                                       A-5602-16T1
                                       4
            observed was a second bedroom on this floor, where
            [defendant] reported she sleeps. The attic apartment
            consists of another bedroom, where it was reported
            [Kevin] sleeps. To enter into the second and third floor,
            an individual must enter into the living room of the first
            floor and go up the stairs, which has a door at the
            entrance. The interview took place in the small living
            room on the second floor of the home.

      Defendant told Pirro that Mary resided with Kevin and his family from

January until August 2014.     Defendant also disclosed her prior involvement

with "Child Protective Services in both Rhode Island and in New Jersey."

Defendant admitted to Pirro that the Rhode Island child welfare agency had

removed Mary from her care, but did not elaborate on the circumstances that

prompted the child's removal. Defendant also told Pirro that she was sexually

molested when she was six years old by her youngest brother's father. She

claimed that this man was incarcerated at the time. Defendant's childhood was

far from stable. Her maternal aunt adopted her because her biological mother

suffered from a combination of drug addiction and mental illness. 2

      Defendant and Kevin had a tumultuous relationship beset by domestic

violence. Defendant has been arrested for "keying [Kevin's] car multiple times



2
   In her report, Pirro noted that defendant "became very emotional when
speaking about her parents" and was unable to provide "any information about
her parents."
                                                                         A-5602-16T1
                                        5
out of anger due to the domestic violence." Defendant admitted that Mary was

present during these incidents "but [she] would typically stay in her bedroom

when her parents were fighting." Defendant told Pirro that Kevin has tested

positive for cocaine and she once found a "'crack pipe' in his cigarette box."

Defendant has been diagnosed "with bipolar disorder, anxiety, and depression."

Although defendant claimed she was not under any medication, she told Pirro

she had been prescribed Zoloft for anxiety and Remeron for depression. She

was previously hospitalized at Rhode Island Hospital in Pawtucket because of

her mental health issues.

      Special Victims Unit Investigators from the HCPO also interviewed Mary

regarding her allegations of sexual molestation by her father. At the fact-finding

hearing before Judge De Castro, the Division presented into evidence the video

recording of Mary's interview. The record before us includes the transcript of

this interview. Mary provided the following account of her father's abuse:

            INVESTIGATOR: What happened, what did you tell
            your mom?

            CHILD: That daddy (inaudible)

            INVESTIGATOR: When did this happen?

            CHILD: A long time ago.



                                                                          A-5602-16T1
                                        6
INVESTIGATOR: And do you remember where you
were when this happened?

CHILD: At my house.

      ....

INVESTIGATOR: And where were you in the house
when this happened?

      ....

Okay, and what did dad - - what did dad ask you to do?
Can you tell me more about that?

      ....

Okay. So, your dad was sick. What did your dad ask
you to do?

CHILD: Touch his private.

      ....

INVESTIGATOR: Okay.           What part of your body
touched his body?

CHILD: My hand.

INVESTIGATOR: Okay.

CHILD: His private.

INVESTIGATOR: His private. Can you show me with
the doll what happened? So your hand touched his
private, okay. Did this happen once, more than once?

CHILD: Once.

                                                         A-5602-16T1
                          7
      Mary was not receptive to the use of an anatomically correct doll to

explain what occurred. However, the child was able to describe enough details

to infer that her father induced her to masturbate him until he ejaculated.

According to Pirro, the account of the molestation Mary revealed to defendant

seventeen months earlier was consistent with the details the child described to

the HCPO's investigators. Pirro also described what the child told her directly:

            Q. And what, if anything, did [Mary] report to you
            regarding the sexual abuse allegation?

            A. [Mary] was very hesitant to disclose any information
            about the sexual abuse. She just kept saying I just don't
            want my dad to go to jail. I don't want anybody to get
            in trouble but then she later said that one night, she said
            also that it was summer time, that she went upstairs to
            her father's bedroom. She didn't know what time it was.
            She said that he was laying in his bed naked and asked
            her to get lotion from his drawer and rub it on his
            private parts. She - -

            Q. Did she describe anything about her father's private
            parts?

            A. She described it as hairy and soft and said that jelly
            came out if it.

      In the Division report, Pirro wrote that Mary told her mother of the sexual

abuse while the two of them were alone in the car. Mary "reported that her

mother yelled and she started screaming and became very angry." When Pirro

asked defendant why she did not report Kevin's sexual abuse sooner, defendant

                                                                          A-5602-16T1
                                        8
told her "she was fearful that [Mary] would be removed from her." Defendant

also told Pirro "that she protected [Mary] by not allowing [Kevin] to be alone

with her." Defendant also told Pirro that she talked to Kevin "immediately after

finding out that this happened and then later had a family meeting with [Kevin]

. . . [and] his brother."

      On the evening of February 29, 2016, the Division conducted an

emergency removal of Mary. Division records indicate that defendant was "very

upset" and viewed herself as the victim who was being unduly punished.

Defendant told the Division caseworker that she would leave the State and take

Mary to Rhode Island. Defendant was particularly concerned about where she

was going to reside. The Division caseworker provided her with the location of

a local shelter and "contact information for the Homeless Hotline."

      At 11:50 p.m. on February 29, 2016, the Division caseworker contacted

Kevin and informed him of the allegations against him and of the emergency

removal of his daughter. Kevin denied he ever sexually abused his daughter and

told the caseworker he believes defendant may have told the child to fabricate

these accusations against him. The Division filed a verified complaint against

both parents on March 2, 2016.       The Family Part granted the Division's

application for custody of Mary pending the outcome of the litigation.


                                                                         A-5602-16T1
                                       9
      On March 10, 2016, Patricia Sermabeikian, Ph.D. and LCSW, at the

Audrey Hepburn Children's House (Audrey Hepburn) evaluated Mary. The

report prepared by Dr. Sermabeikian included the child's responses to questions

concerning the sexual molestation by her father. Based on the child's answers

to a series of questions concerning this incident, the child again confirmed the

details of the molestation. The report also included the following comments the

child made concerning her parents:

            [Mary] continuously asked about returning to her
            family, specifically to return to her mother and father.
            [Mary] reported that her mother is "crazy," and she
            yells and screams. She does have a strong attachment
            to her mother, and to her family. She loves her mother
            and misses her. They have shared positive experiences.
            She has also witnessed domestic [violence] and heard
            parental conflicts, and expressed that she is fearful that
            they will fight and one of them will die. She explained
            that her father smokes a pipe and she believes that it is
            drugs. She also expressed having positive experiences
            with her father. [Mary] did not report physical abuse
            by anyone. She is socially isolated by her family and
            does not have friends due to the visitation issues. She
            has spent the majority of her time with family members.

                  ....

            According to the information provided by [the] DCPP,
            the sexual abuse was not reported to authorities by
            numerous family [members], which left [Mary]
            unprotected. Her separation and loss issues are
            devastating for her. She cried and appeared sad, and
            inconsolable.    [Mary] has multiple adverse life

                                                                         A-5602-16T1
                                       10
             experiences and has lived in a hostile home
             environment. She is emotionally fragile and distressed.
             [Mary] was removed via DODD [3] from her mother's
             care and placed in foster care. DCPP would like to
             place her with her paternal grandparents. The risk
             factors are significant and are high.

At a case conference hearing held on April 27, 2016, the Deputy Attorney

General representing the Division confirmed before Judge De Castro that on

March 23, 2016, the child was placed with the paternal grandparents after Kevin

moved out of the apartment.

      On April 13 and May 12, 2016, Eloise J. Berry, Ph.D., a staff psychologist

at Audrey Hepburn, conducted a parenting evaluation and clinical interview of

defendant.    Dr. Berry described defendant as emotionally defensive and

dysregulated. Defendant refused to discuss with Dr. Berry her psychiatric issues

and "suggested that the evaluator should obtain her psychiatric records." When

Dr. Berry confronted defendant with Division records documenting her bipolar

disorder, anxiety, and depression diagnoses, defendant claimed she had not

taken any prescribed psychiatric medication for the past two years. Finally,

when Dr. Berry asked defendant why she did not report her daughter's sexual


3
  A "Dodd removal" refers to the emergency removal of a child from a home
without a court order as authorized by N.J.S.A. 9:6-8.29 of the Dodd Act,
N.J.S.A. 9:6-8.21 to -8.82. See N.J. Div. of Youth & Family Servs. v. P.W.R.,
205 N.J. 17, 26 n.11 (2011) (citations omitted).
                                                                        A-5602-16T1
                                      11
abuse by Kevin, defendant appeared "emotional as she maintained that she did

nothing wrong with regard to the referral issue and that [Kevin] and his parents

had not been held accountable." Dr. Berry ultimately reached the following

clinical conclusion:

              In [defendant's] attempt to present as well-adjusted
              during the parenting interview and testing, she
              ultimately presented as dysregulated as she was unable
              to tolerate frustration or intense negative emotions
              related to the referral issue. Subsequently, there is
              concern regarding [defendant's] emotional stability
              when under stress.

      Dr. Berry recommended: (1) the Division obtain defendant's psychiatric

records; (2) defendant receive counseling to address "neglect of her daughter

and her poor judgment" that exposed the child "to unnecessary risk related to

sexual abuse and exposure to domestic violence and substance abuse"; (3)

defendant submit to an updated psychiatric evaluation and need for psychotropic

medication; (4) defendant submit to random drug screening; and (5) defendant

have supervised contacts with her daughter until these issues are addressed.

      The Division also presented the testimony of psychologist Anthony

Vincent D'Urso, Ph.D., whom the parties stipulated as an expert witness in

psychology.     At the request of the Division, Dr. D'Urso conducted two

psychological evaluations of Mary related to her father's sexual molestation "to


                                                                        A-5602-16T1
                                       12
assess her emotional functioning." The first evaluation occurred on March 10

and the second on November 3, 2016. Dr. D'Urso explained that the first

evaluation was dedicated to explaining the process to Mary "to make sure that

she understood the purpose of the evaluation."

      In this initial encounter, Dr. D'Urso testified that Mary described to him

in detail what her father asked her to do. Based on Mary's account, Dr. D'Urso

opined there was "clinical support" to find Mary had been sexually abused.

When asked to elaborate, Dr. D'Urso explained that Mary "gave a description of

sexual behavior that theoretically is beyond her age and stage of development."

Dr. D'Urso also noted that the description of the sexual act Mary provided to

him was "in large part" consistent with the description the child gave to the

Division investigator and to the law enforcement investigators with the HCPO.

In this respect, Dr. D'Urso explained:

            There's going to be no perfect repetitions in the multiple
            interviews that occur. She gave information that was
            talked about and seen in other evaluations that were
            similar. So, the basis was that she had an effective
            response, an emotional response to the abuse. It did not
            appear to us that she had a motive to fabricate. She's
            connected to her father emotionally, to her mother
            emotionally,     to   her    [paternal]      grandparents
            emotionally. It was a disclosure she had made
            approximately 18 months before the investigation
            began. She maintained the allegation in terms of the
            series of interviews she was involved in in the

                                                                         A-5602-16T1
                                         13
            investigative side as well as at [Audrey Hepburn]. So,
            all those factors coming together told us that clinically
            that we would treat the sexualized behavior.

      Dr. D'Urso evaluated Mary again on November 3, 2016, in response to her

paternal grandfather's allegation that Mary had recanted her allegations against

her father and that defendant "had, in essence, influenced the child to make the

allegation." Dr. D'Urso testified that in the course of this second evaluation,

Mary made clear "that the events really happened. She felt shameful, guilty,

[and] shy about discussing the details again. She reported that what she said

previously was true . . . [.]" Dr. D'Urso made clear that Mary did not say

anything during this second evaluation to cause him to question his earlier

clinical opinion or provide any grounds to modify his assessment of the veracity

of her allegations of sexual molestation.

      Dr. D'Urso evaluated defendant on April 13 and May 12, 2016, and Kevin

on April 22, 2016. Dr. D'Urso testified that these evaluations were designed to

determine whether they had the parenting capacity to protect their daughter.

With respect to defendant, Dr. D'Urso testified:

            She indicated that [the sexual molestation] occurred
            somewhere in the summer of 2014. She reported that
            [Mary] told her about this, that [Mary] told her - - her
            father and her uncle, initially, and then [defendant]
            reported these allegations to the paternal grandparents.


                                                                        A-5602-16T1
                                      14
      Kevin denied he sexually molested Mary and claimed defendant

            coached his daughter into making the disclosure, that if
            it was really true . . . she should have made this
            disclosure long before she did and that this was an
            outgrowth of a longstanding conflict . . . in their
            relationship where she attempted to hurt him in many
            different ways.

  Dr. D'Urso testified that Kevin's accusations against defendant did not provide

any basis to alter his clinical assessment of Mary.

                                        II

      Against these salient facts, Judge De Castro found, by a preponderance of

the evidence, that: (1) Kevin sexually molested Mary when she was six years

old; and (2) defendant acted in a wanton and grossly negligent manner and

placed her daughter in a substantial risk of harm when she failed to timely report

the abuse to law enforcement authorities. Judge De Castro acknowledged that

pursuant to N.J.S.A. 9:6-8.46(a)(4), "a child's statements regarding sexual abuse

are not reliable unless they can be corroborated." Relying on N.J. Div. of Youth

& Family Servs. v. Z.P.R., 351 N.J. Super. 427, 436 (App. Div. 2002), Judge De

Castro found Mary's account of the sexual molestation by her father was

corroborated by her description of the act itself, which included details of sexual

activity that are reasonably beyond the knowledge of a seven-year-old child.

This was also supported by Dr. D'Urso's expert testimony.

                                                                           A-5602-16T1
                                       15
        Judge De Castro found, by a preponderance of the evidence, that

defendant abused and neglected her seven-year-old daughter within the meaning

of N.J.S.A. 9:6-8.21(c)(4), by failing to report the sexual abuse committed by

the child's biological father for eighteen months, by allowing the child to

continue to reside in the same premises as the perpetrator of the abuse, and by

allowing the perpetrator to have unsupervised access to the child. Defendant's

conduct constituted gross negligence and placed the child at a substantial risk of

harm.

        "The fact-finding hearing is a critical element of the abuse and neglect

process." N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 264

(App. Div. 2002). The judge, as the fact-finder, is there "to determine whether

the child is an abused or neglected child as defined herein." N.J.S.A. 9:6–8.44.

Our standards of review require us to defer to the Family Part's findings of fact

that are based on the credibility of witnesses, N.J. Div. of Youth & Family Servs.

v. F.M., 211 N.J. 420, 448 (2012), and are supported by substantial competent

evidence. N.J.S.A. 9:6-8.46; R. 5:12–4(d).

        An "abused or neglected child" is "a child less than 18 years of age whose

parent" fails "to exercise a minimum degree of care . . . in providing the child

with proper supervision or guardianship, by unreasonably inflicting or allowing


                                                                          A-5602-16T1
                                        16
to be inflicted harm, or substantial risk thereof." N.J.S.A. 9:6-8.21(c)(4)(b).

Here, the Division alleged defendant failed to take timely action to protect Mary

from imminent harm. Under these circumstances, we must determine whether

defendant failed to exercise a minimum degree of care as a matter of law. G.S.

v. Dep't of Human Servs., 157 N.J. 161, 182 (1999). As the Court explained in

G.S., "the phrase 'minimum degree of care' refers to conduct that is grossly or

wantonly negligent, but not necessarily intentional." Id. at 178. The Division

must prove that defendant acted with reckless disregard for her daughter's safety.

A finding of abuse and neglect must be based 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).

      The Division presented sufficient competent evidence to satisfy this

standard. We thus affirm substantially for the reasons expressed by Judge De

Castro in her memorandum of opinion.

      Affirmed.




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                                       17
