N.J. Div. of Child Prot. & Permanency v. N.Y. (In re K.C.)
| Decision Date | 13 April 2020 |
| Docket Number | DOCKET NO. A-4216-17T1 |
| Parties | NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. N.Y., Defendant-Appellant, and L.C. and A.S.D., Defendants. IN THE MATTER OF K.C., M.Y., D.T.Y., N.Y., and N.D.C., Minors. |
| Court | New Jersey Superior Court — Appellate Division |
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
Before Judges Sabatino and Geiger.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FN-16-0079-17.
Joseph E. Krakora, Public Defender, attorney for appellant (Robyn A. Veasey, Deputy Public Defender, of counsel; Marina Ginzburg, Designated Counsel, on the brief).
Gurbir S. Grewal, Attorney General, attorney for respondent (Jane C. Schuster, Assistant Attorney General, of counsel; Viviane Cristina Sullivan, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor, N.D.C. (Rachel E. Seidman, Assistant Deputy Public Defender, on the brief).
Defendant N.Y. (Nick)1 appeals from an April 11, 2018 Family Part order terminating litigation in this Title Nine case; a January 3, 2018 order dismissing his minor daughter, N.D.C. (Natalie), from the litigation because a guardianship complaint was filed; and the underlying June 21, 2017 order finding that he sexually abused and neglected Natalie. We affirm.
Nick is the biological father of Natalie; L.C. (Lacy) is her biological mother.2 Nick and Lacy were married but had separated in 2014, due to Nick's extramarital affair with V.K. (Valerie). Their marriage produced Natalie and N.Y. (Noelle), among other children.
In the fall of 2015, Natalie and Noelle, and some of their siblings, were residing with Nick, Valerie, and Valerie's children in Paterson. Natalie was then thirteen and Noelle was eleven.
Sometime thereafter, Natalie was arrested when she and a group of friends stole a woman's car keys from her person and began driving her car around Paterson. When police tried to pull the vehicle over, the driver stopped suddenly and all passengers, including Natalie, fled. Natalie was soon apprehended, subsequently placed on house arrest, and required to wear an ankle monitor.
In the summer of 2016, Natalie was sentenced to probation for one year and her ankle monitor was removed. Soon thereafter, she began staying out late and acting disobediently. On August 3, 2016, Valerie threatened to report Natalie's behavior to her probation officer. In response, Natalie ran away from home. Natalie's godmother, D.Z. (Dana), and her godmother's adult daughter, R.Z. (Rachel), were contacted about Natalie's disappearance.
After searching Paterson, Rachel found Natalie and brought her back to Dana's home. Eventually, Natalie disclosed to both Dana and Rachel that on several recent occasions, Nick had grabbed her buttocks and breasts, and made lewd comments to her. Natalie intimated that Nick's behavior had been ongoing from November 2015 to July 2016, but to her knowledge did not involve any of her siblings.
After hearing her accusations, Rachel took Natalie to the police and subsequently to the Passaic County Prosecutor's Office where Natalie provided a statement detailing the sexual abuse. The police notified the Division of Child Protection and Permanency (Division). Division caseworkers interviewed Natalie and her family. During the interviews, Natalie reiterated her accusations. Both Nick and Valerie denied the claims, attributing them to Natalie's displeasure with following their rules.
On September 20, 2016, Natalie underwent a psychosocial evaluation by Kirsten Byrnes, Psy.D., a staff psychologist at Audrey Hepburn Children's House (AHCH). Anthony D'Urso, Psy.D., served as supervising psychologist. The resulting report explained that during the evaluation Natalie recounted her accusations against Nick, explained her current emotional state, and informed Byrnes that she witnessed multiple instances of domestic violence and substanceabuse in her homelife. The report found clinical evidence of physical abuse; emotional abuse; exposure to intimate-partner violence, substance abuse, and firearms; and inappropriate sexual boundaries.
On October 20, 2016, the Division filed a verified complaint under Title Nine for custody, care and supervision of Natalie and Noelle. The fact-finding hearing took place over five non-consecutive days in 2017. At issue was whether Natalie was an abused and neglected child under N.J.S.A. 9:6-8.21(c)(3). The Division presented testimony by D'Urso, Natalie, and Division investigator Mario Jumique. Neither Nick nor Lacy testified during the hearing.
The parties stipulated that D'Urso is an expert in child psychology and sexual abuse of children. D'Urso testified that he is the "supervising psychologist and section chief" at AHCH and, along with co-directing the facility, he is "responsible for all of the mental health services."
D'Urso testified that Natalie was referred to AHCH by the Division in September 2016, for a psychosocial evaluation relating to allegations of sexual behavior by her father, Nick. The interview and report primarily related to Natalie's "emotional functioning and any treatment related services or recommendations that would be appropriate for her." D'Urso confirmed thatByrnes interviewed Natalie but stated that he was part of the entire process "from the referral until the signature that's on the report."
D'Urso recounted how, during her interview, Natalie expressed that her father fondled her and made sexual advances towards her on multiple occasions. D'Urso explained that a Millon Adolescent Clinical Inventory test was administered on Natalie, which "is a general measure of emotional functioning so it assesses . . . anxiety, depression, relationships, self-esteem, worry, sexualized discomfort, as well as things like attitude towards parents, [and] school." The test revealed that Natalie is "anxious and depressed," experiences "social isolation," and "that she had some emotional difficulties." Natalie was diagnosed with "persistent depressive disorder" and "child physical abuse."
Natalie testified in camera.3 She stated that Nick's sexual advances began one night in November 2015 while she was sleeping in her room and suddenly awoken by Nick. Nick asked Natalie to speak with him in the hallway. During the conversation, Nick asked Natalie whether she was having sex and if he could "break [her] off?" He subsequently grabbed her forearm. Natalie broke free ofNick's grip, responded, "no," and walked back to her room, locking the door behind her. Natalie testified that she later discovered the phrase, "break you off," was sexual in nature and "was scared" of being "rape[d]" by Nick.4
Natalie then testified that in January 2016, while she was in the kitchen washing dishes, Nick came up behind her and wrapped his arms around her waist. When she pushed Nick away, he began laughing and called her "a punk." Natalie testified that Noelle was also in the kitchen and exchanged a "weird look" with her following Nick's embrace. In fact, Noelle previously told Division investigators that she had seen Nick embrace Natalie "a couple of times" and reenacted their encounter by "brush[ing] her hand across her chest and buttocks."
Next, Natalie testified that in March 2016, Nick was lying on the couch while holding her baby sibling. Nick called Natalie and asked her to put the baby to bed. When Natalie leaned over the couch to pick the baby up, Nick "touched" Natalie's breast. When Natalie asked him what he was doing, Nick responded by laughing and then going to sleep.
Finally, Natalie recounted an evening in July 2016, where she was lying in bed and "heard the door creep open." She assumed it was one of her siblings, so she continued lying still. Eventually, she began to sense someone staring at her intensely; when Natalie turned, she saw Nick in the doorway. Nick then reached out and tried to touch Natalie's buttocks, but she began yelling. Nick responded by laughing while exiting the room. Natalie detailed how Nick's behavior made her feel "hopeless" and led to suicidal ideations.
Natalie was extensively cross-examined by defense counsel in an effort to attack her credibility. Nick contended that Natalie was accusing him of sexual abuse because she was frustrated with multiple unrelated issues, including: (1) having to babysit her siblings and change their diapers all the time; (2) Nick cheating on Lacy with Valerie; (3) Valerie threatening to call Natalie's probation officer if she continued acting out; and (4) instances of emotional and physical abuse, separate from the sexual abuse allegations.
Following Natalie's testimony, the parties submitted written summations and the record was closed. The judge issued a June 20, 2017 oral opinion finding the Division had proven that Natalie was an abused and neglected child under N.J.S.A. 9:6-8.21(c)(3). An order reflecting the ruling was entered the following day.
Specifically, the judge found "[t]here were several incidents in which [Nick] subjected [Natalie] to inappropriate sexual contact." "[B]ased upon the weight of the credible testimony," the judge found Nick "touched [Natalie] in her intimate areas and was asked by [Nick] whether [she] would allow -- him to break her off." The judge further found that Nick "wrapped his arms around [Natalie's] waist and pulled her body close to his," making "her feel uncomfortable." The judge also found that Nick "cupped her breast and smacked her buttocks."
The judge noted "D'Urso testified that [Natalie] recounted the same incidents during the course of her psychological evaluation." The judge also noted that Jumique testified that "[Natalie's]...
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