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False Child Molestation Claims Held To Amount To Child Abuse

November 28, 2012 Leave a comment

False Child Molestation Claims Held To Amount To Child Abuse

Charles Toutant

New Jersey Law Journal

11-27-2012

A mother subjected her daughter to abuse and neglect by making baseless reports that the child was molested by her father, the Appellate Division ruled Tuesday.

By lodging the claims, and coaching the girl to corroborate them, the mother showed a reckless disregard for her child, the court said in DYFS v. C.O., A-2387-11.

The girl’s well-being was further jeopardized by the stress of physical and psychological examinations during the sex-abuse investigations, the court added.

The girl, referred to by the pseudonym Amy, was born in November 2006 after a brief romance between her parents, referred to as Sally and Charles.

Sally resisted letting Charles spend time with Amy, but he won visitation rights shortly before her first birthday.

In April 2010, when Amy was 3, Sally took her to an emergency room and said Charles had penetrated the girl’s vagina with a vibrating device while she was visiting him.

An investigation was conducted in New York, where Charles lived. The New Jersey Division of Youth and Family Services (DYFS) remained involved because Amy is a state resident.

New York police found no evidence of sexual abuse, based on a physical examination, conflicting accounts by Amy and Sally, and interviews of guests at a party attended by Charles and Amy at the time of the alleged abuse.

DYFS and Child Protective Services (CPS) in New York also found no sexual abuse. They cited the same sources, as well as a videotape of the party showing Amy playing happily and photographs of Amy’s genital and anal areas, taken by Sally’s father before and after the visit, which did not display any injury.

DYFS and CPS also cited counselors’ concerns that Amy’s statements had been prompted by Sally.

While that investigation was under way, Sally made additional allegations of sexual abuse against Charles and insisted that Amy have a second, invasive physical exam. Again, no signs of sexual abuse were found.

DYFS contended that Sally’s continuing conduct was harmful to Amy, in violation of N.J.S.A. 9:6-8.21 to -8.73, which defines child abuse and neglect.

A judge granted DYFS’s motion to transfer residential custody of Amy to Charles on May 13, 2010, pending a fact-finding hearing. The hearing was conducted on 12 nonconsecutive days between November 2010 and July 2011.

In December 2011, Bergen County Superior Court Judge Bonnie Mizdol ruled that DYFS had sustained its burden of proof that Sally exhibited a pattern of reckless disregard that harmed Amy.

Mizdol cited the “repeated, unnecessary medical, physical and psychological examinations” and Sally’s attempts “to shape and manipulate” Amy’s behavior to further Sally’s goal to isolate Charles “from any meaningful parental relationship with his daughter.”

Sally appealed, contending that Mizdol’s factual findings were not supported and that Sally’s constitutional rights were violated by the nonconsecutive hearing dates.

Appellate Division Judges Clarkson Fisher, Carmen Alvarez and Alexander Waugh Jr. affirmed, adding that Sally had not intended to hurt Amy.

The panel cited the stress of multiple investigations, Sally’s insistence on a second physical examination and counselors’ notes that Amy had an enhanced knowledge of sexual matters for a child of her age.

In addition, the panel said Mizdol properly characterized the mother’s conduct as “abuse or neglect.”

Noting that the child-abuse statute requires such conduct to rise above the level of mere negligence, and requires conduct that is “grossly or wantonly negligent” or “reckless,” the appeals court cited Mizdol’s finding that the mother’s conduct was “reckless.”

Sally also claimed that her pursuit of a clear answer as to whether her child was sexually abused did not constitute grossly or wantonly negligent behavior.

The appeals judges noted, however, that Sally had received a clear answer from Child Protective Services and the police but would not accept it.

“The reckless disregard found by the judge stemmed not from Sally’s efforts to rule out sexual abuse, but rather from her refusal to recognize a clear answer once she had one and her continued, baseless assertions that Charles had abused Amy,” the panel added.

Sally also disputed Mizdol’s conclusion that she had coached Amy, citing a counselor who supported her view.

But the appeals court said Mizdol’s finding was appropriately supported by two other counselors and an interview of Amy by a New York child-abuse investigator and a sheriff’s officer.

The panel also rejected Sally’s claim that her rights were violated by nonconsecutive hearing dates. Although R. 5:3-6 requires a trial to run over consecutive days, the delays were caused by scheduling issues, including Sally’s work schedule and the judge’s trial calendar, the panel said.

Sally’s lawyer, James Doyle of Swenson & Doyle in Hackensack, says the ruling unfairly labels his client a child abuser because she sought further reassurance that Amy had not been abused.

DYFS did a poor job of communicating to Sally the outcome of that inquiry, says Doyle. He adds that Sally no longer suspects Charles of child abuse and still hopes to regain primary custody but the abuse and neglect finding makes that difficult.

DYFS was represented by Assistant Attorney General Andrea Silkowitz. Lee Moore, a spokesman for the Attorney General’s Office, says his agency will not comment.

 

NEW CASE: N.G. v. J.P. FAMILY LAW — Domestic Violence – 50 YEARS DIVORCED IS NOT TOO LONG TO BE CONSIDERED DOMESTIC VIOLENCE

June 28, 2012 Leave a comment

N.G. v. J.P.

http://www.law.com/jsp/nj/PubArticleFriendlyNJ.jsp?id=1202560223664

FAMILY LAWDomestic Violence
Although the parties have not resided together in more than 50 years, defendant‘s sporadic harassment of plaintiff over that period, arising from their status as former household members, conferred jurisdiction on the Family Part to issue a final restraining order under the Prevention of Domestic Violence Act.

 

By Judith Nallin

06-20-2012

N.G. v. J.P., A-3247-10T3; Appellate Division; opinion by Baxter, J.A.D.; decided and approved for publication June 18, 2012. Before Judges Baxter, Nugent and Carchman. On appeal from the Chancery Division, Family Part, Essex County, FV-07-321-11. DDS No. 20-2-6661 [34 pp.]

Defendant J.P. appeals from the issuance of a final restraining order against him under the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35.

Defendant and plaintiff N.G. are siblings who have not resided together since 1960. J.P. harbors a deep resentment of N.G. and their mother, B.P. The record describes confrontations between J.P. and N.G. in the 1960s when he allegedly hit her over the head with a baseball bat, in 1989, when he confronted her in a school parking lot, and in 1991, when he encountered her at a local pizzeria.

As a result of those incidents, N.G. obtained an order for preliminary restraints barring J.P. from contacting or disparaging her and from conducting any sort of public protest adjacent to her residence. In 1991, a judge entered a FRO prohibiting J.P. from coming within four blocks of the residences of B.P. and N.G.. The FRO was vacated in 1993 as to B.P. only.

In February 2010, J.P. began picketing in front of N.G.’s residence. On 29 occasions he marched back and forth repeatedly saying “F— you G——–,” “Burn in hell,” and “I hope you rot in hell.” He often made an obscene gesture in which he raised each of his middle fingers.

As a result, N.G. filed a domestic-violence complaint against him. The judge ruled that J.P. had committed the predicate acts of stalking and harassment and issued the FRO barring him from contacting N.G. and from entering any portion of Millburn Township. J.P. responded that he would not comply with the court’s order. N.G. was awarded attorney fees.

Held: The harassment of plaintiff by defendant over the intervening decades — although sporadic — conferred jurisdiction on the Family Part to issue the FRO since the present incidents arose directly from the parties’ acrimonious family relationship and their status as former household members.

Defendant’s conduct constituted harassment and stalking. The award of attorney fees to plaintiff is affirmed, as such fees are expressly available under the act and the judge correctly applied the factors in Rule 4:42-9(b). However, because the FRO failed to give sufficient consideration to J.P.’s legitimate need to attend church and visit his physician in Millburn, the matter is remanded so that the judge may set precise conditions respecting those activities.

J.P. claims that the court lacked jurisdiction to issue the FRO and that the judge committed reversible error when he refused to dismiss N.G.’s complaint. The panel says the act defines a victim of domestic violence to include, “any person … who has been subjected to domestic violence by … any … person who is a present or former household member.” The panel applies the six-factor test for determining whether jurisdiction exists based on the parties’ status set forth in Coleman v. Romano, 388 N.J. Super. 342 (Ch. Div. 2006).

As to the first factor, the nature and duration of the prior relationship between the parties, the panel agrees with the trial judge’s finding that although N.G. and J.P. have been estranged for decades, his attempt to re-establish contact with her springs from the antagonism he harbored toward her while they were members of the same household. The long duration of the parties’ relationship, albeit composed of sporadic episodes of intense strife, supports the conclusion that this factor was satisfied.

As to the second factor, whether the past domestic relationship provides a special opportunity for abuse and controlling behavior, the panel says J.P.’s testimony concerning the motivation for his behavior makes it clear that if N.G. were not his sister, he would not have behaved toward her as he did. Her testimony supports the conclusion that events during her childhood made her fearful of his conduct and threats in adulthood. Thus, the second factor weighs in favor of jurisdiction under the act.

The panel says that while the parties have not lived together for more than 50 years, the third factor, the amount of time that has elapsed since the parties last lived together, is only one factor to be considered in determining the availability of the act’s protection.

The fourth factor is the nature and extent of any contact between the parties between the time they ceased living together and when the plaintiff seeks protection under the act. The panel says that although J.P.’s conduct in 1989 and 1991 is distant in time both from when the parties stopped living together and from when N.G. sought protection under the act, the incidents were of such severity as to weigh in favor of jurisdiction.

As to the fifth factor, the nature of the precipitating incident, the panel says that case law has held that when the precipitating incident relates to the prior domestic relationship, jurisdiction under the act is appropriate. Because J.P.’s behavior in 2010 was motivated exclusively by what he perceived as B.P.’s and N.G.’s unjust treatment of him, and his conduct was persistent and threatening, the nature of the precipitating incident weighs in favor of jurisdiction.

Finally, the panel says the sixth factor, the likelihood of ongoing contact or a continuing relationship, weighs in favor of jurisdiction since defendant’s testimony provides ample evidence that his behavior will not cease.

Because all of the Coleman factors, with the possible exception of the third, weigh in favor of jurisdiction, the panel affirms the denial of defendant’s motion to dismiss.

As to defendant’s argument that the FRO was oppressively and impermissibly broad, the panel notes that remedies under the act are liberally construed for the protection and safety of victims and the public at large. Noting J.P.’s defiant attitude and his vow to disobey the FRO, it says extraordinary measures are necessary for N.G.’s protection.

Therefore, the panel affirms the ban on defendant entering Millburn. However, it remands to give J.P. a fuller opportunity to describe his church attendance and any visits to his doctors in Millburn. If he fails to do so, his right to seek such relief will be deemed waived.

As to defendant’s claim that the judge erred by finding his conduct constituted harassment and stalking, the panel reviews the statutory definition of stalking and concludes that the trial court correctly found that J.P. committed the predicate offense of stalking where he maintained a visual and physical proximity to N.G., his conduct was repeated 29 times, he threatened N.G. by offensive hand gestures and shouting curses at her, and he caused emotional distress.

Similarly, the panel reviews the definition of harassment and concludes that J.P.’s conduct constituted harassment where he communicated with N.G., his conduct undermined his claim that his intent was other than to harass her, and his repeated conduct was likely to cause annoyance or alarm.

The panel affirms the award of counsel fees, finding that such an award in a domestic-violence proceeding requires no special showing and that the judge carefully applied all of the factors specified in Rule 4:42-9(b), RPC 1.5(a) and Schmidt v. Schmidt, 262 N.J. Super. 451 (Ch. Div. 1992).

For appellant — Jack Venturi (Jack Venturi & Associates; Venturi and Michael B. Roberts on the briefs). For respondents — Mark H. Sobel (Greenbaum, Rowe, Smith & Davis; Sobel and Dennis F. Feeney on the brief).

 

http://www.law.com/jsp/nj/PubArticleFriendlyNJ.jsp?id=1202560223664