DCPP VS. J.S.X. AND L.F.D. IN THE MATTER OF F.D.S. (FN-09-0214-19, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

D
                                      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                                NOT FOR PUBLICATION WITHOUT THE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-2276-19

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

J.S.X.,

          Defendant-Appellant,

and

L.F.D.,

     Defendant.
________________________

IN THE MATTER OF F.D.S.,
a minor.
________________________

                   Submitted May 4, 2021 – Decided May 19, 2021

                   Before Judges Fisher and Moynihan.
              On appeal from the Superior Court of New Jersey,
              Chancery Division, Family Part, Hudson County,
              Docket No. FN-09-0214-19.

              Joseph E. Krakora, Public Defender, attorney for
              appellant (John Salois, Designated Counsel, and
              Patricia Nichols, Assistant Deputy Public Defender, on
              the briefs).

              Gurbir S. Grewal, Attorney General, attorney for
              respondent (Sookie Bae, Assistant Attorney General, of
              counsel; Nedda Alvarez, Deputy Attorney General, on
              the brief).

              Joseph E. Krakora, Public Defender, Law Guardian,
              attorney for minor (Meredith Alexis Pollock, Deputy
              Public Defender, of counsel; Rachael E. Seidman,
              Assistant Deputy Public Defender, of counsel and on
              the brief).

PER CURIAM

      Defendant J.S.X. (Janet, a fictitious name 1) came to the United States from

Guatemala in 2011 to live with her paramour of many years, defendant J.D.R.

(John), who arrived from Guatemala two years earlier. Janet's daughter F.D.S.

(Francie), born in 2001, remained in Guatemala until she came to Bayonne in

December 2015 to live with her mother and John, who she viewed as her

stepfather.



1
  All names used for defendants and the child are fictitious to protect the child's
privacy.
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                                        2
      The matter in question had its genesis in a referral made by the Bayonne

Police Department to the Division of Child Protection and Permanency on

January 8, 2019. Due to concerns about Francie's absence from school, a truancy

officer investigated and learned from Francie's friends that she had revealed to

them she had been sexually abused by her stepfather. Division representatives

went to defendants' home that night and spoke separately with Francie, Janet,

and John. Francie did not then acknowledge there was anything untoward about

her relationship with John. The next day, the Division was invited to the

prosecutor's office to hear about new developments.

      On January 9, a detective recorded interviews with both defendants as well

as Francie. Janet told the detective that John told her the prior evening that he

had sexually abused Francie in the past. Janet also advised that after this

revelation, she, John, and Francie all went to bed; as was the existing

arrangement, they all slept in the same room. Janet also told the detective that

she went to work the next morning, leaving Francie and John asleep in the same

room, knowing Francie would also be home the entire day because she had been

suspended from school.

      During her January 9 interview, Francie told the detective she did not trust

her mother to protect her because she had told her mother eighteen months


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                                        3
earlier that John had kissed her and touched her private parts against her wishes

and her mother did nothing about it; instead, according to Francie, Janet got

upset and said she would send Francie back to Guatemala. 2 Around the same

time, Francie began using sharp objects to cut her arms, finding this helped

alleviate her anger and depression. She also described how John was upset with

her the morning of January 8 because he had previously found her at home on

the couch kissing her boyfriend. According to Francie, on the morning of

January 8 John pushed her onto a bed but she was able to fend off his attempts

to penetrate her. This circumstance made John angry, and he told Francie that

because she now had a boyfriend she had "to behave like a woman with" him.

      During his interview, John initially denied these claims. He told the

detective that Francie said he sexually abused her because of the incident with

Francie's boyfriend. Later in the interview, however, John admitted he started

sexually abusing Francie about a year earlier and that he forcibly penetrated her

on the morning of January 8, among other things.




2
  Francie also reported to her mother that she had been molested by an older
boy in Guatemala a few years earlier but her mother, who was then in the United
States, took no action.
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                                       4
      Both John and Janet were arrested. He was charged with sexual assault,

criminal sexual contact, and endangering the welfare of a child. Janet was

charged with endangering the welfare of a child.

      On January 11, 2019, the Division filed this Title Nine action, alleging

abuse or neglect and seeking custody of Francie.         A fact-finding hearing

occurred on June 5 and 25, 2019, during which the judge heard the Division's

twelve witnesses.    Neither John nor Janet testified, nor did they call any

witnesses.

      On June 27, 2019, the trial judge entered an order declaring that both John

and Janet abused or neglected Francie. The judge's order contains his written

findings of fact and conclusions of law. The judge found that Janet neglected

Francie "by failing to exercise the minimum degree of care when she was aware

that [John] had sexually abused" Francie and that Janet "failed to take any st eps

to protect and adequately supervise her." The judge based this determination on

his finding that John "confessed the incident of January 8, 2019" and his "past

history of sexual molestation" to Janet the night of January 8, 2019, and that

Janet "allowed [Francie] to continue residing in the apartment with [John], to

sleep that night in the same bedroom with [John and Janet], and to leave

[Francie] alone at home with [John] the following morning." He concluded that


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                                        5
allowing Francie "to continue residing in the home of her confessed sexual

abuser, to continue to sleep in the same room as her sexual abuser, and to leave

[Francie] alone with her confessed sexual abuser were acts of gross negligence

that exposed [Francie] to risk of serious injury."

       Janet appeals,3 arguing in a single point that the judge's holding is not

supported by the evidence presented at the hearing for two reasons:

             A. Janet Provided a Requisite Level of Care to Francie
             and her Conduct Did Not Rise to the Level of Gross
             Negligence as Required Under Title Nine to Support a
             Determination of Abuse and Neglect.

             B. There is no Evidence That Francie Was Harmed by
             Janet's Parenting.

We find insufficient merit in these arguments to warrant further discussion in a

written opinion, R. 2:11-3(e)(1)(E), adding only the following few brief

comments.

       As relevant here, N.J.S.A. 9:6-8.21(c)(4) defines an abused or neglected

child as one "whose physical, mental, or emotional condition has been impaired

or is in imminent danger of being impaired as the result" of the parent's failure

"to exercise a minimum degree of care . . . (b) in providing the child with proper

supervision or guardianship, by unreasonably . . . allowing to be inflicted harm,


3
    John has not appealed.
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                                        6
or substantial risk thereof." The Supreme Court held in G.S. v. Dep't of Human

Servs., 

157 N.J. 161

, 181 (1999), that a parent breaches this obligation by failing

to adequately supervise a child or by recklessly creating a risk of serious injury

to the child "when . . . aware of the dangers inherent in a situation." See also

N.J. Div. of Child Prot. & Permanency v. A.B., 

231 N.J. 354

, 369 (2017). The

matter does not turn, as Janet's second argument suggests, on proof of actual

harm to the child. While it certainly encompasses a child actually harmed, the

statute and the jurisprudence that has developed are broader and were designed

to protect children from harm when exposed to an imminent danger or

substantial risk of harm even if the child is not actually harmed.4 N.J. Dep't of

Child. & Fams. v. A.L., 

213 N.J. 1

, 22 (2013).

      The facts supporting the Division's claim were well established. Janet

knew on the evening of January 8 that John had sexually abused Francie, even

as recently as that morning. Yet she did nothing to protect the child that night



4
  To be sure, there was evidence of the harm suffered by the child as a result of
John's conduct. She not only had been sexually abused on multiple occasions
but had also taken to cutting herself. We are cognizant, however, that the claim
against Janet was narrowly tailored to her failure to adequately supervise or
protect the child on January 8, after John admitted his past conduct, until late
the following morning. The judge made no finding that the child was actually
harmed by Janet's conduct during that short period of time, only that th e child
was exposed to imminent danger.
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                                        7
or the next morning. Instead, Janice allowed her daughter to remain in the same

room overnight with her abuser and then, in the morning, left the child alone

with her abuser. There can be no doubt that exposing the child to that imminent

danger – even if nothing actually happened in the late night and early morning

hours by the time John went to work – constitutes a violation of the obligations

imposed on Janet by N.J.S.A. 9:6-8.21(b)(4).

      Affirmed.




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                                       8

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