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 Jr., 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.