                       RECORD IMPOUNDED

                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-4780-12T1
                                                 A-4946-12T1


NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

     Plaintiff-Respondent,              APPROVED FOR PUBLICATION

v.                                         December 19, 2014

B.O. and T.E.,                            APPELLATE DIVISION


     Defendants-Appellants.
__________________________________

IN THE MATTER OF T.E.E.,

     a minor.
__________________________________

         Submitted November 18, 2014 – Decided December 19, 2014

         Before Judges Reisner, Koblitz and Higbee.

         On appeal from Superior Court of New Jersey,
         Chancery Division, Family Part, Monmouth
         County, Docket No. FN-13-198-12.

         Joseph E. Krakora, Public Defender, attorney
         for   appellant   B.O.   (Andaiye   Al-Uqdah,
         Designated Counsel, on the brief).

         Joseph E. Krakora, Public Defender, attorney
         for   appellant   T.E.    (Carol   A.   Weil,
         Designated Counsel, on the brief).

         John J. Hoffman, Acting Attorney General,
         attorney for respondent (Melissa H. Raksa,
         Assistant Attorney General, of counsel;
            Timothy P. Malone, Deputy Attorney General,
            on the brief).

            Joseph E. Krakora, Public Defender, Law
            Guardian, attorney for minor T.E.E. (Lisa M.
            Black, Designated Counsel, on the brief).

      The opinion of the court was delivered by

KOBLITZ, J.A.D.

      In this consolidated matter, both parents appeal from a

February 14, 2013 order finding they abused or neglected their

seven-week-old infant, T.E.E. (Timmy1), within the meaning of

N.J.S.A.    9:6-8.21(c),    by    causing       him   to   suffer     brain    injury

through partial suffocation when they both took oxycodone and

the mother, B.O. (Betty), slept with Timmy in the same bed.2                        The

parents argue that the eyewitness presented by the Division was

so   incredible    and    the    doctor    so    poorly     informed     that       the

Division    did   not    prove   the   parents'       failure    to    exercise        a

minimum degree of care by a preponderance of the evidence.                          The

Law Guardian joins the Division in urging us to affirm.                          After

carefully    reviewing     the   record     in    light    of   the    contentions

advanced on appeal, we affirm.


1
   We use fictitious names for the parties for ease of reference
and to preserve their confidentiality.
2
  The order was rendered ripe for appeal as of right after the
Division of Child Protection and Permanency (Division) filed a
complaint for guardianship and the judge entered a May 10, 2013
final order terminating this neglect litigation.



                                       2                                      A-4780-12T1
      Defendants did not testify, nor present any other evidence

at the fact-finding hearing, nor did they attend every day of

the   four-day     hearing.       The   Division     presented         the    following

facts.      The    Division     received      its   first     referral        regarding

defendants    on    the   day   after     Timmy     was   born.         The    reporter

alleged that in June and November 2011, during her pregnancy,

Betty tested positive for marijuana.                 Betty told the Division

she did not intentionally smoke marijuana after realizing she

was pregnant, but may have tested positive because she was in a

car where others were smoking it.                 She also said she had been

diagnosed with bipolar disorder but was not receiving treatment.

Both parents tested negative after Timmy was born, although T.E.

(Ted) did not appear for a drug test at the end of January.

      In January, on a routine home check, defendants informed

the   Division     caseworker      that    they     had   taken        Timmy    to   the

hospital    because    he   had    a    fever.      The     child's     pediatrician

expressed    no    concerns     about     Timmy's     care.        A    week     later,

however, on February 10, 2012, the caseworker called Betty and

discovered    that     defendants       were      waiting     at   the        pediatric

intensive care unit.          Betty said that morning she found Timmy,

then about seven weeks old, not breathing.                    Betty related that

she had placed Timmy in his bassinet for a nap in the morning.




                                          3                                    A-4780-12T1
When   she   checked    on   him   later    he   had     blue   lips,    a   blanket

covering his face, and was not breathing.

       Two Division caseworkers met the parents at the hospital

where both parents provided a similar account of what happened.

Neither parent mentioned the presence of any other adult.                           On

February 21, however, a downstairs resident of the two-family

house where defendants lived contacted the Division to say that

Jay, who had been staying with defendants, told her that he saw

Betty "get up off the baby" on the morning of Timmy's injury.

She said defendants were drug-involved and were always "messed

up and nodding out."          Betty acknowledged having a houseguest

named Jay, but said he was not there when Timmy was hurt.                        Both

parents admitted using marijuana recently due to the stress from

Timmy's injury.         Betty tested positive for marijuana and Ted

tested positive for marijuana, oxycodone and oxymorphone.

       Two days later Jay told the police that he met the parents

through Betty's downstairs relative, and had been living with

the parents for four weeks as of February 10.                   According to the

transcribed statement given to the police, Jay told them that on

the    evening   of    February    9,   defendants       purchased      "oxycodone,

weed, [X]anax and cocaine[.]"           While he did not see them use any

drugs that evening or notice any drugs in the house, Jay said he

had    overheard   defendants      ordering      drugs    on    the   phone.       Jay




                                        4                                    A-4780-12T1
asserted    that    he     could   also     "tell       they    were    on    something"

because    they    were    "addicts."           Jay    told    the   police    that    the

parents began to argue because Ted kept "nodding out" and was

not helping Betty care for Timmy.                 Betty took the baby into her

bedroom, and Ted slept in the living room.

    Jay     stated    to    the    police       that    at     around   1:15    p.m.    on

February 10,

            I knocked on the bedroom door three times
            and then [Betty] finally woke up and said
            who is it?    I said it’s Jay and she said
            come in.    I watched [Betty] roll off the
            baby. My eyes were focused on the baby. I
            saw his head was a dark bluish color and his
            lips were purple. I screamed at her to get
            off him, and to look at what she did and she
            picked him up by his diaper screaming and
            she ran into the living room . . . and she
            put him on the couch and woke [Ted] up.
            [Ted] started to give him compressions on
            his chest and blowing into his mouth.      I
            didn’t want to be up there anymore so I went
            downstairs and I told everybody downstairs
            and somebody downstairs called 911 and then
            all the cops came and the ambulance came and
            went upstairs and gave him oxygen and then
            they took him to the hospital.

    Dr. Steven Kairys, a child abuse specialist with thirty

years of experience, who saw Timmy at the hospital every day,

opined that this explanation of the deprivation of oxygen was

"much     more    consistent       as   a       plausible      cause"    for     Timmy's

neurological damage.         Kairys wrote in his report:

            Co-sleeping is now the major cause of Sudden
            Infant Death Syndrome [(SIDS)] and Near



                                            5                                   A-4780-12T1
           Sudden Infant Death Syndrome [(NSIDS)] in
           this age child.    Obviously, co-sleeping is
           an   accidental    cause   of     suffocation.
           However, it is quite concerning that the
           child was already an open DYFS[3] case because
           of marijuana smoking during pregnancy. More
           concerning is that the family fabricated a
           different story, rather than being truthful
           to the events that occurred.

           Thus, there are clear concerns for             child
           endangerment that resulted in the              major
           morbidity to the child.

    At trial, Jay gave a description of what he had observed on

February   9   and   10   that    differed   somewhat   from   his   earlier

account to the police.           He testified that, after completing a

drug rehabilitation program, he stayed with defendants from late

December 2011 to February 10, 2012.            During that time, he saw

defendants sniff oxycodone every day and smoke marijuana on a

regular basis.       He maintained that he had to care for Timmy

several times:

           When they were messed up, nodding out on the
           kitchen table, the baby screamed in the
           chair, I would change him.    I would cover
           him up at night.    I fell asleep a couple
           times in my hoodie and my jeans and I was
           freezing, and I'd wake up and the baby was
           screaming and he would be in a diaper and
           that's it, no blanket covering him.     So I
           covered him up, gave him a bottle, put him
           back to sleep.




3
  The Division of Youth and Family Services, the prior name for
the Division.



                                      6                              A-4780-12T1
Jay saw defendants purchase drugs several times, and sometimes

he personally gave them oxycodone as "rent[.]"

    In contrast to his police statement, at trial Jay testified

that he saw defendants sniff oxycodone on February 9.     He heard

Ted agree to buy more oxycodone, after which Ted left for a

period of time.      Ted was nodding off, while Betty "was still

functioning."     Jay admitted that he lied when he told police

that he saw Betty roll off Timmy, and testified that he saw

Timmy on a mattress on the floor directly behind Betty when she

sat up on the mattress to open the door to the bedroom.

    Jay conceded on cross-examination that, on March 3, 2012,

two weeks after Jay spoke to the police about Timmy, the police

arrested him and charged him with burglary after Jay stole items

from defendants' apartment.    He later pled guilty to an amended

charge of theft, and as of trial he was in         jail serving a

sentence for that offense as well as an unrelated charge of

heroin possession.    Jay denied that his testimony was in any way

motivated by the fact that defendants had reported him to the

police.   Jay said he still dreamed about the blue baby he saw,

and that he wanted Timmy to go to a better home.

    Kairys testified about the medical aspects of child abuse

and neglect.    Consistent with his February 28 evaluation, Kairys

opined that Timmy suffered brain damage because he was deprived




                                 7                        A-4780-12T1
of blood and oxygen for a sustained period of at least six

minutes.    Timmy's tests had produced no evidence of brain trauma

or shaken baby syndrome, and the tests ruled out the possibility

that Timmy had stopped breathing because of a vascular failure,

an infection, a seizure, or a disturbance in his metabolism.

Kairys could not identify within a reasonable degree of medical

certainty what caused Timmy to stop breathing.

    Kairys     acknowledged     that    Timmy     had    tested       positive    for

Respiratory    Syncytial     Virus   (RSV),      and    that    RSV    could   cause

episodes of apnea, which is defined as not breathing for fifteen

or twenty seconds.         Based on his own experience and review of

the literature, he did not believe that RSV had caused Timmy to

stop breathing for six minutes, as there was no report of apnea

or Timmy wheezing prior to February 10, and Kairys knew of no

case of such severe oxygen deprivation due to RSV.                     In Kairys's

view, Jay's allegation that Betty co-slept with Timmy while in

an impaired state presented "the most plausible explanation for

[Timmy’s]     injuries."       Kairys       admitted     that     without      Jay's

statements,     he   would    have      deemed     the     cause       of   Timmy's

respiratory failure to be unclear.

    Kairys maintained that Betty’s purported discovery of Timmy

with a blanket over his head was not plausible because an infant

of Timmy's age lacked the motor skills to pull a blanket over




                                        8                                   A-4780-12T1
his head.        Kairys testified that even if Timmy's head had been

covered    there     would    have   been   a   sufficient    amount   of    air

available    to     prevent   suffocation.        He   discussed   the    other

diagnoses that doctors considered, and admitted that he could

not rule out the possibility that Timmy had suffered NSIDS.                    He

noted     that    studies     suggested     a   correlation    between      this

condition and co-sleeping, and that the danger would increase if

the co-sleeping parent was impaired, but stated that the cause

of SIDS and NSIDS remained a mystery.

    Kairys testified that Timmy "had a significant brain damage

from the lack of oxygen[.]"           Timmy had "cerebral palsy[,]" and

"was going to have all sorts of major neurological changes[.]"

    Betty raises the following issues on appeal:

            I. THE FINDINGS OF ABUSE AND NEGLECT MUST BE
            REVERSED   BECAUSE   THEY  WERE   BASED   ON
            UNRELIABLE, INCREDIBLE EVIDENCE SUPPLIED BY
            A SELF-ADMITTED LIAR AND BECAUSE DR. KAIRYS'
            REPORT AND TESTIMONY WERE BASED SOLELY UPON
            THE REPORT MADE TO DYFS.

            II. THE APPELLATE DIVISION SHOULD REVERSE
            THE TRIAL COURT'S RULING BECAUSE HEARSAY
            STATEMENTS AND DOCUMENTS, WERE IMPROPERLY
            ADMITTED DURING FACT-FINDING AND DISCUSSED
            AND RELIED UPON BY THE TRIAL JUDGE IN HIS
            RULING.

            III. THE TRIAL JUDGE'S RULING SHOULD BE
            REVERSED AS THE JUDGE RELIED UPON DR.
            KAIRYS['S] REPORT, WHICH WAS CONCLUSORY,
            FAILED TO MAKE ANY CONCLUSIONS BASED OFF OF
            A REASONABLE DEGREE OF MEDICAL CERTAINTY OR




                                        9                              A-4780-12T1
         PROBABILITY WHICH     VIOLATES   DEFENDANT'S   DUE
         PROCESS RIGHTS.

         IV. THE JUDGE ERRED BY NOT ARTICULATING WITH
         PARTICULARITY   THE   FACTS   UPON   WHICH   A
         DETERMINATION OF ABUSE AND NEGLECT IS MADE
         AND   FAILED  TO   IDENTIFY   ALL   DOCUMENTS/
         EXHIBITS   RELIED   UPON   IN   REACHING   HIS
         DECISION.

         V. THE TRIAL JUDGE ERRED IN ITS RULING THAT
         CO-SLEEPING WITH A CHILD AMOUNTS TO GROSS
         NEGLIGENCE OR RECKLESSNESS.

         VI. THE TRIAL JUDGE ABUSED HIS DISCRETION
         WHEN HE ABDICATED HIS RESPONSIBILITY TO
         EVALUATE WHETHER HE SHOULD SEQUESTER A DYFS
         SOCIAL   WORKER   WHOSE  PRESENCE   IN   THE
         COURTROOM DURING THE TESTIMONY OF ANOTHER
         DYFS WORKER WOULD PREJUDICE THE DEFENSE WHEN
         HER TESTIMONY WAS CRITICAL IN DETERMINING
         CREDIBILITY.

    Ted raises these issues:

         I. THE FINDING OF ABUSE AND NEGLECT AS TO
         DEFENDANT-APPELLANT MUST BE REVERSED BECAUSE
         THE   TRIAL   COURT    MISCHARACTERIZED   THE
         EVIDENCE AND ASSUMED FACTS NOT IN EVIDENCE.

         II. THE FINDING THAT THE CHILD IS ABUSED AND
         NEGLECTED AS DEFINED BY THE STATUTE MUST BE
         REVERSED BECAUSE THE DIVISION DID NOT PROVE
         THAT THE FATHER FAILED TO PROVIDE THE
         MINIMUM DEGREE OF CARE.

    To prevail in a Title 9 proceeding, the Division must show

by a preponderance of the competent and material evidence that

the defendant abused or neglected the affected child.         N.J.S.A.

9:6-8.46(b); N.J. Div. of Youth & Family Servs. v. P.W.R., 205

N.J. 17, 32 (2011).   The Division need only show that it was




                                 10                           A-4780-12T1
more likely than not that the defendant abused or neglected the

child.   See N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J.

Super. 593, 615 (App. Div. 2010).

       Title 9 defines an "abused or neglected child" as a child

less than eighteen years of age, whose parent or guardian:

              (1) inflicts or allows to be inflicted upon
              such child physical injury by other than
              accidental means which causes or creates a
              substantial risk of death, or serious or
              protracted    disfigurement,    or   protracted
              impairment of physical or emotional health
              or protracted loss or impairment of the
              function of any bodily organ; [or] (2)
              creates   or    allows    to   be   created   a
              substantial or ongoing risk of physical
              injury   to    such   child   by   other   than
              accidental means which would be likely to
              cause   death    or   serious   or   protracted
              disfigurement,     or   protracted    loss   or
              impairment of the function of any bodily
              organ . . . .

              [N.J.S.A. 9:6-8.21(c) (emphasis added).]

       The phrase "accidental means" in this provision refers to

"the   events    leading   up   to   the    injury   and   not    the   resulting

injury itself."        G.S. v. Dep't of Human Servs., 157 N.J. 161,

174 (1999) (citation omitted).             "Where an action is deliberate,

and the actor can or should foresee that his conduct is likely

to result in injury, as a matter of law, that injury is caused

by   'other     than   accidental    means.'"        Id.   at    175    (citations

omitted).      The parent's intent is irrelevant.               Ibid. (citations

omitted).



                                       11                                 A-4780-12T1
       The    definition          of   an     "abused        or    neglected       child"      also

encompasses:

              a child whose physical, mental, or emotional
              condition has been impaired or is in
              imminent danger of becoming impaired as the
              result of the failure of his parent or
              guardian, as herein defined, to exercise a
              minimum degree of care . . . by . . . acts
              of a . . . serious nature requiring the aid
              of the court[.]

              [N.J.S.A. 9:6-8.21(c)(4) (emphasis added).]

"Where an action is deliberate, and the actor can or should

foresee that his conduct is likely to result in injury, as a

matter of law, that injury is caused by other than accidental

means."       G.S., supra, 157 N.J. at 174 (citations and internal

quotation marks omitted).

       The requisite measure of neglect in Title 9 matters is

higher    than       that    of    ordinary       negligence.               Id.   at    178.     By

isolating     acts     that       fail      to   adhere      to    a    "minimum        degree   of

care,"    the       statute       seeks      only      to    capture        conduct       that   is

"grossly        or      wantonly            negligent,            but       not        necessarily

intentional."          Ibid. (citation omitted); see also N.J. Div. of

Youth & Family Servs. v. J.L., 410 N.J. Super. 159, 167-68 (App.

Div.   2009)        (affirming         that      inattentive           or   merely       negligent

conduct      does     not    constitute          willful      or    wanton        misconduct     as

required      by     Title    9).        Under        this    intermediate         standard,       a

parent is culpable if he or she acts "with the knowledge that



                                                 12                                       A-4780-12T1
injury    is    likely    to,   or   probably     will,      result"    in   serious

injury, or acts with a reckless disregard for the consequences

of his or her actions.          G.S., supra, 157 N.J. at 178.

       The trial judge held that co-sleeping with an infant when

the parent is in an impaired state constitutes an act of gross

negligence.       The judge found Betty was neglectful by co-sleeping

with    her    seven-week-old     infant     while   under     the     influence    of

illegal drugs.       The judge also found Ted neglectful by knowingly

allowing this sleeping arrangement while Betty was impaired.

       Defendants argue that because the medical expert's opinion,

that Timmy was probably injured due to co-sleeping with Betty,

depends on facts set forth only by Jay, who is not credible, the

Division did not prove its case.                Defendants argue that Jay's

testimony is so demonstrably incredible that we should reverse

the    trial    judge's   findings.        In   State   v.    Elders,     where    our

Supreme Court reinstated the trial judge's decision to deny the

defendant's motion to suppress after holding a plenary hearing,

Justice Albin wrote:

               An appellate court should give deference to
               those findings of the trial judge which are
               substantially influenced by his opportunity
               to hear and see the witnesses and to have
               the "feel" of the case, which a reviewing
               court cannot enjoy.       An appellate court
               should   not   disturb   the  trial   court's
               findings   merely   because  it  might   have
               reached a different conclusion were it the
               trial tribunal or because the trial court



                                        13                                   A-4780-12T1
             decided all evidence or inference conflicts
             in favor of one side in a close case.      A
             trial court's findings should be disturbed
             only if they are so clearly mistaken that
             the interests of justice demand intervention
             and correction.     In those circumstances
             solely should an appellate court appraise
             the record as if it were deciding the matter
             at inception and make its own findings and
             conclusions.

             [State v. Elders, 192 N.J. 224, 244 (2007)
             (citations and internal quotation marks
             omitted).]

      As     demonstrated          by     defense      counsel      during     cross-

examination, Jay's testimony could have reasonably been rejected

by   the    trial   judge.         Jay   was    in   prison   for    stealing    from

defendants, which gave him a motive to lie in retaliation for

their reporting him to the police.                   We note, however, that Jay

first spoke to the police before the theft occurred.                         Jay also

did not seek out the Division to cast blame on the parents, but

was found after the downstairs neighbor reported Jay's comments

to the Division.       Jay gave differing versions of what happened

to the downstairs neighbor, the police, the Division and finally

under oath to the trial court.              Jay's admission that he supplied

defendants with drugs and smoked marijuana with them was not

initially told to the police or the Division.                        His statement

that he saw Betty "roll off" Timmy was recanted in court.

      The    fact   that     Jay    was    living     with    defendants      for   an

extended period of time and that defendants did not mention



                                           14                                A-4780-12T1
Jay's existence when they reported the events adds credibility

to Jay's testimony.            The parents' version of events was not

given    under     oath   nor        subjected      to    the     rigors      of    cross-

examination.       In a criminal case, where the standard of proof is

beyond a reasonable doubt, one could argue that "it is better

that ten guilty persons escape, than that one innocent suffer."

United States v. Schwimmer, 882 F.2d 22, 27-28 (2d Cir. 1989),

cert. denied, 493 U.S. 1071, 110 S. Ct. 1114, 107 L. Ed. 2d 1021

(1990) (citation and internal quotation marks omitted).                                 When

the welfare of a defenseless baby is at stake, and the burden of

proof is more probable than not, different considerations apply.

A neglectful parent is a serious danger to an infant.                              We must

be particularly vigilant not to improperly interfere with the

credibility determinations of the trial judge where the danger

to an innocent party of an incorrect determination is so severe.

We owe great deference to the assessment of the trial judge,

particularly in light of the expertise of the family court.

Cesare v. Cesare, 154 N.J. 394, 412 (1998).

       The     trial   judge    explained         why    he   found     Jay    credible,

determining that Jay was genuinely concerned for Timmy's welfare

and     that    inconsistencies         in    his       version    of      events       were

understandable given his desire to hide his drug involvement

from    the     police.        Jay    was     not   promised       anything        by    the




                                             15                                    A-4780-12T1
authorities for his testimony.             The judge found that Jay was

truthful in his courtroom testimony, although, overwhelmed by

the sight of the injured baby, he had exaggerated initially when

speaking to the police.        The judge also believed Jay's testimony

because it was consistent with Kairys's understanding of what

probably caused the injury to Timmy.

    Our trial system is built on the premise that fact-finders

are able to view a witness, watch direct and cross-examination,

and decide whether the witness was truthful when making those

statements that are crucial to the decision-making.                   A fact-

finder   is   not   required   to   reject    the    entire   testimony    of   a

witness who willfully lies about some facts.               State v. Ernst, 32

N.J. 567, 583-84 (1960), cert. denied, 364 U.S. 943, 81 S. Ct.

464, 5 L. Ed. 2d 374 (1961); see Model Jury Charge (Criminal),

"False in One – False in All" (2013).                A witness who gives a

prior    inconsistent    statement    may     well    be   believed   by    the

factfinder when he testifies in court.               See Model Jury Charge

(Criminal), "Prior Contradictory Statements of Witnesses (Not

Defendant)" (1994).       We therefore defer to the trial judge's

finding that Jay was credible.

    Ted's argument that he did nothing wrong because he did not

sleep with Timmy is unpersuasive.            A parent's failure to act in

circumstances that demand action is the essence of neglect.                 See




                                      16                              A-4780-12T1
In    re    Guardianship      of     K.H.O.,        161   N.J.    337,    351-53    (1999)

(stating that a mother's failure to provide continuing care for

her    child    or    to    take     any      measures    to     relieve    her    child's

suffering satisfied the first prong of the statutory test); In

re Guardianship of D.M.H., 161 N.J. 365, 379-80 (1999) (finding

harm where a father's failure to act "compounded the mother's

neglect      and     contributed        to    the    circumstances        that"    led    to

removal); In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992)

(finding that "[s]erious and lasting emotional or psychological

harm to children as the result of the action or inaction of

their      biological      parents      can    constitute        injury    sufficient     to

authorize      the      termination           of    parental      rights")     (citation

omitted); N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J.

Super. 418, 436 (App. Div. 2009) (stating that a mother harmed

her children by permitting the father into the home in violation

of    court    orders).            If    Jay's      testimony      is     credited,      Ted

participated in drug use with Betty and was aware that Betty

slept with Timmy, thus failing to protect Timmy.

       Parents who use illegal drugs when caring for an infant

expose that baby to many dangers due to their impaired judgment.

See N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super.

320, 331 (App. Div. 2011) (commenting that, unlike an infant,

the twelve-year-old child was not vulnerable "to the slightest




                                               17                                  A-4780-12T1
parental misstep" when visiting in a Division-supervised setting

with her father, who tested positive for drugs).                                Timmy was

completely dependent on his parents to protect him from danger.

Although a sober parent could also inadvertently smother a baby

when   co-sleeping,        a    parent      who    falls    asleep    after     ingesting

illegal      drugs   is    less      likely       to   exercise     good    judgment     in

protecting the baby in bed.4                 Just as a sober driver may have an

automobile accident, an impaired driver is much more likely to

do so.

       The   parents      raise      issues       relating    to    the    admission     of

unspecified     hearsay        statements         embedded    in    Division     records.

Such   evidence      may       not    be    admitted       unless    it    satisfies     an

exception to the hearsay rule.                 State v. Long, 173 N.J. 138, 152

(2002).      Rule 5:12-4(d), however, specifically provides that the

Division      may    "submit         into    evidence,       pursuant      to    N.J.R.E.

803(c)(6) and 801(d), reports by staff personnel or professional

consultants[,]       [and      that]       [c]onclusions     drawn    from      the   facts

stated therein shall be treated as prima facie evidence, subject

to rebuttal."        The trial judge in his oral opinion stated that




4
  To be clear, the trial judge did not find that co-sleeping
constitutes child abuse or neglect, and neither do we.       The
issue presented in this case is co-sleeping with an infant while
under the influence of illegal drugs.



                                              18                                  A-4780-12T1
he was not considering inadmissible hearsay contained in the

Division documents.

      The Division's central fact witness, Jay, testified based

on   his   personal   knowledge.    The    Division's    expert   witness,

Kairys, also testified based on his observations and review of

the records.      A trial court's evidentiary rulings will not be

disturbed    unless    they   constitute    an   abuse    of   discretion

resulting in a manifest error or injustice.        Hisenaj v. Kuehner,

194 N.J. 6, 20 (2008).         The trial judge did not abuse his

discretion by admitting hearsay contained in the testimony and

documents.    Any other issues not addressed by us in this opinion

are without sufficient merit to warrant further discussion.               R.

2:11-3(e)(1)(E).

      Affirmed.




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