                             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                         NOT FOR PUBLICATION WITHOUT THE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-0437-16T1
                                                  A-0438-16T1

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

              Plaintiff-Respondent,

v.

J.C. and I.C.,

          Defendants-Appellants.
__________________________________

IN THE MATTER OF JE.C., IS.C.
and A.F.C.,

          Minors.
____________________________________

              Argued October 12, 2017 – Decided October 24, 2017

              Before    Judges    Haas,    Rothstadt     and   Gooden
              Brown.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Hudson County,
              Docket No. FN-09-0387-11.

              Christine Olexa Saginor, Designated Counsel,
              argued the cause for appellant J.C. (Joseph
              E. Krakora, Public Defender, attorney; Ms.
              Saginor, on the briefs).
          Joseph E. Krakora, Public Defender, attorney
          for appellant I.C. (Ryan T. Clark, Designated
          Counsel, on the briefs).

          Julie B. Colonna, Deputy Attorney General,
          argued the cause for respondent (Christopher
          S. Porrino, Attorney General, attorney; Jason
          W. Rockwell, Assistant Attorney General, of
          counsel; Ms. Colonna, on the brief).

          Margo E. K. Hirsch, Designated Counsel, argued
          the cause for minors (Joseph E. Krakora,
          Public Defender, Law Guardian, attorney; Ms.
          Hirsch, on the brief).

PER CURIAM

     Defendant J.C.1 appeals from the Family Part's July 25, 2012

order, following a fact-finding hearing, determining that she

abused or neglected her four-month-old daughter, Isabella, by

failing to protect the infant by allowing her husband, defendant

I.C., to be a caretaker for the child despite his known mental

health and anger issues.   J.C. and I.C.2 both appeal the court's

June 29, 2015 order, following a separate fact-finding hearing,

determining that they abused or neglected another infant child,



1
  We use initials and fictitious names to protect the privacy of
the family.
2
  Shortly before oral argument on these consolidated appeals,
I.C.'s attorney advised us that his client had passed away and,
therefore, the attorney would not be attending the argument.
Despite the apparent mootness of the issues I.C. raised in his
appeal, and in the absence of a formal withdrawal of I.C.'s appeal
by his attorney, we have determined to address I.C.'s claims.


                                2                          A-0437-16T1
Alexa, by hiding the child from the Division of Child Protection

and Permanency following her birth and then having unsupervised

contact with the baby prior to the completion of court-ordered

services while they were both restricted to supervised visitation

with their other children.3

     Defendants challenge the trial court's finding that their

conduct     constituted   abuse     or       neglect   under   N.J.S.A.    9:6-

8.21(c)(4)(b).    The Law Guardian supports the court's finding that

the Division met its burden of proving abuse or neglect of the two

children by a preponderance of the evidence. Based upon our review

of the record and applicable law, we affirm.

     When the Division first became involved with this family,

defendants had two children, Julie, born in December 2009, and

Isabella, born in November 2010.             In March 2011, when Isabella was

four months old, the Division learned that defendants had brought

the infant to a hospital for evaluation because her head was

enlarged.    Testing revealed that the baby had bilateral subdural

hematomas,    bilateral   retinal    hemorrhages,        and   bilateral   mid-

clavicle fractures, as well as several rib fractures.                Isabella

also had burns on her abdomen and thigh.



3
  The July 25, 2012 and June 29, 2015 orders became appealable as
of right after the trial court entered a final order on August 18,
2016, dismissing the litigation.

                                         3                             A-0437-16T1
     The Division's experts evaluated Isabella and her medical

records and opined that the baby's injuries were consistent with

physical abuse and abusive head trauma and likely occurred as

separate incidents over a period of time within five days and

three weeks of defendants taking the child to the hospital.             With

the approval of the court, the Division removed Isabella and Julie

from defendants' care and custody and placed the children in

resource homes.

     When   questioned   by   investigators,    I.C.   and   J.C.    denied

harming the baby.     Both parents stated that I.C. cared for the

child while J.C. was at work.      Both speculated that Isabella may

have been injured when Julie slipped and fell on the child in

January 2011.     When confronted by hospital staff, I.C. suggested

that the child may have been injured in a car accident.        I.C. also

stated that Isabella's ribs may have been broken because he held

the baby in "a certain way."

     With regard to the burns on the infant's body, I.C. stated

that he put a steak knife that he had just washed with very hot

water near Isabella while he left to go to the bathroom, and the

child accidentally rolled over on it.          However, the Division's

expert determined that the burns were not in the shape of a knife

and were not consistent with I.C.'s account.



                                   4                                A-0437-16T1
      I.C. stated that he had post-traumatic stress disorder, but

he had stopped taking his medication.                 J.C. was aware of her

husband's mental health issues.              J.C. admitted that I.C. was

paranoid, easily became upset over minor matters, and would throw

things when angry.         At one point, he had attempted suicide.

Nevertheless, J.C. continued to leave Isabella in I.C.'s care,

even after he told her how the child had allegedly been burned.

      Defendants' experts testified that Isabella had underlying

medical     conditions,    such   as   vitamin       deficiencies    and     blood

disorders, which caused her injuries.               After the Division placed

Isabella in a resource home, however, she suffered no further

fractures     and    her   subdural    hematomas       improved    without      any

additional vitamin supplements.

      In a thorough oral opinion, Judge Elaine Davis found that the

Division's experts were more credible and that J.C. and I.C. abused

or neglected the baby because she suffered serious non-accidental

injuries while in their care.           Although the precise culpability

of   each   parent    in   inflicting       these    injuries     could   not     be

determined, the judge found it likely that I.C. caused them.                    The

judge further found that J.C. placed the children in harm's way

by leaving them home alone with I.C. even though she was aware of

her husband's mental health problems.



                                        5                                  A-0437-16T1
     After    the    hearing,   Isabella      and   Julie   remained   in   the

Division's care and custody.      The trial court barred J.C. and I.C.

from having any unsupervised contact with the children and ordered

them to complete a number of services, including psychological

evaluations    and    psychotherapy,     as    a    condition   to   regaining

custody.     The court also ordered I.C. to participate in anger

management and parenting skills classes.

     In April 2012, J.C. gave birth to the couple's third child,

Alexa.     Defendants did not disclose J.C.'s pregnancy or Alexa's

birth to the Division or the court.

     In April 2013, the Division received a referral that a one-

year-old child was living with J.C.                 When questioned by the

Division, J.C. denied that she was caring for a baby.

     Because J.C. had complied with the services ordered by the

court, the Division reunited her with Isabella and Julie on July

22, 2013.     That same day, however, the Division received another

referral that a third child was living with J.C.             When questioned

by a Division caseworker whether she was hiding a baby in her

home, J.C. replied, "I don't know."            However, she soon confessed

that she had given birth to Alexa in April 2012 and had concealed

this fact from the Division.       J.C. further admitted that she did

not disclose this child to the Division or the court because she



                                     6                                 A-0437-16T1
knew the Division would have taken custody of the child until she

completed services.

     J.C. stated that after Alexa was born, the infant lived with

J.C.'s grandmother.     After the Division asked J.C. in April 2013

whether a baby was living with her, J.C. stated that she and I.C.

placed Isabella with family friends.     The friends confirmed that

Alexa had been in their care since April 2013.     They stated that

several times a month, J.C. and I.C would have unsupervised access

to the child and that J.C. frequently took the baby home with her

on weekends and that I.C. would accompany J.C. when she returned

Alexa to them.

     J.C. later told investigators that I.C. had lived with her

until February 2013 and then moved in with his mother for a couple

of months before his conviction.      She admitted that I.C. was in

the home when she brought Alexa there.       As a result of these

disclosures, the Division substantiated J.C. and I.C. for abuse

or neglect of Alexa.4

     Following a fact-finding hearing, Judge Mark Nelson rendered

a comprehensive oral decision, finding that J.C. and I.C. abused

or neglected Alexa by having the child in their unsupervised



4
  On September 26, 2013, I.C. was convicted of a number of charges
stemming from the injuries to Isabella, including endangering the
welfare of a child and aggravated assault.

                                  7                         A-0437-16T1
custody at a time when they had not yet completed the services

necessary for them to safely care for children, thus placing the

baby at a substantial risk of harm.

     On appeal, J.C. challenges the July 25, 2012 order that found

she abused or neglected Isabella by continuing to allow I.C. to

care for the child even after he burned her and the baby's head

began to swell.   J.C. argues that the judge's finding is "not

supported by substantial credible evidence" and that the Division

"failed to prove by a preponderance of the evidence that [she] was

aware that her children were exposed to a substantial risk of harm

due to I.C.'s mental health issues."5   We disagree.

     Our review of the trial judge's factual finding of abuse or

neglect is limited; we defer to the court's determinations "'when

supported by adequate, substantial, credible evidence.'"        N.J.

Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89

(App. Div. 2008) (quoting Cesare v. Cesare, 154 N.J. 394, 411-12

(1998)).   The trial court is best suited to assess credibility,

weigh testimony and develop a feel for the case, and we extend

special deference to the Family Part's expertise.      N.J. Div. of


5
  J.C. also argues that "the trial court improperly shifted the
burden of proof to J.C." pursuant to In re D.T., 229 N.J. Super.
509 (App. Div. 1988). We have considered this contention in light
of the record and applicable legal principles and conclude it is
without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).

                                8                           A-0437-16T1
Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010);

Cesare, supra, 154 N.J. at 413.

     Unless the trial judge's factual findings are "so wide of the

mark that a mistake must have been made" they should not be

disturbed, even if we would not have made the same decision if we

had heard the case in the first instance.      N.J. Div. of Youth &

Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotation

marks and citation omitted).   "It is not our place to second-guess

or substitute our judgment for that of the family court, provided

that the record contains substantial and credible evidence to

support" the judge's decision.    N.J. Div. of Youth & Family Servs.

v. F.M., 211 N.J. 420, 448-49 (2012).

     In pertinent part, N.J.S.A. 9:6-8.21(c)(4)(b) defines an

"abused or neglected child" as:

          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 . . .
          to exercise a minimum degree of care . . . in
          providing the child with proper supervision
          or guardianship, by unreasonably inflicting or
          allowing to be inflicted harm, or substantial
          risk thereof, including the infliction of
          excessive corporal punishment; or by any other
          acts of a similarly serious nature requiring
          the aid of the court[.]

     A court does not have to wait until a child is actually harmed

or neglected before it can act in the welfare of that minor.     N.J.


                                  9                          A-0437-16T1
Div. of Youth & Family Servs. v. V.M., 408 N.J. Super. 222, 235-

36 (App. Div.) (citing In re Guardianship of        D.M.H., 161 N.J.

365, 383 (1999)), certif. denied, 200 N.J. 505 (2009), cert.

denied, 561 U.S. 1028, 130 S. Ct. 3502, 177 L. Ed. 2d 1095 (2010).

Thus, "[i]n the absence of actual harm, a finding of abuse and

neglect can be based on proof of imminent danger and substantial

risk of harm."   N.J. Dep't of Children & Families v. A.L., 213

N.J. 1, 23 (2013) (citing N.J.S.A. 9:6-8.21(c)(4)(b)).         Nor does

harm to the child need to be intentional in order to substantiate

a finding of abuse or neglect.   M.C. III, supra, 201 N.J. at 344.

     In determining a case of abuse or neglect, the court should

base its determination on the totality of the circumstances.        N.J.

Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329

(App. Div. 2011).   A finding of abuse or neglect must be based on

a preponderance of the evidence.      N.J.S.A. 9:6-8.46(b).

     Applying these standards to this matter, we are satisfied

there was competent, credible evidence in the record to support

Judge Davis's finding that defendant abused or neglected Isabella

by continuing to permit I.C. to care for the child.           J.C. knew

that her husband suffered from mental health issues.          She also

knew that he had stopped taking his medication and was easily

upset.   When she came home to find that Isabella had been burned,

she did not question I.C.'s implausible story that the two-month-

                                 10                             A-0437-16T1
old baby had accidently rolled over on a hot steak knife. Instead,

she kept leaving the infant with I.C.             As a result, the baby

suffered multiple injuries over a three-week period, including

burns,    multiple   fractures,     subdural   hematomas,    and   bilateral

retinal hemorrhages.

     Under the totality of these circumstances, we discern no

basis    for   disturbing   Judge   Davis's    determination   that      J.C.'s

disregard for Isabella's safety placed the baby at risk of serious

harm and constituted abuse and neglect within the meaning of

N.J.S.A. 9:6-8.21(c)(4).       Therefore, we affirm the July 25, 2012

order.

     Both      defendants   contest    Judge    Nelson's    June   29,     2015

determination that they abused or neglected Alexa by hiding the

child from the Division following her birth and then having

unsupervised contact with the baby prior to the completion of

court-ordered services.      J.C. argues that the judge's finding "is

not supported by substantial credible evidence."               I.C. asserts

that "the competent evidence did not establish that [he] was

grossly negligent or reckless in not notifying the Division that

J.C. gave birth to [Alexa], when he was not subject to a case plan

or court order directing him to do so."            These contentions lack

merit.



                                      11                              A-0437-16T1
     As discussed above, Isabella suffered extensive injuries

while in defendants' care.        As a result, the trial court granted

custody of Isabella and Julie to the Division and barred defendants

from having any unsupervised contact with the children.           The court

also ordered defendants to participate in a number of different

services designed to address the issues that caused them to place

their first two children in harm's way.              The import of this

directive was clear:         neither defendant could safely care for an

infant unless and until they completed the required services.

     In spite of the court's order, J.C. and I.C. deliberately hid

J.C.'s pregnancy and Alexa's birth from the Division because they

were aware that the Division would have emergently removed her and

placed her in foster care with her siblings in order to protect

her from the danger posed by her parents, who had still not

completed    services.        Defendants   then    had   unsupervised    and

unfettered contact with the new baby for several months before

their subterfuge was finally discovered.

     Under     these    circumstances,     Judge   Nelson    appropriately

concluded that both defendants placed Alexa in substantial risk

of   harm    within    the    intendment   of   N.J.S.A.    9:6-8.21(c)(4).

Therefore, we also affirm the June 29, 2015 order.

     Affirmed.



                                     12                             A-0437-16T1
