                                       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                                 NOT FOR PUBLICATION WITHOUT THE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 NOS. A-3746-17T4
                                                                      A-3747-17T4

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

           Plaintiff-Respondent,

v.

O.S. and L.J.,

     Defendants-Appellants.
_____________________________

IN THE MATTER OF D.S.J.,

     a Minor.
_____________________________

                    Submitted June 1, 2020 – Decided June 30, 2020

                    Before Judges Geiger and Natali.

                    On appeal from the Superior Court of New Jersey,
                    Chancery Division, Family Part, Hudson County,
                    Docket Nos. FN-09-0430-15 and FN-09-0447-15.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant O.S. (Robyn A. Veasey, Deputy Public
            Defender, of counsel; Sarah L. Monaghan, Designated
            Counsel, on the briefs).

            Joseph E. Krakora, Public Defender, attorney for
            appellant L.J. (Robyn A. Veasey, Deputy Public
            Defender, of counsel; Cecilia M.E. Lindenfelser,
            Designated Counsel, on the briefs).

            Gurbir S. Grewal, Attorney General, attorney for
            respondent (Jane C. Schuster, Assistant Attorney
            General, of counsel; Tara Beth LeFurge, Deputy
            Attorney General, on the brief).

            Joseph E. Krakora, Public Defender, Law Guardian,
            attorney for minor (Rachel E. Seidman, Assistant
            Deputy Public Defender, of counsel and on the brief).

PER CURIAM

      Defendants O.S.1 (Oscar) and L.J. (Leslie) appeal from the Family Part's

August 10, 2016 order finding that they abused or neglected their daughter

D.S.J. (Darla) by causing numerous physical injuries while she was in their care.

The primary issue on appeal relates to who, among Darla's multiple caretakers

and those with relevant access to her, caused those injuries. We must also

determine if the court, when resolving that issue, correctly applied the principles

of res ipsa loquitur and if its factual findings were properly supported after

considering all the evidence presented during the fact finding proceeding. After


1
  We use fictitious names for the parties and relevant witnesses throughout the
opinion to maintain their confidentiality. R. 1:38-3(d)(12).
                                                                           A-3746-17T4
                                        2
reviewing the record against the relevant legal principles, we affirm the court's

res ipsa loquitur ruling but vacate the August 10, 2016 order and remand for

further fact finding and clarification of the court's written opinion.

                                      I.

      Darla was born on February 7, 2015, to Leslie and Oscar, as their first and

only child. At the time of Darla's birth, the family moved into a three-bedroom

apartment in West New York with their longtime friend M.E.U.A. (Emily), her

paramour S.Y.S. (Stan), and Emily's children.         Shortly after Darla's birth,

beginning in March or April 2015, Leslie returned to work and Emily began to

care for Darla during the day from approximately 8 a.m. until 4 p.m.

      On or about April 30, 2015, Emily stopped caring for Darla temporarily

because she was about to give birth herself. Instead Emily's sister, M.C.U.

(Carla), began caring for Darla for a few days, babysitting on May 4, 2015, and

May 5, 2015, and four days the following week, or approximately May 11, 2015,

through May 14, 2015. Carla lived in a house with her three brothers, and

babysat Darla there. Babysitter M.J.Y.J. (Jane) watched Darla on May 6, 2015.

Jane lived with her husband and another woman, but they were not present when

she watched Darla.      Emily also admitted that she watched Darla on an

unspecified day between April 30, 2015, and May 26, 2015.


                                                                          A-3746-17T4
                                           3
       Emily resumed regularly watching Darla on May 26, 2015, and continued

on May 27, 2015, and May 29, 2015. On Sunday, May 31, 2015, Leslie and

Oscar brought Darla to church for a blessing. Emily watched Darla on June 1,

2015. When Darla was not with one of these babysitters, her parents cared for

her.

       On June 2, 2015, Leslie and Oscar left for work. According to interview

notes from the Division of Child Protection & Permanency (the Division), Leslie

stated that Darla was "fine" at that time. Emily fed Darla at 10 a.m. and 1 p.m.

and changed her diaper before putting her down to nap. Around 4 p.m., Darla

became "fussy" and Emily began to feed her. Emily was feeding Darla when

the child's eyes rolled back into her head and her body went limp. In response,

Emily stated she "hit [Darla's] head, her back, . . . pushed on [her heart], . . .

[and] gave her . . . air through her mouth" in an attempt to revive her. Emily

admitted that she was "not aware of how hard she hit [Darla] at that moment"

because she panicked and "didn't know what else to do with her."

       Darla was taken by ambulance to Palisades Medical Center, where she

experienced a seizure. She was initially diagnosed with a subdural hematoma,

skull fracture, and rib fractures. While the damage to her skull was "fresh," the

various rib injuries were at different stages of healing. The nurse documented a


                                                                          A-3746-17T4
                                        4
"questionable bruise" on Darla's right hip, as well as marks on her buttocks and

left shoulder, but noted no significant findings of trauma. The doctor reported

that a hematoma is usually caused by head trauma or shaken baby syndrome.

An orthopedic surgeon evaluated Darla and found additional injuries including

a fracture of the left scapular spine, multiple rib fractures, and a corner fracture

of the tibia.

      Darla was transferred to Hackensack University Medical Center and

remained hospitalized for ten days, where her condition was initially "critical

but stable." Mark Siegel, M.D., found that Darla's injuries were indicative of

"non-accidental trauma." The parents showed concern for Darla's condition and

remained at her bedside, and nurses did not observe any concerns with them. In

addition, Leslie and Oscar were "receptive to [the] plan of care," which required

immobilization and imaging studies.

      Helio Pedro, M.D., completed genetics testing on Darla, which confirmed

that her injuries were not caused by an underlying bone or metabolic disease.

Susan Mautone, M.D., wrote that Darla's "principal problem" was "[c]hild

physical abuse." Other doctors found possible auditory and visual deficits.

      Hospital staff contacted the Division with concerns for Darla's safety. The

Division responded to the hospital, where both parents denied knowing what had


                                                                            A-3746-17T4
                                         5
happened to Darla and stated that she never experienced any falls or trauma.

Leslie reported that Darla sometimes cried and shook while sleeping. Leslie

further reported that she called Emily around noon that day to check on Darla,

because she had a "bad feeling" after having a dream that a "diabolical doll" was

choking Darla.

      The Division contacted Darla's pediatrician, who reported that Leslie

brought Darla to the office regularly, and the pediatrician did not have any

concerns about abuse or neglect. Caseworkers also visited the family's home

and found it to be neat and clean, and the kitchen to be well-stocked.

      On June 11, 2015, Darla was transferred to inpatient rehabilitation at

Children's Specialized Hospital (CSH), where the hospital staff were unable to

supervise guests such as Leslie and Oscar. Accordingly, that same day, the

Division conducted an emergency removal so as to be able to control the parents'

access to Darla. Leslie and Oscar were permitted to have visits with Darla at

CSH, supervised by Division personnel.

      Leslie agreed to questioning by the Hudson County Prosecutor's Office

and denied knowing what happened to Darla.          Without prompting, Leslie

repeated that she and Oscar never hit or dropped Darla. She reported a past

incident when Darla accidentally bumped her head on a doorframe but stated


                                                                         A-3746-17T4
                                       6
that Darla did not cry or otherwise react to that incident. She explained that

Darla was blessed by a priest on May 31, 2015 and had cried extensively that

day. But, contrary to her earlier statement to the Division, Leslie said that Darla

did not cry often. After providing answers to extensive questioning, Leslie

invoked her right to remain silent and stated that the questions were being

repeated. Leslie also began a polygraph examination with the Hudson County

Prosecutor's Office but was unable to complete it because she became too

emotional.2

      Oscar similarly agreed to questioning by the Hudson County Prosecutor's

Office and likewise denied knowing what happened to Darla. He also offered

that they did not drop Darla. He reiterated that she had never fallen, and that he

and Leslie had never injured her but that whoever caused the injuries should be

given a second chance. He admitted that he used to "toss her around" when

playing but stopped doing that based on Leslie's instruction.

      Oscar also stated that he used to drink alcohol when living in Guatemala,

but stopped drinking when Darla was born, and that Emily and Stan did not

allow alcohol in their home. He denied any domestic violence with Leslie.



2
   We note that no results from any polygraph examination conducted in
conjunction with this case were included in the record on appeal.
                                                                           A-3746-17T4
                                        7
During a break in the interview, Oscar sang a song, prayed, and responded to

his cell phone.

      At the time of his interview, doctors had only diagnosed the hematoma,

scapula, and rib fractures, yet Oscar asked "[i]f they're going to be running more

tests tomorrow, which could be on her leg[,] [w]hat would those show?" Oscar

also completed a polygraph examination by the prosecutor's office, and again

said that he did not know the source of Darla's injuries.

      Emily agreed to repeated interviews by the Hudson County Prosecutor's

Office and denied knowing what had happened to Darla. Emily reported that

after Darla experienced the seizure, she called 9-1-1 and began giving Darla

mouth-to-mouth resuscitation, shook her in the air, and hit or rubbed her on the

back and head in an attempt to revive her. She explained that she never hit Darla

at any other time and denied touching her in any way that might hurt her. She

stated that she loves Darla and treated her as if she were her own daughter but

felt resentful that Leslie and Oscar asked her to watch Darla so often, and

sometimes felt desperate, nervous, and angry when Darla cried. She reported

that in general, Darla cried more than most babies, but that the family was

otherwise happy and that she had never observed Oscar or Leslie "play rough or




                                                                          A-3746-17T4
                                        8
be aggressive with [Darla]." She reported that beginning around April 30, 2015,

Darla did not like having her stomach touched.

      Emily completed a polygraph examination on June 24, 2015. She again

denied hurting Darla and emphasized that she treated her as if she were her own

daughter. She denied ever shaking Darla except for her attempts to revive the

child on June 2, 2015. Although she reported that Darla was generally healthy,

she nonetheless later stated that Darla's eyes had rolled back into her head once

before, during the week before her seizure. She had no concerns about domestic

violence or substance abuse in the home, although she and Stan had asked Oscar

not to drink in their home.

      On June 24, 2015, Emily demonstrated to Lieutenant Honey Spirito her

efforts to revive Darla. Spirito informed the Division that "[w]hen asked to

demonstrate how hard she grabbed the baby by grabbing [Spirito]'s arm, . . .

[Spirito] stated that [Emily] grabbed her harshly." Spirito also noted that based

on her demonstration, Emily "did not support [Darla]'s head." Emily was then

arrested and charged with aggravated assault, endangering the welfare of a child,

and abuse, abandonment, cruelty or neglect of a child in connection with Darla's




                                                                         A-3746-17T4
                                       9
injuries. Emily's children were removed from her care, and the Division began

a separate action against Emily and Stan. 3

      Stan also agreed to an interview by the Hudson County Prosecutor's Office

and similarly denied knowing what happened to Darla, explaining that he

worked every day and did not help with the children. He stated that he once saw

Darla trembling and crying, so he suggested that Leslie take her to the doctor.

He explained that Emily stopped caring for Darla when Emily gave birth, around

April 30, 2015, and resumed caring for Darla about one week before the seizure.

      The Hudson County Prosecutor's Office also interviewed Emily's sister,

Carla, who stated that she had cared for Darla for a few days in early May 2015,

immediately after Emily had given birth to a newborn of her own. Carla stated

that she did not cause any of Darla's injuries. Around May 12, 2015, she had

observed a bruise on Darla's back after Darla spent a weekend with Leslie and

Oscar but did not think anything of it at the time. She stated that Darla would

cry when she her stomach was touched.         Carla also reported that she had

suggested that Leslie and Oscar take Darla to the doctor because she cried a lot




3
   The results of the criminal charges against Emily were not included in the
record before us.
                                                                        A-3746-17T4
                                      10
and her dirty diapers smelled bad.         Carla also completed a polygraph

examination for the prosecutor's office.

      The Hudson County Prosecutor's Office also interviewed Jane, who

babysat Darla on May 6, 2015, from 7:15 a.m. until 8:30 p.m. Leslie had

provided formula and instructions on how to care for Darla and called every two

hours to check on her. During this time, Jane did not observe anything unusual,

though she reported that Darla cried a lot, possibly from hunger. Jane denied

that any injuries occurred to Darla during their time together.

      The Division filed a verified complaint and order to show cause against

Leslie and Oscar for custody, care, and supervision of Darla on June 15, 2015,

which the court granted and allowed the parents to have supervised visitation.

The Division filed an amended verified complaint adding Carla to this litigation,

because she had cared for Darla around the time of the injuries. Jane was not

named as a defendant because the Division did not believe she caused the

injuries.

      Darla remained at CSH through July 2015 and made good progress during

that time. She was released to Division custody on July 18, 2015, with referrals

for physical therapy, occupational therapy, and feeding therapy and was placed

in a nonrelative resource home.


                                                                         A-3746-17T4
                                      11
      On November 2, 2015, Julia DeBellis, M.D., Medical Director of the

Audrey Hepburn Children's House, completed a full medical evaluation of Darla

which included a physical examination and a review of medical records, and

issued a report. She found that all of the fractures had a "high specificity for

nonaccidental trauma" and "require[d] significant forces to be sustained."

Similarly, she stated that the forces which caused Darla's injuries were "not

gentle or playful in quality." She found that Darla's tibia fracture could not be

dated, but her scapular spine fracture occurred "one week or less" before the

seizure. The earliest injury, her left rib fractures, occurred "about 2-3 weeks"

before the seizure, and the right rib fractures occurred "less than 10 days" before

the seizure. Dr. DeBellis did not believe that Emily's attempts to revive Darla

at the time of the seizure would have caused injury. She found no medical

reasons to explain Darla's fractures but noted that forces which can cause such

fractures include "the violent shaking of an infant where the extremities are

flailing" and where "a caregiver grab[s] or twist[s] and forcefully yank[s] an

infant's leg." She concluded that this case "reflects non-accidental trauma" and

required ongoing Division involvement.

      On December 19, 2015, Zhongxue Hua, M.D., Ph.D., a forensic

pathologist and neuropathologist, issued a report on Leslie's behalf following


                                                                           A-3746-17T4
                                       12
his review of Darla's medical records. Dr. Hua found that Darla's hematoma

would have precluded normal feeding on June 2, 2015, contrary to Emily's

assertions that Darla was healthy that day. Accordingly, Dr. Hua concluded that

this injury "must have occurred under the exclusive care of babysitter [Emily]

on 6/2/2015." Dr. Hua also concluded that the remainder of Darla's injuries,

including her fractures "are both medically and forensically unclear in terms of

exactly when, by whom, and how they occurred." However, Dr. Hua also found

that the medical records "contained nothing to even remotely suggest that

[Leslie] inflicted" the remaining injuries.

      On January 25, 2016, the Division interviewed Oscar who denied that he

abused drugs or alcohol but, contrary to his statements to prosecutors,

acknowledged drinking socially and reported that he last drank alcohol about

three months before. He denied tossing Darla in the air, and denied any rough

play, which was similarly inconsistent with his earlier statements to prosecutors.

The Division recommended that he complete a substance abuse evaluation,

random urine screening, and a hair follicle test.

      That same day, the Division interviewed Oscar's brother, H.S. (Howard).

Howard reported that Oscar drank socially and not to excess. He stated that he

once observed Oscar tickling Darla and throwing her about one foot into the air ,


                                                                          A-3746-17T4
                                       13
above her bed. Howard denied any concerns about domestic violence in the

home.     Howard's wife M.O. (Mary) reported to the Division that she was

concerned about the parents' care of Darla. She reported that Oscar would

sometimes throw Darla up in the air while he was intoxicated. She stated that

he would play rough with Darla, and also perpetrated domestic violence against

Leslie.

        On February 28, 2016, Jack Levenbrown, M.D., a pediatric radiologist

retained by Emily, issued a report following his review of Darla's medical

records. He concluded that "none of the injuries date back to April 30[, 2015]."

He found the tibia fracture to be of "indeterminate age." He found that the left

scapular fracture occurred between May 23, 2015, and May 26, 2015. The

earliest dateable injury, the left rib fractures, were sustained "between May 11

and 18" and the right rib fractures occurred between May 26, 2015, and June 2,

2015. He acknowledged that the injuries were "suspicious for abusive trauma"

but that the hematoma, the right rib fractures, and the tibia fracture "may have

been the accidental result of the babysitter's [Emily's] attempt to revive the

infant." He concluded that the left rib fractures "most definitely predate the

babysitter's [Emily's] caring for the child," which resumed on May 26, 2015.




                                                                        A-3746-17T4
                                      14
      The Division found substantiated cases of abuse and neglect by Leslie,

Oscar, Emily, Stan, and Carla because "they all had access to and/or served as

caregivers to [Darla] during the time when she sustained non-accidental

injuries." The Division concluded that, based on Darla's dateable injuries, which

likely occurred two to three weeks before the seizure on June 2, 2015, Jane did

not inflict the injuries on Darla because she did not have access to Darla during

that time.

      The fact-finding hearing began on March 22, 2016 and continued over five

nonconsecutive days through July 2016.        The court consolidated Leslie's,

Oscar's, and Carla's case with Emily's and Stan's for the fact-finding hearing.

      Dr. DeBellis testified on behalf of the Division largely consistent with her

written report and stated that Darla's tibia fracture could not be dated. The

scapular fracture was "very rare" and occurred less than ten days before the x-

ray. The earliest dateable injury, the left rib fractures, occurred two to three

weeks before the June 3, 2015, x-ray (the week of May 12) and the right rib

fractures occurred less than ten days before the x-ray.       Darla's hematoma

occurred within 24 to 48 hours of the CAT scan, which was taken on June 2,

2015, at 5:52 p.m. She again stated that Darla's injuries were from "non-

accidental trauma" and were not caused by any genetic condition or genetic


                                                                          A-3746-17T4
                                      15
predisposition, but that Emily's handling of Darla during the seizure could not

have caused Darla's injuries.

      Division intake worker Becky Mendoza testified for the Division

regarding its investigation of the family and the schedule of babysitters

consistent with the documentation in the record. She testified that Emily did not

watch Darla from April 30, 2015, until May 26, 2015. Division supervisor

Debra Cordova also testified for the Division regarding its intake of Darla and

the Division's substantiation of Laura, Oscar, Emily, Carla, and Stan for physical

abuse against Darla. Finally, caseworker Suzanne Marino testified with respect

to Darla's resource home and caretaker.

      After presenting its case, the Division moved to shift the burden of proof

to Leslie, Oscar, Emily, Stan, and Carla to exculpate themselves under the

doctrine of conditional res ipsa loquitur as detailed in In re D.T., 229 N.J. Super.

509 (App. Div. 1988). The Division maintained that it had proven a prima facie

case of abuse and neglect of Darla, and that a limited number of people had

access to and control of Darla at the time her injuries occurred. Darla's la w

guardian joined in the motion.

      The court initially reserved decision on the motion but in light of the

testimony, the court concluded as a threshold matter that the Division had not


                                                                            A-3746-17T4
                                        16
made a prima facie case against Stan as to any of the injuries and dismissed him

from the litigation. As to the hematoma, scapular fracture, and rib fractures, the

court found that based on the testimony presented at that point in the proceeding,

the earliest of these injuries occurred around May 13, 2015, and continued

thereafter. The court found that since May 13, 2015, Leslie, Oscar, Emily, and

Carla had all cared for Darla.      The court noted its "serious reservations"

regarding applying conditional res ipsa loquitur in the case but nevertheless

concluded that because the aforementioned injuries were "caused by abuse and

were not accidental," it applied the conditional res ipsa loquitur burden shifting

analysis to the hematoma, scapular fracture, and rib fractures. In doing so, the

court credited Dr. DeBellis's opinion concluding that these injuries occurred

beginning approximately during the week of May 12, 2015, and found that

because the Division established a prima facie case of physical abuse "during a

time when [Darla] was under these defendants' care," defendants were required

to present evidence sufficient to overcome the presumption that they abused and

neglected Darla.

      As to the tibia fracture, the court applied the traditional res ipsa loquitur

principles set forth in N.J. Div. of Youth & Family Servs. v. J.L., 400 N.J. Super.

545, 470 (App. Div. 2008), and did not shift the burden of proof because the


                                                                           A-3746-17T4
                                       17
experts could not estimate when that injury occurred, and the court was unable

to determine which of the defendants cared for Darla at that time. Thus, the

Division bore the burden of proof as to the tibia injury against Leslie, Oscar,

Emily, and Carla, who could then "come forward with evidence to rebut the

presumption of abuse or neglect." The court denied the Division's motion for

reconsideration, and found that conditional res ipsa loquitur was inapplicable to

the tibia injury because the Division failed to name Jane as a defendant when

the evidence indicated that she was a caretaker during the time when this injury

could have occurred.

      Dr. Levenbrown testified on Emily's behalf as an expert in pediatric

radiology, largely consistent with his written report.        Regarding the tibia

fracture, he testified that it was difficult to date, but could have occurred several

weeks before the June 3, 2015 x-ray. With respect to Darla's scapular fracture,

he testified that it probably occurred approximately seven days before the x-ray,

or sometime after May 24, 2015. He estimated that Darla's left rib fractures

occurred three weeks prior to the x-ray, or approximately May 13, 2015 through

May 15, 2015. All of the fractures were suspicious for abuse, though her right

rib fracture may have been related to revival attempts at the time of her seizure.




                                                                             A-3746-17T4
                                        18
As for Darla's hematoma, he opined that it occurred less than 24 hours before

June 3, 2015. None of Darla's injuries were sustained before April 30, 2015.

      Dr. Hua testified as a witness on Leslie's behalf as an expert in forensic

pathology, neuropathology, and anatomical pathology. He opined that Darla's

"fresh injury," the hematoma, occurred on June 2, 2015. Dr. Hua explained that,

because the parents did not notice any symptoms when they left for work that

morning, and Darla was fed normally throughout the day, the brain injury must

have occurred "very close to time before 4:00 p.m." when she had the seizure.

Regarding her "non-fresh injuries," the tibia fracture could not be dated. He

stated his belief that the scapular fracture occurred seven to ten days before the

x-ray and that the left rib fractures likely occurred more than two weeks before

the x-ray, but that the right rib fractures had no callus formation, so they likely

occurred less than seven to ten days before her x-ray.         Dr. Hua therefore

concluded that Leslie did not cause the injuries. Oscar's counsel asked Dr. Hua

two substantive questions on cross-examination, and Dr. Hua confirmed that he

"pretty much" ruled out Oscar as causing the "fresh" injuries, and that there was

"no evidence" that Oscar caused the non-fresh injuries.

      Following trial, the court issued a written opinion finding that Leslie and

Oscar abused and neglected Darla, but Emily, Stan, and Carla did not. The court


                                                                           A-3746-17T4
                                       19
found that the Division had established that Darla had suffered abuse and neglect

and reiterated that, as to the injuries which could be dated, the defendants were

required to exculpate themselves under its earlier order adopting conditional res

ipsa loquitur. The court explained, consistent with its findings on the motion to

shift the burden of proof, that except for the tibia fracture, the earliest of these

injuries could have occurred was "the week of May 12." Since that time, Darla

"had four caretakers: her parents, [Carla], and [Emily]." The court reiterated its

earlier decision that these parties would bear the burden of proof to overcome

the presumption of abuse and neglect.

      As a threshold matter, the court found that Dr. DeBellis and Dr.

Levenbrown were more credible than Dr. Hua because it concluded that Dr.

Hua's training in pathology and forensics was less persuasive than Dr. DeBellis's

experience in identifying child abuse and Dr. Levenbrown's practice in pediatric

radiology.   The court further found that Dr. Hua's opinions were "highly

speculative and unconvincing."

      As to Leslie, the court found that she did not present sufficient evidence

to overcome the presumption of abuse and neglect in connection with Darla's

hematoma, scapula fracture, and rib fractures. The court was not persuaded by

Dr. Hua's testimony that Leslie did not cause the injuries. After rejecting Dr.


                                                                            A-3746-17T4
                                        20
Hua's opinion, the court cited statements from Carla, Emily, and Stan that Darla

cried extensively at night while in the care of her parents but contrasted that

with Leslie's sworn statement that Darla slept well at night. The court also cited

Leslie's statement about her dream that a "diabolical doll" was in Darla's crib

and found that Leslie may have harmed Darla "somehow believing that the child

was surrounded by evil or was cursed." And, the court pointed to Leslie's

spontaneous and unprompted statement "that neither she nor [Oscar] ever

dropped the baby," as well as her invoking the right to remain silent, and the

fact that "she is the only defendant who it appears did not agree to a polygraph

examination."    It also determined that Leslie did not provide evidence to

overcome the presumption of abuse as to the hematoma, the scapular fracture,

and the rib fractures, and she accordingly failed to satisfy her burden of proof.

The court thus concluded that she abused and neglected Darla.

      With respect to Oscar, the court found that he "did not present any

evidence to overcome the presumption of abuse or neglect" in connection with

Darla's hematoma, scapula fracture, and rib fractures. The court determined that

he "presented no expert evidence nor did any of the expert witnesses exonerate

him for causing the abuse." Further, it concluded that his statements to the

prosecutors were "suspicious" because he suggested that "further x-rays of the


                                                                          A-3746-17T4
                                       21
child would show that she had a fracture to her leg," he suggested that the

perpetrator should be given "a second chance but not a third chance," and he

asked "what if I've dropped her?" The court also found his conduct during the

interview breaks to be "concerning" because "he sang a song about leaving and

about the lie detector, he prayed, and he answered his phone."           And, it

determined he was "caught in [a] lie" because he initially denied that he ever

drank alcohol when living in the United States, but later admitted he sometimes

drank. Therefore, the court concluded that Oscar abused or neglected Darla as

well.

        Conversely, the court found that Carla had met her burden of establishing

her non-culpability for abusing Darla. It concluded that the only injuries that

could have occurred during the time that Carla cared for Darla were the left rib

fractures and the tibia fracture. The court found that Carla cared for Darla on

May 4, May 5, May 12, May 13, May 14, and May 15. With respect to the rib

fractures, the court credited Carla's statement to prosecutors that on May 12,

2015, she noticed a bruise on the baby's back because that statement was

consistent with the testimonies of Dr. DeBellis and Dr. Levenbrown as to when

Darla's left rib fractures occurred. Significantly, the court found that May 12

"was right after the weekend when the parents were the sole caretakers of


                                                                         A-3746-17T4
                                       22
[Darla]." And, regarding Darla's tibia injury, the court found that, consistent

with Dr. Levenbrown's testimony, Carla "did not have access to [Darla] for the

two weeks prior to the x-ray," which is when he concluded that injury occurred.

Thus, the court found that Carla "met her burden of establishing her non -

culpability for abusing [Darla]."

      The court also concluded that Emily met her burden to establish non-

culpability regarding abuse or neglect. It found that she "cared for the baby on

May 26, 27, and 29[,] and June 1 and 2." Consistent with Dr. Levenbrown's

testimony, the court concluded that Emily "was not taking care of the child"

during the time Dr. Levenbrown testified that the left rib fractures occurred.

Further, with regard to the left scapula fracture which Dr. DeBellis and Dr.

Levenbrown both stated were "about a week old" at the time of the x-ray, the

court found that Emily "had only cared for [Darla] for one day the week before

the x-rays were taken."     Finally, with respect to the hematoma, the court

concluded that based on Dr. DeBellis's testimony that the injury occurred 24 to

48 hours prior to the CAT scan at 5:52 p.m. on June 2, 2015, the timeline "places

the injury at a time after the child was picked up by [Oscar] on June 1 or . . . on

Sunday[,] May 31, when the parents were the sole caretakers for the baby . . . ."




                                                                           A-3746-17T4
                                       23
      The court made separate findings as to Darla's undated tibia fracture. The

court found that based upon Oscar's statements to the prosecutor's office

inquiring if another x-ray would reveal an injury to Darla's foot, the Division

met its burden of proof to show, by a preponderance of the evidence, that it was

likely caused by Oscar.

      The court held a compliance review hearing on August 25, 2016, and

continued custody of Darla with the Division. On December 15, 2016, the court

ordered the parents to comply with any recommendations for services. That

same day, the Division filed an order to show cause for guardianship. On March

29, 2017, however, the court terminated the guardianship litigation and

reinstated the abuse and neglect litigation. At a hearing on April 19, 2017, the

Division indicated that it received psychological evaluations indicating "no

clinical evidence that the parents represent a risk or threat to [Darla]'s physical

or emotional integrity" and agreed with the evaluations' conclusions that "it

would be in the best interest of the child . . . to be returned to her parents and

[that] she has a strong attachment to her parents."       Accordingly, the court

ordered gradual reunification including in-home visitation with assistance from

a parent mentor, noting that "the parents are not a risk to the child. They seem

very committed to her."


                                                                           A-3746-17T4
                                       24
      On August 9, 2017, the court held a hearing and ordered unsupervised

visitation for the parents. On November 15, 2017, the court approved full

reunification with the parents. On March 14, 2018, the Division dismissed the

litigation and this appeal followed. The Division and the Law Guardian ask that

we affirm the court's abuse and neglect finding.

      On appeal, Oscar raises the following arguments for our consideration:

            POINT I

            THE COURT IMPROPERLY APPLIED . . . D.T. . . .
            TO SHIFT THE BURDEN OF PROOF TO OSCAR
            AND REQUIRE HIM TO PROVE HIS NON-
            CULPABILITY.

            POINT II

            THE COURT’S FINDING THAT OSCAR ABUSED
            AND NEGLECTED [DARLA] IS NOT SUPPORTED
            BY ADEQUATE, SUBSTANTIAL AND CREDIBLE
            EVIDENCE     BECAUSE   THE    EVIDENCE
            PRODUCED AT THE FACT FINDING NOT ONLY
            DID NOT PROVE THAT OSCAR INJURED
            [DARLA], BUT EXONERATED HIM.

            A. Oscar Did Present Expert Testimony.

            B. The Court’s Findings Regarding Oscar are not
            Supported by the Record and Contain Numerous
            Factual Errors.

            i. Concerns about whether Oscar drank are exaggerated
            and not supported by the record.


                                                                       A-3746-17T4
                                      25
ii. Oscar was not "caught in a lie"; the court attributed
a statement to him that he did not make.

iii. [Darla] did not scream in pain when with her
parents.

iv. Oscar did not say that "the person" who harmed
[Darla] should be given a second chance.

v. Oscar did not say that he dropped [Darla].

vi. There was likely no bruise on [Darla]’s back.

vii. Oscar’s question regarding [Darla]'s leg does not
prove by a preponderance of the evidence that he
caused the injury to her foot.

viii. The court’s ultimate conclusion regarding Oscar is
not only unsupported by the record, but unsupported by
substantial, credible and adequate evidence required for
a finding of abuse and neglect.

POINT III

THE COURT INCORRECTLY FOUND THAT
EMILY WAS EXONERATED, HOWEVER A
REVIEW OF THE RECORD DEMONSTRATES
THAT   SUBSTANTIAL, CREDIBLE  AND
ADEQUATE   EVIDENCE  SUPPORTS THE
CONCLUSION THAT IT WAS EMILY WHO
HARMED [DARLA].

A. Emily Did Babysit for [Darla] During the Time That
All of the Injuries were Thought to Have Happened.

B. Emily Felt Desperate, Angry and Nervous When
[Darla] Would Cry, Emily Resented Oscar and Leslie,
and Emily Admitted to Squeezing and Shaking [Darla].

                                                            A-3746-17T4
                          26
      Leslie raises the following similar points:

            POINT I

            THE COURT FAILED TO APPLY THE CORRECT
            DOCTRINE OF RES IPSA LOQUITUR.

            POINT II

            THE COURT’S FINDING THAT LESLIE ABUSED
            AND NEGLECTED [DARLA] IS NOT SUPPORTED
            BY ADEQUATE, SUBSTANTIAL AND CREDIBLE
            EVIDENCE.

            POINT III

            THE COURT’S FINDING THAT EMILY DID NOT
            ABUSE AND NEGLECT [DARLA] IS NOT
            SUPPORTED BY ADEQUATE, SUBSTANTIAL
            AND CREDIBLE EVIDENCE.

                                     II.

      Both Leslie and Oscar allege in their respective first points that the court

erred in its burden of proof ruling. Specifically, they argue that Darla was

exposed to unidentified individuals who could have caused her injuries, such

that the court's shifting of the burden of proof under the conditional res ipsa

loquitur principles set forth in D.T. was erroneous, and traditional res ipsa

loquitur should have applied.     In this regard, they argue that unlike D.T.,

conditional res ipsa loquitur was inappropriate here because there "was not a


                                                                          A-3746-17T4
                                      27
finite set of caregivers and people with access to the baby, and [the Division]

did not name all of the people with access as defendants." Defendants further

contend that traditional res ipsa loquitur was appropriate because "the exact

dates of the injuries were not proven." We disagree.

      "Title 9 controls the adjudication of abuse and neglect cases." N.J. Div.

of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (citing N.J.S.A.

9:6-8.21 to -8.73). "In a fact-finding hearing (1) any determination that the child

is an abused or neglected child must be based on a preponderance of the evidence

and (2) only competent, material and relevant evidence may be admitted."

N.J.S.A. 9:6-8.46(b). In this case, under its theory of abuse and neglect, the

Division was required to prove that Darla's:

            physical, mental, or emotional condition has been
            impaired or is in imminent danger of becoming
            impaired as the result of the failure of [her] 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 . . . .

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

      "It is difficult to marshal direct evidence of parental abuse and neglect

because of the closed environment in which the abuse most often occurs and the

limited ability of the abused child to inculpate the abuser." N.J. Div. of Youth

                                                                           A-3746-17T4
                                       28
& Family Servs. v. S.S., 275 N.J. Super. 173, 179 (App. Div. 1994).

Consequently, in a fact-finding hearing under Title 9,

              proof of injuries sustained by a child or of the condition
              of a child of such a nature as would ordinarily not be
              sustained or exist except by reason of the acts or
              omissions of the parent or guardian shall be prima facie
              evidence that a child of, or who is the responsibility of
              such person is an abused or neglected child.

              [N.J.S.A. 9:6-8.46(a)(2).]

      We have characterized this statutory provision as deriving from

"traditional res ipsa loquitur principles," whereby the Division receives an

inference of abuse or neglect necessary to establish a prima facie case, and "the

burden will shift to the parents to come forward with evidence to rebut the

presumption of abuse or neglect." J.L., 400 N.J. Super. at 470. Under this

provision, the ultimate burden of proof remains with the Division. Ibid. In this

regard, "parents are not obligated to present evidence. They may choose to rest

and allow the court to decide the case on the strength of the Division's evidence."

Id. at 472.

      We have alternatively enunciated a burden-shifting paradigm, otherwise

known as conditional res ipsa loquitur, which applies when an identifiable set

of individuals had custody of an infant who suffers injuries while in their care.

See id. at 468-69 (citing D.T., 229 N.J. Super. at 517).

                                                                           A-3746-17T4
                                           29
      In D.T., the majority of the panel held that when

            a limited number of persons, each having access or
            custody of a baby during the time frame when a sexual
            abuse concededly occurred, no one else having such
            contact and the baby being then and now helpless to
            identify her abuser, . . . [t]he burden would then be
            shifted, and such defendants would be required to come
            forward and give their evidence to establish non-
            culpability.

            [229 N.J. Super. at 517 (citing Anderson v. Somberg,
            67 N.J. 291, 298-99 (1975)); see also S.S., 275 N.J.
            Super. at 181 (applying D.T.'s burden-shifting
            paradigm).]

      Under the D.T. framework, the burden of proof shifts to the caregiver to

come forward with exculpatory evidence. See J.L., 400 N.J. Super. at 468-70.

As noted, D.T.'s burden shifting framework applies only when the facts clearly

establish the abuse occurred during a timeframe in which a defined number of

individuals had access to the child. See N.J. Div. of Child Prot. & Permanency

v. K.F., 444 N.J. Super. 191, 201-04 (App. Div. 2016). The burden of proof

should not shift to the caregivers when one caregiver claims sole responsibility

for the child's supervision during the relevant time period. Id. at 203. Nor

should the burden of proof shift "merely because a trial judge is uncertain

regarding the mechanism that caused the child's injury." Id. at 204.




                                                                        A-3746-17T4
                                      30
      Defendants rely upon J.L. for the proposition that traditional, and not

conditional, res ipsa loquitur applies where there are "an unknown number of

people who had access" to the child "during the period in which she was likely

injured." Defendants' reliance on J.L. is misplaced.

      In J.L., we elected not to apply conditional res ipsa loquitur against the

child's parents. In that case, the child suffered various fractures, and where

"extended family, including the two grandmothers or other relatives and friends

. . . visited" and the child was "in the custody of medical personnel on various

occasions and subjected to various procedures, . . . which required physical

restraint," we concluded that traditional res ipsa loquitur applied. J.L., 400 N.J.

Super. at 469.

      Conversely, in S.S., we applied conditional res ipsa loquitur where the

defendant, the child's mother, was "one of a limited number of people in control

of [the child] when she was injured." 275 N.J. Super. at 181 (emphasis added).

In doing so, we relied on a comparable New York provision, applying

conditional res ipsa loquitur only where "the child was in the lawful custody of

his parents or other persons legally responsible for his care." Id. at 181 n.2. We

determined that because the child's caretakers throughout the period the injury




                                                                           A-3746-17T4
                                       31
could have occurred were limited to her parents and her grandparents, it was

appropriate to apply conditional res ipsa loquitur. Id. at 181.

      Here, the court was correct to apply the doctrine of conditional res ipsa

loquitur because there were a definite number of individuals who cared for Darla

when her hematoma, scapula fracture, and rib fractures occurred. The evidence,

including his statements to prosecutors, established that Stan did not care for

Darla. The evidence, however, clearly established that Leslie, Oscar, Emily,

and Carla were Darla's only caretakers during the time that the hematoma,

scapula fracture, and rib fractures occurred. The expert testimony from Dr.

DeBellis established that these injuries occurred beginning the week of May 12,

2015, after which time Darla was exclusively cared for by Leslie, Oscar, Emily,

and Carla.

      Further, contrary to defendants' position, there is no evidence that

additional individuals cared for Darla when the hematoma, scapula fracture, and

rib fractures occurred. Defendants' suggestion that members of Jane's or Carla's

household may have been in Darla's presence is unsupported by the record. The

expert testimony made clear that these injuries had not yet occurred at t he time

Jane watched Darla, and Jane established that no one else was present when she

watched Darla in any event. While the record established that Carla lived in a


                                                                         A-3746-17T4
                                       32
home with her three brothers and cared for the child there, it does not

demonstrate the degree of contact, if any, these three individuals had with Darla.

To this end, nothing in the record suggests that they were ever considered

caregivers for Darla nor that they had unsupervised access to or control over her.

And, even if any individuals may have had passing contact with Darla, the record

establishes that she was under the supervision of the various named defendants

when her injuries occurred. These facts are clearly distinct from J.L., wherein

various unidentified medical personnel had unrestricted access to the child.

      Defendants also rely on J.L. to support their proposition that conditional

res ipsa loquitur cannot be applied where the injuries may have occurred "over

a period of time and it is unclear as to exactly where and when the child's injuries

took place." However, the application of conditional res ipsa loquitur is not

precluded where the injuries occurred over an extended time period.              For

example, in S.S., we applied conditional res ipsa loquitur where the child's

numerous injuries occurred at an uncertain time at least a "week before" they

were discovered. 275 N.J. Super. at 176. Thus, while the court found that

Darla's injuries occurred over a three-week period, it was not precluded from

applying conditional res ipsa loquitur based on the uncertainty regarding the

exact timing of Darla's injury.      The court was similarly correct to apply


                                                                            A-3746-17T4
                                        33
traditional res ipsa loquitur to the tibia injury, because the expert testimony

established that it was not possible to determine when this injury occurred.

                                     III.

      Defendants next argue that the court erred in finding that they abused and

neglected Darla because its conclusion was not supported by the evidence in the

record. In addition, they each argue that the court's findings contained numerous

factual errors. And, Oscar argues that, contrary to the court's finding, he did

present expert testimony. Defendants also contend that the court erred in finding

that Emily did not abuse and neglect Darla. Specifically, they argue that some

of the exculpatory evidence cited by the court was erroneous because: Emily

babysat during the time when Darla's injuries occurred; Emily felt desperate,

angry, and nervous when Darla would cry; Emily resented Oscar and Leslie for

leaving Darla in her care; and Emily admitted to squeezing and shaking Darla.

We agree with defendants to the extent it appears from our review of the court's

written opinion that it overlooked or misinterpreted various portions of the

record.

      We defer to the Family Court's fact finding because of the court's "special

expertise" in family matters and the court's "superior ability to gauge the

credibility of the witnesses who testify before it . . . ." N.J. Div. of Youth &


                                                                         A-3746-17T4
                                      34
Family Servs. v. F.M., 211 N.J. 420, 448 (2012); see also Cesare v. Cesare, 154

N.J. 394, 413 (1998). Although we will not disturb a trial court's fact finding

"when supported by adequate, substantial, credible evidence[,]" Cesare, 154 N.J.

at 412, we scrutinize more closely a "trial judge's evaluation of the underlying

facts and the implications to be drawn therefrom . . . ." N.J. Div. of Youth &

Family Servs. v. M.M., 189 N.J. 261, 279 (2007). Nevertheless, "deference will

still be accorded the trial judge's findings unless it is determined that they went

so wide of the mark that the judge was clearly mistaken." N.J. Div. of Youth &

Family Servs. v. G.L., 191 N.J. 596, 605 (2007)); see also In re Guardianship of

J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993). We review issues of law de

novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378

(1995).

      Credibility findings, however, can only be made by assessing testimony,

not documents. See Barblock v. Barblock, 383 N.J. Super. 114, 122 (App. Div.

2006). Thus, although our standard of review is limited, N.J. Div. of Youth &

Family Servs. v. E.P., 196 N.J. 88, 104 (2008), where inadequate findings of

fact are made or where issues are not addressed, we are constrained to remand

for further proceedings. See Elrom v. Elrom, 439 N.J. Super. 424, 443 (App.

Div. 2015).


                                                                           A-3746-17T4
                                       35
      Applying these legal principles against the aforementioned standard of

review, we have identified four of the court's factual findings that appear critical

to its ultimate determination that we deem require further explication by the

court to determine what effect, if any, those issues had on the court's August 10,

2016 order and written decision.       Findings on these matters could favor a

different outcome or provide essential support for the court's abuse and neglect

determination.

      First, based on Dr. DeBellis's finding that the hematoma occurred 24 to

48 hours before the x-ray on June 2, 2015, at 5:52 p.m., the court stated the

injury must have occurred "after the child was picked up by her father on June

1 or 48 hours before [sic] would place the injury on Sunday May 31, when the

parents were the sole caretakers."       This finding, however, overlooks the

possibility that the injury occurred during the day on June 1, 2015, when Darla

was under Emily's care. It appears that the court did not address that possibility

and may have misapprehended Dr. DeBellis's timeline.

      Second, the court stated that "[i]n her polygraph statement, [Emily] denied

ever grabbing the baby or shaking the baby before June 2[, 2015,] when she tried

to revive her." The Division's June 3, 2015 contact sheet, however, states that

Emily informed the Division that she shook or "firmly grabbed or squeezed" her


                                                                            A-3746-17T4
                                        36
"once while she was pregnant and once after having given birth." The court also

failed to address Emily's statements to the polygraph examiner that she felt

"desperate," "angry," and "nervous" when Darla cried.

      Moreover, the court noted that Leslie was "the only defendant who it

appears did not agree to a polygraph examination," but it failed to recognize that

Leslie began a polygraph examination on June 3, 2015, became overwhelmed

with emotion during the test, and was unable to complete it. Also, "[a]lthough

there are few reported decisions involving the admissibility of polygraph

evidence in a civil suit, almost all courts that have considered the question have

held that the results of a polygraph test or the refusal to take a polygraph test are

not admissible in evidence. Senders v. CNA Ins. Cos., 212 N.J. Super. 518, 520

(Law Div. 1986) (emphasis added). It is unclear from the court's decision what

weight it placed on Leslie's failure to complete a polygraph examination, but to

the extent that it relied on that refusal, its finding was not supported by

admissible evidence and any reliance on Leslie's refusal was in error.

      Finally, it also appears that the court misconstrued a portion of the record

in support of its decision. The court found it "suspicious" that Oscar asked the

detective "what if I've dropped her" during his interview. A review of Oscar's

interview reveals that the court may have considered that quote out of context,


                                                                             A-3746-17T4
                                        37
as Oscar was attempting to explain that he did not harm Darla. In this regard,

he stated:

             we've never dropped her . . . . In fact, being our
             daughter and I'm going to tell you I haven't dropped her,
             and what if I've dropped her? . . . [T]he whole truth has
             to be said, under oath. . . . Well, I'm saying this under
             oath.

A full reading of Oscar's statement to the detective reveals it was part of a larger

point denying any harm to Darla by reaffirming his knowledge that he was bound

to testify truthfully under oath. 4

      In sum, it was incumbent upon the court to consider the totality of the

evidence and circumstances surrounding Darla's injuries, in this difficult case.

We are therefore constrained to remand so that the court may issue additional

detailed factual findings addressing the aforementioned discrepancies and

address whether its amended factual findings alter its conclusion that the


4
   We also note that the court determined that Oscar "presented no expert
evidence nor did any of the expert witnesses exonerate him for causing the
abuse." That statement is not correct. Although Oscar did not call an expert to
testify on his behalf, Leslie's attorney called Dr. Hua to testify and Oscar's
attorney noted that Dr. Hua "represents the parents." Dr. Hua testified that he
"pretty much" ruled out Oscar as causing Darla's injuries. While we recognize
the court found Dr. Hua "the least credible and persuasive of all three expert
witnesses" because "[h]is experience is primarily diagnosing disease and causes
of death" as compared to Dr. DeBellis's experience with child abuse and Dr.
Levenbrown's as a pediatric radiologist, it was inaccurate to state that none of
the experts exonerated Oscar.
                                                                            A-3746-17T4
                                        38
Division satisfied its burden to establish that Oscar and/or Leslie abused or

neglected Darla. Nothing in our opinion should be interpreted as a forecast of

the remanded proceedings. We leave the scope of those proceedings to the trial

court except that all interested parties, including but not limited to Emily, should

receive notice and an opportunity to participate. Accordingly, we vacate the

court's August 10, 2016 order and remand the matter to the trial court for

reconsideration after its review of the existing record and further findings of

fact.

        To the extent not addressed, defendants' remaining arguments lack

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

        Affirmed in part, vacated and remanded in part.         We do not retain

jurisdiction.




                                                                            A-3746-17T4
                                        39
