                        RECORD IMPOUNDED

                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-0558-14T1

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,             APPROVED FOR PUBLICATION

      Plaintiff-Respondent,                February 9, 2016

                                          APPELLATE DIVISION
v.

K.F. and R.G.1,

      Defendants,

and

D.M.,

     Defendant-Appellant.
___________________________________

IN THE MATTER OF A.M. and N.G.,

      minors.


          Argued December 2, 2015 – Decided February 9, 2016

          Before Judges Alvarez, Haas, and Manahan.

          On appeal from the Superior Court of New
          Jersey, Chancery Division, Family Part,
          Hudson County, Docket No. FN-09-256-14.




1
 In its amended complaint the Division of Child Protection and
Permanency sought custody, care, and supervision of N.G., A.M.'s
older half-sister and K.F.'s daughter.     The amended complaint
added N.G.'s father, R.G., as a party to the litigation.    This
appeal pertains only to D.M., A.M.'s father.
           Lora B. Glick, Designated Counsel, argued
           the cause for appellant (Joseph E. Krakora,
           Public Defender, attorney; Ms. Glick, on the
           briefs).

           Jessica  M.  Steinglass,  Deputy  Attorney
           General, argued the cause for respondent
           (John J. Hoffman, Acting Attorney General,
           attorney; Andrea M. Silkowitz, Assistant
           Attorney General, of counsel; Kenneth M.
           Cabot, Deputy Attorney General, on the
           brief).

           James J. Gross, Designated Counsel, argued
           the cause for the minors (Joseph E. Krakora,
           Public Defender, Law Guardian, attorney; Mr.
           Gross, on the brief).

    The opinion of the court was delivered by

ALVAREZ, P.J.A.D.

    Defendant D.M. appeals a May 9, 2014 Family Part order

finding   he   abused   or   neglected    his   then   twenty-five-day-old

infant son, A.M.        His principal contention is that the judge

erred by shifting the burden of persuasion to him, pursuant to

the paradigm in In re D.T., at the close of plaintiff Division

of Child Protection and Permanency's (Division) case.                229 N.J.

Super. 509 (App. Div. 1988).       We agree and reverse.

                                    I.

    When   the   incident    at   issue   occurred,    K.F.,   the    child's

mother, was babysitting her two-year-old nephew in the small

one-bedroom basement apartment she shares with D.M.              K.F. also




                                     2                               A-0558-14T1
has a four-year-old daughter, who at the time was playing with

her cousins upstairs in her grandmother's apartment.

      At   the   fact-finding      hearing,         see    N.J.S.A.    9:6-8.44,        the

Division moved into evidence the Special Response Unit (SPRU)

report     summarizing     interviews     with       the     parents    and    hospital

staff.     The report indicated that late in the evening of August

4, 2013, D.M. and K.F. drove A.M. to the emergency room at the

nearby community hospital.          They were seen in the early morning

hours of August 5 by a Dr. Rocco.                         He "reported . . . the

parents' stories to be inconsistent and felt it was concerning

when the mother stated the baby fell.                  He stated that the father

reported     that    a   sibling   made       the    baby     fall    to    the    floor,

however, the mother stated the sibling had nothing to do with

the   child's       falling."      Neither          parent    speaks       English      and

communicated with Dr. Rocco with the assistance of a Spanish-

speaking hospital staff member.

      Dr. Rocco's comments were not made directly to the worker,

however, as he was gone by the time she arrived.                           His concerns

were relayed to the worker by a Dr. Desiderio.

      Dr. Desiderio said the father, D.M., explained "that he was

in the living room and the mother was helping him to change her

nephew's pamper[]" when the incident occurred.                       The worker noted




                                          3                                       A-0558-14T1
that Dr. Desiderio also said that the father "denied knowing how

long the mother was away from the baby."

       The parents directed Dr. Desiderio's attention to a bump on

the baby's head that "he did not even see initially."                    The baby

also had a bruised upper lip.

       A.M. was admitted to monitor his condition; K.F. remained

with   him.      The   initial    CAT   scan   of   the   baby's   skull    which

prompted        Division         involvement        revealed       inconclusive

irregularities.        It was possible that the baby had a fractured

skull, or may have moved during the taking of the CAT scan

images, or the irregularities might have been entirely normal

because    at   twenty-five      days   of   age,   a   baby's   skull    is   not

closed.       The second CAT scan taken the following morning was

normal.

       The observations of the primary worker who responded to the

hospital were also included in the SPRU report:

              the parents['] stories were consistent with
              each other. It was reported the mother left
              the child alone on the bed on a pillow in
              the room.   The mother went into the living
              room for [ten] minutes to help change her
              nephew . . . . After she heard the baby cry
              she went back to the room and saw [the] baby
              on the floor. . . .    The mother stated she
              saw the bump on [the baby's] head and
              brought him immediately to the [h]ospital
              with a cab.    The father reported the same
              . . . .




                                        4                                A-0558-14T1
The mother initially reported placing A.M. in the middle of the

bed.

       The    primary     worker      and       the     author     of     the     report,

accompanied by D.M., returned to the family home once the baby

was    admitted    to    the   hospital.          The    condition      of    the    small

apartment was unremarkable.                The worker noted a crib in the

parents' bedroom "as well as ample baby supplies."

       Later in the morning of August 5, the baby was medically

discharged     but      held    at    the       facility     "waiting        on     'DYFS'

clearance."       The discharge doctor, a third physician, suggested

the worker "speak to the mother to see if she confess[es] about

'something' as her story is not plausible."

       That afternoon, Division workers drove the parents to the

Hudson County Prosecutor's Office to be interviewed.                            D.M. told

investigators that sometime the evening before, K.F. was rocking

the infant in the living room.                  In order to help him change the

two-year-old      nephew's     diaper,      she       took   the   baby      into    their

bedroom and placed him on top of a pillow on their bed.

       D.M.   said      that   it    was    a    mistake     to    leave     the     child

unattended, but that they did not think A.M. would fall off the

bed.     He told the detective that K.F. was in the living room

with him for about ten minutes.                  When an officer commented that




                                            5                                     A-0558-14T1
it was a long time to change a diaper, D.M. changed the time to

perhaps only five to ten minutes.

     The detective then asked D.M.            to identify who told the

doctor at the hospital that the child rolled off the bed, or

that either the two-year-old or the four-year-old was around the

baby when the incident occurred.2            D.M. "denied giving anyone

that information[,]" adding that the baby moves a lot but does

not turn over, and that there were no children around the baby.

He and K.F. were in the living room changing the two-year-old

when the baby began to cry in the bedroom, and the four-year-old

was upstairs.

     The detective asked if the parents had spoken to the doctor

separately or together, and D.M. responded that the doctor spoke

to them at the same time.          D.M. did not know how the baby came

to fall from the bed, as they had put him on the bed before and

this had not happened.        D.M. reiterated that the baby's mother

was feeding A.M. in the living room, the baby fell asleep, and

when D.M. needed assistance, she placed the child on the bed

with his head on a pillow.            When asked about his source of

information,    D.M.   said   he   was    repeating   K.F.'s   explanation.

K.F. in turn denied telling anyone that the baby rolled on his

2
  The detective's line of questioning is the first mention in the
record of the child rolling off of the bed.         Both parents
consistently denied reporting that A.M. rolled off the bed.



                                      6                            A-0558-14T1
own, insisting that she only said she found him on the floor

when she got to the bedroom.

      The Division worker returned to the hospital to interview a

third physician, who agreed that the bump on the head and the

bruise on the child's lip could result from the child falling

from the bed.     In the doctor's opinion, however, the child would

have had to have been extremely close to the edge in order to

fall because a child that age cannot roll.

      When the worker went back to the home, she explained to the

parents "that due to the doctors stating that the parent[s']

stories are not consistent as the baby is [twenty-five] days old

and does not have the motor skills to wiggle from the bed to the

floor, a safety plan would have to be implemented."               The worker

instructed K.F. not to be left unsupervised with other children.

On an interim basis, once discharged, A.M. would be placed with

relatives.

      Further on, the SPRU report states that on August 9, the

mother "admitted that she placed the infant close to the edge of

the   bed   and   reported   feeling       sad."   K.F.   was   taken     for    a

screening as a result of concerns that she was feeling suicidal.

      At the end of the SPRU report, the worker stated:

            it is of concern that [D.M.] knew that the
            child was left alone in the bedroom, and
            although he did not place the child onto the
            bed unrestrained, he is equally responsible



                                       7                                A-0558-14T1
          for ensuring his safety and well being and
          failed to do so.    His inaction contributed
          to the child's injury.

          Findings
               The allegations of neglect, inadequate
          supervision against both [the mother] and
          [D.M.] are substantiated as it relates to
          the child. . . .

    The    Division's     expert     in    pediatric   child     abuse,   Nina

Agrawal, M.D., testified at the fact-finding hearing that when

she saw the child on August 8, 2013, she noticed red marks on

the back of the child's head.             On a second examination of the

baby, however, she determined that the marks were caused by the

birth process as their appearance had not changed in between

examinations.

    By August 8, four days after the incident, the child had no

visible   injury   to    his   lip    and    the   bump    had   disappeared.

Although Dr. Agrawal did not see photographs, she read a copy of

the SPRU report.        She also interviewed K.F., who acknowledged

placing the child on the edge of the bed.                 Dr. Agrawal opined

that "it's not probable or not likely that the baby fell off the

bed independently[,]" even if he had been placed on the edge of

the bed unless he was placed "half on half off."

    Dr. Agrawal noted that the child's CAT scan was normal and

a skeletal survey negative for fractures.              She reiterated that

in her opinion a child could not move sufficiently to fall from




                                      8                              A-0558-14T1
the edge of the bed unless placed "half on half off."                          Dr.

Agrawal considered it a bad practice for children to be left on

a bed unattended because of the risk of sudden infant death

syndrome.

    When    the      worker   who    authored   the   SPRU    response    report

testified, she reiterated that K.F. "clarified" that she simply

did not know how the baby fell onto the floor.                It was not until

some days after the incident that K.F. admitted placing the baby

on the edge of the bed.

    At   the    close    of   the    Division's   presentation,     the     judge

asked if the matter was "to be like a burden shifting case[,]"

and Division counsel agreed.            Counsel for the parents opposed

the court's use of the D.T. burden-shifting paradigm, contending

that it was inapplicable.           They urged the court to not shift the

burden of persuasion to the parents because the evidence as to

injury   were   so    weak.     The    Division   had   not    introduced      the

medical records, and when the expert examined the child four

days after the event, having only read the SPRU report, the

child had no sign of injury.

    The judge, after reiterating the facts of D.T., said he

felt compelled to shift the burden to the parents because the

child had an injury which no one admitted to inflicting.                    Since

he was not "convinced that the baby had this injury because the




                                        9                                A-0558-14T1
baby fell off the bed," and the baby was in the care of both

parents, he opined that although he believed the injury "was

probably some kind of accident," it was necessary to shift the

burden to them.

       After   hearing     summations,      defendants   having   elected    to

present no proofs, the judge quoted N.J.S.A. 9:6-8.46(a)(2) to

the effect that injuries constitute prima facie evidence of an

abused or neglected child.           He observed that the "D.T. cases"

are "always difficult" because invariably the burden is placed

"on at least one person who didn't have anything to do with the

injuries to the child."

       The judge credited Dr. Agrawal's testimony that the injury

did not occur as a result of the child falling off the bed.

Recognizing that D.M.'s only "version" of the incident was based

on K.F.'s explanations, since "there was a time where dad [also]

had the baby . . . in the living room[,]" he opined that he

could not determine which parent caused the injury and would not

"get   into    whether   this   is   gross     negligence   versus    ordinary

negligence[.]"       The    judge    applied    the   preponderance    of   the

evidence standard, see N.J.S.A. 9:6-8.46(b), and stated:

              [T]his is different than D.T., but you have
              the same underlying factors that we -- it's
              just we have a limited number of people, two
              people with access to the child with an
              unexplained injury that the child could not




                                       10                             A-0558-14T1
         cause to himself, the medical explanation is
         -- the explanations in the plural by Mom.

              I don't accept, I don't accept them, so
         we don't know how this injury happened. So
         unfortunately, the parents, I need to make a
         finding.   And unfortunately I need to make
         it against both of them because I'm not
         convince[d] again, I don't know how this
         happened.

    On appeal, D.M. raises the following points:

    POINT I:

         THE TRIAL COURT'S FINDING OF ABUSE AND
         NEGLECT SHOULD BE REVERSED BECAUSE IT IS
         BASED ON FACTUAL FINDINGS NOT SUPPORTED BY
         THE RECORD AND DETERMINED UNDER AN IMPROPER
         STANDARD SUCH THAT SUSTAINING THE TRIAL
         COURT'S FINDINGS WOULD RESULT IN A GRAVE
         INJUSTICE.

         A.        The Trial Court Erred in Holding that
                   D.T., supra, Is Applicable in this
                   Case.

         B.        The Trial Court's Ruling Was Not Based
                   On Competent, Material and Relevant
                   Evidence.

         POINT II

         THE   TRIAL  COURT   EMPLOYED AN INCORRECT
         STANDARD TO FIND THAT [D.M.] ABUSED AND
         NEGLECTED [THE INFANT].

                                   II.

    Based     on     Dr.   Agrawal's     testimony,   the   judge      found

sufficient proof to constitute prima facie evidence of abuse or

neglect, and the parents' account of the injury unconvincing.

We review his decision in the context of Title 9's purpose to



                                   11                               A-0558-14T1
protect children "who have had serious injury inflicted upon

them   by    other     than   accidental   means."      Dep't    of   Children    &

Families, Div. of Child Prot. & Perm. v. E.D.-O., 223 N.J. 166,

177 (2015).         It is well-established that determining whether a

parent's      action    constitutes    abuse   or    neglect    requires    close

scrutiny of the totality of the circumstances.                    N.J. Div. of

Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App.

Div. 2011).

       Our review of a trial court's factual findings is limited.

N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278

(2007).       We do not disturb the findings unless "they are so

manifestly unsupported by or inconsistent with the competent,

relevant      and    reasonably   credible     evidence   as    to    offend   the

interests of justice."            Rova Farms Resort, Inc. v. Investors

Ins. Co. of Am., 65 N.J. 474, 484 (1974).               Additionally, because

of "the family court's special jurisdiction and expertise in

family      matters,    appellate   courts     should   accord    deference      to

family court factfinding."            N.J. Div. of Youth & Family Servs.

v. M.C. III, 201 N.J. 328, 343 (2010) (quoting Cesare v. Cesare,

154 N.J. 394, 413 (1998)).

       However, "[w]here the issue to be decided is an 'alleged

error in the trial judge's evaluation of the underlying facts

and the implications to be drawn therefrom,' we expand the scope




                                        12                               A-0558-14T1
of our review."    N.J. Div. of Youth & Family Servs. v. G.L., 191

N.J. 596, 605 (2007) (quoting In re Guardianship of J.T., 269

N.J. Super. 172, 188-89 (App. Div. 1993)).            The trial judge's

legal conclusions, and the application of those conclusions, are

subject to plenary review.      Manalapan Realty, L.P. v. Twp. Comm.

of Manalapan, 140 N.J. 366, 378 (1995).

                                  III.

       Assuming that, by virtue of Dr. Agrawal's testimony, the

Division established that the parents' account of the injury was

unconvincing or otherwise suspect, that factor alone does not

trigger the application of D.T.           The mother never admitted to

being more than careless, but she never denied being the one who

placed the baby on the bed.       She never claimed D.M. was in any

way responsible for the child's injuries.          In contrast to D.T.,

in this case one parent took sole responsibility throughout for

the incident that resulted in the injury.

       D.T. created a paradigm to be applied when "[t]he state of

the proofs [make] it difficult to establish by a preponderance

of the evidence which of the finite group of possible abusers

committed the acts of abuse."       D.T., supra, 229 N.J. Super. at

515.    The opinion was "mindful of" the result the Division was

seeking,   "not   implicating   custody    or   termination   of   parental

rights," only "the limited protective relief for [the infant]




                                   13                              A-0558-14T1
here sought."    Id. at 516. In order for the Division to be able

to fulfill its legislative charge in those rare instances, the

burden would be shifted to the defendants "to come forward and

give their evidence to establish non-culpability."             Id. at 517.

We cited to the "Child Abuse Law" then in effect, intended to

provide "protection of children under [eighteen] years of age

who   have   serious   injury   inflicted   upon   them   by   other   than

accidental means."      Id. at 516 n.2 (quoting N.J.S.A. 9:6-8.8).

In D.T., everyone in "the finite group of possible abusers" who

had access to the child denied responsibility for the sexual

abuse of the infant.       Even the time the injury occurred could

not be pinpointed, other than it happened within twenty-four

hours of the child being examined by a physician.         Id. at 512.

      Moreover, although one member of the panel concurred with

the continuance of "a protective order" for the benefit of the

child, he dissented with regard to the burden-shifting paradigm

because it "might unjustly serve to place guilt upon a parent

for the heinous offense of sexual abuse merely because of the

parents' inability to prove innocence."            Id. at 519 (Shebell,

J., concurring in part and dissenting in part).                Although he

agreed that an adverse inference could be drawn against a parent

who neither presents evidence nor testifies, as is customary in

civil cases, he could not agree with the burden shifting because




                                   14                             A-0558-14T1
it   placed      a   parent      in    the    difficult       position      of   proving       a

negative.     Ibid.

      D.T.'s burden shifting then, an aid to the trier of fact in

the rare outlier case in which more than one person could have

inflicted serious harm upon a child who cannot communicate, was

actually fashioned to enable the Division to continue limited

monitoring of a family.3 Thus                 an       important   distinction        between

D.T. and this case is the result sought by the Division.4

      In D.T. the parents had not presented evidence, which the

court   found        was   a    tactic    possibly        chosen    in     reliance     on    an

earlier   appellate            decision      in    that    same    case.     Id.   at      518.

Despite this, supervision could continue until either a future

hearing     at       which      the    parents         "met   their      burden"      or     the

"demonstration by any party to the satisfaction of the trial

judge, after hearing, that [the child] is in no further danger

of sexual abuse."              Ibid.      Another arguable distinction between

D.T. and this case is that the injury was minor; however, this

3
  This observation has been made by others before us. Fall &
Romanowski, New Jersey Family Law, Relationships Involving
Children § 31:1-5 (2015) (highlighting that the D.T. court
explicitly noted that it merely sought continuing supervision
and not punitive relief or damages).
4
  Title 30 establishes a parallel statutory scheme permitting the
provision of services to ensure a child's health and safety even
absent a finding of abuse or neglect. See N.J.S.A. 30:4C-11 and
12; N.J. Dep't of Children & Families, Div. of Youth & Family
Servs., 214 N.J. 8, 32 (2013).



                                                  15                                  A-0558-14T1
child's extremely vulnerable young age, twenty-five days, makes

any injury a cause for concern.

       In any event, just because the mother's acknowledgment of

responsibility       was   half-hearted,       does    not     make    this     father

guilty.      Nor does the fact both parents were with the child

earlier in the evening make this father responsible.                      From the

time the parents arrived at the hospital until the mother's

statement some days later that she placed the child at the edge

of the bed, both parents agreed that the father had not been in

the    child's     immediate       vicinity   when    the    incident    occurred.

There was no circumstance offered by way of testimony or other

proof that actually contradicted the father's statement.

       All   the   doctors     were    concerned     because    they    opined      the

child's injury could not have occurred as the parents described.

But both parents denied giving these details:                     that either an

older sibling caused the injury, or that the baby rolled off the

bed.    The caseworker who authored the SPRU report agreed that

the parents always denied having given those explanations.

       The judge referred to the doctor's second- and third-hand

version of the parents' statements as the "inconsistencies" that

make the parents suspect.             Regardless of whether that is a fair

characterization      of     the    record,   the     parents    themselves       were

never inconsistent about D.M.'s role.




                                         16                                   A-0558-14T1
    To apply the burden shifting paradigm to a case in which

one parent always claimed responsibility, and no reason existed

to suspect the other of involvement, is a mistake of law.                             The

mother's     story,    repeated   by        the     father,         may     have     been

questionable.    But she always claimed she alone placed the baby

on the bed and left him there.              The parents never wavered from

their assertions that the father was in another room when the

child cried out.

    In D.T., the facts clearly established that abuse occurred.

See D.T., supra, 229 N.J. Super. at 515.                 In contrast, here, the

judge said the injury may have been the result of "some kind of

accident."      The    judge   opined       that    he    did       not   "know      what

happened[,]"    but    the   possibility      that       the    parents      were     not

"quite forthcoming" did not trigger application of D.T.                            It is

always   possible     that   parents    will       lie   when       faced    with     the

Division's     intervention.       More        than      mere       speculation        is

necessary, however, to impose on a parent the burden of proving

a negative, that the parent did nothing wrong.

    The    burden     of   persuasion   should        not      be    shifted       merely

because a trial judge is uncertain regarding the mechanism that

caused the child's injury.        Indeed, that lack of certainty was

the result of the Division's lack of proof as to D.M., and

should not have been resolved by application of the burden-




                                       17                                      A-0558-14T1
shifting paradigm.     Even assuming that Dr. Agrawal's testimony

means that the injury must have been deliberately inflicted,

nothing   in   the   record   suggests   that   the   father   was   the

perpetrator.    Nothing suggested the parent who admitted having

caused the harm was lying about D.M.'s role.

    As a matter of law, given these facts, D.M. should not have

been required to carry any burden under D.T.          The Division did

not otherwise prove by a preponderance of the evidence that D.M.

abused or neglected his child.

    Reversed.




                                  18                           A-0558-14T1
