                                      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                                NOT FOR PUBLICATION WITHOUT THE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-1596-18T4

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

A.M.,

          Defendant,

and

K.B.,

     Defendant-Appellant.
_______________________________

IN THE MATTER OF M.R. and S.B.,

     Minors.
_______________________________

                    Submitted December 16, 2019 – Decided January 31, 2020

                    Before Judges Sabatino and Natali.
            On appeal from the Superior Court of New Jersey,
            Chancery Division, Family Part, Camden County,
            Docket No. FN-04-0105-18.

            Joseph E. Krakora, Public Defender, attorney for
            appellant (Robyn A. Veasey, Deputy Public Defender,
            of counsel; Dana A. Citron, Designated Counsel, on the
            briefs).

            Gurbir S. Grewal, Attorney General, attorney for
            respondent (Melissa H. Raksa, Assistant Attorney
            General, of counsel; Amy Melissa Young, Deputy
            Attorney General, on the brief).

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

PER CURIAM

      K.B. (Kyle), the boyfriend of A.M. (Annie), appeals from a Family Part

determination that he abused or neglected Annie's five-year old child M.R.

(Mindy), and Annie and Kyle's infant son S.B. (Steven).1 After a fact finding

hearing, the court determined that Kyle's conduct on three distinct occasions

"caused a very young child and a medically fragile newborn child to be placed

at substantial risk of harm."




1
  We use pseudonyms for convenience of the reader and to protect the children's
privacy. See R. 1:38-3(d)(12).
                                                                       A-1596-18T4
                                      2
      On appeal, Kyle argues that there was insufficient evidence to support the

trial court's finding of abuse and neglect and that the trial court abused its

discretion by admitting into evidence photographs of Annie's injuries. The Law

Guardian joins defendant in support of his appeal. Having carefully considered

defendant's arguments in light of the record and the applicable legal principles,

we reverse in part and vacate and remand in part, but affirm in part as to an

appealed evidentiary ruling.

                                        I.

      The facts precipitating the three incidents are gleaned from the testimony

and documentary evidence introduced at the fact finding proceeding.

According to Sergeant John Field of the Pine Hill Borough Police Department,

the first incident occurred on February 28, 2016 when an individual flagged

down an officer to report an active domestic dispute at an apartment complex in

the borough where a male individual, later identified as Kyle, forced his way

into Annie's apartment. Initially, there was no answer when the officer knocked

on the apartment door. The officers continued to announce their presence

outside the apartment, which prompted Annie to finally open the door as

additional officers arrived on scene.




                                                                         A-1596-18T4
                                        3
      Annie told the officers that Kyle was not in the apartment and allowed

them to check the premises. Contrary to Annie's assertion, however, the officers

noticed Kyle's legs in the closet of Mindy's bedroom. According to Sergeant

Field, while Mindy remained asleep in the bedroom, the officers "identif[ied]

[themselves] as police officers[,] . . . grabbed each of [Kyle's] hands, . . . pulled

him out, handcuffed him in the hallway, and took him to the living room." Annie

then told officers that Kyle "wasn't supposed to be in the house," and that she

"didn't know how he got into the house." The officers, nevertheless, arrested

Kyle for "obstructing [their] investigation."

      The facts of the second incident are discerned from the testimony of Pine

Hill Police Officer Martin Brennan and Annie, as well as her recorded statement,

and photographs of her injuries. Annie testified that sometime during the early

morning on August 21, 2016, Kyle "started acting crazy and pushed [her] in the

closet . . . saying that someone was attacking him." Annie indicated that Kyle

was high "on something that's not liquor," but she could not readily identify

what substance to which he was under the influence. She further stated that

Kyle bit her in the back multiple times as he held her down on the floor of the

closet. Annie initially stated at trial that Kyle "held [her] in the closet hostage

for a couple of minutes." She later noted, however, that she "[did not] recall


                                                                             A-1596-18T4
                                         4
how long [she was in the closet for], but it seemed like a while" and that it was

"less than an hour." After she "struggled [her] way out and . . . opened the door,"

she proceeded to run to Mindy's room who was sleeping, grabbed her, left the

house, and "hid behind the bushes in [her] apartment complex for like an hour."

      On cross-examination, Annie stated that Mindy was awake while they

were hiding but appeared fine because Annie told her they were "just playing

hide and seek." After Annie reported the incident to police, she filed for a

temporary restraining order against Kyle. According to Annie, Kyle made no

threats towards Mindy or their unborn child, Steven, during the incident.

      Officer Brennan testified that Annie walked into the Pine Hill Police

Station to report the incident. In her recorded statement, Annie told police tha t

Kyle "was tripping on . . . mollies" and that he "restrained [her] and he held [her

in the closet] for like almost an hour and he said that [she] set him up, [she] was

trying to kill him[,] and then he started biting [her, and] he started kicking [her]."

Brennan testified that Annie had visible signs of injuries, including bruising on

her left arm and abrasions on her neck, which he photographed.

      At trial, Kyle's counsel objected to the photographs stating that the

"photographs are totally irrelevant to anything to do with the children" and that

they have "nothing to do with the condition of the children that evening." The


                                                                              A-1596-18T4
                                          5
Law Guardian also objected stating "there has been no testimony by either

[Annie] or the officer that the children ever saw these bruises" and that the

Division has to "demonstrate what the effect is on the children."

         The facts of the third incident are discerned from the testimony of

Sergeant Timothy McElroy and Annie, as well as a separate recorded statement

and additional photographs.       In her recorded statement to police taken on

January 29, 2017, Annie indicated that while she was preparing a bottle for

Steven in the kitchen early that morning, Kyle, who had been drinking,

confronted her about him hearing her "moaning in the recording of [a] song."

After telling Kyle that he was not making any sense, "he punched [her] in the

face."

         According to her statement, Kyle then "pulled out a knife" and "had [her]

in [the] kitchen for . . . almost an hour just saying . . . things over and over, to

tell him the truth about [the moaning he heard] recorded over a song." Annie

told the police that "[t]here was blood all over the floor" and that she "was

dripping blood" from her mouth and neck. Sergeant McElroy took photographs

to document Annie's injuries, which were introduced into evidence again over

Kyle's and the law guardian's objection.




                                                                            A-1596-18T4
                                         6
      Annie told Sergeant McElroy that Kyle "was holding [the knife] in his

hand" and denied that he came at her or made any motions towards her with the

knife. She further reported that Steven "needs medicine [at] certain hours" and

that "he needed medicine at four o'clock and it was already like five [o'clock]

. . . [when she] gave him his medicine."2 Annie testified, however, that before

the altercation, she "kept going back and forth" between the kitchen and Steven's

room as she was "preparing milk for [him] . . . [and] giving [him] his

medication." Annie also stated that after "certain things were going on" in the

kitchen with Kyle, she put Steven down, but "had a baby monitor . . . and kept

checking . . . on [him]."

      In a January 24, 2018 order, the court found that Kyle "placed the children

in imminent danger of a substantial risk of harm by depriving the children,

including a medically fragile infant, of the only functioning reasonable caretaker

on multiple occasions." The court further directed that Kyle be placed on the

child abuse registry.



2
  A portion of the transcript of Annie's recorded statement provided in the record
is noted as "indiscernible." Our restatement of Annie's comment that Steven
"needed medicine at four o'clock and it was already like five [o'clock] . . . [when
she] gave him his medicine" is based on our review of the same recorded
statement considered by the trial court. See State v. S.S., 229 N.J. 360, 374
(2017).
                                                                           A-1596-18T4
                                        7
      In its accompanying oral decision, the court found that Sergeant Field

testified credibly with respect to the February 28, 2016 incident and based on

his testimony, Kyle "essentially[] use[d] a sleeping child as a shield to hide from

the police during a police investigation." The court also determined that Kyle

"didn't think about the impact on [Mindy], if she suddenly woke up to find armed

officers in her bedroom," or "the fear . . . she might have had if they had to draw

their weapons." The court observed that it was fortunate that "there was not a

physical altercation or guns fired as the three police officers entered [Mindy's]

bedroom, found [Kyle] hiding in her closet, ordered him to come out . . . and

arrested him."

      With respect to the August 21, 2016 incident, the court relied on the

testimony of both Officer Martin Brennan and Annie who the court found

"testified credibly about the events of this day." The court accepted Annie's

testimony that Kyle was "tripping on molly," "was agitated, paranoid, and

appeared delusional" when he "kept [Annie] trapped [on] the closet floor for

over an hour," "wrapped his legs around her so that she couldn't leave," "had his

arms around her neck and chest," and "kept kicking her and biting her." The

court emphasized that "[Annie's] testimony on the stand and her taped interview

. . . were almost identical."


                                                                           A-1596-18T4
                                        8
      The court also referenced the pictures Officer Brennan took after the

incident indicating the "extensive bruises, red bite marks, and cuts throughout

[Annie's] back and neck," and noted that Annie was able to escape "[a]fter an

hour or more."    The court concluded that "[Kyle's] actions in beating and

trapping [Annie] on her closet floor caused [her] five-year-old to be without any

care-giver for over an hour that evening," and that it was "undisputed that [Kyle]

deprived [Annie's] five-year-old from having a functioning parent or care-

giver."

      As to the January 29, 2017 incident, the court based its findings on Annie's

testimony, which it emphasized was, again, "almost identical to the statement

that she gave . . . to the Pine Hill Police," as well as the testimony of Sergeant

Timothy McElroy, who the court found "testified credibly" and whose

"testimony was . . . not refuted."

      The court first found that Steven, a "medically fragile infant" who had

recently undergone hernia repair surgery, was present in the apartment during

the event. Based on Annie's testimony, the court further found that Annie

"attended to his extensive medical needs, which included having to be given

medicine at specific times throughout the day and night." The court determined

that Kyle "essentially kept her hostage for about an hour" when he "punched her


                                                                          A-1596-18T4
                                        9
in the face with a closed fist with such force that she . . . still has a scar on her

chin," and "pulled a knife on her and threatened to kill her." Annie "remained

trapped in her kitchen in fear for her life" and "she was not able to give her son

his medicine on time . . . as she was medically instructed to do" or feed him.

      The court determined that "once again, [Kyle] removed the only

functioning care-giver of [Annie's] five-year-old daughter and . . . for their

medically fragile newborn son."        It further found that "[b]oth very young

children were, essentially, left home alone for at least an hour, including the

premature newborn, who had just had surgery and was breathing with the

assistance of an oxygen tank."

      After noting that the defense failed to call any witnesses to dispute the

three incidents, the court relied on N.J. Div. of Child Prot. & Permanency v.

K.G., 445 N.J. Super. 324 (2016), and concluded that "children of such very

young ages need a capable care-giver who can attend to them and to leave them

or cause them to be without a functioning responsible care-giver places them at

significant risk of harm." The court further reasoned that not only was Kyle

"clearly unfit to care for anyone in [h]is paranoid, violent, and under the

influence state," the children "were placed in substantial risk of harm by [Kyle]

on these numerous occasions."


                                                                             A-1596-18T4
                                        10
      Annie regained legal and physical custody of the children on July 24,

2018, and Kyle was awarded weekly supervised visits. The court terminated

litigation on October 30, 2018 and ordered Kyle's visits to remain supervised.

This appeal followed.

                                       II.

      We accord deference to the Family Part's fact-finding in part because of

the court's "special jurisdiction and expertise in family matters." Cesare v.

Cesare, 154 N.J. 394, 413 (1998).      We uphold the court's fact findings if

supported by sufficient, substantial, and credible evidence in the record. N.J.

Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). We defer to

a trial court's factual findings because the judge has had the opportunity to

observe witnesses, weigh their credibility, and develop a "feel of the case." Id.

at 293. However, we will not hesitate to set aside a ruling that is "so wide of

the mark that a mistake must have been made." N.J. Div. of Youth & Family

Servs. v. P.W.R., 205 N.J. 17, 38 (2011) (quoting M.M., 189 N.J. at 279).

      We also accord no deference to the trial court's "interpretation of the law

and the legal consequences that flow from established facts." Manalapan Realty,

L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). The Division

"must prove that the child is 'abused or neglected' by a preponderance of the


                                                                         A-1596-18T4
                                      11
evidence, and only through the admission of 'competent, material and relevant

evidence.'" P.W.R., 205 N.J. at 32 (quoting N.J.S.A. 9:6-8.46(b)).

      The trial court found the Division established abuse or neglect pursuant to

N.J.S.A. 9:6-8.21(c), which declares a child to be abused or neglected if the

child's:

            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 . . . to
            exercise a minimum degree of care . . . (b) 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 . . . .

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

      The purpose of Title Nine is "to protect children 'who have had serious

injury inflicted upon them' and make sure they are 'immediately safeguarded

from further injury and possible death.'" N.J. Div. of Youth & Family Servs. v.

A.L., 213 N.J. 1, 18 (2013) (quoting N.J.S.A. 9:6-8.8(a)). Thus, "[t]he law's

'paramount concern' is the 'safety of the children,' and 'not the culpability of

parental conduct[,]'" and "[t]he focus in abuse and neglect matters . . . is on

promptly protecting a child who has suffered harm or faces imminent danger. "



                                                                           A-1596-18T4
                                         12
Ibid. (citations omitted) (quoting G.S. v. Dep't of Human Servs., 157 N.J. 161,

177 (1999)).

      Courts need not wait for harm to occur, but the Division must present

proof of "'imminent danger or a substantial risk of harm to a child by a

preponderance of the evidence.'" N.J. Dep't of Children and Families v. E.D.-

O., 223 N.J. 166, 178 (2015). In other words, "evidence of actual impairment

will satisfy the statute, but in a case where there is no such proof, the critical

focus is on evidence of imminent danger or substantial risk of harm." A.L., 213

N.J. at 22.

      Also, "[t]o find abuse or neglect, the parent must 'fail . . . to exercise a

minimum degree of care.'" E.D.-O., 223 N.J. at 179 (quoting N.J.S.A. 9:6-

8.21(c)(4)(b)). This requires "'conduct that is grossly negligent because it is

willful or wanton . . . but not necessarily intentional.'" Ibid. (quoting G.S. 157

N.J. at 178). "Willful or wanton" conduct is "done with the knowledge that

injury is likely to, or probably will, result." Ibid. (quoting G.S., 157 N.J. at 178).

It "implies that a person has acted with reckless disregard for the safety of

others." Ibid. (quoting G.S., 157 N.J. at 179). "[T]herefore, the Court held that

'a guardian fails to exercise a minimum degree of care when he or she is aware

of the dangers inherent in a situation and fails adequately to supervise the child


                                                                              A-1596-18T4
                                        13
or recklessly creates a risk of serious injury to that child.'" Ibid. (quoting G.S.,

157 N.J. at 181).

      The determination "is fact-sensitive and must be resolved on a case-by-

case basis." E.D.-O., 223 N.J. at 192. Courts undertaking this analysis "must

avoid resort to categorical conclusions." Id. at 180 (citing Dep't of Children &

Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 309 (2011)).

"Instead of filling in missing information . . . judges must engage in a fact-

sensitive analysis turning on 'particularized evidence.'" N.J. Div. of Child Prot.

& Permanency v. R.W., 438 N.J. Super. 462, 468-71 (App. Div. 2014) (quoting

A.L., 213 N.J. at 28).

                                        III.

      Defendant first argues that "[e]ven assuming the acts of domestic violence

occurred as reported, the evidence . . . is insufficient to establish harm to the

children and cannot support a finding of abuse and neglect," as the Division "did

not prove that the children faced a substantial risk of harm from merely being

present in the home when the incidents occurred." We agree with Kyle and the

Law Guardian with respect to the February 28, 2016 incident but are unable,

without further factual findings from the trial court, to resolve the issues related

to the August 21, 2016 and January 29, 2017 incidents and accordingly vacate


                                                                            A-1596-18T4
                                        14
those portions of the court's January 24, 2018 order and remand for further

proceedings consistent with this opinion.

      As to the first incident, the court found that Kyle "essentially[] use[d] a

sleeping child as a shield" and "did not think about the impact on [Mindy], if

she suddenly woke up to find armed officers in her bedroom," or "the fear . . .

she might have had if they had to draw their weapons." Those findings are

unsupported by the record.

      Because Annie could not recall the February 28, 2016 incident, Sergeant

Field's trial testimony provided the basis for the court's factual findings. He did

not, however, testify directly, nor is it a reasonable inference from his testimony,

that Kyle used Mindy as a shield, or that she was at risk of harm due to Kyle's

presence in the room. And Sergeant Field did not state that Mindy was at risk

of harm based on the police presence in her room while armed or otherwise.

Although Kyle was found hiding in the closet, he was arrested and removed from

Mindy's room without incident and without waking her. Consequently, the

court's determination that Mindy was placed in imminent danger or exposed to

a substantial risk of harm as a result of Kyle's conduct on February 28, 2016 is

so "inconsistent with the competent, relevant and reasonably credible evidence

as to offend the interests of justice," that it must be reversed. See Griepenburg


                                                                            A-1596-18T4
                                        15
v. Twp. of Ocean, 220 N.J. 239, 254 (2015) (quoting Rova Farms Resort v.

Investors Ins. Co., 65 N.J. 474, 484 (1974)); Pioneer Nat'l Title Ins. Co. v. Lucas,

155 N.J. Super. 332, 338 (App. Div.), aff'd o.b., 78 N.J. 320 (1978).

      The court's factual findings related to the August 21, 2016 and January

29, 2017 incidents present a different challenge to our usually deferential

standard of review. Specifically, the court's findings do not address those

portions of Annie's testimony at the fact-finding proceeding that contradicted

her earlier statements to the police.

      With respect to the August 21, 2016 incident, the court found based on

Annie's and Officer Brennan's credible testimony that Annie was restrained for

"an hour or more." That conclusion was based on the statement Annie gave to

police. Annie stated at trial, however, that Kyle "held [her] in the closet hostage

for a couple of minutes" and admitted that she "[did not] remember how long

. . . [as she] was just trying to get out of there." The court's oral opinion does

not reconcile this conflicting evidence and, in fact, incorrectly characterized

Annie's recorded statement and her trial testimony as "identical." This is not an

insignificant discrepancy as the court relied on the length of time Annie was

restrained in the closet when it determined Kyle effectively rendered Mindy

unsupervised, and hence at a risk of harm, by removing Annie as a caretaker.


                                                                            A-1596-18T4
                                        16
      Similarly, with respect to the January 29, 2017 incident, the court's claim

that both children "were, essentially, left home alone for at least an hour" as a

result of Kyle's conduct is also contrary to Annie's testimony at the fact finding

proceeding. Although Annie told the police Kyle punched her in the face,

"pulled out a knife," and "had [her] in the kitchen for . . . almost an hour," at the

fact-finding proceeding she stated that during the incident she "kept going back

and forth" between the kitchen and Steven's room and was already "giving [him]

his medication." Annie also emphasized that after the incident began, she put

Steven down, had a baby monitor, and continued to check on him. It is clear

from these portions of the transcripts that contrary to the court's characterization,

Mindy's version of events as recounted on her police statement and testimony

was not "identical."

      On remand, the court should issue additional factual findings addressing

the aforementioned discrepancies and should also address whether the court 's

amended factual findings alter its conclusion that the Division satisfied its

burden to establish that the children were placed in imminent danger or

substantial risk of harm by Kyle's acts of domestic violence on August 21, 2016

and January 29, 2017. N.J. Div. of Child Prot. & Permanency v. Y.N., 222 N.J.

308, 309 (2015); A.L., 213 N.J. at 22; see also N.J.S.A. 9:6-8.46. Specifically,


                                                                             A-1596-18T4
                                        17
the court should clarify its findings regarding the circumstances surrounding the

August 21, 2016 and January 29, 2017 incidents, including, but not limited to,

the clear dispute regarding the length of time during which the events transpired

and the attendant risk of harm, if any, to the children. With respect to the

January 29, 2017 incident, the court should also resolve whether Annie was able

to attend to Steven's needs and if any delay in providing medical care or

medicine led to a substantial risk of harm or imminent danger. Finally, to the

extent the court accepts Annie's version of the events based on her recorded

statement as opposed to her testimony at the fact-finding proceeding to support

its amended findings, the court should make that finding, and the bases for it,

clear. We leave the scope of the remanded proceedings to the discretion of the

trial court.

                                           IV.

       Because we are remanding the matter for additional factual findings

related to the August 21, 2016 and January 29, 2017 incidents, we address Kyle's

argument that the court committed reversible error when it admitted into

evidence photographs of Annie's injuries. We disagree with Kyle that the court

abused its discretion when it admitted and considered the photographs as they

were clearly relevant and not unduly prejudicial.


                                                                         A-1596-18T4
                                      18
      "[I]n reviewing a trial court's evidential ruling, an appellate court is

limited to examining the decision for abuse of discretion." Hisenaj v. Kuehner,

194 N.J. 6, 12 (2008). Under that standard, "[c]onsiderable latitude is afforded

a trial court in determining whether to admit evidence," and "an appellate court

should not substitute its own judgment for that of the trial court, unless 'the trial

court's ruling was so wide of the mark that a manifest denial of justice resulted.'"

New Jersey Div. of Child Prot. & Permanency v. N.T., 445 N.J. Super. 478, 492

(App. Div. 2016).

      Photographic evidence is usually admissible as demonstrative proof,

assuming it is relevant, N.J.R.E. 401; fairly and accurately depicts the subject

matter at the time of the event in question, Spedick v. Murphy, 266 N.J. Super.

573, 590 (App. Div. 1993); is properly authenticated or verified as a true

representation, Garafola v. Rosecliff Realty Co., 24 N.J. Super. 28, 42 (App.

Div. 1952); and is not otherwise unduly prejudicial, confusing, misleading or

wasteful of time. N.J.R.E. 403.

      N.J.R.E. 401 defines "relevant evidence" as "evidence having a tendency

in reason to prove or disprove any fact of consequence to the determination of

the action." Courts consider evidence to be probative when it has a tendency

"'to establish the proposition that it is offered to prove.'" Wymbs ex rel. Wymbs


                                                                             A-1596-18T4
                                        19
v. Twp. of Wayne, 163 N.J. 523, 534 (2000) (quoting Green v. New Jersey Mfrs.

Ins. Co., 160 N.J. 480, 492 (1999)). The evidence must be probative of a fact

that is "really in issue in the case," as determined by reference to the applicable

substantive law. State v. Buckley, 216 N.J. 249, 261 (2013) (quoting State v.

Hutchins, 241 N.J. Super. 353, 359 (App. Div. 1990)).

      Under N.J.R.E. 401, "[e]vidence need not be dispositive or even strongly

probative in order to clear the relevancy bar." Buckley, 216 N.J. at 261. "The

proponent need not demonstrate that the evidence can, in and of itself, establish

or disprove a fact of consequence in order to meet the benchmark of N.J.R.E.

401." State v. Cole, 229 N.J. 430, 448 (2017). "Once a logical relevancy can

be found to bridge the evidence offered and a consequential issue in the case,

the evidence is admissible, unless exclusion is warranted under a specific

evidence rule." Burr, 195 N.J. at 127; see N.J.R.E. 402.

      Here, the photographs clearly cross the low evidentiary bar of N.J.R.E.

401. The photographs were relevant, and not unduly prejudicial, because they

informed the court of the extent of the domestic abuse and the degree to which

Annie was incapacitated by Kyle in the closet and kitchen and to the degree the

children may have been rendered unsupervised. Further, although the court did

not expressly cite N.J.R.E. 403, we glean from the court's comments that the


                                                                           A-1596-18T4
                                       20
photographs "somewhat relat[e] to the issue at hand" and the weight it would

give was "yet to be determined" that it considered the prejudicial impact of those

proofs. Finally, here there was no jury, and an experienced judge "is much less

likely to be prejudiced by [its] admission than a one-case, fact-finding jury

would be." In re Commitment of R.S., 339 N.J. Super. 507, 539 (App. Div.

2001).

                                       V.

      Nothing in our decision should be interpreted as excusing Kyle's conduct

during any of the three incidents or minimizing its significance. In that regard,

we note the availability of potential relief under the Prevention of Domestic

Violence Act of 1991, N.J.S.A. 2C:25-17 to -35, or the Criminal Code for those

actions. Here, however, we are charged with analyzing the issues under Title

Nine, where our primary concern is the "safety of . . . children," and "not the

culpability of parental conduct." A.L., 213 N.J. at 18, and where courts must

"engage in a fact-sensitive analysis" based on competent evidence and cannot

"fill[] in missing information." See R.W., 438 N.J. Super. at 468-71 (quoting

A.L., 213 N.J. at 28).

      Reversed in part, vacated and remanded in part, and affirmed in part as to

the photographic evidence. We do not retain jurisdiction.


                                                                          A-1596-18T4
                                       21
