DCPP VS. L.T. IN THE MATTER OF L.T., JR.DCPP VS. L.T., TY.F, E.S. AND TA.F. IN THE MATTER OF L.T. AND L.T., JR. (FN-04-376-14 AND FN-04-523-14, CAMDEN COUNTY AND STATEWIDE)(CONSOLIDATED)(RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-4814-14T2
A-4950-14T2
A-4951-14T2
A-4952-14T2
A-4953-14T2
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
L.T.,
Defendant-Appellant.
___________________________
IN THE MATTER OF L.T., Jr.,
A Minor.
____________________________
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
L.T., TY.F., E.S. AND TA.F.,
Defendants-Appellants.
_____________________________
IN THE MATTER OF L.T. and
L.T., Jr.,
Minors.
_____________________________________________________
Submitted March 28, 2017 – Decided July 7, 2017
Before Judges Messano, Espinosa and Grall.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part, Camden
County, Docket Nos. FN-04-523-14 and FN-04-
376-14.
Joseph E. Krakora, Public Defender, attorney
for appellants (Lora B. Glick, Designated
Counsel for appellant L.T. in A-4814-14 and
A-4950-14, on the briefs; Susan M.
Markenstein, Designated Counsel for appellant
Ty.-F. in A-4951, on the briefs; John A.
Salois, Designated Counsel for appellant E.S.
in A-4952-14, on the briefs; Marina Ginzburg,
Designated Counsel for appellant Ta.F. in A-
4953-14, on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Melissa Dutton
Schaffer, Assistant Attorney General, of
counsel; Angela N. Domen, Deputy Attorney
General, on the briefs).
Joseph E. Krakora, Public Defender, Law
Guardian for minors (Melissa R. Vance,
Assistant Deputy Public Defender, on the
briefs).
PER CURIAM
In A-4814-14, following a fact-finding hearing, see N.J.S.A.
9:6-8.44, the Family Part judge entered her December 2014 order
concluding defendant, L.T. (Larry), had abused his newborn son,
2 A-4814-14T2
L.T. Jr. (Larry Jr.).1 Larry appeals, arguing the judge misapplied
the burden-shifting paradigm we enunciated in In re D.T., 229
N.J. Super. 509 (App. Div. 1988), and plaintiff, the Division of
Child Protection and Permanency (the Division), otherwise failed
to prove by a preponderance of "competent, material and credible
evidence" that defendant abused Larry Jr.
For purposes of issuing a single opinion, we now consolidate
A-4814-14 involving abuse of Larry Jr., with four previously
consolidated appeals involving abuse of Larry's daughter L.T.
(Lucy) and challenging the Family Part's July 21, 2014 order
following a fact-finding hearing. The same Family Part judge
heard that case and concluded Larry, and defendants Ty.F. (Tori),
Lucy's mother, Ta.F. (Teresa), Lucy's grandmother and Tori's
mother, and E.S. (Emily), Lucy's great-grandmother and Tori's
grandmother, physically abused Lucy. Those appeals also raise
issues regarding our holding in D.T.
In Larry's appeal concerning Lucy, A-4950-14, he reiterates
the arguments made in his other appeal and further contends the
judge erroneously admitted evidence as to Larry, Jr., during the
fact-finding hearing involving Lucy. In A-4951-14, Tori argues
the judge misapplied D.T., the Division's evidence was
1
We use initials and pseudonyms to keep the parties' identities
confidential. R. 1:38-3(d)(12).
3 A-4814-14T2
insufficient, and, on both constitutional and procedural grounds,
the judge should have excluded evidence from an interview Tori
gave during the criminal investigation into Lucy's physical abuse.
In A-4952-14, Emily argues the judge misapplied D.T., and the
evidence was otherwise insufficient. Lastly, Teresa makes similar
arguments in A-4953-14.
The Division urges us to affirm the order entered in each
proceeding against all defendants. Larry Jr.'s Law Guardian urges
us to affirm the order under review in A-4814-14; Lucy's Law
Guardian similarly urges us to affirm the order under review in
the other appeals.
As to A-4814-14
I.
The Division was already investigating Larry in connection
with injuries to Lucy when Larry Jr. was born on February 1, 2014.
At the time, Larry was living with the child's mother, K.L. (Kate),
in a home with Kate's biological mother L.L. (Linda), and Linda's
husband, D.M. (Donald). On February 21, Kate executed the
Division's safety plan and moved with Larry Jr. from Camden to
Glassboro to live with her adoptive mother, D.B. (Denise). 2 Two
2
The Division amended its complaint against Larry and Kate to
include eventually Linda, Donald and Denise as defendants.
4 A-4814-14T2
days later, Kate called 9-1-1 when Larry Jr. exhibited symptoms
of a seizure. A skeletal survey revealed that the child had
suffered several rib fractures at various stages of healing. The
Division effectuated an emergency removal and filed a verified
complaint seeking care, custody and supervision of Larry Jr.
The Division's investigation3 revealed that, before emergency
medical technicians arrived in response to the 9-1-1 call, Kate
sought assistance from her neighbor, a nurse. The nurse
administered cardiopulmonary resuscitation (CPR) to Larry Jr.
Larry told the Division's caseworkers that he had not seen his son
since the Division implemented the safety plan. He acknowledged
usually bathing Larry Jr. every other day, but denied any knowledge
of how the child's injuries occurred. Larry questioned whether
the administration of CPR could have been the cause.
At the fact-finding hearing, Dr. Kathryn McCans testified as
an expert in child abuse pediatrics and pediatric emergency
medicine. She explained that the skeletal survey showed no fewer
than seven definitive rib fractures and two other areas of concern.
3
After conducting its investigation, the Division concluded that
child abuse was "not established." See N.J. Div. of Child Prot.
& Permanency v. V.E., 448 N.J. Super. 374, 388-89 (App. Div. 2017)
(explaining the Division's regulatory scheme in this regard). At
the fact-finding hearing, a caseworker explained this
determination reflected the Division's inability to decide who had
inflicted Larry Jr.'s injuries.
5 A-4814-14T2
Dr. McCans opined that a single event could not have caused the
fractures because they were at various stages of healing, nor did
the administration of CPR or the birth process cause these
injuries.
However, the doctor could not say with precision when any of
the fractures occurred, although she classified one displaced
fracture as acute, that is, having occurred "very recently" before
the time of examination. Dr. McCans acknowledged that this
fracture may have been caused during the administration of CPR,
but stated it was unlikely that the "two-finger" method used by
the nurse-neighbor would have caused the injury. Dr. McCans opined
that the fractures occurred at some point during the "three to
three and a half week time frame" marked by the infant's "whole
life span."
The doctor concluded the most likely cause was physical abuse,
pointing to the number of fractures sustained at different times,
the lack of any satisfactory explanation in the history recounted
by the child's caregivers, and the unlikelihood of alternative
causes. She opined it was unlikely that any of the injuries were
caused accidentally.
After conclusion of the Division's case and following her
rejection of defense arguments that the injuries were caused by
accident or during the administration of CPR, and citing D.T., the
6 A-4814-14T2
judge said, "I am going to shift the burden . . . because I find
that the Division has . . . established a prima facie case that
this is . . . child abuse . . . ." Kate and Donald then testified;
Larry did not.
Kate testified about her history of domestic violence with
Larry. She denied causing any injuries to Larry Jr. or knowing
how they occurred. Kate stated Larry Jr. was usually in her care,
and that she left the child three times with Larry or Linda. Kate
said Donald never held the child nor was Larry Jr. left alone with
Donald.
Donald testified he never held Larry Jr., nor cared for him.
However, he recalled one occasion when the child was left alone
with Larry in the bedroom while Kate was at church. Donald and
Linda heard an unusual cry from the child, and Linda knocked on
the closed bedroom door to check. Larry assured them there was
no problem, although Donald claimed Larry Jr. continued to cry for
several minutes.
In her oral opinion that followed the hearing, the judge
reviewed the testimony, finding Dr. McCans to be credible and
concluding Larry Jr.'s injuries were "of a non-accidental nature
and were caused by . . . someone." The judge declared this was
"a classic burden shifting case." The judge found Kate's testimony
credible, and noting Larry's involvement in the abuse and neglect
7 A-4814-14T2
matter regarding his other child, found it "quite interesting"
that Kate quickly left with her son and moved in with Denise in
Glassboro. The judge also credited Donald's testimony.
She concluded the Division had not proven its case against
Kate, Donald and Denise. However, the judge found "the Division
ha[d] sustained its burden with respect to . . . [Linda and
Larry]." (Emphasis added). Noting Larry Jr. suffered all of
these "non-accidental" injuries within a short period, the judge
found "the Division ha[d] proven its case" that Linda and Larry
"were two caretakers who were left alone with this child or left
to care for this child when these injuries occurred." The judge
entered the order under review confirming those findings.
II.
"In general, 'Title 9 controls the adjudication of abuse and
neglect cases.'" N.J. Div. of Child Prot. & Permanency v. E.D.-
O., 223 N.J. 166, 177 (2015) (quoting N.J. Div. of Youth & Family
Servs. v. M.C. III, 201 N.J. 328, 343 (2010)). Title Nine defines
an "abused or neglected child" as one under the age of 18 whose
physical, mental, or emotional condition has
been impaired or is in imminent danger of
becoming impaired as the result of the failure
of his parent or guardian . . . to exercise a
minimum degree of care . . . in providing the
child with proper supervision or guardianship,
by unreasonably inflicting or allowing to be
inflicted harm, or substantial risk thereof,
8 A-4814-14T2
including the infliction of excessive corporal
punishment . . . .
[N.J.S.A. 9:6-8.21(c)(4)(b).]
In these matters, our standard of review is "strictly
limited." N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J.
Super. 551, 577 (App. Div. 2010). "[A]ppellate courts 'defer to
the factual findings of the trial court because it has the
opportunity to make first-hand credibility judgments about the
witnesses who appear on the stand; it has a feel of the case that
can never be realized by a review of the cold record.'" M.C. III,
supra, 201 N.J. at 342-43 (quoting N.J. Div. of Youth & Family
Servs. v. E.P., 196 N.J. 88, 104 (2008)). Moreover, "[b]ecause
of the family courts' special jurisdiction and expertise in family
matters, appellate courts should accord deference to family court
factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998). We owe
no deference, however, to the judge's legal conclusions. N.J.
Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 183 (2010).
"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 & Family Servs. v.
S.S., 275 N.J. Super. 173, 179 (App. Div. 1994). As a result,
Title Nine provides:
9 A-4814-14T2
[P]roof 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).]
"D.T. created a paradigm to be applied when '[t]he state of the
proofs [makes] it difficult to establish by a preponderance of the
evidence which of the finite group of possible abusers committed
the acts of abuse.'" N.J. Div. of Child Prot. & Permanency v.
K.F., 444 N.J. Super. 191, 201 (App. Div. 2016) (alteration in
original) (quoting D.T., supra, 229 N.J. Super. at 515)).
In D.T., supra, 229 N.J. Super. at 512, the evidence clearly
established that the four-month-old child was sexually assaulted
most likely during the twenty-four hours before examination by a
doctor. At various times during that period, she was in the care
and custody of her two parents; her great aunt, great uncle, and
two cousins; or a family friend, the friend's husband and their
two grandchildren. Id. at 511-12. In reversing the trial court's
dismissal of the Division's complaint, the majority of the panel
analogized the circumstances to those presented in Anderson v.
Somberg, 67 N.J. 291, 298-99, cert. denied, 423 U.S. 929, 96 S.
Ct. 279, 46 L. Ed. 2d 258 (1975), and held where
10 A-4814-14T2
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.
[D.T., supra, 229 N.J. Super. at 517 (emphasis
added).]
Twenty years later, we took a step back from D.T. in Division
of Youth & Family Services v. J.L., 400 N.J. Super. 454, 457-59
(App. Div. 2008), a case in which the three-and-one-half-month-
old child suffered multiple fractures on different occasions. In
J.L., the defendants offered that persons other than the parents
had access to the child and substantial medical evidence. Id. at
457-59, 464-66. The trial judge credited the defense expert's
opinions that the child's pre-existing medical conditions
increased the likelihood of fractures. Id. at 464-67. Although
the judge indicated at the conclusion of the Division's case that
the burden of proof had shifted to the defendant-parents pursuant
to D.T., she "allowed the burden of proof to remain on the Division
and concluded that the Division did not prove by a preponderance
of the evidence that either parent abused [the child]." Id. at
466.
11 A-4814-14T2
We noted that "[h]ere, unlike in D.T., the circumstances do
not fit the Anderson v. Somberg burden-shifting paradigm." Id.
at 469. Instead,
[i]n a case such as this, where the child is
exposed to a number of unidentified
individuals over a period of time, and it is
unclear as to exactly where and when the
child's injuries took place, traditional res
ipsa loquitur principles apply. This means
that once the Division establishes a prima
facie case of abuse or neglect under N.J.S.A.
9:6-8.46a(2), the burden will shift to the
parents to come forward with evidence to rebut
the presumption of abuse or neglect. Unlike
the rule set forth in D.T., the burden of proof
will not shift to the parents to prove their
non-culpability by a preponderance of the
evidence. The burden of proof will remain on
the Division.
[Id. at 470 (emphasis added).]
We affirmed, concluding the judge's factual findings were well
supported by the record, and the defendants successfully overcame
the presumption under N.J.S.A. 9:6-8.46(a)(2). Id. at 473.
In this case, Larry argues the judge erroneously shifted the
burden of proof under D.T. because numerous people had access to
Larry Jr. and the evidence failed to identify with any precision
when the injuries occurred. However, Larry concedes that, as in
J.L., traditional notions of res ipsa loquitur would then apply
to the facts of this case.
12 A-4814-14T2
We agree that the burden shifting, or "conditional" res ipsa
loquitur approach, utilized by D.T. does not apply to this case.
Larry Jr.'s injuries occurred over the course of his short
lifetime, and Dr. McCans could not opine as to when they were
inflicted. However, as in J.L., traditional notions of res ipsa
loquitur applied here.
Although the judge in this case stated she was shifting the
burden of proof under D.T., like the trial judge in J.L. she
actually reviewed the evidence as to each of the five defendants
and considered whether the Division had met its burden of proof
as to each one. In other words, the judge did not decide the case
based upon whether the defendants had "come forward and giv[en]
their evidence to establish non-culpability." D.T., supra, 229
N.J. Super. at 517 (emphasis added) (citing Anderson, supra, 67
N.J. at 298-99). As a result, we find no legal error requiring
reversal.
Larry further argues the evidence was insufficient to
establish he abused Larry Jr., but we disagree. The judge found
that on the few occasions that Kate left Larry Jr. alone, it was
with Larry or Linda. She credited Donald's testimony about the
one occasion where the child was alone with Larry behind a closed
bedroom door, and Donald and Linda heard a strange cry from Larry
Jr., followed by several minutes of crying. Additionally, Larry
13 A-4814-14T2
admitted to being the one who bathed Larry Jr. every other day,
and, while he offered two rationales for how the fractures might
have occurred, Dr. McCans rejected both as likely causes.
In short, we accord deference to the trial judge's findings,
including her express credibility determinations regarding the
testimony of Dr. McCans, Kate and Donald. See E.P., supra, 196
N.J. at 104. We therefore affirm.
As to A-4950-14; A-4951-14;A-4952-14; and 4953-14
I.
Lucy was born to Tori and Larry in August 2013. The child
lived with Tori; Teresa; Teresa's two children, ages seventeen and
thirteen; and Emily, in Emily's home. Larry was living at the
time with his mother and uncle.
On November 15, 2013, Larry and Tori brought Lucy to the
emergency room because of redness, swelling and a possible cut on
the child's tongue. Tori left to go to work, but Larry stayed
while Dr. McCans examined Lucy. The doctor noted a marked decrease
in Lucy's weight since she was last seen less than one month
earlier. A skeletal survey and CT scan revealed Lucy had suffered
numerous bilateral fractures to her ribs and clavicles at various
stages of healing, injuries which Dr. McCans believed were the
result of physical abuse.
14 A-4814-14T2
Division caseworkers interviewed all four defendants. In
addition, detectives from the Camden County Prosecutor's Office
opened a parallel criminal investigation into Lucy's suspected
abuse and questioned Tori and Larry. Larry explained to
investigators that Tori was primarily responsible for the child's
care, and that either he or Emily would watch her while Tori was
at work, though he had been caring for Lucy more often recently,
since he lost his job. Larry visited Lucy every day, usually
arriving in the morning, taking her with him to his uncle's house
and then bringing her home at night. Larry denied causing any of
Lucy's injuries and implied one of Teresa's children or Emily may
have caused them.
Tori told caseworkers she was unaware of what could have
caused Lucy's fractures. She claimed Larry only visited the child
at Emily's house "once in a blue," because Emily did not like him,
and Larry had not seen Lucy for about a week prior to her admission
to the hospital. Emily usually watched the baby when Tori was at
work.
At the outset of the criminal interview, detectives advised
Tori of her Miranda4 rights, which she waived before questioning
began. She initially denied any knowledge of how the fractures
4
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
15 A-4814-14T2
occurred. However, after being repeatedly pressed by detectives,
who also offered help for the family, Tori said she may have caused
the fractures accidentally "by holding [Lucy] too tight."
When interviewed by caseworkers, Emily corroborated that she
usually watched Lucy and stated she had no concerns with Tori's
parenting abilities. Emily said Larry was not allowed at her
house. Teresa likewise confirmed that Larry did not visit every
day, as he claimed, noting she had recently asked him, at Emily's
request, to restrict his visits only to certain hours in the
afternoon. Lucy had never stayed overnight with Larry outside the
home. Neither Emily nor Teresa knew how the child's injuries had
occurred.
At the fact-finding hearing, Dr. McCans was the only witness
called by the Division. She described Lucy's appearance on
examination as "small and thin" and recalled observing swelling
and ulceration under her tongue, likely the result of blunt force
trauma. The decrease in the child's weight since her prior check-
up caused Dr. McCans to consider the possibility of nutritional
neglect.
Dr. McCans concluded, based on the different stages of
healing, that the fractures had occurred over time rather than in
a single event. However, she could not "pinpoint" precisely when
any of them had occurred, explaining that a young infant's
16 A-4814-14T2
relatively rapid rate of healing precluded reaching such a
determination with sufficient accuracy. Dr. McCans concluded,
based on the number of injuries, Lucy's age, and lack of other
explanation, that the child's injuries were "diagnostic of non-
accidental trauma or child physical abuse."
At the close of Dr. McCans's testimony, the Division asked
the judge to shift the burden of proof to defendants under our
holding in D.T. Defendants objected, arguing other individuals
not named in the complaint had access to Lucy. Additionally,
Larry's counsel specifically argued D.T. was inapposite and the
facts in this case were more similar to the facts in J.L.
The judge agreed with the Division that the burden of proof
should shift to defendants under D.T. She distinguished J.L.,
noting there was no evidence that Lucy was restrained excessively
during the diagnostic procedures, nor was there any evidence that,
like the child in J.L., Lucy suffered from a pre-existing condition
making her more susceptible to fracture.5
After the judge had conducted an in camera review of Dr.
McCans' expert report regarding Larry Jr.'s injuries, and over
Larry's objection, she ruled that a redacted portion of the report
could be introduced. Emily then recalled Dr. McCans as a witness,
5
At the time, Kate was a defendant in the case. The judge granted
Kate's motion and dismissed the complaint as to her.
17 A-4814-14T2
and she described the multiple fractures Larry Jr. suffered and
her opinion that they were the result of physical abuse.
Teresa testified that she did not cause Lucy's injuries and
she had no idea how they occurred. Teresa noted her contact with
the child was limited, since she was in school, also worked and
frequently did not come home until late at night. Teresa claimed
that Emily or Larry watched the baby while Tori was at work.
At the conclusion of the hearing, in an oral opinion, the
judge found Dr. McCans to be a credible witness and accepted the
doctor's opinions that Lucy's injuries were not caused
accidentally. The judge concluded all four defendants had been
Lucy's caretakers.
The judge also determined that none of the defendants had
carried his or her burden of proof and demonstrated he or she was
not culpable. She noted Tori offered no evidence and her statement
to detectives failed to exonerate her. The judge also stated
Larry failed to present any evidence regarding his non-
culpability. The judge found Teresa was not a credible witness
and failed to present any other evidence exonerating herself. As
to Emily, the judge acknowledged Dr. McCans' testimony and report
regarding the physical abuse of Larry Jr., but she concluded Emily
had "not sustained her burden and set forth any proof that she is
not a culpable defendant." The judge entered a conforming order.
18 A-4814-14T2
II.
As noted, all four defendants contend the judge erred in
shifting the burden of proof to each of them under our holding in
D.T. Defendants argue other people, for example Teresa's children,
also had access to Lucy, and Dr. McCans could not identify with
precision when the abuse occurred. Larry specifically argues
that, similar to the factual circumstances of J.L., traditional
notions of res ipsa loquitur should have applied, and the burden
of proof should never have shifted to defendants. We agree.
As we cautioned in D.T., supra, 229 N.J. Super. at 517
(emphasis added), the burden of proof is shifted to defendants in
a Title Nine action in very limited circumstances, i.e., when "a
limited number of persons[] each ha[d] access or custody of a baby
during the time frame when . . . abuse concededly occurred, no one
else ha[d] such contact[,] and the baby [was and remains] helpless
to identify [its] abuser." Here, unlike D.T. where the sexual
abuse of the child occurred within a 24-hour period, Dr. McCans
could only opine that Lucy suffered multiple injuries over her
three-month lifespan. The circumstances here were more like those
in J.L.
The judge explicitly rejected J.L.'s application, finding
that unlike the facts in that case, Lucy had no pre-existing
medical condition that made her susceptible to fractures and there
19 A-4814-14T2
was no evidence the child was restrained during the diagnostic
procedures. However, those facts, while present in J.L., were not
determinative. Rather, we concluded the principles of traditional
res ipsa loquitur apply "where the child is exposed to a number
of unidentified individuals over a period of time, and it is
unclear as to exactly where and when the child's injuries took
place." J.L., supra, 400 N.J. Super. at 470. This was such a
case.
We therefore reverse the order under review and remand the
matter to the trial court for consideration of the evidence under
the appropriate standard. Because the parties relied upon the
judge's interlocutory decision during the fact-finding hearing,
and because we have now clarified what standard should apply in
this case, we leave to the trial judge's discretion whether the
Division and defendants may introduce additional evidence.
III.
We briefly comment on two issues to provide guidance on
remand.
Tori contends the judge erred by admitting in evidence the
statement she gave to law enforcement. She contends that the
failure to allow her an opportunity to retain counsel in the Title
Nine matter prior to being questioned in the criminal matter
20 A-4814-14T2
deprived her of due process, and her apparent waiver of the right
to counsel at her interview was neither knowing nor voluntary.
Tori never raised these issues before the trial judge and we
refuse to consider them now. State v. Robinson, 200 N.J. 1, 20
(2009). We express no opinion about the merits of these arguments
if raised on remand.
Lastly, Larry argues the judge erred in admitting Dr. McCans'
testimony and redacted report regarding her findings of the
physical abuse of Larry Jr. He argues the judge should have
analyzed the evidence under N.J.R.E. 404(b) and, applying that
reasoning, the evidence should have been excluded because "its
probative value [was] substantially outweighed by the risk of
. . . undue prejudice . . . ." N.J.R.E. 403(a). We note that the
judge never considered the evidence of Larry Jr.'s abuse as
evidence of Larry's culpability in this case; she only considered
and rejected the evidence as exculpating Emily.
Title Nine explicitly states that "[i]n any hearing under
this act, . . . proof of the abuse or neglect of one child shall
be admissible evidence on the issue of the abuse or neglect of any
other child of, or the responsibility of, the parent or guardian."
N.J.S.A. 9:6-8.46(a)(1). In I.H.C., supra, 415 N.J. Super. at
573, we "h[eld] that in civil proceedings for the protection of a
child, a parent or guardian's past conduct can be relevant and
21 A-4814-14T2
admissible in determining risk of harm to the child." Citing
N.J.S.A. 9:6-8.46(a)(1) we said, "the statute itself provides for
admissibility of evidence about other children." Ibid. We held
"that where expert testimony in an abuse or neglect case provided
support for a finding that [the] defendant's prior acts of domestic
violence show his disposition to commit such violence, the court
should have admitted that evidence in assessing risk of harm to
the children." Id. at 576.
However, we hastened to add "[o]ur conclusion does not mean
that N.J.R.E. 404(b) should never be applied in abuse or neglect
cases to determine admissibility of other crimes or bad acts
evidence." Id. at 576 (citing N.J. Div. of Youth and Family Servs.
v. H.B., 375 N.J. Super. 148, 181 (App. Div. 2005)). In H.B., we
implicitly approved application of N.J.R.E. 404(b) to consider
whether the defendant's conviction for sexual abuse of a child
twelve years earlier would be relevant in the current Title Nine
litigation, in which the defendant was accused of sexually abusing
his stepdaughter. H.B., supra, 375 N.J. Super. at 176, 180-81.
In a case such as this, where the evidence of Larry Jr.'s
abuse was potentially relevant to prove the "identity" of Lucy's
abuser, or perhaps the "absence of mistake or accident" as a cause
of her injuries, N.J.R.E. 404(b), the judge should analyze the
evidence under the "standards for admissibility articulated by our
22 A-4814-14T2
Supreme Court in State v. Cofield, 127 N.J. 328, 338 (1992)."
H.B., supra, 375 N.J. Super. at 181 (citation modified).
In sum, we affirm the order in A-4814-14. In A-4950-14, A-
4951-14, A-4952-14 and A-4953-14, we reverse and remand for further
proceedings consistent with this opinion. We do not retain
jurisdiction.
23 A-4814-14T2