The family court first determined that DCPP had proven that Gabriel had been abused and neglected and that his parents had been his sole caretakers when he suffered his injuries. Relying on In re D.T., 229 N.J. Super. 509, 517, 552 A.2d 189 (App. Div. 1988), and the doctrine of conditional res ipsa loquitur, the court then held that the burden of persuasion had shifted to each of the parents to establish that they were not culpable. Finding that Jenny and George had not satisfied their burden, the court concluded that DCPP had proven by a preponderance of the evidence the charges of abuse and neglect against the parents.

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, 552 A.2d 189 (App.Div.1988). We agree and reverse.

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, L.T. Jr. (Larry Jr.). 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. We use initials and pseudonyms to keep the parties' identities confidential.

We reverse that portion of the court's October 21, 2020 order to the extent it concluded Oscar and Leslie caused certain of Darla's injuries, including the subdural hematoma, skull fracture and multiple rib fractures. We arrive at this determination because the court made its Title Nine findings as to those injuries by relying on the conditional res ipsa loquitor burden-shifting paradigm detailed in In re D.T., 229 N.J.Super. 509 (App. Div. 1988), which our Supreme Court recently rejected in New Jersey Div. of Child Prot. & Permanency v. J.R.-R., 248 N.J. 353, 359 (2021).

PER CURIAM The parties to these three separate appeals, which arise from two consolidated Title Nine cases, present numerous issues relating not only to the application of the burden-shifting device recognized in In re D.T., 229 N.J. Super. 509 (App. Div. 1988), and not only to the weight given to one defendant's admission of abuse of one child, and not only to a recent motion to supplement the record with two defendants' criminal convictions, but also to the trial judge's conclusion at a compliance hearing, which occurred the day after the abuse/neglect finding, that those children over the age of ten could return home because they were old enough to defend themselves. The judge properly shifted the burden of proof in some instances and not in others, and we defer to his abuse/neglect findings, but we also conclude the judge too hastily ruled on the return home of three of the children and, therefore, reverse in part and remand.

The opinion of the court was delivered by A.A. RODRIGUEZ, J.S.C. (temporarily assigned). Defendant S.S. challenges on federal constitutional grounds the application in this case of the burden-shifting doctrine announced in In the Matter of D.T., 229 N.J. Super. 509, 552 A.2d 189 (App.Div. 1988), which requires defendant to prove her non-culpability in the abuse of her daughter. Id. at 517, 552 A.2d 189.

Since swelling appears within at most twelve hours after injury, and the swelling appeared in the afternoon, the judge concluded that only Alma had contact with the child when she was injured. Based on that conclusion, Judge Katz explicitly declined to shift the burden of persuasion to Alma as permitted by In re D.T., 229 N.J. Super. 509 (App. Div. 1988), in cases involving multiple caregivers during the period an injury occurred. The judge nevertheless considered and rejected the three theories Dr. Levenbrown advanced to refute the Division's prima facie case.

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.

After receiving the briefing and written summations, the trial judge rendered an oral opinion on September 19, 2016. 229 N.J. Super. 509 (App. Div. 1988). Initially, the judge found that caseworker Malik testified credibly, based upon her demeanor and the fact that her testimony was consistent with the Division's investigation summary.

The court concluded that based on the evidence, stipulations and its findings, Laura suffered non-accidental injuries while in the company of a limited number of adults, and therefore the burden shifted to defendant to prove his non-culpability.See In re D.T., 229 N.J. Super. 509, 517 (App. Div. 1988). The court provided defendant and his counsel an opportunity to confer concerning whether defendant intended to present any evidence on his own behalf.