On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FN-07-81-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 5, 2007
Before Judges A. A. Rodríguez, Collester and C. L. Miniman.
The Division of Youth and Family Services (DYFS) filed a verified complaint and order to show cause regarding injuries received by M.L., a four-year-old boy. The complaint, as amended, sought to place M.L. in the care, custody and supervision of DYFS and named the child's biological parents, C.L. and S.C., as well as S.C.'s live-in boyfriend, H.W., as defendants. Physical custody of M.L. remained with his mother and H.W. Following a fact-finding hearing, the judge entered an order on December 2, 2006, dismissing the complaint, because DYFS "did not prove its case by a preponderance of evidence. The court [does] not find that abuse and neglect existed." We reverse and remand for a new hearing.
M.L. lived with his mother S.C. and H.W. S.C. and H.W. had been in a relationship for three years and have lived together for two. M.L. considers H.W. to be his dad. According to S.C., there is no history of violence or illness when M.L. is left in the sole care of H.W. DYFS produced no evidence suggesting otherwise.
On August 15, 2006, M.L. suffered severe injuries which kept him in the hospital until September 25, 2006. The origin of these injuries is disputed.
At the fact-finding hearing, DYFS Investigator Cheryl Smith, testified*fn1 that St. Barnabus Hospital contacted DYFS to report M.L.'s injuries on August 16, 2006, and she went to the hospital to investigate. At the hospital, Smith interviewed S.C. and H.W. Both were very cooperative. They told Smith that M.L. said he had been playing with or racing a cat when the cat scratched him and he fell, sustaining scratches to his face.
Smith interviewed M.L. at the hospital two weeks after the incident. M.L. told her that he had been playing outside by himself and that when he fell, H.W. was in the house playing a racing video game. For some reason, Smith was not sworn in at the hearing, although she told the judge the facts that she investigated.
S.C testified that when she arrived home from shopping, M.L. told her he had been outside racing a cat when he fell and scratched his nose. When S.C. asked M.L. where H.W. was at the time of the fall, M.L. made exercising motions with his arms, as if going up and down on an exercise machine. S.C. took this to mean outside, that H.W. was exercising in the yard. According to S.C., on two separate occasions after the incident, M.L. told her the same story.
S.C. testified that H.W. always takes excellent care of M.L. and it would have been totally out of character for H.W. to allow M.L. to play outside unattended. C.L. also told Smith that M.L. had told him on the date of the incident that H.W. was outside with M.L. when he sustained his injuries.
H.W. testified that he was outside doing pull-ups while M.L. was running around playing. It was around 6:30 p.m. and still light out. When H.W. was doing pull-ups, he could not see M.L., but testified that he was never more than twelve feet away from where M.L. was playing. H.W. had done pull-ups outside and watched M.L. on a number of previous occasions.
During his eighth pull-up in a set of twenty, H.W. heard M.L. crying and saying "daddy," ...