NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,  Plaintiff-Respondent,
J.M.H., Defendant-Appellant, and C.S., Defendant. IN THE MATTER OF E.M.S., Minor.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 17, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-496-11.
Rebekah E. Heilman, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Heilman, on the briefs).
James D. Harris, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Andrea Fonseca-Romen, Deputy Attorney General, on the brief).
David B. Valentin, Assistant Deputy Public Defender, argued the cause for minor E.M.S. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Valentin, on the brief).
Before Judges Grall, Simonelli and Accurso.
Defendant J.M.H. appeals from an October 4, 2011 Family Part order entered after a fact-finding hearing, which determined he had abused or neglected his child pursuant to N.J.S.A. 9:6-8.21c(4)(b). Because the record lacks substantial credible evidence that defendant's conduct constituted gross negligence or recklessness, we reverse.
We derive the following facts from the record. Defendant is the biological father of E.M.S. (Evan),  born in May 2008, and Cindy is the child's biological mother. Defendant and his girlfriend, Danielle, are the biological parents of Kelly and Donald. Kelly is three months younger than Evan. On April 10, 2011, defendant resided with his parents, and with Danielle, Kelly and Donald. Cindy resided with her mother, Judy, and Evan.
Evan was at defendant's home on April 9 and 10, 2011. On the morning of April 10, 2011, defendant was asleep but Danielle was awake with the children. Danielle saw Evan consuming a drink that defendant told him he could not have and awoke defendant. Defendant disciplined Evan by hitting him on the "butt." Evan then began playing with a toy. Evan bit Kelly when she took the toy from him, and then Kelly struck him in the eye. Defendant immediately separated the children, and nothing further happened between them. Defendant saw a small red mark on Evan's eye, and later placed ice on it when it turned black-and-blue. Defendant returned Evan to Cindy's home later that morning. Only Judy was there at the time, and defendant explained to her what had happened to Evan's eye. Judy saw the eye injury, but also saw a bald spot on the back of Evan's head. She asked defendant what happened to Evan's head, and defendant said he had not seen the bald spot and did not know what caused it. Cindy subsequently reported the matter to the New Jersey Division of Youth and Family Services (Division).
On April 12, 2011, a Division caseworker interviewed Evan, Cindy, Judy, defendant, and Danielle. When the caseworker asked Evan what happened to his face he replied, "Daddy did it, Daddy hurt me, [Kelly] hit my face." Judy reported that when she asked Evan what happened, he stated, "Daddy did it" and pointed to his head, and said "[Kelly] did it" and pointed to his face.
Defendant reported that the day after the incident, he found a toy car with "a clump" of Evan's hair. He believed the toy car got stuck in Evan's head and Kelly helped Evan pull it out causing Evan's hair to be ripped out of his head. Danielle reported that Evan bit Kelly, Kelly punched Evan in the face, and she did not see defendant hit Evan in the face, and had no knowledge of what happened to Evan's head.
Stephanie v. Lanese, M.D. examined Evan at the Division's request and rendered a report. Cindy told the doctor that Evan said Kelly hit his face, and said "Daddy" when Cindy asked what happened to the top of his head. Although Cindy also told Dr. Lanese about the toy car, the doctor did not examine or obtain any information ...