DCPP VS. C.J.R. AND C.R.A. IN THE MATTER OF THE GUARDIANSHIP OF A.A.R., C.L.A., AND C.A. (FG-07-0117-16, ESSEX COUNTY AND STATEWIDE)(CONSOLIDATED)(RECORD IMPOUNDED) - Published

Defendants appeal from an April 27, 2016 judgment of guardianship terminating their parental rights to their three biological children. Because the trial court erred in giving preclusive effect, in the guardianship proceeding, to the prior finding of abuse and neglect based upon the burden shifting provisions of Title Nine, the panel reverses and remands for a new guardianship trial. N.J.S.A. 9:6-8.46(a)(2) provides proof 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. In such circumstances, the burden shifts to those who have had access to the child to prove non-culpability. Title Thirty contains no such similar burden shifting provisions. Therefore, the trial court's decision to give the Title Nine fact-finding preclusive effect in the Title Thirty proceedings, shifting the burden to defendants and requiring them to rebut the presumption of abuse and neglect through their own evidence, created an unconstitutional asymmetry that the panel considers plain error on a critical question of law warranting reversal.