¶1concurring in part and dissenting in part.
¶2While I do not subscribe to the position taken by my colleagues, I agree with the result to the extent that they would continue a protective order. I would impose the same protective conditions until such time as the Family Part judge is satisfied that the infant is in no further danger, or that the parents have demonstrated their ability to properly protect their child. I would not have the protective order contingent upon proof of parent culpability under the Child Abuse Law. See N.J.S.A. 9:6-8.21(c).
¶3The factual scenario in my judgment does not lend itself to the final resolution sought by the majority. Their solution to the present dilemma of shifting the burden to the parents might unjustly serve to place guilt upon a parent for the heinous offense of sexual abuse merely because of the parent’s inability to prove innocence.
¶4It may never be proven by whom this infant was brutalized. What is clear, however, is that the parents, with knowledge of the danger to the child by reason of the previous serious sexual abuse, in violation of the agreement they signed with DYFS, absconded with the child for several days. This placed the child in further jeopardy and constituted neglect under N.J.S.A. 9:6-1(b). This is sufficient basis for the court to enter a supervisory order.
¶5I therefore dissent from those portions of the majority opinion which would apparently hold the parents “to a burden of establishing by a preponderance of the evidence that they neither improperly allowed nor committed the sexual abuse.” I am not however opposed to permitting the trier of fact to draw an adverse inference from the failure of a parent to testify or otherwise present evidence of noninvolvement. See In re Degina, 94 N.J.Super. 267, 274 (App.Div.), certif. den. 49 N.J. 368 (1967); Camden Safe Deposit & Trust Co. v. Green, 124 *520N.J.Eq. 221, 226 (Ch.1938). See also Michaels v. Brookchester, Inc., 26 N.J. 379, 391-92 (1958).