DCPP VS. S.K. AND C.K., IN THE MATTER OF JE.K. AND JA.K. (FN-04-0619-15, CAMDEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) , 456 N.J. Super. 245 ( 2018 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2734-15T2
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
APPROVED FOR PUBLICATION
S.K.,1
August 31, 2018
Defendant, APPELLATE DIVISION
and
C.K.,
Defendant-Appellant.
_________________________________
IN THE MATTER OF JE.K. and JA.K.,
Minors.
_________________________________
Argued October 11, 2017 – Decided August 31, 2018
Before Judges Fuentes, Koblitz and Manahan.
(Judge Koblitz concurring).
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Camden County,
Docket No. FN-04-0619-15.
Thomas G. Hand, Designated Counsel, argued the
cause for appellant (Joseph E. Krakora, Public
1
Pursuant to Rule 1:38-3(d)(12), we use initials and pseudonyms
to identify the parties to protect their privacy and preserve the
confidentiality of these proceedings.
Defender, attorney; Thomas G. Hand, on the
briefs).
William T. Harvey, Jr., Deputy Attorney
General, argued the cause for respondent
(Christopher S. Porrino, Attorney General,
attorney; Melissa Dutton Schaffer, Assistant
Attorney General, of counsel; Alexa L. Makris,
Deputy Attorney General, and William T.
Harvey, Jr., on the briefs).
Olivia Belfatto Crisp, Assistant Deputy Public
Defender, argued the cause for minors (Joseph
E. Krakora, Public Defender, Law Guardian,
attorney; Olivia Belfatto Crisp, on the
briefs).
The opinion of the court was delivered by
FUENTES, P.J.A.D.
Defendant C.K. appeals from an order entered by the Family
Part finding, by the preponderance of the evidence, that he
sexually abused his biological daughter. Before we identify the
legal issues raised by defendant, we will briefly summarize how
these allegations came to light.
On May 30, 2015, the Division of Child Protection and
Permanency (Division) received a referral that alleged defendant
was sexually abusing his biological daughter Jane, who was then
fifteen years old. The Division assigned two Special Response
Unit (SPRU) workers to investigate. The lead SPRU investigator
reported the sexual abuse allegations to the Camden County
Prosecutor's Office (CCPO). The SPRU workers interviewed Jane,
2 A-2734-15T2
her biological mother S.K., and her older sister Kate, who was
then sixteen years old.
Based on the information revealed through these interviews,
the Division executed an emergency Dodd removal2 of the children
and placed them in the temporary custody of a foster family. On
June 2, 2015, the Division filed an Order to Show Cause (OTSC) and
Verified Complaint charging both defendant and S.K. with child
sexual abuse under N.J.S.A. 9:6-8.21(c)(3). The Family Part
granted the OTSC, placed the children with a Division-approved
foster family, and awarded the Division temporary custody, care,
and supervision.
At the same time the Division's investigation and proceedings
in the Family Part were going forward, the CCPO began its own
parallel criminal investigation of these allegations. Law
enforcement agents assisted Division caseworkers to effectuate the
emergency Dodd removal of the children. After a CCPO Detective
explained the nature of the charges, defendant agreed to submit
to a lie detector test on June 1, 2015, at the Lindenwold Police
Station. Defendant later refused to submit to the test and
2
"A 'Dodd removal' refers to the emergency removal of a child
from the home without a court order, pursuant to the Dodd Act,
which, as amended, is found at N.J.S.A. 9:6-8.21 to -8.82. The Act
was authored by former Senate President Frank J. 'Pat' Dodd in
1974." N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super.
593, 609 n.2 (App. Div. 2010).
3 A-2734-15T2
declined to cooperate with the criminal investigation. The CCPO
ultimately arrested and charged defendant on three counts of first
degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2)(a), four
counts of second degree sexual assault, N.J.S.A. 2C:14-2(b), and
two counts of second degree endangering the welfare of a child,
N.J.S.A. 2C:24-4(a)(2).
While these criminal charges were pending, the Family Part
initially enjoined defendant from having any contact with his
daughters, and ordered him to submit to psychological and
psychiatric evaluations. On January 25, 2016, the Family Part
Judge conducted a fact-finding hearing pursuant to N.J.S.A. 9:6-
8.44, and the Division called defendant as a witness to corroborate
the allegations of sexual abuse made against him by his daughter
Jane. On the advice of his attorney, defendant invoked his right
against self-incrimination and refused to testify. At the request
of the Deputy Attorney General (DAG) who represented the Division,
the Family Part Judge drew an adverse inference of culpability
against defendant.
Jane did not testify at the fact-finding hearing. The only
evidence of the sexual molestation came from S.K.'s hearsay
testimony, who recited what Jane told her about the alleged
molestation. In the course of making his factual findings, the
judge relied on the adverse inference he drew from defendant's
4 A-2734-15T2
invocation of his right against self-incrimination as substantive
evidence to corroborate Jane's allegations of sexual abuse.
In this appeal, defendant argues the Family Part Judge
improperly drew an adverse inference against him when he invoked
his right against self-incrimination under the Fifth Amendment to
the United States Constitution and this State's evidence rule
N.J.R.E. 503 in response to the Division's request to call him as
a witness in the fact-finding hearing. This issue has not been
addressed in a published opinion by any court in this State. We
now hold that a Family Part Judge may not draw an adverse inference
of culpability against a defendant who invokes his right against
self-incrimination to refuse to testify at a Title 9 fact-finding
hearing.
Defendant also claims he received ineffective assistance of
counsel. We agree. Defense counsel's performance in this case
fell below the standards of competence expected from an attorney
admitted to practice law in this State. Counsel was not prepared
to provide defendant with a proper defense. His inattentiveness
permitted the Division to present legally incompetent evidence to
corroborate the allegations of abuse, the dispositive issue in
this case. Counsel's ineffective assistance also significantly
contributed to the legal error that irreparably tainted the Family
Part's findings of abuse against defendant.
5 A-2734-15T2
I
Initial Interview
The first time a Division caseworker interviewed Jane was in
her home on May 30, 2015. She was fifteen years old at the time.
Jane was hesitant and felt "awkward" talking about her father's
behavior. She said her father had touched her breasts over her
clothing, and that the abuse began when she was eleven and ended
when she was thirteen years old. However, she could not recall
specific time frames when the molestation began or ended. When
the caseworker asked her if anyone had ever had sex with her, she
said "yes" and that it happened "years ago but stopped when she
was ten years old." She also claimed that her father had raped
her when she was six years old, and continued until she was ten
years old, often when her mother was at work.
Jane claimed she told her sister about the abuse when it
happened and that her mother also knew. Jane told the caseworker
that her mother did not believe her because her father said she
was lying. She also told the caseworker that her mother "had a
talk" with her father about it "so he would stop." S.K. denied
knowledge of the abuse. She claimed that defendant and Jane have
a "strained relationship," and attributed her daughter's
allegations of sexual abuse against her own father to "becoming a
teenager and going through teenage things."
6 A-2734-15T2
Later that same day, a caseworker accompanied the family to
the Hi-Nella Police Station where Jane and her sister Kate met
with a Detective from the CCPO. The sisters were interviewed
separately. As was the case with her discussion with the Division
caseworker, Jane was at first hesitant and felt awkward talking
about defendant with the Detective. She eventually told him that
the sexual abuse began when she was six years old and continued
until she was approximately eleven. When the Detective asked her
if she could tell him what happened, she answered: "No. It's
. . . I don't actually remember, I have [a] bad memory." She also
claimed she could not remember the last time he molested her.
Despite her age, the Detective used drawings of male and
female bodies and pointed to specific body parts to ask her where
defendant had touched her. Jane told him he touched specific body
parts with "his hand and dick." She claimed he kissed her lips
while she was laying down, and touched her "boobs" with his hand,
and her vagina with his "dick and hand." With respect to her
vagina, she claimed he touched her "on the inside." At the time,
she did not know whether this was right or wrong.
The molestation occurred in her bedroom, and she estimated
it happened "probably less than twenty [times]." She did not tell
7 A-2734-15T2
her friends or her older sisters3 about the abuse until she was
twelve or thirteen years old. Her sisters did not tell anyone;
Jane told the Detective that she believes her mother was not aware
of the abuse. When Jane finally told her friends, she told them
she was "raped a while ago."
The Detective next interviewed Jane's older sister Kate. Kate
told him that she did not remember what Jane told her when Jane
was twelve years old. According to Kate, Jane never told her
anything about what her father was doing to her. When the
Detective pursued the issue more vigorously, Kate said that Jane
might have told her about something "a really long time ago," but
claimed to have no specific recollection or knowledge about what
it was about.
When the Detective interviewed S.K., she again denied any
knowledge of sexual abuse. She claimed Jane fabricated these
allegations against her father because he had chastised her for
being disrespectful to him. According to S.K., Jane told
defendant: "how can I respect you when you raped me." S.K. told
the Detective that she did not ask defendant about Jane's comment.
However, when she asked Jane, she did not reply. At that point,
3
Defendant and S.K. had a third daughter who is an adult and did
not reside with them at the time the abuse allegations came to
light in May 2015.
8 A-2734-15T2
S.K. said she decided to "let the comment die." S.K. noted that
defendant had "always been mean" to Jane because he suspected she
was not his biological child.
Defendant denied the veracity of his daughter's allegations
and "became hostile" when he was interviewed by the CCPO Detective.
When the Division caseworkers told defendant that they were taking
temporary custody of his two daughters on an emergency basis, he
told the caseworkers that he "would plead guilty to the charges,
even though he was not guilty, if that meant the children could
stay with their mother."
The Detective interviewed Jane a second time on June 3, 2015.
She again claimed that she was not certain when the sexual abuse
began. She estimated that it started when she was six or seven
years old and ended when she was ten or eleven. She did not recall
how many times she was sexually molested because she has a "really,
really bad memory." The video recording shows the Detective
reviewed her May 30, 2015 statement with Jane to confirm that her
father had "touched her on her boobs and her private part."
During this second interview, Jane made the following
statement about defendant: "I heard that the information I'm giving
you in here is going to help them decide if my dad goes to jail.
He wouldn't survive in jail because of the problem he has with his
9 A-2734-15T2
knee and stuff." When the Detective asked her what she would like
to see done in terms of punishment for her father, she responded:
Well if they're hurt, if it was someone who
actually did it to other people, he only did
it to me and he stopped and he learned his
lesson and never did it since. And he's really
hurt and he's also my dad. And I don't want
him to die and because I know he's gonna die
in jail.
The Verified Complaint the Division filed in the Family Part on
June 2, 2015 included the following statement: "Detective Houten
explained that he was not sure, at this time, what charges, if
any, were going to be pressed against [defendant] as right now it
was [Jane's] word against his word."
The Division referred Jane to the CARES Institute4 for a
medical examination. In a report dated June 23, 2015, Dr. Marita
Lind, M.D., states that Jane reported to her medical examination
accompanied by her adult sister. According to Dr. Lind, the
Division referred this fifteen-year-old girl "for the diagnosis
and treatment of any residual to inappropriate sexual contact she
may have experienced." Jane repeated her allegations against her
4
The Child Abuse Research Education and Service [CARES] Institute
is affiliated with Rowan University. It "accepts referrals from
the Division of Child Protection and Permanency, DCP&P (formerly
DYFS), county prosecutors' offices, community medical and mental
health providers, social service agencies, hospitals and parents."
Making a Referral, CARES INSTITUTE, Rowan Medicine,
http://www.caresinstitute.org/referrals.php (last visited on Aug.
20, 2018).
10 A-2734-15T2
father, but Dr. Lind did not find any physical evidence of prior
sexual activity.
II
Family Part Proceedings
The Family Part conducted a number of case status hearings
from June to December 2015. The court ordered the Division to
provide Jane and Kate individualized and family therapy. Defendant
was indicted on multiple counts of first and second degree sexual
offenses and was detained at the Camden County Jail awaiting trial
in the Criminal Part. The Division placed Jane and Kate in the
physical custody of their adult sister. S.K. cooperated with the
Division and completed all court-ordered services, including
psychological and domestic violence evaluations. The court
initially awarded S.K. unsupervised visitation with the children.
The court eventually reunited the girls with their mother,
restoring S.K.'s full legal and physical custody. Although he was
incarcerated, the court continued to enjoin defendant from having
any contact with his minor daughters.
On December 11, 2015, the Family Part Judge held a pre-trial
compliance review hearing to address any issues related to the
fact-finding hearing. The DAG representing the Division indicated
he planned to call S.K. as a witness. This prompted the Law
Guardian to make the following statement for the record: "But for
11 A-2734-15T2
a limited purpose. [S.K. is] not going to be testifying against
the father. She's just going to be identifying the children's
voices on the audio so that the children don't have to come in."
The DAG responded: "Correct, yes." Furthermore, the DAG also
confirmed that S.K. did not have "any direct knowledge of [what]
actually . . . [is] going on. It's [only] for . . . identification
purposes of the videos."
The judge asked defense counsel whether "the evidence that
the Division will attempt to bring forth . . . [would] establish
the burden [of proof] here?" Defense counsel responded: "Judge,
I have reviewed the evidence. I'm not going to concede that [the
Division] can prove [its] case based on the evidence." This
prompted the DAG to make the following comment:
THE DAG: Quite frankly, Judge, and no offense
[for] interrupting [defense counsel], given
the way that the Appellate Division has been
handling cases lately, I would prefer to put
on live testimony and have a full hearing on
this, given the nature of the allegations
here.
THE COURT: So we're going to have to call one
of the children?
THE DAG: Hopefully I won't have to. Hopefully
her statements, Your Honor is going to make
the evidentiary ruling that her [presumably
referring to Jane] statements are able to go
in. They are investigative. If there's a
request for cross-examination, I guess we'll
have to deal with it at that point. But I
have listened to the tapes. I know [defense
12 A-2734-15T2
counsel] listened to the tapes. The child is
quite explicit in what she says and heard.
THE COURT: The burden here is of course with
the Division. There is no requirement that
we have proof beyond a reasonable doubt. But
the proof is by the preponderance of the
evidence. So wouldn't the child describing
the abuse in question on a videotape, doesn't
that satisfy the burden here?
DEFENSE COUNSEL: Judge, you could find that
testimony to be []credible. Judge, I cannot
without committing malpractice concede the
case.
THE COURT: Okay. But assuming that comes in,
assuming it's not, assuming it's credible,
what is it the defense would have? I'm just
trying to pre-try the case, that's all.
DEFENSE COUNSEL: No, I understand, I
understand. Again, I think the Division, if
Your Honor finds that testimony to be
credible, then I think we have a tough case.
THE COURT: Okay. Now you could, on your own,
call the children as your witnesses and cross-
examine them.
DEFENSE COUNSEL: I certainly could.
THE COURT: Do you plan to do that?
DEFENSE COUNSEL: No.
[(Emphasis added).]
Later in the colloquy, defense counsel made the following
statement:
DEFENSE COUNSEL: And Judge, so I'm clear and
everybody at counsel table is clear my client
13 A-2734-15T2
will be asserting his Fifth Amendment rights
so we are going to object to him testifying.
THE DAG: That's fine.
THE COURT: So the question then, can the court
take an inference that by exercising his Fifth
Amendment rights in this proceeding, can the
court take an inference of culpability?
THE DAG: I believe Your Honor can.
. . . .
DEFENSE COUNSEL: Judge, I have researched the
issue and I don't remember what I came up with.
THE DAG: I have some case law [that] I can
send --
DEFENSE COUNSEL: I suspect that you might be
able to.
THE COURT: Why don't you send the case law
over.
The Family Part held the fact-finding hearing on January 25,
2016. The DAG played audio recordings of interviews conducted by
the CCPO Detective of Jane and her older sister Kate. Defense
counsel did not object nor ask to cross-examine the girls. The
Division called S.K. as a witness for the limited purpose of
identifying the voices on the audio recordings as being those of
her daughters Jane and Kate. Without objection from defendant's
counsel, the judge also admitted into evidence a video/audio
recording of Jane's second interview with the CCPO Detective.
14 A-2734-15T2
Thereafter, the DAG questioned S.K. about the verbal
altercation she witnessed between defendant and Jane. The DAG
asked S.K.:
Q. And do you recall at that point that your
husband told [Jane] that he wanted a little
respect?
A. Yeah.
Q. Okay. Do you recall what [Jane's] answer
was?
A. I think she said that, how can -- how or
would respect somebody who raped you.
In response to a series of leading questions by the DAG, S.K.
confirmed that Jane made this statement before the Division and
the CCPO began their respective investigations of Jane's
allegations of sexual abuse by defendant. S.K. also testified
that Jane was currently living with her and was participating in
Division-sponsored therapeutic programs. S.K. also testified that
Jane had not mentioned the allegations against defendant. Neither
defense counsel nor the Law Guardian asked S.K. any questions.
The Division also called Allison Quinn, the caseworker who
responded to the referral of sexual abuse on May 30, 2015, and
thereafter interviewed Jane. Quinn testified that Jane "basically
relayed the same thing that she said in the videotape to me."
According to Quinn, when she asked Jane questions about her father
touching her, "[Jane] shut down. She gave no eye contact and
15 A-2734-15T2
appeared uncomfortable." Quinn also testified that Jane told her
that she told her sister about the abuse. Defense counsel did not
cross-examine Quinn at this point. Instead, the following colloquy
ensued:
THE DAG: Your Honor, I am going to renew my
request to call [defendant as a witness]. I
believe there's going to be an objection from
his attorney.
DEFENSE COUNSEL: That's correct, Judge. He's
exercising his Fifth Amendment right.
THE COURT: Well doesn't he, himself, have to
tell us that?
DEFENSE COUNSEL: If we want to go through that
exercise we can do that.
THE COURT: Okay. Is it true that you wish to
exercise your Fifth Amendment right to remain
silent and not provide any testimony in this
case?
DEFENDANT: Yes, sir.
THE COURT: Is that true?
DEFENDANT: Yes, sir.
THE COURT: Okay.
THE DAG: With that, Your Honor, the Division's
going to rest. I am going to ask the court
to [draw] a negative inference as to
[defendant], which I believe in Belito[5]
5
The brief submitted by the Division in this appeal does not
cite any case remotely similar to this phonetic spelling. However,
we infer the DAG may have been referring to In the Matter of
Ippolito, 145 N.J. Super. 262 (App. Div. 1976), rev'd on other
16 A-2734-15T2
(phonetic), I think that's the case, is
permissible. I've previously briefed this
issue out in --
THE COURT: Yeah, I recall, you supplied it.
Any argument on that?
DEFENSE COUNSEL: Judge, I didn't specifically
research that issue but I believe counsel may
be correct.
. . . .
THE COURT: . . . We've had a lot of discussions
over the years, but at this juncture the court
is satisfied that counsel has provided
appropriate case law. And in fact it took me
years to find appropriate case law and counsel
finally found it for us. But that is correct.
So there is an inference and you rest?
THE DAG: I rest, Your Honor.
Notwithstanding the Division's decision to rest its case, the
judge permitted defense counsel to cross-examine Quinn. In
response to defense counsel's question, Quinn confirmed that
Jane's medical evaluation conducted at the CARES Institute did not
find any physical evidence of sexual abuse. The rest of defense
counsel's cross-examination merely reviewed matters covered by
Quinn in her direct testimony.
grounds, 75 N.J. 435 (1978). In its brief before this court, the
Division cites to Ippolito for the proposition that a witness
invoking the Fifth Amendment to refuse to testify must have a
reasonable basis to fear prosecution. Ippolito, 145 N.J. Super.
at 266. The reasonableness of defendant's fear of prosecution was
never an issue in this case.
17 A-2734-15T2
Defendant did not call any witnesses. The next phase of the
fact-finding hearing involved only the arguments of counsel and
their interactions with the judge in response to his questions.
Defense counsel argued that the audio and video recordings of
Jane's interview conducted by the CCPO Detective shows Jane made
several materially inconsistent statements about the alleged
sexual abuse. Defense counsel emphasized that the physician who
conducted Jane's medical examination did not find any physical
evidence that she had had vaginal intercourse. Counsel argued
this was inconsistent with Jane's statement to the Detective "that
her father penetrated her with his dick." Defense counsel also
argued that the Detective did not ask her whether she understood
that she had "a duty to tell the truth right now." The judge
agreed that "whoever interviewed the child . . . did an extremely
poor job." Finally, defense counsel argued that "under [N.J.R.E.]
603, the child has to be under oath. The child was never placed
under oath. The testimony cannot be accepted under [N.J.R.E.]
603."
The DAG argued that the recordings of Jane's interviews with
the Detective "wasn't necessarily testimony that was put on. That
was the child's out of court statements as to the . . . allegations
of abuse." Citing this court's decision in N.J. Div. of Youth &
Family Servs. v. Z.P.R., 351 N.J. Super. 427 (App. Div. 2002), the
18 A-2734-15T2
DAG argued the recordings of Jane's interviews were intended as
corroborative evidence. This prompted the following colloquy:
THE COURT: But it's the same thing over and
over again. She says something to the
Division, she says something to the person
from the prosecutor's office --
. . . .
THE DAG: No. It's the unprompted spontaneous
admission that she made to her mother several
months before about her father raping her.
There wasn't . . . Division involvement at the
time. The child made the statement. She said
that --
THE COURT: Well not when [S.K. asked] the
other question. Were you concerned when your
daughter made that statement that she was
actually raped or was she just responding.
THE DAG: That is actually included in the 9-
7,[6] which mom indicated, and you can bring
her back if we need to, saying that she figured
that dad would just deny it anyway. That's
included in there. We're talking about two
separate allegations several months apart.
The child's statement is consistent among both
the videotape as well as the audiotape
recording.
The judge ultimately concluded the Division presented
sufficient competent evidence to prove, by a preponderance of the
evidence, that defendant sexually abused Jane under N.J.S.A. 9:6-
6
"9-7" refers to a caseworker's report.
19 A-2734-15T2
8.21(c)(3). The judge made the following findings in support of
this conclusion:
All right. This is a difficult case and the
way this court has spoken about it shows the
court's concerns. The court has reviewed
everything that was submitted. It's looked
at the police report and the prosecutor's
report, but certainly it isn't considering
those two documents in any way in making a
determination.
What is interesting though, is this special
nature of the rule that the defendant could
have made some comments, and in this
environment I would think that if he wanted
to he could have. I don't think anyone is
going to rip into him in his criminal case,
but other than to say what response to what
occurred. But that is his decision and I
know that attorneys generally make that
comment. But here we do not, the case law
says we continue on with this case independent
a Fifth Amendment issue. We don't postpone
this case for a Fifth Amendment issue, but it
is clearly raised here that the defendant does
not have a right to have this case postponed.
And his failure to give any comments or any
testimony here today does show the court there
is an inference that can be drawn.
The court knowing of that inference, and the
word should be clear. An inference can be
drawn. And the fact that the child
spontaneously made the statement to mom at a
time of an argument with dad, and then
followed through on it one, two, three times,
not as well I'd like it to have been but the
child did -- actually one, two, three, the
Cares Evaluation, four.
So the child consistently makes the statement
again and again, again, and again that she was
inappropriately touched and there was contact
20 A-2734-15T2
between the gentleman's penis and her vagina.
And at this juncture the burden must be proven
by a preponderance of the evidence. The court
sustains that it is so proven and will make a
finding of abuse at this time for the sexual
act.
III
Legal Analysis
Our review of the factual findings made by a judge in the
Family Part is limited. N.J. Div. of Child Prot. & Permanency v.
K.F., 444 N.J. Super. 191, 200 (App. Div. 2016). We our bound to
uphold these findings as long as they are supported by "adequate,
substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394,
411-12 (1998). This deferential standard of review is appropriate
because the Family Part judges are presumed to have a "specialized
knowledge and experience in matters involving parental
relationships and the best interests of children." N.J. Div. of
Youth & Family Servs. v. F.M., 211 N.J. 420, 427 (2012).
The judge also has the "opportunity to make first-hand
credibility judgments about the witnesses who appear on the stand;
[the court] has a 'feel of the case' that can never be realized
by a review of the cold record." N.J. Div. of Youth & Family
Servs. v. E.P., 196 N.J. 88, 104 (2008); see also N.J. Div. of
Child Prot. & Permanency v. C.W., 435 N.J. Super. 130, 139 (App.
Div. 2014). Thus, any "alleged error in the trial judge's
21 A-2734-15T2
evaluation of the underlying facts and the implications to be
drawn therefrom," must be reviewed to determine whether the errors
were "so wide of the mark that a mistake must have been made."
N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279
(2007). However, "that deference is perhaps tempered when the
trial court did not hear testimony, or make credibility
determinations based on the demeanor of witnesses." N.J. Div. of
Child Prot. & Permanency v. J.D., 447 N.J. Super. 337, 350 (App.
Div. 2016).
Defendant urges us to reverse and vacate the Family Part
Judge's finding that he sexually abused his biological daughter
because: (1) the judge decided to draw an adverse inference of
culpability against him based on his decision to exercise his
Constitutional right against self-incrimination under the Fifth
Amendment and N.J.R.E. 503, and refuse to testify as a witness for
the Division; (2) the judge's finding of abuse was not based on
competent evidence; and (3) his counsel before the Family Part was
ineffective and failed to object to the introduction of legally
incompetent evidence which ultimately formed the basis for the
judge's finding of abuse. We agree with defendant in all three
respects.
22 A-2734-15T2
Adverse Inference of Culpability
Division workers are required "to immediately report to the
prosecutor all cases involving suspected criminal conduct on the
part of a parent, caregiver, or any other person . . . involving
. . . [t]he subjecting or exposing of a child to unusual or
inappropriate sexual activity . . . ." N.J.A.C. 3A:10-5.1(b)(2).
Furthermore, upon written request, the Department of Children
(DFC) and Families shall release the records and reports to "[a]
police or other law enforcement agency investigating a report of
child abuse or neglect[.]" N.J.S.A. 9:6-8.10a(b)(2).
In DYFS v. Robert M., 347 N.J. Super. 44 (App. Div. 2002),
we noted:
The statutory scheme and administrative
regulations of the Division envisage
cooperation between the agency and law
enforcement. N.J.A.C. 10:129-1.1(a)4. The
Division is obliged to immediately report to
the county prosecutor all instances of
suspected criminal activity including child
abuse or neglect. N.J.S.A. 9:6-8.36a; N.J.A.C.
10:129-1.1(a); -129-1.3(d), -129-1.3(e). If
the Division institutes a child abuse
complaint in the Family Court, a copy must be
sent to the county prosecutor N.J.S.A. 9:6-
8.25a. Alternatively, if the prosecutor
decides to bring a criminal case, the
caseworker must be advised. N.J.A.C. 10:129-
1.5(c).
[Id. at 63-64.]
23 A-2734-15T2
The problem we confronted in Robert M. was based on the absence
of a reciprocal obligation by the prosecutor to cooperate with the
Division. As Judge Collester noted on behalf of the panel in
Robert M.:
However, no statute or rule requires the
county prosecutor to disclose information of
an ongoing criminal investigation to the
Division. While Title 9 contemplates that
actions brought by the Division will continue
after referral to the county prosecutor,
N.J.S.A. 9:6-8.24, the prosecutor is not
restrained from continuing its investigation
while the Title 9 action proceeds to trial.
Judge Collester foresaw in Robert M. the looming constitutional
problem that we confront here:
Parallel investigations and proceedings by the
Division and the county prosecutor have
resulted in thorny constitutional issues.
Defendants may face the Hobson's choice of
deciding whether to testify and risk
incrimination or remain silent in the face of
testimony that could deprive them of custody
of their children. Judges must be mindful of
the potential for abuse of defendant's civil
or criminal procedural rights. However, the
fact of parallel proceedings does not invest
a defendant with any additional procedural
safeguards beyond those provided by
constitution, statute or procedural rules.
[DYFS v. Robert M., 347 N.J. Super. 44, 64
(App. Div. 2002) (citations omitted) (emphasis
added).]
Since our decision in Robert M., the Supreme Court adopted
new regulations to avoid some of the unintended conflicts that
24 A-2734-15T2
arise between the Division's Title 9 cases in the Family Part and
the County Prosecutor's parallel criminal cases in the Criminal
Part. Pursuant to Rule 5:12-6(a), "[w]hen a criminal complaint
has been filed against a parent or guardian arising out of the
same incident as a [Division] action . . . the Family Part shall
determine the nature and scope of parental or guardian
visitation[.]" Under Rule 5:12-6(a)(1), when the Family Part
schedules "any hearing at which visitation conditions are to be
imposed or modified, the court shall provide notice to the county
prosecutor."
At this hearing, in addition to the DAG, defense attorneys,
and the Law Guardian, the county prosecutor is permitted to appear
before the Family Part to present the State's views on the question
of visitation. "Prior to any hearing [the Family Part] shall
issue an appropriate protective order governing disclosure of
confidential Division records consistent with N.J.S.A. 9:6-8.10a."
Rule 5:12-6(a)(2)
Under Rule 5:12-6(b), "if there is a criminal investigation
of an incident that is the basis for the [Division's" complaint]
before the Family Part, the Division "may request that the
prosecutor provide any relevant information for use in the action."
As we explained in S.M. v. K.M., 433 N.J. Super. 552, 559 (App.
Div. 2013), Rule 5:12-6(b) also contains a procedural mechanism
25 A-2734-15T2
to resolve information-sharing disputes that may arise. However,
we must emphasize that Rule 5:12-6 does not impose a reciprocal
obligation upon the Division to share information with the County
Prosecutor. In our view, the reason for such an omission is made
clear in this final statement: "No rights or privileges that may
otherwise exist are affected by this dispute resolution
procedure." R. 5:12-6(b) [(emphasis added).] Stated differently,
the Division's information-disclosure obligations to law
enforcement agencies remained as codified in N.J.S.A. 9:6-
8.10a(b)(2).
Thus, none of the provisions in Rule 5:12-6 empower a Family
Part Judge presiding in a Title 9 fact-finding hearing to enjoin
the county prosecutor from using a defendant's self-incriminating
statements as part of the State's case in a criminal trial.7 The
Family Part's authority under Rule 5:12-6(a)(2) is expressly
circumscribed by N.J.S.A. 9:6-8.10a and b. The plain text of this
statute does not authorize the Family Part to take any action to
prevent the Division from providing the county prosecutor with a
transcript of the fact-finding hearing containing a defendant's
7
In the criminal trial, the prosecutor would seek to introduce
defendant's self-incriminating statements at the fact-finding
hearing as admissible evidence of culpability under N.J.R.E
802(b)(1) and N.J.R.E. 803(c)(25).
26 A-2734-15T2
self-incriminating testimony. In this light, we must now address
whether a Family Part Judge may draw an adverse inference of
culpability based on defendant's exercise of his right against
self-incrimination to refuse to testify as a Division witness at
a fact-finding hearing.
Parents have a fundamental constitutional right to raise
their children, Stanley v. Illinois, 405 U.S. 645, 649 (1972);
N.J. Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 599
(1986), and "maintain a relationship with [their children],
without undue interference by the state . . . ." N.J. Div. of
Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008). "[A]
parent's rights to the care and companionship of his or her child
are so fundamental as to be guaranteed protection under
the First, Ninth and Fourteenth Amendments of the United States
Constitution." E.S. v. H.A., 451 N.J. Super. 374, 383-84 (App.
Div. 2017) (quoting Wilke v. Culp, 196 N.J. Super. 487, 496 (App.
Div. 1984)).
This court has recognized that these fundamental rights of
parents are not without limits:
However, the constitutional protection
surrounding family rights is tempered by the
State's parens patriae responsibility to
protect the welfare of children. Thus, in
order to relieve the tension created by these
potentially disparate constitutional
principles, the court's authority to remove
27 A-2734-15T2
children from the custody of their parents
must be exercised with scrupulous adherence
to procedural safeguards.
[N.J. Div. of Youth & Family Servs. v. J.Y.,
352 N.J. Super. 245, 261 (App. Div. 2002)
(emphasis added) (internal citations
omitted); see also N.J. Div. of Youth and
Family Servs. v. G.M., 198 N.J. 382, 397
(2009).]
As our Supreme Court recently reaffirmed, "[t]he right
against self-incrimination is guaranteed by the Fifth Amendment
to the United States Constitution and this state's common law, now
embodied in statute, N.J.S.A. 2A:84A-19, and evidence rule,
N.J.R.E. 503." State v. S.S., 229 N.J. 360, 381 (2017) (quoting
State v. Nyhammer, 197 N.J. 383, 399 (2009)). N.J.R.E. 502
provides, in part:
[A] matter will incriminate (a) if it
constitutes an element of a crime against this
State, or another State or the United States,
or (b) is a circumstance which with other
circumstances would be a basis for a
reasonable inference of the commission of such
a crime, or (c) is a clue to the discovery of
a matter which is within clauses (a) or (b)
above; provided, a matter will not be held to
incriminate if it clearly appears that the
witness has no reasonable cause to apprehend
a criminal prosecution.
The right against self-incrimination is "confined to
instances where the witness has reasonable cause to apprehend
danger from a direct answer." Hoffman v. United States, 341 U.S.
479, 486 (1951). The trial judge must determine that the
28 A-2734-15T2
individual seeking to invoke the protection of the Fifth Amendment
is "confronted by substantial and 'real,' and not merely trifling
or imaginary, hazards of incrimination." United States v.
Apfelbaum, 445 U.S. 115, 128 (1980). The Constitutional privilege
protects individuals from providing testimonial evidence that he
or she "reasonably believes could be used in a criminal prosecution
or could lead to other evidence that might be so used." Kastigar
v. United States, 406 U.S. 441, 445 (1972). The privilege extends
"to answers that would in themselves support a conviction . . .
but likewise embraces those which would furnish a link in the
chain of evidence needed to prosecute the claimant . . . ."
Hoffman, 341 U.S. at 486.
When a party in a civil matter asserts the privilege against
self-incrimination, the fact-finder may draw an adverse inference
of guilt. Attor v. Attor, 384 N.J. Super. 154, 165-66 (App. Div.
2006) (citing Mahne v. Mahne, 66 N.J. 53, 60 (1974)); see
also Bastas v. Bd. of Review, 155 N.J. Super. 312, 315 (App. Div.
1978) (holding that the Board could draw an adverse inference
where claimant for unemployment benefits asserted Fifth
Amendment privilege and refused to testify on facts related to the
claimant's qualification for benefits).
In Duratron Corp. v. Republic Stuyvesant Corp., Judge Conford
explained why permitting a fact-finder to draw an adverse inference
29 A-2734-15T2
against a party who invokes the right against self-incrimination
in civil cases did not undermine the Constitutional protections
in the Fifth Amendment:
The predominant rule has always been that
insofar as an adverse inference from failure
of a party to testify in a civil cause may
tend to visit upon him civil consequences
. . . there is no infringement of the party's
rights under the Fifth Amendment or similar
guarantees.
[Duratron Corp. v. Republic Stuyvesant Corp.,
95 N.J. Super. 527, 531 (App. Div. 1967).]
Judge Conford also noted and distinguished those civil cases
in which the Supreme Court had not permitted the fact-finder to
draw the adverse inference:
[In Griffin v. State of Cal., 380 U.S. 609(1965), the Court] held it impermissible in a
state criminal prosecution for the court or
the state to advert to the defendant's failure
to testify.[8] [In Spevack v. Klein, 385 U.S.
8
In Griffin, the defendant was on trial for first degree murder
and was facing a possible death sentence. Griffin, 380 U.S. at
609. The defendant "did not testify at the trial on the issue of
guilt, though he did testify at the separate trial on the issue
of penalty." Ibid. The trial judge gave the jury the following
instructions with respect to his constitutional right not to
testify:
As to any evidence or facts against him which
the defendant can reasonably be expected to
deny or explain because of facts within his
knowledge, if he does not testify or if,
though he does testify, he fails to deny or
explain such evidence, the jury may take that
failure into consideration as tending to
indicate the truth of such evidence and as
30 A-2734-15T2
511 (1967), the Court] decided that to disbar
a lawyer for his failure to respond to a
subpoena for his records relevant to an
investigation of unethical law practice, when
such refusal was on grounds of the privilege,
was to impose too serious a penalty as the
price of his invocation of the privilege
. . . . [In Garrity v. N.J., 385 U.S. 493(1967), the Court] held that a confession was
illegally introduced into evidence against a
policeman in his criminal prosecution for
conspiracy when it was shown that the
confession was obtained from him during an
investigation under threat of his removal from
office if he declined to furnish certain
information under claim of his privilege.
[Duratron Corp., 95 N.J. Super. at 532(internal citations omitted).]
Finally, in Lefkowitz v. Turley, 414 U.S. 70, 75 (1973), the
defendants public contractors were summoned to testify before a
grand jury and sign waivers of immunity. They refused and invoked
their Fifth Amendment rights against self-incrimination. Id. at
76. The Supreme Court held that compelling public contractors to
testify before a grand jury by threatening them with the loss of
future contracts violated their Fifth Amendment rights against
self-incrimination because "the State may not insist that [the
defendants] waive their Fifth Amendment privilege against self-
indicating that among the inferences that may
be reasonably drawn therefrom those
unfavorable to the defendant are the more
probable.
[Griffin, 380 U.S. at 610.]
31 A-2734-15T2
incrimination and consent to the use of the fruits of the
interrogation in any later proceedings brought against them." Id.
at 85.
Our Supreme Court followed this line of reasoning in Mahne,
66 N.J. at 54, a matrimonial matter in which the plaintiff sought
to obtain a divorce from his wife by charging her with committing
adultery with the defendant Rolf Habermann. The Court upheld
Habermann's right to invoke his right against self-incrimination
and refuse to answer interrogatories propounded by the plaintiff
asking his wife and Habermann if they had committed "adultery and
fornication." Id. at 55. Both of these acts were "misdemeanors"
in 1974 under N.J.S.A. 2A:88-1 and N.J.S.A. 2A:110-1. Ibid. The
Court held "it is evident that the defendants could not have been
directed to answer the interrogatories nor could they have been
fined or imprisoned for their refusal to do so." Id. at 56.
However, the Court in Mahne held the fact-finder could draw
an adverse inference from the defendant's failure to answer these
questions. In reaching this conclusion, our Supreme Court
distinguished the United States Supreme Court's decisions in
Garrity and Spevack, by emphasizing "that neither case arose in
the present context of private litigation between private parties
in which noncriminal sanctions are imposed in aid of orderly
pretrial discovery." Id. at 57. The Mahne Court also explained
32 A-2734-15T2
the public policy underpinning permitting the fact-finder to draw
an adverse inference in this type of civil proceeding,
where the civil plaintiff, who is in court
voluntarily, invokes his privilege at
examination before trial he is unfairly
depriving the defendant of "information
necessary to his defense" and consequently he
may in the court's discretion be subjected to
a sanction as severe as dismissal. On the
other hand, the civil defendant is in court
involuntarily, and when called for pretrial
examination he has "no choice but to appear
and face questions chosen by his opponent
solely for the latter's benefit." Here . . .
the trial court may readily draw an adverse
inference.
[Mahne, 66 N.J. at 60 (quoting Steinbrecher
v. Wapnick, 300 N.Y.2d 564-565 (1969)).]
The same line of reasoning permits the fact-finder in
administrative hearings to draw an adverse inference when a party
declines to testify. See State Dep't of Law and Pub. Safety v.
Merlino, 216 N.J. Super. 579, 587-88 (App. Div. 1987), aff'd, 109
N.J. 134 (1988).
Our Supreme Court and this court have also addressed the
issue of imposing "potent sanctions" on individuals for asserting
their Fifth Amendment rights against self-incrimination. In State
v. Clark, 58 N.J. 72 (1971), when an unmarried mother applied for
public assistance, she was told she first needed to file a
"bastardy complaint" against the father. Id. at 77. When the
trial court later learned the mother was again pregnant by the
33 A-2734-15T2
same man, they were both prosecuted for "fornication." Id. at 81-
2. The Supreme Court held the Fifth Amendment precluded the
prosecution of these charges because the mother was required to
incriminate herself as a condition to receiving public assistance.
Id. at 92.
In Hirsch v. N.J. State Bd. of Med. Exam'rs, 252 N.J.
Super. 596 (App. Div. 1991), the plaintiffs were physicians who
objected to responding to certain questions in license renewal
applications regarding alcohol dependency and mental illness. Id.
at 599-601. Writing for the court, then Judge Coleman9 relied on
Spevack and Garrity to hold, "[a]ny licensee who asserts he or she
has a well-founded basis to believe that answering [certain
questions] would involve self-incrimination respecting drug use
or abuse, may assert the privilege against self-incrimination as
to the last five years." Id. at 608.
In State v. P.Z., 152 N.J. 86, 92 (1997), the Court granted
leave to appeal to consider whether a Division caseworker "must
give Miranda[10] warnings to a parent prior to a non-custodial
interview related to a child abuse investigation." The defendant
in P.Z. provided inculpatory information to the Division
9
Judge James H. Coleman, Jr. was appointed an Associate Justice
of the Supreme Court in 1994 by Governor Christine Todd Whitman.
10
Miranda v. Arizona, 384 U.S. 436 (1966).
34 A-2734-15T2
caseworker in the course of an interview. Ibid. The caseworker
"reported the substance of the statement to the Ocean County
Prosecutor's Office. When the prosecutor later filed criminal
charges, defendant moved to suppress his statement." Ibid. The
Criminal Part Judge conducted a Miranda hearing under N.J.R.E.
104(c), and granted the defendant's motion to suppress the
statement. Ibid. This court affirmed the motion judge. Ibid.The Supreme Court reversed. Ibid.Writing for the majority of the Court in P.Z., Chief Justice
Poritz provided a thorough, scholarly analysis of the "two
'separate and distinct' statutes [enacted by the Legislature] to
protect children from abuse and neglect and to provide for the
termination of parental rights." Id. at 96. She also noted that:
"The criminal justice system acts separately, but in tandem with
the civil system, to investigate and prosecute those who abuse and
neglect children. To the extent that the prospect of criminal
prosecution serves as a deterrent to child abuse, the criminal
justice system also protects children." Id. at 100. The core
facts that makes the case before us here materially different from
P.Z. were best summarized by Chief Justice Poritz:
The circumstances surrounding defendant's
interview on April 5 fail to demonstrate the
coercive atmosphere and restraint of freedom
that comprises a custodial interrogation.
Defendant was interviewed in his home, during
35 A-2734-15T2
the day, with his father nearby. He had
complete freedom to come and go as he pleased.
Although two caseworkers were present, he was
questioned by only one . . . with whom he was
familiar. The caseworker's questions were not
threatening and the interview was not lengthy.
In short, none of the indicia of coercion were
present in the circumstances of the interview.
[P.Z., 152 N.J. at 103 (emphasis added).]
Here, in sharp contrast, at the time of the fact-finding
hearing, defendant had been arrested and charged by the CCPO with
three counts of first degree aggravated sexual assault, four counts
of second degree sexual assault, and two counts of second degree
endangering the welfare of a child.11 Defendant was in the custody
of the Camden County Jail when he invoked his Fifth Amendment
right against self-incrimination and declined to testify when the
DAG called him as a witness in the Division's case in chief. Under
these circumstances, the coercive effects the United States
Supreme Court found so compelling in Spevack and Garrity pale in
11
Pursuant to N.J.R.E. 201(a), we take judicial notice that
defendant was convicted of three counts of first degree aggravated
sexual assault, N.J.S.A. 2C:14-2(a)(2)(a), four counts of second
degree sexual assault, N.J.S.A. 2C:14-2(b), and two counts of
second degree endangering the welfare of a child, N.J.S.A. 2C:24-
4(a)(2). He was sentenced on February 17, 2017 to an aggregate
term of fifty-eight years, subject to an eighty-five percent period
of parole ineligibility pursuant to the No Early Release Act,
N.J.S.A. 2C:43-7.2. He is currently incarcerated at a Department
of Corrections penal institution.
36 A-2734-15T2
comparison to the prospect of losing the Constitutional right to
parent and have a relationship with one's children.
In this Title 9 abuse and neglect fact-finding hearing, it
was constitutionally impermissible for the judge to have drawn an
adverse inference of culpability against defendant when he
exercised his right against self-incrimination and refused to
testify as a witness in the Division's case in chief. Based on
the related criminal charges pending against him at the time,
defendant had a well-founded basis to believe that answering the
DAG's questions would violate his right against self-incrimination
under the Fifth Amendment and N.J.R.E. 503.
IV
Sufficiency of the Evidence
"A 'fact-finding hearing is a critical element of the abuse
and neglect process,' because the court's 'determination has a
profound impact on the lives of families embroiled in this type
of a crisis.'" N.J. Div. of Youth & Family Servs. v. I.Y.A., 400
N.J. Super. 77, 87-88 (App. Div. 2008) (quoting J.Y., 352 N.J.
Super. at 264-65). Thus,
[j]udicial findings based on unspecified
allegations, hearsay statements, unidentified
documents and unsworn colloquy from attorneys
and other participants erodes the foundation
of the twin pillars upon which the statute
rests: (1) that no child should be exposed to
the dangers of abuse or neglect at the hands
37 A-2734-15T2
of their parent or guardian; and,
commensurately, (2) that no parent should lose
custody of his/her child without just cause.
[J.Y., 352 N.J. Super. at 265 (emphasis
added).]
The Supreme Court has made clear that
previous statements made by the child relating
to any allegations of abuse or neglect are
admissible in evidence; provided, however,
that no such statement, if uncorroborated,
shall be sufficient to make a fact finding of
abuse or neglect. Thus, a child's hearsay
statement may be admitted into evidence, but
may not be the sole basis for a finding of
abuse or neglect.
[N.J. Div. of Youth & Family Servs. v. P.W.R.,
205 N.J. 17, 32, 33 (2011) (emphasis added)
(internal citations omitted) (quoting
N.J.S.A. 9:6-8.46(a)(4)).]
Here, the Family Part relied on the audio and video recordings
of Jane's interview conducted on May 30, and June 3, 2015, the NJ
CARES report, the spontaneous statement Jane made to defendant in
the course of a heated oral argument, framed as a rhetorical
question: "how can I respect you when you raped me;" and the
adverse inference of culpability against defendant. Jane, who was
nearly sixteen years old at the time of the fact-finding hearing,
did not testify. The removal of the adverse inference renders the
record devoid of any evidence of corroboration.
38 A-2734-15T2
The judge's factual finding of sexual abuse against defendant
were based entirely on uncorroborated hearsay evidence. Under
these circumstances, the abuse and neglect judgment cannot stand.
V
Ineffective Assistance of Counsel
Parents named as a defendant in an abuse and neglect complaint
filed by the Division in the Family Part are entitled to effective
assistance of counsel. N.J. Div. of Youth & Family Servs. v.
B.R., 192 N.J. 301, 311 (2007); N.J. Div. of Youth & Family Servs.
v. B.H., 391 N.J. Super. 322, 346 (App. Div. 2007). The Court in
B.R. adopted the standard established by the United States Supreme
Court in Strickland v. Washington, 466 U.S. 688, 687 (1984), and
later adopted by our Supreme Court in State v. Fritz, 105 N.J. 42(1987), to determine whether counsel's performance fell below the
standard of competence expected of an attorney admitted to practice
in this State. Thus, to show ineffective assistance of counsel,
a defendant must: (1) identify acts or omissions allegedly showing
unreasonable professional judgment, and (2) show that those acts
had a prejudicial effect on the judgment. Fritz, 105 N.J. at 58.
The record of the fact-finding hearing shows the judge did
not have a full legal understanding of the constitutional
implications of drawing an adverse inference of culpability
against defendant under these circumstances. At the December 11,
39 A-2734-15T2
2015 pre-trial hearing, defense counsel claimed he had researched
the case law concerning whether the judge could draw such an
adverse inference against defendant under these circumstances.
At the fact-finding hearing conducted on January 25, 2016, defense
counsel did not cite any legal authority to support an argument
against this critical aspect of the Division's case, seeming to
concede the point.
Despite evidence in the record showing that Jane had made
numerous inconsistent statements concerning the nature and
duration of the sexual abuse, defense counsel did not make any
effort to call her as witness. Defense counsel did not argue that
the Division's case against his client was based entirely on
hearsay evidence, leaving him unable to cross-examine any of the
witnesses who provided prerecorded statements that were considered
by the judge. Most egregiously, despite his representation to the
judge at the pre-trial hearing that he had researched the law on
the use of adverse inferences in civil trials, defense counsel
seemed utterly unfamiliar with the body of case law this court has
discussed here.
We conclude defendant established both prongs of the
Strickland-Fritz standard. Defense counsel was ill-prepared to
represent defendant at the fact-finding hearing. Defense
counsel's conduct fell below the standard of professional
40 A-2734-15T2
competence expected from an attorney in this State. Furthermore,
defense counsel's lack of preparation materially prejudiced
defendant's right to a fair fact-finding hearing, thus satisfying
the second prong under Strickland-Fritz.
VI
Summary
The Family Part Judge erred when he drew an adverse inference
of culpability that defendant sexually abused his biological
daughter Jane, based only on defendant's refusal to testify as a
witness in the Division's case in chief. Under these
circumstances, defendant's decision to refuse to testify was
constitutionally protected under the Fifth Amendment of the United
States Constitution and N.J.R.E. 503. Because the judge relied
on defendant's silence to draw an adverse inference of culpability
to corroborate the child's hearsay statements, the Division failed
to prove, by a preponderance of the competent evidence, that
defendant sexually abused his daughter Jane, as defined in N.J.S.A.
9:6-8.21(c)(3).
Finally, we conclude that defendant received ineffective
assistance of counsel at the fact-finding hearing. Defendant
presented sufficient evidence in the record to establish both
prongs of the Strickland-Fritz standard.
Reversed.
41 A-2734-15T2
KOBLITZ, J.A.D., concurring.
While I concur in the result the panel reaches, I do not
agree that a parent is entitled to invoke the right against self-
incrimination and decline to testify at a fact-finding hearing in
an abuse or neglect matter, because, in my view, the parent's
testimony may not subsequently be used by the prosecutor in a
parallel criminal proceeding.
Child welfare cases are not the only Family proceedings that
may involve a parallel and slower-moving criminal prosecution.
Domestic violence trials statutorily involve criminal allegations,
see N.J.S.A. 2C:25-19(a) (defining "domestic violence" with
reference to specific criminal acts), although as in all Family
cases, the standard of proof is not as stringent as in a criminal
proceeding, see N.J.S.A. 2C:25-29(a) (requiring proof by a
preponderance of the evidence). Although domestic violence
records are sealed under threat of criminal prosecution, N.J.S.A.
2C:25-34, domestic violence trials are held in open court, see R.
1:2-1 (requiring that "[a]ll trials . . . be conducted in open
court unless otherwise provided by rule or statute"), and thus a
defendant's testimony is accessible to the public and to the
prosecutor in a parallel criminal prosecution. Similar to child
welfare litigation, domestic violence matters cannot be adjourned
to accommodate the lengthy criminal process, allowing a defendant
to testify after the criminal matter is closed, thus avoiding
criminal exposure. See State v. Kobrin Securities, Inc., 111 N.J.
307, 310, 312-15 (1988) (in the securities fraud context,
explaining that defendants could assert their right against self-
incrimination in parallel civil proceedings, but could not
"indefinitely" stay those proceedings until conclusion of their
criminal matters). Domestic violence hearings should be scheduled
within ten days. N.J.S.A. 2C:25-29(a). The Legislature has
explicitly provided that a defendant's testimony in a domestic
violence case may not be used against him or her in a criminal
prosecution. Ibid. In a situation where frequently the parties
have only their conflicting testimony to present, defendant is
thus not precluded from providing a defense. Given the duration
and broad range of remedies available under the statute and, as a
result, the severe consequences, N.J.S.A. 2C:25-29(b), the
Legislature wisely ensured the court would have before it a full
record upon which to make a determination.
The best interests of children are the prime concern of our
child welfare system. N.J.S.A. 9:6-8.8(a); N.J.S.A. 30:4C-1.
Resulting court decisions are important. See In re Adoption of
J.E.V., 442 N.J. Super. 472, 481 (App. Div. 2015) (noting that the
panel could "think of no legal consequence of greater magnitude
than the termination of parental rights"), aff'd, 226 N.J. 902 A-2734-15T2
(2016). Not only do parents have the Constitutional right to
raise their children absent interference from the State, Stanley
v. Illinois, 405 U.S. 645, 651 (1972), but also children have the
right to a safe and secure home, see Dep't of Children & Families
v. E.D.-O., 223 N.J. 166, 178 (2015) (recognizing, as the most
important among children's legal rights, the "right of protection
from physical abuse and neglect" (quoting Sponsor's Statement to
S. 1217 (Apr. 29, 1974))). Courts need all available evidence to
determine the often extremely difficult path to greater safety and
security for a child. The power to separate a child from a parent
is an extraordinary power that should not be exercised with
unnecessarily limited vision. See N.J. Div. of Child Prot. &
Permanency v. K.S., 445 N.J. Super. 384, 390 (App. Div. 2016)
(holding the trial court erred in refusing to reopen the record
to afford the mother an opportunity to testify in a proceeding to
terminate her parental rights). Not only does it benefit the
defendant parent, as in domestic violence cases, to present his
or her side of the story, but it benefits the children by providing
a fuller picture of the situation.
Child protective hearings are nearly always closed. N.J.
Div. of Youth & Family Servs. v. J.B., 120 N.J. 112, 127-28 (1990).
The records are sealed. Although the prosecutor and Division do
share investigative resources, Div. of Youth & Family Servs. v.
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Robert M., 347 N.J. Super. 44, 63-64 (App. Div. 2002), frequently
interviewing children jointly and sharing investigative reports,
the transcript of a child welfare hearing is not available to the
prosecutor. As my colleagues point out, the Division is required
to share its investigative records with the prosecutor. N.J.S.A.
9:6-8.10a(b)(2). But the statute defines the "records" that must
be shared as:
All records of child abuse reports made
pursuant to section 3 of P.L.1971, c.437
(C.9:6-8.10), all information obtained by the
Department of Children and Families in
investigating such reports including reports
received pursuant to section 20 of P.L.1974,
c.119 (C.9:6-8.40), and all reports of
findings forwarded to the child abuse registry
pursuant to section 4 of P.L.1971, c.437
(C.9:6-8.11).
[N.J.S.A. 9:6-8.10a(a).]
This definition of records does not include a trial transcript.
Moreover, the right of a prosecutor to participate in a
hearing on visitation pursuant to Rule 5:12-6(a) allows the
prosecutor to have input only into a condition of release on
criminal charges. Ordinarily in a criminal case, no contact with
the alleged victim is imposed as a condition of release. See
State v. Wright, 410 N.J. Super. 142, 152 & n.3 (Law Div. 2009)
(noting a no-contact condition serves the goal of protecting the
public). Frequently visitation of some kind with a parent is
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allowed in the parallel child welfare case. Even a neglected or
abused child most often benefits from some contact with the
perpetrating parent. The Division has the capacity to provide
supervised visitation, not commonly available in criminal matters.
The Family court determines the visitation accorded a released
defendant, but the prosecutor is permitted input in that sole
aspect of the Family case, so that the court will have the fullest
possible information before making the decision, and the
prosecution will be assured the child is safe and its witness
protected from possible intimidation.
The limited appearance by the prosecutor in the child welfare
case to resolve the issue of visitation does not dictate our
decision here. Unlike in the domestic violence context, the
Legislature had no need to enact a specific provision to ensure
that a parent's testimony could not be used in the parallel
criminal proceeding. Child welfare proceedings are conducted in
closed courtrooms, inaccessible to the public, including the
prosecutor or other interested party. J.B., 120 N.J. at 127-28.
Only the court may lift that seal.
The testimony of a parent accused of abuse or neglect should
be heard by the court for the protection and benefit of the child.
Unlike in most adversarial proceedings, the third party, the
innocent child, is the most important party in a child welfare
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case. The court should be well-informed before making decisions
that will forever affect the child and the family. Here, in my
view, the court should have denied the defendant father's
application to invoke the right to remain silent and required him
to testify, while assuring the father that his testimony could not
be used against him in the pending parallel criminal proceeding.
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