State v. P.Z. , 152 N.J. 86 ( 1997 )

The opinion of the Court was delivered by

PORITZ, C.J.

We granted leave to appeal, 143 N.J. 480, 672 A.2d 1164 (1996), to consider whether a caseworker from the Child Protective Services Unit of the Division of Youth and Family Services (“DYFS” or “Division”) must give Miranda warnings to a parent prior to a non-eustodial interview related to a child abuse investigation. Defendant, P.Z., provided an inculpatory statement to a DYFS caseworker during an at-home interview conducted in the course of a Title Nine¹ inquiry. 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. The trial court ruled defendant’s statement inadmissible, and the Appellate Division affirmed. 285 N.J.Super. 219, 666 A.2d 1000 (1995). We reverse.

I

In November 1993, defendant’s seven-week-old daughter, C.Z., was admitted to Jersey Shore Medical Center where she was diagnosed with and treated for “Shaken Baby Syndrome.” Shaken Baby Syndrome was first recognized in the 1970s. Robin Elizabeth Margolis, Healthtrends, Healthspan, June 1994, at 21. Babies who have been grabbed by the chest or upper arms and violently shaken back and forth exhibit certain injuries characteristic of the syndrome. These babies may come to the attention of the medical community because of “projectile vomiting, sleepiness, poor appetite, eye hemorrhages, brain hemorrhages, and seizures.” Ibid. Although they generally do not show signs of external injuries, babies who have been violently shaken may become severely brain-damaged or permanently blind. Some die. Ibid.; see also State v. Compton, 304 N.J.Super. 477, 485-87, 701 A.2d 468 (App.Div.1997) (discussing recognition of Shaken Baby Syndrome in “medical ... literature” and caselaw). C.Z. suffered from both old and new bleeding in the brain and from retinal bleeding in both eyes.

The hospital notified DYFS about C.Z.’s injuries as mandated by N.J.S.A. 9:6-8.10 when there is “reasonable cause to believe that a child has been subjected to child abuse.” DYFS commenced a Title Nine investigation and reported the ease to the Ocean County Prosecutor’s Office. Initial interviews conducted by a DYFS caseworker with defendant, his wife, and defendant’s father did not reveal a plausible explanation for C.Z.’s injuries. Shortly thereafter, on behalf of DYFS and pursuant to N.J.S.A. 9:6-8.21 to -8.73 and N.J.S.A. 30:4C-12, the Attorney General instituted a civil action against defendant and his wife. DYFS sought temporary custody of C.Z. and her then two-year-old sister, M.Z., on the grounds that C.Z. had been injured by “other than accidental means” and that the Division was unable to ascertain who had caused the child’s injuries. N.J.S.A. 9:6-8.21. Defendant and his wife were represented by separate counsel in the Title Nine action.

The Chancery Division granted legal custody of both children to DYFS but gave physical custody of M.Z. to her paternal grandfather. C.Z. remained hospitalized. Two subsequent orders were entered in January and March. The first provided that M.Z. would remain with her paternal grandfather, that defendant and his wife would live at a different location and have no unsupervised contact with M.Z., that defendant would submit to a drug and alcohol evaluation, and that the couple would submit to counseling, psychiatric evaluation, and parenting skills classes. The second order directed DYFS to obtain recommendations from the treating therapist and from a physician about visitation and family reunification.

Shortly before April 5, 1994, defendant’s wife informed her counselor that defendant had admitted causing C.Z.’s injuries. C.Z. had been hospitalized for five months and was expected to be released shortly. Her mother’s statement was therefore critical to the placement of both C.Z. and her older sister. DYFS caseworker Cheryl Ann Kobran attended a case planning conference with her supervisors and the Deputy Attorney General in charge of the Title Nine action to discuss how to proceed with the new information provided by defendant’s wife. It was decided that Kobran should interview P.Z. after contacting the Ocean County Prosecutor’s Office to determine whether the interview would impede any pending investigation by that office.

On the morning of April 5, Kobran spoke to Investigator Joseph Lazzaro at the Prosecutor’s Office and advised him that she planned to interview P.Z. Investigator Lazzaro informed Kobran that, although the Prosecutor’s Office could not interview defendant because he had a lawyer, there was no obstacle to DYFS questioning P.Z. Lazzaro then asked Kobran to report the results of her interview with defendant to the prosecutor.

Later that day, Kobran and another DYFS caseworker, Donna Martinez, made an unannounced home visit to defendant. Kobran had been working with the family and was familiar to P.Z. She told defendant she was there to ask him about his wife’s statement that he had admitted causing his infant daughter’s injuries. Defendant’s father was present and Kobran asked him to leave the room because he was talking. The father complied with Kobran’s request and waited outside on the front porch while Kobran completed the interview.

Defendant acknowledged that he knew why Kobran was there, but said his attorney had told him not to speak to anyone. Kobran nonetheless encouraged defendant to speak, telling him that she was there to complete the DYFS investigation and to decide where to place C.Z. upon her impending discharge from the hospital. The caseworker also indicated concerns about M.Z.’s placement because of the new information obtained from P.Z.’s wife. Defendant admitted causing C.Z.’s injuries by shaking the baby two or three times because she was crying and he could not console her. He said that he felt remorse for what had happened and that he deserved to be punished. Kobran advised defendant that his statement would be turned over to the Prosecutor’s Office and left with Martinez.

Almost six months later, on September 28, 1994, defendant was charged with two crimes of the second degree: endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4a, and aggravated assault, in violation of N.J.S.A. 2C:12-lb(l). Defendant pled not guilty to the charges and his attorney moved to suppress his April 5 statement to Kobran. The Title Nine action concluded on February 10, 1995 when custody of C.Z. and M.Z. was granted to their mother.

A Miranda² hearing was held in May 1995. Defendant claimed that his rights, as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, had been violated by the State. The trial court ruled that defendant’s statement was inadmissible at his criminal trial. The court determined that defendant’s Fifth Amendment rights had not been violated because Kobran’s interview -with defendant was non-eustodial. However, the court considered that defendant had invoked his Sixth Amendment right to counsel when he told Kobran his attorney had advised him not to talk to her. The court found persuasive that a Title Nine action was pending, that counsel had been appointed for defendant, that the Prosecutor’s Office was investigating the matter, and that the prosecutor had knowledge that the “interview [was] taking place.”

The Appellate Division granted the State’s motion for leave to appeal and affirmed the suppression of P.Z.’s statement. 285 N.J.Super. at 219, 666 A.2d 1000. The panel focused on the “serious personal consequences” that flowed from a Title Nine proceeding and concluded that “there was at least some coercive element in the environment of the situation confronting defendant” because “parallel civil and criminal systems [were] both operating against [him].” Id. at 227, 666 A.2d 1000. Despite “a paucity of case law” in support of its position, the court held broadly that “fundamental fairness and ... the Title Nine objective of child protection” require that statements made to DYFS in the context of a “Title Nine investigation may not be used against a party in a criminal action unless there is advice of Miranda rights and the affording of the Sixth Amendment right to counsel.” Id. at 229, 666 A.2d 1000.

II

-A-

The New Jersey Legislature has enacted two “separate and distinct” statutes to protect children from abuse and neglect and to provide for the termination of parental rights. New Jersey Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 558, 643 A.2d 987 (1994). Title Nine governs the adjudication of abuse and neglect cases, while Title Thirty sets forth the procedures for the permanent removal of children from their parents. See New Jersey Div. of Youth & Family Servs. v. E.B., 137 N.J. 180, 185, 644 A.2d 1093 (1994). The express purpose of Title Nine is to

provide for the protection of children under 18 years of age who have had serious injury inflicted upon them by other than accidental means. It is the intent of this legislation to assure that the lives of innocent children are immediately safeguarded from further injury and possible death and that the legal rights of such children are fully protected.

[N.J.S.A 9:6-8.8.]

Because child abuse and neglect are often difficult to detect, Title Nine provides that “[a]ny person having reasonable cause to believe that a child has been subjected to child abuse or acts of child abuse” must inform DYFS³ immediately. N.J.S.A 9:6-8.10. The Division is required to investigate the allegations, N.J.S.A 9:6-8.11, -8.18; N.J.S.A 30:4C-11, -12, and to take appropriate action to safeguard the child or children from further injury, N.J.SA 9:6-8.8, -8.11, -8.18. When warranted by the circumstances, DYFS may seek an order from the court placing the child in the protective custody of the State. N.J.S.A 9:6-8.18.

At the preliminary stage, before a complaint is filed, Title Nine permits DYFS to identify less serious cases that are suitable for adjustment. N.J.SA 9:6-8.35. Upon written notice to the parent or guardian, the Division may then hold a preliminary conference to resolve such cases informally. Ibid. Statements made by a potential respondent at the preliminary conference are inadmissible in any later fact-finding hearing under Title Nine or in any criminal litigation prior to conviction. N.J.S.A 9:6-8.36.

When a case is unsuitable for informal resolution, DYFS is authorized to originate proceedings by filing a formal complaint alleging abuse and neglect in the Superior Court, Chancery Division, Family Part. N.J.S.A 9:6-8.33, -8.34. Within three days, the child’s parent or guardian must appear in court, at which time the court is required to inform “the parent or guardian of his [or her] right to have an adjournment to retain counsel and consult with him [or her].” N.J.S.A 9:6-8.43a. Indigent parents or guardians must be advised by the court of their right to apply for an attorney through the Office of the Public Defender. Ibid.; see also E.B., supra, 137 N.J. at 186, 644 A.2d 1093; New Jersey Div. of Youth and Family Servs. v. T.C., 251 N.J.Super. 419, 435, 598 A.2d 899 (App.Div.1991), certif. denied, 146 N.J. 564, 683 A.2d 1160 (1992).

DYFS caseworkers maintain frequent contact with the family, meeting to discuss family history and dynamics, and ways to remediate problems leading to abuse or neglect. The Division may seek appropriate protective orders from the court requiring supervised visitation and rehabilitative services for both parents and children. N.J.S.A 9:6-8.18, -8.28, -8.31, -8.50e, -8.51, -8.58.

Title Nine contemplates criminal prosecution of acts of abuse and neglect that constitute crimes.⁴ N.J.S.A 9:6-8.36a specifically requires that DYFS “immediately report all instances of suspected child abuse and neglect ... to the county prosecutor.” Likewise, once the Division files a child abuse complaint with the Family Part, the court must immediately send a copy of the complaint to the county prosecutor. N.J.S.A. 9:6-8.25a. Although DYFS records are subject to strict confidentiality requirements, an exception permits DYFS to provide information to law enforcement agencies investigating child abuse or neglect and to “[a] grand jury upon its determination that access to such records is necessary.” ⁵ N.J.SA 9:6-8.10a(b)(2)(7). Title Nine also permits the prosecutor to institute a criminal action against the parent or guardian even as the child abuse action continues in the Family Part. N.J.SA 9:6-8.24d, -8.25c.

The Division’s regulations set forth guidelines and establish procedures for determining which cases must be referred to the prosecutor’s office and how referrals are to be made. N.J.A.C. 10:129-1.1 to -1.5. The caseworker must report matters involving: the death of a child; suspected sexual abuse; any injury or condition requiring hospitalization or emergency room treatment; any injury requiring more than superficial medical attention (e.g., broken bones); repeated instances of physical violence committed against a child; substantial deprivation of necessary care over a period of time; or abandonment of a child. N.J.AC. 10:129— 1.3a(l)-(6). As soon as DYFS has information that the child’s condition or injury fits one of the enumerated categories and “the caseworker has reason to believe that the condition or injury was not accidentally caused,” a referral is required. N.J.AC. 10:129-1.3d; see also N.J.AC. 10:129-1.3e. If the prosecutor decides to bring a criminal case, the caseworker must be advised. N.J.AC. 10:129-1.5c.

-B-

Justice O’Hern has spoken eloquently of the intrusion of the real world into “that model of the family that our popular culture portrays.” New Jersey Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 599, 512 A.2d 438 (1986). In the real world children are abused and neglected, most often in their homes where we expect them to be kept safe from harm. Title Nine responds to the terrible reality that not all children are safe with their families by providing for the removal of abused and neglected children and for appropriate protective orders when necessary to ensure their safety. The inquiry in every case focuses on the best interests of the child.

At the same time, the goal of family rehabilitation and reunification — the return of the child to the family — is a priority “unless that goal is not in the best interest of the child.” N.J.S.A 30:4C-60. The goal recognizes both the value to children of being restored to their families when possible, and the rights of parents to be with and to raise their children. See In re Guardianship of J.C., 129 N.J. 1, 7-8, 608 A.2d 1312 (1992); A.W., supra, 103 N.J. at 599-600, 512 A.2d 438. The abused child’s interest is paramount; only when the child can be protected within the family will the parents’ interest in the care and custody of their child also be realized.

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. See Douglas J. Besharov, Child Abuse: Arrest and Prosecution Decision-Making, 24 Am. Crim. L.Rev. 315, 321 (1986). In some cases, the offender’s removal from the home by prosecutorial authorities is in the best interests of the child. Id. at 333.

This case requires us to consider the rights of a parent who is under investigation for child abuse by DYFS pursuant to Title Nine and who may be subject to criminal prosecution for the same abusive behavior.

Ill

The State contends that defendant’s Fifth Amendment privilege against self-incrimination was not violated when he spoke to the DYFS caseworker on April 5,1994. It is the State’s position that the caseworker was not obligated to give Miranda warnings or, alternatively, to cease questioning defendant when he said that his lawyer told him not to speak to anyone. The State denies that defendant was coerced into admissions of child abuse by an implied threat that his children would not be returned unless he made a statement.

-A-

The Fifth Amendment privilege against self-incrimination, made applicable to the states through the Fourteenth Amendment, provides that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. As explained in Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653, 659 (1964), the Fifth Amendment protects “the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own free will, and to suffer no penalty ... for such silence.” It reflects our understanding that government is “constitutionally compelled to establish guilt by evidence independently and freely secured, and may not by coercion prove a charge against an accused out of his own mouth.” Ibid.

In New Jersey, the privilege is derived from the common law and is codified in our statutes and rules. State v. Reed, 133 N.J. 237, 250, 627 A.2d 630 (1993); see N.J.S.A. 2A:84A-19; N.J.R.E. 503. Its importance is not diminished by the lack of specific constitutional articulation; rather, from colonial times, “New Jersey has recognized the right against self-incrimination and has consistently and vigorously protected that right.” Reed, supra, 133 N.J. at 250, 627 A.2d 630.

A person invoking the privilege against self-incrimination may do so “ ‘in any ... proceeding, civil or criminal, formal or informal, where the answers might tend to incriminate him in future criminal proceedings.’ ” Minnesota v. Murphy, 465 U.S. 420, 426, 104 S.Ct. 1136, 1141, 79 L.Ed.2d 409, 418 (1984) (quoting Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 322, 38 L.Ed.2d 274, 281 (1973)); Banca v. Town of Phillipsburg, 181 N.J.Super. 109, 114-15, 436 A.2d 944 (App.Div.1981); see New Jersey Div. of Youth & Family Servs. v. S.S., 275 N.J.Super. 173, 179, 645 A.2d 1213 (App.Div.1994). However, the privilege is not self-executing under either federal or state law and must be invoked by anyone claiming its protection. Murphy, supra, 465 U.S. at 428-29, 104 S.Ct. at 1142-43, 79 L.Ed.2d at 419-20; Reed, supra, 133 N.J. at 251, 627 A.2d 630. Generally, when the privilege is not asserted and the person questioned chooses to answer, the choice to respond is considered voluntary. Murphy, supra, 465 U.S. at 429, 104 S.Ct. at 1143, 79 L.Ed.2d at 420; State v. Fary, 19 N.J. 431, 435,117 A.2d 499 (1955).

As is well known, an exception to this general rule was created by the United States Supreme Court more than thirty years ago in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), wherein the Court determined that a custodial interrogation by law enforcement officers is inherently coercive, automatically triggering the Fifth Amendment privilege against self-incrimination. “Miranda warnings” are now household words in the United States. Today even schoolchildren know that when a person in police custody is questioned by law enforcement, he must be told that he has the right to remain silent, that any statement he makes may be used against him, that he has the right to an attorney, and that if he cannot afford an attorney, one will be provided for him. Id. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706-07.

The predicate requirements of Miranda are that the defendant must be in custody and the interrogation must be carried out by law enforcement. Id. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706. Miranda turns on the potentially inquisitorial nature of police questioning and the inherent psychological pressure on a suspect in custody. Id. at 445-58, 86 S.Ct. at 1612-19, 16 L.Ed.2d at 707-14. The rule Miranda enunciates is prophylactic, designed to overcome the singular problems associated with custodial interrogation after a defendant is arrested or otherwise confined. Murphy, supra, 465 U.S. at 433, 104 S.Ct. at 1145, 79 L.Ed.2d at 423; Beckwith v. United States, 425 U.S. 341, 346, 96 S.Ct. 1612, 1616, 48 L.Ed.2d 1, 7 (1976).

-B-

Defendant acknowledges he was not in custody when Cheryl Ann Kobran questioned him. We note that application of the totality of the circumstances test followed by both the federal and New Jersey courts would defeat a claim that he was in custody at the time of his interview. See Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 1528-29, 128 L.Ed.2d 293, 298 (1994); State v. Pierson, 223 N.J.Super. 62, 67, 537 A.2d 1340 (App.Div.1988). Under federal law, the “ultimate inquiry is simply whether there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275, 1279 (1983) (internal quotation marks omitted). Our courts have also recognized that “custody in the Miranda sense does not necessitate a formal arrest, ‘nor does it require physical restraint in a police station, nor the application of handcuffs, and may occur in a suspect’s home or a public place other than a police station.’” State v. Lutz, 165 N.J.Super. 278, 285, 398 A.2d 115 (App.Div.1979) (quoting State v. Godfrey, 131 N.J.Super. 168, 175, 329 A.2d 75 (App.Div.1974)), aff'd, 67 N.J. 267, 337 A.2d 371 (1975). The critical determinant of custody is whether there has been a significant deprivation of the suspect’s freedom of action based on the objective circumstances, including the time and place of the interrogation, the status of the interrogator, the status of the suspect, and other such factors. See State v. Coburn, 221 N.J.Super. 586, 596-97, 535 A.2d 531 (App.Div.1987), certif. denied, 110 N.J. 300, 540 A.2d 1281 (1988); In re A.B., 278 N.J.Super. 380, 384, 651 A.2d 118 (Ch.Div.1994); see also J.F. Ghent, What Constitutes “Custodial Interrogation” Within Rule of Miranda v. Arizona Requiring That Suspect be Informed of His Federal Constitutional Rights Before Custodial Interrogation, 31 A.L.R.3d 565, 577 (1970).

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 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, Kobran, 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.

Because defendant was not in custody when he was questioned by Kobran, we need not reach the question whether Kobran was acting as a law enforcement officer. This case is thus distinguishable from the two previous New Jersey cases which held that DYFS workers were acting as law enforcement officers when they questioned defendants who were incarcerated. See State v. Helewa, 223 N.J.Super. 40, 537 A.2d 1328 (App.Div.1988); State v. Flower, 224 N.J.Super. 208, 539 A.2d 1284 (Law Div.1987), aff'd, 224 N.J.Super. 90, 539 A.2d 1223 (App.Div.1988). In Helewa, supra, the defendant had been advised of his Miranda rights upon his arrest for sexually assaulting his two daughters. 223 N.J.Super. at 42, 537 A.2d 1328. He was subsequently interviewed by a caseworker while incarcerated in the Middlesex County Adult Corrections Center. Ibid. The court held that “the DYFS caseworker must be equated with a law enforcement officer for purposes of Miranda when conducting a custodial interview.” Id. at 52, 537 A.2d 1328. Similarly, in Flower, supra, the defendant was interviewed by a caseworker when he was incarcerated in a county jail after having been arrested and charged with the sexual assault of a three-and-a-half year old child. 224 N.J.Super. at 211, 539 A.2d 1284. After observing, “[i]t is not all questioning by a social service worker that will constitute acting in a law enforcement capacity,” id. at 218, 539 A.2d 1284, the court held that, in the circumstances, the caseworker should have given the defendant Miranda warnings, id. at 220, 539 A.2d 1284. In both cases, the defendants had been arrested and confined at the time of the interviews.

Defendant claims he “did not lose all of his Fifth Amendment protections simply because he was not in custody at the time he was questioned.” He asserts that the privilege against self-incrimination applied to the DYFS interview and that he properly invoked the privilege when he stated that his attorney had advised him not to speak with Ms. Kobran. Certainly, defendant retained his Fifth Amendment protections during his interview with Kobran. The question is whether, in the circumstances, Miranda warnings were required or whether it rested with defendant to assert his privilege. See Murphy, supra, 465 U.S. at 429-30, 104 S.Ct. at 1143-44, 79 L.Ed.2d at 420-21. If Miranda warnings were required, defendant’s reference to his attorney’s advice would have been tantamount to an invocation of his right to remain silent.

Again, despite defendant’s assertions to the contrary, the issue turns on his non-custodial status. Had defendant been in custody at the time of the interview, under New Jersey law his “request, ‘however ambiguous,’ to terminate questioning” would have been sufficient to trigger his right to remain silent. State v. Hartley, 103 N.J. 252, 263, 511 A.2d 80 (1986) (quoting State v. Kennedy, 97 N.J. 278, 288, 478 A.2d 723 (1984)). Likewise, his invocation of the right to counsel “need not [have been] articulate, clear, or explicit ...; any indication of a desire for counsel, however ambiguous, will trigger entitlement to counsel.” Reed, supra, 133 N.J. at 253, 627 A.2d 630 (observing also that “the state right against self-incrimination is based on the understanding that the privilege is defined by ... ancillary rights, like the right to counsel during custodial interrogation”); see also State v. Chew, 150 N.J. 30, 63, 695 A.2d 1301 (1997) (holding that “defendant’s request that his mother contact his attorney was an equivocal invocation of the right to counsel that had to be clarified before questioning could take place”).

However, defendant was not in custody when he answered the caseworker’s questions. Although he was free to remain silent and to insist upon having his lawyer present, the circumstances were not such as to require Kobran to stop the interview when defendant said that his lawyer had advised him not to discuss the matter with anyone. Later P.Z. testified at his suppression hearing that he had an agreement with his wife to inform DYFS “[t]hat I shook the baby.” P.Z.’s version of the events leading up to and including the interview with Kobran confirm that defendant had decided, prior to Kobran’s visit, and irrespective of his lawyer’s admonition, to admit shaking his daughter. That decision was his to make.

We conclude that defendant’s reference to his attorney did not, in this setting, invoke his right to remain silent such that Kobran was required to terminate the interview.

-c-

Custodial interrogations by law enforcement officers are not the only special circumstances in which the Fifth Amendment privilege against self-incrimination is self-executing. Murphy, supra, 465 U.S. at 434, 104 S.Ct. at 1145-46, 79 L.Ed.2d at 423-24. Both the United States Supreme Court and our New Jersey courts have consistently held that the state may not force an individual to choose between his or her Fifth Amendment privilege and another important interest because such choices are deemed to be inherently coercive. See Lefkowitz v. Cunningham, 431 U.S. 801, 805-08, 97 S.Ct. 2132, 2135-37, 53 L.Ed.2d 1, 6-9 (1977) (holding unconstitutional statute that required political party officer to testify without immunity before grand jury or forfeit his office and be barred from holding another party office); Turley, supra, 414 U.S. at 75-84, 94 S.Ct. at 321-25, 38 L.Ed.2d at 281-85 (holding unconstitutional statute that compelled public contractors to testify without immunity concerning their state contracts or forfeit those contracts and be disqualified from future state dealings); State v. Clark, 58 N.J. 72, 83-92, 275 A.2d 137 (1971) (holding both Fifth Amendment and public policy require that neither unmarried welfare applicant nor father of her children could be prosecuted for fornication where applicant was required to institute bastardy proceedings against father to obtain benefits); Hirsch v. New Jersey State Bd. of Med. Exam’rs, 252 N.J.Super. 596, 605-09, 600 A.2d 493 (App.Div.1991) (holding physicians could not be compelled to answer questions about drug use upon threat of suspension or non-renewal of medical license without accord of immunity), aff'd, 128 N.J. 160, 607 A.2d 986 (1992); see also Garrity v. New Jersey, 385 U.S. 493, 499-500, 87 S.Ct. 616, 620, 17 L.Ed.2d 562, 566-67 (1967) (holding that, consistent with guarantees of Fourteenth Amendment, State may not compel police officers to answer work-related questions or lose their employment). These cases are based on the principle that the Fifth Amendment is violated “when a State compels testimony by threatening to inflict potent sanctions unless the constitutional privilege is surrendered.” Cunningham, supra, 431 U.S. at 805, 97 S.Ct at 2135, 53 L.Ed.2d at 7.

In this case, defendant asserts that his statement was obtained in a similarly coercive manner because he was faced with an implied threat that his children would not be returned unless he admitted responsibility for his youngest daughter’s injuries. Defendant testified that “someone,” not Kobran or Martinez, had advised him and his wife that “we would get our children back if one of us would confess — whether we did it or not — -to the injuries.” This “someone,” it is claimed, placed undue pressure on defendant to admit child abuse in order to regain custody of his children.

We begin with the general observation that, by acknowledging their abusive behaviors, parents can begin to understand and reform those behaviors, and that acknowledgment is an important step in the rehabilitation of the family. See In re H.R.K., 433 N.W.2d 46, 50 (Iowa.Ct.App.1988) (“[T]he requirement that the parents acknowledge and recognize the abuse before any meaningful change can occur is essential to meeting the child’s needs.”); In re S.A.V., 392 N.W.2d 260, 264 (Minn.Ct.App.1986) (“The trial court’s finding that the parents need to recognize the cause of the children’s injuries before any meaningful change can occur recognizes that a parent who acknowledges the need for professional help is more amenable to treatment than one who denies the need for such help.”). At P.Z.’s suppression hearing, the DYFS caseworker confirmed the view that “in general” parental counseling is more effective when the parents “admit what they did wrong” and that parents who are trying to deal with their problems “ultimately do better in getting their children back.” Her understanding is supported by theories about rehabilitation in other contexts. See, e.g., State v. Leggeadrini, 75 N.J. 150, 160, 380 A.2d 1112 (1977) (discussing criminal defendant’s amenability to rehabilitation upon “acknowledgment of grievous wrongdoing” as mitigating factor to be taken into account in sentencing).

Although an admission of abuse may aid in the rehabilitative process, termination of custody is not automatic on invocation of the privilege. We therefore consider inapplicable those cases holding unconstitutional a requirement that an individual choose between the right to remain silent and another vital interest. We note that the Supreme Courts of Minnesota and Vermont have reached similar conclusions. See In re J.W., 415 N.W.2d 879 (Minn.1987); In re M.C.P., 153 Vt. 275, 571 A.2d 627 (1989). In In re J.W., supra, the Minnesota Supreme Court was confronted with “a court-ordered treatment plan requiring [the parents of neglected children] to make incriminating disclosures as part of their rehabilitation therapy.” 415 N.W.2d at 880. When the parents invoked their Fifth Amendment privilege, the state’s attorney indicated his intention to file for termination of parental rights. Id. at 882. “This threat,” the court said, “is genuine, direct, and immediate, and the penalty threatened is a ‘potent sanction.’” Ibid. (citing Cunningham, supra, 431 U.S. at 805, 97 S.Ct. at 2135, 53 L.Ed.2d at 7). The court held that the order of the lower court, “to the extent it requires appellants to incriminate themselves, violates [their] Fifth Amendment rights and is unenforceable.”

The Minnesota Supreme Court’s holding is consistent with the decisions of the United States Supreme Court and this Court in cases where individuals were compelled to testify or lose a previously held benefit. See supra at 106-107, 703 A.2d at 911-912. Of particular relevance to this ease, however, is the court’s further discussion about the scope of the privilege when there is no direct threat but, instead, a possibility that therapeutic outcomes will be determinative of parental rights. The court considered the parents’ choice whether or not to admit abuse unprotected by the Fifth Amendment:

While the state may not compel therapy treatment that would require appellants to incriminate themselves, it may require parents to otherwise undergo treatment. Therapy, however, which does not include incriminating disclosures, may be ineffective; and ineffective therapy may hurt the parents’ chances of regaining their children. These consequences lie outside the protective ambit of the Fifth Amendment.

... In the lexicon of the Fifth Amendment, the risk of losing the children for failure to undergo meaningful therapy is neither a “threat” nor a “penalty” imposed by the state. It is simply a consequence of the reality that it is unsafe for children to be with parents who are abusive and violent.

[In re J.W., supra, 415 N.W.2d at 883-84 (footnote omitted).]

Certainly, the state could decide in a particular case that a parent should be compelled to speak to a counselor, with the result that any incriminating statement could not later be used in a criminal prosecution. As the dissent points out, infra at 129-130, 703 A.2d at 923 (Pollock, J., dissenting), the Minnesota Court recognized that this is a choice left to the state. In discussing this issue, however, the dissent confuses the public policy choice faced by the State with the legal issue of admissibility. Ibid.

P.Z. was not asked to choose between his children and the exercise of his right to remain silent. If he abused his daughter, and if he refused to acknowledge his acts of abuse, he would find it difficult to demonstrate that he could care for his children without harming them. This was the risk he faced. Kobran did not threaten him with termination of his parental rights if he did not confess; nor did she tell him that the only way he could get his children back was to confess. We conclude that defendant’s statement to Kobran was not coerced in violation of his Fifth Amendment privilege against self-incrimination.

IV

The State also claims that defendant’s April 5 statement was not obtained in violation of his Sixth Amendment right to counsel. The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense.” U.S. Const. amend. VI. Once the right to counsel has attached, “whether by way of formal charge, preliminary hearing, indictment, information, or arraignment,” Kirby v. Illinois, 406 U.S. 682, 688-89, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411, 417 (1972), it can be exercised by the accused at all critical stages of a criminal proceeding, see White v. Maryland, 373 U.S. 59, 59-60, 83 S.Ct. 1050, 1051, 10 L.Ed.2d 193, 194 (1963), including questioning by law enforcement personnel, Brewer v. Williams, 430 U.S. 387, 397-401, 97 S.Ct. 1232, 1239-41, 51 L.Ed.2d 424, 436-38 (1977).

The right to counsel embodied in Article I, Paragraph 10 of the New Jersey Constitution is virtually identical to the Sixth Amendment right to counsel, and similarly attaches upon the return of an indictment or like process because, prior to that point in time, “the State’s investigative effort ... is at a preliminary stage, ... the police may still be attempting ... to solve the crime[,] ... [and] the State’s decision to prosecute has not solidified.” State v. Tucker, 137 N.J. 259, 290, 645 A.2d 111 (1994), cert. denied, 513 U.S. 1090, 115 S.Ct. 751, 130 L.Ed.2d 651 (1995). Tucker fixes upon the return of the indictment because that event

transforms the relationship between the State and the defendant. By obtaining the indictment, the State represents that it has sufficient evidence to establish a prima fade case. Once the indictment is returned, the State is committed to prosecute the defendant.

[Id. at 287, 645 A.2d 111 (quoting State v. Sanchez, 129 N.J. 261, 276, 609 A.2d 400 (1992)).]

Although this Court has held that the right to counsel found in Article I, Paragraph 10 of the New Jersey Constitution can provide greater protection than the Sixth Amendment right to counsel, see Sanchez, supra, 129 N.J. at 275-77, 609 A.2d 400, we have read Article I, Paragraph 10 as consonant with the Federal Constitution on the issue of when the right to counsel is triggered, Tucker, supra, 137 N.J. at 291, 645 A.2d 111.

In this case, when defendant was interviewed by Kobran on April 5, 1994, he was not the subject of a criminal prosecution since, at that time, he had not been arrested, indicted or arraigned. It was not until September 28, 1994, almost six months after Kobran questioned P.Z., that an indictment was issued against him. During the pre-indictment period of criminal investigation, a law enforcement officer could have questioned defendant without implicating his Sixth Amendment or Article I right to counsel. See Kirby, supra, 406 U.S. at 688-89, 92 S.Ct. at 1881-82, 32 L.Ed.2d at 417; Tucker, supra, 187 N.J. at 290-91, 645 A.2d 111. It follows that an interview by a social worker would not trigger the right to counsel during this period.

The court below extended the Sixth Amendment right to counsel to Title Nine civil actions in which a complaint has been filed. However, the right to counsel guaranteed by both the Sixth Amendment and Article I applies by its terms to criminal prosecutions only. See Gideon v. Wainwright, 372 U.S. 335, 339-45, 83 S.Ct. 792, 794-97, 9 L.Ed.2d 799, 802-06 (1963) (recognizing Sixth Amendment right to counsel extends to state criminal prosecutions); Johnson v. Zerbst, 304 U.S. 458, 462, 58 S.Ct. 1019, 1022, 82 L.Ed. 1461, 1465 (1938) (applying Sixth Amendment right to counsel in federal criminal prosecution); Tucker, supra, 137 N.J. at 287, 645 A.2d 111 (applying Article I right to counsel in criminal prosecution); Sanchez, supra, 129 N.J. at 276-77, 609 A.2d 400 (same). Defendant nonetheless suggests that his fundamental interest in the care and custody of his children, see Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed.2d 599, 606 (1982); In re Promulgation of Guardianship Servs. Regs., 103 N.J. 619, 634, 512 A.2d 453 (1986), either requires counsel to be present when defendant is questioned by DYFS or requires his comment about his lawyer’s advice to be considered an invocation of the right to counsel. Whether the question is framed in terms of rights ancillary to the right to remain silent, see Reed, supra, 133 N.J. at 250-53, 627 A.2d 630, or in terms of the Article I, Paragraph 10 right to counsel, we decline to expand the rights of Title Nine respondents to include protections accorded criminal defendants after they have been indicted or taken into custody.

Title Nine does not limit the use of statements made by respondents except where DYFS holds an informal preliminary conference in less serious cases. See N.J.S.A 9:6-8.36 (prohibiting admission “into evidence” at Title Nine hearing or in criminal trial of statements made during preliminary conference).. The statute contemplates that cases involving “imminent physical harm or actual physical harm” will be directed to the Superior Court “on a priority basis.” N.J.S.A. 9:6-8.35f. Title Nine specifically requires the court to advise parents of their right to counsel at the first hearing after DYFS files a complaint in Superior Court alleging abuse and neglect. N.J.S.A. 9:6-8.43a. This requirement ensures that parents have a meaningful opportunity to be heard during Title Nine proceedings and that their fundamental interest in the custody and care of their children is protected.

Presumably, the Legislature considered that the right to counsel set forth in the statute provides safeguards sufficient to protect persons alleged by DYFS to have abused or neglected their children. In contrast, the Appellate Division imported Sixth Amendment protections into Title Nine civil proceedings. Defendant asks us to do the same. He asserts “that [because] both the governing statutes and our own State Constitution envision a right to counsel once a complaint has been filed in a Title Nine case,” he is entitled to have counsel present whenever a DYFS caseworker conducts a child abuse investigation.

In our view, acceptance of defendant’s argument would shift the primary focus of Title Nine from the right of children to be protected from abuse and neglect to the right of parents to the custody of their children. Those rights are not in equipoise. Only when the family can be rehabilitated and the children safely returned can the parents’ rights be fully realized. There is in these cases a complex of interests to be considered, suggesting to a court that some caution is appropriate. Forcing a DYFS caseworker to choose between providing Miranda warnings and foreclosing the use in criminal proceedings of information obtained in the course of an abuse and neglect investigation will not inure to the protection of children. We decline to tip the balance by requiring additional protections for the parents of abused children to be imported from our criminal jurisprudence into Title Nine proceedings.

y

The State also asserts that suppression of defendant’s statement to Kobran is not required by the Due Process Clause of the Fourteenth Amendment of the United States Constitution because defendant made the statement voluntarily. Long before Miranda v. Arizona, supra, the United States Supreme Court held that certain “interrogation techniques ... are so offensive to a civilized system of justice that they must be condemned under the Due Process Clause.” Miller v. Fenton, 474 U.S. 104, 109, 106 S.Ct. 445, 449, 88 L.Ed.2d 405, 410 (1985) (citing Brown v. Mississippi, 297 US. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936)). Miranda established a per se rule to counteract the inherently coercive nature of custodial interrogations by law enforcement; it did not eliminate the due process requirement that all statements given during an interrogation must be voluntary. See id. at 109-10, 106 S.Ct. at 449, 88 L.Ed.2d at 410-11.

To determine whether a statement was made voluntarily, both the federal and New Jersey courts consider whether it was “the product of an essentially free and unconstrained choice by its maker,” in which case the statement may be used against the defendant, or whether the defendant’s “will has been overborne and his capacity for self-determination critically impaired,” in which case use of the statement “offends due process.” Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854, 862 (1973); see State v. Galloway, 133 N.J. 631, 654, 628 A.2d 735 (1993). This issue can be resolved only after an assessment of the “totality of the circumstances” surrounding the statement. Arizona v. Fulminante, 499 U.S. 279, 285-86, 111 S.Ct. 1246, 1251-52, 113 L.Ed.2d 302, 315 (1991); Galloway, supra, 133 N.J. at 654, 628 A.2d 735 (observing also that, in New Jersey, the State must prove voluntariness beyond a reasonable doubt). This test is much like the test used to determine whether a defendant is in custody under the Fifth Amendment, except that a voluntariness review includes consideration of “both the characteristics of the accused and the details of the interrogation.” Schneckloth, supra, 412 U.S. at 226, 93 S.Ct. at 2047, 36 L.Ed.2d at 862; see also State v. Miller, 76 N.J. 392, 402, 388 A.2d 218 (1978) (listing relevant factors such as “age, education and intelligence, advice as to constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature, and whether physical punishment or mental exhaustion was involved”).

P.Z. claims that his statement was not made voluntarily. He relies on two cases in which confessions were suppressed after specific threats by police officers that a defendant’s children would be taken away. In Lynumn v. Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963), the defendant made an oral admission during the course of an arrest. The admission was procured after the arresting officers told the defendant “that state financial aid for her infant children would be cut off, and her children taken away from her, if she did not ‘cooperate.’ ” Id. at 534, 83 S.Ct. at 920, 9 L.Ed.2d at 926. The Court described the circumstances of the arrest as follows:

These threats were made while she was encircled in her apartment by three police officers and a twice convicted felon who had purportedly “set her up.” There was no friend or advisor to whom she might turn. She had had no previous experience with the criminal law, and had no reason not to believe that the police had ample power to carry out their threats.

[Ibid.]

The Court held that a confession made under such circumstances was coerced and could “not be deemed ‘the product of a rational intellect and a free will.’ ” Ibid, (citation omitted).

Similarly, in United States v. Tingle, 658 F.2d 1332 (9th Cir.1981), the court held that a confession obtained after FBI Special Agents led defendant to believe that “she would never see her son again,” id. at 1334 n. 2, was coerced even though the defendant signed a “standard FBI Advice of Rights form,” id. at 1333. The interrogation was conducted by two agents in their ear. They told defendant that she faced a maximum of forty years imprisonment for the crimes of which she was suspected. Id. at 1336. One of the agents used his knowledge that the defendant had a two-year-old child to suggest to the defendant that “she had ‘a lot at stake.’” Id. at 1334. The court found that “the purpose and objective of the interrogation was to cause Tingle to fear that, if she failed to cooperate, she would not see her young child again for a long time.” Id. at 1335. Applying the totality of the circumstances analysis, the court concluded that Tingle’s confession was “not ‘the product of a rational intellect and free will’ and was involuntary.” Id. at 1337 (citation omitted).

The circumstances in Lynumn and Tingle are distinguishable from the circumstances in this case. Here, in examining the relevant characteristics of the accused, we find that defendant had obtained a high school equivalency diploma and was employed. He was represented by counsel in the Title Nine proceedings and was assured of a hearing on the issue whether the family should be reunited. Although defendant claims that he feared his children would not be returned if he did not confess, his subjective fear did not derive from a threat amounting to coercion under the Fifth Amendment. A defendant’s state of mind is not dispositive of whether that defendant’s “will has been overborne and his capacity for self-determination critically impaired.” Schneckloth, supra, 412 U.S. at 225, 93 S.Ct. at 2047, 36 L.Ed.2d at 862.

Defendant was not in custody when he was interviewed, and his statement was not obtained in a coercive environment. A caseworker with whom he was familiar questioned defendant in his home, with his father nearby. Defendant was free to ask Kobran and Martinez to leave, and did not suggest that they do so. Most important, defendant had a lawyer in the Title Nine proceeding who had advised him not to speak. He chose not to take that advice after discussion with his wife and joint agreement to a “plan” by which he would admit to acts of abuse.

The sole purpose of the interrogations conducted in Lynumn and Tingle was to aid law enforcement in preparing a criminal case against defendants. The officers in those cases frightened the defendants into confessing by threatening them with the loss of their children. The circumstances of this case are markedly different. As we have previously discussed, the Division’s objective is to protect children from abuse and neglect and not to promote law enforcement. Kobran’s purpose in urging defendant to cooperate and to talk about how the injury to C.Z. occurred was salutary: she sought information in aid of C.Z.’s placement.

Child abuse investigations are emotionally charged and difficult. They are critical to the child who has been or may be injured. Too often there is no explanation for serious injuries, and the child’s parents are the focus of the inquiry. The Division cannot make decisions about uniting the family or alternative placement without thoroughly investigating whether it is safe to return the child to the home environment. Toward this end, DYFS caseworkers conduct home visits and interview parents in order to probe into the origins of the child’s injuries. That is what the Division did in this case.⁶

We emphasize that Kobran’s discussion with the Prosecutor’s Office prior to her visit to P.Z. was intended solely to find out whether the visit would impede any investigation by that office, and not to further the prosecutor’s investigation.⁷ In the totality of these circumstances — primarily, defendant’s level of education and his representation by counsel in the Title Nine proceedings, the atmosphere in which the interview was conducted, and Kobran’s purpose in conducting the interview — we hold that defendant’s statement was voluntary.⁸

VI

The Appellate Division held that “fundamental fairness” and “the Title Nine objective of child protection” prevent the use of “statements to DYFS during the pendency of the Title Nine investigation ... against a party in a criminal action unless there is advice of Miranda rights and the affording of the Sixth Amendment right to counsel.” 285 N.J.Super. at 229, 666 A.2d 1000. We have, however, determined that the Title Nine right to counsel adequately protects parents’ fundamental interest in the care and custody of their children. We decline to apply the doctrine of fundamental fairness to require any additional procedural safeguards not now required by constitution or statute.

New Jersey’s doctrine of fundamental fairness “ ‘serves to protect citizens generally against unjust and arbitrary governmental action, and specifically against governmental procedures that tend to operate arbitrarily.’ ” Doe v. Poritz, 142 N.J. 1, 108, 662 A.2d 367 (1995) (quoting State v. Ramseur, 106 N.J. 123, 377, 524 A.2d 188 (1987) (Handler, J., dissenting)). In those rare cases where government action does not comport with “commonly accepted standards of decency of conduct to which government must adhere,” State v. Talbot, 71 N.J. 160, 168, 364 A.2d 9 (1976), and where existing constitutional protections do not provide adequate safeguards, this Court has not hesitated to declare that government must be restrained, see Poritz, supra, 142 N.J. at 108, 662 A.2d 367 (discussing cases in which fundamental fairness has been used to require procedural protections that were “not constitutionally compelled”); Bruce D. Greenberg, New Jersey’s “Fairness and Rightness” Doctrine, 15 Rutgers L.J. 927, 945-46 (1984) (analyzing this Court’s use of fairness and rightness doctrine to provide protections “beyond what due process demands”).

The doctrine of fundamental fairness has supported procedures to protect the rights of defendants at various stages of the criminal justice process, even when such protections are not constitutionally required. This Court has also applied standards of decency and fairness to governmental action that is constitutional but that, nonetheless, includes elements of oppression or harassment requiring court intervention. Poritz, supra, 142 N.J. at 108-09, 662 A.2d 367. The “common denominator” in our cases is a threshold determination that someone has been or may be “subjected to potentially unfair treatment and there was no explicit statutory or constitutional protection to be invoked” against that treatment. Id. at 109, 662 A.2d 367.

Thus, fundamental fairness “prohibits conduct by law enforcement officials that perverts the judicial process and turns it into a prosecutorial tool.” State v. Sugar, 84 N.J. 1, 14, 417 A.2d 474 (1980). In cases where there is an interrelationship between criminal and civil actions against the same person, courts must be “sensitive to the potential for the State’s deliberately manipulating a civil procedure in order to obtain evidence against a criminal defendant.” State v. Kobrin Securities, Inc., 111 N.J. 307, 317, 544 A.2d 833 (1988). In Kobrin Securities, this Court expressed concern that the civil discovery process not be used to compel a defendant to provide information in support of the State’s case in a parallel criminal proceeding. We concluded that the use of information so obtained would constitute “such unfairness and want of consideration for justice as to require reversal.” Ibid, (citations and internal quotations marks omitted).

In child abuse cases DYFS, the civil authority, must provide information about suspected abuse and neglect to the county prosecutor, the criminal authority. N.J.S.A. 9:6-8.36a. By regulation, the prosecutor is required to consult with DYFS about whether a criminal investigation is necessary and to inform DYFS when a decision is made to initiate criminal proceedings. N.J.A.C. 10:129-1.5c; see supra at 98-99, 703 A.2d at 907-908. This relationship between DYFS and the prosecutor concerned the Appellate Division in this case and in Helewa, supra. We reject the contention that because “parallel civil and criminal systems are both operating against a defendant at the inception of proceedings in either court,” State v. P.Z., supra, 285 N.J.Super. at 227, 666 A.2d 1000, P.Z. must be accorded rights not now required by constitution or statute. We are sensitive to the potential for manipulation adverted to in Kobrin Securities but do not find it in the exchange of information between DYFS and the prosecutor. Indeed, under this system, the requirement that the prosecutor seek input from DYFS may well work to a defendant’s advantage in those cases where keeping the family together is in the best interest of the child. This relationship between the civil and criminal authorities does not demonstrate “such unfairness and want of consideration for justice” that defendant’s statement to Kobran must be suppressed. Kobrin Securities, supra, 111 N.J. at 317, 544 A.2d 833 (internal quotation omitted).

We base this conclusion on the total circumstances of P.Z.’s interview. Defendant was not subjected to arbitrary procedures that were oppressive, harassing or that egregiously deprived him of his rights, either to remain silent or to have the custody and care of his children. At the time of the interview, Kobran was acting within the scope of her duties to investigate and establish a placement plan for defendant’s infant daughter who was shortly to be released from the hospital. We have previously described the particulars of the interview, concluding that it was neither oppressive nor coercive. Kobran’s purpose in conducting the interview was never challenged by defendant: she wanted to hear his response to his wife’s allegations so that she would be better able to decide where to place defendant’s daughter on her imminent release from the hospital. It was certainly possible that defendant would deny shaking his daughter or even that he would claim his wife had abused C.Z.

Most important, there is no indication that Kobran interviewed defendant with the purpose of aiding in his criminal prosecution or, as Justice Pollock suggests in his dissent, that she had a “hidden agenda” to obtain an “incriminating statement” from P.Z. Infra at 922-923, 703 A.2d at 128-129 (Pollock, J., dissenting). The decision to interview defendant had been made at a DYFS case planning conference after the meeting participants, including Kobran, her superiors, and lawyers from the civil division in the Attorney General’s Office, discussed the information obtained from defendant’s wife. In that a referral had been made to the Prosecutor’s Office, there was certainly a possibility that a criminal investigation had begun. However, the record contains no reference to regular interaction between the civil and criminal authorities, let alone “manipulation” by DYFS to obtain information specifically to help the criminal authorities.

To the contrary, Kobran’s phone call to Investigator Lazzaro after the case planning conference suggests that she did not know what the Prosecutor’s Office had done or was doing in P.Z.’s case because she did not know whether the proposed meeting with defendant would impede the prosecutor’s investigation. Although the prosecutor anticipated being informed about the results of Kobran’s visit to P.Z., the visit had a legitimate independent purpose and was not pretextual. The record persuasively demonstrates that Lazarro’s comments to Kobran did not precipitate her visit to P.Z. or cause her to inform the prosecutor about P.Z.’s statement. The determination to interview P.Z. was made prior to her phone call to Lazarro and Kobran was obligated by statute to provide the results of her investigation to the prosecutor. If there was evidence that a DYFS worker met with defendant simply as a subterfuge to achieve law enforcement purposes, we might well reach a different result. There was no such evidence.

These circumstances do not demonstrate an egregious deprivation of defendant’s rights requiring application of the doctrine of fundamental fairness to suppress defendant’s statement to Kobran.

VII

We find no constitutional or other basis on which to hold defendant’s April 5,1994 statement inadmissible. We also find no basis to require DYFS caseworkers to give Miranda warnings or afford a right to counsel during non-eoercive, non-custodial interviews of parents subject to Title Nine investigations.

The judgment of the Appellate Division is reversed.

1 "Title Nine” is used generally herein to describe investigatory and other activities carried out by the Division pursuant to its duties to safeguard children under NJ.S.A. 9:6-1 to-8.73.

2 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

3 Organized under the Department of Human Services, DYFS is the comprehensive social services State agency charged with the “care, custody, [and] guardianship” of children. NJ.S.A. 30:4C-4; see also NJ.S.A. 30:1-9, -12; N.J.S.A. 30:4C-26a. The Division investigates abuse and neglect complaints involving children and provides a wide range of programs and services to protect children in need, NJ.A.C. 10:120-1.lb, including: "protective services for abused and neglected children, foster and group home placements, residential placements, child care, adoption services, counseling, advocacy and case management, adult protective services and personal attendant services.' MJ.A.C. 10:120-1.2c.

4 NJ.S.A. 9:6-3 provides that it is a crime of the fourth degree for a person having custody or control of a child to "abuse, abandon, be cruel to or neglectful of such child." Persons accused of abuse and neglect of a serious nature are prosecuted under the New Jersey Criminal Code (e.g., offenses of the first, second, third and fourth degrees, including assault, NJ.S.A. 2C:12-1, sexual assault, NJ.S.A. 2C:14-2, and endangering the welfare of a child, NJ.S.A. 2C:24-4).

5 On July 30, 1997, the Comprehensive Child Abuse Prevention and Treatment Act, which relaxes the confidentiality restrictions to which DYFS is subject, was enacted. L. 1997, c. 175. The Act not only allows disclosure of DYFS records in certain instances to the legal counsel of a child, parent or guardian, or to the parent or guardian himself or herself, but also allows disclosure to the public of "the findings or information about a case of child abuse or neglect which has resulted in a child fatality or near fatality." Id. § 16.

6 We observe that Kobran's interview with defendant does not constitute a violation of RPC 4.2, which prohibits a lawyer from communicating with a represented party about the subject matter of the representation without the consent of that party's lawyer. The rule is directed at lawyers not at parties. Model Rules of Professional Conduct Rule 4.2 cmt. (1992) (noting that "parties to a matter may communicate directly with each other” without violating the rule).

7 In contrast, the court in Flower, supra, found that the only purpose motivating a DYFS investigator when she interrogated the defendant in prison was to assist in the defendant’s prosecution. 224 N.J.Super. at 218, 539 A.2d 1284. In those circumstances, the court properly held that Miranda warnings were required.

8 We express no opinion, however, about how the recently enacted Comprehensive Child Abuse Prevention and Treatment Act will affect this analysis. L. 1997, c. 175; see supra note 5. Under the Act, DYFS is "not ... required to provide diligent efforts to reunify the child with a parent" in cases where a parent has been convicted of killing or attempting to kill, or assaulting or attempting to assault, one of his or her children. L. 1997, c. 175, § 5. Section 17 of the Act allows a petition to terminate the parental rights of a parent convicted of one of the enumerated crimes to be filed pursuant to N.J.S.A. 30:4C-15. L. 1997, c. 175, § 17. To the extent that the purpose of DYFS investigations undertaken pursuant to this Act are altered, the totality of the circumstances analysis may be affected.