193 A.3d 309
N.J. Super. Ct. App. Div.2018Background
- In May 2015 the Division received allegations that C.K. sexually abused his daughter Jane (then ~15). Division and county prosecutor investigated; children were removed and placed in foster care.
- Criminal charges were filed against C.K.; he was detained awaiting trial. The Family Part (Title 9) proceeding proceeded in parallel seeking a finding of child abuse.
- At the January 25, 2016 Title 9 fact-finding hearing Jane did not testify; the Division admitted audio/video recordings of her interviews and elicited hearsay from the mother (S.K.) identifying the voices and recounting statements by Jane.
- The Division called C.K. as a witness; he invoked his Fifth Amendment right and refused to testify. The Family Part judge drew an adverse inference from his silence and relied on that inference (plus Jane’s out-of-court statements) to find abuse by a preponderance of the evidence.
- The Appellate Division reversed: it held a Family Part judge may not draw an adverse inference from a parent’s invocation of the Fifth Amendment in a Title 9 fact-finding hearing when criminal charges are pending; without the inference the record contained only uncorroborated hearsay and was legally insufficient. The court also found defense counsel ineffective under Strickland/Fritz.
Issues
| Issue | Division's Argument | C.K.'s Argument | Held |
|---|---|---|---|
| Whether a Family Part judge may draw an adverse inference of culpability from a parent's Fifth Amendment refusal to testify at a Title 9 fact-finding hearing when criminal charges are pending | An adverse inference is permissible in civil/administrative contexts and may be used to corroborate child statements | Drawing an adverse inference here penalizes invocation of the constitutional right and is impermissible given the pending criminal prosecution | Reversed: Judge may not draw an adverse inference under these circumstances; invocation was constitutionally protected |
| Whether the evidence (child statements, CARES report, mother's identification) was sufficient to prove abuse by a preponderance without the adverse inference | The child's recorded statements and mother's testimony identifying voices provided corroboration adequate for a Title 9 finding | Statements were hearsay and inconsistent; without defendant's silence there was no competent corroboration | Reversed: Without the adverse inference the record relied on uncorroborated hearsay and was legally insufficient |
| Whether defense counsel rendered ineffective assistance at the fact-finding hearing | Division did not directly argue otherwise | Counsel failed to object, failed to call or cross-examine witnesses, and failed to adequately challenge adverse-inference authority | Held ineffective: counsel's performance fell below standards and prejudiced defendant under Strickland/Fritz |
| Whether Family Part procedures or rules (e.g., Rule 5:12-6) required staying or limited use of testimony in parallel criminal prosecutions | Division pointed to cooperation rules and prior case law permitting sharing of investigative materials | Defendant argued the Family Part cannot compel testimony that can be used against him criminally; parallel proceedings create coercive pressure | Court: Rule 5:12-6 does not authorize Family Part to bar use of testimony in criminal cases; but that reality does not permit drawing an adverse inference when criminal jeopardy makes invocation reasonable |
Key Cases Cited
- Mahne v. Mahne, 66 N.J. 53 (discussing adverse inferences in civil context)
- N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17 (child out-of-court statements admissible but cannot alone support finding)
- DYFS v. Robert M., 347 N.J. Super. 44 (coordination issues between Division and prosecutors; parallel proceedings)
- State v. P.Z., 152 N.J. 86 (circumstances and limits of Division interviews and Miranda analysis)
- Strickland v. Washington, 466 U.S. 668 (standard for ineffective assistance of counsel)
- Griffin v. California, 380 U.S. 609 (prohibition on commenting on defendant's silence in criminal trial)
- Spevack v. Klein, 385 U.S. 511 (limits on penalizing invocation of privilege)
- Garrity v. New Jersey, 385 U.S. 493 (coerced statements in investigatory contexts)
- J.B. v. N.J. Div. of Youth & Family Servs., 120 N.J. 112 (child-protective hearings are closed/sealed)
- N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301 (right to effective counsel in Title 9 proceedings)