NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. S.K., Defendant, and C.K., Defendant-Appellant. IN THE MATTER OF JE.K. and JA.K., Minors.
DOCKET NO. A-2734-15T2
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
August 31, 2018
Before Judges Fuentes, Koblitz and Manahan. (Judge Koblitz concurring).
RECORD IMPOUNDED. NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION. APPROVED FOR PUBLICATION August 31, 2018 APPELLATE DIVISION. Argued October 11, 2017. 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 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).
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, 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
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.
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
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 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
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.
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
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.”
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 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, S.K. said she decided to “let the comment die.” S.K. noted that defendant had “always been
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 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 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
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 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 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 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.
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 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 Belito5 (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.
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 [
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 DAG argued the recordings of Jane‘s interviews were intended as corroborative
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
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
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
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 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
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 . . . .”
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 prosecutorN.J.S.A. 9:6-8.25a . Alternatively, if the prosecutor decidesto bring a criminal case, the caseworker must be advised. N.J.A.C. 10:129-1.5(c) .[Id. at 63-64.]
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 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
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
Under
Parents have a fundamental constitutional right to raise their children, Stanley v. Illinois, 405 U.S. 645, 649 (1972); N.J. Div. of Youth & 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 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,
[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.
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 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. 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-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
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 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 Miranda10 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 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
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 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 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
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 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.
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. 668, 687, 688 (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, 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,
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 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
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.
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
The best interests of children are the prime concern of our child welfare system.
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. 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.
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
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 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.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Notes
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 indicating that among the inferences that may be reasonably drawn therefrom those unfavorable to the defendant are the more probable.