*1
Daniel Deputy (Anne Milgram, Attorney General of New respondent cause for Jersey, attorney). Froland-Kindt, brief, pro
Stacey submitted a se. opinion Justice LONG delivered the Court. stepmother appeal At in this is whether a who removes issue stepchildren from the state with the consent of them father her (her husband), mother, but without the consent of their under N.J.S.A. 2C:13-1. Appellate non-consent upheld stepmother’s kidnapping Division conviction under the granted certification and now circumstances described above. We “force, Although subject charge kidnapping by reverse. to a 2C:13-l(d), deception” charge under and to a threat *3 2C:13-4(a), under custody party interference who permission acts with the is not of non-consent force, kidnapping. pursue Because the State did not threat or case, deception kidnapping stepmother’s in this conviction cannot stand.
I 1985, couple In John Kindt married Anne O’Connor. The children, 1996, adopted two In J.K. and O.K. November while California, living separated; in Kindt and O’Connor O’Connor family Jersey, taking moved back to her in New J.K. and O.K. parties Jersey with her. The later divorced. The New decree joint custody1 afforded them of the children with O’Connor as the residence, primary and Kindt as the of alterna- judgment provided tive that residence. The also Kindt would parenting have “reasonable and liberal time” whenever he was in joint legal arrangement legal "Under a and authority —the making 'major' regarding decisions the child's welfare —is responsibility Beck, 480, 486-87, shared at all times both Beck v. 86 N.J. 432 A.2d by parents.” Jersey, holiday New and that the children’s and vacation time would be divided in a “reasonable and fair fashion.” In the event that Kindt and “in vicinity O’Connor ever lived the relative of each other,” the children would live with both “on a schedule agreed by upon parties.” Regular visitation between Kindt place. and the children took 2000, (“Froland”). April Stacey
In Kindt married Froland-Kindt later, Brick, couple Two months Jersey, moved to New where they single-family they rented a house which lived Fro- S.F., daughter, land’s infant nineteen-year-old neph- and Kindt’s ew, Matthew Aronson. Jersey,
After Kindt moved to agreed New he and O’Connor on physical custody stayed shared scheme.2 The children with Kindt evening until seven o’clockin Tuesdays Thursdays, on and spent every other weekend with him. Kindt and O’Connor fol- lowed that schedule for about six months. The situation between parents apparently deteriorated in November when began keep Kindt overnight returning the children instead of required them to at O’Connor hour.
In December prohibiting O’Connor obtained a court order interfering Kindt from with the of the children after seven p.m. Tuesdays, Thursdays, every on Sunday. If Kindt comply, failed to any the order would be deemed a directive to law retrieving enforcement officer to aid O’Connor in the children. prior judgment required order also enforced a Kindt to $100,000 pay equitable O’Connor by distribution December Failing by date, payment subject 2000. Kindt would be to an *4 application a for bench warrant.
O’Connor had
during
of the children
the Christmas
holidays
however,
agreed,
in 2000. She
that Kindt would have the
arrangement,
Under such an
share the
of the child.
parents
companionship
living arrangement
Each is
for "minor”
and the
decisions
responsible
day-to-day
be alternated in accordance with the
needs of
and children.
may
parties
Beck,
487,
children from December 27, Saturday, dropped December 30. On December O’Connor 29, Friday, off at Kindt’s house. children On December she called children, phone talk to but Kindt’s had been disconnected. evening, That O’Connor drove to Kindt’s house and found that no following day, was home. The she returned to house and one again missing found it to be deserted. O’Connor then filed a 31, 2000, report. Township children’s On December the Wall began Department investigation. Police an investigation ultimately revealed Kindt and Froland plan Jersey had devised a to remove from J.K. O.K. New They without O’Connor’s consent. obtained birth certificates along copies the children and themselves of the children’s December, During medical records. month of Froland with- large money a drew amount of from her two bank accounts and change-of-address family’s filled out a form to have the mail Buffalo, mid-December, forwarded to New York. Around Kindt where, using pseudonym, bought flew to North Carolina a he a boat. 2000,
During the last week of December Kindt and Froland 26, plan. finalized their On December Froland created a “to do” included, computer among things, cutting list on her phone ceasing lines and communications with relatives. On De- typed stating, part, cember Froland a to her letter mother possession that she and Kindt intended to “establish children, quo, create new status and remove [themselves] enough away” father, far somewhere so that O’Connor’s who awas county County, former of Monmouth counsel would not be able to judicial process.” “taint the parents
On December Kindt sent letter to his acknowl- edging going away. that he was to take the children On Decem- prepared providing ber Froland to Kindt’s letter mother her family’s with detailed instructions about what to do with the possessions existing obligations financial once Kindt and Jersey. Froland had left New *5 29, 2000, Kindt, Froland, Aronson, S.F., J.K.,
On December and O.K. left the house and Airport. traveled to Newark After trail, series of maneuvers public intended to cover their all six took Oriental, transportation Oriental, North Carolina. Once group stayed at a bed and days. breakfast for about ten or twelve time,
During that warrants were issued for the arrest of Kindt and Froland for the pur- abduction of the children. Kindt then boat, larger chased a a transaction that came to the attention of investigators Jersey. Jersey New The New authorities notified the United outstanding States Coast Guard of the war- 22, 2001, January rants. On the Coast Guard received a distress signal from a boat off the coast of North Carolina that had become engine vessel, disabled due to failure. Aboard the the Coast Kindt, Froland, Aronson, S.F., J.K., Guard found and O.K. Kindt, Froland, Aronson, The authorities arrested and and placed boat, protective custody. children into On the investi- gators certificates; passports; charts; found birth nautical Fro- drives; diary; computer land’s four hard and books entitled South,” “Passages Children,” “Cruising with “Hide Your Assets Disappear,” 23, 2001, and and January “How to be Invisible.” On O’Connor traveled to North Carolina and was reunited with J.K. and O.K. 27, 2002, County Jury
On October a Monmouth Grand issued a Kindt, superseding, eight-count Froland, against indictment charged Aronson. The indictment all three defendants with two (N.J.S.A 1(b)), counts of first-degree kidnapping two 2C:13— (N.J.S.A. second-degree counts of with interference 2C:13-4(a)), third-degree two attempted counts interference (N.J.S.A 2C:5-1), second-degree conspiracy (N.J.S.A commit interference with and/or 2C:5-2). separately charged Kindt and Froland were with fourth- degree contempt of court. N.J.S.A 2C:29-9.
The defendants’ cases were proceeding severed Froland’s trial, first. At the facts outlined above were established. Over objection, Froland’s judge jurors instructed the that her *6 if it was children was unlawful confinement of the removal or O’Connor, even if of Anne accomplished without the consent father, jury it. returned Kindt, consented to The the children’s first-degree kidnapping, sec- against Froland for guilty verdicts contempt custody, fourth-degree ond-degree interference court, conspiracy. acquitted was of third- second-degree She custody. merging After attempted interference with degree kidnapping convictions and reduc- convictions into the interference offenses, second-degree the trial kidnapping convictions to ing the aggregate an custodial term of seven judge Froland to sentenced years. appealed.3 She trial, to dismiss the case went to Kindt’s motion
Before his judge ruling, In the trial deter kidnapping charges granted. was prohibited plain language kidnapping statute that the mined kidnapping his prosecuting Kindt for the crime of the State from sought appeal. leave to After consolidat own children. The State convic Appellate Division affirmed Froland’s ing appeals, kidnapping charges dismissing order tion and reversed the Froland, 20, 39-40, N.J.Super. v. 874 against Kindt. State 378 charac (App.Div.2005). ruling, Appellate In Division A. 2d 568 overlapping as kidnapping and interference with terized discretionary prosecutor charging over which the has statutes addition, joint panel concluded that a power. In that, if Kindt “consent” to his child’s removal and cannot deprive” cus “permanently to O’Connor of and Froland intended subject prosecution kidnapping.4 tody, they were We petition 187 N.J. 899 A.2d granted Froland’s for certification. serving months of her on after sixteen seven-year Froland is currently parole sentence. guilty kidnapping, jury him remand, a found Kindt not but convicted On mergers, judge the trial sentenced Kindt on all other counts. After appropriate living seven Kindt is halfway-house to a custodial term of years. currently pending the outcome of his appeal.
II argues Froland plain language that under the of N.J.S.A. 2C:13-l(d), guilty kidnapping cannot be his own children, guilty and that she in turn cannot kidnapping be parent’s permission. because she acted with a argues She further that she cannot in the of harm absence children, unconstitutionally and that vague. the statute is Finally, she claims that if ambiguous, the statute is the doctrine of lenity requires interpreted it to be in her favor. State counters that the statute does not immu- parents
nize contemplates parent; but a conviction of a that the Legislature affirmative defenses the added to the specifically statute in which parents, refer to custodial *7 meaning inform the “parent” the word that a underscore guilty kidnapping child; can be his own that it is no charge defense to a that the defendant acted with consent unless that had exclusive the child addressing custody or no court order exists. If Kindt guilty, can argues be the State Froland can also be convicted of Moreover, kidnapping. the State claims that if even Kindt is kidnapping prosecution, immune from a Froland is not.
III
meaning
Because the
of the
at
statute is
case,
heart
governing statutory
of this
the rules
interpretation are
pivotal.
statute,
interpreting a
paramount goal
When
our
tois
Legislature’s
Crawley,
determine the
intent. State v.
187 N.J.
(2006).
440, 452,
so,
901 A.2d924
To do
plain
we first examine the
language of the
ordinary
statute and ascribe to the words their
Penn,
meaning.
477, 492,
DiProspero v.
183 N.J.
194 words, (2002)). if the statute 484, 488, In other A.2d 857 795 N.J. face, ordinarily inquiry ends. its is clear on susceptible is However, language of the statute plain if the may sources other we consider interpretation, to more than one Aponte-Correa v. determining meaning. its language than the (2000). 318, 323, For Co., A.2d 175 N.J. 744 Ins. 162 Allstate history of the enact legislative often examine example, we 492-93, A.2d at 874 ment, DiProspero, supra, 183 N.J. Dep’t v. Human statutory provisions. G.S. cognate look Servs., 161, 172, A.2d 612 N.J. cases, a statute is restricted interpretation of In criminal strictly penal requires construe lenity which us by the rule of D.A., v. 191 N.J. criminal defendant. State in favor of a statutes (2007); Singer, 3 158, 164, also Norman J. A.2d 217 see (6th 2001) 59.3, § ed. Statutory Construction Sutherland reviewing all (“The only applied if after lenity should rule of ambiguous.”). intent the statute still remains legislative sources analysis. guide our legal principles Those are the IV kidnapping statute: to the relevant words of the turn first We hostage. guilty Holding A is of kidnap- reward or as a ransom, person a. if ping where he is found or he removes another from the place if he unlawfully holding that for ransom or another with the person confines unlawfully purpose hostage. reward or as a shield Holding if he unlawful- A for other b. purposes. person *8 or a substantial business, from his of residence or removes another place ly another or if he confines found, unlawfully the where he is distance from vicinity following for a substantial any purposes: period, (1) flight thereafter; of crime or To facilitate commission any (2) injury or another; on or to terrorize the victim To inflict bodily (3) governmental function; or the of political To interfere with performance any or (4) guardian custodian of or other lawful a parent, To permanently deprive of the victim. “Unlawful” or A d. removal confinement. removal or confinement is unlawful meaning within the this section sections and of 2C:13-2 if it is 2C:13-3, threat in or, or the case of a who accomplished by force, person is under deception, age the of 14 or if a is it is without the consent of incompetent, accomplished guardian general or for of his welfare. parent, person responsible supervision (4) paragraph It f. is an affirmative defense to a under of subsec- prosecution having right b. of tion this section that the of custody believed reasonably fleeing danger he was from imminent from the other parent, physical provided having the as custody, soon as reasonably practicable: (1) Gives notice of the victim’s the location to the police department municipal- where the victim resided, the office the in the ity county county prosecutor the where victim or the of Youth resided, Division Services in Family of Children and or Families; Department
(2) affecting Commences an action in an court. appropriate g. As used in e. and f. this subsections means a section, “parent” parent, guardian or other lawful custodian of a victim.
[N.J.S.A 2C:13-1J face, itsOn statute or interdicts the “unlawful” removal purposes confinement of specific another for this case —in permanently deprive parent, guardian or other lawful custodian prohibited victim. for a purpose, Removal standing alone, satisfy statutory not does A elements. remov- only “force, by al is “unlawful” two instances —if it is effectuated deception” or or if threat it is done without the “consent aof parent, guardian responsible general person supervi- or other force, sion or [the welfare.” Because no claim of threat child's] case, deception presented jury was this Froland’s convic- only can if tion stand she removed children “without the parent.” consent that, argument
Froland’s is she essential because had the Kindt, who is parent,” consent “a her conviction must be Facially, argument persuasive. overturned. The word “parent” meaning parlance. has a in common well-established See (10th 1994) Collegiate Dictionary Merriam-Webster’s ed. (defining “parent” begets brings offspring”). as “one that or forth legislation. It has similar connotation in See 9:3-38 (defining “parent” parents, including as “a birth
196 acknowledged who father of a child born out wedlock has birth given, or or whom the has notice to be the child to court ordered parents adoption”). parent or on the The State counters that Froland’s reliance common “parent” fails meaning simplistic is too because it to the word judicial custody that into the details of orders affect take account view, only parental status. In the with sole State’s limiting parental his or with no order or her and, result, joint can as a rights consent removal parent. must the obtain consent agree “parent” that the term the We Froland given plain ordinary statute should be its mean genetically ing by or mother related to a child father —a Legislature “parent” adoption. qualified could have the word upon judicial prong in the consent the statute based ly It did so. decreed custodial status. not do Without such direction, superimpose we legislative are not free to on the ordi nary “parent” catalogue meaning of the word the State’s upon judicial To particulars distinctions based the of a order. sure, may supply by Legislature if it Court terms omitted they necessary that legislative is clear are manifest the intent. State, 565, 576, Bd. Chosen Freeholders v. 159 N.J. 732 A.2d Indeed, That is not the ease use of 1053 here. “parent having custody” in right term the affirmative Legislature impose that defenses indicates understood how to “parent,” on the word not conditions but chose to do so 1(f); see, e.g., consent section of the statute. N.J.S.A. State 2C:13— (1997) Hoffman, N.J. A.2d (acknowledging v. Legislature’s “annoyance” conscious decision to use the term intent). annoyance” than as rather “serious evidence Moreover, reject if Kindt we the State’s contention even is charge, insulated from a Froland remains liable. That solely interpreting on law notion based case statutes are they expressly unlike N.J.S.A. 2C:13-1 in that do not immunize See, persons acting parent.” e.g., “with the State v. consent *10 Stocksdale, (Law Div.1975) 312, N.J.Super. 350 138 A.2d 539 parent’s (adjudging coconspirator’s kidnapping indictment under 2A:94-1). short, In then-enacted plain we read the language empowering of the statute as to Kindt consent to his concomitantly immunizing removal as children’s and Froland from a conviction based on that consent. suggest is not
That to that the kind of conduct Kindt and engaged punishment. Froland in is from immune As have we noted, force, if accomplished by the removal had been or threat deception, a kidnapping against conviction could be sustained a parent accomplice. and his That is the reason for the affirmative prescribes that with respect parent defense the statute to a and upon Appellate which the Division relied.
Moreover, squarely Froland’s behavior falls within the stric- custody the provides tures of interference with in statute part: relevant including guardian of a Custody children. A or person, other lawful parent, if custodian, of interference with he: custody (1) concealing Takes or minor child the detains a with of the child purpose minor depriving parenting the child’s other or with thereby time custody the minor or child; (2) being having knowledge After served or actual of an process action affecting marriage to or but the issuance final custody or prior temporary determining parenting rights order time ato minor custody child, takes, detains, entices or conceals the child within or outside the State the purpose depriving parenting the child’s other or or custody time, to evade
jurisdiction of the courts this or State; (3) being having knowledge After served or actual of an process action affecting the needs of a child Title 9 protective services to of the Revised pursuant affecting in an Statutes action but to the issuance of a or custody, prior temporary determining rights final order of minor or custody child, takes, detains, entices evading conceals the child within or outside State for purpose jurisdiction this or State; courts (4) joint specifying After the or final issuance order temporary custody, rights parenting or child time, takes, detains, entices or conceals minor custody parenting from the other violation of time order. 2C:13-4(a).] [N.J.SA. Although Appellate Division viewed and interfer- fact, overlapping provisions, ence with criminal as 198 designed overlap but were intended to
statutes were not
entirely
conduct. The interference with
distinct
address
interfamily
removals
was “a
frontier” in the area
statute
new
Algarin,
designed
People v.
kidnapping was not
to reach.
494,
457,
(reading
461
Ill.App.3d
146 Ill.Dec.
558 N.E.2d
statute), ap
“parent” colloquially
under Illinois
term
denied,
(1990);
560, 149
561 N.E.2d
peal
133 Ill.2d
Ill.Dec.
(Tenn.2002)
Goodman,
v.
90 S.W.3d
564-65
see also State
“parent”
phrase
than
(citing Legislature’s use of word
rather
meaning);
parent”
plain
evidence of
and clear
John
“custodial
as
(Fla.Dist.Ct.3d Dist.)
State,
(finding
Florida
son v.
637 So.2d
biological
inapplicable
parent), review de
kidnapping statute
(Fla.Dist.Ct.
(Fla.1994),
nied,
aff'd,
V supports legislative history of statute our conclusion. The the Jersey Law Legislature In the New formed Criminal (“Commission”) penal to revise the laws of Revision Commission Committee, Judiciary Statement to Senate Bill the State. Senate 15, 1978). Ultimately, (May Legislature accepted at 1 the No. findings criminal implemented Commission’s a revised the 1-17; Greenberg Tumulty, id. at L. J. code. See Martin & John Justice, Highlights the Code 104 N.J.L.J. New Criminal (1979). kidnapping Included in the new code were the new laws, concluding the after the which Commission drafted then- Report existing Jersey laws too 2 Final New were broad. Commission, 2C:13-1, commentary § Law Revision Criminal statutes, revising kidnapping the the Commission substantial- In ly adopted approach the American Law Institute’s Model the (“MPC”). penalties at 181. To restrict the severe Penal Code Id. kidnapping, scope for the limited “to authorized MPC its cases pur- or for certain enumerated substantial removal confinement (1) (2) ransom; poses”: facilitating holding the victim for the (3) crime; (4) harming victim; commission interfering of a the or performance government with the aof function. Model Penal Commentaries, (“MPCC”). § Code and 212.1 2C:13-l(d) purposes The unlawful delineated in N.J.S.A. MPC, statute are identical to the declaring likewise “unlawful” force, or, “accomplished by removal deception threat or in the ease person age who is under the of 14 or incompetent, if it is accomplished without the of a parent, guardian consent or other person responsible general supervision of his welfare.” 1(d). The drafters the MPC commented exten- 2C:13— sively on the addressing cognate definition of “unlawful” when the MPCC, § interference with supra, statute. See cmt. 212.4 They at parent may 253-55. kidnap noted “a his own child ..., just stranger may kidnap as a any innocent victim” if parent threat, “engages in primary by force, conduct or added). deception.” (emphasis at Id. The drafters deter- however, mined, parent engage where the does not in the force, primary by deception, conduct threat or where taldng fourteen, victim the is under acting or one acting “unlawfully” the consent of a is not within the meaning of statute: underage [I]f a abducts his own child not made even ..., is out legally the actor’s conduct awarded in another person if offensive construing language discourage institution. of so this is to involve- purpose belong ment in an area it offense where does not this—in
instance enforcement of decrees and resolution of intra-family disputes. *12 added).] (emphasis [Id. 254 at explained:
The drafters further imagine might One can cases it be where to seek a appropriate involving taking underage [a conviction in a or child]. situation his her own parent might revenge against For a seek divorced husband his former to example, wife, underage enticing whom of an child awarded, has been the child custody by away child____ seeking threatening or ransom the welfare of the 212.1 drafted the to Section was on it will premise prove “force, possible taldng or as a of the in of threat, cases this character. The deception” part special underage designed definition of with “unlawful” to children ... was not to respect coverage the broaden of Section 212.1 in the case of Rather, intra-family disputes. gain willing designed strangers the “consent” the who to deal with to family it was terrorizing underage is a abduction. an child to what substance of added).] (emphasis at n. 13 [Id. custody arrangements posited irrelevancy of also the The drafters analysis: to the a of 212.1 to case where the in this the Section matter, applicability
Viewed turn the or child should not on abduction of a is by parent interference arrangements. A custody proper with the the parent formal noninterference though abducting the is can be made out even parent fully prosecution legal will on the Such a case turn the entitled to child. custody presence remaining together or with the elements offense. “force, threat, deception” [Ibid.'] MPC, intentionally code criminal omits
Like the our revised kidnapping purposes the situation “where from the list away or his child from the out of affection takes Jersey Report 2 Final New Criminal Law lawful custodian.” Commission, 2C:13-1, commentary supra, to N.J.S.A. Revision 228). MPCC, history § at As (quoting supra, 212.1 emt. reveals, Legislature clearly to carve out of intended to parents who seek obtain more kidnapping statute noncustodial their children without the use of favorable custodial control over threat, force or violence. child-stealing, the Commission fol- problem
To address separate MPC and recommended the enactment lowed the MPCC, § custody supra, with statute. See 212.4 cmt. interference 249; Report Jersey Criminal Law Revision at Final New 2C:13-4, Commission, supra, commentary By at 188. terms, very custody statute its interference with addresses the custody parent- or parent’s deprive effort “the other ing time.” ground statute covers not includ- interference by focusing rights of statute on the “the
ed parent,” the victim of the interference crime. child’s other who is heavy penal- is a serious offense with Interference ties: degree if the child is taken,
Interference with crime of second (i) (ii) for than 24 outside the States or more detained, enticed concealed: United *13 degree Otherwise, hours. interference with is a crime of the but the third in subsection set forth e. of NJ.S.A 2C:44-1 for presumption non-imprisonment degree a crime first offense of of the third shall not apply. 2C:13-4.] [N.J.S.A. legislative history supports The clear the conclusion and interference with statutes address differ- Thus, “force, any ent decep- evils. absent evidence threat tion,” could not of kidnapping Froland be convicted because she clearly had “parent” the consent Kindt who within meaning Rather, subject of the statute. both of them to were prosecution under the interference statute.
VI that, in reaching We note its decision that can Froland be first-degree kidnapping, Appellate Division over statutory looked a fundamental canon interpretation —that D.A., strictly penal courts are bound construe statutes. See supra, lenity at N.J. 923A.2d 217. The rule of “has at its heart requirement process. punished due No one shall be for punishment clearly a crime unless both that and its are crime positive Suspension set forth in law.” In re DeMar License of co, Thus, 83 N.J. 414 A.2d we even if viewed the ambiguous regarding statute as “consent of a (which, not) parent” for previously expressed the reasons we do lenity interpreted require the rule of would that the statute Froland’s favor with the exact we have here —that result reached her conviction for cannot stand.
VII judgment Appellate kidnap- The affirming Division ping convictions is reversed. matter is The remanded the trial judge proceedings principles consistent with the to which we have adverted. RIVERA-SOTO, dissenting.
Justice
Appellate
succinctly
Division
predominant
noted that “[t]he
joint custody
issue in
case is
whether a
can be
[this]
*14
Froland,
own child.”
v.
guilty his or her
State
20, 25,
(App.Div.2005).
particular-
N.J.Super.
For the common sense rational reasons statute, Appellate opinion, forth in the Division’s 1, certainly applies to where N.J.S.A those instances 2C:13— custody, parent, joint secretly even one with steals the children taking purpose and without the other effect them parent’s those custodial consent. Because self-evident reasons are them, rejected by majority, respectfully and based on I dissent. RABNER,
For reversal remandment —Chief Justice LONG, LaVECCHIA, WALLACE, Justices AND HOENS —5. For RIVERA-SOTO —1. affirmance —Justice
936 A.2d PLAINTIFF-RESPONDENT, JERSEY, OF STATE NEW LUNA, DANIEL v. DEFENDANT-APPELLANT. Argued September 2007. 2007 Decided December