Lead Opinion
The opinion of the Court was delivered by
We granted leave to appeal, 143 N.J. 480,
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,
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
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
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 Miranda
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,
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,
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 DYFS
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,
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
Title Nine contemplates criminal prosecution of acts of abuse and neglect that constitute crimes.
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
-B-
Justice O’Hеrn 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,
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,
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,
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,
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,
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,
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,
-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,
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
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
Again, despite defendant’s assertions to the contrary, the issue turns on his non-custodial stаtus. 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,
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.
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 thе 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,
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.,
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,
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 disсlosures, 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.
*109 ... 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,
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 hаve 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,
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,
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,
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
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,
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
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 balаnce 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
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,
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,
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 facеd 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
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 spеak. 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
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.
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.
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,
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,
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,
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,
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 аnd to inform DYFS
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 bettеr 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.
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.
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.
Notes
"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.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,
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
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).
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.
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).
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,
We express no opinion, however, about how the recently enacted Comprehensive Child Abuse Prevention and Treatment Act will affect this analysis. L.
Dissenting Opinion
dissenting.
Occasional disagreement on an appellate tribunal is inevitable. As regrettable as disagreement may be, the exposition of different views may serve the public interest. My perception of the facts and law lead me to a conclusion opposite from that of the majority. Consequently, I respectfully dissent.
From my perspective, the only issue on this appeal is whether the State may admit in a criminal prosecution defendant’s uncounselled oral statement made to a Division of Youth and Family Services (DYFS) investigator after invoking his right to counsel. Critical to this determination are the facts that both the DYFS caseworker and the Prosecutor knew that defendant’s wife had incriminated him and that defendant was represented by counsel. The Appellate Division affirmed the Law Division’s holding that admission of the statement would be unfair. 285 N.J.Super. 219, 228,
Under the facts of this case, I believe it would be fundamentally unfair to allow the Prosecutor to introduce defendant’s uneounseled inculpatory statement to the DYFS caseworker. The State would remain free to prosecute defendant on other evidence. It should not, however, be permitted to introduce the words that it induced him to utter in an ostensible attempt to determine whether it would return custody of his child to him and his wife.
Having identified the specific issue presented by the appeal, it might help to identify other issues that the appeal does not present. Identification of those irrelevant issues reveals flaws in
I.
An act of suspected child abuse affects two State interests. First, acting through DYFS, the State is primarily interested in protecting the child. DYFS pursues that interest through an action under N.J.S.A. 9:6-1 to -8.73 (“Title 9” action). Second, law enforcement officials have an interest in prosecuting the abuser for offenses such as endangering the welfare of the child and child abuse.
Under its regulations DYFS must:
[R]efer to county prosecutors all cases that involve suspected criminal activity on the part of a child’s parent, caretaker or any other person____ [I]t is anticipated that in most of the eases referred extensive police involvement will not be warranted and indeed that in many cases no police involvement will be required.
[N.J.AC. 10:129-1.1(a).]
DYFS must maintain the confidentiality of all records or reports of child abuse, and they make disclosure only in specifically enumerated circumstances. See N.J.A.C. 10:129-2.1. For example, DYFS may release records and reports to “[a] police or other law enforcement agency investigating a report of child abuse or neglect.” N.J.A.C. 10:129-2.1(b)(2).
Before filing a Title 9 action, DYFS may conduсt an investigation and a preliminary conference with a suspected abuser. Reflecting sensitivity to potential conflicts arising from a Title 9 action and a criminal prosecution, the Legislature has specifically barred any statement that DYFS may obtain in a preliminary conference from admission into evidence in a resulting criminal prosecution. N.J.S.A. 9:6-8.36.
Consistent with the legislative mandate, Section 409.4 of the DYFS caseworker’s field manual, II Field Operations Casework Policy and Procedures Manual, advises caseworkers “[i]n cases where the police are already involved,” the Prosecutor may request that the caseworker “not attempt to interview an alleged perpetrator.” The Manual explains, “Generally the reason for such requests is the necessity for law enforcement to proceed according to prescribed legal procedures for conducting a criminal
The reason for this is similar to the reasons for delaying an interview with a perpetrator (IIC 409.4). That is, notification of the findings may impede the criminal investigation, may lead to destruction or suppression of evidence, and may prevent the county prosecutor’s office from being able to prove a criminal charge.
Thus, both the Legislature and DYFS recognize the delicate balance among DYFS’s protection of a child’s best interests, the Prosecutor’s interest in enforcing criminal laws prohibiting child abuse, and a parent’s privilege against self-incrimination. This Court should be no less sensitive in recognizing that certain statements admissible in a Title 9 proceeding may not be admitted in a criminal prosecution.
Society’s paramount concern for the safety of children vests DYFS with considerable latitude when investigating suspected acts of child abuse. A criminal prosecution, by comparison, implicates countervailing considerations, such as the right of a defendant to counsel and the exclusion from evidence of a coerced statement.
Properly pursued, cooperation between DYFS and law enforcement officers can further the best interests of children and assist in the enforcement of criminal law. As this case illustrates, however, cooperation can also lead to coercion. Under the majority opinion, DYFS investigators may obtain statements from parents ostensibly to decide whether to return their children to them, but actually to convict the parents of child abuse. Prosecuting
II.
The majority holds that defendant’s uncounselled statement is admissible in his criminal prosecution. Critical to the majority’s reasoning is its conclusion that “[t]he circumstances surrounding defendаnt’s April 5 interview fail to demonstrate the coercive atmosphere and restraint of freedom that comprises a custodial interrogation.” Ante at 103,
The essential facts are that in the fall of 1993, defendant’s four- or five-month old daughter, C.Z., was hospitalized with injuries consistent with “Shaken Baby Syndrome.” Acting on behalf of DYFS, the Attorney General instituted a Title 9 action. Public defenders represented defendant and his wife. N.J.S.A. 9:6-8.43(a). On DYFS’s motion, the Family Part entered an order granting DYFS legal custody of the couple’s two minor children, C.Z. and M.Z. C.Z. remained in the hospital. The court awarded defendant’s father physical custody of M.Z. and prohibited defendant and his wife from unsupervised contact with her. The court also ordered defendant to undergo drug and psychological testing. Finally, the court directed defendant and his wife to participate in counseling and parent training.
Initially, both parents denied any responsibility for C.Z.’s injuries. Then, defendant’s wife told Cheryl Kobran, a DYFS caseworker, that defendant had admitted to her that he was responsible for the injuries. Faced with the imminence of C.Z.’s release from the hospital, DYFS called a conference attended by Kobran,
Kobran’s supervisor and the Deputy Attorney General, instructed Kobran “to call the Prosecutor’s Office, to advise them of [Kobran’s] intent to interview [defendant], in an effort not to impede any investigation that they may have had going on.” Consequently, Kobran spoke with Investigator Lazarro of the Prosecutor’s Office. According to Kobran, Lazarro told her that “[b]ecause [defendant] has a lawyer, [the Prosecutors] cannot interview him, but said that there is no obstacle to [DYFS] interviewing him, and asked that I call [the Prosecutor’s Office] with my findings.”
Without communicating with defendant’s attorney, Kobran and another caseworker made an unannounced visit to defendant’s home. After defendant’s father admitted them to the home, Kobran asked him to leave the room and then, with the other investigator, confronted defendant alone.
Defendant thought that the purpose of the meeting was to discuss whether he and his wife would regain custody of their children. Still, he told Kobran that his counsel had advised him not to speak to her. If the State intended to introduce evidence of any statement made by defendant, Kobran should have stopped the interview until after defendant had spoken with his counsel.
Pursuant to the Prosecutor’s authorization, however, Kobran “encouraged him to speak with me, because I said that we were there to finish the Division’s investigation regarding the matter of [C.Z.’s] injuries. And also, we really needed to deal with the crisis at hand, which was where [C.Z.] was going to be going, because she was ready for discharge from the hospital. And also, [M.Z.]. As a result of this information, we had concerns аbout [M.Z.’s] protection.”
After remaining quiet for some time, defendant began to talk. He was upset and remorseful. As Kobran testified, defendant said that C.Z. had cried, that he could not console her, and that he shook her two or three times out of frustration. In suppressing defendant’s statement, the trial court accepted defendant’s testimony that he had made the statement because it meant “my kids were going to come home, or so I thought anyway.”
As the trial court found, defendant had “no reason to think, at least at this point, that he’s going to be charged with anything, but we know that the Prosecutor has been involved, at that point, a good long period of time. They are looking at this case. And certainly, there’s a possibility here that he’s a target.” Later, the trial court explained, “No Criminal Complaint’s really filed, but [the Prosecutor is] there.”
The issue before the Court is not whether DYFS may use defendant’s statement to resolve the issue of custody of C.Z., but whether the Prosecutor may introduce the statement in its prosecution for child abuse. In resolving this issue, I accept the majority’s characterization that defendant was not in “custody” in the constitutional sense. Ante at 104,
The announced purpose of Kobran’s visit was to determine whether the State would return custody of C.Z. to defendant and his wife. For most parents, the fear of losing custody of a child would produce a coercive effect. According to Kobran, that is precisely the effect it produced on defendant.
Although the State contends that the purpose of the DYFS interview was to discover the cause of C.Z.’s injuries, the record supports the conclusion that another purpose was to elicit an incriminating statement from defendant. At least that is how the Prosecutor's Office perceived the purpose of the interview.
Unknown to defendant at the time he spoke with Kobran, she was acting both for DYFS and for the County Prosecutor. Even assuming, as the majority contends, that the DYFS caseworker was acting primarily to protect the best interest of C.Z., it remains that the caseworker also was acting on behalf of the County Proseсutor. In sum, Kobran was a dual agent. For the purpose of resolving whether defendant’s statement is admissible in the criminal prosecution of defendant, Kobran’s more relevant role is as the agent of the Prosecutor. Only after Kobran elicited the challenged statement from defendant did she reveal her hidden agenda.
The prior conference between Lazarro and Kobran, in which Lazarro requested Kobran to report any statement made by defendant, is sufficient to constitute Kobran as the Prosecutor’s agent for the purpose of deciding whether to suppress the defendant’s statement in his criminal prosecution. Under the circumstances, the Court should scrutinize Kobran’s conduct as tantamount to that of a law enforcement officer. See State v. Helewa, 223 N.J.Super. 40, 50,
The proof of the pudding is in the eating. Here, the proof is that the Prosecutor, having authorized Kobran to take a statement from defendant, now wants to introduce that statement in the prosecution of defendant.
To justify admission of defendant’s statement, the majority relies on a decision of the Minnesota Supreme Court involving application in a custody case of a parent’s Fifth Amendment privilege against self-incrimination. In In re J.W., 415 N.W.2d 879 (Minn.1987), the Minnesota Supreme Court held that the Fifth Amendment protected parents from a court order compelling them to incriminate themselves as a condition precedent to obtaining custody of their children. Id. at 883. The Court found that “[assertion of a constitutional right does not make a person a less
Demonstrating concern for the delicate bаlance between protecting the best interests of children and prosecuting culpable parents, the Minnesota Court observed further:
If the state believes talking to the psychologist about the nephew’s death would help [the parents] become good parents, the state could abandon its pursuit of criminal prosecutions and apply to the court for a grant of immunity for the parents. The parents could then, without fear of prosecution or prison, participate in meaningful therapy.
[Id, at 884.]
Thus, the Minnesota Court recognized that the State might better serve the public interest by forsaking admission of parental statements in a criminal proceeding for frank disclosure in a custody action. To this extent, J.W. supports the exclusion, rather than the admission of defendant’s statement.
In the present case, if defendant had made his statement at a preliminary conference or while he was in custody, his statement would be inadmissable at his criminal trial. Because defendant did not make his statement in a preliminary conference, the prohibition of N.J.S.A. 9:6-8.36 does not apply. Moreover, in the sense that Kobran’s interrogation took place in defendant’s home, and not the Prosecutor’s office or DYFS’s office, defendant was not in “custody” as the DYFS manual defines that term. Strictly speaking, therefore, Section 409.5 of the DYFS manual does not apply. The purpose of both the statute and the manual, however, is to prevent the State’s exploitation of the parent-child relation
III.
In an analogous case, this Cоurt declared inadmissible in the prosecution of a woman for fornication written statements she had made when seeking welfare for her illegitimate children. State v. Clark, 58 N.J. 72,
The doctrine of fundamental fairness protects against unjust or oppressive governmental action. Doe v. Poritz, 142 N.J. 1, 107-08,
Justice COLEMAN joins in this opinion.
Dissenting Opinion
dissenting.
I concur in Justice Pollock’s dissenting opinion. I write separately because I believe defendant’s confession should be inadmissible in the criminal proceedings for an additional reason.
This case involves the admissibility of a confession that resulted from a noncustodial interrogation during an ostensible Title Nine civil investigation. The trial court excluded the confession under a Sixth Amendment analysis based on defendant invoking the right to counsel. The Appellate Division excluded the confession based on the twin principles of fundamental fairness and the public policy of furthering the Title Nine “objective of child protection by promoting disclosures and admissions of abuse at the earliest possible time.” State v. P.Z., supra, 285 N.J.Super. at 229,
The Due Process Clause of the Fourteenth Amendment provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. That amendment “secures against state invasion ... the right of a person to remain silent unless he [or she] chooses to speak in the unfettered exercise of his [or her] own will.” Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653, 659 (1964).
Under the Due Process Clause, “certain interrogation techniques, either in isolation or as applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned.” Miller v. Fenton, 474 U.S. 104, 109, 106 S.Ct. 445, 449, 88 L.Ed.2d 405, 410 (1985). An interrogation technique becomes offensively intolerable when “self-direction is lost and compulsion, of whatever nature or however infused, propels or helps to propel the confession.” Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037, 1058 (1961). Consequently, the test for involuntariness in the Due Process Clause context focuses on both police or governmental overreaching and the suspect’s free will. Under our accusatorial system of justice, in contrast to an inquisitorial system, a coerced confession is inadmissible because its involuntariness makes it unreliable. Jackson v. Denno, 378 U.S. 368, 382-86, 84 S.Ct. 1774, 1783-86, 12 L.Ed.2d 908, 919-21 (1964); State v. Jordan, 147 N.J. 409, 425-28,
Since the formation of our constitutional form of government, the right of a parent to raise and educate his or her children has been regarded as a fundamental right. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394,
Whenever a liberty interest is at stake, due process must be followed before interfering with that interest. The question then becomes what due process is required. It has been described as an elusive concept whose “exact boundaries are undefinable.” Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 1514, 4 L.Ed.2d 1307, 1321 (1960). It is both a flexible and “dynamic concept,” Callen v. Sherman’s, Inc., 92 N.J. 114, 134,
Defendant relies on two out-of-state cases to support his contention that his confession was coerced based on the interrogator’s not-so-subtle suggestion that if he did not cooperate, his fundamental right to his children would be jeopardized. This argument is persuasive. In Lynumn v. Illinois, 372 U.S. 528, 83 S.Ct. 917,
We think it dear 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 for a long time. We think it equally clear that such would be the conclusion which Tingle could reasonably be expected to draw from the agent’s use of this technique. The relationship between parent and child embodies a primordial and fundamental value of our society. When law enforcement officers deliberately prey upon the maternal instinct and inculcate fear in a mother that she will not see her child in order to elidt “cooperation,” they exert the "improper influence” proscribed by Malloy.
[Id. at 1336.]
Both Lynumn and Tingle involved noncustodial interrogations in criminal cases. Both confessions were suppressed under the Due Process Clause. The same rule prevails when interrogations occur in civil cases regardless of whether criminal charges are likely to follow. See, e.g., Mathis v. United States, 391 U.S. 1, 4, 88 S.Ct. 1503, 1504-05, 20 L.Ed.2d 381, 384 (1968) (involving questions asked by Internal Revenue Service agent during routine tax investigation); United States v. Mata-Abundiz,
A party to Title Nine litigation is permitted to speak with another party involved in that litigation who is known to be represented by counsel. However, a prosecutor may not use a DYFS worker as an agent to circumvent the rules of professional responsibility that forbid the prosecutor from directly speaking to such a party. See ABA Comm, on Ethics and Professional Responsibility, Formal Op. 95-396 (1995) (holding a lawyer may not direct an investigative agent to communicate with a represented person in circumstances where the lawyer would be prohibited
Significantly, while acting like an agent of the prosecutor, Kobran told defendant essentially that unless he cooperated, he would lose his fundamental right to the custody and the rearing of his children. The absence of legal counsel and Kobran’s request that defendant’s father leave them alone, contributed to the coercive nature of the interrogation. See Blackburn v. Alabama, 361 U.S. 199, 207-08, 80 S.Ct. 274, 280-81,
“The aim of the requirement of due process is ... to prevent fundamental unfairness in the use of evidence whether [that evidence is] true or false.” Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166, 180 (1941). Here, the degree of unfairness was enhanced by the fact that although Kobran knew defendant had counsel in the Title Nine action, which was constitutionally mandated because the stakes were so high, New Jersey Div. of Youth and Family Servs. v. E.B., 137 N.J. 180, 186,
Governmental activities that are coercive may preclude a confession from being used as evidence when it was involuntarily obtained within the meaning of the Due Process Clause of the Fourteenth Amendment. Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 522,
For reversal — Chief Justice PORITZ, and Justices HANDLER, O’HERN, GARIBALDI and STEIN — 5.
For affirmance — Justices POLLOCK and COLEMAN — 2.