DCPP VS. S.K. AND C.K., IN THE MATTER OF JE.K. AND JA.K. (FN-04-0619-15, CAMDEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2734-15T2

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

APPROVED FOR PUBLICATION

S.K.,1

August 31, 2018

Defendant, APPELLATE DIVISION

and

C.K.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF JE.K. and JA.K.,

Minors.

_________________________________

Argued October 11, 2017 – Decided August 31, 2018

Before Judges Fuentes, Koblitz and Manahan.

(Judge Koblitz concurring).

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

1

Pursuant to Rule 1:38-3(d)(12), we use initials and pseudonyms

to identify the parties to protect their privacy and preserve the

confidentiality of these proceedings.

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).

The opinion of the court was delivered by

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,

2 A-2734-15T2

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 N.J.S.A. 9:6-8.21(c)(3). The Family Part

granted the OTSC, placed the children with a Division-approved

foster family, and awarded the Division temporary custody, care,

and supervision.

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. After a CCPO Detective

explained the nature of the charges, defendant agreed to submit

to a lie detector test on June 1, 2015, at the Lindenwold Police

Station. Defendant later refused to submit to the test and

2

"A 'Dodd removal' refers to the emergency removal of a child

from the home without a court order, pursuant to the Dodd Act,

which, as amended, is found at N.J.S.A. 9:6-8.21 to -8.82. The Act

was authored by former Senate President Frank J. 'Pat' Dodd in

1974." N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super.

593, 609 n.2 (App. Div. 2010).

3 A-2734-15T2

declined to cooperate with the criminal investigation. The CCPO

ultimately arrested and charged defendant on three counts of first

degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2)(a), four

counts of second degree sexual assault, N.J.S.A. 2C:14-2(b), and

two counts of second degree endangering the welfare of a child,

N.J.S.A. 2C:24-4(a)(2).

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 N.J.S.A. 9:6-

8.44, and the Division called defendant as a witness to corroborate

the allegations of sexual abuse made against him by his daughter

Jane. On the advice of his attorney, defendant invoked his right

against self-incrimination and refused to testify. At the request

of the Deputy Attorney General (DAG) who represented the Division,

the Family Part Judge drew an adverse inference of culpability

against defendant.

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

4 A-2734-15T2

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

N.J.R.E. 503 in response to the Division's request to call him as

a witness in the fact-finding hearing. This issue has not been

addressed in a published opinion by any court in this State. We

now hold that a Family Part Judge may not draw an adverse inference

of culpability against a defendant who invokes his right against

self-incrimination to refuse to testify at a Title 9 fact-finding

hearing.

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.

5 A-2734-15T2

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 stopped when she

was ten years old." She also claimed that her father had raped

her when she was six years old, and continued until she was ten

years old, often when her mother was at work.

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."

6 A-2734-15T2

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

7 A-2734-15T2

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,

3

Defendant and S.K. had a third daughter who is an adult and did

not reside with them at the time the abuse allegations came to

light in May 2015.

8 A-2734-15T2

S.K. said she decided to "let the comment die." S.K. noted that

defendant had "always been mean" to Jane because he suspected she

was not his biological child.

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

9 A-2734-15T2

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

4

The Child Abuse Research Education and Service [CARES] Institute

is affiliated with Rowan University. It "accepts referrals from

the Division of Child Protection and Permanency, DCP&P (formerly

DYFS), county prosecutors' offices, community medical and mental

health providers, social service agencies, hospitals and parents."

Making a Referral, CARES INSTITUTE, Rowan Medicine,

http://www.caresinstitute.org/referrals.php (last visited on Aug.

20, 2018).

10 A-2734-15T2

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 services, including

psychological and domestic violence evaluations. The court

initially awarded S.K. unsupervised visitation with the children.

The court eventually reunited the girls with their mother,

restoring S.K.'s full legal and physical custody. Although he was

incarcerated, the court continued to enjoin defendant from having

any contact with his minor daughters.

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

11 A-2734-15T2

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

12 A-2734-15T2

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

13 A-2734-15T2

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.

14 A-2734-15T2

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

15 A-2734-15T2

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 Belito[5]

5

The brief submitted by the Division in this appeal does not

cite any case remotely similar to this phonetic spelling. However,

we infer the DAG may have been referring to In the Matter of

Ippolito, 145 N.J. Super. 262 (App. Div. 1976), rev'd on other

16 A-2734-15T2

(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.

grounds, 75 N.J. 435 (1978). In its brief before this court, the

Division cites to Ippolito for the proposition that a witness

invoking the Fifth Amendment to refuse to testify must have a

reasonable basis to fear prosecution. Ippolito, 145 N.J. Super.

at 266. The reasonableness of defendant's fear of prosecution was

never an issue in this case.

17 A-2734-15T2

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 [N.J.R.E.]

603, the child has to be under oath. The child was never placed

under oath. The testimony cannot be accepted under [N.J.R.E.]

603."

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

18 A-2734-15T2

DAG argued the recordings of Jane's interviews were intended as

corroborative evidence. This prompted the following colloquy:

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 N.J.S.A. 9:6-

6

"9-7" refers to a caseworker's report.

19 A-2734-15T2

8.21(c)(3). The judge made the following findings in support of

this conclusion:

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

20 A-2734-15T2

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 limited. N.J. Div. of Child Prot. & Permanency v.

K.F., 444 N.J. Super. 191, 200 (App. Div. 2016). We our bound to

uphold these findings as long as they are supported by "adequate,

substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394,

411-12 (1998). This deferential standard of review is appropriate

because the Family Part judges are presumed to have a "specialized

knowledge and experience in matters involving parental

relationships and the best interests of children." N.J. Div. of

Youth & Family Servs. v. F.M., 211 N.J. 420, 427 (2012).

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

21 A-2734-15T2

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 N.J.R.E. 503, and refuse to testify as a witness for

the Division; (2) the judge's finding of abuse was not based on

competent evidence; and (3) his counsel before the Family Part was

ineffective and failed to object to the introduction of legally

incompetent evidence which ultimately formed the basis for the

judge's finding of abuse. We agree with defendant in all three

respects.

22 A-2734-15T2

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 . . . ." N.J.A.C. 3A:10-5.1(b)(2).

Furthermore, upon written request, the Department of Children

(DFC) and Families shall release the records and reports to "[a]

police or other law enforcement agency investigating a report of

child abuse or neglect[.]" N.J.S.A. 9:6-8.10a(b)(2).

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 prosecutor N.J.S.A. 9:6-

8.25a. Alternatively, if the prosecutor

decides to bring a criminal case, the

caseworker must be advised. N.J.A.C. 10:129-

1.5(c).

[Id. at 63-64.]

23 A-2734-15T2

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

24 A-2734-15T2

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 Rule 5:12-6(a), "[w]hen a criminal complaint

has been filed against a parent or guardian arising out of the

same incident as a [Division] action . . . the Family Part shall

determine the nature and scope of parental or guardian

visitation[.]" Under Rule 5:12-6(a)(1), when the Family Part

schedules "any hearing at which visitation conditions are to be

imposed or modified, the court shall provide notice to the county

prosecutor."

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 N.J.S.A. 9:6-8.10a."

Rule 5:12-6(a)(2)

Under Rule 5:12-6(b), "if there is a criminal investigation

of an incident that is the basis for the [Division's" complaint]

before the Family Part, the Division "may request that the

prosecutor provide any relevant information for use in the action."

As we explained in S.M. v. K.M., 433 N.J. Super. 552, 559 (App.

Div. 2013), Rule 5:12-6(b) also contains a procedural mechanism

25 A-2734-15T2

to resolve information-sharing disputes that may arise. However,

we must emphasize that Rule 5:12-6 does not impose a reciprocal

obligation upon the Division to share information with the County

Prosecutor. In our view, the reason for such an omission is made

clear in this final statement: "No rights or privileges that may

otherwise exist are affected by this dispute resolution

procedure." R. 5:12-6(b) [(emphasis added).] Stated differently,

the Division's information-disclosure obligations to law

enforcement agencies remained as codified in N.J.S.A. 9:6-

8.10a(b)(2).

Thus, none of the provisions in Rule 5:12-6 empower a Family

Part Judge presiding in a Title 9 fact-finding hearing to enjoin

the county prosecutor from using a defendant's self-incriminating

statements as part of the State's case in a criminal trial.7 The

Family Part's authority under Rule 5:12-6(a)(2) is expressly

circumscribed by N.J.S.A. 9:6-8.10a and b. The plain text of this

statute does not authorize the Family Part to take any action to

prevent the Division from providing the county prosecutor with a

transcript of the fact-finding hearing containing a defendant's

7

In the criminal trial, the prosecutor would seek to introduce

defendant's self-incriminating statements at the fact-finding

hearing as admissible evidence of culpability under N.J.R.E

802(b)(1) and N.J.R.E. 803(c)(25).

26 A-2734-15T2

self-incriminating testimony. In this light, we must now address

whether a Family Part Judge may draw an adverse inference of

culpability based on defendant's exercise of his right against

self-incrimination to refuse to testify as a Division witness at

a fact-finding hearing.

Parents have a fundamental constitutional right to raise

their children, Stanley v. Illinois, 405 U.S. 645, 649 (1972);

N.J. Div. of Youth and 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

27 A-2734-15T2

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, N.J.S.A. 2A:84A-19, and evidence rule,

N.J.R.E. 503." State v. S.S., 229 N.J. 360, 381 (2017) (quoting

State v. Nyhammer, 197 N.J. 383, 399 (2009)). N.J.R.E. 502

provides, in part:

[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.

The right against self-incrimination is "confined to

instances where the witness has reasonable cause to apprehend

danger from a direct answer." Hoffman v. United States, 341 U.S.

479, 486 (1951). The trial judge must determine that the

28 A-2734-15T2

individual seeking to invoke the protection of the Fifth Amendment

is "confronted by substantial and 'real,' and not merely trifling

or imaginary, hazards of incrimination." United States v.

Apfelbaum, 445 U.S. 115, 128 (1980). The Constitutional privilege

protects individuals from providing testimonial evidence that he

or she "reasonably believes could be used in a criminal prosecution

or could lead to other evidence that might be so used." Kastigar

v. United States, 406 U.S. 441, 445 (1972). The privilege extends

"to answers that would in themselves support a conviction . . .

but likewise embraces those which would furnish a link in the

chain of evidence needed to prosecute the claimant . . . ."

Hoffman, 341 U.S. at 486.

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

29 A-2734-15T2

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.

8

In Griffin, the defendant was on trial for first degree murder

and was facing a possible death sentence. Griffin, 380 U.S. at

609. The defendant "did not testify at the trial on the issue of

guilt, though he did testify at the separate trial on the issue

of penalty." Ibid. The trial judge gave the jury the following

instructions with respect to his constitutional right not to

testify:

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

30 A-2734-15T2

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-

indicating that among the inferences that may

be reasonably drawn therefrom those

unfavorable to the defendant are the more

probable.

[Griffin, 380 U.S. at 610.]

31 A-2734-15T2

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 N.J.S.A. 2A:88-1 and N.J.S.A. 2A:110-1. Ibid. The

Court held "it is evident that the defendants could not have been

directed to answer the interrogatories nor could they have been

fined or imprisoned for their refusal to do so." Id. at 56.

However, the Court in Mahne held the fact-finder could draw

an adverse inference from the defendant's failure to answer these

questions. In reaching this conclusion, our Supreme Court

distinguished the United States Supreme Court's decisions in

Garrity and Spevack, by emphasizing "that neither case arose in

the present context of private litigation between private parties

in which noncriminal sanctions are imposed in aid of orderly

pretrial discovery." Id. at 57. The Mahne Court also explained

32 A-2734-15T2

the public policy underpinning permitting the fact-finder to draw

an adverse inference in this type of civil proceeding,

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

33 A-2734-15T2

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 Miranda[10] 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

9

Judge James H. Coleman, Jr. was appointed an Associate Justice

of the Supreme Court in 1994 by Governor Christine Todd Whitman.

10

Miranda v. Arizona, 384 U.S. 436 (1966).

34 A-2734-15T2

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 N.J.R.E.

104(c), and granted the defendant's motion to suppress the

statement. Ibid. This court affirmed the motion judge. Ibid.

The Supreme Court reversed. Ibid.

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

35 A-2734-15T2

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

11

Pursuant to N.J.R.E. 201(a), we take judicial notice that

defendant was convicted of three counts of first degree aggravated

sexual assault, N.J.S.A. 2C:14-2(a)(2)(a), four counts of second

degree sexual assault, N.J.S.A. 2C:14-2(b), and two counts of

second degree endangering the welfare of a child, N.J.S.A. 2C:24-

4(a)(2). He was sentenced on February 17, 2017 to an aggregate

term of fifty-eight years, subject to an eighty-five percent period

of parole ineligibility pursuant to the No Early Release Act,

N.J.S.A. 2C:43-7.2. He is currently incarcerated at a Department

of Corrections penal institution.

36 A-2734-15T2

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 N.J.R.E. 503.

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

37 A-2734-15T2

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.

38 A-2734-15T2

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. 688, 687 (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,

39 A-2734-15T2

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, defense counsel

seemed utterly unfamiliar with the body of case law this court has

discussed here.

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

40 A-2734-15T2

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 N.J.R.E. 503. Because the judge relied

on defendant's silence to draw an adverse inference of culpability

to corroborate the child's hearsay statements, the Division failed

to prove, by a preponderance of the competent evidence, that

defendant sexually abused his daughter Jane, as defined in N.J.S.A.

9:6-8.21(c)(3).

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.

41 A-2734-15T2

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 N.J.S.A. 2C:25-19(a) (defining "domestic violence" with

reference to specific criminal acts), although as in all Family

cases, the standard of proof is not as stringent as in a criminal

proceeding, see N.J.S.A. 2C:25-29(a) (requiring proof by a

preponderance of the evidence). Although domestic violence

records are sealed under threat of criminal prosecution, N.J.S.A.

2C:25-34, domestic violence trials are held in open court, see R.

1:2-1 (requiring that "[a]ll trials . . . be conducted in open

court unless otherwise provided by rule or statute"), and thus a

defendant's testimony is accessible to the public and to the

prosecutor in a parallel criminal prosecution. Similar to child

welfare litigation, domestic violence matters cannot be adjourned

to accommodate the lengthy criminal process, allowing a defendant

to testify after the criminal matter is closed, thus avoiding

criminal exposure. See State v. Kobrin Securities, Inc., 111 N.J.

307, 310, 312-15 (1988) (in the securities fraud context,

explaining that defendants could assert their right against self-

incrimination in parallel civil proceedings, but could not

"indefinitely" stay those proceedings until conclusion of their

criminal matters). Domestic violence hearings should be scheduled

within ten days. N.J.S.A. 2C:25-29(a). The Legislature has

explicitly provided that a defendant's testimony in a domestic

violence case may not be used against him or her in a criminal

prosecution. Ibid. In a situation where frequently the parties

have only their conflicting testimony to present, defendant is

thus not precluded from providing a defense. Given the duration

and broad range of remedies available under the statute and, as a

result, the severe consequences, N.J.S.A. 2C:25-29(b), the

Legislature wisely ensured the court would have before it a full

record upon which to make a determination.

The best interests of children are the prime concern of our

child welfare system. N.J.S.A. 9:6-8.8(a); N.J.S.A. 30:4C-1.

Resulting court decisions are important. See In re Adoption of

J.E.V., 442 N.J. Super. 472, 481 (App. Div. 2015) (noting that the

panel could "think of no legal consequence of greater magnitude

than the termination of parental rights"), aff'd, 226 N.J. 90

2 A-2734-15T2

(2016). Not only do parents have the Constitutional right to

raise their children absent interference from the State, Stanley

v. Illinois, 405 U.S. 645, 651 (1972), but also children have the

right to a safe and secure home, see Dep't of Children & Families

v. E.D.-O., 223 N.J. 166, 178 (2015) (recognizing, as the most

important among children's legal rights, the "right of protection

from physical abuse and neglect" (quoting Sponsor's Statement to

S. 1217 (Apr. 29, 1974))). Courts need all available evidence to

determine the often extremely difficult path to greater safety and

security for a child. The power to separate a child from a parent

is an extraordinary power that should not be exercised with

unnecessarily limited vision. See N.J. Div. of Child Prot. &

Permanency v. K.S., 445 N.J. Super. 384, 390 (App. Div. 2016)

(holding the trial court erred in refusing to reopen the record

to afford the mother an opportunity to testify in a proceeding to

terminate her parental rights). Not only does it benefit the

defendant parent, as in domestic violence cases, to present his

or her side of the story, but it benefits the children by providing

a fuller picture of the situation.

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.

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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. N.J.S.A.

9:6-8.10a(b)(2). But the statute defines the "records" that must

be shared as:

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 Rule 5:12-6(a) allows the

prosecutor to have input only into a condition of release on

criminal charges. Ordinarily in a criminal case, no contact with

the alleged victim is imposed as a condition of release. See

State v. Wright, 410 N.J. Super. 142, 152 & n.3 (Law Div. 2009)

(noting a no-contact condition serves the goal of protecting the

public). Frequently visitation of some kind with a parent is

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allowed in the parallel child welfare case. Even a neglected or

abused child most often benefits from some contact with the

perpetrating parent. The Division has the capacity to provide

supervised visitation, not commonly available in criminal matters.

The Family court determines the visitation accorded a released

defendant, but the prosecutor is permitted input in that sole

aspect of the Family case, so that the court will have the fullest

possible information before making the decision, and the

prosecution will be assured the child is safe and its witness

protected from possible intimidation.

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

5 A-2734-15T2

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.

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