N.J. Div. of Child Prot. & Permanency v. S.K. (In re Je.K.)

• Decision Date: 31 August 2018
• Docket Number: DOCKET NO. A-2734-15T2
• Citation: 193 A.3d 309,456 N.J.Super. 245
• Parties: NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. S.K., Defendant, and C.K., Defendant-Appellant. In the Matter of JE.K. and JA.K., Minors.
• Court: New Jersey Superior Court — Appellate Division

456 N.J.Super. 245

193 A.3d 309

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent,

v. S.K.,¹ Defendant,andC.K., Defendant-Appellant.In the Matter of JE.K. and JA.K., Minors.

DOCKET NO. A-2734-15T2

Superior Court of New Jersey, Appellate Division.

Argued October 11, 2017

Decided August 31, 2018

Thomas G. Hand, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Thomas G. Hand, on the briefs).

William T. Harvey, Jr., Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Alexa L. Makris, Deputy Attorney General, and William T. Harvey, Jr., on the briefs).

Olivia Belfatto Crisp, Assistant Deputy Public Defender, argued the cause for minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Olivia Belfatto Crisp, on the briefs).

Before Judges Fuentes, Koblitz and Manahan.

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, 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 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 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.

IInitial 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."

Later that same day, a caseworker accompanied the family to the Hi-Nella Police Station where Jane and her sister Kate met with a Detective from the CCPO. The sisters were interviewed separately. As was the case with her discussion with the Division caseworker, Jane was at first hesitant and felt awkward talking about defendant with the Detective. She eventually told him that the sexual abuse began when she was six years old and continued until she was approximately eleven. When the Detective asked her if she could tell him what happened, she answered: "No. It's ... I don't actually remember, I have [a] bad memory." She also claimed she could not remember the last time he molested her.

Despite her age, the Detective used drawings of male and female bodies and pointed to specific body parts to ask her where defendant had touched her. Jane told him he touched specific body parts with "his hand and dick." She claimed he kissed her lips while she was laying down, and touched her "boobs" with his hand, and her vagina with his "dick and hand." With respect to her vagina, she claimed he touched her "on the inside." At the time, she did not know whether this was right or wrong.

The molestation occurred in her bedroom, and she estimated it happened "probably less than twenty [times]." She did not tell her friends or her older sisters³ about the abuse until she was twelve or thirteen years old. Her sisters did not tell anyone; Jane told the Detective that she believes her mother was not aware of the abuse. When Jane finally told her friends, she told them she was "raped a while ago."

The Detective next interviewed Jane's older sister Kate. Kate told him that she did not remember what Jane told her when Jane was twelve years old. According to Kate, Jane never told her anything about what her father was doing to her. When the Detective pursued the issue more vigorously, Kate said that Jane might have told her about something "a really long time ago," but claimed to have no specific recollection or knowledge about what it was about.

When the Detective interviewed S.K., she again denied any knowledge of sexual abuse. She claimed Jane fabricated these allegations against her father because he had chastised her for being disrespectful to him. According to S.K., Jane told defendant: "how can I respect you when you raped me." S.K. told the Detective that she did not ask defendant about Jane's comment. However, when she asked Jane, she did not reply. At that point, S.K. said she decided to "let the comment die." S.K. noted that defendant had "always been 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...