Opinion
DOCKET NO. A-1228-14T4
03-08-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. O.R., Defendant-Appellant, and L.M. and P.G., Defendants. IN THE MATTER OF E.R., L.R. and N.G., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Marina Ginzburg, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Julie B. Christensen, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Linda Vele Alexander, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Fasciale. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-256-13. Joseph E. Krakora, Public Defender, attorney for appellant (Marina Ginzburg, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Julie B. Christensen, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Linda Vele Alexander, Designated Counsel, on the brief). PER CURIAM
Defendant appeals from a July 24, 2013 order finding he abused or neglected his then three- and four-years-old daughters by exposing them to a substantial risk of harm when he beat his wife, L.M. (the mother), in their presence and left the daughters unattended, one on a blood-covered bed and the other shivering in the bathtub while running cold water filled over her shoulders. We affirm.
Defendant gave an incriminating statement to two Division of Child Protection and Permanency (the Division) caseworkers in connection with this abuse or neglect action. At the fact-finding hearing, defendant moved to suppress his statement from being admitted into evidence, arguing that the caseworkers failed to give him Miranda warnings. The judge denied that motion. Defendant later pled guilty to criminal charges associated with the domestic violence incident on which the abuse or neglect charges were based.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
On appeal, defendant argues the judge erred in admitting his uncounseled inculpatory statement to prove acts of abuse or neglect. We disagree and hold the Division has no obligation to issue Miranda warnings prior to interviewing a party defendant in a Title Nine action, whose conduct it suspects caused a child to be abused or neglected.
I.
Defendant and the mother are the biological parents of two children: then three-year-old E.R. and then four-year-old L.R. (the children). The mother's third child, then fifteen-year-old N.G., who is not defendant's biological child, resided in the household on the date of the incident. The Division first became involved with the family in October 2012 when it received a referral informing the Division that defendant and the mother had a history of domestic violence. The Division investigated the referral.
The following day, the Division received a copy of a September 2012 report from the Union City Police Department detailing the response to a domestic violence call. The report related defendant had broken several items in the residence, threatened the mother's life, and stated the children would watch while defendant harmed the mother. The mother signed a complaint for harassment and obtained a temporary restraining order against defendant, who was subsequently arrested.
In November 2012, the Division received another referral relating that the mother was physically abusing the children. The referent further advised that the mother and defendant had a history of domestic violence, and the domestic violence occurred in the presence of the children.
On December 26, 2012, Union City police officers responded to the family's apartment building after receiving a call reporting a domestic assault in progress (the incident). Police discovered blood on the hallway floor, and then observed the mother, who had severe facial swelling, major injuries to her lip and jaw, and "blood all over her." The mother reported defendant caused her injuries and was inside the apartment.
Upon entering the apartment, police observed blood and vomit in the living room. After entering a bedroom, police saw L.R. naked, screaming, and crying on the corner of a bed with "blood all over the bed" and nearby toys. Police moved the child to the middle of the bed.
Police then responded to the screams of another child. In the bathroom, police found E.R. naked and shivering in a bathtub with running cold water above the child's shoulders. Police removed E.R. from the water and took the children out of the apartment. Police did not find defendant in the apartment building.
While the mother received medical treatment outside the apartment, she advised police she and defendant argued when one of the children vomited on the floor. The mother stated defendant became enraged and began beating her. In an effort to flee from defendant, the mother retreated to the bathroom and placed E.R. in the bathtub, but defendant followed her into the bathroom and continued to beat her until she fled the apartment seeking help. The mother was taken to the hospital. Police contacted the children's maternal aunt, who then picked up the children.
Police notified the Division about the incident. A Division worker responded to the aunt's home. Although the children were sleeping, the worker spoke with N.G., who was not present during the incident. N.G. confirmed a history of arguments between the mother and defendant. The worker performed an emergency Dodd removal of the children and N.G.
A Dodd removal allows the Division to remove a child from the home, before a preliminary hearing, where the Division finds an imminent risk of harm to the child. N.J.S.A. 9:6-8.28(a).
On December 27, 2012, a Division worker went to the children's resource home. E.R. confirmed the mother placed her in the bathtub on the night of the incident after she vomited on the floor and that police removed her from the bathtub. Regarding the incident, E.R. stated the mother had "a lot" of "boo-boos" after she saw the "Cookie Monster" — who E.R. confirmed was a male — "hit her with his hands." L.R. confirmed "[d]addy hit [the mother,]" and N.G., who was placed in the care of her biological father, advised defendant had previously threatened the mother's life several times.
On December 28, 2012, the Division filed a verified complaint for custody of E.R. and L.R., and care and supervision of N.G. On the return date of the order to show cause, the Division's attorney advised the court that defendant turned himself into police on December 27, 2012. The judge entered an order continuing the Division's care and supervision of the children and retaining N.G. in her father's care.
On December 29, 2012, defendant was released from custody after posting bail. The Division contacted defendant and requested he come to the Division office for a meeting.
On January 2, 2013, defendant voluntarily met with two Division workers in a conference room at the Division office (the interview). The interview lasted approximately thirty to forty minutes, and although defendant was free to do so, he never requested to terminate the interview. Defendant stated that on the night of the incident he became angry and yelled at the mother after she did not hear defendant requesting she clean up the vomit in the living room and take care of E.R. Defendant then stated the mother placed E.R. in the bathtub, began cleaning the vomit, and insisted defendant leave because the mother did not want to be with him any longer. Defendant admitted, as a result of his anger, he punched the wall, repeatedly hit the mother, chased her from the residence, and fled the apartment, knowingly leaving E.R. alone in the bathtub and L.R. on the bed. Defendant stated he attacked the mother because she nagged him, and it was not the first time he had struck her. At the end of the interview, defendant submitted to a drug screen and left the office.
The judge held a fact-finding hearing on June 27, 2013. The Division introduced into evidence: the Union City Police Department's Incident Report, photographs from the scene of the incident, as well as the Division's investigation summary and contact sheets containing defendant's statements to the caseworkers. The Division also presented the testimony of two Union City law enforcement officials who responded to the incident and three Division workers. Defendant did not testify or present any witnesses.
Defendant objected to the admission into evidence of his statements given during the interview, arguing the Division workers were required to read him his Miranda rights prior to any interrogation. On July 24, 2013, after considering the parties' briefs and oral argument, the judge ruled the statements were admissible because defendant was not subjected to custodial interrogation. Based on the admissible evidence, the judge rendered an oral opinion finding by a preponderance of the evidence defendant abused or neglected the children by exposing them to a substantial risk of harm when he beat the mother in their presence and by leaving his young daughters alone and in precarious positions.
At a June 9, 2014 compliance hearing, the court was informed defendant had signed a negotiated plea agreement in the criminal matter on May 27, 2014, for which he would receive a non-custodial probationary sentence. On September 29, 2014, the court terminated the abuse or neglect litigation.
II.
On appeal, defendant argues the finding of abuse or neglect cannot be sustained because the judge erred by admitting into evidence his statements from the interview, and he maintains that the judge's decision that he abused or neglected the daughters is not adequately supported by the evidence.
Our standard of review is limited. In re J.N.H., 172 N.J. 440, 472 (2002). Because a trial judge's findings "are considered binding on appeal when supported by adequate, substantial and credible evidence[,]" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974), we only disturb factual findings when they are so manifestly unsupported by or inconsistent with competent, relevant, and reasonably credible evidence as to offend the interests of justice. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
A.
We first address defendant's argument the judge erred by not suppressing his statements from the interview. Specifically, defendant maintains the Division obtained these statements in violation of his Miranda rights. It is undisputed no civil child protection proceeding has ever excluded a defendant's statements to a Division worker on Miranda grounds. Nevertheless, defendant argues his statements should have been suppressed largely because of his pending parallel criminal proceedings.
"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.'" State v. P.Z., 152 N.J. 86, 100 (1997) (quoting U.S. Const. amend. V) (alteration in original). Miranda's "'prophylactic-procedural safeguards'" protect this right against self-incrimination. State v. Knight, 183 N.J. 449, 461 (2005) (quoting State v. Burris, 145 N.J. 509, 520 (1996)). It is well established
the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.Thus, to trigger the need for Miranda warnings, "the defendant must be in custody and the interrogation must be carried out by law enforcement." P.Z., supra, 152 N.J. at 102. "The critical determinant of custody is whether there has been a significant deprivation of the suspect's freedom of action based on the objective circumstances, including the time and place of the interrogation, the status of the interrogator, the status of the suspect, and other such factors." Id. at 103.
[Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706 (emphasis added).]
(i).
We reject defendant's contention that he may successfully invoke Miranda to suppress his voluntary statements to Division workers in this Title Nine proceeding. To accept defendant's argument applying criminal constitutional jurisprudence to civil proceedings would improperly shift the focus and goal of Title Nine from the paramount concern of protecting children to the rights of parents or guardians.
Miranda motions filed in criminal proceedings seeking to suppress statements to Division workers are not unusual. Indeed such motions have been successful where the defendant was in fact subjected to custodial interrogation. See, e.g., Helewa, supra, 223 N.J. Super. 40; Flower, supra, 224 N.J. Super. 208. On the other hand, Miranda motions filed in Title Nine proceedings seeking to suppress statements to Division workers are unusual. "The criminal justice system acts separately, but in tandem with the civil system, to investigate and prosecute those who abuse and neglect children." P.Z., supra, 152 N.J. at 100. We acknowledge that parallel investigations and proceedings initiated by the Division and law enforcement have led to complex Miranda and other constitutional issues. See, e.g., Div. of Youth & Family Servs. v. Robert M., 347 N.J. Super. 44, 64 (App. Div.) (citations omitted) (indicating that "[p]arallel 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"), certif. denied, 174 N.J. 39 (2002). A defendant subjected to parallel proceedings, however, does not automatically acquire "additional procedural safeguards beyond those provided by constitution, statute or procedural rules." Ibid. (citing P.Z., supra, 152 N.J. at 117).
We note that although the Legislature has expressly provided that testimony by a defendant during the trial of a domestic violence matter can only be used for the limited purposes of cross-examination in a related criminal trial, N.J.S.A. 2C:25-29(a); State v. Duprey, 427 N.J. Super. 314 (App. Div. 2012), the Legislature has not implemented such a safeguard for Title Nine defendants.
The purpose of a Title Nine proceeding is to protect children — not punish parents, protect parents, or prove a crime. N.J.S.A. 9:6-8.8(a). Title Nine applies the "preponderance of the evidence" standard, which is used in civil — not criminal — cases, N.J.S.A. 9:6-8.46(b), because Title Nine proceedings are simply not criminal or even quasi-criminal in nature, see P.Z., supra, 152 N.J. at 111 (distinguishing between a defendant in a criminal prosecution and a respondent in a Title Nine civil action); N.J. Div. of Youth & Family Servs. v. P.C., 439 N.J. Super. 404, 413 (App. Div. 2015) (identifying a Title Nine proceeding as a "civil action"); see also Div. of Youth & Family Servs. v. M.Y.J.P., 360 N.J. Super. 426, 467 (App. Div.) (explaining even a Title Thirty "action for termination of parental rights is a civil action"), certif. denied, 177 N.J. 575 (2003), cert. denied, 540 U.S. 1162, 124 S. Ct. 1176, 157 L. Ed. 2d 1207 (2004). Indeed, our Supreme Court "decline[d] to expand the rights of Title Nine respondents to include protections accorded criminal defendants after they have been indicted or taken into custody." P.Z., supra, 152 N.J. at 111. Thus, although defendant could have made a Miranda motion in a criminal prosecution to suppress his statements from the interview, such a challenge is inapposite in the Title Nine proceeding at issue here.
In the context of the Sixth Amendment right to counsel, the Court also explained "[f]orcing a [Division] caseworker to choose between providing Miranda warnings and foreclosing the use in criminal proceedings of information obtained in the course of an abuse or neglect investigation will not inure to the protection of children. We decline to tip the balance by requiring additional protections for the parents of abused children to be imported from our criminal jurisprudence into Title Nine proceedings." P.Z. supra, 152 N.J. at 112.
(ii).
Division workers are not obliged to issue Miranda warnings prior to conducting a non-custodial interview of a party defendant in a Title Nine action. The judge properly determined defendant was not subjected to custodial interrogation, and thus Miranda warnings were not warranted.
The judge considered the totality of the circumstances in light of the relevant case law and concluded defendant was not in custody. Rather, three days after being released from jail, defendant voluntarily agreed to meet with workers at the Division office at his own convenience and by his own means of transportation. The judge explained the atmosphere at the Division office is "very different" from that of a police station; the Division office did not include holding cells, uniformed officers, or anyone in handcuffs. Although the conference room door was closed, this was not unusual given the confidential nature of the Division's matters; there was no indication he could not leave, and defendant never asked to leave. Additionally, defendant had been in jail approximately three days prior to the interview so he understood the nature of actually being in custody. Indeed, the judge found there was "nothing particular[ly] threatening" about the thirty to forty minute interview, and there was no indication defendant was in custody. Because defendant was not in custody during the interview, we need not address whether the Division workers were acting as law enforcement officers. P.Z., supra, 152 N.J. at 103.
B.
Finally, we reject defendant's contention the order must be reversed because there is insufficient evidential support for the finding of abuse or neglect. That is, defendant maintains he exercised a minimum degree of care and the children were not harmed.
Where the Division seeks care and supervision of a child pursuant to Title Nine under the belief the child has been neglected or abused, the court conducts an evidentiary hearing where the Division must prove by a preponderance the evidence that "the child is an abused or neglected child." N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 262 (App. Div. 2002); see also N.J.S.A. 9:6-8.44; N.J.S.A. 9:6-8.21(c); N.J.S.A. 9:6-8.46(b). An "[a]bused or neglected child" includes
a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his [or her] parent or guardian . . . to exercise a minimum degree of care . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court[.]
[N.J.S.A. 9:6-8.21(c)(4)(b).]
Our Supreme Court has explained that, when evaluating whether a parent has failed to exercise a "minimum degree of care," courts are to use a gross negligence standard. G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999) (referring to conduct that is "grossly or wantonly negligent, but not necessarily intentional"). In construing this provision, we have emphasized that the primary concern of Title Nine is the protection of children, not the culpability of parental conduct. State v. Demarest, 252 N.J. Super. 323, 330 (App. Div. 1991). "[A] guardian fails to exercise a minimum degree of care when he or she is aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." G.S., supra, 157 N.J. at 181.
Here, the judge credited the testimony of all of the witnesses the Division presented. Based on the layout of the apartment, the blood throughout the scene, the location of the children, and the violent nature of the attack, the judge found the children witnessed the incident, which rendered the mother severely injured and incapable of caring for the children. The judge noted the extent of blood throughout the scene and commented that the pictures taken the night of the incident were "horrible, possibly the worst pictures the [judge] ha[d] viewed of an assault victim who [was] still alive." The judge also emphasized the conditions defendant left the children in: L.R. was left on the edge of a bed with blood on the bed and nearby toys; E.R. was left naked, screaming, and shivering in a bathtub with running cold water up to her shoulders. Indeed, the judge recounted how defendant fled the apartment knowing the children were left unattended in these unsafe conditions. Thus, the judge concluded the children were at risk of harm when defendant beat the mother in their presence and left them unattended in precarious conditions.
Defendant's actions were not merely negligent; defendant admitted he knew where the children were while he beat the mother and that he fled knowing that he was leaving the children unattended in these dangerous positions. See G.S., supra, 157 N.J. at 181. Defendant's reliance on New Jersey Division of Youth & Family Services v. S.S., 372 N.J. Super. 13 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005), is misplaced. In S.S., we held emotional or psychological harm to a child by witnessing domestic violence cannot be assumed; there was no finding of actual or potential physical harm. Id. at 22, 24-26. By contrast, here, the judge concluded defendant exposed the children to a substantial risk of physical harm. See In re Guardianship of DMH, 161 N.J. 365, 383 (1999) (explaining a court "need not wait to act until a child is actually irreparably impaired"). That is, our concern is not the potential emotional or psychological harm from witnessing the incident; it is the obvious risk of physical harm presented from the children being in the immediate vicinity of the violent altercation and then being knowingly left unattended in patently precarious positions. See N.J. Div. of Youth & Family Servs. v. A.R., 419 N.J. Super. 538, 544 (App. Div. 2011) (indicating that "[c]ertainly, it is a truth universally acknowledged that leaving an infant unattended in a filled bathtub constitutes gross negligence"); Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 309-10 (2011) (comparing culpability of merely unknowingly or negligently leaving a four-year-old unattended and knowingly or recklessly leaving the child unsupervised). Consequently, the judge's findings defendant failed to exercise a minimum degree of care and supervision and, thus, exposed the children to a substantial risk of physical harm are amply supported by substantial, credible evidence in the record.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION