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State v. P.Z

November 26, 1997

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
P.Z., DEFENDANT-RESPONDENT.



On appeal from the Superior Court, Appellate Division, whose opinion is reported at 285 N.J. Super. 219 (1995).

The opinion of the Court was delivered by Poritz, C.j. Justices Handler, O'hern, Garibaldi, and Stein join in Chief Justice PORITZ's opinion. Justice Pollock has filed a separate Dissenting opinion, in which Justice Coleman joins. Justice Coleman has filed a separate Dissenting opinion.

The opinion of the court was delivered by: Poritz

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

State of New Jersey v. P.Z. (A-21-96)

Argued October 8, 1996 -- Decided November 26, 1997

PORITZ, C.J., writing for a majority of the Court.

The issue in this case is whether a caseworker from DYFS must give Miranda warnings to a parent prior to a non-custodial interview related to a child abuse investigation.

In November 1993, defendant's seven-week-old daughter, C.Z., was admitted to Jersey Shore Medical Center where she was diagnosed with and treated for "Shaken Baby Syndrome." C.Z. suffered from both old and new bleeding in the brain and from retinal bleeding in both eyes. The hospital notified DYFS about C.Z.'s injuries as mandated by statute. DYFS commenced a Title Nine investigation and reported the case to the Ocean County Prosecutor's Office.

Initial interviews by a DYFS caseworker with defendant, his wife, and defendant's father did not reveal a plausible explanation for C.Z.'s injuries. The Attorney General instituted a civil action against defendant and his wife under Title Nine. DYFS sought temporary custody of C.Z. and her two-year-old sister, on grounds that C.Z. had been injured by "other than accidental means" and that DYFS was unable to ascertain who had caused the child's injuries. Defendant and his wife were represented by separate counsel in the Title Nine action.

The Chancery Division granted legal custody of both children to DYFS but gave physical custody of the older child to defendant's father. C.Z. remained hospitalized. Shortly before April 5, 1994, defendant's wife informed her counselor that defendant had admitted causing C.Z.'s injuries. C.Z. had been hospitalized for five months and was expected to be released shortly. The mother's statement was therefore critical to the placement of both C.Z. and her older sister. DYFS caseworker Cheryl Ann Kobran attended a case planning conference with her supervisors and the Deputy Attorney General in charge of the Title Nine action to discuss how to proceed with the new information. It was decided that Kobran should interview P.Z. after contacting the Ocean County Prosecutor's Office to determine whether the interview would impede any pending investigation by that Office.

On the morning of April 5, Kobran spoke to an investigator at the Prosecutor's Office and advised him that she planned to interview P.Z. The investigator told Kobran that, although the Prosecutor's Office could not interview defendant because he had a lawyer, there was no obstacle to DYFS questioning P.Z. The investigator also asked Kobran to report the results of her interview with defendant to the prosecutor.

Later that day, Kobran and another DYFS caseworker made an unannounced home visit to defendant. Kobran told defendant she was there to ask him about his wife's statement that he had admitted causing his infant daughter's injuries. Defendant's father was present and Kobran asked him to leave the room because he was talking. The father complied and waited outside on the front porch.

Defendant acknowledged that he knew why Kobran was there, but said his attorney had told him not to speak to anyone. Kobran nonetheless encouraged defendant to speak, telling him that she was there to complete the DYFS investigation and to decide where to place C.Z. upon her impending discharge from the hospital. Defendant admitted causing C.Z.'s injuries by shaking the baby two or three times because she was crying and he could not console her. He said he felt remorse for what had happened and deserved to be punished. Kobran advised defendant that his statement would be turned over to the Prosecutor's Office and left.

Almost six months later, on September 28, 1994, defendant was charged with endangering the welfare of a child and aggravated assault, both second degree crimes. Defendant pled not guilty and his attorney moved to suppress defendant's statement to Kobran. The Title Nine action concluded on February 10, 1995, when custody of C.Z. and her sister was granted to their mother.

At the suppression hearing, defendant claimed that his rights as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution had been violated by the State. The trial court determined that defendant's Fifth Amendment rights had not been violated because Kobran's interview with defendant was non-custodial. However, it considered that defendant had invoked his Sixth Amendment right to counsel when he told Kobran his attorney had advised him not to talk to her. The court found persuasive that a Title Nine action was pending, that counsel had been appointed for defendant, that the prosecutor was investigating the matter, and that the prosecutor had knowledge that the interview was taking place.

The Appellate Division granted leave to appeal and affirmed. It focused on the "serious personal consequences" that flowed from a Title Nine proceeding and concluded that "there was at least some coercive element in the environment of the situation confronting defendant" because "parallel civil and criminal systems [were] both operating against [him]." It held that fundamental fairness and the Title Nine objective of child protection require that statements made to DYFS in the context of a Title Nine investigation may not be used against a party in a criminal action unless there is advice of Miranda rights and the affording of the Sixth Amendment right to counsel.

The Court granted leave to appeal.

HELD : There is no constitutional or other basis on which to hold defendant's April 5, 1994 statement inadmissible. The Court also finds no basis to require that DYFS caseworkers give Miranda warnings or afford a right to counsel during non-coercive, non-custodial interviews of parents subject to Title Nine investigations.

1. Title Nine was enacted to protect children from abuse and neglect. It contemplates criminal prosecution of acts of abuse and neglect that constitute crimes. It requires that DYFS immediately report all instances of suspected abuse and neglect to the county prosecutor. Title Nine responds to the terrible reality that not all children are safe with their families. At the same time, the goal of family rehabilitation and reunification is a priority unless that goal is not in the best interest of the child. The abused child's interest is paramount; only when the child can be protected within the family will the parents' interest in the care and custody of their child also be realized. 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 criminal prosecution serves as a deterrent to child abuse, the criminal Justice system also protects children. (pp. 9-16)

2. In Miranda, the U.S. Supreme Court determined that a custodial interrogation by law enforcement officers is inherently coercive, automatically triggering the Fifth Amendment privilege against self-incrimination. The predicate requirements of Miranda are that the defendant must be in custody and the interrogation must be carried out by law enforcement. The circumstances surrounding defendant's interview on April 5 fail to demonstrate the coercive atmosphere and restraint of freedom that comprises custodial interrogation. Defendant asserts, nonetheless, that he invoked the privilege against self-incrimination when he stated that his attorney had advised him not to speak with a DYFS investigator. Again, despite defendant's assertions to the contrary, the issue turns on his non-custodial status. The Court concludes that defendant's reference to his attorney did not, in this setting, require the DYFS investigator to terminate the interview. (pp. 16-25)

3. The state may not force an individual to choose between his or her Fifth Amendment privilege and another important interest because such choices are deemed to be inherently coercive. Defendant asserts that his statement was obtained in a coercive manner because he was faced with an implied threat that his children would not be returned unless he admitted responsibility for his youngest daughter's injuries. Although an admission of abuse may aid in the rehabilitative process, termination of custody is not automatic on invocation of the privilege. Defendant was not asked to choose between his children and the exercise of his right to remain silent. The Court concludes that defendant's statement to Kobran was not coerced in violation of his Fifth Amendment privilege against self-incrimination. (pp. 25-31)

4. The right to counsel in criminal proceedings does not attach until the return of an indictment or like process. The court below extended the right to counsel to Title Nine civil actions in which a complaint has been filed. The Court declines to expand the rights of Title Nine respondents to include protections accorded criminal defendants after they have been indicted or taken into custody. Defendant asserts that because Title Nine envisions a right to counsel once a complaint has been filed, he is entitled to have counsel present whenever a DYFS caseworker conducts a child abuse investigation. Acceptance of defendant's argument would shift the primary focus of Title Nine from the right of children to be protected from abuse and neglect to the right of parents to the custody of their children. (pp. 31-37)

5. Defendant also claims that the Due Process Clause of the Fourteenth Amendment requires the suppression of his statement because it was not made voluntarily. Although defendant claims that he feared his children would not be returned if he did not confess, his subjective fear did not derive from a threat amounting to coercion. Defendant had a lawyer in the Title Nine proceeding who had advised him not to speak. He chose not to take that advice. In the totality of the circumstances, the Court holds that defendant's statement was voluntary. (pp. 37-44)

6. The court declines to apply the doctrine of fundamental fairness to require any additional procedural safeguards not now required by constitution or statute. The relationship between DYFS and the prosecutor concerned the Appellate Division in this case. The exchange of information between DYFS and the prosecutor that is statutorily required in these cases does not demonstrate such unfairness and want of consideration for Justice that defendant's statement must be suppressed. Kobran's visit to P.Z. had a legitimate independent purpose and was not pretextual. If there was evidence that a DYFS worker met with defendant simply as a subterfuge to achieve law enforcement purposes, the Court might reach a different result. There was no such evidence here. (pp. 44-50)

The judgment of the Appellate Division is REVERSED.

JUSTICE POLLOCK, Dissenting, in which JUSTICE COLEMAN joins, is of the view that it is fundamentally unfair to allow the prosecutor to introduce in defendant's criminal trial his uncounseled, inculpatory statement to a DYFS worker.

JUSTICE COLEMAN, Dissenting, is of the view that defendant's confession also should be suppressed under the Due Process Clause of the Fourteenth Amendment because it was coerced by the interrogator's not-so-subtle suggestion that if defendant did not cooperate, his fundamental right to his children would be jeopardized.

JUSTICES HANDLER, O'HERN, GARIBALDI, and STEIN join in CHIEF JUSTICE PORITZ's opinion. JUSTICE POLLOCK has filed a separate, Dissenting opinion, in which JUSTICE COLEMAN joins. JUSTICE COLEMAN has filed a separate, Dissenting opinion.

The opinion of the Court was delivered by

PORITZ, C.J.

We granted leave to appeal, 143 N.J. 480 (1996), to consider whether a caseworker from the Child Protective Services Unit of the Division of Youth and Family Services ("DYFS" or "Division") must give Miranda warnings to a parent prior to a non-custodial interview related to a child abuse investigation. Defendant, P.Z., provided an inculpatory statement to a DYFS caseworker during an at-home interview conducted in the course of a Title Nine *fn1 inquiry. 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. The trial court ruled defendant's statement inadmissible, and the Appellate Division affirmed. 285 N.J. Super. 219, 666 A.2d 1000 (1995). We reverse.

I

In November 1993, defendant's seven-week-old daughter, C.Z., was admitted to Jersey Shore Medical Center where she was diagnosed with and treated for "Shaken Baby Syndrome." Shaken Baby Syndrome was first recognized in the 1970s. Robin Elizabeth Margolis, Healthtrends, Healthspan, June 1994, at 21. Babies who have been grabbed by the chest or upper arms and violently shaken back and forth exhibit certain injuries characteristic of the syndrome. These babies may come to the attention of the medical community because of "projectile vomiting, sleepiness, poor appetite, eye hemorrhages, brain hemorrhages, and seizures." Ibid. Although they generally do not show signs of external injuries, babies who have been violently shaken may become severely brain-damaged or permanently blind. Some die. Ibid. ; see also State v. Compton, 1997 N.J. Super. LEXIS 397, *11-13, N.J. Super. , (App. Div. 1997) (discussing recognition of Shaken Baby Syndrome in "medical . . . literature" and caselaw). C.Z. suffered from both old and new bleeding in the brain and from retinal bleeding in both eyes.

The hospital notified DYFS about C.Z.'s injuries as mandated by N.J.S.A. 9:6-8.10 when there is "reasonable cause to believe that a child has been subjected to child abuse." DYFS commenced a Title Nine investigation and reported the case to the Ocean County Prosecutor's Office. Initial interviews conducted by a DYFS caseworker with defendant, his wife, and defendant's father did not reveal a plausible explanation for C.Z.'s injuries. Shortly thereafter, on behalf of DYFS and pursuant to N.J.S.A. 9:6-8.21 to -8.73 and N.J.S.A. 30:4C-12, the Attorney General instituted a civil action against defendant and his wife. DYFS sought temporary custody of C.Z. and her then two-year-old sister, M.Z., on the grounds that C.Z. had been injured by "other than accidental means" and that the Division was unable to ascertain who had caused the child's injuries. N.J.S.A.

9:6-8.21. Defendant and his wife were represented by separate counsel in the Title Nine action.

The Chancery Division granted legal custody of both children to DYFS but gave physical custody of M.Z. to her paternal grandfather. C.Z. remained hospitalized. Two subsequent orders were entered in January and March. The first provided that M.Z. would remain with her paternal grandfather, that defendant and his wife would live at a different location and have no unsupervised contact with M.Z., that defendant would submit to a drug and alcohol evaluation, and that the couple would submit to counseling, psychiatric evaluation, and parenting skills classes. The second order directed DYFS to obtain recommendations from the treating therapist and from a physician about visitation and family reunification.

Shortly before April 5, 1994, defendant's wife informed her counselor that defendant had admitted causing C.Z.'s injuries. C.Z. had been hospitalized for five months and was expected to be released shortly. Her mother's statement was therefore critical to the placement of both C.Z. and her older sister. DYFS caseworker Cheryl Ann Kobran attended a case planning conference with her supervisors and the Deputy Attorney General in charge of the Title Nine action to discuss how to proceed with the new information provided by defendant's wife. It was decided that Kobran should interview P.Z. after contacting the Ocean County Prosecutor's Office to determine whether the interview would impede any pending investigation by that office.

On the morning of April 5, Kobran spoke to Investigator Joseph Lazzaro at the Prosecutor's Office and advised him that she planned to interview P.Z. Investigator Lazzaro informed Kobran that, although the Prosecutor's Office could not interview defendant because he had a lawyer, there was no obstacle to DYFS questioning P.Z. Lazzaro then asked Kobran to report the results of her interview with defendant to the prosecutor.

Later that day, Kobran and another DYFS caseworker, Donna Martinez, made an unannounced home visit to defendant. Kobran had been working with the family and was familiar to P.Z. She told defendant she was there to ask him about his wife's statement that he had admitted causing his infant daughter's injuries. Defendant's father was present and Kobran asked him to leave the room because he was talking. The father complied with Kobran's request and waited outside on the front porch while Kobran completed the interview.

Defendant acknowledged that he knew why Kobran was there, but said his attorney had told him not to speak to anyone. Kobran nonetheless encouraged defendant to speak, telling him that she was there to complete the DYFS investigation and to decide where to place C.Z. upon her impending discharge from the hospital. The caseworker also indicated concerns about M.Z.'s placement because of the new information obtained from P.Z.'s wife. Defendant admitted causing C.Z.'s injuries by shaking the baby two or three times because she was crying and he could not console her. He said that he felt remorse for what had happened and that he deserved to be punished. Kobran advised defendant that his statement would be turned over to the Prosecutor's Office and left with Martinez.

Almost six months later, on September 28, 1994, defendant was charged with two crimes of the second degree: endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4a, and aggravated assault, in violation of N.J.S.A. 2C:12-1b(1). Defendant pled not guilty to the charges and his attorney moved to suppress his April 5 statement to Kobran. The Title Nine action concluded on February 10, 1995 when custody of C.Z. and M.Z. was granted to their mother.

A Miranda *fn2 hearing was held in May 1995. Defendant claimed that his rights, as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, had been violated by the State. The trial court ruled that defendant's statement was inadmissible at his criminal trial. The court determined that defendant's Fifth Amendment rights had not been violated because Kobran's interview with defendant was non-custodial. However, the court considered that defendant had invoked his Sixth Amendment right to counsel when he told Kobran his attorney had advised him not to talk to her. The court found persuasive that a Title Nine action was pending, that counsel had been appointed for defendant, that the Prosecutor's Office was investigating the matter, and that the prosecutor had knowledge that the "interview [was] taking place."

The Appellate Division granted the State's motion for leave to appeal and affirmed the suppression of P.Z.'s statement. 285 N.J. Super. at 219. The panel focused on the "serious personal consequences" that flowed from a Title Nine proceeding and concluded that "there was at least some coercive element in the environment of the situation confronting defendant" because "parallel civil and criminal systems [were] both operating against [him]." Id. at 227. Despite "a paucity of case law" in support of its position, the court held broadly that "fundamental fairness and . . . the Title Nine objective of child protection" require that statements made to DYFS in the context of a "Title Nine investigation may not be used against a party in a criminal action unless there is advice of Miranda rights and the affording of the Sixth Amendment right to counsel." Id. at 229.

II

-A-

The New Jersey Legislature has enacted two "separate and distinct" statutes to protect children from abuse and neglect and to provide for the termination of parental rights. New Jersey Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 558, 643 A.2d 987 (1994). Title Nine governs the adjudication of abuse and neglect cases, while Title Thirty sets forth the procedures for the permanent removal of children from their parents. See New Jersey Div. of Youth & Family Servs. v. E.B., 137 N.J. 180, 185, 644 A.2d 1093 (1994). The express purpose of Title Nine is to

provide for the protection of children under 18 years of age who have had serious injury inflicted upon them by other than accidental means. It is the intent of this legislation to assure that the lives of innocent children are immediately safeguarded from further injury and possible death and that the legal rights of such children are fully protected.

[N.J.S.A. 9:6-8.8.]

Because child abuse and neglect are often difficult to detect, Title Nine provides that "any person having reasonable cause to believe that a child has been subjected to child abuse or acts of child abuse" must inform DYFS *fn3 immediately. N.J.S.A. 9:6-8.10. The Division is required to investigate the allegations, N.J.S.A. 9:6-8.11, -8.18; N.J.S.A. 30:4C-11, -12, and to take appropriate action to safeguard the child or children from further injury, N.J.S.A. 9:6-8.8, -8.11, -8.18. When warranted by the circumstances, DYFS may seek an order from the court placing the child in the protective custody of the State. N.J.S.A. 9:6-8.18.

At the preliminary stage, before a complaint is filed, Title Nine permits DYFS to identify less serious cases that are suitable for adjustment. N.J.S.A. 9:6-8.35. Upon written notice to the parent or guardian, the Division may then hold a preliminary conference to resolve such cases informally. Ibid. Statements made by a potential respondent at the preliminary conference are inadmissible in any later fact-finding hearing under Title Nine or in any criminal litigation prior to conviction. N.J.S.A. 9:6-8.36.

When a case is unsuitable for informal resolution, DYFS is authorized to originate proceedings by filing a formal complaint alleging abuse and neglect in the Superior Court, Chancery Division, Family Part. N.J.S.A. 9:6-8.33, -8.34. Within three days, the child's parent or guardian must appear in court, at which time the court is required to inform "the parent or guardian of his [or her] right to have an adjournment to retain counsel and consult with him [or her]." N.J.S.A. 9:6-8.43a. Indigent parents or guardians must be advised by the court of their right to apply for an attorney through the Office of the Public Defender. Ibid. ; see also E.B., (supra) , 137 N.J. at 186; New Jersey Div. of Youth and Family Servs. v. T.C., 251 N.J. Super. 419, 435, 598 A.2d 899 (App. Div. 1991), certif. denied, 146 N.J. 564 (1992).

DYFS caseworkers maintain frequent contact with the family, meeting to discuss family history and dynamics, and ways to remediate problems leading to abuse or neglect. The Division may seek appropriate protective orders from the court requiring supervised visitation and rehabilitative services for both parents and children. N.J.S.A. 9:6-8.18, -8.28, -8.31,

-8.50e, -8.51, -8.58.

Title Nine contemplates criminal prosecution of acts of abuse and neglect that constitute crimes. *fn4 N.J.S.A. 9:6-8.36a specifically requires that DYFS "immediately report all

instances of suspected child abuse and neglect . . . to the county prosecutor." Likewise, once the Division files a child abuse complaint with the Family Part, the court must immediately send a copy of the complaint to the county prosecutor. N.J.S.A. 9:6-8.25a. Although DYFS records are subject to strict confidentiality requirements, an exception permits DYFS to provide information to law enforcement agencies investigating child abuse or neglect and to "[a] grand jury upon its determination that access to such records is necessary." *fn5 N.J.S.A. 9:6-8.10a(b)(2)(7). Title Nine also permits the prosecutor to institute a criminal action against the parent or guardian even as the child abuse action continues in the Family Part. N.J.S.A. 9:6-8.24d, -8.25c.

The Division's regulations set forth guidelines and establish procedures for determining which cases must be referred to the prosecutor's office and how referrals are to be made. N.J.A.C. 10:129-1.1 to -1.5. The caseworker must report matters involving: the death of a child; suspected sexual abuse; any injury or condition requiring hospitalization or emergency room treatment; any injury requiring more than superficial medical attention (e.g., broken bones); repeated instances of physical violence committed against a child; substantial deprivation of necessary care over a period of time; or abandonment of a child. N.J.A.C. 10:129-1.3a(1)-(6). As soon as DYFS has information that the child's condition or injury fits one of the enumerated categories and "the caseworker has reason to believe that the condition or injury was not accidentally caused," a referral is required. N.J.A.C. 10:129-1.3d; see also N.J.A.C. 10:129-1.3e. If the prosecutor decides to bring a criminal case, the caseworker must be advised. N.J.A.C. 10:129-1.5c.

- B -

Justice O'Hern has spoken eloquently of the intrusion of the real world into "that model of the family that our popular culture portrays." New Jersey Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 599, 512 A.2d 438 (1986). In the real world children are abused and neglected, most often in their homes where we expect them to be kept safe from harm. Title Nine responds to the terrible reality that not all children are safe with their families by providing for the removal of abused and neglected children and for ...


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