Appellate Division Reaffirms Parents' 5th Amendment Rights

In the recent published decision, E.S. v. H.A., the Appellate Division struck down a trial court’s prohibition on a father’s reunification therapy until he “admitted wrongdoing.”

E.S. involved a highly contentious custody battle between two parents and their now 13-year old son, “Richard”. At the heart of that battle was the plaintiff-mother E.S.’s allegation that defendant-father H.A. had sexually abused Richard.

Although we know little about what happened between the parties and the Division, this is another example of how the Division of Child Protection & Permanency can severely impact a parent’s custodial rights without ever bringing the so-called “offending” parent to court.

The parties separated in 2008 and divorced in 2009 when Richard was five years old. Prior to the final judgment of divorce, the plaintiff contacted the Division of Child Protection and Permanency (“DCPP” or “the Division”) with concerns due to Richard’s concerning behavior. The mother had successfully bared the father from seeing Richard through a series of Domestic Violence actions. When the last of those was dismissed after a multi-day trial, the mother successfully filed an Order to Show Cause to prohibit the father’s contact until the court could review the DCPP records. However, when the judge reviewed the records, she dissolved the restraints against the father and ordered that his parenting time with Richard resume.

The Division clearly had not completed its investigation because several weeks later the father received notice that the Division had substantiated him for sexually molesting Richard – the harshest investigative finding it can make against a parent, and one that places his name on the central registry of child abusers. Emboldened by the finding, the mother once again filed to restrict the father’s visitation rights. Litigation continued for the next several years, with the court ordering a plenary hearing to determine if it was in Richard’s best interest to have visitation with his father. The court appointed expert, Dr. Perry, produced a report on the issue, prompting the court to prohibit the father from any contact with Richard other than that supervised by Dr. Perry. The plenary hearing finally took place in 2013 and the court found that the father had sexually abused Richard and denied him any parenting time. The court further ordered that the father could only make an application to the court for parenting time after he had complied with the following requirements set forth by Dr. Perry in her testimony:

  1. Admission of wrongdoing;
  2. A psycho-sexual evaluation by a professional specializing in same; and
  3. Individual therapy.

The father appealed and, for the first time on appeal, argued that the provision requiring him to admit wrong doing prior to making an application for parenting time violated his constitutional rights. Normally, a litigant must raise the issue at trial in order to preserve it for appeal. However, in a small number of cases, the Appellate Division will consider issues raised for the first time on appeal if the issue “is of special significance to the litigant, to the public, or to the achievement of substantial justice.” The Appellate Division considered this question of such constitutional significance to the father, the child, and the public, that it addressed it.

Also pertinent to the Appellate Court’s decision to address the issue was: it was unclear that the father had the opportunity to address the conditions in the proceeding below; that his failure to file a motion for reconsideration did not bar the Appellate Division from considering the significant issues; that the record below was complete; and, the question was purely a legal one. Attorneys should consider these factors when trying to persuade a court to address issues that were not previously raised at the proceeding below.

After determining that it would address the substance of the issues, it was not difficult for the Court to determine that the order below violated the father’s constitutional rights. Crucial to its determination was the pitting of two fundamental rights against each other: the right to not incriminate oneself and the right to visit one’s child. Courts have routinely held that forcing a litigant to choose between his Fifth Amendment right and “another important interest” is “inherently coercive.” Notably, the Court took pains to explain that if in any future application for parenting time, the court found the father was not progressing in therapy enough to safely visit Richard, and part of that determination was his refusal to take responsibility for his actions, then that would be permissible. The Court distinguished the “direct threat” to Richard’s rights as reflected in the court order from the “possibility” that ineffective therapy might be decisive to parental rights. Thus the Court recognized the distinction between a court-compelled waiver of a parent's right against self-incrimination, which violates the Fifth Amendment, and an order compelling a parent's participation in counseling or reunification services, the success of which might hinge on the admission of abuse. The latter lies outside the protection of the Fight Amendment and is permissible.

The Court found that the father’s admission of “wrongdoing” presumably meant sexually assaulting Richard. Such an admission would clearly expose him to criminal liability. This is an important distinction. Orders prohibiting parental conduct with their child until they admit wrongdoing that does not implicate a crime, could therefor presumably stand. For example, if a parent engages in parental alienation, or verbal and/or emotional abuse to the point where a family court judge finds that it is against the child’s best interest to see their parent until that parent engages in therapy that includes an admission of wrongdoing, then such an order would not be violating that parent’s right against self-incrimination because the allegations against the parent are not criminal in nature.

Also of note in the decision, the Court reaffirmed its stance from Parish v. Parish in holding dear the rights of litigants to access the Family Courts. The imposition of the other requirements contained in the order – attending therapy and undergoing a psychosexual evaluation before making an application to the courts - violated the father’s “right to invoke the equitable powers of the Family Part.” Even if any future applications by the father fail due of his refusal to engage in such services, the court cannot “reach that conclusion in advance of such a request.” Therefore, the E.S. decision can be used in motion practice for any Family Law case in which one parent is trying to bar the other parent from returning to court.

While E.S. may at first glance seem to be a fact-specific scenario, if read thoroughly, it offers valuable practice tips to both trial and appellate attorneys across a variety of disciplines.

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