E.S. v. H.A. A-3230-14T2

In E.S. v. H.A. were parents of a minor child. The parties separated in December 2008 following an contentious series of proceedings, including a domestic violence action. The parties’ marriage ultimately came to a conclusion by way of a consent judgment of divorce entered in September 2009. The only issues which remained open at the time of the parties’ divorce were issues of custody and parenting time.

In early 2009, Plaintiff had contacted the Division of Child Protection and Permanency (DCPP) regarding alleged overtly sexual behavior being exhibited by the parties child. DCPP investigated the Defendant in an effort to deduce if the child had been sexually abused by the Defendant. During this investigation, which was being conducted simultaneously with the parties’ matrimonial dissolution proceeding, there was likewise at least 2 domestic violence proceedings which resulted in Defendant’s parenting time with the child being suspended. While parenting time was briefly reinstated in October 2009, in early November 2009, DCPP advised that its investigation “determined that abuse was substantiated for sexual molestation.”

Defendant sought an administrative appeal, and one finding of abuse was overturned, while a second fining remained in place. Defendant filed a request for further review before the Office of Administrative Law (OAL). After a significant delay by the OAL in scheduling a hearing, the Family Part judge presiding over the matrimonial matter entered and order setting the matter for a plenary hearing in October 2010 so as to determined whether it was in the child’s best interests to resume parenting time with his father. No hearing ever took place and the parties continue to litigate, this time over expert witnesses.

In February 2012, the matrimonial judge prohibited the Defendant “from any and all contact with” the minor child, with the exception of supervised visitation with a PsyD. In May 2012, the Defendant withdrew his OAL appeal. In January 2013 a plenary hearing began before a new family part judge, which continued until May 2013. In November 2013, the Judge found by clear and convincing evidence that the Defendant had sexually abused the minor child and granted sole legal and physical custody of Richard to Plaintiff, and denied Defendant parenting time. The Court stated that before Defendant would be permitted to make any application for parenting time in the future, the Defendant shall comply with the requirements of the Psy.D which would include

a. Admission of wrongdoing;

b. A psycho-sexual evaluation by a professional specializing in same; and

c. Individual therapy.

The Court went onto further Order that, "[i]f and when the [d]efendant completes the aforementioned requirements, he may apply for consideration of parenting time through Therapeutic Management of Reunification (TMR)."2

Plaintiff sought reconsideration, asking the order specifically include the judge's finding that defendant had sexually abused his son, and modifying the order to clarify that her request for fees was denied without prejudice. The judge granted the motion for reconsideration and entered the January 10, 2014 order (the January 2014 order) that stated defendant "sexually abused" Richard, and denied plaintiff's request for fees without prejudice.3 The January 2014 order reiterated the requirements of the November 2013 order imposing preconditions on defendant's future applications for parenting time.

Plaintiff submitted a request for fees. Defendant's opposition never asserted an inability to pay. Rather, defendant claimed plaintiff was solely responsible for the plenary hearing, because she refused to accept Dr. Perry's initial recommendation of TMR. Defendant asserted the "proper forum for this case should have been . . . a proceeding initiated by the Division."4

After conducting a hearing, the judge rendered an oral opinion and memorialized it in his June 9, 2014 order (the June 2014 order), requiring defendant to pay plaintiff $60,000 in attorney fees and $2,488 in costs. The order further provided that "these fees and costs shall not be dischargeable in bankruptcy."

Defendant moved for reconsideration and plaintiff cross-moved to enforce the award. In his certification, defendant, for the first time, asserted an inability to pay counsel fees awarded to plaintiff. The judge's August 29, 2014 order (the August 2014 order) granted defendant's motion in part, reducing the monthly installments to $500, but denying all other relief. The judge denied plaintiff's request for counsel fees in opposing the motion.

Plaintiff filed another motion for reconsideration, seeking an order reducing the counsel fee award to judgment, as well as an award of additional fees for making the motion. Defendant cross-moved, seeking a stay of the award and counsel fees for opposing the motion. The judge's February 4, 2015 order (the February 2015 order) denied plaintiff's motion and granted defendant's motion in part, awarding him $2,520 in counsel fees as an offset against the award previously made in favor of plaintiff.

This matter came before the Appellate Division when the defendant appealed the November 2013 order that followed the hearing; the January 2014 order that granted plaintiff's motion for reconsideration and added additional terms to the original order; the June 2014 order awarding plaintiff counsel fees; and the August 2014 order largely denying his request for reconsideration of the fee award. The Appellate Division ultimately reversed those provisions of the November 2013 and January 2014 orders that required defendant to "comply with [certain] requirements" "[p]rior to" making "any application for parenting time" with his son, but otherwise affirm.

Of the many issues on appeal, perhaps most significant in this matter was the Defendant’s constitutional challenge to the Trial Court’s requirement that he admit wrongdoing as, in essence, a threshold requirement before he would be allowed to see his child. The Appellate Division found that “the issue defendant now raises is of significant importance to defendant, his son and other potential litigants in cases of this nature.”

While the Appellate Division reiterated that our courts have long recognized “the right of a parent to raise a child and maintain a relationship with that child, without undue interference by the state,” as a protected right under both the NJ and US Constitutions, the Court further stated,

"That fundamental parental right, however, is not without limitation. The State has a basic responsibility, as parens patriae, to protect children from serious physical and psychological harm, even from their parents." E.P., supra, 196 N.J. at 102 (citation omitted). A parent's custody or visitation "rights may be restricted, or even terminated, where the relation of one parent (or even both) with the child cause emotional or physical harm to the child, or where the parent is shown to be unfit." Wilke, supra, 196 N.J. Super. at 496.

The Appellate Division was forced to analyze the foregoing in light of one’s right not to incriminate themselves, which seemingly the prerequisites established by the Trial Court would necessitate. "Both the United States Supreme Court and our New Jersey courts have consistently held that 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." State v. P.Z., 152 N.J. 86, 106 (1997). It does not matter whether the particular proceeding is itself a criminal prosecution. See ibid. (collecting cases). Rather, "the Fifth Amendment is violated 'when a State compels testimony by threatening to inflict potent sanctions unless the constitutional privilege is surrendered.'" Id. at 106-07 (quoting Lefkowitz v. Cunningham, 431 U.S. 801, 805, 97 S. Ct. 2132, 2135, 53 L. Ed. 2d 1, 7 (1977)).

The Appellate Division found that the Trial Court’s Orders proved a direct threat to Defendant’s parental rights “because defendant may not petition the Family Part for modification unless and until he waives his privilege against self-incrimination and admits "wrongdoing." Citing to case law from throughout the country, our Appellate Division found that the November 2013 and January 2014 Trial Court Orders in fact conditioned any future request by Defendant for parenting time being conditioned upon his admission of “wrongdoing,” which would inherently mean that Defendant would have to admit that he sexually abused his child, there by compelling Defendant to waive his privilege against self-incrimination, violating his 5th Amendment rights, and the rights provided to him under our State’s constitution. To that end, the Appellate Division found that the preconditions to the Trial Court’s Order must be vacated.

The cautionary tales highlighted by G.S. v. H.A. are numerous in nature. Litigants, particularly those in hotly contested Family Law matters, and particularly those wherein DCPP has involvement, should seek the immediate advice of competent counsel, skilled in the practice area. The merging of dockets and the often competing interests of the Court, litigants and DCPP make for a potentially volatile melting pot, with serious, and sometimes irreparable impact.

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