The Division of Child Protection and Permanency filed a Tile 9 abuse and neglect complaint against defendant alleging he sexually molested his biological daughter. 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. The Judge relied on this adverse inference of culpability to corroborate the child's hearsay statements. This issue has not been addressed in a published opinion by any court in this State.
This court holds 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. This court also holds that defendant received ineffective assistance of counsel. The record shows defendant satisfied the two-prong standard established by the Supreme Court in Strickland v. Washington, 466 U.S. 688, 687 (1984), and adopted by the New Jersey Supreme Court in N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 311 (2007).
Jude Koblitz concurs in the result but does not agree that a parent is entitled to invoke the right against self-incrimination and decline to testify at a fact-finding hearing in an abuse or neglect matter. In Judge Koblitz's view, the parent's testimony may not subsequently be used by the prosecutor in a parallel criminal proceeding.