                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1556-17T2

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

K.G.,

          Defendant-Appellant,

and

M.K.-G. and J.W.,

     Defendants.
_____________________________

IN THE MATTER OF M.G.
and J.C.W.,

     Minors.
_____________________________

                    Argued December 20, 2018 – Decided June 3, 2019

                    Before Judges Simonelli, Whipple and DeAlmeida.
            On appeal from Superior Court of New Jersey,
            Chancery Division, Family Part, Sussex County,
            Docket No. FN-19-0024-16.

            Jill Nanci Alintoff, Designated Counsel, argued the
            cause for appellant (Joseph E. Krakora, Public
            Defendant, attorney; Jill Nanci Alintoff, on the briefs).

            Sara M. Gregory, Deputy Attorney General, argued the
            cause for respondent (Gurbir S. Grewal, Attorney
            General, attorney; Jason Wade Rockwell, Assistant
            Attorney General, of counsel; Sara M. Gregory, on the
            brief).

            Olivia Belfatto Crisp, Assistant Deputy Public
            Defender, argued the cause for minors (Joseph E.
            Krakora, Public Defender, Law Guardian, attorney;
            Olivia Belfatto Crisp, on the brief).

PER CURIAM

      Defendant K.G.1 appeals from the May 23, 2017 order of the Family Part

finding that he abused and neglected two children pursuant to N.J.S.A. 9:6-

8.21(c)(3) and N.J.S.A. 9:6-8.21(c)(4). Because the trial court erred when

denying K.G. his choice of counsel, we reverse and remand.

                                       I.

      The following facts are derived from the record. K.G. is married to and

resided with M.K.-G. The couple has one son, M.G., who was less than a year


1
  We use initials to protect the anonymity of the children. R. 1:38-3(d)(11) and
(12).
                                                                        A-1556-17T2
                                       2
old at the time of the alleged abuse. M.K.-G. has two other sons, D.J. and

J.C.W., who are not biologically related to K.G. and were approximately eight

and six years old, respectively, at the time of the alleged abuse. M.G. and J.C.W.

resided with the couple.     D.J. resided with his maternal grandmother, but

frequently visited his mother at the family home.

      In July 2015, D.J. spontaneously reported to his maternal grandmother

that K.G. sexually abused him while he was visiting the family and while the

infant M.G. was present in the home. After an investigation, on July 29, 2015,

plaintiff Division of Child Protection and Permanency (DCPP) filed a complaint

against defendant, M.K.-G., and J.W., the father of J.C.W., seeking care and

custody of J.C.W. and M.G., the two children living in the family home. The

Division alleged that K.G.'s sexual abuse of D.J. placed the children who lived

with him at imminent harm and substantial risk in violation of N.J.S.A. 9:6-

8.21(c)(4)(b) (the Title Nine proceeding). Because D.J. lived in New York, he

was not alleged to be a subject of K.G.'s abuse and neglect, even though he was

the victim of K.G.'s alleged sexual assault. After an initial hearing, the court




                                                                          A-1556-17T2
                                        3
restrained K.G. from the family home, and any physical, telephonic, or

electronic contact with J.C.W. or M.G. that was not supervised by DCPP. 2

      On September 30, 2015, K.G. was arrested and charged with the sexual

assault of D.J., pursuant to N.J.S.A. 2C:14-2. K.G. thereafter retained Remi

Spencer, Esq., to represent him in both the criminal proceeding and the Title

Nine matter. He has consistently denied the allegations lodged against him. 3

      On January 13, 2016, the trial court sua sponte issued a letter to Spencer,

which provided as follows:

            I am advised you are entering an appearance on behalf
            of [K.G.] on [sic] the above matter. Staff unilaterally
            researched Promise Gavel which exposed you are
            representing [K.G.] on the criminal matter arising out
            of the same allegations. That dual representation has
            been found to be inconsistent because Division
            proceedings are confidential and may not be used in
            criminal court. You must therefore make a choice
            whether you are representing [K.G.] in the criminal or
            Division matter, but not both.

DCPP later filed an objection to Spencer representing K.G. in both matters.


2
  After the complaint was filed, J.C.W. disclosed that he was sexually abused
by K.G. as well as by D.J. and several other boys. DCPP did not amend the
complaint to include allegations of sexual abuse by K.G. against J.C.W.
3
    K.G. has also stressed that a convicted sex offender, who was the
grandmother's paramour, lived with D.J. and the grandmother for several years.
In addition, the grandmother had an acrimonious relationship with K.G. and
M.K.-G., once requiring police intervention during a verbal dispute.
                                                                         A-1556-17T2
                                       4
      On January 29, 2016, Spencer appeared before the trial court. Having just

been served with DCPP's written objection, she requested time to respond in

writing. The court granted Spencer's request. In doing so, the court stated its

disinclination to permit K.G. to have the counsel of his choice in both matters:

            I'm the one who triggered the question in the first place.
            And although I will give you an opportunity to be
            heard, I'm inclined not to let you represent him in this
            matter. I think that the nature of the allegations against
            your client and what will have to transpire in this case,
            in terms of evaluations of the child and other things that
            will go on, are just inappropriate for you to have any
            access to if you're representing him in the criminal case.

      The court also referred to our holding in N.J. Div. of Youth & Family

Servs. v. N.S., 412 N.J. Super. 593 (App. Div. 2010). In that case, we examined

whether a defendant may be represented by the same counsel in both criminal

and Title Nine proceedings involving the same alleged acts against a child. We

held that simultaneous representation is permissible where the trial court is able

to implement measures, such as protective orders and a prohibition on making

copies of documents, sufficient to protect the confidentiality of Division records

disclosed during the Title Nine proceeding. With respect to N.S., the trial court

stated:

            Quite honestly, I don't understand Judge Lihotz's
            decision. I mean she talks about the protections that the
            court could put in place, and I quite honestly don't

                                                                          A-1556-17T2
                                        5
            understand how somebody in your position would be
            able to divorce yourself from what you're hearing in
            this case even if there's a protective order in place.
            And, again, because of the sensitive nature of this case,
            which is sexual allegations [sic] by your client against
            a child, I would really be loath to allow you to – to do
            that. But, again, I will allow you the opportunity to be
            heard[.]

      On February 26, 2016, the trial court held a hearing to determine if K.G.

would be permitted to have Spencer represent him in both proceedings. Spencer,

relying on our holding in N.S., urged the court to allow her to represent

defendant and take whatever measures it deemed necessary to protect the

confidentiality of DCPP records disclosed during the Title Nine proceeding.

Spencer acknowledged that she would be required to obtain court approval to

use any confidential DCPP records in the criminal proceeding.

      The court declined to undertake the analysis required by N.S. or consider

any of the protective measures identified in the opinion. The court described

N.S. as follows:

            Judge Lihotz offers a prohibition on photocopies as a
            remedy. Frankly, the [c]ourt doesn't understand how
            that accomplishes anything. The Appellate Division's
            decision is premised on the fact an attorney can create
            a . . . wall within the attorney's mind, which is what Ms.
            Spencer was also talking about. The fact that there are
            rules of professional conduct and other rules that would
            bar her from using things that she uses . . . . [S]he also
            said and I agree with her . . . we're all human beings and

                                                                         A-1556-17T2
                                        6
            when we hear, see or learn something you don't have
            the ability to just block it out and forget it. So, there
            may be some mechanisms in place to bar it from being
            used in the criminal court, but there is really no – not
            that division that Judge Lihotz seems to think we can
            have. I don't think that's the way the human mind or
            human nature works.

In addition, the court stated that "[t]hough the [c]ourt should follow Appellate

Division reported cases, the case here . . . is differentiated" from N.S. because

N.S. concerned the right to counsel in a "dispositional hearing" and K.G.'s right

to select counsel arose in a "fact finding setting[.]" The court did not elaborate

on its reasoning nor explain the significance of these two types of hearings on a

defendant's right to choose counsel. The court also cited State v. Cusick, 219

N.J. Super. 452 (App. Div. 1987), which it described as arguably inconsistent

with N.S., as a reason that N.S. was not binding. The court also found that our

directive in N.S. to consider issuing a protective order was "not the issue here"

because the source of the referral to DCPP was known to K.G.

      The court did not allow K.G. to have Spencer represent him in both

proceedings. The court expressed its decision as follows:

            I'm denying your application, you're going to have to
            make a decision as to whether you're representing
            [K.G.] in the Division case or the criminal case. I can't
            block you from the criminal case, but I can block you
            from this case, so you're going to make a judgment.


                                                                          A-1556-17T2
                                        7
Spencer immediately stated that she would represent K.G. in the criminal

matter.4 She also informed the court that K.G. could not afford to retain a second

private attorney and would apply for appointed counsel for the Title Nine action.

       On May 23, 2017, after trial at which K.G. was represented by appointed

counsel, the court found K.G. sexually abused J.C.W., pursuant to N.J.S.A. 9:6-

8.21(c)(3), and abused or neglected J.C.W. and M.G., pursuant to N.J.S.A. 9:6-

8.21(c)(4), by placing them in imminent harm and at substantial risk as a result

of his sexual abuse of both D.J. and J.C.W. The court amended the complaint

to conform to DCPP's proofs that K.G. sexually abused J.C.W. The court denied

DCPP's request to amend the complaint to conform to its proofs that K.G.

sexually abused D.J. because DCPP specifically excluded that child from the

complaint. This appeal followed.

       K.G. challenges several evidentiary decisions of the trial court, as well as

the sufficiency of the evidence supporting its findings. In addition, K.G. argues:

             K.G. WAS DEPRIVED OF HIS RIGHT TO CHOOSE
             HIS COUNSEL WHEN THE TRIAL COURT
             REFUSED TO ALLOW HIS RETAINED COUNSEL
             TO REPRESENT HIM IN BOTH THE TITLE NINE
             AND CRIMINAL MATTERS.




4
    The court assumes the election was made by K.G. prior to the hearing.
                                                                           A-1556-17T2
                                         8
Because we conclude that the trial court erred when it denied K.G. his choice of

counsel, warranting a new trial, we do not address K.G.'s other arguments.

                                       II.

      "Parents in New Jersey charged with civil abuse and neglect under Title

Nine . . . have a constitutional right to counsel under the due process guarantees

of Article I, paragraph 1 of the State Constitution, and a statutory right under

N.J.S.A. 9:6-8.43(a) [and N.J.S.A.] 9:6-8.30(a)[.]" N.J. Div. of Child Prot. &

Permanency v. G.S., 447 N.J. Super. 539, 555 (App. Div. 2016). As we noted

in N.S., defendants in Title Nine matters often face parallel criminal proceedings

arising from the same allegations of abuse. 412 N.J. Super. at 634-35. The

parallel proceedings "have resulted in thorny constitutional issues[,]" including

whether a defendant has a right to be represented by the same counsel in both

the Title Nine and criminal matters. Id. at 635 (quoting Div. of Youth & Family

Servs. v. R.M., 347 N.J. Super. 44, 64 (App. Div. 2001)).

      The primary concern in such situations is the need to protect the statutory

confidentiality of DCPP records.

            All records of child abuse reports . . . , all information
            obtained by the Department of Children and Families
            in investigating such reports . . . , and all reports of
            findings forwarded to the child abuse registry . . . shall
            be kept confidential and may be disclosed only under
            the circumstances expressly authorized . . . herein.

                                                                          A-1556-17T2
                                        9
            [N.J.S.A. 9:6-8.10a(a).]

The Title Nine proceedings will necessarily involve the disclosure to defendant's

counsel of confidential DCPP records, including notes from the child victim's

therapy sessions. See R. 5:12-3 (requiring the disclosure of "[a]ll relevant

reports of [DCPP] and other reports of experts or other documents upon which

the Division intends to rely" and requiring that the "Division's case file shall

also be available for inspection to the attorneys for the parties without court

order."). DCPP records may also be released for use in a criminal proceeding,

but only by court order. See N.J.S.A. 9:6-8.10a(b)(6) and (12) (DCPP records

relating to reports and investigations of child abuse are confidential but may be

released where a court determines the information they contain is relevant and

necessary for determination of an issue before the court).

            Two oft-cited justifications for securing this level of
            confidentiality are provided. First, the statute is
            designed as a "procedural safeguard to protect victim
            children from unnecessary disclosure . . . which may
            cause the child further guilt, vulnerability or
            humiliation." [Div. of Youth & Family Servs. v. J.C.,
            399 N.J. Super. 444, 447 (App. Div. 2006).] "DYFS
            child abuse files often contain very sensitive
            information, including psychologist evaluations and
            diagnoses.      Many individuals performing the
            evaluations [and] treatments . . . are acting with the
            knowledge that their treatments or evaluations will be
            used for risk assessment and for therapeutic purposes
            only." Id. at 449-50.

                                                                         A-1556-17T2
                                       10
             Second, there is a need to protect those who come
             forward to report child abuse and neglect, which are
             often difficult to detect. In fact, the statute grants
             immunity to persons who make such reports in good
             faith. N.J.S.A. 9:6-8.13.

             [N.S., 412 N.J. Super. at 636 (second alternation in
             original) (citations omitted).]

It is, therefore, inappropriate to provide "unfettered access to the Division's file

outside the parameters of the Title Nine litigation, even for purposes of criminal

defense[.]" Id. at 639.

      We have held, however, that the "wholesale rejection of all . . . requests"

to disclose such information to counsel in a Title Nine matter who will appear

in a parallel criminal proceeding is also improper. Ibid. We instead concluded

that concerns about the confidentiality of DCPP records should be addressed by

the court reviewing dual representation requests by considering various

available measures to "safeguard the goals of the State to uncover and treat abuse

and neglect, and to protect victim children, without unnecessarily sacrificing a

parent's right to exercise a desired choice of legal counsel." Id. at 640. As we

explained,

             after balancing the competing concerns posed, the court
             may allow dual representation subject to a protective
             order, which preserves the confidentiality of the source
             prompting the Division's protective services litigation.
             In this way, the State's interest in eliminating any

                                                                            A-1556-17T2
                                        11
            chilling effect on disclosure of abuse and neglect is
            protected by assuring the anonymity of those
            individuals and agencies who report abuse. So too,
            necessary orders would be entered when the need to
            safeguard a child victim and preserve the
            confidentiality of the victim-child's records is more
            compelling than the parent's right to employ a desired
            choice of legal representative. See Cusick, 219 N.J.
            Super. at 462. Additionally, a prohibition on providing
            photocopies of various records to parent-defendants
            could be effectuated.

            [Ibid.]

The balancing of "these competing concerns" is to be made by the trial court "on

a case-by-case basis." Ibid.

      Having carefully reviewed K.G.'s arguments in light of the record and

applicable legal principles, we conclude that the trial court erred in denying K.G.

his choice of counsel without considering whether it could have taken steps to

preserve the confidentiality of the DCPP records likely to be disclosed during

the Title Nine proceeding.

      Our holding in N.S. was unequivocal: trial courts may not summarily

reject a defendant's request to have the same counsel represent him in parallel

Title Nine and criminal proceedings arising from the same alleged abuse of a

child. The court instead must weigh the competing demands of protecting the

confidentiality of DCPP records and the defendant's right to counsel of his


                                                                           A-1556-17T2
                                       12
choice. In this instance, the trial court failed to follow N.S. Instead, after

expressing its reservations about the wisdom and utility of our holding, the court

barred defendant from having the counsel of his choice in the Title Nine

proceeding without having undertaken the analysis required by N.S.

      "It is beyond dispute that a trial judge has the responsibility to comply

with pronouncements of an appellate court."          Triffin v. Automatic Data

Processing, Inc., 411 N.J. Super. 292, 306 (App. Div. 2010) (quoting Tomaino

v. Burman, 364 N.J. Super. 224, 233 (App. Div. 2003)). "Trial judges are

privileged to disagree with the pronouncements of appellate courts; the privilege

does not extend to non-compliance." Jersey City Redevelopment Agency v.

Mack Props. Co. No. 3, 280 N.J. Super. 553, 562 (App. Div. 1995) (quoting

Reinauer Realty Corp. v. Borough of Paramus, 34 N.J. 406, 415 (1961)).

      The trial court also erred when it concluded it was not bound by the

holding in N.S. because that case concerned choice of counsel for a dispositional

hearing while the question of counsel in the present matter arose prior to a fact

finding hearing. The defendant in N.S. first made a request for counsel in her

criminal proceeding to represent her at a Title Nine fact finding hearing. 412

N.J. Super. at 641. Because the request was procedurally defective, the court

did not consider its merits at that time. A renewed request was made at the


                                                                          A-1556-17T2
                                       13
dispositional hearing after the fact finding was complete, at which time the

request was denied. Id. at 633. While this procedural difference between N.S.

and the present case exists, there is nothing in our holding in N.S. suggesting

that it is inapplicable in the context of a fact finding hearing.

      Nor is the procedural distinction meaningful.             "[S]ignificant and

longstanding implications attach to a finding of abuse and neglect." Id. at 619.

"[A]n adverse determination could affect parents' 'constitutionally protected

right to maintain a relationship with their children.'" Ibid. (quoting Div. of

Youth & Family Servs. v. G.M., 198 N.J. 382, 397 (2009)).

             [I]n addition to these custodial ramifications, numerous
             collateral consequences flow from such a finding.
             Specifically, a finding of abuse and neglect is
             forwarded by [DCPP] to a central registry maintained
             by the Department of Children and Families[.] On
             written request, the records may be released to
             individuals identified in the statute, "including doctors,
             courts, child welfare agencies, and any person or entity
             mandated by statute to consider child abuse or neglect
             information when conducting a background check or
             employment-related screening of an individual . . .
             seeking employment with an agency or organization
             providing services to children[.]"

             [Id. at 619-20 (third alteration in original) (citations
             omitted) (quoting G.S. v. Dept. of Human Servs., 157
             N.J. 161, 169 n.2 (1999)).]




                                                                           A-1556-17T2
                                        14
Given the significant consequences of an adverse determination at a fact finding

hearing, K.G.'s interest in selecting counsel of his choice was in no way less

significant than it would have been had the question of his choice of counsel

arose at a dispositional hearing. 5

      Nor do we agree with the trial court's conclusion that our holding in

Cusick conflicts with N.S. In Cusick, a defendant convicted of several criminal

charges related to the sexual abuse of a child argued on direct appeal that he was

denied his Sixth Amendment right to confront witnesses against him because he

was denied access to confidential records of the Division of Youth and Family

Services, the predecessor to DCPP. 219 N.J. Super. at 455. The judge presiding

at Cusick's criminal trial reviewed the records and determined that their

disclosure was not necessary to resolve any issue before the court and the

information they contained could be obtained from other sources. Id. at 457.

The court concluded that the Sixth Amendment interest in confrontation of

witnesses was outweighed by the State's interest in protecting the confidentiality




5
  "[T]he statutory framework of Title Nine provides that upon a finding of abuse
and neglect, the offending parent or guardian is entitled to a dispositional
hearing to determine whether the children may safely return to his or her
custody, and if not, what the proper disposition should be." G.M., 198 N.J. at
387-88.
                                                                          A-1556-17T2
                                       15
of the documents.       Id. at 459.   We affirmed, finding that the trial court's

balancing of interests was appropriate. Ibid.

      The holding in Cusick in no way conflicts without our holding in N.S. We

acknowledged in N.S. that the fact that an attorney may receive confidential

records during the Title Nine proceeding does not mean that those records would

automatically be available in the parallel criminal proceeding. 412 N.J. Super.

at 640 ("[A]ny authorization of criminal counsel to undertake representation in

Title Nine litigation would be subject to the strictures of N.J.S.A. 9:6-

8.10a(a)."). In fact, in N.S. we cited Cusick as standing for the proposition that

orders to "safeguard a child victim and preserve the confidentiality of the victim-

child's records" in the criminal proceeding may be necessary when that need "is

more compelling than the parent's right to employ a desired choice of legal

representative." Ibid. (citing Cusick, 219 N.J. Super. at 462).

      The "erroneous deprivation of the right to counsel of choice, with

consequences     that    are   necessarily   unquantifiable   and    indeterminate,

unquestionably qualifies as structural error." United States v. Gonzalez-Lopez,

548 U.S. 140, 150 (2006) (quoting Sullivan v. Louisiana, 508 U.S. 275, 282

(1993)); see also State v. Kates, 216 N.J. 393, 395-96 (2014) (finding that

"deprivation of the right to counsel of choice is a 'structural error,' so defendants


                                                                             A-1556-17T2
                                        16
who demonstrate that their right has been violated do not have to show

prejudice[.]" (quoting State v. Kates, 426 N.J. Super. 32, 44 (App. Div. 2012))).

The erroneous denial of K.G.'s right to counsel of his choice without applying

the holding in N.S. is sufficient to warrant reversal of the findings of abuse and

neglect against him. We leave to the trial court on remand to determine whether

developments, if any, in the criminal proceedings against K.G. affect the

necessity for a new trial on the Title Nine allegations and, if a new trial is held,

whether K.G.'s request to have the same counsel represent him in both the Title

Nine and criminal matters can be honored by implementing measures necessary

to preserve the confidentiality of DCPP's records.

      Reversed and remanded for further proceedings consistent with this

opinion.   Because the trial judge has heard this matter and may have a

commitment to his findings, we direct that on remand the case be assigned to a

different judge. See Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 617

(1986); Graziano v. Grant, 326 N.J. Super. 328, 349-50 (App. Div. 1998). All

limitations on K.G.'s contact with the children established by the trial court are

to remain in place until further order of the trial court. We do not retain

jurisdiction.




                                                                            A-1556-17T2
                                        17
