                     RECORD IMPOUNDED

                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-3230-14T2
                                              A-3256-14T2

E.S.,

     Plaintiff-Respondent,            APPROVED FOR PUBLICATION
                                             AS REDACTED
v.                                         August 15, 2017

                                        APPELLATE DIVISION
H.A.,

     Defendant-Appellant.
_____________________________



E.S.,

     Plaintiff-Appellant,

v.

H.A.,

     Defendant-Respondent.
______________________________________________

         Argued February 28, 2017 – Decided August 15, 2017

         Before Judges Messano, Suter and Guadagno.

         On appeal from the Superior Court of New
         Jersey, Chancery Division, Family Part,
         Atlantic County, Docket No. FM-01-0562-09.

         Bruce   P.  Matez   argued the   cause  for
         appellant in A-3230-14 and respondent in A-
         3256-14 (Borger Matez, P.A., attorneys; Mr.
         Matez, on the briefs).
               Patricia A. Darden argued the cause for
               respondent in A-3230-14 and appellant in A-
               3256-14 (Law Offices of Patricia A. Darden,
               attorneys; Ms. Darden, on the briefs).

      The opinion of the court was delivered by

MESSANO, P.J.A.D.

      Plaintiff E.S. and defendant H.A. are the parents of R.A.

(Richard), born in 2004.1                       The parties separated in December

2008,   and     after        a   contentious          period   during   which    plaintiff

alleged        acts     of        domestic        violence      (DV),    and     defendant

successfully litigated against her claims, the marriage ended in

a consent judgment of divorce (JOD) filed on September 8, 2009.

The   parties         were       unable    to     resolve      issues   of   custody     and

parenting time prior to entry of the JOD.

      Earlier in 2009, plaintiff had contacted the Division of

Child Protection and Permanency (DCPP or the Division) regarding

Richard's inappropriate, overtly sexual behavior. The Division

began   to      investigate          whether       defendant     had    sexually    abused

Richard.        In April 2009, the parties entered into a consent

order     in    the     matrimonial             action   that    restored      defendant's

parenting       time,        which        had    been     suspended     during     the    DV

proceedings.          However, a subsequent domestic violence complaint




1
  We use initials and pseudonyms to maintain the confidentiality
of the parties and their child.



                                                  2                                A-3230-14T2
resulted in a temporary restraining order and renewed suspension

of defendant's parenting time.

       When the court dismissed the last of plaintiff's domestic

violence complaints following a multi-day trial that also ended

in September 2009, plaintiff thereafter successfully sought an

order to show cause temporarily suspending defendant's parenting

time     until    the    judge   could        review       the   Division's       records

regarding        its    investigation.          On     October      5,    2009,     after

completing her review, the judge dissolved any restraints and

ordered resumption of defendant's parenting time in accordance

with the April 2009 order.

       On November 10, 2009, the Division advised defendant its

"investigation         determined      that    abuse       was   substantiated        for

sexual molestation with regard to [Richard]," and that "[y]ou

have been identified as a person responsible for the abuse."

Defendant apparently sought an administrative appeal because, on

February 19, 2010, the Division advised him the "finding of

abuse"    as     to    one   incident,    July       27,    2009,   was    overturned.

However, the Division's finding of abuse as to a second incident

on July 6, 2009, remained in place.                    Defendant filed a request

for    further     review     before    the    Office       of   Administrative       Law

(OAL).




                                          3                                   A-3230-14T2
    Meanwhile, plaintiff sought reconsideration of the denial

of her earlier request to suspend all parenting time.                         By July

2010, the OAL hearing still had not taken place, nor had the

Division initiated a Title 9 or Title 30 action.                         The Family

Part judge overseeing the matrimonial action entered an order

setting   a   plenary     hearing   for       October    "on   the    issue     .    .   .

whether it is in the best interests of . . . [Richard] that

parenting time with his father . . . should resume."

    No hearing took place, as issues and disputes continued to

arise regarding expert witnesses.                In January 2011, the judge

appointed Dr. Jennifer L. Perry, Psy.D., as the court's expert,

and charged her with evaluating "when and in what manner it

w[ould] be in the best interest of . . . [Richard] to resume

parenting time with his father . . . ."                  The parties' litigious

conduct continued; it is unnecessary to detail the reasons for,

or results of, various court appearances that followed.

    In a February 2012 order, the judge provided copies of Dr.

Perry's   reports    to    counsel,   and       the     parties      again    appeared

before the court on April 2, 2012.                Although the order entered

that day indicates the judge took "sworn testimony," there was

no testimony.     After listening to the arguments of counsel, the

judge   prohibited      defendant   "from       any     and    all    contact       with"

Richard, "with the exception of the supervised visitation with




                                          4                                   A-3230-14T2
Dr. Perry or any other visitation ordered by th[e] court."                     The

judge permitted the parties to engage in discovery and set new

dates for a plenary hearing in July 2012.

    In May 2012, defendant withdrew his administrative appeal

of the Division's substantiated finding of abuse.                    No plenary

hearing took place during the summer of 2012.                    In November, a

different Family Part judge took over the litigation, and a

plenary hearing began in January 2013 and continued on non-

consecutive days until May.           The parties thereafter submitted

written proposed factual findings and legal conclusions.

    On November 22, 2013, the judge issued an oral opinion on

the record explaining the reasons supporting his order filed

that day (the November 2013 order).                  The record reflects only

defense counsel was present; plaintiff's counsel had a court

appearance in another county, was running late and the judge

decided not to wait.

    The     judge   found   by   clear        and   convincing   evidence,   that

defendant    had    sexually     abused       Richard.     The   order   granted

plaintiff sole legal and physical custody of Richard and denied

defendant parenting time.         Section 3 of the order required that,

before making any application for parenting time, defendant

            shall comply with the requirements set forth
            by Dr. Jennifer Perry in her testimony,
            which include:




                                          5                              A-3230-14T2
                   a. Admission of wrongdoing;
                   b.   A psycho-sexual evaluation by
                   a   professional  specializing  in
                   same; and
                   c. Individual therapy.

In Section 4, the order further provided 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

      In   his    oral    opinion      denying    both   parties'     requests      for

counsel fees, the judge noted plaintiff's counsel's request was

"vague,"    and    he     did    not    "know     whether   she's    going     to    do

something.       Some post judgment motion probably . . . ."                        The

November 2013 order simply denied both parties' requests for

counsel and expert fees.

      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


2
  TMR was described at trial as a visitation modality, utilizing
a "progression" of steps aimed at "rebuilding rapport" between
Richard and defendant.




                                            6                                A-3230-14T2
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 $2488 in costs in monthly installments of

$10,000.      The order further provided that "these fees and costs

shall not be dischargeable in bankruptcy."

3
  It would appear from the order itself that defendant did not
oppose the motion for reconsideration, and defendant's appendix
does not include any opposition, if indeed any was filed.
4
  However, the record reveals that prior to the plenary hearing,
defense counsel urged the judge not to accept the substantiated
finding of abuse as dispositive of the issue.    Because we are
rejecting the arguments defendant now raises and affirming the
judge's order in most respects, we choose not to address a
specific argument raised in plaintiff's opposition, i.e., that
defendant's "abandonment of his administrative law appeal is
fatal . . . to his attempts to overturn the finding that he
sexually abused" Richard.



                                            7                                         A-3230-14T2
       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 $2520 in counsel fees

as    an    offset     against    the    award      previously        made    in     favor   of

plaintiff.

       In    A-3230-14,     defendant         appeals     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.




                                              8                                       A-3230-14T2
       In A-3256-14, plaintiff appeals from the August 2014 order

reconsidering the fee award and the February 2015 order denying

her motion for reconsideration.                 We calendared the cases back-

to-back, and now consolidate them for purposes of issuing a

single decision.

       In A-3230-14, we reverse 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.     We affirm in A-3256-14.

                                 As to A-3230-14

             [At the court's direction, Section I of its
             opinion, which concerns discrete issues, has
             been redacted from the published opinion
             because it does not meet the criteria set by
             R. 1:36-2(d) for publication. The published
             parts of the opinion continue as follows.]

                                          II.

                                          A.

       In   Point     II,     defendant    argues      the   provisions       of    the

November 2013 and January 2014 orders requiring his admission of

"wrongdoing" "[p]rior to" making "any application for parenting

time"       violate     his      constitutional         right       against        self-

incrimination.        As a corollary argument, defendant claims the

judge erred in relying on Hoch's and Perry's opinions that his

admission     of    wrongdoing     was    a     necessary    predicate        to   TMR,



                                           9                                  A-3230-14T2
because they were "net" opinions unsupported by any indicia of

scientific reliability.       In response, plaintiff only contends

defendant failed to raise the issue in the trial court, and

Richard's best interests require defendant's admission of abuse

before TMR can commence.

       Preliminarily,      defendant's     claim   that   the    opinions

expressed by Hoch and Perry were net opinions lacks sufficient

merit to warrant discussion.          R. 2:11-3(e)(1)(E).       Defendant

also    suggests   Perry    never   conditioned    parenting    time,    or

initiation of TMR, upon his admission of wrongdoing.             However,

in responding to a question from the judge, Perry said:

           I would say that if . . . Your Honor
           determines that sexual abuse has occurred
           and a perpetrator is not willing to admit to
           that and get the services needed in order to
           prevent that — or reduce the likelihood of
           that occurring again, . . . there should be
           no visitation.

       Plaintiff   is   correct     that   defendant   never    raised     a

constitutional challenge to conditioning future applications for

parenting time upon an admission of wrongdoing, and we

           adhere[] to th[e] long-standing principle[]
           . . . 'that our appellate courts will
           decline to consider questions or issues not
           properly presented to the trial court when
           an opportunity for such a presentation is
           available unless the questions so raised on
           appeal go to the jurisdiction of the trial
           court or concern matters of great public
           interest.'




                                     10                           A-3230-14T2
             [State v. Robinson, 200 N.J. 1, 20 (2009)
             (quoting Nieder v. Royal Indem. Ins. Co., 62
             N.J. 229, 234 (1973)).]

"However,     if     the    issue       is   of      special       significance    to    the

litigant, to the public, or to the achievement of substantial

justice, and the record is sufficiently complete to permit its

adjudication,        we    may    consider          it."      Borough    of   Keyport     v.

Maropakis, 332 N.J. Super. 210, 216 (App. Div. 2000); see also

Ricci   v.    Ricci,       448    N.J.    Super.       546,    567    (App.   Div.     2017)

(considering constitutional challenge to Family Part's award of

college costs because "clarification of the law is necessary");

J-M Mfg. Co. v. Phillips & Cohen, LLP, 443 N.J. Super. 447, 458

(App. Div. 2015) (considering argument raised for the first time

on   appeal    regarding          application          of    the     entire   controversy

doctrine to be "of sufficient importance to merit discussion"),

certif.    denied,        224    N.J.    527    (2016).         "[T]he    Nieder       rule's

exceptions are most fruitfully applied where the focal issue is

entirely a question of law, in respect of which lower court

determinations        are       accorded     limited        deference."         Am.     Civil

Liberties Union of N.J. v. Cty. of Hudson, 352 N.J. Super. 44,

72   (App.    Div.    2002).        For      the     following       reasons,     we   relax

Nieder's     restrictions         and    consider          defendant's    constitutional

arguments.




                                               11                                  A-3230-14T2
       The issue defendant now raises is of significant importance

to defendant, his son and other potential litigants in cases of

this nature.      As we said nearly twenty years ago:

            This case is an example of a tragic but
            recurring dilemma in certain family court
            cases involving allegations of child sexual
            abuse.   On the one hand, there are clearly
            cases of imagined or even fabricated charges
            against a parent, especially when raised
            during the pendency of divorce proceedings.
            For a parent to stand accused of such an
            offense   is   devastating    both   to   that
            individual, and to the child's lifelong
            relationship with the parent.     On the other
            hand,   proof  of   such   abuse,   especially
            involving a very young child, is rarely
            clear, and the potential danger to a child
            from a reoccurrence, if the suspicions and
            accusations are well-founded, is enormous.

            [P.T. v. M.S., 325        N.J.   Super.   193,       198
            (App. Div. 1999).]

Further, although the issue at trial was whether and under what

conditions should defendant's parenting time be restored, it is

entirely unclear whether defendant had an opportunity to address

potential    judicially-imposed      pre-conditions         to    any     future

request he might make.       Defendant might have properly moved for

reconsideration, but his failure to do so should not bar our

consideration of this significant issue.             Moreover, the record

is complete, because both Hoch and Perry testified at length,

were    subject    to   extensive    cross-examination       and       defendant

eschewed    any   opportunity   to   present   his    own    expert      on   the




                                     12                                 A-3230-14T2
subject of TMR or any necessary preconditions.                             Lastly, whether

the provisions violate defendant's constitutional rights raises

a purely legal issue, and even if the trial judge were afforded

the opportunity to consider the argument, we would review his

decision de novo.               Motorworld, Inc. v. Beckendorf, 228 N.J. 311,

329 (2017).

     As       a    result,       we   move    to       the     substance   of    defendant's

arguments.

                                                  B.

     Our courts have long recognized "[t]he right of a parent to

raise     a   child       and    maintain     a        relationship     with    that    child,

without undue interference by the state, is protected by the

United States and New Jersey Constitutions."                           N.J. Div. of Youth

& Family Servs. v. E.P., 196 N.J. 88, 102 (2008) (citations

omitted).          Our court has held that "a parent's rights to the

care and companionship of his or her child are so fundamental as

to   be       guaranteed         protection        under        the    First,    Ninth       and

Fourteenth Amendments of the United States Constitution."                                 Wilke

v. Culp, 196 N.J. Super. 487, 496 (App. Div. 1984), certif.

denied, 99 N.J. 243 (1985); see also                           N.J.S.A. 9:2-4 (declaring

it to be the State's public purpose "to assure minor children of

frequent       and       continuing    contact          with    both   parents    after      the

parents           have     separated         or        dissolved       their     marriage").




                                                  13                                   A-3230-14T2
Therefore, "the law favors visitation and protects against the

thwarting of effective visitation[.]"                      Wilke, supra, 196 N.J.

Super. at 496.

       "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.

       "New     Jersey's      privilege         against        self-incrimination,

although      not   enshrined    in   the      State   Constitution,      is    deeply

rooted in this State's common law and codified in both statute

and an evidence rule[,]" State v. Muhammad, 182 N.J. 551, 567

(2005),       and   "offers     broader        protection      than    its     federal

counterpart under the Fifth Amendment."                     Id. at 568.      Pursuant

to N.J.S.A. 2A:84A-19, and its equivalent, N.J.R.E. 503, every

person in New Jersey "has a right to refuse to disclose in an

action . . . any matter that will incriminate him or expose him

to penalty . . . ."

              [A] matter will incriminate (a) if it
              constitutes an element of a crime against



                                          14                                   A-3230-14T2
           this State, or another State or the United
           States, or (b) is a circumstance which with
           other circumstances would be a basis for a
           reasonable inference of the commission of
           such a crime, or (c) is a clue to the
           discovery of a matter which is within
           clauses (a) or (b) above; provided, a matter
           will not be held to incriminate if it
           clearly appears that the witness has no
           reasonable cause to apprehend a criminal
           prosecution. . . .

           [N.J.S.A. 2A:84A-18; N.J.R.E. 502.]

Although the orders under review do not define the necessary

prerequisites of defendant's admission of wrongdoing, based upon

the   evidence    at   trial   and   the   judge's      factual   findings    and

conclusions, it can be presumed that defendant would have to

admit he sexually assaulted Richard.              See N.J.S.A. 2C:14-2(b)

(defining sexual assault as sexual contact between a victim less

than thirteen years of age by an actor at least four years

older).    A prosecution for a violation of N.J.S.A. 2C:14-2(b)

may be commenced at any time.              N.J.S.A. 2C:1-6(a)(1).            As a

result, defendant's admission of "wrongdoing," whenever made,

potentially exposes him to criminal liability.

      "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.




                                      15                               A-3230-14T2
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)).

      In P.Z., the Court considered "whether a caseworker from

the [Division] must give Miranda warnings to a parent prior to a

non-custodial interview related to a child abuse investigation."

Id. at 92.         The defendant acknowledged he was not in custody at

the time, id. at 102, but argued "his statement was obtained in

a similarly 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."

Id. at 107.

      Citing two out-of-state decisions, which we discuss below,

the Court concluded, "Although an admission of abuse may aid in

the   rehabilitative        process,       termination        of   custody      is    not

automatic on invocation of the privilege.                     We therefore consider

inapplicable those cases holding unconstitutional a requirement

that an individual choose between the right to remain silent and

another vital interest."                Id. at 108.      The Court recognized a




                                           16                                A-3230-14T2
distinction between a "direct threat" to a vital interest or a

"previously    held    benefit"    and,     "instead,    a   possibility       that

therapeutic outcomes will be determinative of parental rights."

Ibid.     It explained:

            [The defendant] was not asked to choose
            between his children and the exercise of his
            right to remain silent.       If he abused his
            daughter, and if he refused to acknowledge
            his acts of abuse, he would find it
            difficult to demonstrate that he could care
            for his children without harming them. This
            was the risk he faced.          [The Division's
            caseworker]   did    not   threaten   him   with
            termination of his parental rights if he did
            not confess; nor did she tell him that the
            only way he could get his children back was
            to   confess.      We    conclude   that   [the]
            defendant's statement . . . was not coerced
            in   violation    of    his   Fifth    Amendment
            privilege against self-incrimination.

            [Id. at 209.]

    Here,     however,     the   orders     directly    threaten   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."          The

decisions of several of our sister states have explained the

distinction drawn by the Court in P.Z., between compelled self-

incrimination    —    in   violation   of    constitutional     rights     —    and

incriminatory statements that might be necessary for meaningful

reunification therapy to begin.




                                       17                                A-3230-14T2
    In In re Welfare of J.W., 415 N.W.2d 879, 880-81 (Minn.

1987), a case cited by the P.Z. Court, the defendant-parents

challenged a dispositional order that required them to undergo

psychological   evaluations,   which   included   explanation   of    the

circumstances that led to the death of a two-year old child in

their care.     The State threatened to terminate their parental

rights if they would not agree.          Id. at 881.      The parents

objected claiming the order violated their constitutional right

against self-incrimination.     Ibid.     The court concluded "that

the trial court's order, to the extent it requires appellants to

incriminate   themselves,   violates    appellants'   Fifth   Amendment

rights and is unenforceable."     Id. at 883.      However, the court

made clear the limits of the parents' privilege:

         While the state may not compel therapy
         treatment that would require appellants to
         incriminate themselves, it may require the
         parents to otherwise undergo treatment.
         Therapy, however, which does not include
         incriminating     disclosures,     may     be
         ineffective; and ineffective therapy may
         hurt the parents' chances of regaining their
         children.    These consequences lie outside
         the protective ambit of the Fifth Amendment.

                . . . .

              . . . In the lexicon of the Fifth
         Amendment, the risk of losing the children
         for failure to undergo meaningful therapy is
         neither a "threat" nor a "penalty" imposed
         by the state. It is simply a consequence of
         the reality that it is unsafe for children




                                 18                             A-3230-14T2
           to be with         parents    who   are   abusive    and
           violent.

           [Id. at 883-84.]

    The Vermont Supreme Court reached a similar conclusion in

In re M.C.P., 571 A.2d 627 (Vt. 1989), another case cited by the

P.Z. Court.     There, the trial court ordered continued custody of

the minor with the child welfare agency "until the parents g[ot]

over the extreme denial of any abuse and seek counseling to

overcome these problems . . . ."               Id. at 640.       Adopting the

analysis   of   the   court    in   J.G.W.,    the   court     concluded   that

portion of the dispositional order "may be read as a requirement

that the parents waive their Fifth Amendment Privilege," and

then struck that provision from the order.               Id. at 641.        The

court explained:

           The trial court cannot specifically require
           the parents to admit criminal misconduct in
           order to reunite the parents to admit
           criminal misconduct in order to reunite the
           family. On the other hand, the parents must
           demonstrate to the court that it is in the
           juvenile's best interest to return custody
           to the parents in the face of the serious
           misconduct the court found they engaged in.
           While the court may not specify that the
           only   route    to   reunification   is   an
           abandonment of the self-incrimination right,
           the parents must expect that the court and
           [the child welfare agency] will act based on
           the findings of extreme parental abuse.   If
           the parents can find a way to show that they
           have become good parents, without admitting
           to any misconduct, and that a restoration of
           custody of the juvenile to them is in the



                                        19                            A-3230-14T2
           best interest of the child and is safe, the
           court may not foreclose the option. If the
           court finds in the future, however, that the
           parents    have   made    no   progress   to
           reunification because their denial prevents
           effective therapy, it may act on that
           finding to the parents' detriment without
           offending the Fifth Amendment privilege.

           [Ibid.; accord Mullin v. Phelps, 647 A.2d
           714, 724-25 (Vt. 1994).]

    Most    courts    around      the        country   have    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.      See, e.g., In re A.W., 896 N.E.2d 316,

326 (Ill. 2008) ("[A] trial court may order a service plan that

requires a parent to engage in effective counseling or therapy,

but may not compel counseling or therapy requiring the parent to

admit to committing a crime."); In the Interest of C.H., 652

N.W.2d 144, 150 (Iowa 2002) ("The State may require parents to

otherwise undergo treatment, but it may not specifically require

an admission of guilt as part of the treatment."); Minh T. v.

Ariz. Dep't of Econ. Sec., 41 P.3d 614, 618 (Ariz. Ct. App.

2001) (recognizing "a distinction between a treatment order that

requires   parents   to   admit    criminal       misconduct    and   one   that

merely orders participation in family reunification services");




                                        20                             A-3230-14T2
State v. Suzette M. (In re Clifford M.), 577 N.W.2d 547, 558-59

(Neb. Ct. App. 1998) (reversing termination of parental rights

"solely because [the defendant] refused to waive her right to be

free from self-incrimination," but recognizing court may order

enrollment in therapy as "essential to a particular parent's

rehabilitation"), appeal dismissed, 606 N.W.2d 742 (Neb. 2000).

     No reported New Jersey decision has squarely addressed this

issue,5   and   we   find   the    cited      out-of-state    decisions     to   be

persuasive.     Here, the November 2013 and January 2014 orders

conditioned any future request by defendant for parenting time

upon his admission of "wrongdoing," which we presume, based on

Perry's testimony, means defendant must admit that he sexually

abused Richard.      Such a requirement compels defendant to waive

his privilege against self-incrimination and violates his rights

under the Fifth Amendment and our State Constitution.

     Although    defendant        has   not    specifically    challenged        the

balance of the November 2013 and January 2014 orders that impose

5
  In In re Guardianship of D.J.M., 325 N.J. Super. 150, 151 (Ch.
Div. 1999), the Family Part considered "whether to stay a
guardianship proceeding pending the outcome of a simultaneous
criminal proceeding arising out of the same facts."        While
finding the defendant's Fifth Amendment arguments to be
"compelling," the court concluded the child's interest in
permanency outweighed the defendant's rights, and suggested the
Legislature should grant "use immunity" to parents in the
defendant's position.   Id. at 162.   Because the issues in this
case are significantly different, we express no opinion about
the court's holding in D.J.M.



                                        21                                A-3230-14T2
other preconditions upon him "[p]rior to any application for

parenting      time,"       and     further      provide        he    may    apply      "for

consideration     of    parenting       time"     only     if    he    completes       these

requirements, we conclude these portions of the orders must also

be vacated.

    In Parish v. Parish, 412 N.J. Super. 39, 48 (App. Div.

2010), we recognized that a citizen's constitutional right to

access to the courts applied to matters in the Family Part.

While reaffirming the court's inherent power "to control the

filing    of   frivolous          motions   and    to    curtail       'harassing        and

vexatious litigation,'" ibid. (quoting Rosenblum v. Borough of

Closter, 333 N.J. Super. 385, 387, 391 (App. Div. 2000)), we

nevertheless reversed the judge's order enjoining the plaintiff-

father from filing any future motions, including enforcement of

parenting time requests, unless the parties and their attorneys

first    conducted      a   settlement        conference.            Id.    at   44.      We

concluded that "in the absence of any finding of a need to

control baseless litigation, the balance struck by the motion

judge in favor of restricting access to the court was an abuse

of discretion."        Id. at 51.

    We    reach    the      same     conclusion     here.            Undoubtedly,      this

litigation has been protracted, contentious and, on occasion,

unnecessary.      However, defendant has consistently denied that he




                                            22                                    A-3230-14T2
abused his son, and so testified at trial.                           Clearly, the judge

rejected      this    testimony       and    found,       by     clear      and    convincing

evidence, that defendant had sexually abused Richard.                              The judge

also    clearly       accepted       Perry's      testimony       that      not     only    was

defendant's admission of wrongdoing a necessary precondition to

effective      therapy       and    future       parenting       time,      but    also    that

defendant      must     undergo       individual         therapy      and    submit       to    a

psycho-sexual evaluation before the process can begin.

       Putting        aside        preconditioning             any       application           of

defendant's admission of wrongdoing, which, as explained above,

violated       defendant's           constitutional            rights,       we      conclude

imposition      of    these    other     preconditions            violated        defendant's

right   to    invoke     the       equitable      powers    of    the     Family     Part      to

modify its order denying him any parenting time.                            It may well be

that any future application may fail, absent defendant's efforts

to address the very issues Perry saw as vital to the gradual

reinstitution of parenting time.                   However, the court should not

reach that conclusion in advance of such a request.                                  Although

the judge undoubtedly made a good faith attempt to foreclose

unnecessary         motion    practice      in    what     had    been      an    excessively

litigated      case,     these       provisions      of     the      November       2013    and

January      2014    orders    improperly         restrict       defendant's        right      to

seek further review by the court.




                                             23                                      A-3230-14T2
    We vacate Section 3 and 4 of the November 2013 order and

sections 4 and 5 of the January 2014 order.

         [At the court's direction,      Section III of
         its opinion, which concerns    discrete issues,
         has   been   redacted   from     the  published
         opinion, because it does         not meet the
         criteria set by R. 1:36-2(d)   for publication.
         The published parts of the     opinion continue
         as follows.]

    For the reasons stated, we affirm in A-3230-14, except as

to those provisions of the November 2013 and January 2014 orders

which we have now vacated.




                               24                          A-3230-14T2
