Top court affirms mother's right to remain silent

A mother had a Fifth Amendment right to refuse to answer questions in a child-in-need-of-assistance proceeding concerning her missing 11- year-old son when she was facing criminal charges for his kidnapping, the Court of Appeals held yesterday.

The top court upheld last year's decision of the Court of Special Appeals, which reversed a 2002 order finding Teresa Brock in contempt for refusing to disclose where she was when she had last seen her son Ariel.

Even though her testimony was being compelled in a civil juvenile proceeding, Teresa was well aware that any information she provided to the juvenile court might be used against her in a subsequent criminal trial on the pending kidnapping charge, Judge Glenn T. Harrell wrote for the court. Her invocation of her Fifth Amendment right was justified.

The Baltimore City Department of Social Services argued unsuccessfully that a 1990 Supreme Court decision, Baltimore City Department of Social Services v. Bouknight, controlled. The Bouknight court held that a mother could not invoke the Fifth Amendment to resist a court order to produce a child found to be in need of assistance.

Distinguishing Bouknight, the Court of Appeals noted that the contempt order in the present case was based on Brock's failure to testify - not on her failure to produce her son.

The Bouknight court held that the act of producing that child was not a testimonial communication, but rather an act of production that fell outside the Fifth Amendment's protection, Harrell wrote. Although Teresa may have been required to produce Ariel if he was in her control, compelling her to inform the court of [Ariel's whereabouts] is foreclosed by the Fifth Amendment.

Further, Jacqueline Bouknight had agreed to cooperate with the department as a condition of keeping her son, the court pointed out.

Teresa, unlike Bouknight, may not be said to have submitted to the regulatory regime of the BCDSS, Harrell wrote.

George E. Burns Jr., who represented Bouknight in the 1990 case, thought yesterday's opinion was clear and consistent with the earlier Supreme Court holding.

To go the state's way would have been a great expansion of Bouknight, way over the boundary, said Burns, who was unconnected with the present matter. This was testimony, not producing the child.

Ariel G. first came to the attention of the city's Department of Social Services in 1996 when his mother refused to provide him with medical treatment for his asthma. By 2000, he was adjudicated a CINA and placed in a Carroll County foster home.

When he disappeared from the home in January 2001, authorities believed Brock was involved and brought kidnapping charges against her in Carroll County.

Jailed in Baltimore the same year for conduct unrelated to her son, Brock was ordered to attend a CINA hearing immediately following her Aug. 3, 2001 bail hearing. When Brock refused to answer questions concerning Ariel, she was found in contempt and ordered to be jailed again until she disclosed the boy's whereabouts.

On June 5, 2002, a still-incarcerated Brock appeared before the court again, stating that due to her 10-month incarceration, she no longer knew where Ariel was. When asked where she was when she last saw her son, Brock invoked her Fifth Amendment right against self- incrimination and was again found in contempt. Although she was found in contempt on four other occasions, only the June 5 order was appealed.

The boy was subsequently located and Brock was released from the imprisonment brought about by the contempt. However, she retained a right to appeal the finding under Maryland law.

The Court of Appeals noted that Brock had reasonable cause to fear that she might be implicated in a crime if she responded to the court's questions.

Questioning Teresa as to the location, or even the last known location, of Ariel possessed the potential for demonstrating her culpability in the alleged kidnapping, Harrell wrote.

And even the state's interest in protecting Ariel could not trump the Fifth Amendment, the court held - noting that Brock could have been offered use immunity in exchange for her testimony if Ariel was the only concern.

WHAT THE COURT HELD

Case:

In Re: Ariel G., CA No. 9, Sept. Term 2004. Opinion by Harrell, J. Filed October 5, 2004.

Issue:

Did a mother have a Fifth Amendment right, in a CINA hearing, to refuse to disclose where she was when she last saw her missing 11- year-old son?

Holding:

Yes. The contempt order violated her right against compelled self- incrimination since she was facing criminal kidnapping charges in another jurisdiction related to the child's disappearance, and her answers could have been used to demonstrate culpability.

Counsel:

Asst. AG Nancy C. Hopkins for petitioner Baltimore City DSS; Asst. PD Julia Doyle Bernhardt for respondent Teresa Brock.

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