In re Dependency of A.M.F.

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FILE THIS OPINION WAS FILED

FOR RECORD AT 8 A.M. ON

MARCH 30, 2023

IN CLERK’S OFFICE

SUPREME COURT, STATE OF WASHINGTON

MARCH 30, 2023

ERIN L. LENNON

SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

)

In the Matter of the Dependency of ) No. 101270-5

)

A.M.F., ) En Banc

)

a minor child. )

_______________________________) Filed: March 30, 2023

GONZÁLEZ, C.J.—This case involves three important principles: the State’s

obligation to protect an at-risk child, the parent’s right to parent their child, and the

constitutional prohibition on coercing testimony in criminal cases.

Under our constitution, “[n]o person . . . shall be compelled in any criminal

case to be a witness against himself.” U.S. CONST. amend V. To give force to this

constitutional principle, no person may be compelled to testify in any situation

where their testimony might be used against them in a criminal prosecution, and

the judge or jury in a criminal case may not draw a negative inference from the

defendant’s silence.

In contrast, the trier of fact in a civil case generally may choose to draw a

negative inference from the assertion of the right to remain silent. But while a

negative inference may be drawn, the State may not impose an adverse

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In re Dependency of A.M.F., No. 101270-5

consequence on a person based solely on their assertion of their right to remain

silent, even in a civil matter.

In this case, a child was removed from his mother and placed with his

grandparents out of concern that she could not care for him. Years later, the State

sought to terminate that mother’s parental rights. On advice of counsel, she

declined to answer questions related to her recent drug use. The trial judge chose

to draw a negative inference from her assertion of that right. We must decide

whether, under the Fifth Amendment, that was permissible. We stress that such a

negative inference must not be the only evidence supporting termination. In this

case, however, it was not error for the court to draw a negative inference from the

mother’s refusal to answer specific questions about her drug use. We affirm the

courts below and remand for any further proceedings necessary to carry out this

decision.

FACTS

YR is the biological mother of AMF. AMF was born with

methamphetamines and opiates in his system. Hospital staff referred AMF to the

Department of Children, Youth, and Family Services. Shortly afterward, YR’s

family met with a social worker and expressed significant concerns about her

ability to care for her son due to ongoing, untreated substance use; her mental

health; and her long-term struggles with housing instability. After AMF finished

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In re Dependency of A.M.F., No. 101270-5

treatment for withdrawal, YR’s parents took him into their home, where he has

lived his whole life. The record suggests his grandparents wish to adopt him.

Meanwhile, YR’s struggles, particularly with substance abuse, continued through

the dependency.

When AMF was 19 months old, the State petitioned to terminate YR’s

parental rights. At the time of trial, it appears YR was facing criminal charges.

The nature of those charges is not revealed in the record before us. YR testified at

trial but, on the advice of counsel, did not answer questions about the last time she

had used illegal drugs. The trial court agreed YR was entitled to exercise the right

to remain silent, but it warned her that it might draw a negative inference from her

silence.

The court did draw that negative inference, based on that and the other

evidence presented; found the State had met all the statutory factors; and granted

the termination petition. The Court of Appeals affirmed and our commissioner

granted review. The King County Department of Public Defense, Washington

Defender Association, the American Civil Liberties Union of Washington, and the

Washington State Office of Public Defense submitted an amici brief in support of

YR.

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In re Dependency of A.M.F., No. 101270-5

ANALYSIS

1. Right To Remain Silent

Whether a trial judge may draw a negative inference from a parent’s

assertion of the right to remain silent in a parental rights termination trial is a legal

question we review de novo. See Tomlinson v. Puget Sound Freight Lines, Inc.,

166 Wn.2d 105, 109, 206 P.3d 657 (2009) (citing Ingram v. Dep’t of Licensing,

162 Wn.2d 514, 522, 173 P.3d 259 (2007)). We review challenged findings of fact

for substantial evidence. Id. (citing Ingram, 162 Wn.2d at 522).

Under both our State and federal constitutions, “[n]o person shall be

compelled in any criminal case to give evidence against himself.” WASH. CONST.

art. I, § 9; U.S. CONST. amend. V (“No person . . . shall be compelled in any

criminal case to be a witness against himself.”). These constitutional protections

are a response, in part, to prerevolutionary British investigatory techniques where

people were made to be witnesses against themselves at risk of torture or

damnation. See generally Miranda v. Arizona, 384 U.S. 436, 442-43, 86 S. Ct.

1602, 16 L. Ed. 2d 694 (1966) (quoting Brown v. Walker, 161 U.S. 591, 596-97, 16

S. Ct. 644, 40 L. Ed. 819 (1896)); Katharine B. Hazlett, The Nineteenth Century

Origins of the Fifth Amendment Privilege Against Self-Incrimination, 42 AM. J. OF

LEGAL HIST. 235, 237-38 (1998); Robert Heidt, The Conjurer’s Circle—The Fifth

Amendment Privilege in Civil Cases, 91 YALE L.J. 1062, 1083-84 (1982).

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In re Dependency of A.M.F., No. 101270-5

The Fifth Amendment “not only protects the individual against being

involuntarily called as a witness against himself in a criminal prosecution but also

privileges him not to answer official questions put to him in any other proceeding,

civil or criminal, formal or informal, where the answers might incriminate him in

future criminal proceedings.” Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S. Ct. 316,

38 L. Ed. 2d 274 (1973). The State does not dispute that under these principles and

given the pending criminal charges, YR had the right not to answer questions about

her current drug use.

The trier of fact in a criminal case may not use the defendant’s silence as

evidence of guilt. State v. Burke, 163 Wn.2d 204, 206, 181 P.3d 1 (2008); see also

Griffin v. California, 380 U.S. 609, 614-15, 85 S. Ct. 1229, 14 L. Ed. 2d 106

(1965). That is not the only difference between civil and criminal cases. Most

significantly for the case before us, the trier of fact in a civil case may draw a

negative inference from a witness’s invocation of the right to remain silent. As we

have observed:

The purpose of the privilege against self-incrimination is to

protect the witness from compulsory disclosure of criminal liability.

When a witness in a civil suit refuses to answer a question on the ground

that his answer might tend to incriminate him, the result sought to be

achieved by invoking the constitutional privilege is accomplished. Such

refusal cannot be used against him in a subsequent criminal proceeding.

However, the trier of facts in a civil case is entitled to draw an inference

from his refusal to so testify.

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In re Dependency of A.M.F., No. 101270-5

Ikeda v. Curtis, 43 Wn.2d 449, 457-58, 261 P.2d 684 (1953); see also Diaz v.

Wash. State Migrant Council, 165 Wn. App. 59, 85, 265 P.3d 956 (2011) (“It is

well settled that in civil litigation the exercise by a party of his or her Fifth

Amendment privilege does not protect the invoking party from adverse inferences

that may logically be drawn from its exercise.” (citing Baxter v. Palmigiano, 425

U.S. 308, 318, 96 S. Ct. 1551, 47 L. Ed. 2d 810 (1976))); King v. Olympic Pipe

Line Co., 104 Wn. App. 338, 355-56, 16 P.3d 45 (2000) (“[O]nce a witness in a

civil suit has invoked his or her Fifth Amendment privilege against self-

incrimination, the trier of fact is entitled to draw an adverse inference from the

refusal to testify.” (citing Ikeda, 43 Wn.2d at 458)).

Here we must decide whether such an adverse inference is inappropriate in a

parental rights termination case. We note that state courts have overwhelmingly

found the trier of fact may draw a negative inference from a parent’s assertion of

the right to remain silent in similar cases. See Melissa W. v. Dep’t of Child Safety,

238 Ariz. 115, 117, 357 P.3d 150 (Ct. App. 2015) (“A juvenile court’s drawing a

negative inference when a parent fails to testify at a severance hearing is

particularly appropriate.”); Custody of Two Minors, 396 Mass. 610, 616, 487

N.E.2d 1358 (1986) (“The unique characteristics of child custody proceedings do

not require alteration or modification of the rule permitting inferences from a

party’s failure to testify in a civil case.”); In re C.O., 171 N.H. 748, 763, 203 A.3d

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In re Dependency of A.M.F., No. 101270-5

870 (2019) (“[W]e conclude that the circuit court may draw an adverse inference

from a parent’s failure to acknowledge wrongdoing where it is relevant to

determining whether the parent failed to correct the conditions that led to the

findings of abuse or neglect, even where the parent has invoked her right against

self-incrimination.”); In re Ashley M., 235 A.D.2d 858, 858, 653 N.Y.S.2d 163

(1997) (“[R]espondent’s failure to testify allowed Family Court to draw the

strongest inferences against him as the opposing evidence permitted.”). But see

N.J. Div. of Child Prot. & Permanency v. S.K., 456 N.J. Super. 245, 251, 193 A.3d

309 (App. Div. 2018) (disapproving of the inference when the only other evidence

of parental unfitness was inadmissible hearsay). 1

YR argues the inference was improper here because of the significant liberty

interests at stake. But whether the Fifth Amendment applies does not turn on

whether the liberty interests at stake are significant. By its plain terms, the Fifth

Amendment applies only to criminal cases. U. S. CONST. amend V. Historically,

we have considered whether additional constitutional protections beyond those

1

We stress that questions posed to a witness must be designed to elicit relevant testimony. See

ER 401, 402; see also People v. Chatman, 38 Cal. 4th 344, 379-80, 133 P.3d 534, 42 Cal. Rptr.

3d 621 (2006) (noting it is improper to elicit inadmissible testimony). The questions must be

appropriate and, when required, lay a proper foundation. See generally State v. Montgomery,

163 Wn.2d 577, 591-92, 183 P.3d 267 (2008). The appropriate scope of any negative inference

taken will turn on the circumstances. See, e.g., Diaz, 165 Wn. App. at 65, 87 (holding that judge

properly instructed the jury that it may take a negative inference from a party’s failure to provide

discovery). In this case, the foundation was laid and inference was that YR had used drugs

recently, which was both relevant and detrimental to her theory of the case.

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In re Dependency of A.M.F., No. 101270-5

provided by statute are required in dependency and termination cases under the due

process clause. See In re Dependency of E.H., 191 Wn.2d 872, 894, 427 P.3d 587

(2018) (plurality opinion) (applying the due process analysis set forth in Mathews

v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), to determine

whether a child has a constitutional right to counsel in dependency proceedings);

In re Dependency of M.S.R., 174 Wn.2d 1, 14, 271 P.3d 234 (2012) (same). YR

does not make a Mathews argument.

Instead, YR calls our attention to two United States Supreme Court cases

that did extend the Fifth Amendment prohibition on drawing a negative inference

to specific civil cases: Garrity v. New Jersey 385 U.S. 493, 87 S. Ct. 616, 17 L. Ed.

2d 562 (1967), and Spevack v. Klein, 385 U.S. 511, 87 S. Ct. 625, 17 L. Ed. 2d 574

(1967) (plurality opinion). In Garrity, police officers were investigated for

misconduct. The officers were told by investigators that they could decline to

answer questions that would tend to incriminate them, but if they did, they would

forfeit their jobs under a since-repealed statute that required public employees to

cooperate with investigations or be fired. Garrity, 385 U.S. at 494-95. The

officers answered the questions, and their answers were used in subsequent

successful prosecutions. Id. at 495. The court found the statements were

involuntary and reversed. Id. at 497-98, 500 (quoting Miranda, 384 U.S. at 464-

65). Similarly, in Spevack, a majority of the Court concluded a lawyer could not

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be disbarred merely for refusing to answer questions in a discipline hearing. 385

U.S. at 516 (lead opinion of Douglas, J.) (quoting United States v. White, 322 U.S.

694, 698, 64 S. Ct. 1248, 88 L. Ed. 1542 (1944)), 520 (Fortas, J., concurring in the

judgment).

YR argues that “[b]ecause the deprivation of parental rights is a more

serious deprivation than losing a career, it is impermissible for a court to draw an

adverse inference from a parent’s lawful exercise of her Fifth Amendment rights.”

Suppl. Br. of Pet’r Mother at 12. But nothing in Garrity, Spevack, or any other

authority provided supports extending the Fifth Amendment right to remain silent

to all civil cases categorically, or even to important civil cases. While Garrity and

Spevack stress the importance of the right to remain silent generally, the Court has

since held that Garrity and Spevack merely forbid a negative inference where the

“failure to respond to interrogation was treated as a final admission of guilt,” not

that a negative inference is itself improper. Baxter, 425 U.S. at 318.

Baxter also reaffirmed “the prevailing rule that the Fifth Amendment does

not forbid adverse inferences against parties to civil actions when they refuse to

testify in response to probative evidence offered against them: the Amendment

‘does not preclude the inference where the privilege is claimed by a party to a civil

cause.’” Id. (quoting 8 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON

LAW § 2272, at 439 (John T. McNaughton rev. ed. 1961)); see also Cabral-Avila v.

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Immigr. & Naturalization Serv., 589 F.2d 957, 959 (9th Cir. 1978) (allowing

negative inferences to be drawn from silence in immigration proceedings).

Instead, “if [the witnesses] are compelled . . . to furnish testimonial evidence that

might incriminate them in later criminal proceedings, they must be offered

‘whatever immunity is required to supplant the privilege’ and may not be required

to ‘waive such immunity.’” Baxter, 425 U.S. at 316 (quoting Lefkowitz, 414 U.S. at

85).

Taken together, Baxter, Spevack, and Garrity establish that the Fifth

Amendment does not allow the State to meet its evidentiary burden in a civil case

based solely on an assertion of the right to remain silent. Baxter, 425 U.S. at 317-

18; Spevack, 385 U.S. at 514; Garrity, 385 U.S. at 497. In this case, the trial court

did not base any finding, let alone its judgment, solely on YR’s silence.

YR also calls to our attention a recent intermediate court of appeals case out

of New Jersey, S.K., 456 N.J. Super. 245. We do not find this case helpful. In S.K.,

a father was charged with sexually abusing his daughter. While the charges were

pending, and the father was in jail, the State brought an action to determine

whether the father was unfit because he had sexually abused his child. Id. at 250-

51. The child did not testify, and the State offered only her hearsay statements to

establish that the abuse had happened. Id. at 251. In New Jersey, a child’s hearsay

statement cannot be the sole basis for a finding of abuse or neglect. Id. at 272

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(quoting N.J. Div. of Youth & Fam. Servs. v. P.W.R., 205 N.J. 17, 32-33, 11 A.3d

844 (2011)). The court acknowledged that typically “[w]hen a party in a civil

matter asserts the privilege against self-incrimination, the fact-finder may draw an

adverse inference of guilt.” Id. at 266 (citing Attor v. Attor, 384 N.J. Super. 154,

165-66, 894 A.2d 83 (Ct. App. Div. 2006)). But the only evidence of abuse

presented was the child’s hearsay and the father’s silence. Id. at 251, 272. The S.K.

court found it was improper to base an adverse ruling on inadmissible hearsay and

silence. Id. at 272. That is a very different case from what we have here.

Under controlling United States Supreme Court precedent, the Fifth

Amendment does allow the trier of fact in a civil case to make a negative inference

from the assertion of the right to remain silent, unless that is the only evidence

supporting an adverse action against the witness. Baxter, 425 U.S. at 317-18. As

the trial court’s judgment was not based merely on the mother’s silence, the

inference did not violate the Fifth Amendment.

2. Legal Permanency

YR also contends termination was inappropriate because the State failed to

prove that continuation of her legal relationship with AMF diminished his

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In re Dependency of A.M.F., No. 101270-5

prospects for integration into a stable and permanent home or was in his best

interests. We reject both arguments.

To terminate a parent’s parental rights, the trial court must find by clear,

cogent, and convincing evidence “[t]hat continuation of the parent and child

relationship clearly diminishes the child’s prospects for early integration into a

stable and permanent home,” among other things. Former RCW 13.34.180(1)(f)

(2018).2 It must also find that termination is in the best interests of the child.

RCW 13.34.190(1)(b). The trial court made these findings. YR argues both

findings were in error because termination will not change AMF’s placement with

his grandparents.

The focus of subsection .180(1)(f) is the “continued effect of the legal

relationship between parent and child, as an obstacle to adoption; it is especially a

concern where children have potential adoption resources.” In re Dependency of

A.C., 123 Wn. App. 244, 250, 98 P.3d 89 (2004). A trial court can also find

subsection .180(1)(f) satisfied when the parental relationship is an impediment to a

legal, permanent placement in an adoptive home. In re Dependency of A.D., 193

Wn. App. 445, 458-59, 376 P.3d 1140 (2016).3

2

After the termination order was entered in this case, the legislature amended this statute to

direct courts to consider “whether a guardianship is available as a permanent option for the

child.” LAWS OF 2022, ch. 127, § 2(1)(f), codified at RCW 13.34.180(1)(f). YR does not argue

this amendment is retroactive.

3

The Court of Appeals has suggested that these are the only two ways to meet that element. In

re Welfare of R.H., 176 Wn. App. 419, 428, 309 P.3d 620 (2013) (citing A.C., 123 Wn. App. at

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In this case, the trial court considered the evidence and found continuing YR

and AMF’s relationship clearly diminished AMF’s prospect for permanency

because, without the termination of YR’s parental rights, he would not be eligible

for adoption. It also concluded that termination was in AMF’s best interests as

both a matter of fact and law. While the court did not elaborate, its findings

suggest that the trial court believed termination was in AMF’s best interests

because YR was unfit and termination would allow AMF to be adopted.

Given the record before us, we find no error.

CONCLUSION

YR has not shown the trial court erred in drawing a negative inference from

her refusal to answer specific questions. Nor has she shown the trial court erred in

concluding that continuing the parent-child relationship clearly diminished AMF’s

prospects for early integration into a stable and permanent home or that

termination is in his best interests. We affirm the courts below and remand for any

further proceedings necessary.

250; In re Dependency of K.D.S., 176 Wn.2d 644, 658-59, 294 P.3d 695 (2013)). We note in

passing that we have not been asked to consider whether this is an accurate statement of the law.

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In re Dependency of A.M.F., No. 101270-5

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WE CONCUR:

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