Amicus Curiae Brief — Maurice M. M. v. Bouknight (Nos. 88-6651, 88-1182)

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Nos. 88-6651, 88-1182 FILED

1989

In the Supreme Court":

OF THE

United States

OCTOBER TERM, 1988

MAURICE M..,

Petitioner,

vs.

JACQUELINE BOUKNIGHT,

Respondent.

BALTIMORE CITY DEPARTMENT OF SOCIAL SERVICES,

Petitioner,

vs.

JACQUELINE BOUKNIGHT,

Respondent.

On Writ of Certiorari

To the Court of Appeals of Maryland

BRIEF OF AMICUS CURIAE CHARLES M.

IN SUPPORT OF PETITIONERS MAURICE M.

AND THE BALTIMORE CITY DEPARTMENT

OF SOCIAL SERVICES

--—-

————$__—_—_—

WILLIAM L. GRIMM*

National Center for Youth Law

1663 Mission Street

San Francisco, California 94103

(415) 543-3307

*Counsel of Record for

Amicus Curiae Charles M.

TABLE OF AUTHORITIES

INTEREST AMICUS CURIAE

QUESTIONS PRESENTED

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT

ARGUMENT

I. WHEN THERE IS NO LESS RESTRICTIVE

ALTERNATIVE FOR PROTECTING THE

CHILD, THE STATE’S COMPELLING

INTEREST IN THE PROTECTION OF

CHILDREN WITHIN THE JURISDICTION

OF THE JUVENILE COURT MAY TAKE

PRECEDENCE OVER THE CONFLICTING

FIFTH AMENDMENT RIGHTS OF A PARENT

WHICH ARISE IN JUVENILE COURT

CHILD PROTECTIVE PROCEEDINGS.

A. THE STATE’S INTEREST IN THE

PROTECTION OF ABUSED AND NEGLECTED

CHILDREN IS A COMPELLING AND

URGENT ONE.

B. THE STATE’S COMPELLING INTEREST IN

THE PROTECTION OF CHILDREN WITHIN

THE JURISDICTION OF THE JUVENILE

COURT MAY TAKE PRECEDENCE OVER THE

CONFLICTING FIFTH AMENDMENT RIGHTS

OF A PARENT WHICH ARISE IN

JUVENILE COURT CHILD PROTECTIVE

PROCEEDINGS.

CONCLUSION

TA 2) HOR

CASES

Breed v. Jones,

421 U.S. 519 (1975)

California v. Byers,

402 U.S. 424 (1971)

tw Vv. icut,

310 U.S. 296 (1940)

Coy _v. Iowa,

U.S. P

(1988)

Doe v. Staples,

706 F.2d 985 (6th Cir.

In the Matter of the Welfare

fe) -W., 391 N.W.2d 791

(Minn. 1986)

in the Matter of the Welfare

of J.W., 415 N.W.2da 879

(Minn. 1987)

108 S.Ct.

2798

1983)

In_re Jessica B.,

254 Cal.Rptr. 883 (Ct. App.

5th 1989)

Jehovah’s Witnesses v.

, 278

F.Supp. 488 (W.D. Wash.

1967) aff’d mem., 390 U.S.

598 reh. denied 391 U.S.

961 (1967)

assi Vv. men ia

Services, 452 U.S. 18 (1981)

37,38,39

34,35

12,28

2,11,24

’

378 U.S. 1 (1964)

Services, 107 S.Ct. 899

(1987)

New York v. Quarles,

467 U.S. 649 (1984)

Palmore v. Sidotti,

466 U.S. 429 (1984)

Parham v. J.R.,

442 U.S. 584 (1979)

U.S. , 107 S.Ct.

989 (1987)

Pierce v. Society of Sisters,

268 U.S. 510 (1925)

’

764 F.2d 423 (5th Cir. 1985)

321 U.S. 158 (1944)

513 A.2d 837 (Me. 1986)

In re S.A.V.

’

392 N.W.2d 260 (Minn.

App. 1986)

455 U.S. 745 (1982)

10,19,24,

32,33

11,12

10,12,24,

25,26,27,

11,12,24

Division, 450 U.S. 707

(1981)

Walker v. Superior Court,

253 Cal.Rptr. 1 (1988)

Wi_consin v. Yoder,

406 U.S. 205 (1972)

Wyman Vv. J ames,

400 U.S. 309 (1971)

ONS UTION

United States Constitution

First Amendment

Fifth Amendment

Sixth Amendment

Fourteenth Amendment

STATUTES AND CODES

42 U.S.C. §671(a)

Child Abuse Prevention and

Treatment Act of 1974,

42 U.S.C. §5101 et seq.

Maryland Courts and Judicial

11,12,25

29,30,31

26,27,30

36,37

4,6, 7,

8,9,10,

33,383,396.

37,45,49,

50,51,53

7,24,32,

34,39

13,24,26,

30,32,36

Procedings Code Ann.

§3-801(e)

§3-814(c)

Public Law 100-294, §106

OTHER AUTHORITIES

American Humane Association,

Highlights of Official Child

Neglect and Abuse Reporting

1986, 1988

American Humane Association,

Protecting Children (Summer

1988)

American Humane Association,

Responding to Child Neglect

and Abuse, 1988

R. Gelles and M. Strauss,

Intimate Violence: The

Definitive Study of the Causes

and Consequences of Abuse in

the American Family, 1988

Metropolitan Judges Committee,

National Council of Juvenile and

Family Court Judges, Deprived

Children: A Judicial Response

(1986)

National Center on Child Abuse

and Neglect, State Statutes

Related to Child Abuse and

Neglect: 1986 and State

Statutes Related to Child Abuse

and Neglect: 1987 Update (1988)

National Conference of State

Legislatures, Legislative

14,15,17

14,16

Summaries on Children, Youth,

and Family Issues, 1983-1987

(1988) 20

National Conference of State

Legislatures, 1987 State

Legislative Summary: Children,

Youth, and Family Issues (1987) 20

National Council of Juvenile and

Family Court Judges, Judicial

Authority and Responsibility:

18 Recommendations on Issues

in Delinquency and Abuse/Neglect

Dispositions (January, 1989) 21,47

re ee a

Nos. 88-6651, 88-1182

In The

Supreme Court of the United States

October Term, 1988

Maurice M.,

Petitioner,

Vv.

Jacqueline Bouknignt,

Respondent.

Baltimore City Department of Social

Services,

Petitioner,

Vv.

Jacqueline Bouknight,

Respondent.

Brief of Amicus Curiae

INTEREST OF AMICUS CURIAE

Amicus Charles M. files this amicus

curiae brief in support of Petitioners

Maurice M. and the Baltimore City Department

of Social Services. Charles is a ten-year-

Old boy who was physically abused by his

parent. As a result of that abuse suffered

at the hands of his parent, Charles was

placed under the jurisdiction of the San

Francisco Juvenile Court. He remains a ward

of that Court and is subject to its

continuing jurisdiction.

Since 1970 the National Center for

Youth Law has represented the interests of

children in several landmark cases decided

by the United States Supreme court such as

Breed v. Jones, 421 U.S. 519 (1975); Parham

Vv. J-R., 442 U.S. 584 (1979); and Lassiter

v. Department of Social Services, 452 U.S.

18 (1981). During the past two decades,

NCYL staff have developed experience in an

extensive range of issues affecting the

legal rights of children. NCYL is part of

the national system of legal services for

the poor. It provides consultation to and

serves aS a resource center for private

attorneys, legal services offices, public

interest attorneys, and other advocates for

children throughout the country who work on

issues related to child welfare, juvenile

justice, public benefits for children, child

and adolescent health, homeless children,

and housing discrimination against families

with children.

PR D

I. DOES A COURT ORDER DIRECTING A PARENT

TO PRODUCE HER PREVIOUSLY ABUSED INFANT SON

COMPEL INCRIMINATING TESTIMONY IN VIOLATION

OF THE PARENT’S FIFTH AMENDMENT PRIVILEGE

AGAINST SELF-INCRIMINATION?*

II. EVEN IF THE FIFTH AMENDMENT PRIVILEGE

IS IMPLICATED BY A COURT ORDER TO PRODUCE A

CHILD, IS THE PRIVILEGE OVERCOME BY THE

IMPORTANT SOCIETAL INTEREST IN PROTECTING

CHILDREN IN JEOPARDY OF SERIOUS INJURY?

* Amicus addresses only’ the second

question certified for consideration by the

Court. In so doing, amicus expresses no

opinion with regard to the merits of the

first question.

he Se te eo

STATEMENT OF THE CASE

Amicus adopts and incorporates by

reference here the Statement of the Case

contained in the brief of Petitioner,

Maurice M.

RY_O RG

When no less intrusive alternative for

protection of the child exists, the state’s

interest in the safety of an abused child

who is a ward of the juvenile court may be

of sufficient importance to compel the

parent to produce the child over her

objection that to do so violates her Fifth

Amendment rights to be free from self

incrimination.

Preservation of the health and welfare

of children is an urgent and compelling

interest of the state. The state has an even

stronger interest in protecting children

whose previous abuse by the parent has been

confirmed and the child placed under the

jurisdiction of the juvenile court. In a

series cf decisions of this Court, a

balancing process has_ been applied in

resolving conflicts which arise between the

constitutional rights of a parent and the

state’s interest in child protection. These

cases when read in conjunction with

subsequent decisions approving or suggesting

that some infringement upon a defendant’s

Sixth Amendment right is permissible in

order to advance ‘the state’s goal of

protecting abused children. Taken together,

those decisions form the basis for applying

a similar balancing test when the conflict

arises between Fifth Amendment rights of the

parent and the state’s interest in

protecting children within the jurisdiction

of the juvenile court from harm by that

parent.

In resolving whether or_not the state’s

interest is sufficient to override the Fifth

Amendment rights of the parent, the court

must weigh the particular facts and

circumstances of the case, including the

availability of less intrusive alternatives

adequate to protect the child suspected of

being in danger. The circumstances of this

case argue most compellingly for the balance

of interests being struck in favor of the

state and the child. Previous abuse of the

child, the seriousness and multiplicity of

past injuries, his very young age, the

mother’s prior admissions regarding her

inadequate care of the child, her submission

to the continuing jurisdiction of the court,

uncontroverted evidence of her mental health

and its adverse impact on her ability to

protect the child, and her intentional

misleading of the court in its search for

her infant son all suggest that the child

whom the court seeks to be produced is in a

real and present danger. In the absence of a

less intrusive means of achieving the

state’s compelling goal here, the abrogation

of any Fifth Amendment right the mother may

have is warranted.

While the circumstances of this case

warrant the abridgment of the mother’s

constitutional right, amicus. urges the Court

to narrow explicitly the application of this

result. Outside of compelling a parent to

bring a child to court or to disclose his

whereabouts, there are other circumstances

in dependency and abuse cases which

implicate the Fifth Amendment rights of

parents. Should the Court hold that the

state’s interest is sufficiently compelling

to override that constitutional right here,

such a holding should be confined to the

particular facts of this case.

ARGUMENT

I. WHEN THERE IS NO LESS ' RESTRICTIVE

ALTERNATIVE FOR PROTECTING THE CHILD,

THE STATE’S COMPELLING INTEREST IN THE

PROTECTION OF CHILDREN WITHIN THE

JURISDICTION OF THE JUVENILE COURT MAY

TAKE PRECEDENCE OVER THE CONFLICTING

FIFTH AMENDMENT RIGHTS OF A_ PARENT

WHICH ARISE iN JUVENILE COURT CHILD

PROTECTIVE PROCEEDINGS.

The state’s protection of the health

and safety of children long has_ been

recognized as a compelling state interest.

Pennsylvania v. Ritchie U.S. , 107

S.Ct. 989, 1003 (1987), Prince Vv.

Massachusetts 321 U.S. 158 (1944). This

Court has observed that ”[t]here is no more

worthy object of the public’s concern” than

the protection and welfare of children,

Wyman _v. James 400 U.S. 309, 318 (1971);

that the state has an “urgent interest” in

their welfare, Lassiter v. Department of

Social Services 452 U.S. 18, 27 (1981); and

that “(t]he State, of course, has a duty of

the highest order to protect the interests

of minor children, particularly those of

tender years.” Palmore v. Sidotti, 466 U.S.

429, 433 (1984).

The opinions of this Court also have

repeatedly affirmed the fundamental nature

of a parent’s right to the care, custody and

management of their children. Santosky v.

Kramer, 455 U.S. 745 (1982); Wisconsin v.

Yoder 406 U.S. 205 (1972); ierce v.

Society of Sisters 268 U.S. 510 (1925). It

has been described as “an interest far more

precious than any property right” Santosky,

455 U.S. at 758. Furthermore, "“([t)he

fundamental liberty interest of natural

parents in the care, custody and management

of their child does not evaporate simply

because they have not been model parents or

have lost temporary custody of their child

to the State”, Santosky 455 U.S. at 753.

Inevitably, these two interests have

come into conflict. In the resolution of

these conflicts, no rule of absolutes has

prevailed. Instead, this Court has engaged

in a balancing of interests. In that

balancing sometimes the parents’ interests

have been found to outweigh those of the

state, Pierce v. Society of Sisters 268 U.S.

510 (1925); Wisconsin v. Yoder 406 U.S. 208

(1972), while in other circumstances the

parents’ rights, though of constitutional

stature, have been compelled to give way to

those weightier interests of the state.

Prince v. Massachusetts 321 U.S.158 (1944);

Jehovah’s Witnesses v. King County Hospital,

278 F.Supp. 488 (W.D. Wash. 1967) aff'd

—-

mem., 390 U.S. 598 reh. denied 391 U.S. 961

(1967). Although the results of this

balancing of interests have differed, the

viability of the balancing test itself has

been maintained. Even outside of the parent-

child relationship, the Court has applied a

balancing process when the interests of the

state in child protection have come into

conflict with the constitutional rights of a

criminal defendant.

In the case before the Court, the

Maryland Court of Appeals held that the

application of a balancing test was not

appropriate when the state’s interest in

protecting the victims of child abuse ran up

against the Fifth Amendment right of the

parent to be free from self-incrimination.

This holding fails to acknowledge the weight

properly afforded the particular’ state

interest at issue here and ignores’ the

precedents of this Court approving and

applying a balancing of interests test. Even

when the actions of the parent are

predicated upon provisions of the Bill of

Rights explicitly incorporated into the Due

Process Clause of the Fourteenth Amendment

and thus made applicable to the states, a

balancing process is appropriate.

A. THE STATE’S INTEREST IN THE

e) fe) CTED

CHILDREN IS A COMPELLING AND

URGENT ONE.

In 1986 there were 2,086,000

documented reports of child abuse and

neglect in the United States.! This figure

represents an estimated 212 percent increase

over the number of reports received in

1976.° Between forty and forty-two percent

of the reports received in 1986 were

substantiated after official

1 American Humane Association,

Highlights of Official Child Neglect and

Abuse Reporting 1986, at 6, 1988. This is

the latest year for which national

statistics are available.

American Humane Association,

Responding to Child Neglect and Abuse, at 2,

1988.

investigations. ?

For that same year, twenty states,

representing fifty percent of the nations’s

child population, reported 556 children died

as the result of child abuse or neglect.4

This figure is undoubtedly an underestimate

of the actual number of fatalities since it

includes only those children known to child

protective services agencies before their

death. In 76.4% of these deaths, the

perpetrator was a parent, stepparent, or

foster parent. Fifty-three percent of the

victims were male while 46.3% were female.°®

From 1985 to 1986 national reports of child

fatalities rose twenty-three percent, double

the rate of increase the previous year. ®

3 American Humane Association,

Highlights, supra at 11.

4 Id., at 24.

5 -, at 24, Table IX.

6 American Humane Association,

Protecting Children 17 (Summer 1988).

These official statistics represent

only the tip of the iceberg of the problem.

They include only those cases in which the

child came to public attention through an

official report of child abuse or neglect

turned in to a state or local child

protection agency.’ Studies have shown that

only one third of actual child abuse cases

known to professionals’ get officially

reported. §&

Many of these child victims are, like

petitioner Maurice, children who are too

young to speak up for themselves; they are

unable to flee the dangerous environment in

which they live without the intervention of

others. Nationwide, approximately forty-

three percent of abused children are between

7 R. Gelles and M. Strauss, Intimate

Violence: The Definitive Study of the Causes

and Consequences of Abuse in the American

Family, pp.72-74 1988.

8 american Humane Association,

Responding to Child Neglect and Abuse, at 2,

1988.

ee ee ee

birth and five years old.? It is these

young victims for whom the risk is greatest.

The average age of the children who were

reported as dying from injuries as the

result of abuse or neglect in 1986 was 2.8

years. 1°

With passage of the Cnild Abuse

Prevention and Treatment Act of 1974, 42

U.S.C. 5101 et seq., Congress created the

first of several federal programs

specifically designed to combat child abuse

and neglect. In more recently providing for

the establishment of a National Commission

on Child and Youth Deaths, Congress found

that:

(1) even by conservative

estimates, during 1985 and 1986,

child abuse fatalities in this

country increased by 23 percent;

(2) the average age of children

9 American Humane Association,

Highlights, supra., p. 21, Table V.

10 Id. at 24. Maurice, who is the

subject of this case, is just about this

age.

who die from abuse and neglect is

two years old..

Pub. L. 100-294 Section 106. In 1984,

Congress authorized Federal challenge grants

to encourage states to establish and

maintain trust funds for the support of

child abuse and neglect prevention. Among

the findings cited in support of this

legisiation were: |

(1) disturbing increases have

occurred in recent years in the

number of young Americans who are

abused;

(2) Many children who run away

from home, who fall prey to

pornography and prostitution, who

suffer from a dependency on

alcohol and drugs, and who become

juvenile offenders, have _ been

victims of child abuse;

(3)research has shown that abuse

tends to repeat itself, and many

times parents who abuse their

‘children were once victims

themselves; ...

(7) The Nation cannot afford to

ignore the importance of

preventing child abuse.

The importance of the public interest

at issue in this particular case is also

evidenced by the numerous state statutes

nee.

enacted for the benefit of children at r°sk

of abuse and neglect.11 Pennsylvania v.

Ritchie ___—sOU«.S. ~___, 107 S.Ct. 989, 1003

n.17 (1987). Juvenile or family court acts

establishing procedures for the protection

of these children exist in all states and

the District of Columbia. Comprehensive

legislation mandating the reporting of child

abuse has been in force in all states since

1968. Each year numerous revisions in both

the civil and criminal Jaws addressing the

problem are introduced in an attempt to

increase child protection. From 1983 through

the 1987 sessions of state legislatures, the

number of bills concerning child abuse and

neglect enacted increased 334 percent, from

11 see National Center on Child Abuse

and Neglect, State Statutes Related to Child

Abuse and Neglect: 1986 and State Statutes

Related to Child Abuse and Neglect: 1987

Update (1988).

64 bills in 1983 to 278 in 1987.12 These

bills, among other things, have modified the

definition of maltreatment which warrant

state intervention,

changed procedures in

the juvenile and family courts, expanded the

list of mandatory reporters, and provided

for the protection of child witnesses. 13

The urgency and importance of the child

abuse problem is also reflected by the

activities of the judiciary. Each year more

than 3000 juvenile and family courts

including more than 7000 judges and

referees, hear 390,000 child abuse and

neglect cases and review some 600,000

protective service orders like that which

12 National

Conference of State

Legislatures, Legislative Summaries on

Children, Youth, and Family Issues, 1983-

1987 (1988).

13 National Conference of State

Legislatures, 1987 State Legislative

Summary: Children Youth and Family Issues

(1987).

met

was entered in petitioner’s case.14 These

judges who daily see the results of neglect

and abuse and who appreciate the urgency of

the crisis have brought their collective

experience together to develop

recommendations for improving the welfare of

children. During 1985 and 1986 a committee

of presiding juvenile and family court

judges from the 40 largest urban courts in

the country met to discuss “the youth who

now comprise the largest and fastest growing

portion of most juvenile and family court

neglected

caseloads”--i.e. abused and

children.1° They emphasized the important

these children as

deprived of

societal interest in

“(cjhildren who are their

14 National Council of Juvenile and

Family Court Judges, Judicial Authority and

Responsibility: 18 Recommendations on

Issues in Delinquency and Abuse/Neglect

Dispositions 1 (January, 1989).

15 Metropolitan Judges Committee,

National Council of Juvenile and Family

Court Judges, Deprived Children: A Judicial

Response (1986).

essential needs not only are handicapped in

their pursuit of happiness, they are a prime

source of future crime and delinquency, and

of future abuse of their own children.”1®

In introducing his Child Abuse

Prevention Initiative this year Pennsylvania

Governor Casey declared: “We, feed our

children, we put clothes on their bodies,

but first and foremost we must make them

safe from violence and neglect.”17 Governor

Casey’s statement is just one indication of

the executive branch’s appreciation for the

urgency of the child abuse problem in our

society. Its importance to the state is also

reflected in other actions by executive

branch members. For example, in 1986, the

Attorney General of California sponsored a

bill calling for the establishment of a

Child Victim Witness Judicial Advisory

16 Se. at §.

17 State of the Commonwealth Address,

January 24, 1989.

= 22

Committee. In 1987, the Governor of Alabama

appointed a Special Commission of Child

Welfare Services to study the crisis

surrounding children at risk of abuse and

neglect in the state.

Official statistics suggest the

magnitude of the child abuse and neglect

problem confronting the states. The

responses to the problem by the states and

Congress, confirm the importance of child

protection as a legitimate, compelling

interest of the state.

N OVER THE

FIF M RIGHTS

OF A PARENT WHICH ARISE IN

JUVENILE COURT CHILD PROTECTIVE

PRO NGS.

This case presents “another episode in

the conflict” between the constitutional

rights of a parent and the authority of the

state, Prince v. Massachusetts, 321 U.S. at

159. In recent years this Court has

addressed the constitutional conflicts which

arise in both civil and criminal proceedings

involving the interests of the state in

child protection. In addition to defining

the parameters of a parent’s Fourteenth

Amendment due process rights in involuntary

termination of parental rights, ssi Vv.

Department of Social Services 452 U.S. 18

(1981); Santosky v. Kramer 455 U.S. 745

(1982), the Court, in a recent case, has

considered the state’s interest in child

protection sufficiently compelling to

warrant infringement upon the Sixth

Amendment rights of a criminal defendant

Pennsylvania. v. Ritchie — U.S. __, #£107

S.Ct. 989 (1987). In earlier decisions

this Court has considered the conflicts

which arose between parents’ ; religious

freedoms and the state’s interest in child

welfare. Prince v. Massachusetts 321 U.S.

158 (1944); Wisconsin v. Yoder 406 U.S. 205

(1972). It is largely to this group of

decisions that amicus draws the cCourt’s

attention for they provide the still viable

framework for resolving the conflict now

before the Court. While the Court has not

been confronted with a balancing of state

and parents’ interests involving the precise

constitutional provision which forms the

basis for this suit, these cases form a

precedent for overriding the constitutional

right of a parent in the interest of child

protection. Indeed, these cases legitimize

use ot a balancing process in this case and

suggest how that balance should be struck.

The argument of a parent that the

interests of the state in child welfare must

give way to the constitutional rights of a

parent when the right involved emanates from

some specific provision of the Bill of

25 ,

{

Rights made applicable to the states through

the Fourteenth Amendment is not

unprecedented. This court has confronted the

argument in several cases in which the

parents sought to justify their actions on

the basis of First Amendment rights. .

In Prince v. Massachusetts, 321 U.S.

158 (1944) the child’s custodian was

convicted under provisions of the _ state

child labor laws which prohibited parents

or custodians from compelling or permitting

children of certain ages to sell newspapers

or participate in the exercise of any other

trade on the street or public place. The

custodian’s challenge to the statute

“rest[ed] squarely on freedom of religion

under the First Amendment, applied by the

Fourteenth to the states. She buttresses

this foundation, however, with a claim of

parental rights as secured by the due

process clause of the latter Amendment”

Prince, 321 U.S. at 164. Justice Reynolds

; 26

Oe ns ee 0 re et

acknowledged the “sacred private interests

basic in a democracy” which were implicated

by the state’s prohibiting a child from

joining a parent in the distribution of a

religieus magazine. Prince, 321 U.S. at 165.

Balanced against that individual right was

the state’s interest which was described as-

“no mere corporate concern of official

authority. It is the interest of youth

itself and of the whole community that

children be both safeguarded from abuses and

given opportunity for growth into free and

independent well-developed men and citizens”

Prince, 321 U.S. at 165. In sustaining the

conviction

custodian’s prosecution and

against her claims of First Amendment

violations the Court concluded “that the

state has a wide range of power for limiting

parental freedom and authority in things

affecting the child’s welfare; and that this

includes to some extent, matters of

conscience and religious conviction” Prince,

321 U.S. at 167.

This Court considered the First

Amendment - state child protection interest

conflict again in Jehovah’s Witnesses v.

King County Hospital 278 F. Supp. 488 (W.D.

Wash. 1967) aff’d mem., 390 U.S. 598, reh. ~

den. 391 U.S. 961 (1967). The parents in

that case were Jehovah’s Witnesses; they

challenged the power of the juvenile court

to order that their children be given blood

transfusions contrary to the expressed

beliefs and direction of the’ parents. The

three judge court convened to review the

state statute under which the juvenile court

derived its power to order the transfusions

had concluded that Prince “does lay down the

foundation, binding upon us for the

particular state intervention in the name of

the health and welfare which is here under

review” Jehovah’s Witnesses 278 F. Supp. at

504. In a per curiam opinion citing only

Prince, the Court approved the juvenile

court’s exercise of its parens patriae power

to protect the health of children.

This tension between the exercise of

First Amendment rights by the parent and a

state’s interest in the welfare of children

was again considered in Wisconsin v. Yoder

406 U.S. 208 (1972). At issue in Yoder was

the conflict between the state’s interest in

universal education and the fundamental

religious freedom of the parents. The

parents of teenage children had refused to

send them to school beyond the eighth erade

as a result of which they were convicted of

violating the state’s compulsory school

attendance law. As members of the Old Order

Amish réligion, they insisted that their

children’s attendance at high school was

contrary to their religion. This Court

granted certiorari to review the decision of

the Wisconsin Supreme Court which had

reversed the parents’ convictions on grounds

that it violated the Free Exercise Clause of

the First Amendment made applicable to the

states under the Fourteenth Amendment.

Although this Court affirmed the

reversal of the convictions, it acknowledged

the continued viability of a “balancing

process” when an important state interest

“impinges on fundamental rights and

interests, such as those specifically

protected by the Free Exercise Clause of the

First Amendment. Yoder, 406 U.S. at 214.

» While the particular state interest sought

to be advanced in Yoder was not “of

sufficient magnitude to override the

interest claiming protection under the Free

Exercise Clause”, Yoder, 406 U.S. at 214,

the legitimacy of the balancing test itself

was not undermined by the Court’s decision.

While it is difficult to meet the burden for

subordinating First Amendment claims of the

parent, the Court acknowledges that there

are "those interests of the highest order

[that] can overbalance legitimate claims to

tars st as ese nc emt tl eae sina bi rasa

the free exercise of religion” Yoder 406

U.S. at 215. The failure to find that the

public interest in compulsory education of

children beyond the eighth grade was not

sufficiently weighty does not undercut the

Court’s previous ruling that there are such

interests of the state which are sufficient

to override this constitutional right. In

fact in the latter part of the Court’s

opinion, there is a clear suggestion that

the type of urgent interest as is presented

in this case would compel a different

resolution of the balancing test. In

distinguishing Yoder from the decision in

Prince v. Massachusetts, Chief Justice

Burger notes: “This case, of course, is not

one in which any harm to the physical or

mental health of the child or to public

safety, peace, order cr welfare has been

demonstrated or may be properly inferred.”

Yoder, 406 U.S. at 230.

Added to this group of cases is the

recent decision of the Court in Pennsylvania

v. Ritchie U.S. » 107 .§S.Ct. 989

(1987), in which infringement upon a

defendant’s Sixth Amendment rights was found

to be permissible in order to promote the

state’s interest in child abuse prevention.

In Ritchie, the Court considered whether and

to what extent a state’s interest in the

confidentiality of its child abuse

investigation files must yield to a criminal

defendant’s Sixth and Fourteenth Amendments

right to discover favorable evidence. In

holding that depriving the defendant of the

right of his counsel to review the file for

exculpatory information was justified, the

Court concluded that :

To allow full disclosure to

defense counsel in this type of

case would sacrifice unnecessarily

the Commonwealth’s compelling

interest in protecting its child

abuse information. If the cys

records were made available to

defendants, even through counsel,

it could have a seriously adverse

effect on Pennsylvania’s efforts

to uncover and treat abuse. Child

abuse is one of the most difficult

crimes to detect and prosecute, in

large part because there often are

no witnesses except the victim. A

child’s feelings of vulnerability

and guilt and his or her

unwillingness to come forward are

particularly acute when the abuser

is a parent. It therefore is

essential that the child have a

state designated person to whom he

may turn and to do so with the

assurance of confidentiality.

Relatives and neighbors who

suspect abuse also will be more

willing to come forward if they

know that their identities will be

protected.

Ritchie, 107 S.Ct. at 1003. In Ritchie it

was not the protection of wm file itself

which was the primary interest. Rather,

protecting the file from full disclosure to

defense counsel was important in advancing

the state’s interest in uncovering and

treating child abuse. Insulating the report

from defendants would foster the compelling

interest the state has in the reporting of

abuse and the encouragement of victims to

seek counselling. Limiting the defendants

constitutional right under these

circumstances was warranted.

Last term in Coy v. Iowa 3.8. ,

108 S.Ct. 2798 (1988), the Court emphasized

the importance of considering individualized

findings with respect to a particular child

before a decision on overriding a

defendant’s Sixth Amendment right to

confrontation could be made. The state had

argued that a general legislative finding

that victims of child sexual abuse needed

special protection in the courtroom was

sufficient to subordinate a criminal

defendant’s rights to confront his accusers.

This generalized finding and the presumption

of trauma upon which it was based was held

to be an insufficient basis for permitting

an exception to the rights embodied in the

Confrontation Clause. In the absence of

individualized findings that these

particular witnesses needed special

protection, the Court was unwilling to

countenance any infringement upon the

defendant’s rights Coy, 108 S.Ct. at 2805.

Justices O’Connor and White in their

concurring opinion would in “an appropriate

case” involving child witnesses permit some

diminution of defendant’s rights. Coy, 108

S.Ct. at 2803. If case specific findings of

necessity were made they concluded “our

cases suggest that the strictures of the

Confrontation Clause may give way to the

compelling state interest of protecting

child witnesses” Coy 108 S.Ct. at 2805.

These cases make it clear that the

prevention of injury to a child is of

paramount interest to the state. That

interest has been balanced against

constitutional rights which “have _ been

zealously protected sometimes even at the

expense of other interests of admittedly

high social importance” Yoder, 406 U.S. at

214. But even though the individual rights

involved are of constitutional magnitude,

when the health and safety of a child are

endangered, the balance of rights’ and

interests may tip decidedly in favor of the

child’s welfare.

Both the First Amendment and the

provisions of the Fifth Amendment at issue

here have been made applicable to the states

by virtue of the Fourteenth Amendment.

Cantwell _v. Connecticut 310 U.S. 296 (1940)

(First Amendment), Malloy v. Hogan 378 U.S.

1 (1964) (Fifth Amendment). However, no

hierarchy of individual rights has been

established which youre place the Fifth

Amendment rights of the parent above their

First Amendment rights. There is no basis

for concluding that one of the individual

rights involved here is superior to another

in our constitutional scheme. If those First

Amendment rights of the parent may be

overcome by societal interest in the

protection of a child, then amicus submits

that other individual rights may be

subjected to a Similar

carefully

——

circumscribed balancing of interests.

Consequently, if the interests of the state

in child protection may, under some

circumstances justify interference with a

parent’s First Amendment rights, then under

appropriate circumstances a similarly narrow

abridgment of Fifth Amendment rights may

occur.

Such a balancing of competing interests

is not unprecedented when Fifth Amendment

rights are implicated. In ali nia_v.

Byers 402 U.S. 424 (1971), this Court upheld

a statute requiring drivers who’ were

involved in an auto accident resulting in

property damage to stop and provide their

name and address to the owner of the damaged»

property. Chief Justice Burger observed

“(tjhe tension between a State’s demand for

disclosures and the protection of the right

against self-incrimination is likely to give

rise to serious questions. Inevitably these

must be resolved in terms of balancing the

public need on the one hand, and individual

claim of consitutional protections on the

other”, Byers, 402 U.S. at 427.

Justice Harlan, concurring in the Court’s

decision, described the Court’s task as one

of accommodation :

[a]s uncertain as the

constitutional mandate deprived

from this portion of the Bill of

Rights may be, it is the task of

this Court continuing to seek that

line of accommodation which will

render this provision relevant to

contemporary conditions.

Byers 402 U.S. at 454. In approving the

state’s compulsion that the driver in Byers

provide the information sought, Justice

Harlan considered several factors

significant:

-.-. the state has confined the

portion of the scheme now before

us ... to the minimal level of

disclosure of information

consistent with the use of

compelled self reporting.. The

Court must take cognizance of the

level of detail required in the

reporting programs as well as the

circumstances giving rise to the

duty to report...

Byers 402 U.S. at 456.

When the teachings of the Prince line

of cases, the more recent decisions of the

Court on Sixth Amendment conflicts with

state child protection interests, and Byers

are considered, the decision of the juvenile

court in this instance should be affirmed.

Under the court’s order in this case the

mother is being compelled to do only that

which is essential to the court’s fulfilling

its obligation to ensure Maurice’s

protection. When the circumstances of the

case are considered there is ample evidence

of the need for the Court to see Maurice.

Finally, there is no less intrusive

alternative available to the court.

Little is known about what happened to

Maurice since he returned to his mother’s

care almost two years ago. However, the

record does contain crucial information

about the mother’s earlier treatment of him

from which the court could and did infer

that he was currently in danger. At the time

of ene state’s first intercession on

Maurice’s behalf, he was only four months

old. J.A. 8 During the first few months of

his life he had suffered four fractures,

each in a different part of the body. J.A.

11, 13, 15 The physician who saw him at the

time concluded that the injuries - to his

arm, shoulder blade, shoulder socket and

thigh - were very likely the result of child

abuse. J.A. 12 With such a history the

physician who had seen Maurice was concerned

that the next injury might be fatal. J.A.

Furthermore, in the juvenile court, Ms.

Bouknight agreed that Maurice was a Child In

Need of Assistance, thus implicitly

admitting that he had not received proper

care and attention and that she was unable

or unwilling to do so.18 J.A. 20 In her

admission to the Court she had specifically

conceded, among other things, that she had

shaken and thrown Maurice when he was in the

hospital for treatment of injuries

considered to be the result of abuse, as

well as the fact she suffered from emotional

problems. J.A. 20

When the juvenile court made _ the

decision to order Ms. Bouknight to produce

Maurice it also had independent information

about her mental health. In that

psychodiagnostic evaluation, conducted only

a month before Maurice was last seen, the

psychologist expressed his unequivocal

opinion that Ms. Bouknight was unable to

care for and protect Maurice. J.A. 25

18 A Child in Need of Assistance is

defined, in part, as a child who does not

receive ordinary and proper care and

attention and whose parents, guardian(s) or

custodian(s) are unable or unwilling to give

proper care and attention to the child and

his problems. Md. Cts. and Jud. Pr. Code

Ann. §3-801l(e).

The court’s order to produce Maurice

also came after Ms. Bouknight agreed to be

bound by the court’s continuing jurisdiction

over her and Maurice; she agreed to a number

of conditions as a part of the court’s order

and the agency’s agreement to return Maurice

to her. App. Pet. Cert. 85a-87a Finally,

she has not remained silent about Maurice’s

whereabouts. She purposefully misled the

juvenile court when she told the judge that

Maurice was with an aunt in Texas. J.A. 65-

When these factors - the very young age

of the child involved, a past history of

abusive behavior toward the child, confirmed

serious multiple injuries inflicted at

different times, an unchallenged mental

health assessment warning against custody

being placed with the mother, her admission

of abusive acts toward Maurice, her

acceptance of the continuing jurisdiction of

the court under an order of protective

supervision, and her deliberate misleading

of the court and others in their attempts to

locate the child - are all taken together

amicus submits that the state’s interest in

the protection of this pastioslor child is

sufficiently high to compel the mother to

produce Maurice.

Although the state may demonstrate a

compelling interest sufficient to override

individual constitutional ‘rights, the

infringement upon that right must be the

least restrictive alternative necessary to

achieve the state’s goal. Thomas v. Review

fe) diana oyment curit

Division, 450 U.S. 707, 718 (1981), Port v.

Heard 764 F.2d 423, 432 (5th Cir. 1985), See

also Walker v. Superior Court 253 Cal Rptr.

1 (1988).

Maurice’s mother knows where he is. She

has not suggested that it is impossible for

her to comply with the court’s directive. No

other alternative to determining his

whereabouts has been suggested by her nor is

there any other apparent way of finding hin.

Both the resources of the police and the

child protective agency have been used yet

in more than a year’s time they have still

been inadequate. Maurice’s mother is the

sole source of the information which would

bring Maurice to the jurisdiction of the

court. She is not being asked to tell the

court how Maurice got to where he is nor

when he was placed there. Her role in his

placement there is not the subject of the

court’s order. No questions are asked about

her treatment of him since he was returned

home nor is she questioned about others to

whom she might have entrusted him. Given the

gravity of the governmental interest at

stake here, the minimal action which is

called for on the part of the mother, and

the specific evidence available to the court

warranting an inference of danger to this

‘particular child, overriding the mother’s

Fifth Amendment right is justified and is

the least intrusive alternative available.

The social costs which result from adherence

to the mother’s position here are too great

to be tolerated. New York v. Quarles 467

U.S. 649, 657 (1984).

The implications for the hundreds of

thousands of children under _ protective

Supervision of the juvenile courts of

adhering to the rule which Ms. Bouknight’

suggests are staggering. Fundamental to

these courts’ exercise of their parens

patriae power is the ability to command the

presence of the child. If parents: are able

to obstruct the court in this basic way then

the court is rendered powerless, the parens

patriae power is not simply diminished it is

nullified for those children. The importance

of the court’s contempt power in- such

situations should not be lightly dismissed.

Recently, the National Council of

Juvenile and Family Court Judges conducted a

“45

survey of juvenile and family court judges

from all over the United States. The judges

were asked a series of questions about their

authority and responsibility. Responses from

judges in 42 states were received. The

results of the survey suggest considerable

judicial concern over the necessity for

obtaining sufficient authority to exercise

their judicial functions in child abuse and

neglect cases. Authority to order

sanctions/treatment for parents was ranked

as the second greatest problem facing the

juvenile courts among the judges surveyed. A

majority of the judges (58%) cited their

contempt powers as their most usual source

of authority over parents abusing or

neglecting their children. They have

recommended that

Legislation should define contempt

powers in relation to an

enumerated series of circumstances

which have resulted in

noncompliance. There should be

specific recitation within the

juvenile and children’s statutes

with regard to the court’s

authority to enforce its

treatment, service, and other

restraining or protective orders

applicable to the child, parents

or guardian of the child, or the

legal custodian or agency

providing treatment or service”!

In the present case, the juvenile court had

been given explicit statutory authority to

order the child brought before the court and

to utilize its contempt powers should the

parent fail to cooperate. Md. Cts and Jud.

Pr. Code Ann. §3-814 (c). Rather than

diminish the existing contempt powers of the

juvenile and family courts, judges from

around the country have confirmed the

importance of reaffirming and establishing

explicit contempt powers if they are to

fulfill their charge to protect the abused

and neglected children under their

jurisdiction.

Upholding the mother’s’ refusal to

19 NCJFCJ, Judicial Authority, supra at

18.

produce Maurice also has serious

implications for child welfare practice. By

virtue of federal law*9, child welfare

agencies like the BCDSS are mandated to

provide reasonable efforts to reunite

families whose children have been removed

from the home as a result of abuse or

neglect. In Maurice’s case reunification

occurred after the agency had some

assurances that those efforts had made it

reasonably safe to return him home to the

mother. J.A. 29-32 Yet this return was a

conditional one. J.A. 27-28 Doe v. Staples

706 F.2d 985 (6th Cir. 1983). Protective

Supervision was ordered and the court’s

jurisdiction was continued. If further

protection of Maurice was necessary, the

agency reasonably believed it could apply to

the juvenile court and that that court had

the authority to take additional action to

20 42 U.S.C. §671(a).

protect Maurice. If the court is denied the

authority to compel a parent to produce a

child who has previously been adjudicated

neglected or abused and is already a ward of

the court, agencies will be reluctant to

return children home and the courts equally

unwilling to approve such a plan. Parents’

attempts to regain custody of their children

from foster care will be made _ more

difficult. A more difficult threshold will

be established and a more demanding test

applied before the court will agree to place

the child back in the home if its power to

protect the child, even in the most

dangerous situations, is extinguished by the

parents’ assertion of a Fifth Amendment

right. Children will remain separated from

their families for longer periods of time

until virtually all risk is believed to be

gone. These additional considerations of

public policy also should be weighed heavily

in determining whether or not Ms. Bouknight

can be compelled to bring her son to Court.

This case does not present the only

instance in which Fifth Amendment rights of

the parent have been the subject of conflict

in the juvenile court. The conflict has

arisen at various stages of juvenile court

proceedings. In re Ryan M. 513 A.2d 837 (Me.

1986); In re S.A.V. 392 N.W.2d 260 (Minn.

App. 1986); In the Matter of the Welfare of

J.W. 391 N.W.2d 791 (Minn.1986) cert. denied

sub nom. Minor v. ureau o ocial Services

107 S.Ct. 899 (1987); In the Matter of the

Welfare of J.W. 415 N.W.2d 879 (Minn. 1987);

ssi -, 254 Cal.Rptr. 883 (Ct.

App. 5th 1989).

Although amicus argues that a parent’s

Fifth Amendment right, if any is involved in

the order challenged here, may be euenetiees

by the state’s compelling interest in the

health and safety of the child under

appropriate circumstances, no genera]

abrogation of Fifth Amendment rights in the

context of abuse and neglect cases - civil

or criminal - is suggested nor does this

case require that the Court consider such a

more encompassing rule.

Child abuse complaints and proceedings

may give rise to Fifth Amendment conflicts

in a number of different ways. For example,

many cases of child abuse brought to the

court’s attention involve allegations of

substance abuse on the part of parents.

While the court may be justified in refusing

to return a child to a parent who refuses to

participate in treatment for such abuse, the

state’s interest in the child should not be

used as a sufficient basis for compelling

the parent to cc fess the extent of their

child abuse unsupported by competent’

evidence nor confirmed by judicial findings

certainly should not be grounds for

overriding parental constitutional rights.

Assertion of a generalized goal of child

protection should not be sufficient to

extinguish individual rights. In fact, that

is not the case here. Rather, the

determination of what, if any, interference

with constitutional rights is warranted

must be done on a case by case basis and

will require individualized findings.

CONCLUSION

Ms. Bouknight asks this Court to depart

from its precedents in which the compelling

importance of the state’s interest in the

health and safety of children has_ been

recognized. Those decisions have approved a

balancing test when conflicts arise between

individual constitutional rights and the

state’s interest in child protection. When

the individual facts of this particular case

are considered as they must be in conducting

such a balancing, the abridgment, if any, of

the mother’s Fifth Amendment rights is

justified.

Respectfully submitted,

William L. Grimm

National Center for Youth Law

Attorney for Amicus Curiae,

Charles M.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.