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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0551%3A10

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1989

## Text

a 0) (4 Supreme Court, Ti
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

10

14

23

53

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)

ii

37,38,39

36

34,35

48

50

50

50

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)

36

50

45

11

10,19,24,
32,33

11,12

43

10,12,24,
25,26,27,
39

50

50

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

iv

43

43

11,12,25
29,30,31
35

10

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

48

17

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

Vv

41
47

18

14,15,17

15

14,16

16

21

19

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

vi

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

1

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

2

© Aare ROM etn

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

6

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

7

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

8

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);

10

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

11

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

12

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

13

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.

2

American Humane Association,
Responding to Child Neglect and Abuse, at 2,
1988.

14

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).

15

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.

16

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.

17

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

18

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).

19

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).

20

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).

21

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

23

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

24

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,

27

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

28

ss

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

29

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

30

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

31

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

32

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

33

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

34

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

35

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

36

——

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

37

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...

38

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

39

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.
12

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

40

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).

41

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-
66

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

42

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

43

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

44

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

46

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.

47

J

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).

48

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

49

~

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

50

~~

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

drug involvement. Mere allegations of ©

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

51

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0551%3A10. Public record. Not legal advice.