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

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No. 88-1182, 88-6651 h JUN 1 BS

het”? “tn JR,

RK

IN THE = —

Supreme Court of the United

OCTOBER TERM, 1988

BALTIMORE CITY DEPARTMENT OF SOCIAL SERVICES,

y Petitioner,

J ACQUELINE BOUKNIGHT,

Respondent.

MAURICE M.,

Vv.

JACQUELINE BOUKNIGHT,

Respondent.

Petitioner,

On Writs of Certiorari to the

Maryland Court of Appeals

BRIEF OF THE U.S. CONFERENCE OF MAYORS,

NATIONAL ASSOCIATION OF COUNTIES,

INTERNATIONAL CITY MANAGEMENT ASSOCIATION,

COUNCIL OF STATE GOVERNMENTS,

NATIONAL CONFERENCE OF STATE LEGISLATURES,

NATIONAL GOVERNORS’ ASSOCIATION, AND

NATIONAL LEAGUE OF CITIES

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

MELVIN SPAETH BENNA RUTH SOLOMON

DONALD O. BEERS Chief Counsel

PETER K. KAUTSKY STATE AND LOCAL LEGAL

NANCY L. PERKINS CENTER

ARNOLD & PORTER 444 N. Capitol Street, N.W.

1200 New Hampshire Ave., N.W. Suite 349

Washington, D.C. 20036 Washington, D.C. 20001

(202) 872-6700 (202) 638-1445

Of Counsel Counsel of Record for the

Amici Curiae

WILSON - Eres PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

: \ QUESTIONS PRESENTED

1. 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?

| | 2. Even if the Fifth Amendment privilege is impli-

‘ cated 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?

(i)

TABLE OF CONTENTS

QUESTIONS PRESENTED EI et binihcnieesseszensnineonnesse

TABLE OF AUTHORITIES .....

: INTEREST OF THE AMICI CURIAE .........................

TT

SUmmMAnR: OF ARGUMENT .........................................

EE

ANY CONSTITUTIONAL PRIVILEGE AGAINST

SELF-INCRIMINATION IMPLICATED HERE

IS OUTWEIGHED BY THE STATE’S INTER-

EST IN PROTECTING CHILDREN THROUGH

a cerscnanancnssenncncunsncsonacennecsess

A. The Fifth Amendment Claim Is Weak .............

1. The purpose of the State’s order for produc-

tion of the child is noncriminal in nature:

it is to protect the health and safety of a

child in need of assistance .................2..002.22----

2. Orders to produce a child are not directed

at a highly selective group inherently suspect

Of criminal activities....................cc0..cccceceeeeeeeeee

B. The Parens Patriae Interest Of The State Is

Sufficiently Strong To Override Constitutional

Claims Of Parents Or Custodians ......................

aa ontaasndattitamiecctineetnenenavecnnenseseene

(iii)

Page

iv

TABLE OF AUTHORITIES

CASES: Page

Albertson v. SACB, 382 U.S. 70 (1965)-....00.0000.. 8,14

Braswell v. United States, 108 S. Ct. 2284 (1988).. 20

California v. Byers, 402 U.S. 424 (1971) .............. passim

Commonwealth v. Barnhart, 345 Pa. Super. 10,

497 A.2d 616 (1985), app. denied, 517 Pa. 620,

538 A.2d 874, cert. denied, 109 S. Ct. 55 (1988)... 17

Craig v. State, 220 Md. 590, 155 A.2d 684 (1959).. 17

DeShaney v. Winnebago County Dep’t of Social

Services, 109 S. Ct. 998 (1989).............00000 2,3

FCC v. Pacifica Foundation, 438 U.S. 726 (1978).. 17

Ginsberg v. New York, 390 U.S. 629 (1968) ........ 17

Grosso v. United States, 390 U.S. 62 (1968)........ 13-14

Haynes v. United States, 390 U.S. 85 (1968) _...... 13

In re Fay G., 120 N.H. 153, 412 A.2d 1012

COREE vissseatttantines sinasieiindamnnastminsaie dadapibanatieateaahibadieetali sts 18

In re Fred S., 66 Misc. 2d 683, 322 N.Y.S.2d 170

GPs HR IPI Si. oaintucticsaceinsctenaanenecsenesaiuadinaindaiaanen 19

In re Germaine B., 86 A.D.2d 847, 447 N.Y.S.2d

Re Te is icici i ieee 19

In re H.R.K., 483 N.W.2d 46 (Iowa App. 1988).... 18

In re Ivey, 319 So. 2d 53 (Fla. App. 1975) ............ 17

In re J.W. & A.W., 415 N.W.2d 879 (Minn. 1987).. 18

In re Johnson, 142 Mich. App. 764, 371 N.W.2d

SD FI ith ciicetieciah cele lacie ean ieee 18

In re Melissa M., 127 N.H. 710, 506 A.2d 324

nh licticataceniinrn aeinaiaceas tn ieee a 19

In re S.A.V. & S.M.V., 392 N.W.2d 260 (Minn.

I TI ilibeidt lowing hast eee ea 18

In re Sampson, 29 N.Y.2d 900, 278 N.E.2d 918,

FSS Ff 8) eee 17

In re Simpson, 126 Misc. 2d 162, 481 N.Y.S.2d

i ene 19

In re Vance A., 105 Misc. 2d 254, 482 N.Y.S.2d

BE CI TR TI access csstrornanserensconnennsesenutsonee 19

Jehovah’s Witnesses v. King County Hospital, 390

es ee nS aiaeeeaiienaes 16

Kastigar v. United States, 406 U.S. 441 (1972)... 8

Leary v. United States, 395 U.S. 6 (1969) _........... 13

Marchetti v. United States, 390 U.S. 39 (1968).... 8,14

Vv

TABLE OF AUTHORITIES—Continued

Page

Meyer v. Nebraska, 262 U.S. 390 (1923)..._............ 17-18

New York v. Ferber, 458 U.S. 747 (1982).............. 17

Pauldino v. United States, 500 F.2d 1369 (10th

awe aa alltel liad 14

People v. Riddle, 83 Cal. App. 3d 563, 148 Cal.

Rptr. 170 (2d Dist. 1978), cert. denied, 440

2 EO FO ee 20

People v. Salinas, 131 Cal. App. 3d 925, 182 Cal.

Me eee 19, 20

People ex rel. Wallace v. Labrenz, 411 Ill. 618, 104

N.E.2d 769, cert. denied, 344 U.S. 824 (1952).... 17

Prince v. Massachusetts, 321 U.S. 158 (1944) ....15, 16, 17

Skinner v. Oklahoma, 316 U.S. 535 (1942) -........... 18

Stanley v. Illinois, 405 U.S. 645 (1972) —................ 17, 18

State v. Perricone, 37 N.J. 463, 181 A.2d 751, cert.

denied, $371 U.S. 890 (1962) ............................00e- 17

United States v. Des Jardins, 747 F.2d 499 (9th

RP te a SSS CRNA AS RET 14

United States v. Dichne, 612 F.2d 632 (2d Cir.

1979), cert. denied, 445 U.S. 928 (1980) —........... 14

United States v. Flores, 753 F.2d 1499 (9th Cir.

ES ER ns BO Reser. tise enero 14

United States v. Wilson, 721 F.2d 967 (4th Cir

SRE UR a EEE ec ere aa nO Ne 14

Wisconsin v. Yoder, 406 U.S. 205 (1972) ............. 16

CONSTITUTIONAL PROVISIONS:

U.S. Const. Amend. I, Free Exercise Clause......6, 15, 16, 17

U.S. Const. Amend. V, Self-Incrimination Clause..passim

U.S. Const. Amend. IX........ STEN. Neo IPE: Se 18

Of RS ESTEE AE Aa 1 ae 7

U.S. Const. Amend. XIV, Due Process Clause .......... 18

U.S. Const. Amend. XIV, Equal Protection Clause.. 18

STATUTES:

42 U.S.C.A. § 5101 et seq. .......... eee eee 10

42 U.S.C.A. § 5106a(a} (Supp. 1989) - Caine Be ee 10

42 U.S.C.A. § 5106a(b) (2) (Supp. 1989)... 11

vi

TABLE OF AUTHORITIES—Continued

Md. Cts. & Jud. Proc. Code Ann. § 3-802(a)

i 9-10, 10

Md. Cts. & Jud. Proc. Code Ann. § 3-802(a) (1)

SPE Ne Maes TURD A De> KORE Oa 6

Md. Cts. & Jud. Proc. Code Ann. § 3-814(c)

RNAI eer ee eee eR OR a 9,12

OTHER AUTHORITIES:

Mitchell, Must Clergy Tell? Child Abuse Report-

ing Requirements Versus the Clergy Privilege

and Free Exercise of Religion, 71 Minn. L. Rev.

EE ER ccd Ae ae Pea 10

S. Rep. No. 167, 95th Cong., 1st Sess., reprinted

in 1978 U.S. Code Cong. & Admin. News 557... 10

Whitcomb, Shapiro & Stellwager, When the Victim

Is a Child: Issues for Judges and Prosecutors

(National Institute of Justice 1985) —.........00..... 13

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

Nos. 88-1182, 88-6651

BALTIMORE CITY DEPARTMENT OF SOCIAL SERVICES,

¢ Petitioner,

JACQUELINE BOUKNIGHT,

Respondent.

MAURICE M..,

Petitioner,

Vv.

JACQUELINE BOUKNIGHT,

Respondent.

On Writs of Certiorari to the

Maryland Court of Appeals

BRIEF OF THE U.S. CONFERENCE OF MAYORS,

NATIONAL ASSOCIATION OF COUNTIES,

INTERNATIONAL CITY MANAGEMENT ASSOCIATION,

COUNCIL OF STATE GOVERNMENTS,

NATIONAL CONFERENCE OF STATE LEGISLATURES,

NATIONAL GOVERNORS’ ASSOCIATION, AND

NATIONAL LEAGUE OF CITIES

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

INTEREST OF THE AMICI CURIAE

The amici, organizations whose members include state,

county, and municipal governments and officials through-

out the United States, have a compelling interest in legal

issues affecting state and local governments.

2

At stake in this case is the power of a state or local

government to protect abused children. In August 1987

the Circuit Court for Baltimore City, Division of Juvenile

Causes, declared Maurice M., the infant son of respond-

ent Jacqueline Bouknight, to be a Child in Need of

Assistance and subject to protective supervision by peti-

tioner Baltimore City Department of Social Services

(“DSS” or “the State”). Respondent, after stipulating

to the order for protective supervision, defied it by fail-

ing to cooperate with DSS.

Upon a petition from the State, which had been

unable to observe Maurice for over seven months, the

court ordered respondent to produce the child, and, when

she refused to do so, found her in contempt. The court

rejected respondent’s claim that the Fifth Amendment

privilege against self-incrimination justified her refusal

to produce Maurice or to disclose his whereabouts. The

Maryland Court of Appeals vacated the lower court’s

judgment, and this Court stayed the Court of Appeals’

order pending resolution of this appeal.

Amici’s concern is that sustaining this Fifth Amend-

ment claim would, in many cases, make it virtually im-

possible for government social service agencies to de-

termine whether a child is being abused, and, if so, to

prevent such abuse. In addition, recognition of the Fifth

Amendment claim in this context would necessarily make

state and local government agencies reluctant to return

children that have been placed in the custody of the State

to their natural parents. To uphold respondent’s claim

thus would not only jeopardize children’s health and

safety, but also frustrate realization of the basic values

inherent in familial relations.

The facts in DeShaney v. Winnebago County Dep't of

Social Services, 109 S: Ct. 998 (1989), highlighted the

difficulties experienced by state and local government

agencies in reconciling the custody rights of a chi!d’s

natural parents with the duty to protect the child from

3

abuse. The present case illustrates the effort of one

State to prevent injuries to children of the type involved

in DeShaney. Such efforts are stymied if the State can-

not determine whether the child is safe or needs pro-

tection. The decision of the Maryland Court of Appeals

in this case, by depriving the State of its power to

compel production of a child, severely impairs the State’s

ability to fulfill its parens patriae obligation to protect

children from abuse.

To uphold the Fifth Amendment claim in this case is

especially egregious in view of respondent’s agreement

that the State exercise protective supervision over her

child. Such agreements are unenforceable if the State

cannot compel production of the child to determine

whether he has been the victim of abuse or neglect. The

decision below, by effectively inviting parental defiance

of such an agreement, eliminates its usefulness as an al-

ternative to the extremes of either abandoning children

to possibly abusive parents or committing the children

to state custody.

Amici submit that the judgment of the Court of Ap-

peals is wrong. Because this Court’s decision will have

a direct effect on the ability of state and local govern-

ments to protect the welfare of children, a matter of out-

standing importance to amici and their members, they

submit this brief to assist the Court in its resolution of

this case.’

STATEMENT

After being hospitalized for multiple fractures at the

age of less than four months, Maurice M. was discharged

on February 10, 1987, to the custody of the State. Pur-

suant to an Order of Protective Supervision entered on

August 18, 1987, the court declared Maurice a Child in

Need of Assistance and placed him in the custody of his

1 The parties’ letters of consent, pursuant to Rule 36 of the Rules

of the Court, have been filed with the Clerk.

4

mother, respondent Jacqueline Bouknight, subject to the

supervision of the Baltimore City Department of Social

Services (“DSS” or “the State”).

On the ground that respondent had failed to cooperate

with DSS under the terms of the order of protective

supervision, DSS in April 1988 filed a motion to hold

respondent in contempt. At a hearing on April 20, 1988,

at which respondent failed to appear, the court issued a

warrant for her arrest and an order to show cause why

she should not be held in contempt, and announced that

she would be jailed if she failed to produce Maurice.

Upon her arrest on April 27, 1988, respondent was

brought before the court and questioned about the where-

abouts of Maurice. She stated that the child was with

her sister in Dallas, Texas; pending verification of that

information, the court ordered that she be held in jail.

When, on April 28, 1988, the information proved incor-

rect, the court found respondent in contempt and or-

dered that she remain in jail until purged of her con-

tempt. The court made it clear that the production

of Maurice, by any means, would serve to purge the

contempt.

At a subsequent hearing on May 18, 1988, respondent’s

counsel raised the claim that for respondent to purge

herself of contempt she would be compelled, in violation

of the Fifth Amendment, to incriminate herself. The

court on May 26, 1988, after considering the parties’

written memoranda and oral arguments on the Fifth

Amendment claim, found it meritless because respondent

need not testify to purge herself of contempt. The court

explained that any manner of production of Maurice—

either a means involving respondent or one wholly inde-

pendent of any action on her part—would serve for such

purgation.

The Maryland Court of Appeals reviewed the case on

an expedited basis. It held on December 19, 1988, that

5

the contempt order violated respondent’s Fifth Amend-

ment privilege against self-incrimination and ordered

her release from prison. The court refused to stay its

judgment pending potential review in this Court.

This Court granted a stay of the Court of Appeals’

judgment and, on April 3, 1989, agreed to hear the case.

Almost one year had elapsed since the State first sought

judicial intervention to locate Maurice.

SUMMARY OF ARGUMENT

This case threatens a critical state interest: the protec-

tion of an abused child. Against that interest respondent

claims the right, pursuant to the Fifth Amendment, to

withhold information without which the State cannot pos-

sibly help two-year-old Maurice. Respondent’s asserted

Fifth Amendment privilege cannot be credited under the

circumstances of this case. Her interest in avoiding any

possibility of self-incrimination simply does not outweigh

the State’s interest and its obligation to protect Maurice.

The Fifth Amendment does not grant an absolute priv-

ilege against self-incrimination. Determining whether

the privilege precludes the government from requiring

certain disclosures necessarily involves balancing the

public need for the disclosures against the risk that the

disclosure requirement will force those subject to it to

incriminate themselves.

This Court in California v. Byers, 402 U.S. 424 (1971)

(plurality opinion), articulated a two-part test for eval-

uating the acceptability of a disclosure requirement that

presents some risk of self-incrimination: if (1) the pur-

pose of the reqvirement is unrelated to criminal law en-

forcement, and (2) the persons subject to the require-

ment are not a “highly selective group inherently suspect

of criminal activities” (id. at 430) (citation omitted),

the argument that the Fifth Amendment forbids the re-

6

quirement is weakened. In such cases, a strong public

need for information will justify a government demand

for disciosure of the information.

The challenge to the order for the production of Mau-

rice, under the two-part test of Byers, presents a weak

argument for Fifth Amendment protection. First, the

purpose of the order has nothing to do with criminal

law enforcement: it was issued pursuant to a civil law,

Maryland’s Juvenile Causes Act, in order to ascertain

and, if necessary, to protect the child’s health and safety.

Second, the persons potentially subject to such a pro-

duction-requirement include all parents, guardians, and

custodians of children for whom the State may perceive

a need to act to ensure proper “care, protection, and

wholesome mental and physical development.” Md. Cts.

& Jud. Proe. Code Ann. § 3-802(a) (1) (1984). Only a

small minority of this group would ever be suspected

of criminal child abuse.

Opposing respondent’s weak self-incrimination claim

is the State’s compelling interest in protecting Maurice.

The State in this case, as in any case involving a child

subject to its jurisdiction, has a parens patriae obliga-

tion to provide necessary assistance to the child. The

factual history here strongly indicates that Maurice re-

quires state assistance; due to his lack of such assist-

ance for more than a year at the time of the filing of this

brief, the current need to ascertain his condition is

critical.

This Court has recognized that the State’s parens

patriae duty to protect the best interests of a child must

overcome parents’ constitutional claims in a variety of

contexts. Thus the Court has rejected parental claims

that the First Amendment bars state intervention to pro-

tect the interests of children. The state courts have re-

jected both_First and Fifth Amendment claims. Re-

spondent’s claim should similarly be rejected.

7

Whatever privilege against self-incrimination respond-

ent may claim to justify her refusal to produce her son,

that privilege cannot, in a society that recognizes its

obligation to protect its children, permit her to prevent

the government from coming to the aid of a helpless, pre-

viously abused child who may be in physical jeopardy.

Neither the Fifth Amendment nor this Court’s decisions

implementing that Amendment require suck a repugnant

result.

ARGUMENT

ANY CONSTITUTIONAL PRIVILEGE AGAINST

SELF-INCRIMINATION IMPLICATED HERE IS

OUTWEIGHED BY THE STATE’S INTEREST IN

PROTECTING CHILDREN THROUGH CIVIL PRO-

CEEDINGS.

The Fifth Amendment privilege against se!f-incrimina-

tion (made applicable to the States through the Four-

teenth Amendment) is not absolute.* California v. Byers,

402 U.S. 424 (1971) (plurality opinion) ; see id. at 452

(Harlan, J., concurring in the judgment). Determining

the proper application of the privilege requires “balancing

the public need [for disclosures} on the one hand, and

the individual claim to constitutional protections on the

other; neither interest can be treated lightly.” Id. at 427

(plurality opinion).’ In this case, the individual claim to

2 Amici support petitioners’ position that the Fifth Amendment

is not implicated in this case because the contempt order at issue

does not require action that is testimonial in nature. To avoid

duplicating petitioners’ arguments, amici focus on the second issue

presented by this case: assuming that a testimonial response is

necessary to determine the location of the child, is the Fifth

Amendment a bar to the State’s ability to obtain that response and

thus to protect the child? Society’s interest in finding and protect-

ing the child would, of course, be equally strong if the contempt

order did in fact require testimonial action.

8 Justice Harlan, who concurred in the judgment, also agreo«!

that the public interests involved are to be considered in determin-

ing whether the Fifth Amendment bars requiring disclosure. 402

U.S. at 451-52.

8

Fifth Amendment protection is weak, and the public

need for disclosure is strong.

A. The Fifth Amendment Claim Is Weak.

Pursuant to the Self-Incrimination Clause of the Fifth

Amendment, “[n]o person . . . shall be compelled in any

criminal case to be a witness against himself.” This

Clause has been interpreted to grant an individual the

privilege to withhold testimony in a variety of proceed-

ings—civil or criminal, administrative or judicial, in-

vestigatory or adjudicatory—when the individual rea-

sonably believes that the testimony could be used in a

criminal prosecution or could lead to other evidence that

might be so used. Kastigar v. United States, 406 U.S.

441, 444-45 (1972). To invoke the privilege the claim-

ant must be confronted by “substantial and ‘real,’ and

not merely trifling or imaginary, hazards of incrimina-

tion.” Marchetti v. United States, 390 U.S. 39, 53 (1968).

The fact that information may constitute incriminating

evidence is not itself enough to preclude requiring its

disclosure in every case. As this Court recognized in

California v. Byers, there are situations in which the

possibility of criminal prosecution based on informa-

tion sought by the government may be very real, yet in-

sufficient to defeat the strong policies that favor dis-

closure of the information. See 402 U.S. at 428 (plural-

ity opinion) ; id. at 451-52 (Harlan, J., concurring in the

judgment). When a disclosure requirement is (1) pur-

suant to a regulatory scheme the purpose of which is civil

in nature, and (2) not directed at a “ ‘highly selective

group inherently suspect of criminal activities’” (id. at

430 (plurality opinion), quoting Albertson v. SACB, 382

U.S. 70, 79 (1965)), the risk of self-incrimination is so

diminished that the requirement cannot be said to present

a cognizable violation of the Fifth Amendment. 402 U.S.

at 430 (plurality opinion). Both criteria are satisfied in

this case.

—

9

1. The purpose of the State’s order for production of

the child is noncriminal in nature: it is to protect

the health and safety of a child in need of assist-

ance.

The Baltimore Circuit Court ordered that respondent

produce Maurice in order to ensure that the child was

safe.‘ When the court issued a warrant for respondent’s

arrest, it did so solely for this purpose. As the court ex-

plained, “we are not picking her up for purposes of

punishing her. We are picking her up in an attempt to

find the child.” J.A. 53. The court further explained

at that time that if respondent failed to produce Maurice,

it would hold her in contempt of court because “[{w]hat

this court has to look at is what is in the best interest of

this child. And quite frankly, that child is paramount on

this court’s mind.” J.A. 54.

After respondent refused to produce Maurice, the court

did hold her in contempt. The court took this action in

accordance with Maryland’s Juvenile Causes Act, which

provides that “|i]f a parent, guardian, or custodian

fails to bring the child before the court when requested,

the court may . . . proceed against the parent, guardian,

or custodian for contempt.” Md. Cts. & Jud. Proc. Code

Ann. § 3-814(c) (1984). It is clear from the Juvenile

Causes Act itself that the court’s action was remedial,

rather than punitive in nature. The relevant purposes of

the Act are (id. § 3-802(a)):

(1) To provide for the care, protection, and whole-

some mental and physical development of children

. and to provide for a program of treatment,

training, and rehabilitation consistent with the

child’s best interests and the protection of the

public interest;

* * *

(3) To conserve and strengthen the child’s family

ties and to separate a child from his parents only

4 Respondent is the only apparent source of information regard-

ing the child’s whereabouts. His father died in March 1988.

10

when necessary for his welfare or in the interest

of public safety; [and]

(5) To provide judicial procedures for carrying out

the provisions of this subtitle.'*!

Maryland’s Juvenile Causes Act is typical of the child

abuse statutes adopted in every State and the District

of Columbia. See Mitchell, Must Clergy Tell? Child

Abuse Reporting Requirements Versus the Clergy Priv-

ilege and Free Exercise of Religion, 71 Minn. L. Rev.

723, 725 n.10 (1987) (citing statutes). The federal

government has also recognized the importance of pro-

tecting children from abuse: the Child Abuse Prevention

and Treatment and Adoption Reform Act, 42 U.S.C.A.

§ 5101 et seq., enacted in 1974, provides funding for the

States to be used in “developing, strengthening, and

carrying out child abuse and neglect prevention and

treatment programs.” Id. § 5106a(a) (Supp. 1989). The

primary purpose of the federal law, like the state child

abuse statutes, is to ensure that children are protected

from abuse through parental and custodial treatment and

training.®

5 Section 3-802(a) identifies the other purposes of the Act as:

(2) To remove from children commiiting delinquent acts the

taint of criminality and the consequences of criminal be-

havior; [and]

— * * *

(4) If necessary to remove a child from his home, to secure for

him custody, care, and discipline as nearly as possible

equivalent to that which should have been given by his

parents.

®See S. Rep. No. 167, 95th Cong., Ist Sess. 59, reprinted in

1978 U.S. Code Cong. & Admin. News 557, 602 (statement of

Arabella Martinez, Assistant Secretary for Human Development,

Department of Health, Education, and Welfare). The federal stat-

ute conditions funding for state programs in part on the State’s

maintaining requirements for reporting of child abuse and proce-

dures to ensure that “upon a finding of abuse or neglect, immediate

11

In Byers, this Court found it significant that the re-

porting requirement alleged to violate the Self-Incrim-

ination Clause was part of a statute that, while defining

some criminal offenses, “is essentially regulatory, not

criminal.” 402 U.S. at 430 (plurality opinion).? The

plurality noted that the requirement, part of the Cali- |

fornia Vehicle Code, “was not intended to facilitate crim-

inal convictions but to promote the satisfaction of civil

liabilities arising from automobile accidents.” Jbid. In

this case, it is clear that the purpose of the order of

production is similarly nonpunitive: it is to protect the

health and welfare of Maurice. See, e.g., J.A. 44-45

(“The Court: Where is the baby? Bring me the baby.

If I see the baby is ckay, fine. I am happy. But some-

body has to protect that child. Based on what I have

already heard, this child is in serious jeopardy.”). As

the court explained, some enforcement mechanism was

required to provide such protection, and the order of

production, coupled with the threat of civil contempt,

was the sole mechanism available. See J.A. 55 (“The

Court: If [respondent] fails to produce the child, then

I will order her held without bail in Baltimore City Jail

until the child is found. I don’t think I have much

choice. If someone can give me some other reasonable

alternative, I will be glad to consider it.’’).

It is even clearer here than in Byers that the require-

ment at issue has an extremely important noncriminal

justification. The public purpose of the reporting require-

ment in Byers was to promote the satisfaction of civil

liabilities arising from automobile accidents: here, the

steps shall be taken to protect the health and welfare of the abused

or neglected child.” 42 U.S.C.A. § 5106a(b) (2) (Supp. 1989). The

federal law does not require the States to impose criminal sanctions

on child abuse offenders.

7 Justice Harlan’s concurrence also focused in its analysis on “the

noncriminal governmental purpose in securing the information.”

402 U.S. at 458.

12

order of production is designed to protect—perhaps to

save—a child’s life. There can be no fair suggestion that

this order, and the statute pursuant to which it was is-

sued, does not have a strong noncriminal purpose.

2. Orders to produce a child are not directed at a

highly selective group inherently suspect of crimi-

nal activities.

Byers also requires examination of the nature of the

group subject to the disclosure requirement. If the re-

quirement is directed at a “highly selective group in-

herently suspect of criminal activities,” then the re-

quirement may be said to create an intolerable risk of

self-incrimination. 402 U.S. at 430 (plurality opinion)

(citation omitted). If, however, the requirement is im-

posed on—and in fact affects—a group of which only a

minority risks self-incrimination through compliance,

then the requirement likely does not violate the Fifth

Amendment. The fact that some persons may undergo a

risk of self-incrimination as a result of the requirement

is not dispositive: the applicability of the privilege de-

pends on how serious the risk of incrimination created

by the requirement is in general. Thus in Byers, the fact

that California’s Vehicle Code was directed at all drivers

in California who are involved in automobile accidents,

and that most accidents occur without creating criminal

liability, indicated that the Code’s disclosure requirement

posed, in general, a low risk of self-incrimination. See

id. at 431.

The order of production in this case implements the

statutory requirement that a parent. guardian, or cus-

todian must, on pain of contempt, bring a child before

the court when requested. See Md. Cts. & Jud. Proce.

Code Ann. § 3-814(c).* That statutory requirement is

8 The case, however, would not be different if the order were

based on the court’s inherent equitable power. Such an order, like

one based on statutory authority, would be utilized in the majority

13

not directed at “a highly selective group inherently sus-

pect of criminal activities.” In the vast majority of

cases where the State requires production of a child

there is no suspicion of criminal activity: although the

State may suspect that the child has been neglected or

abused, in only a small minority of cases does it suspect

that such neglect or abuse has been so severe as to trig-

ger criminal liability. In fact, less than ten percent

of all child abuse cases go forward to prosecution. See

Whitcomb, Shapiro & Stellwager, When the Victim Is

a Child: Issues for Judges and Prosecutors at i (Na-

tional Institute of Justice 1985).

It is not material whether in this particular case there

is a suspicion of criminal liability. Just as the reporting

requirement in Byers would be imposed on a group that

would include some criminal suspects (and indeed, Byers

himself raised the Fifth Amendment claim after being

charged with violating both the reporting requirement

and a related criminal provision), so too some parents

ordered to produce their children will subsequently be

charged with criminal child abuse. That does not mean,

however, that either demarJ is directed at a “highly

selective group inherently suspect of criminal activities.”

Decisions barring governmental orders for disclosures

because of a Fifth Amendment privilege are distinguish-

able on exactly this ground. See, e.g., Leary v. United

States, 395 U.S. 6 (1969) (requirement to report unreg-

istered transfers of marijuana violates the Fifth Amend-

ment because possession of marijuana is a crime);

Haynes v. United States, 390 U.S. 85 (1968) (require

ment to register firearms in one’s possession violates the

Fifth Amendment because possession of unregistered

firearms is a federal offense) ; Grosso v. United States,

of cases to require production of children by persons who would not

be inherently suspect of criminal behavior.

14

390 U.S. 62 (1968) (requirement that persons engaged

in gambling disclose records of their gambling activities

violates the Fifth Amendment because gambling is a

crime) ; Marchetti v. United States, 390 U.S. 39 (1968)

(same) ; Albertson v. SACB, 382 U.S. 70 (1965) (regis-

tration requirement for Communist Party members vio-

lates the Fifth Amendment because Communist Party

membership may constitute a federal offense).

Since Byers, lower courts have used its two-part test

to find various reporting requirements valid under the

Fifth Amendment. See, e.g., United States v. Flores,

753 F.2d 1499 (9th Cir. 1985) (upholding the manda-

tory notification to carriers that firearms are being

shipped to an unlicensed person) ; United States v. Wil-

son, 721 F.2d 967 (4th Cir. 1983) (same) ; United States

v. Des Jardins, 747 F.2d 499 (9th Cir. 1984) (upholding

mandatory disclosure of the transfer of more than $5,000

into or out of the United States); United States v.

Dichne, 612 F.2d 632 (2d Cir. 1979), cert. denied, 445

U.S. 928 (1980) (same); see also Pauldino v. United

States, 500 F.2d 1369 (10th Cir. 1974) (upholding use of

income tax return stating that defendant’s occupation

was gambling as evidence of unlawful gambling-related

activity).

The disclosure requirements in those cases were at

least as likely to apply selectively to criminal suspects

as is the order for production of a child. Moreover, the

public purpose underlying those requirements was much

less critical than is the purpose of the order in this

case. Clearly, the court ordered that respondent produce

Maurice to protect the child’s health and safety, not to

obtain information concerning possible criminal activity.

In light of that critical purpose, and the fact that such

orders are not selectively directed at criminal suspects,

respondent’s claim to the privilege against self-incrimina-

tion is extremely weak.

15

B. The Parens Patriae Interest Of The State Is Suffi-

ciently Strong To Override Constitutional Claims Of

Parents Or Custodians.

This Court has long recognized the State’s paramount

parens patriae interest in the welfare of children. As

the Court stated in Prince v. Massachusetts, 321 U.S.

158, 165 (1944): “It is the interest of youth itself, and

of the whole community, that children be both safe-

guarded from abuses and given opportunities for growth

into free and independent well-developed men and citi-

zens.” Mindful of this interest, the Court has often de-

termined that the best interests of the child override con-

stitutional claims of parents or custodians no less worthy

of protection in our constitutional scheme than the Fifth

Amendment.

Prince itself is compelling authority for the proposition

that the State’s interest in Maurice’s welfare must over-

come any Fifth Amendment privilege that respondent

may hold. In Prince, a Massachusetts statute prohibited

sales of newspapers and magazines by minors in public

places. Prince, a member of the Jehovah’s Witnesses,

was convicted for violation of the statute as a result of

having permitted her minor niece, of whom she was

custodian, to sell religious literature on the streets.

Prince urged that her conviction violated the First

Amendment guarantee of freedom of religion. This

Court forcefully disagreed:

Acting to guard the general interest in youth’s well

being, the state as parens patriae may restrict the

parent’s control by requiring school attendance, reg-

ulating or prohibiting the child’s labor and in many

other ways. Its authority is not nullified merely

because the parent grounds his claim to control the

child’s course of conduct on religion or conscience.

Thus, he cannot claim freedom from compulsory vac-

cination for the child more than for himself on

religious grounds. The right to practice religion

freely does not include liberty to expose the com-

16

munity or the child to communicable disease or the

latter to ill health or death.

321 U.S. at 166-67 (citations omitted).

Prince stands as authority for broader state interven-

tion than is necessary to overturn the decision of the

Maryland Court of Appeals in the instant case. The

child in Prince was in no apparent danger of physical

harm, whereas Maurice may well be in such danger.

The Court undertook a similar balancing of parents’

constitutional rights against the parens patriae interest

of the State in Wisconsin v. Yoder, 406 U.S. 205 (1972).

There, the Court considered the right of the State to

compel children’s school attendance beyond the eighth

grade over the religious objections of Amish parents. Al-

though ultimately holding that the free exercise claim

was of sufficient force to overcome that state interest,

this Court was careful to narrow its holding (id. at

233-34) :

To be sure, the power of the parent, even when

linked to a free exercise claim, may be subject to

limitation under Prince if it appears that parental

decisions will jeopardize the health or safety of the

child, or have a potential for significant social bur-

dens. . . . The record strongly indicates that ac-

commodating the religious objections of the Amish

by forgoing one, or at most two, additional years

of compulsory education will not impair the physical

or mental health of the child....

Finally, this Court’s per curiam affirmance in Jehovah's

Witnesses v. King County Hospital, 390 U.S. 598 (1968),

is further evidence of the Court’s adherence to the

Prince standard and is clearly significant here because

of the balance struck between the asserted constitutional

right and the State’s parens patriae interest in protect-

ing the physical safety of the child. In that case, this

Court was presented with a free exercise challenge to a

state statute which, as applied to plaintiffs, permitted the

17

State to overrule parental objections and administer blood

transfusions to children in need of such treatment. This

Court, relying upon Prince, upheld the constitutionality

of the state statute as applied, thus reaffirming the right

of the State to intervene to protect children when their

health or safety is threatened.°

In other contexts as well, this Court has noted the

importance of “the State’s right—indeed, duty—to pro-

tect minor children.” Stanley v. Illinois, 405 U.S. 645,

649 (1972). That right and duty is so paramount that.

it forms the basis for judicial severance of the parental

bond, a bond that itself is deemed “essential” (Meyer v.

® The state courts likewise have authorized medical treatment for

children despite parental objections based o. the free exercise of

religion. See, e.g., In re Ivey, 319 So. 2d 53 (Fla. App. 1975);

In re Sampson, 29 N.Y.2d 900, 278 N.E.2d 918, 328 N.Y.S.2d 686

(1972) ; State v. Perricone, 37 N.J. 463, 181 A.2d 751, cert. denied,

371 U.S. 890 (1962); People ex rel. Wallace v. Labrenz, 411 II.

618, 104 N.E.2d 769, cert. denied, 344 U.S. 824 (1952).

These cases cannot be distinguished on the ground that the

Fifth Amendment right is somehow stronger than the First Amend-

ment right because the claimant of the Fifth Amendment privilege

may incur a criminal penalty if the privilege is denied. In Prince,

the constitutional claim was made on an appeal from a state con-

viction; the failure of the constitutional argument there thus

resulted in the affirmance of the conviction. Indeed, religious be-

liefs generally have been rejected as a defense in criminal prosecu-

tions involving failure to provide medical attention for a child.

See Commonwealth v. Barnhart, 345 Pa. Super. 10, 497 A.2d 616

(1985), app. denied, 517 Pa. 620, 538 A.2d 874, cert. denied, 109

S.Ct. 55 (1988); Craig v. State, 220 Md. 590, 155 A.2d 684 (1959).

10 See also New York v. Ferber, 458 U.S. 747, 756-58 (1982)

(State’s “compelling” interest in “safeguarding the physical and

psychological well-being of a minor” is a justification for statute

regulating child pornography); FCC v. Pacifica Foundation, 438

U.S. 726, 749-50 (1978) (government interest in “well-bei og of its

youth” justifies regulation of radio broadcast that is indecent but

not obscene) ; Ginsberg v. New York, 390 U.S. 629 (1968) (uphold-

ing state statute criminalizing the sale of certain magazines to

minors).

18

Nebraska, 262 U.S. 390, 399 (1923)) and one of the

“basic civil rights of man” (Skinner v. Oklahoma, 316

U.S. 535, 541 (1942)); and which is protected by the

Due Process and Equal Protection Clauses of the Four-

teenth Amendment and by the Ninth Amendment. Stan-

ley, 405 U.S. at 651.

The Maryland Court of Appeals is apparently the first

court to have faced the question whether an order to

produce a child in need of assistance violates the priv-

ilege against self-incrimination. Other state courts, how-

ever, have dealt with self-incrimination challenges in the

context of child abuse proceedings, and have in each

ease determined that the interests of the child weigh

heavily against any asserted Fifth Amendment claim of

the parent or guardian.

For example, the state courts have apparently unani-

mously concluded that, when a child’s interests are at

stake, the Fifth Amendment does not preclude condi-

tioning a parent’s right to retain custody of the child

on the parent’s disclosing incriminating information.

Thus the State may require parents to undergo thera-

peutic treatment or psychological examinations or else

forfeit the right to keep their children. See, e.g., In re

H.R.K., 433 N.W.2d 46 (Iowa App. 1988) (State may

condition parental custody on the completion of a sexual

abuse treatment program in which parents must admit

that sexual abuse of a child occurred); In re J.W. &

A.W., 415 N.W.2d 879 (Minn. 1987) (State may condi-

tion parental custody on the results of a psychological

evaluation likely to be favorable only if the parents re-

veal incriminating information) ; accord In re S.A.V. &

S.M.V., 392 N.W.2d 260 (Minn. App. 1986) ; In re John-

son, 142 Mich. App. 764, 371 N.W.2d 446 (1982); In

re Fay G., 120 N.H. 153, 412 A.2d 1012 (1980).

The State also may create judicial presumptions of

parental responsibility for the condition of a child, and

a

19

those presumptions will control the outcome of a custody

determination if the parent refuses to disclose informa-

tion regarding that condition. See, e.g., In re Simpson,

126 Mise. 2d 162, 481 N.Y.S.2d 293 (Fam. Ct. 1984) ; In

re Fred S., 66 Misc. 2d 683; 322 N.Y.S.2d 170 (Fam. Ct.

1971).

In addition, the state courts have found the best in-

terests of the child dispositive in resolving Fifth Amend-

ment claims regarding the sequence of parallel criminal

and civil child abuse proceedings. Parents who have

been named simultaneously as defendants in criminal

and civil child abuse actions have argued that to proceed

with the civil ease while the criminal action is pending

violates their privilege against self-incrimination because

they cannot present an adequate civil defense without

disclosing incriminating information. The courts have

repeatedly refused to postpone civil actions on this

ground, finding that “{e]xpedition is important because

it is only if and after the allegations of abuse are sus-

tained at a fact-finding trial that the Family Court has

authority to determine the best plan for the child’s long-

term care. However, criminal charges based on acts of

alleged child abuse generally pend for inordinate periods.”

In re Vance A., 105 Mise. 2d 254, 432 N.Y.S.2d 137, 142

(Fam. Ct. 1980) (citation omitted) ; accord In re Melissa

M., 127 N.H. 710, 506 A.2d 324 (1986); In re Germaine

B., 86 A.D.2d 847, 447 N.Y.S.2d 448 (1st Dept. 1982).

Even in a criminal child abuse proceeding, the State’s

obligation to protect children plays a role in determining

the degree of protection the Fifth Amendment will pro-

vide a parent. In People v. Salinas, 131 Cal. App. 3d

925, 182 Cal. Rptr. 683 (5th Dist. 1982), for example,

the court found it necessary to consider the best interests

of the child in order to resolve whether the mother’s

Fifth Amendment rights had been violated by the failure

of an interrogator to provide her with Miranda warn-

ings. Among other reasons, the fact that the allegedly

20

incriminating information the mother disclosed was nec-

essary to provide emergency care to her child led the

court to reject the mother’s Fifth Amendment claim. The

court concluded that:

In balancing the interests of the child’s well being,

particularly in an emergency situation when a life is

at stake, versus the need for protecting the alleged

abuser’s right against self-incrimination, we believe

there is no question that the former interest out-

weighs the latter. . .. “Any other policy would re-

flect an indifference to human life.”

182 Cal. Rptr. at 692 (quoting People v. Riddle, 83 Cal.

App. 3d 563, 148 Cal. Rptr. 170, 179 (2d Dist. 1978),

cert. denied, 440 U.S. 937 (1979) ).

Whether or not the situation of two-year-old Maurice

constitutes a medical emergency is, of course, unknown,

and will not be known until he is found. The govern-

ment’s interest in finding Maurice is therefore increas-

ingly critical. Surely that interest outweighs any Fifth

Amendment right his mother may assert to refuse to

produce him."

11 This case should not be resolved by requiring the State to

grant respondent immunity from the use of her testimony for

criminal prosecution. To require States to grant use immunity

(assumingthey can do so) to parents in exchange for information

about their children’s whereabouts would create serious impedi-

ments to the State’s ability to protect children.

Because of the difficulty in proving that independently obtained

evidence was derived from sources not covered by the grant of

immunity, use immunity can, as this Court recognized in Braswell

v. United States, 108 S. Ct. 2284, 2294-95 (1988), make success-

ful prosecution difficult if not impossible. The decision to grant

such immunity should therefore be made only after careful con-

sideration, by a prosecutor who is fully aware of all of the facts.

This decision cannot, in the majority of child abuse or neglect cases,

appropriately be made by the attorney representing the government

in the civil family court proceeding. Thus a requirement of use

immunity would make it necessary for civil and criminal attorneys

to coordinate to reach decisions on when to grant immunity, which

ee ee

21

CONCLUSION

For the foregoing reasons, the judgment of the Mary-

land Court of Appeals should be reversed.

Respectfully submitted,

MELVIN SPAETH BENNA RUTH SOLOMON

DONALD O. BEERS Chief Counsel

PETER K. KAUTSKY STATE AND LOCAL LEGAL

NANCY L. PERKINS CENTER

ARNOLD & PORTER 444 N. Capitol Street, N.W.

1200 New Hampshire Ave., N.W. Suite 349

Washington, D.C. 20036 Washington, D.C. 20001

(202) 872-6700 (202) 638-1445

Of Counsel Counsel of Record for the

Amici Curiae

June 1, 1989

would impose a substantial burden on already overworked family

court lawyers, case workers, and prosecutors. In addition, it would

inevitably, and sometimes dangerously, prolong the process of

obtaining information about abused children. Most important, the

possibility of obtaining immunity would encourage parents to with-

hold information about their children’s whereabouts, and signifi-

cantly undermine the threat of prosecution as a deterrent to child

abuse.