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In re: Ariel G., No. 9, Sept. Term, 2004. Opinion by Harrell, J. CRIMINAL LAW & PROCE DURE - FIFTH AMEND MENT - PRIVILEGE AGAINST SELF-INCRIMINATION - REFUSAL BY PARENT TO TESTIFY CONCERNING WHEREABOUTS OF CHILD The mother of a child wa s held in con tempt for re fusing to tes tify in a CINA p roceeding about the last known whereabouts of her child, fearing that her testimony wo uld implicate her in the disapp earance o f the child fr om his fo ster home . At the time of the various contempt findings, a kidnapping charge was outstanding agains t the mo ther. The contempt order violated the mother's Fifth Am endmen t rights agains t self-incrimin ation. In orde r to invoke the Fifth Amendment, an individual's statement must be compelled, testimonial, and self-incriminating. Although a court may compel the production of evidence, it may not compel a person to testify about the w hereabou ts of such e vidence if the testimony would be incriminating. The Baltimore City Department of Social Services (BCDSS) claimed that the mother could be compelled to testify because her refusal interfered with the operation of a noncriminal regulatory regim e, citing Baltimore City Department of Social Services v. Bouknight, 493 U.S. 549, 110 S. Ct. 900, 107 L. Ed. 2d 992 (1990). When the compelled statements fall within the central scope of the Fifth Ame ndment, name ly that they are testimonial and poten tially incriminating, the operation of a civil regulatory regime can not trump the assertion o f the Fifth A mendm ent right. Eve n though the BCD SS relied on the best interest of the child, such an interest cannot override an individu al's Fifth Amendment rights. If the State w ishes to com pel an indiv idual to testify w ithout infringing on that individu al's F ifth A men dme nt rig hts, it sho uld s eek a gran t of u se im mun ity.

Circuit Co urt for Baltim ore City Case # 896262001

IN THE COURT OF APPEALS OF MARYLAND No. 9 September Term, 2004

IN RE: ARIEL G.

Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ.

Opinion by Harrell, J.

Filed: October 5, 2004

On 17 September 1996, the Baltimore City Department of Social Services (BCDSS) took then five year old Ariel G. into pro tective c ustody fr om his mothe r, Teres a B. BCDSS promptly filed a petition in the Circuit Court for Baltimore City alleging that Ariel was a Child in Need of Assistance (CINA) based on his mother's refusal to provide h im with appropriate medical treatment for his severe asthma. After the court entered an order placing Ariel in protective custody, but before an adjudicatory hearing could be held, Teresa abscond ed with A riel. After three and a half years of eluding the authorities, Teresa was found and arrested on 27 March 2000. Although she refused to disclose Ariel's wh ereabouts, h e subsequ ently was found and committed by the court to B CDSS u nder an order of sh elter care. The court found Teresa in direct contempt for preventing the court from exercising its jurisdiction over Ariel. She also later was convicted of a violation of the terms of her probation.1 Later that year, the court found Ariel to be a CINA and place d him in a foster home in Carroll C ounty. Ariel rem ained in the foster home until the morning of 9 January 2001, when the foster pa rents discov ered that A riel was missing fro m his bed room. A ttempts to locate his mother were unsucce ssful, and it was widely speculated that Teresa again had fled with Arie l. Over the next few months the juvenile court held hearings during which evidence was adduced that, if believed, strongly indicated that Teresa was involved in Ariel's latest disappearance and that Ar iel was with he r curren tly. In fact, the pro secutor in C arroll Coun ty On 19 January 2001, the Court of Special Appeals, in an unreported opinion, overtu rned th e conv iction fo r direct c ontem pt and th e violatio n of pr obation .
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charged Teresa with kidnapping.2 In addition, the State charged her with constructive criminal contempt for conduct unrelated to Ariel's 9 January 2001 disappearance.3 Teresa was apprehended once more and jailed in Baltimore City pending a bail hearing. Ariel's w hereab outs, ho weve r, were unkno wn. On 3 August 2001, the C ircuit Court for Baltimore City held a bail hearing. The court instructed Teresa's counsel in the CINA case to appear with Teresa at a hearing that afternoon. The court, now sitting as a juvenile court, directly questioned Teresa concerning Ariel's whereabouts. Teresa refused to answer, claiming that she was not required to do so based on her Fifth Amendment privilege against self-incrimination. The court found Teresa in direct contempt and ordered her detained until she purged herself of the contempt by disclosing Ariel's whereabouts. The court periodically brought her back over the ensuin g month s, but each tim e she refus ed to answer questions concerning Ariel's whereabouts, resulting in her continued incarceration. On 5 June 2002, Teresa was brought before the juvenile court once more and given the opportunity to purge her contempt by disclosing the whereabouts of Ariel. Teresa responded by indicating that, because she had been detained for the last ten months, she no longer had kno wledge a s to Ariel's present location. The court then s uggested Teresa co uld purge the contempt by disclosing where she was the last time she saw Ariel prior to her

At the time of oral argument in the present case, we were informed that the kidnapping charge against Teresa remained pending. 3 This charge was ba sed on Teresa's interf erence with a master's shelter care ord er. Although Teresa was convicted of this offense also, the Court of Special Appeals reversed the con viction i n anoth er unre ported opinio n filed 1 2 Nov embe r 2003 . 2

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capture an d confine ment. Teresa refused to answer this question, invoking again her right against self-incrimination. After Teresa refused once more at a hearing on 26 September 2002 to disclose any information concerning her child's whereabouts, Ariel nonetheless was found b y BCDSS and plac ed w ith re lativ es. T eres a wa s rele ased from custody. 4 Teresa appealed to the Court of Special Appeals from the Circuit Court's 5 June 2002 order finding her in contempt for her refusal to answer questions concerning the last known whereab outs of Ariel. 5 On 10 December 2003, the intermediate appellate court reversed the decision of the juvenile court, concluding that Teresa had a Fifth Amendment privilege to refuse to answer questions regarding her knowledge of Ariel's w hereab outs. In re Ariel G., 153 Md. App. 698, 712-13, 837 A.2d 1044, 1052 (200 3). The C ourt of Sp ecial App eals reasoned that the kidnapping ch arges pending against Teresa in Carroll County presented "reasonab le cause to apprehend danger from a direct answer" to such questio ns. Id. BCDSS sought review in the C ourt of Appe als by wr it of certi orari, w hich we g ranted on 8 April 2004. In re Ariel G ., 380 Md. 617, 84 6 A.2d 401 (2 004). 6 Although Teresa was released from custody, she retained a right of appeal as to the contempt determination because Maryland law allows individuals to appeal from a contempt finding despite having been released from the imprisonment brought about by the c ontempt. Droney v. Droney, 102 M d. App . 672, 68 1-82, 6 51 A.2 d 415, 4 19-20 (1995 ). 5 Although the juvenile court held Teresa in contempt on several occasions over the relevant 13 mon th period, the Court of Special Appea ls held that T eresa's app eal was tim ely only as to the 5 June 2002 o rder. In re Ariel G., 153 Md. App. 698, 705-06, 837 A.2d 1044, 1048 ( 2003) . 6 The sole question posed in BCDSS's petition for certiorari was: "Did the Court of Special Appeals misconstrue Baltimor e City De partmen t of Social Se rvices v. Bouknight, 493 U.S. 549[, 1 10 S. Ct. 900, 107 L. Ed. 2d 992] (199 0), in holding that a juven ile court, in (contin ued...) 3
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I. The Fifth Amendment to the United States Constitution provides that "No person ... shall be compelled in any criminal case to be a witness against himself." U.S. Const. Amend. V. In order to invoke suc cessfully the protection of the Fifth A mendmen t, an individual's statement must b e com pelled, te stimon ial, and s elf-incr iminatin g. Fisher v. U.S., 425 U.S. 391, 408, 96 S. Ct. 1569, 1579, 48 L. Ed. 2d 39 (1976) (stating that the Fifth Amendment "applies only when the accused is compelled to make a testimonial commu nication that is incriminating"). This right ag ainst self-incrim ination is based on the "conviction that too high a price may be paid even for the unh ampered enforcem ent of the c riminal law and that, in its attainment, other social objects of a free socie ty should not be sacrificed." Hoffman v. U.S., 341 U.S. 479, 486, 71 S. Ct. 814, 818, 95 L. Ed. 1118 (1951) (citations omitted). To accomplish this aim, the Fifth Amendment allows an individual to refuse, without threat of punishm ent, to respond to questions the answers to which not only would support a criminal conviction, but also those that would "furnish a link in the chain o f evidenc e needed to prosecute the claimant for a ... crime." Id . Although the Fifth Amendment only mentions criminal proceedings, the Supreme Court has held that the right "can be claimed in any proceeding, be it criminal or civil, admin istrative or judic ial, investig atory or ad judicato ry." In re Gault , 387 U.S. 1, 47, 87 S. Ct. 1428, 1454, 18 L. Ed. 2d 527 (1967 ) (quoting Murphy (...continued) exercising its jurisdiction for the protection of a child who has been found to be a Child in Need of Assistance, cannot compel the parent of the child to reveal the child's wh ereabouts when the child is missing?" 4
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v. Waterfront Commission , 378 U.S. 52, 94, 84 S. Ct. 1594, 1611, 12 L. Ed. 2d 678 (1964) (White, J., concurring)). 7 As a threshold matter, it is clear tha t the questions posed to Teresa at the several pertinent hearings in the Circuit C ourt, including the question posed at the 5 June 2002 hearing, all had the p otential, if answered, to implicate her in the charged crime of kidnapping Ariel. 8 The Supreme Court has held that to invoke the right against selfincrimination, "it need only be evident from the implications of the question, in the setting in which it is asked , that a res ponsiv e answ er ... might be dangerous because injurious disclosure could result." Hoffman , 341 U.S. at 486-87, 71 S. Ct. at 818, 95 L. Ed. 1118. In certain situations in certain civil proceedings in Maryland courts, such as when a party in a divorce case invoke s the Fifth Amen dment rather than answ er a question regarding whether he or she committed adultery, there may be adverse consequences short of incarceration, such as the drawing of an adverse infe rence where the inform ation soug ht is material to the proceed ings. See Robinson v. Robinson, 328 Md. 507, 515-18, 615 A.2d 1190, 1194-96 (1992) (holding that invocation of Fifth Amendment in response to questions conce rning a dultery allo wed c ourt to ta ke adv erse inf erence in child c ustody m atter). 8 Because the kidnapping statute, Md. Code (2002),

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