Baltimore City Department of Social Services v. Bouknight Maurice v. Bouknight

Decision Date20 February 1990
Docket NumberNos. 88-1182,88-6651,s. 88-1182
Citation110 S.Ct. 900,493 U.S. 549,107 L.Ed.2d 992
CourtU.S. Supreme Court

Based on evidence that respondent Bouknight had abused petitioner Maurice M., her infant son, petitioner Baltimore City Department of Social Services (BCDSS) secured a juvenile court order removing Maurice from Bouknight's control. That order was subsequently modified to return custody to Bouknight pursuant to extensive conditions and subject to further court order. After Bouknight violated the order's conditions, the court granted BCDSS' petition to remove Maurice from her control and held her in civil contempt when she failed to produce the child as ordered. Rejecting her subsequent claim that the contempt order violated the Fifth Amendment's guarantee against self-incrimination, the court stated that the contempt would be purged by the production of Maurice and was issued not because Bouknight refused to testify but because she failed to obey the production order. In vacating the juvenile court's judgment upholding the contempt order, the State Court of Appeals found that that order unconstitutionally compelled Bouknight to admit through the act of production a measure of continuing control over Maurice in circumstances in which she had a reasonable apprehension that she would be prosecuted.

Held: A mother who is the custodian of her child pursuant to a court order may not invoke the Fifth Amendment privilege against self-incrimination to resist a subsequent court order to produce the child. Pp. 554-562.

(a) Although the privilege applies only when an accused is compelled to make an incriminating testimonial communication, the fact that Bouknight could comply with the order through the unadorned act of producing Maurice does not necessarily deprive her of the privilege, because the act of complying may testify to the existence, possession, or authenticity of the thing produced. See, e.g., United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552. Pp. 554-555.

(b) Even assuming that the act of production would amount to a communication regarding Bouknight's control over, and possession of, Maurice that is sufficiently incriminating and testimonial in character, she may not invoke the privilege to resist the production order in the present circumstances. The ability to invoke the privilege is greatly diminished when invocation would interfere with the effective operation of a generally applicable regulatory regime constructed to effect the State's public purposes unrelated to the enforcement of its criminal laws, see, e.g., California v. Byers, 402 U.S. 424, 430, 91 S.Ct. 1535, 1539, 29 L.Ed.2d 9, and when a person assumes control over items that are the legitimate object of the government's noncriminal regulatory powers, cf. Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787. Here, Maurice's care and safety became the particular object of the State's regulatory interest once the juvenile court adjudicated him a child in need of assistance. Moreover, by taking responsibility for such care subject to the custodial order's conditions, Bouknight submitted to the regulatory system's routine operation, agreed to hold Maurice in a manner consonant with the State's interests, and accepted the incident obligation to permit inspection. Furthermore, the State imposes that obligation as part of a broadly directed, noncriminal regulatory regime governing children cared for pursuant to custodial orders. Persons who care for such children are not a selective group inherently suspect of criminal activities. Similarly, the efforts of BCDSS and the judiciary to gain access to the children focus primarily on the children's well-being rather than on criminal conduct, and are enforced through measures unrelated to criminal law enforcement. Finally, production in the vast majority of cases will embody no incriminating testimony. Pp. 561-562.

(c) The custodial role that limits Bouknight's ability to resist the production order may give rise to corresponding limitations upon the State's ability to use the testimonial aspects of her act of production directly or indirectly in any subsequent criminal proceedings. See, e.g., Braswell v. United States, 487 U.S. 99, 118, and n. 11, 108 S.Ct. 2284, 2295, and n. 11, 101 L.Ed.2d 98. Pp. 561-562.

314 Md. 391, 550 A.2d 1135 (1988), reversed and remanded.

O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, BLACKMUN, STEVENS, SCALIA, and KENNEDY, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 563.

Ralph S. Tyler, III, Baltimore, Md., for petitioner, Baltimore City Dept. of Social Services.

Mitchell Y. Mirviss, Baltimore, Md., for petitioner, Maurice M George E. Burns, Jr., Baltimore, Md., for respondent, Bouknight.

Justice O'CONNOR delivered the opinion of the Court.

In this action, we must decide whether a mother, the custodian of a child pursuant to a court order, may invoke the Fifth Amendment privilege against self-incrimination to resist an order of the juvenile court to produce the child. We hold that she may not.


Petitioner Maurice M. is an abused child. When he was three months old, he was hospitalized with a fractured left femur, and examination revealed several partially healed bone fractures and other indications of severe physical abuse. In the hospital, respondent Bouknight, Maurice's mother was observed shaking Maurice, dropping him in his crib despite his spica cast, and otherwise handling him in a manner inconsistent with his recovery and continued health. Hospital personnel notified the Baltimore City Department of Social Services (BCDSS), petitioner in No. 88-1182, of suspected child abuse. In February 1987, BCDSS secured a court order removing Maurice from Bouknight's control and placing him in shelter care. Several months later, the shelter care order was inexplicably modified to return Maurice to Bouknight's custody temporarily. Following a hearing held shortly thereafter, the juvenile court declared Maurice to be a "child in need of assistance," thus asserting jurisdiction over Maurice and placing him under BCDSS' continuing oversight. BCDSS agreed that Bouknight could continue as custodian of the child, but only pursuant to extensive conditions set forth in a court-approved protective supervision order. The order required Bouknight to "cooperate with BCDSS," "continue in therapy," participate in parental aid and training programs, and "refrain from physically punishing [Maurice]." App. to Pet. for Cert. 86a. The order's terms were "all subject to the further Order of the Court." Id., at 87a. Bouknight's attorney signed the order, and Bouknight in a separate form set forth her agreement to each term.

Eight months later, fearing for Maurice's safety, BCDSS returned to juvenile court. BCDSS caseworkers related that Bouknight would not cooperate with them and had in nearly every respect violated the terms of the protective order. BCDSS stated that Maurice's father had recently died in a shooting incident and that Bouknight, in light of the results of a psychological examination and her history of drug use, could not provide adequate care for the child. App. 33-34. On April 20, 1988, the court granted BCDSS' petition to remove Maurice from Bouknight's control for placement in foster care. BCDSS officials also petitioned for judicial relief from Bouknight's failure to produce Maurice or reveal where he could be found. Id., at 36-39. The petition recounted that on two recent visits by BCDSS officials to Bouknight's home, she had refused to reveal the location of the child or had indicated that the child was with an aunt whom she would not identify. The petition further asserted that inquiries of Bouknight's known relatives had revealed that none of them had recently seen Maurice and that BCDSS had prompted the police to issue a missing persons report and referred the case for investigation by the police homicide division. Also on April 20, the juvenile court, upon a hearing on the petition, cited Bouknight for violating the protective custody order and for failing to appear at the hearing. Bouknight had indicated to her attorney that she would appear with the child, but also expressed fear that if she appeared the State would " 'snatch the child.' " Id., at 42, 54. The court issued an order to show cause why Bouknight should not be held in civil contempt for failure to produce the child. Expressing concern that Maurice was endangered or perhaps dead, the court issued a bench warrant for Bouknight's appearance. Id., at 51-57.

Maurice was not produced at subsequent hearings. At a hearing one week later, Bouknight claimed that Maurice was with a relative in Dallas. Investigation revealed that the relative had not seen Maurice. The next day, following another hearing at which Bouknight again declined to produce Maurice, the juvenile court found Bouknight in contempt for failure to produce the child as ordered. There was and has been no indication that she was unable to comply with the order. The court directed that Bouknight be imprisoned until she "purge[d] herself of contempt by either producing [Maurice] before the court or revealing to the court his exact whereabouts." App. to Pet. for Cert. 82a.

The juvenile court rejected Bouknight's subsequent claim that the contempt order violated the Fifth Amendment's guarantee against self-incrimination. The court stated that the production of Maurice would purge the contempt and that "[t]he contempt is issued not because she refuse[d] to testify in any proceeding . . . [but] because she has failed to abide by the Order of this Court, mainly [for] the production of Maurice M." App. 150. While that decision was being appealed, Bouknight was convicted of theft...

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