In re Ariel G.

• Decision Date: 05 October 2004
• Docket Number: No. 9,9
• Citation: 383 Md. 240,858 A.2d 1007
• Parties: In re ARIEL G.
• Court: Maryland Court of Appeals

858 A.2d 1007

383 Md. 240

In re ARIEL G.

No. 9, Sept. Term, 2004.

Court of Appeals of Maryland.

October 5, 2004.

Nancy C. Hopkins, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of Maryland, on brief), Baltimore, for Petitioner.

Julia Doyle Bernhardt, Asst. Public Defender (Nancy S. Forster, Public Defender, on brief), Baltimore, for Respondent.

Argued Before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.

HARRELL, Judge.

On 17 September 1996, the Baltimore City Department of Social Services (BCDSS) took then five year old Ariel G. into protective custody from his mother, Teresa 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 him 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 absconded with Ariel.

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 whereabouts, he subsequently was found and committed by the court to BCDSS under an order of shelter 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 placed him in a foster home in Carroll County. Ariel remained in the foster home until the morning of 9 January 2001, when the foster parents discovered that Ariel was missing from his bedroom. Attempts to locate his mother were unsuccessful, and it was widely speculated that Teresa again had fled with Ariel.

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 Ariel was with her currently. In fact, the prosecutor in Carroll County 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 whereabouts, however, were unknown. On 3 August 2001, the Circuit 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 ensuing months, but each time she refused 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 knowledge as to Ariel's present location. The court then suggested Teresa could purge the contempt by disclosing where she was the last time she saw Ariel prior to her capture and confinement. 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 by BCDSS and placed with relatives. Teresa was released 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 whereabouts 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 whereabouts. In re Ariel G., 153 Md.App. 698, 712-13, 837 A.2d 1044, 1052 (2003). The Court of Special Appeals reasoned that the kidnapping charges pending against Teresa in Carroll County presented "reasonable cause to apprehend danger from a direct answer" to such questions. Id. BCDSS sought review in the Court of Appeals by writ of certiorari, which we granted on 8 April 2004. In re Ariel G., 380 Md. 617, 846 A.2d 401 (2004).⁶

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 successfully the protection of the Fifth Amendment, an individual's statement must be compelled, testimonial, and self-incriminating. 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 communication that is incriminating"). This right against self-incrimination is based on the "conviction that too high a price may be paid even for the unhampered enforcement of the criminal law and that, in its attainment, other social objects of a free society 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 punishment, 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 of evidence 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, administrative or judicial, investigatory or adjudicatory." In re Gault, 387 U.S. 1, 47, 87 S.Ct. 1428, 1454, 18 L.Ed.2d 527 (1967) (quoting Murphy 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 that the questions posed to Teresa at the several pertinent hearings in the Circuit Court, including the question posed at the 5 June 2002 hearing, all had the potential, if answered, to implicate her in the charged crime of kidnapping Ariel.⁸ The Supreme Court has held that to invoke the right against self-incrimination, "it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer ... might be dangerous because injurious disclosure could result." Hoffman, 341 U.S. at 486-87, 71 S.Ct. at 818, 95 L.Ed. 1118. Although it is not certain on this record who, if anyone, assisted Ariel in eloping from the foster home in Carroll County during the early morning hours of 9 January 2001, BCDSS and the State's Attorney's Office for Carroll County clearly believed that Teresa was responsible. At the time of the hearing on 3 August 2001 in the Circuit Court for Baltimore City, when Teresa was first questioned about her son, the trial judge was aware that she was wanted by Carroll County police on an arrest warrant issued as a result of her alleged involvement in Ariel's disappearance.

Because of the pending kidnapping charges, Teresa had "reasonable cause to apprehend danger from a direct answer" to the court's question concerning Ariel's whereabouts. Hoffman, 341 U.S. at 486,71 S.Ct. at 818,95 L.Ed. 1118. Questioning Teresa as to the location, or even the last known location, of Ariel possessed the potential for demonstrating her culpability in the alleged kidnapping. Although the juvenile court's primary objective was to determine Ariel's location for his safety, it was clear that his mother's statements not only could be used to locate the child, but also to gather evidence for law enforcement purposes as to how Ariel left the foster home. Such evidence could then be used to discover what role Teresa may have had in Ariel's disappearance.

Furthermore, the threat of prosecution was not hollow or speculative, but rather immediate and certain. See Choi v. State, 316 Md. 529, 536-37, 560 A.2d 1108, 1111-12 (1989)

. The Carroll County prosecutor, through the procurement of an arrest warrant, took affirmative steps to prosecute Teresa for kidnapping her son.⁹ Even though her testimony was being compelled in a civil juvenile proceeding, Teresa was well aware that any information she provided to the juvenile court might be used against her in a subsequent criminal trial on the pending kidnapping charge in Carroll County. Her invocation of her Fifth Amendment right was justified.

II.

BCDSS, however, argues that this Court should apply Baltimore City Department of Social Services v. Bouknight, 493 U.S. 549, 110 S.Ct. 900, 107 L.Ed.2d 992 (1990) to conclude that the Fifth Amendment does not apply to proceedings in which the location of a child found to be CINA is at issue. We find the reasoning in Bouknight to be inapplicable to the circumstances of the present case.

In Bouknight, a mother refused a court order to produce her child. Id. at 552, 110 S.Ct. at 903-04, 107 L.Ed.2d 992. The child had been declared a CINA, based on the mother's consistent physical abuse, and was placed under the oversight of BCDSS. Id. at 551-52, 110 S.Ct. at 903, 107 L.Ed.2d 992. Despite reservations, BCDSS agreed to allow the mother, Jacqueline Bouknight, to continue as the physical custodian of the child, subject to certain conditions placed upon her by a court-approved protective supervision order. Id. at 552, 110 S.Ct. at 903, 107 L.Ed.2d 992....