In re Dependency of JRU-S., 54019-0-I.

CourtCourt of Appeals of Washington
Citation126 Wash.App. 786,110 P.3d 773
Docket NumberNo. 54019-0-I.,54019-0-I.
PartiesIn the Matter of the DEPENDENCY OF J.R.U.-S., a minor child. State of Washington Department of Social and Health Services, Appellant, Marisol Willis and Reynard Smith, Respondents.
Decision Date11 April 2005

Trisha L. McArdle, Office of the Atty. Gen., Seattle, WA, for Appellant.

Thomas Kummerow, Seattle, WA, for Respondent Marisol Willis.

Eric J. Nielsen, Nielsen Broman & Koch PLLC, Seattle, WA, for Respondent Reynard Smith.

Lori Larcom Irwin, King Co. Superior Ct., Seattle, WA, for Guardian Ad Litem J.R.U.-S.

AGID, J.

¶ 1 The parents of J.R.U.-S. ("J.U.") are the subjects of both a criminal investigation and dependency proceedings involving J.U. The principal issue before us is whether the courts in the dependency proceedings abused their discretion when they allowed the parents' counsel to attend court ordered psychological evaluations.

¶ 2 We conclude that while the parents had no constitutional or statutory right to counsel during their evaluations, the courts did not abuse their discretion because the parents' Fifth Amendment rights were implicated, and the immunity statute provides inadequate protection for those rights. We hold, however, that when Fifth Amendment rights are threatened, the courts should enter protective orders granting additional immunity rather than allowing counsel to attend psychological evaluations.

FACTS

¶ 3 Reynard Smith and Marisol Willis are J.U.'s parents. In May, 2003, when J.U. was four months old, they took her to a hospital with a fever, vomiting, and diarrhea. Medical personnel determined that J.U. also had five fractured ribs. When the parents could not explain the injuries, police took J.U. into protective custody.

¶ 4 The next day, a social worker interviewed the parents who denied any involvement in J.U.'s injuries. They believed their babysitter or her husband had caused them. They agreed to place J.U. in foster care pending an investigation.

¶ 5 Doctors discovered additional injuries, including a fractured skull and retinal hemorrhaging, the next day. J.U. was having trouble maintaining her heart rate and needed assistance with breathing. Because her injuries were consistent with physical abuse, a criminal investigation began. No charges have yet been filed against either parent.

¶ 6 On June 6, 2002, the Department filed a dependency petition. The parents entered agreed dependency and dispositional orders. They also agreed to participate in services, but they asked for hearings to determine whether they should undergo psychological evaluations. ¶ 7 At the father's hearing, the Department argued that evaluations were necessary to assess whether underlying psychological conditions posed a future threat to J.U. The Department maintained that the purpose of the evaluations was not to determine whether the parents had caused J.U.'s injuries, but rather to determine whether they could protect her from future harm. The father opposed any evaluation, arguing that his Fifth Amendment rights would be infringed because the available statutory immunity was inadequate and the evaluator would be statutorily required to report any evidence of abuse to law enforcement. He requested that counsel be present during any evaluation and he be given complete immunity.

¶ 8 A court commissioner ordered the evaluation and granted the father's request to have counsel attend. The court also restricted dissemination of the evaluation to parties and treatment providers. The Department moved for revision. The superior court denied the motion, ruling that the Commissioner's decision was appropriate given the immunity statute and CR 35.

¶ 9 The Department moved for reconsideration and/or clarification of the court's order. In response, the court stated in part:

[I]n the case before this court, the party who has been court ordered to undergo a psychological evaluation has not been convicted of any criminal offense, is still under investigation for possible criminal charges arising out of the injuries suffered by the dependent child and does have the right to invoke his 5th amendment privilege to not incriminate himself.... Additionally, R.C.W. 26.44.053 does not purport to grant immunity from prosecution.... The court's inartful reference to Civil Rule 35 was only to illustrate that in civil litigation where the physical or mental capacity of a party is at issue, it is contemplated that the party being examined may have a representative present. The Department's argument ... seemed to focus on how having another person present would detract from the quality of the evaluation.
Therefore, defense counsel may be present at the evaluation and may interpose objections on the grounds of the defendant's right to not incriminate himself....

(Emphasis omitted.)

¶ 10 Following the mother's hearing, a different judge reached the same conclusions and granted her request to have counsel present during her evaluation. The court also ruled that the mother's evaluation would be sealed and disclosed only to the parties. The order allowed the parties to file a motion to seek further disclosure.

DECISION
I.

¶ 11 We first address the Department's contention that the courts abused their discretion in allowing counsel to attend the evaluations.1 The Department challenges the courts' decisions on several grounds, which we address separately below.2

Threat to Fifth Amendment Rights/Statutory Immunity

¶ 12 First, the Department contends the evaluations did not threaten the parents' Fifth Amendment rights because they were not under oath and were not in custody or "compelled" to incriminate themselves. But the Fifth Amendment privilege does not apply only when a person is under oath. The privilege protects a defendant from being compelled to provide evidence of a "`testimonial or communicative nature[.]'"3 It may be raised in any proceeding, "civil or criminal, formal or informal, where the answers might incriminate [the questioned person] in future criminal proceedings."4 There is no requirement that the questioned person be under oath.

¶ 13 Nor is the privilege available only when a person is in custody or under compulsion to speak. In general, the privilege may be invoked whenever circumstances indicate that a real and substantial danger of incrimination exists.5 The privilege is normally not self-executing and must be asserted.6 But when compulsion is present, the privilege is self-executing and, at that point, a right to counsel may arise.7 Although the question whether the parents had a right to counsel in the evaluations does not resolve the issue before is, we agree with the Department that the parents were not under compulsion to speak, and therefore had no right to counsel in their evaluations.

¶ 14 In general, compulsion exists when a person is either subjected to custodial interrogation,8 ordered to produce incriminating evidence,9 or threatened with serious penalties if the evidence is not produced.10 The first two types of compulsion are not present here. The parents were not subjected to custodial interrogation. And while they were ordered to participate in the evaluations, they were not ordered to answer the evaluator's questions.11 Whether the evaluations involved the third type of compulsion— i.e. compulsion arising from penalties for not producing incriminating evidence—is a closer question.

¶ 15 The parents contend that failing to answer questions could result "in the eventual termination of [their] constitutional right to the care and custody of [their] child." While that is true, and while termination of parental rights is a consequence of sufficient gravity to qualify as compulsion,12 the penalty cases have generally required a showing that a penalty would follow directly and more or less automatically from the refusal to answer questions.13 Although Washington courts have not addressed the issue of compulsion in the circumstances presented here, courts in other jurisdictions have generally held that there is no compulsion absent a certain and serious penalty, such as an express threat to file a termination petition if the parent invoked the privilege.14

¶ 16 Here, there was no evidence that a termination petition or any other serious adverse consequence was certain, or even likely, to follow from the parents' refusal to answer questions in the evaluation.15 Without evidence of a concrete, imminent threat, we cannot say the parents were "compelled" to respond to questions during the evaluation. But because the absence of compulsion only means that the privilege was not self-executing and that no right to counsel arose, our analysis of the decisions allowing counsel to attend the evaluations does not end here.

¶ 17 The Department also contends the parents' Fifth Amendment rights were never threatened because the immunity statute, RCW 26.44.053(2), fully protects those rights. We disagree.16 The immunity statute provides in part:

At any time prior to or during a hearing... the court may ... order the examination of any parent ... if the court finds such an examination necessary to the proper determination of the case ... No information given at any such examination of the parent or any other person having custody of the child may be used against such person in any subsequent criminal proceeding against such person or custodian concerning the alleged abuse or neglect of the child.[17]

The Department contends this statute provides "use immunity," which adequately protects the parents' Fifth Amendment rights. The parents argue that the statute provides insufficient immunity because its plain language "only prohibits the testimony of the person who conducts the evaluation." Both parties misinterpret the statute.

¶ 18 The parents' interpretation ignores the plain language of the statute. The statute precludes the "use" of any "information given" at a psychological evaluation in subsequent...

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