In The Matter Of R.C v. K.L.R

• Decision Date: 21 April 2010
• Docket Number: 090415J,Petition Number 090415J01,A143609.
• Citation: 235 Or.App. 1,230 P.3d 49
• Parties: In the Matter of R.C., a Child.DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,v.K.L.R., Appellant.
• Court: Oregon Court of Appeals

235 Or.App. 1

230 P.3d 49

In the Matter of R.C., a Child.DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent,v.K.L.R., Appellant.

090415J; Petition Number 090415J01; A143609.

Court of Appeals of Oregon.

Argued and Submitted March 12, 2010.

Decided April 21, 2010.

Angela Sherbo argued the cause and filed the briefs for appellant.

Inge D. Wells, Eugene, argued the cause for respondent. On the brief were John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Anna M. Joyce, Assistant Attorney General, filed the brief for respondent.

Before HASELTON, Presiding Judge, and BREWER, Chief Judge, and ARMSTRONG, Judge.

BREWER, C.J.

In this juvenile dependency case, mother appeals from a dispositional order that included a requirement that she and father each complete a polygraph test. The juvenile court imposed that requirement in order to determine whether mother or father caused unexplained injuries to their three-month-old child or knew the source of those injuries. Mother renews on appeal her assertion before the juvenile court that the polygraph requirement violated her rights against self-incrimination.¹ We reverse and remand.

Mother and father stipulated to juvenile dependency jurisdiction in this case, which, tragically, involved multiple unexplained injuries to their infant son that appear to have been inflicted over a period of time. As part of the dispositional order, the juvenile court, at the request of the child's attorney, imposed a provision requiring each parent to complete a polygraph test. The state did not join in that request. The record of the hearing shows that the purpose of the test was to determine if the parents caused the child's injuries or, if not, whether they knew what or who caused the injuries. Mother's attorney objected on the ground that the polygraph requirement violated her right not to incriminate herself. The trial court nonetheless imposed the requirement, observing that, “if [the parents are] asked a question by the polygraph examiner, ‘Do you know how this occurred?’ [a]nd they remain silent, then I guess the inference is whatever it is that the Court can draw or the polygraph examiner can draw.” The court and the attorneys present at the hearing, including a deputy district attorney, discussed the possibility of providing immunity from prosecution to the parents for any incriminating statements that they might make during the course of the polygraph examination, but no such immunity was granted at the hearing or provided for in the disposition order.

Neither child nor father has appeared on appeal. The state has appeared on appeal; it principally asserts-quite cogently-that mother's arguments on appeal, except for her self-incrimination argument, were not preserved before the juvenile court. However, the state does not take a position on the merits with respect to mother's self-incrimination argument. At oral argument, we asked the parties to address whether mother's assertion of her rights against self-incrimination is unripe, because (1) she has not yet refused to submit to a polygraph examination or refused to answer any particular polygraph questions, or (2) the juvenile court has not yet penalized her in any way for a refusal.

We first, albeit briefly, address the question of ripeness. A controversy is ripe if it involves present facts, as opposed to future events of a hypothetical nature. McIntire v. Forbes, 322 Or. 426, 434, 909 P.2d 846 (1996). Ripeness is one aspect of justiciability and, for that reason, a constitutional prerequisite for adjudication. Yancy v. Shatzer, 337 Or. 345, 349, 97 P.3d 1161 (2004). In State ex rel. Juv. Dept. v. Black, 101 Or.App. 626, 792 P.2d 1225 (1990), the father appealed from a dispositional order in a juvenile dependency case, challenging a provision in the order that required him to participate in an incest treatment program and provided that he should have no visitation with his child until he completed the program.

The father appealed, arguing that the treatment provision violated his rights against self-incrimination. We summarized the record as follows:

“[The father] failed to adduce a scintilla of evidence that any incest treatment program required an admission of guilt, let alone that all treatment programs require it or that he has tried unsuccessfully to obtain treatment that would not require it. Participants in the hearing suggested in argument that some treatment programs do not require admission of guilt.

“There also is no evidence that [Children's Services Division] required father to complete a particular program that demands an admission, that he failed to do so, or that CSD disapproved of father's participation in a particular treatment program that would satisfy his concerns.”

Black, 101 Or.App. at 629, 792 P.2d 1225 (emphasis in original). We concluded that the father's challenge was unripe:

“The juvenile court's only ruling was to continue the status quo. Although the court referred to balancing father's right not to incriminate himself against the child's best interests, it did not in fact do that, because it did not order him to do anything that might incriminate himself. Father's claim that the continuing requirement of treatment amounts to a requirement that he admit to the abuse fails for lack of proof, and the legal issues that he raises are not ripe for decision.”

Id. at 631, 792 P.2d 1225 (emphasis in original).

This case presents materially different circumstances. Here, the juvenile court ordered mother to complete a polygraph examination, the stated purpose of which was to ask mother whether she had injured the child or knew who did. The answers to those questions could expose mother to criminal liability. Moreover, the court stated that, if mother refused to complete the polygraph, the court could draw an inference adverse to mother's parental interests. In addition, the court persisted in its decision despite mother's attorney's assertion that mother would assert her rights against self-incrimination if ordered to complete a polygraph examination. In short, there was nothing hypothetical about mother's predicament. The court's order put her to the Hobson's choice of waiving her rights against self-incrimination or suffering adverse consequences in her quest to preserve her parental rights. It follows that her appeal is ripe. Accordingly, we turn to the merits.

Although mother asserts that the court's order violated her rights under Article I, section 12, of the Oregon Constitution, as well as the Fifth Amendment to the United States Constitution, she has not developed a separate analysis under the Oregon Constitution. Accordingly, we, like the parties, focus on mother's argument under the Fifth Amendment. The Fifth Amendment provides, in part, that “[n]o person * * * shall be compelled in any criminal case to be a witness against himself[.]” The privilege can be claimed in any type of proceeding, but it protects a person from self-incrimination only in criminal prosecutions. The United States Supreme Court has held that the privilege to be free from self-incrimination may be asserted in “any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; and it protects against any disclosures that the witness reasonably believes 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, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972) (omitted). It protects not only statements that could be directly incriminating, but also protects testimony that “would furnish a link in the chain of evidence needed to prosecute the * * * crime.” Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 (1951). The standard for determining whether the privilege applies is “whether the claimant is confronted by substantial and ‘real,’ and not merely trifling or imaginary, hazards of incrimination.” Marchetti v. United States, 390 U.S. 39, 53, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968). No Oregon appellate decision has addressed the issue before us. However, the Fifth Amendment jurisprudence of other state appellate courts is instructive.

In In re Amanda W., 124 Ohio App.3d 136, 705 N.E.2d 724 (1997) ( Amanda W.), and In re J.A., Juvenile, 166 Vt. 625, 699 A.2d 30 (1997) ( J.A.), the courts held that requiring an admission of abuse in a dependency proceeding as a condition of family reunification violates a parent's Fifth Amendment rights. In Amanda W., the parents argued that a case plan requiring a parent to admit to sexually abusing his child in order to be reunited with that child violated the Fifth Amendment. The court agreed, concluding that a stepfather's admission to sexual abuse made in order to attend mandated group counseling for sex offenders would provide the basis for his criminal prosecution, and the mother's statements concerning the stepfather's culpability would create the potential for criminal charges against her for child endangerment. 124 Ohio App.3d at 141, 705 N.E.2d at 727. The court held that an “implicit, and potent, penalty for failure to satisfy the requirements of a particular case plan is the loss of a parent's fundamental liberty right to the care, custody, and management of his or her child.” Id., 705 N.E.2d at 727.

In J.A., the Vermont Supreme Court held that a juvenile court cannot specifically require parents to admit criminal misconduct in order to reunite the family, because such a requirement violates the Fifth Amendment right against self-incrimination. 166 Vt. at 626, 699 A.2d at 31; see also In re Ariel G., 383 Md. 240, 245-47, 858 A.2d 1007 (2004) (holding that a mother was entitled under the privilege to refuse to answer the juvenile court's inquiries about the location of her son). In J.A., the court explained the implications of the privilege against self-incrimination in child dependency proceedings:

“We have held that ‘[t]he trial court cannot

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