Maurice M., In re

• Decision Date: 01 September 1988
• Docket Number: No. 50,50
• Citation: 314 Md. 391,550 A.2d 1135
• Parties: , 57 USLW 2419 In re MAURICE M. ,
• Court: Maryland Court of Appeals

Page 391

314 Md. 391

550 A.2d 1135, 57 USLW 2419

In re MAURICE M.

No. 50, Sept. Term, 1988.

Court of Appeals of Maryland.

Dec. 19, 1988.

George M. Lipman, Asst. Public Defender and George E. Burns, Jr., Asst. Public Defender (Alan H. Murrell, Public Defender, Jose Felipe Anderson, Asst. Public Defender, Robin Parsons, Asst. Public Defender, all on brief) Baltimore, for appellant

Ralph S. Tyler, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Andrew H. Baida, Asst. Atty. Gen., and Marilyn Blimline, all on brief), Mitchell Mirviss of Legal Aid Bureau, Inc., Baltimore, for appellee.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL, JJ.

MURPHY, Chief Judge.

This case involves a challenge on Fifth Amendment self-incrimination grounds to the constitutionality of a civil contempt order entered by a Juvenile Court directing the mother of a juvenile "to produce him before the court or to reveal his exact whereabouts." ¹

I

Maurice M., the infant son of Jacqueline Bouknight, was admitted to the hospital on January 23, 1987, with a broken leg; he was then three months old. Because of the nature of Maurice's injuries, and the presence of old, partially healed fractures, the Baltimore City Department of Social Services (DSS) obtained an authorization on February 11, 1987 to provide shelter care for the child and he was placed in foster care. DSS also filed a petition in the Circuit Court for Baltimore City (Division of Juvenile Causes), seeking a determination that Maurice was a child in need of assistance (CINA) under the provisions of Maryland Code (1984), § 3-801(e) et seq. of the Courts and Judicial Proceedings Article. The petition recited Maurice's history of injuries, the mother's history of emotional problems, her own former status as a CINA, the fact that she was seen to throw Maurice into his crib during his second hospitalization, that she was verbally abusive to the physicians and social workers, and that the father had just been released from prison for drug violations. At a hearing on May 19, 1987, Maurice, Jacqueline, and DSS, each represented by counsel, stipulated to the essential facts as set forth in the petition and agreed to continue Maurice under the Shelter Care Order. On July 17, 1987, this order was modified and physical custody of Maurice was returned to Jacqueline.

At a hearing on August 18, 1987, Maurice was found to be a CINA. The parties agreed that Maurice would remain in Jacqueline's custody but would be placed under an Order of Protective Supervision to DSS and a DSS aide was assigned to assist Jacqueline with parenting skills. Under this order, Jacqueline agreed to "cooperate" with DSS, and to refrain from physically punishing Maurice.

By petition filed on April 18, 1988, DSS represented that Jacqueline had failed to cooperate with DSS and that she refused to provide a current address or to inform DSS of Maurice's whereabouts. The petition also recited that Maurice's father had been shot to death the previous month and that Jacqueline now had a history of drug use. DSS also On April 20, 1988, at a hearing before a Juvenile Master, at which Jacqueline declined to appear, DSS cited Jacqueline's failure to comply with the Order of Protective Supervision and was awarded custody of Maurice. On the same day, the court (Angeletti, J.) held a hearing on the contempt motion; neither Maurice nor Jacqueline appeared at the hearing although each was represented by counsel. DSS suggested to the court that it was dealing with a "very serious abuse case" because of Maurice's prior history of injuries, and he might even be dead. The court stated its belief that the child may be "in some jeopardy because of the actions of the mother in refusing to bring him in." At the conclusion of the hearing, the court ordered Jacqueline to show cause why she should not be held in contempt for failure to produce Maurice in court.

filed a Motion for Contempt against Jacqueline, alleging that DSS representatives had made a home visit on April 7, 1988, but were told by Jacqueline [550 A.2d 1137] that Maurice "was in the care of an aunt; however, she refused to identify the aunt or provide the whereabouts of the child." ²

Jacqueline was subsequently arrested and brought before the court on April 27, 1988. At that hearing, the court (Mitchell, J.) engaged Jacqueline in a colloquy in the presence of her attorney. It asked her "the whereabouts of ... Maurice." In response, Jacqueline said that he was with her sister Barbara at a designated address in Dallas, Texas. Jacqueline's statement was not given under oath and no Fifth Amendment objection to the court's inquiry was entered on Jacqueline's behalf.

An immediate police investigation revealed that Jacqueline's sister had not seen Maurice. On April 28, 1988, Judge Mitchell found Jacqueline in contempt "for failing to produce The court also conducted a hearing on the same day it entered its civil contempt order. At the hearing, Jacqueline's counsel told the court that Jacqueline "absolutely insists" that the child was with her sister in Texas. Counsel also told the court that Jacqueline's opportunity to purge herself was not a constitutional one "if her purging herself may involve admitting to a crime of some sort." The court, in response, said that Jacqueline was not being asked "to admit to anything"; that Jacqueline was not being asked "what has happened to the child or whether she committed any act that in anyway harmed the child"; and that the only thing that is required is that she produce Maurice. The court added that Jacqueline could purge herself of the contempt "through the means of a proper address, person, or location for the child," i.e., by simply indicating to her counsel, "to anyone at the jail, or anyone in authority, including this Court, that information."

                [Maurice] before the court or to reveal his exact whereabouts."   The order specified that Jacqueline be jailed until she purged herself of the contempt by (1) producing Maurice before the court, or (2) revealing to the court his exact whereabouts, or (3) by providing "information" about Maurice to the police, or DSS, or the court
                

At yet another hearing on May 18 before Judge Mitchell, Jacqueline moved to strike the contempt order on Fifth Amendment grounds. She claimed that the substance of the contempt "is that [Jacqueline] must verbally or physically produce statements or evidence that may tend to incriminate her." The court rejected the argument, concluding that it had jurisdiction to require disclosure of "the whereabouts of the minor child" and, in doing so, Jacqueline was not required to speak.

On May 26, 1988, a further hearing was granted on the Fifth Amendment issue. Jacqueline contended that to purge herself of the contempt she must "give testimony or speak" in violation of her self-incrimination privilege; that "the product of her mind has to yield the whereabouts of Maurice[;] ... she has to speak to someone, ... to order Jacqueline appealed. We granted certiorari prior to decision by the intermediate appellate court to consider the important issue raised in the case.

                some agent, through his mind, through his lips to produce Maurice."   The court once again stated its view that its order to produce Maurice required only [550 A.2d 1138] that Jacqueline perform an act--that no testimony need be given.   It said that the contempt order was issued "not because she refuses to testify ... [but] because she has failed to abide by the Order of this Court, mainly the production of Maurice."
                

II

The Fifth Amendment privilege against self-incrimination extends "to compelling answers by parties or witnesses in civil litigation." Whitaker v. Prince George's County, 307 Md. 368, 385, 514 A.2d 4 (1986). It "protects a witness from being required to make disclosure, otherwise compellable in the trial court's contempt power, which could incriminate him in a later criminal prosecution." Id. at 385, 514 A.2d 4. See also In re Criminal Investigation No. 1-162, 307 Md. 674, 516 A.2d 976 (1986). The privilege "is confined to instances where the witness has reasonable cause to apprehend danger from a direct answer." Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951). To sustain the privilege, "it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered, might be dangerous because injurious disclosure could result." Id. at 486-87, 71 S.Ct. at 818. The protection of the Fifth Amendment "not only extends to answers that would in themselves support a conviction ... but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute" the suspected offender. Id. at 486, 71 S.Ct. at 818. The privilege must be accorded a liberal construction in favor of the right that it was intended to secure. Id. See also Ellison v. State, 310 Md. 244, 528 A.2d 1271 (1987).

It is the historic function of the Fifth Amendment to protect an individual from compulsory incrimination through his own testimony. United States v. White, 322 U.S. 694, 701, 64 S.Ct. 1248, 1252, 88 L.Ed. 1542 (1944). In Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 1830, 16 L.Ed.2d 908 (1966), the Court held that the privilege protects an accused "only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature." Id. at 761, 86 S.Ct. at 1830. The Court said that the protection of the privilege "reaches an accused's communications, whatever form they might take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one's papers." Id. at 763-64, 86 S.Ct. at 1832.

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