Welfare of J.W., Matter of

• Decision Date: 04 December 1987
• Docket Number: C5-87-194,Nos. C9-87-165,s. C9-87-165
• Parties: In the Matter of the WELFARE OF J.W. and A.W.
• Court: Minnesota Supreme Court

Page 879

415 N.W.2d 879

In the Matter of the WELFARE OF J.W. and A.W.

Nos. C9-87-165, C5-87-194.

Supreme Court of Minnesota.

Dec. 4, 1987.

Syllabus by the Court

1. The trial court's findings and explanation for its family treatment plan comply sufficiently with statutory requirements.

2. That part of a court-ordered treatment plan requiring the parents to explain a child's death violates the parents' privilege against self-incrimination; the privilege does not, however, prevent the parents from incurring the possible adverse consequences of failure to undergo effective rehabilitative therapy.

Warren R. Sagstuen, Asst. Public Defender, Minneapolis, for Mother. Thomas H. Shiah, Minneapolis, for Father.

Ann Stiehm Ahlstrom, Asst. Co. Atty., Minneapolis, for Hennepin County.

Randy Decker, Wright Walling, Minneapolis, guardian ad litem.

Heard, considered, and decided by the court en banc.

SIMONETT, Justice.

This appeal raises questions about the protection to be afforded parents of neglected children who invoke their Fifth Amendment privilege with respect to a court-ordered treatment plan requiring them to make incriminating disclosures as part of their rehabilitation therapy. We reverse, noting, however, that the privilege does not protect against the possible adverse consequences of a failure to undergo effective therapy.

The case is here for the second time. The parents' first appeal was from the trial court's decision finding their two children to be dependent and neglected. We affirmed that decision. Matter of Welfare of J.W., 391 N.W.2d 791 (Minn.1986), cert. denied, --- U.S. ----, 107 S.Ct. 899, 93 L.Ed.2d 850 (1987). This appeal is from the trial court's rehabilitation treatment plan following the disposition hearing.

The facts may be briefly stated. The appellant parents have two children, J.W. and A.W. In mid-March 1984, when J.W. was 2 1/2 years old and A.W. was 1 1/2, the parents were also taking care of another child, their 2-year-old nephew. On March 15, appellants brought the nephew to the hospital suffering from a severe blow to the abdomen. The injury, causing massive internal hemorrhaging, proved fatal. Hennepin County took immediate measures to have J.W. and A.W. placed in temporary foster care.

When questioned about the nephew's death in pretrial depositions, the parents invoked their constitutional privilege against self-incrimination. At the dependency and neglect hearing in November 1984, the court imposed discovery sanctions for the parents' failure to answer the deposition questions. The matters questioned about were deemed admitted and the parents were prohibited from presenting evidence or examining adverse witnesses on the matters deemed admitted. The court found that the fatal abdominal blow had not been accidentally inflicted and had required the strength of an adult; that the child had been with no adults other than the parents, who said they had observed nothing unusual; that the parents had withheld from the hospital an accurate medical history of the nephew's injury; that the parents had a history of violence with each other; and that either or both parents were responsible for the nephew's death. The trial court found that J.W. and A.W. were at high risk for physical abuse in the family home and both parents had demonstrated inability to protect the children. J.W. and A.W., therefore, were declared to be dependent and neglected under Minn.Stat. Sec. 260.015, subds. 6(d), 10(b) (1984). Legal custody was awarded to Hennepin County and the two children were placed in foster care pending further order. The hearing on a disposition plan was continued pending the parents' appeal from the neglect determination. On appellate review it was held that the court's discovery sanctions did not offend either the constitutional privilege against self-incrimination or due process. Matter of Welfare of J.W., supra. ¹

On October 14, 1986, about 2 years after the first hearing, the trial court held the disposition hearing. The court adopted the family rehabilitation program recommended by Hennepin County. The court ordered the parents to have separate psychological evaluations and to follow the recommendations contained in the evaluations; to attend and successfully complete domestic abuse counseling; to participate in a parents' education group; and to sign releases of information for all professionals involved. The order provided that the children remain in foster care "until all of the above goals are met." The parents were given visiting rights.

The court-ordered treatment plan, however, contained one further provision, which has resulted in this second appeal. The order requires the parents not only to obtain psychological evaluations, but "[s]uch evaluations will include the explanation of the death of [the 2-year-old nephew], consistent with the medical findings."

At the disposition hearing, the state's attorney inquired of the parents whether they would undergo the psychological evaluations as ordered. If not, "[i]t would be our intention," stated the attorney, "to file a [parental] termination, and I think it's only fair for the parents to know that * * *." The parents, however, have continued to assert their Fifth Amendment privilege. On appeal, they claim that the disposition order violates their constitutional right against compelled self-incrimination because they are being penalized with the threat of losing their children as the price for invoking the Fifth Amendment. They also claim that the disposition order lacks proper findings.

The parents having appealed to the court of appeals, the respondent county petitioned for accelerated review by this court. We granted the petition.

I.

Dispositions of children determined to be neglected and dependent are governed by Minn.Stat. Sec. 260.191 (1986) and by Minn.R.P.Juv.Ct. 62. Subdivision 1a of the statute requires any disposition order to contain written findings of fact to support the disposition and to explain in writing why the order serves the best interests of the child and what alternative dispositions were considered and why discarded. The appellant parents first contend that the trial court's disposition order fails to follow these statutory requirements. See Matter of L.K.W., 372 N.W.2d 392 (Minn.App.1985).

The court's order does not expressly discuss alternative treatments considered nor does it have findings on why, after the passage of 2 years, J.W. and A.W. must remain separated from their parents. We think the court's decision sufficiently complies with the law. The trial court's order incorporates by reference its 1984 order which concluded that one or both of the parents was directly responsible for the violent death of the nephew. In its memorandum the court also indicates why the parents' proposed disposition was rejected. Although a more extensive statement of the reasons for the decision would have been preferable, we cannot say that the court's disposition order is clearly erroneous or fails to meet minimal statutory requirements.

II.

If the parents comply with the court's order to explain to the psychologist the death of their 2-year-old nephew consistent with the medical findings of an intentional, severe blow to the child's abdomen, they may be incriminating themselves and be liable to criminal prosecution. ² On the other hand, if the parents invoke their constitutional privilege against self-incrimination, they may, as they point out, lose their children. The parents contend, therefore, that the order requiring them to choose between their constitutional privilege and their children is in violation of their Fifth Amendment rights.

The Minnesota Court of Appeals recently had the same issue before it. See Matter of Welfare of S.A.V., 392 N.W.2d 260 (Minn.App.1986). There the disposition order required the parents to acknowledge the causes of their children's injuries. A divided court of appeals panel upheld the order against the parents' claim that they were being penalized for invoking their privilege against self-incrimination. The court held that the parents' claim was premature; that no penalty was involved because the state had not yet threatened the parents with sanctions for refusing to waive the privilege. The court went on to say, in dictum, that if at some later time parental rights were terminated, this would not be "a sanction for exercise of a constitutional right, but simply the necessary result of failure to rectify parental deficiencies." Id. at 264. The trial court in this case relied on S.A.V. and the state urges us to do the same.

"[W]hen a State compels testimony by threatening to inflict potent sanctions unless the constitutional privilege is surrendered, that testimony is obtained in violation of the Fifth Amendment * * *." Lefkowitz v. Cunningham, 431 U.S. 801, 805, 97 S.Ct. 2132, 2135, 53 L.Ed.2d 1 (1977). The threat itself must be real and imminent. In Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984), for example, the defendant had made incriminating statements of another crime to his probation officer because he understood, as a condition to his probation, that he had to be truthful with the officer. The United States Supreme Court held there was no threat of a penalty in this situation because the probation officer had not told the defendant his probation would be revoked if he refused to make the incriminating disclosures. Because the state had not taken this "extra, impermissible step," the defendant's privilege did not protect him. Indeed, it was the state's position in Murphy that assertion of the privilege would not have been grounds for revocation of probation.

In this case, the state's attorney expressly stated for the record that if the parents persisted in invoking their constitutional privilege, "[i]t would be our intention to file a termination." ³ This threat is genuine, direct, and immediate, and the penalty threatened is a...