Family Law Keyed to Weisberg

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Baltimore City Department of Social Services v. Bouknight

Citation. Baltimore City Dep’t of Social Services v. Bouknight, 1989 U.S. LEXIS 3568, 492 U.S. 936, 110 S. Ct. 20, 106 L. Ed. 2d 633, 58 U.S.L.W. 3146 (U.S. Aug. 30, 1989)

Brief Fact Summary. Petitioner was ordered by the court to produce her child, who was deemed a child in need of assistance. Petitioner refused based upon the Fifth Amendment protection against self-incrimination.

Synopsis of Rule of Law. The court may properly request production and return of the child, and enforce this through the contempt power, for reasons related entirely to the child’s well-being and through measures unrelated to the criminal law.

Facts. Petitioner Maurice M. was an abused trial. He was hospitalized at 3 months with a fractured femur, and examination revealed several other partially healed bone fractures. Respondent Bouknight, petitioner’s mother, was observed in the hospital shaking petitioner and dropping him in his crib. Hospital personnel notified Baltimore City Department of Social Services (BCDSS). BCDSS secured a court order removing petitioner from respondent’s control and placing him in a shelter care. He was later returned to respondent’s custody subject to conditions. Eight months later, BCDSS related that respondent would not cooperate with them and had violated the terms of the protective order. They stated that petitioner’s father had recently died in a shooting accident, and that respondent could not provide adequate care for petitioner based upon a psychological examination and her history of drug use. BCDSS officials also petitioned for judicial relief from respondent’s failure to prod
uce petitioner or reveal where he could be found. The juvenile court cited her for violating the custody order and failing to appear at the hearing. The court issued an order to show cause why she should not be held in civil contempt and issued a bench warrant for her appearance. Following a contempt citation, the court directed her be imprisoned until she either produced petitioner or revealed his exact whereabouts. The court rejected respondent’s claim that the contempt order violated the Fifth Amendment’s guarantee against self-incrimination.

Issue. May a mother invoke the Fifth Amendment privilege against self-incrimination to resist an order of the juvenile court to produce her child?

Held. The court may properly request production and return of the child, and enforce this through the contempt power.
The Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself. It applies only when the accused is compelled to make a testimonial communication that is incriminating. Respondent claims the act of production would amount to testimony regarding her control over, and possession of, petitioner, thereby aiding the State in her prosecution.

The possibility that a production order will compel testimonial assertions that prove incriminating does not always justify invoking the privilege to resist production. Respondent may not invoke the privilege because she assumed custodial duties related to production and because production is required as part of a noncriminal regulatory regime.

Precedent has recognized that the privilege may not be invoked to resist compliance with a regulatory regime constructed to effect the State’s public purposes unrelated to the enforcement of its criminal laws. This precedent is applicable in this case. Once petitioner was adjudicated a child in need of assistance, his care and safety became the particular object of the State’s regulatory interests. Respondent submitted to the routine operation of the regulatory system and agreed to hold petitioner in a manner consistent with this system. She also accepted the obligation to permit inspection. The court may properly request production and return of the child, and enforce this through the contempt power, for reasons related entirely to the child’s well-being and through measures unrelated to the criminal law.

The Court is not called upon to define the precise limitations that may exist upon the State’s ability to use the testimonial aspects of respondent’s act of production in subsequent criminal proceedings, but such limitations are not foreclosed.

Discussion. The Court held that the respondent could not ignore a court order demanding production of her child based upon the Fifth Amendment, but the use of the testimonial aspects of this production may be limited in subsequent criminal proceedings.