In Re: Ariel G.

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In re: Ariel G., No. 9, Sept. Term, 2004. Opinion by Harrell, J. CRIMINAL LAW & PROCE DURE - FIFTH AMEND MENT - PRIVILEGE AGAINST SELF-INCRIMINATION - REFUSAL BY PARENT TO TESTIFY CONCERNING WHEREABOUTS OF CHILD The mother of a child wa s held in con tempt for re fusing to tes tify in a CINA p roceeding about the last known whereabouts of her child, fearing that her testimony wo uld implicate her in the disapp earance o f the child fr om his fo ster home . At the time of the various contempt findings, a kidnapping charge was outstanding agains t the mo ther. The contempt order violated the mother s Fifth Am endmen t rights agains t self-incrimin ation. In orde r to invoke the Fifth Amendment, an individual s statement must be compelled, testimonial, and self-incriminating. Although a court may compel the production of evidence, it may not compel a person to testify about the w hereabou ts of such e vidence if the testimony would be incriminating. The Baltimore City Department of Social Services (BCDSS) claimed that the mother could be compelled to testify because her refusal interfered with the operation of a noncriminal regulatory regim e, citing Baltimore City Department of Social Services v. Bouknight, 493 U.S. 549, 110 S. Ct. 900, 107 L. Ed. 2d 992 (1990). When the compelled statements fall within the central scope of the Fifth Ame ndment, name ly that they are testimonial and poten tially incriminating, the operation of a civil regulatory regime can not trump the assertion o f the Fifth A mendm ent right. Eve n though the BCD SS relied on the best interest of the child, such an interest cannot override an individu al s Fifth Amendment rights. If the State w ishes to com pel an indiv idual to testify w ithout infringing on that individu al s F ifth A men dme nt rig hts, it sho uld s eek a gran t of u se im mun ity. Circuit Co urt for Baltim ore City Case # 896262001 IN THE COURT OF APPEALS OF MARYLAND No. 9 September Term, 2004 IN RE: ARIEL G. Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Harrell, J. Filed: October 5, 2004 On 17 September 1996, the Baltimore City Department of Social Services (BCDSS) took then five year old Ariel G. into pro tective c ustody fr om his mothe r, Teres a B. BCDSS promptly filed a petition in the Circuit Court for Baltimore City alleging that Ariel was a Child in Need of Assistance (CINA) based on his mother s refusal to provide h im with appropriate medical treatment for his severe asthma. After the court entered an order placing Ariel in protective custody, but before an adjudicatory hearing could be held, Teresa abscond ed with A riel. After three and a half years of eluding the authorities, Teresa was found and arrested on 27 March 2000. Although she refused to disclose Ariel s wh ereabouts, h e subsequ ently was found and committed by the court to B CDSS u nder an order of sh elter care. The court found Teresa in direct contempt for preventing the court from exercising its jurisdiction over Ariel. She also later was convicted of a violation of the terms of her probation.1 Later that year, the court found Ariel to be a CINA and place d him in a foster home in Carroll C ounty. Ariel rem ained in the foster home until the morning of 9 January 2001, when the foster pa rents discov ered that A riel was missing fro m his bed room. A ttempts to locate his mother were unsucce ssful, and it was widely speculated that Teresa again had fled with Arie l. Over the next few months the juvenile court held hearings during which evidence was adduced that, if believed, strongly indicated that Teresa was involved in Ariel s latest disappearance and that Ar iel was with he r curren tly. In fact, the pro secutor in C arroll Coun ty 1 On 19 January 2001, the Court of Special Appeals, in an unreported opinion, overtu rned th e conv iction fo r direct c ontem pt and th e violatio n of pr obation . charged Teresa with kidnapping.2 In addition, the State charged her with constructive criminal contempt for conduct unrelated to Ariel s 9 January 2001 disappearance.3 Teresa was apprehended once more and jailed in Baltimore City pending a bail hearing. Ariel s w hereab outs, ho weve r, were unkno wn. On 3 August 2001, the C ircuit Court for Baltimore City held a bail hearing. The court instructed Teresa s counsel in the CINA case to appear with Teresa at a hearing that afternoon. The court, now sitting as a juvenile court, directly questioned Teresa concerning Ariel s whereabouts. Teresa refused to answer, claiming that she was not required to do so based on her Fifth Amendment privilege against self-incrimination. The court found Teresa in direct contempt and ordered her detained until she purged herself of the contempt by disclosing Ariel s whereabouts. The court periodically brought her back over the ensuin g month s, but each tim e she refus ed to answer questions concerning Ariel s whereabouts, resulting in her continued incarceration. On 5 June 2002, Teresa was brought before the juvenile court once more and given the opportunity to purge her contempt by disclosing the whereabouts of Ariel. Teresa responded by indicating that, because she had been detained for the last ten months, she no longer had kno wledge a s to Ariel s present location. The court then s uggested Teresa co uld purge the contempt by disclosing where she was the last time she saw Ariel prior to her 2 At the time of oral argument in the present case, we were informed that the kidnapping charge against Teresa remained pending. 3 This charge was ba sed on Teresa s interf erence with a master s shelter care ord er. Although Teresa was convicted of this offense also, the Court of Special Appeals reversed the con viction i n anoth er unre ported opinio n filed 1 2 Nov embe r 2003 . 2 capture an d confine ment. Teresa refused to answer this question, invoking again her right against self-incrimination. After Teresa refused once more at a hearing on 26 September 2002 to disclose any information concerning her child s whereabouts, Ariel nonetheless was found b y BCDSS and plac ed w ith re lativ es. T eres a wa s rele ased from custody. 4 Teresa appealed to the Court of Special Appeals from the Circuit Court s 5 June 2002 order finding her in contempt for her refusal to answer questions concerning the last known whereab outs of Ariel. 5 On 10 December 2003, the intermediate appellate court reversed the decision of the juvenile court, concluding that Teresa had a Fifth Amendment privilege to refuse to answer questions regarding her knowledge of Ariel s w hereab outs. In re Ariel G., 153 Md. App. 698, 712-13, 837 A.2d 1044, 1052 (200 3). The C ourt of Sp ecial App eals reasoned that the kidnapping ch arges pending against Teresa in Carroll County presented reasonab le cause to apprehend danger from a direct answer to such questio ns. Id. BCDSS sought review in the C ourt of Appe als by wr it of certi orari, w hich we g ranted on 8 April 2004. In re Ariel G ., 380 Md. 617, 84 6 A.2d 401 (2 004). 6 4 Although Teresa was released from custody, she retained a right of appeal as to the contempt determination because Maryland law allows individuals to appeal from a contempt finding despite having been released from the imprisonment brought about by the c ontempt. Droney v. Droney, 102 M d. App . 672, 68 1-82, 6 51 A.2 d 415, 4 19-20 (1995 ). 5 Although the juvenile court held Teresa in contempt on several occasions over the relevant 13 mon th period, the Court of Special Appea ls held that T eresa s app eal was tim ely only as to the 5 June 2002 o rder. In re Ariel G., 153 Md. App. 698, 705-06, 837 A.2d 1044, 1048 ( 2003) . 6 The sole question posed in BCDSS s petition for certiorari was: Did the Court of Special Appeals misconstrue Baltimor e City De partmen t of Social Se rvices v. Bouknight, 493 U.S. 549[, 1 10 S. Ct. 900, 107 L. Ed. 2d 992] (199 0), in holding that a juven ile court, in (contin ued...) 3 I. The Fifth Amendment to the United States Constitution provides that No person ... shall be compelled in any criminal case to be a witness against himself. U.S. Const. Amend. V. In order to invoke suc cessfully the protection of the Fifth A mendmen t, an individual s statement must b e com pelled, te stimon ial, and s elf-incr iminatin g. Fisher v. U.S., 425 U.S. 391, 408, 96 S. Ct. 1569, 1579, 48 L. Ed. 2d 39 (1976) (stating that the Fifth Amendment applies only when the accused is compelled to make a testimonial commu nication that is incriminating ). This right ag ainst self-incrim ination is based on the conviction that too high a price may be paid even for the unh ampered enforcem ent of the c riminal law and that, in its attainment, other social objects of a free socie ty should not be sacrificed. Hoffman v. U.S., 341 U.S. 479, 486, 71 S. Ct. 814, 818, 95 L. Ed. 1118 (1951) (citations omitted). To accomplish this aim, the Fifth Amendment allows an individual to refuse, without threat of punishm ent, to respond to questions the answers to which not only would support a criminal conviction, but also those that would furnish a link in the chain o f evidenc e needed to prosecute the claimant for a ... crime. Id. Although the Fifth Amendment only mentions criminal proceedings, the Supreme Court has held that the right can be claimed in any proceeding, be it criminal or civil, admin istrative or judic ial, investig atory or ad judicato ry. In re Gault, 387 U.S. 1, 47, 87 S. Ct. 1428, 1454, 18 L. Ed. 2d 527 (1967 ) (quoting Murphy 6 (...continued) exercising its jurisdiction for the protection of a child who has been found to be a Child in Need of Assistance, cannot compel the parent of the child to reveal the child s wh ereabouts when the child is missing? 4 v. Waterfront Commission, 378 U.S. 52, 94, 84 S. Ct. 1594, 1611, 12 L. Ed. 2d 678 (1964) (White, J., concurring)). 7 As a threshold matter, it is clear tha t the questions posed to Teresa at the several pertinent hearings in the Circuit C ourt, including the question posed at the 5 June 2002 hearing, all had the p otential, if answered, to implicate her in the charged crime of kidnapping Ariel. 8 The Supreme Court has held that to invoke the right against selfincrimination, it need only be evident from the implications of the question, in the setting in which it is asked , that a res ponsiv e answ er ... might be dangerous because injurious disclosure could result. Hoffman, 341 U.S. at 486-87, 71 S. Ct. at 818, 95 L. Ed. 1118. 7 In certain situations in certain civil proceedings in Maryland courts, such as when a party in a divorce case invoke s the Fifth Amen dment rather than answ er a question regarding whether he or she committed adultery, there may be adverse consequences short of incarceration, such as the drawing of an adverse infe rence where the inform ation soug ht is material to the proceed ings. See Robinson v. Robinson, 328 Md. 507, 515-18, 615 A.2d 1190, 1194-96 (1992) (holding that invocation of Fifth Amendment in response to questions conce rning a dultery allo wed c ourt to ta ke adv erse inf erence in child c ustody m atter). 8 Because the kidnapping statute, Md. Code (2002), § 3-502 of the Criminal Law Article, explicitly excludes situations in which a minor child is abducted by the child s parent, we presume that the Carroll County prosecutor charged Teresa under Md. Code (2002), § 3-503 of the Crimin al Law A rticle. Section 3 -503 desc ribes the crim e of child kidnappin g: A per son may no t, without co lor of right: (i) forcibly abduct, take, or carry away a child under the age of 12 years from: 1. the home or usual place of abode of the child; or 2. the custody and control of the child s parent or legal guardian; (ii) without the consent of the child s parent or legal guardian, persuade or entice a child under the age of 12 years from: 1. the child s home or usual place of abode; or 2. the custody and control of the child s parent or legal guardian; or (iii) with the in tent o f dep rivin g the child s pa rent or legal g uard ian, o r any person lawfully possessing the child, of the custody, care, and control of the child, knowin gly secrete or harb or a child under t he age of 12 yea rs. 5 Although it is not certain on this record who, if anyone, assisted Ariel in eloping from the foster home in Carroll County during the early morning hours of 9 January 2001, BCDSS and the State s Attorney s Office for Carroll County clearly believed that Teresa was responsible. At the time of the hearing on 3 Augu st 2001 in the Circuit Co urt for Baltimore City, when Teresa was first questioned about her son, the trial judge was aware that she was wanted by Carroll County police on an arrest warrant issued a s a result of h er alleged inv olvemen t in Ariel s d isappe arance . Because of the pending kidnapping charges, Teresa had reasonable cause to apprehend danger from a direct answer to the court s question conc erning Ariel s whereabouts. Hoffman, 341 U.S. at 486, 71 S. Ct. at 818, 95 L. Ed. 1118. Questioning Teresa as to the location, or even the last known location, of Ariel possessed the potential for demonstrating her culpab ility in the alleged kidnapping . Although the juven ile court s primary objective was to determine A riel s location f or his safety, it wa s clear that his mother s statements n ot only could b e used to loc ate the child, b ut also to gath er evidence for law enforcement purposes as to how Ariel left the f oster hom e. Such ev idence co uld then be used to discover what role Teresa may have had in Ariel s disappearance. Furthermore, the threat of prosecution was not hollow or speculative, but rather immedia te and ce rtain. See Cho i v. State, 316 M d. 529, 5 36-37 , 560 A.2d 1108, 1111-12 (1989). The Carroll County prosecutor, through the procurement of an arrest warrant, took 6 affirmative steps to prosecute Teresa for kidnapping her son.9 Even though her testimony was being compelled in a civil juvenile proceeding, Teresa was well aware that any information she provid ed to the juv enile court m ight be used against her in a subsequent criminal trial on the pending kidnapping charge in Carroll County. Her invocation of her Fifth Amendment right was justified. II. BCDSS, howev er, argues tha t this Cou rt sho uld a pply Baltimore City Department of Social Services v. Bouknight, 493 U.S. 549, 110 S. Ct. 900, 107 L. Ed . 2d 992 (1 990) to conclude that the Fifth Amendment does not a pply to proceedings in which the location of a child foun d to be CIN A is at issue. We find the reasoning in Bouknight to be inapplic able to the circumstances of the present case. In Bouknight, a mother refused a court order to produ ce her c hild. Id. at 552, 110 S. Ct. at 903-04, 107 L. Ed. 2d 992. The child had been declared a CINA, based on the mother s consistent physical abuse, and was placed under the oversigh t of BC DSS . Id. at 551-52, 110 S. Ct. at 903, 107 L. Ed. 2d 992. Despite reservations, BCDSS agreed to allow the mother, Jac queline B ouknigh t, to continue as the physical custodian of the child, subject to certain conditions placed upon her by a court-a pprov ed prot ective su pervisio n order . Id. at 552, 110 S. Ct. at 903, 107 L. Ed. 2d 992. When BCDSS later learned that Bouknight was 9 Although the Carroll County prosecutor s theory is not clear in the record, the kidnapping charge w as apparen tly based on the supposition that although Ariel may have left the foster hom e by his own will, he may have returned to his mother, and she had a duty to return him to foster care. 7 violating the terms of the protective order, it petitioned the court to remove the child from Bouknight for placem ent in a f oster ho me, w hich pe tition the court g ranted. Id. at 552-53, 110 S. Ct. at 903-04, 107 L. Ed. 2d 992. Bo uknight, howev er, refused to produce the child or reveal to BCD SS the location of the c hild. Id. at 553, 110 S. Ct. at 904, 107 L. Ed. 2d 992. After several hearings at which Bouknight persisted in refusing to produce the child, the juvenile court found Bouknight in contempt and ordered that she be confined until she either produ ced the child or reveale d his w hereab outs. Id. The Supreme Court held that the Fifth Amendment could not be invoked s uccessfu lly to resist the order of the court to prod uce the child. Id. at 555, 110 S. Ct. at 905, 107 L. Ed. 2d 992. Producin g the child p ursuant to a court order , the Court h eld, was no t a sufficiently testimonial communication and therefore f ell outside the bounda ries of the F ifth Amendm ent s protecti ons. Id. at 554-59, 110 S. Ct. at 905-07, 107 L. Ed. 2d 992. Furthermore, the Court held that when an individual is subject to a non-crim inal regulatory regime, such as a CINA juvenile proceeding, that individual m ay not rely on the F ifth Amendment to resist an ord er that furthe rs the objectiv es of the regulatory regim e. Id. at 555-56, 110 S. Ct. at 905, 107 L. Ed. 2d 992. Because Bouknight explicitly had consented to the conditions placed upon her by BCDSS at the time it approved her continuance as the physical custodian, the Court held that Bouknight w as subject to the regulatory regime of the BCDSS and thus her ability to invoke the Fifth Amendment was reduced. Id. at 558, 110 S. Ct. at 906, 107 L. Ed. 2d 992. 8 A. Although Bouknight, at first blush, may appear similar factually to the present case, its reasoning is not applicable to the present ca se. First, in the pre sent case, the juvenile court s contempt order w as not based on T eresa s failure to produce Ariel, but rather upon her failure to testify regarding her knowledge of his whereabouts, first couched in the present tense and later framed in terms of the relatively near past. The Supreme Court long ago held that the Fifth Amendment is inapplicable to a court order requiring the production of docume nts or other tangible objects. See Fisher, 425 U.S. at 409, 96 S. Ct. at 1580-81, 48 L. Ed. 2d 39 (holding that the disclosure of tax documents in the possession of an attorney did not violate the Fifth Am endmen t even thou gh the doc uments co ntained po tentially incriminating information). Although in very limited circumstances the act of production may be testimonial in nature and be aff orded F ifth Am endm ent pro tection, U.S. v. Doe, 465 U.S. 605, 613, 104 S. Ct. 1237, 1242, 79 L. Ed. 2d 552 (1984), the Supreme Court held that the custodian of an object may not withhold it based upon the incrimination that may result from the contents or nature of the thing demanded. Bouknight, 493 U.S . at 555, 110 S. Ct. at 905, 107 L. Ed. 2d 992. In Bouknight, the object demanded was a child, and the Court held that the act of producing that child was not a testimonial communication, but rather an act of production that fell outs ide the F ifth Am endm ent s pro tection. Id. at 554-59, 110 S. Ct. at 905-07, 107 L. Ed. 2d 992. 9 Teresa, howev er, was no t held in contempt for her failure to produce Ariel, but rather for her refusal to give a purely testimonial communication. At the time of the 5 June 2002 hearing, the juvenile court appeared satisfied that she may not be aware of the present whereab outs of Ariel due to the fact that she had been incarcerated for the previous ten months. Nonetheless, the court surmised that the circumstances of her last contact with Ariel might be of assistance to the authorities in determining his present location. Although Teresa may have bee n required to produce Ariel if he w as within her control, compe lling her to inform the court of the whereabouts of the subject of the production order is foreclosed by the Fifth Amendment, if properly asserted as here. See U.S. v. Hubbe ll, 530 U.S. 27, 34-35, 120 S. Ct. 2037, 2042, 147 L. Ed. 2d 24 (2000) (holding that there is a significant difference between the use of compulsion to extort communications from a defendant and compelling a person to e ngage in c onduct tha t may be incrim inating ); Curcio v. U.S., 354 U.S. 118, 123-24, 77 S. C t. 1145, 1149, 1 L. Ed . 2d 1225 (1957 ). In Curcio, the Supreme Court held that a custod ian of corp orate records could not be compelled to testify regarding th e wherea bouts of documents that the custodian was required to produce pursuan t to a court order. 354 U.S. at 128, 77 S. Ct. at 1151-52, 1 L. Ed. 2d 1225. Although the Fifth Amendment does not allow a custodian to withhold incriminating documents, the privilege d oes shield a custodian f rom being compelle d to give incriminating testimony about the documen ts, includ ing their location . See id. (stating that forcing the custodian to testify orally as to the w hereabou ts of nonp roduced records ... is contrary to the 10 spirit and lette r of the F ifth Am endm ent ). T herefo re, even if Ariel was within T eresa s custody or control, the court could not overco me the pro per assertion of her Fifth Amendment right and co mpel her to testify about the location of the child. Like the custodian in Curcio, Teresa could not be compelled, by threat of incarceration, to condemn [herself] by [her] own oral testimony in giving incriminating information relating to Ariel s where abouts . Id. at 124, 7 7 S. Ct. a t 1149, 1 L. Ed. 2 d 1225 . B. In Bouknight, the Supreme Court also concluded that because the mother consented to the conditions imposed by BCDSS on the retention of her physical custody of the child, Bouknight subjected h erself to the routine operation of the regulatory system and therefo re her ability to inv oke the Fifth A mend ment w as redu ced. 493 U.S. at 558, 110 S. Ct. at 906, 107 L. Ed. 2d 992. In the present case, however, Teresa did not consent to the court s or BCDS S s jurisdiction over Ariel and never agreed to any terms that would allow her to retain any degree of lawful cu stody over A riel. Teresa, unlike Bouknight, may not be said to have submi tted to th e regula tory regim e of the BCD SS. Nonetheless, BCDSS argues that Bouknight reaffirms and even extends the holding of California v. Byers, 402 U.S. 424, 91 S. Ct. 1535, 2 9 L. Ed. 2d 9 (1971) th at the ability to invoke the [Fifth Amendment] privilege may be greatly diminished when invocation would interfere with the effective operation of a generally applicable, civil regulatory require ment. Bouknight, 493 U.S. at 557, 110 S. Ct. at 9 06, 107 L. Ed. 2d 992. The 11 compelle d disclosure s in Bouknight and Byers, however, are fundamentally different from those sought in the present case. In Byers, the Suprem e Court up held a Ca lifornia statute that required drivers of motor vehicles involved in accidents to stop at the scene and provide their names and addresses. 402 U.S. at 434, 91 S. Ct. at 1541, 29 L. Ed. 2d 9. The Court held that the requirements of the statute were part of a regulatory scheme that was not intended to facilitate criminal convictions but to promote the satisfaction of civil liabilities arisin g from au tomobile accide nts. Id. at 430, 91 S. Ct. at 1539, 29 L. Ed. 2d 9. Conceding that it was possible that the act of stopping and revealing one s name and addr ess at the scen e of an ac cident cou ld be incriminating, the Court nonetheless reasoned that the statute s requirements did not implicate the Fifth Amendment because the act of stopping was not a testimonial act10 and that the disclosure of one s name and addres s was an esse ntially neu tral act. Id. at 431-32, 91 S. Ct. at 1539-40 , 29 L. Ed. 2 d 9; See also H iibel v. Sixth Judicial Dist. Court, __ U.S. __, 124 S. Ct. 2451, 2461, 159 L. Ed. 2d 292 (2004) (upholding a regulatory statute requiring individuals, when a sked to do so, to give their name to police officers based on reasoning that [a]nswering a request to disclose a name is likely to be so insignificant in the scheme of things as to be incriminating on ly in unusual circumstances ). In the present case, it is quite clear that requiring Teresa to testify about her 10 The Court explained that the act of stopping one s vehicle at the scene of an accident was less testimonial than requiring a person in custody to stand or walk in a police lineup, to speak proscribed words, or to give samples of handwriting, fingerprints, or blood. Byers, 402 U .S. at 431 -32, 91 S. Ct. at 1 539-4 0, 29 L . Ed. 2d 9 (citatio ns omi tted). 12 knowledge of Ariel s w hereabou ts is completely testimonial and not an essentially neutral act. See Hubbe ll, 530 U.S. at 37 n.19, 120 S. Ct. at 2044 n.19, 147 L. Ed. 2d 24 (quoting Doe v. U.S., 487 U.S . 201, 209, 1 08 S. Ct. 2341, 2347, 101 L. Ed. 2d 184 (1988) (stating that in order to be testimonial, an accused s com mun ication m ust itself, exp licitly or im plici tly, relate a factual assertio n or disc lose inf ormatio n ). The mere existenc e of a civil regulatory system may not trump the essenc e of the Fifth Am endment - to foreclose situations where individuals are compelled to give incriminating testimony. Bouknight, 493 U.S. at 561, 110 S. Ct. at 908, 107 L. Ed. 2d 992. The Court in Bouknight held that a parent may not rely on the Fifth Am endmen t primarily becau se the act of producin g a child, thou gh potenti ally incriminating, was no different than the production of incriminating tax records or corpora te documents. Id. at 559-61, 110 S. Ct. at 907-08, 107 L. Ed. 2d 992. Although the Bouknight Court relied in its reasoning, to a degree, on the existence of a noncriminal regulatory regime, it held that the result would have been different had the juvenile court sought to compel incriminating testimony rather than the produ ction of ev idence, or in this case, the child. Id. at 561, 110 S. Ct. at 908, 107 L. Ed. 2d 992 (stating that a noncriminal regulatory system may neither compel incriminating testimony nor aid a criminal prosecution ). Furthermore, the reasoning in Byers was not based on the incriminating nature of the m otorist s statements, but rather on the rationale that the disclosures required by the statute were not testimonial nor inherently incriminating and, therefore, did not fall within the protective penumbra of the Fifth Amendment. 402 U.S. at 431-32, 91 S. Ct. at 1539-40, 29 L. Ed. 2d 9. 13 The primary distinction between Bouknight and Byers on the one hand and the present case is that the compelled stateme nt sought from T eresa meets the threshold test fo r a situation where the Fifth Amendment may be invoked prop erly, namely, the information sought was compelled, testimonial in nature, and bore a sufficient likelihood of being incriminatin g. Furthermore, Teresa did not subject herself volun tarily to the regulatory scheme of the BCDSS, and she obviously feared the potential use of her responses in the pendin g crimin al proce eding. Bouknight counsels us that the Fifth A mendm ent retains its vigor, despite the existence of a regulatory regime, when the compelled disclosures are of the type normally covered by the Fifth Amendment. 493 U.S. at 561, 110 S. Ct. at 908, 107 L. Ed. 2d 992. At most, the existence o f a regulato ry regime acts to narrow the applicability of the Fifth Amendment. Nonetheless, when the operation of a regulatory regime demands testimo ny that ma y be incrim inating, t he Fifth Ame ndme nt may be invoke d. III. Although we conclude that Teresa was entitled to refuse to answer the inquiries of the court, our holding does not carry with it any blessing of Teresa s role, if any, in spiriting Ariel from foster care. When a child is taken properly into State custody to prevent further abuse, it is imperative that the State do all within its power to ensure that the child is provided with a safe and health y environme nt. See Bouknight, 493 U.S. at 559, 110 S. Ct. at 907, 107 L. E d. 2d 992 (stating that on ce the child is adjudicated a [CINA], his care and safety [become] the particular object of the S tate s regulato ry interests ). By fleein g with 14 Ariel, if she did, Teresa denied the State the opportunity to provide the child with proper medical treatment, and in turn she, at the least, may have denied Ariel his right to be healthy and to r eceive a prope r educa tion. The State argues that the societal interest in protecting children tran scends the Fifth Amendment privilege against self-incrimination and cannot be a barrier to compelling the disclosure of information nece ssary to protec t hum an lif e. V iscerally a nd emotiona lly, this is an argument of some persuasive force. Although it is true that the interest in protecting children, especially children in the custody of the State, is an ex tremely impo rtant interest, however, such an interest does not justify abandonment of our constitutional foundations. See in re Gau lt, 387 U.S. at 47, 87 S. Ct. at 1454, 18 L. Ed. 2d 527 (stating that the language of the Fifth Amendment ... is unequivocal and without exception. And the scope of the privilege is compre hensive. ). T he availability of th e right again st self-incrimination depends not on what is at stake for the courts or society at large, but what is at stake for the potential defendant. Therefore, when a court demands incriminating testimony, the subject matter or type of proceeding, whether it be juvenile or criminal, does not diminish the force and ap plicabilit y of the rig ht again st self-in crimina tion. Id. Several other courts have addressed whether the assertion of the right against selfincrimination should be balanced against the S tate s interest in protecting abused or missing children. See, e.g., In re J.A., 699 A.2d 30, 31 (V t. 1997); In re Welfare of J.W., 415 N.W.2d 879, 882-83 (Minn. 1 987); In re Amanda W., 705 N.E.2d 724, 727-28 (O hio Ct. App. 199 7). 15 These cases dem onstrate that while th e courts m ust make e very effort to p rotect the intere sts of children, they m ust do so w ithin constitutional limits. For ex ample , In re Welfare of J.W. concerned whether the State could deny custody to a couple of their children based on the couple s refusal, grou nded in the Fifth Am endmen t, to engage in court-ordered therapy that would require them to make incriminating admissions about the abuse of a nephew. 415 N.W.2d at 883. The M innesota Supreme Court held that the State could not compel therapy treatment that would require the c ouple, by their o wn wo rds, to incrimin ate them selves. Id. at 883. Although the court made special effort to consider the best interests of the children, it ultimately held th at the ability to assert a constitutional right should not yield to the fulfillment of a course of action that may be in the bes t interests of a ch ild. Id. at 883-84. Likewise, the State here m ay not rely on a be st interests of A riel argum ent to compel Teresa to incrim inate he rself. She was not offered or granted use immunity for her role, if any, in Ariel s disappearance on 5 June 2002.11 Once a recalcitrant parent is granted use immunity, the threat of using his or her statement against that person is lifted and the parent must testify or face contempt of court charges. The court may then punish a parent who refuses to testify without offending the constitutional guarantees of the Fifth Amen dment. See Kastigar v. U.S., 406 U.S. 441, 453, 92 S. Ct. 1653, 1661, 32 L. Ed. 2d 212 (1972) (stating that immunity from use and derivative use is coextensive with the scope of 11 Md. Code (1973, 2002 Repl. Vol.), § 9-123 of the Courts and Judicial Proceedings Article allows a prosecutor to see k a grant of use immunity from the court when the testimony of a witness may be n ecessary to the public interest or the prosecutor anticipates that the witn ess will invo ke the Fifth Amen dment. 16 the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege ). In doing so, the court balances its interest in prosecuting unlawful conduct and providing for the welfare of abused and missing children, all while respecting the acc used s constitu tional rig hts. All that the Fifth A mendm ent requires is that a crimina l defenda nt not be fo rced to give testimony that could be used to incriminate himse lf or herself. T he State is fre e to pursue kidnapping charges against Teresa, but it must do its own homework. The State may not force Teresa to condemn herself any more than the State m ay force the co mmon thief to be a w itness ag ainst him self or h erself. JUDGMENT OF THE COURT OF SPECIAL APPEALS AFF IRM ED. COSTS TO B E PAID BY PETITIONER. 17

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