Trial Court Violated Father’s Fifth Amendment Right By Condition Reunification On His Child Abuse Admission

Emergencies can arise in child welfare cases - and that is exactly what happened in In re Blakeman.

The father in Blakeman was being kept out of his home and away from his four children pursuant to an Ingham County trial court order, which was contrary to the recommendations of Children’s Protective Services (CPS) case workers.

Speaker Law Firm filed an emergency application on the father’s behalf with the Michigan Court of Appeals on January 5, 2018 and requested a decision by January 30, 2018. The Court of Appeals granted leave in February 2018 and the case proceeded to briefing and oral argument.

The Court of Appeals ultimately vacated the trial court’s decision in an October 2018 published opinion. The Court of Appeals held that the father’s Fifth Amendment constitutional right against compelled self-incrimination was violated when the trial court conditioned his ability to return to the home on his admitting to abusing an unrelated child - an accusation that he continuously denied.

Here is what happened in Blakeman.

Background

The respondent father and his wife have four children. From time to time, the wife would babysit an unrelated toddler. While the respondent’s wife was babysitting the toddler on February 9, 2017, she left the child with the respondent and went to pick up food for dinner. When the wife returned home, the toddler was unresponsive. At the hospital, doctors found that the toddler had a life-threatening skull fracture.

The Department of Health and Human Services (DHHS) filed a child protection petition against the respondent and his wife. The Ingham County Circuit Court held an adjudicative bench trial in June 2017, where the respondent maintained his innocence and asserted that he did not know how the toddler suffered the skull fracture. The trial court: 1) ruled the respondent fractured the toddler’s skull; 2) found the court had jurisdiction over the children; and 3) ordered the respondent to leave the family home and have no contact with his children other than supervised visits.

The trial court conducted another dispositional review hearing in October 2017, where the DHHS case worker reiterated there were no concerns about the respondent returning to his family while continuing his private counseling. The trial court rejected the reunification recommendation and expressed dissatisfaction “with how this has been overseen by the [DHHS] case worker.”

Another dispositional review hearing was held in December 2017, where the respondent’s therapist and the DHHS case worker both defended their recommendation to allow the respondent to return to the family home. However, the children’s lawyer-guardian ad litem told the court that she changed her position and now believed the respondent should not return to the family home. The trial court subsequently ordered that the respondent continue to live outside the family home and only have supervised contact with his children.

The Speaker Law Firm then filed an emergency appeal on the respondent’s behalf.

“Clear” Fifth Amendment Violation

On appeal, the respondent argued that by requiring him to confess to an act of criminal child abuse as a condition of reunification with his children, the trial court violated his Fifth Amendment right against compelled self-incrimination.

“We agree,” the Court of Appeals said, explaining the privilege against self-incrimination allows a defendant to refuse to answer official questions in any other proceeding, no matter how formal or informal, if the answer may incriminate him in future criminal proceedings.

In reaching this conclusion, the Court of Appeals looked to In re Stricklin, 148 Mich App 659 (1986). The Court of Appeals observed that, unlike Stricklin, the respondent in the present case waived his Fifth Amendment right against self-incrimination at the adjudicative bench trial. “He provided ‘nonincriminating’ testimony, claiming he did not injure the toddler and believed that any injury resulted from a seizure. At the close of trial, the trial court found by a preponderance of the evidence that respondent caused the injuries to the toddler.”

The Court of Appeals then noted that, at the subsequent dispositional review hearing, the trial court gave the respondent a “Hobbesian choice” to either:

1) retract his claim of innocence, admit to child abuse at therapy as a condition of completing reunification services and expose himself to criminal prosecution for child abuse, or

2) maintain his innocence, which would likely result in the termination of his parental rights.

“Even though respondent initially waived his Fifth Amendment right to remain silent, there was a sufficient showing of compulsion at the dispositional review hearing,” the Court of Appeals wrote. “’The compulsion of nonincriminating testimony is not the sort of compulsion contemplated by the Fifth Amendment.’ … The trial court, however, conditioned reunification on an admission of guilt to the child abuse. We see no reason to conclude that there is a lack of compulsion simply because respondent initially waived his Fifth Amendment right, testified at the trial, and was then later compelled to retract his claim of innocence and incriminate himself.”

Here, the respondent “had a choice to choose between his liberty interests or his children,” the Court of Appeals observed. “Respondent chose the former, but any right to remain silent was no longer unfettered, and there was sufficient compulsion ‘to be a witness against himself.’”

Again looking to Stricklin, the Court of Appeals said there had to be a penalty exacted on the respondent for refusing to admit to the crime sufficient to compel self-incrimination. “In this case, that penalty was obvious. Because respondent would not incriminate himself and admit to the child abuse, he was ordered to remain outside the family home, was granted only supervised visiting time, and was informed by the government that he most likely faces the future termination of his parental rights to his four children.”

Therefore, unlike Stricklin, the respondent “was given an extreme and detrimental choice - admit to the child abuse at therapy, which could be used in future criminal proceedings - or continue to be separated from his children and eventually lose his parental rights,” the Court of Appeals said. “This was a severe penalty threatened and, therefore, a violation of respondent’s Fifth Amendment right against compelled self-incrimination.”

Accordingly, the Court of Appeals concluded the record “clearly” showed that the trial court violated the respondent’s Fifth Amendment right against self-incrimination when it conditioned unsupervised visitation and eventual reunification on his admission to child abuse.