Can a parent be compelled to admit to a crime to maintain their parental rights?

Parental Rights 5th Amendment

In Re: Parental Rights as to A.D.L. and C.L.B., Jr. (Nev. Supreme Ct. – Oct. 5, 2017)

In this opinion, the Supreme Court of Nevada considered whether a parent’s Fifth Amendment rights are violated when he or she is required to admit to a criminal act in order to maintain his or her parental rights.

In April 2010, Clark County Department of Family Services (DFS) received an anonymous call through its child abuse hotline alleging that Keaundra’s children were being abused and neglected. The caller alleged that the face of Keaundra’s infant child had been burned. During an interview with a DFS investigator, Keaundra stated that she was the only adult at home when C.L.B., Jr. was burned. Her two children, A.D.L. and C.L.B., Jr., were in the master bedroom while she was preparing for work in the attached bathroom. She had recently ironed her clothes and had placed the iron on her dresser. Keaundra heard the iron fall and when she came out to investigate, A.D.L. told her that C.L.B., Jr. had tried to kiss the iron. Keaundra then called her mother, a nurse, who told her to put ointment on the injury and to take C.L.B., Jr. to the emergency room if the burn blistered.

Following the initial contact with DFS, Keaundra moved her family to Louisiana, where her father was stationed with the U.S. Air Force. Upon learning that Keaundra moved to Louisiana, DFS sought help from U.S. Air Force authorities to gain protective custody of the children. The children were removed from Keaundra’s care, and C.L.B., Jr. was taken to see Dr. Neuman, a physician in Louisiana. Dr. Neuman reported that the injury was well healed and that there was no evidence of abuse.

In May 2010, DFS filed a petition for protective custody of A.L.D. and C L B, Jr. under NRS Chapter 432B, alleging that Keaundra had either physically abused or negligently supervised C.L.B., Jr. A plea hearing was held wherein Keaundra entered a denial, and DFS requested placement of the children with their maternal grandmother.

At a subsequent adjudicatory hearing, the hearing master took testimony from Dr. Mehta, a medical examiner who had reviewed photographs of C.L.B., Jr.’s injuries. Dr. Mehta opined that the shape of the injury was not consistent with an accident and that the iron had been deliberately held to C.L.B., Jr.’s face. Keaundra offered Dr. Neuman’s report to rebut Dr. Mehta’s testimony. The hearing master excluded the report on the ground that the report was not a certified copy. The hearing master found that Keaundra had physically abused C.L.B., Jr., had medically neglected him, and had absconded. Based on those findings, the hearing master recommended sustaining the abuse and neglect petition and that A.D.L. and C.L.B., Jr., remain in DFS custody. The juvenile court affirmed the hearing master’s recommendation and concluded that C.L.B., Jr.’s injury was nonaccidental.

In light of these findings, Keaundra received a case plan which required that she maintain stable housing and income, keep in contact with DFS, and complete parenting classes. She was also required to complete a physical abuse assessment and be able to articulate in dialogue with the specialist and therapists the sequence of events which resulted in physical abuse, as sustained by the Court, and how she will be able to ensure that no future physical abuse to C.L.B., Jr., occurs. One month after giving Keaundra the case plan, DFS recommended termination of parental rights as the goal for the children. DFS then filed a petition to terminate Keaundra’s parental rights as to A.D.L. and C.L.B., Jr.

At her six-month review, DFS reported that Keaundra had completed her parenting classes, maintained housing, held regular jobs, and completed both her assessment and therapy. At that point, the children had been placed with their maternal grandmother in Louisiana, where Keaundra was also living. DFS stated that it was satisfied with Keaundra’s progress. DFS further stated that Keaundra had successfully completed her case plan and has the knowledge and tools to effectively parent her children. Despite DFS’s satisfaction with Keaundra’s progress, it nonetheless maintained its recommendation that her parental rights be terminated because she had not admitted that she abused C.L.B., Jr., by holding an iron to his face. DFS later stated at trial that, with such an admission, it would not have sought termination of parental rights.

At the next six-month review, DFS again noted that Keaundra had completed her case plan in all other regards and that she acknowledged that negligence and improper supervision caused C.L.B., Jr.’s injury. Again, DFS maintained its recommendation to terminate parental rights due to Keaundra’s refusal to admit that she held the iron to C.L.B., Jr.’s face.

In the meantime, Keaundra moved to South Carolina and was referred to a new therapist, who was in regular contact with a DFS caseworker. At the parental termination trial, the new therapist testified that therapy resulted in a marked change in Keaundra’s behavior and demeanor. She noted that despite signs of depression and anxiety at the start of therapy, Keaundra’s demeanor had substantially changed over the course of treatment and her risk to reoffend was low. The therapist saw no signs that she would expect to see in an abusive parent.

At the conclusion of the trial, the district court issued a decision terminating Keaundra’s parental rights as to C.L.B., Jr., and A.D.L. The district court relied on the hearing master’s findings, as affirmed by the juvenile court, that Keaundra was at fault for C.L.B., Jr.’s injuries and that his injuries were not accidental. Because Keaundra was unable to remedy the circumstances, conduct or conditions leading to C.L.B., Jr.’s removal, the district court terminated her parental rights based on token efforts, failure of parental adjustment, and unfitness. The district court further found that termination was in the best interests of the children.

Keaundra appealed that decision to the Supreme Court of Nevada. The Court reversed the district court’s order based on the failure to admit the report of Dr. Neuman and remanded the matter for a new trial on the issue of parental fault and consideration of additional evidence.

As a result of the Court’s decision, Keaundra filed a motion to immediately reinstate her visitation with A.D.L. and C.L.B, Jr., to have a Children’s Attorneys Project attorney appointed for the children, and to change her permanency plan to reunification. The district court initially denied Keaundra’s motion for visitation, but later ordered visitation at the discretion of the children’s therapist.

Before the second trial, the parties stipulated to admission of all evidence from the prior termination trial, retaining only the issue of the inappropriate finding of parental fault based on the exclusion of Dr. Neuman’s report. At the new parental termination trial, the district court admitted Dr. Neuman’s report over the objection of DFS, and Dr. Mehta again testified over the objection of Keaundra’s counsel. Dr. Mehta once again opined that the injury to C.L.B., Jr.’s face was inconsistent with the explanation given, but she admitted that this opinion was based only on viewing the photographs before the initial trial. Dr. Mehta testified that generally her practice in ascertaining the nature of an injury would be to obtain as much information as possible. Dr. Mehta only recalled being told of an iron and a child kissing the iron; she did not interview any witnesses to the incident, did not see the child in person, and was unaware of the previous report from Dr. Neuman stating that there was no sign of abuse. Dr. Mehta noted that although an accidental cause of injury was possible, she could not conceive of such an explanation.

After closing arguments, the district court inquired as to whether any offer of immunity had been given to Keaundra, as well as why that immunity was not offered in order to further reunification efforts. The district court further opined that because the court’s purpose in protective custody proceedings is to reunify children, parents need to be open and honest, and, as such, the judge’s practice is to offer immunity from statements made to treatment providers or DFS. DFS acknowledged that Keaundra was not offered immunity. DFS further indicated that it was unaware of any legal authority that would preclude the offer of immunity. While acknowledging that the offer of immunity would cure any Fifth Amendment concerns, DFS indicated that immunity did not apply in Keaundra’s case.

The district court ultimately reaffirmed its prior decision to terminate Keaundra’s parental rights, due largely to Dr. Mehta’s credentials and compelling testimony. The district court ended its decision by noting that Keaundra continued to insist that the burn was accidental in nature in spite of all physical evidence being to the contrary. Keaundra appealed.

On appeal, Keaundra argued, among other issues, that terminating her parental rights on the sole basis that she refused to admit that she intentionally harmed C.L.B., Jr., violated her Fifth Amendment right against self-incrimination.

Keaundra contended that the district court abused its discretion by finding that she did not exhibit behavioral changes that would warrant the return of her children since that finding was based solely on her noncompliance with her case plan because she refused to admit that she abused C.L.B., Jr. Thus, she argued, reunification and the avoidance of the termination of her parental rights were conditioned on her admitting a criminal act, in violation of her Fifth Amendment right against self-incrimination.

The Court explained that the Fifth Amendment right against self incrimination, which applies to the states through the Fourteenth Amendment, states that “[n]o person. . . shall be compelled in any criminal case to be a witness against himself.” See Estelle v. Smith, 451 U.S. 454, 462 (1981) (quoting U.S. Const. amend. V). The Fifth Amendment not only protects individuals in criminal proceedings, “but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.” Lefkowitz v. Turley, 414 U.S. 70, 77 (1973). Further, an individual cannot be penalized for invoking his Fifth Amendment right. Spevack v. Klein, 385 U.S. 511, 514-15(1967).

The United States Supreme Court has held that the state may not compel a person to choose between the Fifth Amendment privilege against self-incrimination and another important interest because such a choice is inherently coercive. Letkowitz v. Cunningham, 431 U.S. 801, 805-08 (1977). The Supreme Court of Nevada noted that it has recognized that “the parent-child relationship is a fundamental liberty interest.” In re Termination of Parental Rights as to N.J., 116 Nev. 790, 801, 8 P.3d 126, 133 (2000).

Thus, the Court indicated  that it agreed with other courts that have held that a parent may not be compelled to admit a crime under the threat of the loss of parental rights. See, e.g., In re A. W., 896 N.E.2d 316, 326 (III. 2008) (“We agree with those courts that have held a juvenile court may not compel a parent to admit to a crime that could be used against him or her in a subsequent criminal proceeding by threatening the loss of parental rights.”); In re Amanda W., 705 N.E.2d 724, 727 (Ohio Ct. App. 1997) (finding that a “penalty for failure to satisfy the requirements of a particular case plan is the loss of a parent’s fundamental liberty right to the care, custody, and management of his or her child,” as “this is the type of compelling sanction that forces an individual to admit to offenses in violation of his right not to incriminate himself”); Dep’t of Human Servs. v. K.L.R., 230 P.3d 49, 54 (Or. Ct. App. 2010) (“[R]equiring an admission of abuse as a condition of family reunification violates a parent’s Fifth Amendment rights . . . .”); In re M.C.P., 571 A.2d 627, 641 (Vt. 1989) (“The trial court cannot specifically require the parents to admit criminal misconduct in order to reunite the family.”).

The Court noted that the state has an important interest in protecting the welfare of children. See In re N.J., 116 Nev. at 802, 8 P.3d at 133; see also NRS 128.005(2)(c) (“The continuing needs of a child for proper physical, mental and emotional growth and development are the decisive considerations in proceedings for termination of parental rights.”). When a child has been removed from a parent’s custody because of abuse, the court must consider whether the parent has adjusted the circumstances for the child’s safe return. See generally NRS 128.107(3); In re M.C.P., 571 A.2d at 640 (“It would be irresponsible for the court to return an abused child to the custody of abusive parents unless and until it can be assured that there will be no repetition of the abusive actions.”).

The Court explained that in balancing a parent’s Fifth Amendment right against self-incrimination and the need for meaningful rehabilitation in cases where a child has been removed from the parent’s custody because of alleged child abuse, courts have generally concluded that while a court can require a parent to complete therapy as part of a family reunification plan, courts cannot explicitly compel a parent to admit guilt, either through requiring a therapy program that specifically mandates an admission of guilt for family reunification, or otherwise through a direct admission, because that violates the parent’s Fifth Amendment right. In re A.W., 896 N.E.2d at 326 (“[A] trial court may order a service plan that requires a parent to engage in effective counseling or therapy, but may not compel counseling or therapy requiring the parent to admit to committing a crime.”); In re C.H., 652 N.W.2d 144, 150 (Iowa 2002); (“The State may require parents to otherwise undergo treatment, but it may not specifically require an admission of guilt as part of the treatment.”); In re J.W., 415 N.W.2d 879, 883 (Minn. 1987) (“While the state may not compel therapy treatment that would require appellants to incriminate themselves, it may require the parents to otherwise undergo treatment.”); see also Minh T. v. Ariz. Dep’t of Econ. Sec., 41 P.3d 614, 617-18 (Ariz. Ct. App. 2001) (“[T]he State may require therapy and counseling for the parents. . . . However, there is a distinction between a treatment order that requires parents to admit criminal misconduct and one that merely orders participation in family reunification services.”).

The Court further explained that there is a distinction between a court-ordered case plan that mandates admission of culpability for family reunification and one that requires meaningful therapy for family reunification. Invoking the Fifth Amendment may have consequences and “[o]ne such consequence may be a person’s failure to obtain treatment for his or her problems,” and a failure to participate in meaningful therapy may result in the termination of parental rights without a violation of the Fifth Amendment, so long as the court did not mandate an admission of guilt. In re C.H., 652 N.W.2d at 150; In re P.M.C., 902 N.E.2d 197, 203 (Ill. App. Ct. 2009) (observing that where a parent fails to comply with an order to complete meaningful therapy because the refusal to admit guilt inhibits rehabilitation, there is no constitutional violation); K.L.R., 230 P.3d at 54 (concluding that “terminating or limiting parental rights based on a parent’s failure to comply with an order to obtain meaningful therapy or rehabilitation, perhaps in part because a parent’s failure to acknowledge past wrongdoing inhibits meaningful therapy, may not violate the Fifth Amendment”).

The Court believed that it did not need not resolve the tension created by a parent’s exercise of his or her Fifth Amendment right and its importance to meaningful therapy or rehabilitation. Notably, in Keaundra’s case, DF’’s six-month report confirmed that Keaundra’s therapy was effective without the need for an admission of guilt.

The Court explained that this approach is consistent with existing Nevada caselaw regarding the invocation of the Fifth Amendment in civil proceedings. See Francis v. Wynn Las Vegas, LLC, 127 Nev. 657, 664, 262 P.3d 705, 711 (2011) (“The Fifth Amendment privilege against self-incrimination may be invoked in both criminal and civil proceedings.”). Because Keaundra’s case plan required her to admit that she intentionally caused C.L.B., Jr.’s injury, she could not fully comply with the case plan without admitting that she committed a criminal act. See NRS 200.508 (defining and providing penalties for abuse, neglect, and endangerment of a child). And, in terminating Keaundra’s parental rights, the court based its decision on its finding that Keaundra continued to insist that the burn was accidental in nature. Accordingly, the Court concluded that the district court violated Keaundra’s Fifth Amendment rights by terminating her parental rights based on her refusal to admit that she intentionally caused C.L.B., Jr.’s injury. See In re J.W., 415 N.W.2d at 882-83 (holding that conditioning termination on compliance with a court-ordered case plan that requires admission to criminal conduct is a threat that triggers the Fifth Amendment).

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