Child Abuse & Neglect: Deciding Between Your Children and Your Fifth Amendment Right
Table of Contents
OVERVIEW OF ABUSE AND NEGLECT PROCEEDINGS .....................................*
THE PARENTAL DILEMMA IN ILLINOIS: TO TESTIFY OR NOT? ............................*
IMMUNITY: ACCOMMODATING THE INTERESTS AT STAKE ................................*
1. Parental Interests .........................................................................................................*
2. Governmental Interests ...............................................................................................*
3. Child’s Interests ...........................................................................................................*
4. Other Family Members’ Interests ..............................................................................*
IMMUNITY: AS USED BY OTHER STATES ...............................................................*
1. California .....................................................................................................................*
2. New York .....................................................................................................................*
IMMUNITY: IN OTHER CIRCUMSTANCES ................................................................*
1. Motion to Suppress ....................................................................................................*
2. Employment ................................................................................................................*
GOING FORWARD ........................................................................................................*
In the 1970’s and 1980’s, an increasing awareness of our children falling prey to abuse and neglect spawned a line of Federal and Illinois legislation that was both justified and necessary. Since such legislation, incidences of child abuse have decreased tremendously and the safety of children has been thereby enhanced. In the process of securing the much needed protection of children, parental due process rights have been lost in the mix and severely jeopardized. One such procedural right is that of the Fifth Amendment right against self incrimination. Due to the exigencies present, the legislature has enacted a statutory scheme that expedites the juvenile proceeding, causing shelter care and adjudicatory hearings to generally come well before any criminal counterpart. The result is that the parent and his/her lawyer are faced with a complexing dilemma: should the respondent testify at the juvenile proceeding and waive his Fifth Amendment right against self incrimination or not testify and allow the court to draw a negative inference during the adjudicatory stage. Once the children are removed, re-unification becomes difficult without during these initial probable cause determinationand 2) trouble completing Court ordered service and therapy goals.
This article is intended as a basis for legislation which would provide statutory immunity to parents in proceedings regarding abuse and neglect of a child by showing that there is a reasonable alternative to the present laws which circumvent the parents’ rights and better serve the best interests of all involved in juvenile proceedings.
OVERVIEW OF ABUSE AND NEGLECT PROCEEDINGS
In order to grasp the complexity of the issues involved in abuse and neglect proceedings, it is important for those who unfamiliar with the juvenile process to understand some of the basic procedural aspects. This section lays out, from start to finish, the process that takes place in Illinois when a parent is accused of abusing their children.
In 1975, the Illinois legislature enacted the Abused and Neglected Child Reporting Act. Under this Act, mandatory reporting requirements were instituted, instructing many professionals to report abuse of children despite the privileged quality of that communication. The Illinois Department of Children and Family Services (DCFS or Department) were charged with the duty to investigate reports and to “protect the health, safety, and best interests of the child in all situations in which the child is vulnerable to child abuse or neglect.” If, upon the Department’s investigation, it is found that the health and safety of the child is endangered, DCFS may take the child into temporary protective custody.
Once the child is taken into temporary custody, the minor must be brought before a judicial officer within 48 hours of the removal from the home. If removal is found to be warranted by the judicial officer, then a temporary custody hearing will be set or may even be heard immediately if the parent or guardian is present and so requests. If a hearing is set, DCFS must cause a petition to be filed and served upon the child’s parents or guardian. At this point, DCFS and the alleged abuser may often come to an agreement that the child be left with a relative or another acceptable person throughout the remainder of the proceedings. If no such agreement can be made, then the parties proceed to hearing before the judge. If the judge finds there is probable cause to believe the child was abused or neglected, then temporary custody of the child will continue until an adjudicatory hearing. It is worth noting that a judge is statutorily required to examine “the minor, his or her parent, guardian, custodian and other persons able to give relevant testimony.” A parent accused of abuse would have relevant testimony, whether negative or positive, on his own behalf. It is at this stage, however, where the parent begins facing the dilemma of “do I testify and risk incriminating myself or do I assert my Fifth Amendment rights and reduce my chances of regaining access to my children”.
The adjudicatory hearing shall commence within 90 days of the date of service of process upon the parent. If a parent does not testify, the court has no opportunity to hear personal testimony as to theories of justification, mistake, false reports, etc. Yet, a parent who takes the risk to tell his story risks having every word scrutinized or misused during the criminal proceeding.
If abuse or neglect is found at the adjudicatory hearing the “court shall admonish the parent that he must cooperate with the Department of Children and Family Services, comply with the terms of the service plan, and correct the conditions that require the child to be in care or risk termination of parental rights.” The dispositional hearing will need to be set no later than 30 days after the adjudication. It is during this hearing that the court will decide what is in the best interests of the child and whether the child should become a ward of the court. If the child is adjudicated a ward of the court, the court shall also consider the permanency goal for the child, nature of the service plan for the child and the services to be delivered under the plan. The permanency goal and service plan referenced are part of the permanency plan process administered by DCFS, a process which would have begun when DCFS first made contact with the family. In developing the service plan, DCFS is required to list out factors as to why the child was removed from the home as well as the standards that would be considered a resolution of such factors. At the end of the dispositional hearing, the court shall set a date for the first permanency review within 12 months from the date temporary custody was taken. Subsequent reviews shall be held at least every 6 months up and until the court concludes that both the service plan and permanency goal have been achieved. It is at these permanency review hearings that the court decides the future status of the child and may change the permanency goal for the child. For instance, if the parent has not made reasonable progress toward the permanency goal, the goal should change to “short-term care with a continued goal to return home pending a status hearing” and the court would identify what action is needed in order to justify a finding of reasonable progress. If such a determination is made, then at the status hearing, the decision will be made as to whether the parent is making reasonable progress. If the parent has not made reasonable progress, then the court may look toward terminating parental rights.
Generally these service plans require the alleged abuser to undergo therapy sessions to remedy the parent’s abusive nature. In these sessions, admission of the abuse alleged is often times a pre-requisite to satisfactory completion of the sessions. For the therapy to qualify as reasonable progress, the participating parent must sign release terms to allow DCFS access to all session information and progress. The Department catalogs said information and reports it to the court through testimony and written form at permanency reviews. The confidentially of these therapy sessions, especially in regards to admitting the alleged abuse, is not protected. This compounds the parent’s dilemma further. Essentially, a situation arises where the parent needs to protect himself from self incrimination at the potential cost of being reported as not having made reasonable progress at the permanency hearing and therefore risking termination.
THE PARENTAL DILEMMA IN ILLINOIS: TO TESTIFY OR NOT?
Generally, testimony in a civil case is not protected by a person’s Fifth Amendment privilege against self incrimniaton, for the Fifth Amendment is applicable only when one fears that his testimony may be used against him in a criminal trial. In abuse and neglect proceedings, however, concurrent or future criminal charges are looming in regards to the abuse and neglect, so the parent has a valid concern regarding his/her own testimony being used later against him/her. The problem, however, is that in a civil suit in Illinios, when a respondent properly asserts his/her Fifth Amendment privilege against self incrimination, the court has ruled that an adverse or negative inference may be drawn against him/her. As such, a negative inference against the parent is permissible if they choose to remain silent. A negative inference, however, is not necessarily in line with what is in the ‘best interests of the child’. In reality, isn’t it really in the best interests of the child to have all the relevant information in front of the judge to make the best determination upon real evidence as opposed to inferences? The statue even requires that all persons with relevant information regarding the abuse be examined by the court. The problem is that the best interest of the child is not the only factor or interest in the equation and, as such, the parent comes to a cross road where he must decide whether to risk self incrimination. To make this decision in Illinois, several issues must be addressed and a change in current legislation should be considered.
First, if a parent is under investigation by DCFS and abuse and neglect proceedings have started, there is a high likelihood that criminal prosecution for the same abuse actions is looming right around the corner. As such, the parent must tread carefully in regards to anything he says to investigators, officers, therapists and the judge, bearing in mind that the State can use information gathered in the juvenile proceeding to build a criminal case. Although normally the Fifth Amendment is not applicable in civil proceedings, the court has held that a person’s Fifth Amendment right is violated when “the State compels a surrender of the constitutional privilege against self-incrimination by threatening ‘potent sanctions’.” At this point, a parent must decide: (1) to risk testifying at the proceedings in hopes that his child will be returned to him; or (2) to remain silent and not plead his story, blindly accepting the resulting ramifications.
In Illinois, remaining silent in an abuse and neglect proceeding does not come without ramifications. Asserting one’s constitutionally given Fifth Amendment right during these proceedings allows the judge to make a negative inference as to the acts charged against a parent. Although the court may not rely solely on the negative inference to rule against a parent, it is sufficient to say that DCFS would not have brought the claim if there was not at least some supporting evidence, regardless of its reliability. This evidence often comes in the form of testimony from an individual reporting, from a minor child, through a case worker’s observation, or markings on the child. If a parent asserts his Fifth Amendment right, the trial court will likely remove the child based on the evidence that lead to DCFS filing a case, and vest temporary custody with DCFS or an outsourced agency. Courts have justified the use of a negative inference being applied by suggesting that the parent is free to choose to testify or not, and since the negative inference alone is not enough to justify removal, the courts suggest that the parent is not really forced to decide between two constitutional rights, but rather the parent is making more of a strategical decision. However, when not testifying results in an adverse inference, completing the State’s case in abuse and neglect hearings, the consequences of asserting your Fifth Amendment privilege against self incrimination should be considered a potent sanction most importantly because it infringes upon a parent’s fundamental right of association with his child and the family unit. As a result, a parent currently refusing to testify results in the child being removed from the home, the parent being placed on an extensive service plan which takes considerable time to complete, and an infringement upon a multitude of interests.
The faults with this system do not stop here. In the implementation of a service plan, generally offered by DCFS and approved by the court, the parent is often required to undergo therapy. In order for a parent to make reasonable progress through sessions, most therapists, as well as the Department workers, believe that admitting to the offense for which the parent has been adjudicated is an essential aspect to successful completion of the therapy. The releases and consents required by the Department, allowing therapy discussions to be reported to the court, as well as allowing DCFS to monitor the parent’s progress, make any admissions of guilt available to the state. As a result, these discussions are anything but private or therapeutic. Due to the brevity of abuse and neglect proceedings, the criminal trial rarely is completed or even begun before a parent must choose whether to incriminate himself through treatment, resulting in the fear that any discussions with the therapist may be used against the parent at the criminal level. The result of this reality is that a parent does not admit his guilt and the therapist often finds the parent has not satisfactorily completed the therapy. Without satisfactory completion of goals, parents are rated as not making reasonable progress and are at serious risk of losing rights to their child.
The Supreme Court first looked at such an issue in In Re A.W. In this case, the parent was adjudged unfit and as part of the service plan, wasordered to undergo sex abuse counseling. The parent was told by the counselor he would not be allowed to continue the therapy program unless a full admission to committing a sex offense was made. The parent stopped going for treatment and was later found to be unfit for failure to complete sex offender counseling. The court ruled that this parent’s Fifth Amendment privelege was not violated because the father was not required to complete a specific program requiring an admission of guilt and the father failed to present evidence that there were no programs available for therapy without such an admission. In summary, the court held that 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.” Further, the burden shifted to the parent to prove no such option existed, further burdening reunification of the family unit. The Appellate Court for the Fifth District, in In Re P.M.C. and J.L.C., went so far as to say that although the court could not terminate parental rights specifically on a refusal to admit that which the parent denies, parental rights may be terminated “based upon a parent’s failure to comply with an order to undergo meaningful therapy or rehabilitation, because a parent’s refusal to admit sexual abuse inhibits meaningful therapy.”
The reality of these findings is that if a parent does not testify in the adjudicatory hearing, where the standard of proof needed to find abuse is by a preponderance of evidence, a negative inference will be drawn against the parent. This makes the parent susceptible to the court ordered plan, generally requiring the parent to undergo abuse counseling. The Department and therapists, however, hold the belief that for therapy to be meaningful, there must be an admittance of guilt. Failing to admit the allegations through the abuse counseling then turns into a finding, for all practicality, that the parent has not completed “meaningful therapy” and “not made substantial progress.” The courts have even placed the burden on the parent to show a lack of availability of meaningful therapy without admission of guilt, which is a near impossible task. Although clear and convincing evidence is required in a proceeding to terminate parental rights, in all practicality, it is the burden and the finding of abuse at the adjudicatory hearing that sets the stage for a finding of termination. If the 5th District is right in stating that a parent’s refusal to admit abuse “inhibits meaningful therapy” which allows termination of parental rights, the outcome should qualify as a “potent sanction” as referenced by the Supreme Court.
As a result, it is the preponderance of the evidence standard that first decides whether removal is necessary and leads directly to meaningful therapy goals essentially requiring an admission of guilt without which there is a lack of substantial progress and a termination of parental rights. This sequence is a direct, unavoidable result after removal based on the lowest of standards. Therefore, the clear and convincing evidence standard seems to be circumvented by a lower preponderance of the evidence standard, since the chain of events is set in motion by adjudication and is unavoidable without an admission of guilt. Termination is essentially predetermined by the initial standard and may only be altered by admitting guilt. The legislature should give strong consideration to the effect of these juvenile case requirements, recognize the serous reality associated with said requirements, and begin to consider a less restrictive alternative.
IMMUNITY: AS A LESS RESTRICTIVE ALTERNATIVE TO ABROGATING A
PARENT’S FUNDAMENTAL RIGHT
When important governmental interests and constitutional rights are in conflict, a balancing of these interests should only be done “when absolutely necessary, as ‘balancing inevitably results in the dilution of constitutional guarantees.’” Strict scrutiny was devised for just such reasons, to weed through the complexity of such conflicts. “This test does not prevent the accomplishment of important governmental interests; rather it requires that where both those interests and important rights can be concurrently protected, government must do so.” When the interests involved may be accommodated by a less restrictive alternative, the government is obligated to do so.
Abuse and neglect proceedings carry with them a multitude of interests and fundamental rights at stake, many of which, however, may be accommodated if the parent were to be given immunity for testimony and for statements made during treatment, all in an attempt to reunite the family. Such grant of protection may be given statutorily, by the judiciary, or by the prosecution, and is used to persuade or compel witnesses to testify to information that may otherwise incriminate them, but may ultimately promote justice. There are three general types of immunity: (1) transactional immunity; (2) use immunity; and (3) derivative immunity. Transactional immunity affords the most protection. If granted, a “witness is fully immunized from prosecution for any offenses to which his or her compelled testimony may relate.” Use immunity protects only against the use of the witness’s testimony against him in criminal proceedings. Derivative use immunity, in addition, restricts the use by the prosecutor of any evidence uncovered as a result of the witness’s testimony.
Immunity may be used to compel a witness to testify. In fact, the “broad power to compel a resident to testify in court” has been noted by the Supreme Court to be both necessary and one of the “most important powers of the States as well as the Federal Government to assure the effective functioning of government in an ordered society.” This power does not go unchecked, however, for citizens also retain a right to forgo self incrimination as set forth by the cherished Fifth Amendment which states that “[n]o person…shall be compelled in any criminal case to be a witness against himself.” Immunity statutes are considered a “rational accommodation between the imperatives of the privilege and the legitimate demands of government to compel citizens to testify.” To compel testimony and ultimately promote justice, the government simply needs to provide protection equal to that which is provided by the Fifth Amendment. As a result, transactional immunity is not required to compel testimony. The courts have found that a combination of use and derivative use immunity is considered comparable with the scope of the privilege against self-incrimination, and when provided, a resident’s testimony may be compelled and ultimately justice promoted.
When reviewing a decision as important as removing a child from a parent’s custody, it is essential that the courts are provided with all relevant information. By providing both use and derivative use immunity to parents in the abuse and neglect proceedings, a court would be able to compel the parent to testify, thus providing testimony imperative to the court’s decision and the judicial truth-seeking process.
IMMUNITY: ACCOMMODATING THE INTERESTS AT STAKE
The conflicts arising in the juvenile proceeding are no doubt the result of the legislature and the courts looking out for the “best interest of the child.” However, the best interest of the child is not the only interest at stake during concurrent civil and criminal abuse and neglect proceedings. The competing fundamental rights and interests are numerous and as in any constitutional analysis, a proper evaluation and balancing of these interests is essential. This section analyzes the multitude of interests at stake during concurrent civil and criminal abuse and neglect proceedings and the effect that a grant of immunity would have on said interests.
1. Parental Interests
a. Fundamental Right to Family & Raising Children – It is deeply rooted in this country’s history and tradition that an individual has a fundamental right to family and parents have the right to rear their own children. The Supreme Court has declared such a right and has stated that the “’primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.’” This line of thinking is reiterated by the requirement that DCFS “ensure and document that reasonable efforts were made…to reunify the family when temporary placement of the child occurs.” When possible, it is a primary goal of the government to first maintain the family unit or reunite parents with their children as quickly as possible.
Providing parent immunity for a parent’s testimony in juvenile proceedings ensures that the parent receives a fair proceeding by allowing him to testify on his own behalf without the threat that his testimony might later be used against him. It provides a parent with the opportunity to overcome the negative inference which would otherwise be imposed against him, and it ensures that the court is being provided with all essential evidence when making a decision of utmost importance. In regards to a parent guilty of abuse, providing immunity fast tracks the road to correcting the conditions which were cause for removal. A parent would no longer have to fear admitting his guilt in therapy and as a result would undergo much more meaningful therapy and goal completion. In addition, immunity eliminates the circumvention of the clear and convincing standard for terminating parental rights.
b. Liberty Interest – A parent’s freedom from incarceration is no doubt the most important interest at stake when accused of abuse or neglect. Since the 1980’s, due to increased awareness of child safety and resulting mandatory reporting requirements, the threat of incarceration for child abuse has increased. “For instance, in Los Angeles County there was a 238% increase from 1980 to 1984 in the number of criminal cases involving child abuse.” The ramifications resulting from a criminal conviction affect not only a parent’s liberty interest in remaining a free person, but also infringe upon other rights as well. A parent’s ability to make substantial progress would decline while incarcerated, potentially resulting in a greater likelihood of termination of parental rights. The parent’s ability to provide monetary support for the family would decrease, possibly hindering the child’s economic well being. A parent worries not just of himself when deciding whether to testify and risk incrimination, but must also worry about the welfare and future of his children. Immunity could relieve concerns by protecting the parent from his testimony or evidence derived from his testimony being used in a criminal trial.
c. Devastating Economic and Social Consequences of an Accused Parent – The stigmatization resulting from being labeled a child abuser may affect a parent’s social and economic well being. Due to the increased awareness of child abuse registries, as well as the ease of access provided by the popularity of the internet, labeling a parent as a child abuser certainly has a stigmatizing effect upon the parent’s social and economic well being. In some states, as much as “seventy-five per cent of the challenged child registry reports were expunged”. A parent has a substantial right to refute that of which he is accused. However, once the social damage is done through abuse cases, it is nearly impossible for a parent to recover even after reports of said cases are expunged.
2. Governmental Interests
a. Protecting the Child’s Physical Safety and Well Being - Protecting children from abuse is an important governmental interest, and in Illinois the courts are provided with serious means by which to provide such protection. In protecting government interests, it is important that such protection not be overly broad so as to unnecessarily infringe upon the constitutional rights of others. When courts allow a negative inference to be drawn against the parent in a juvenile proceeding for not testifying, a parent’s fundamental right of association with his children is infringed upon along with his right to freedom and liberty. If the legislature were to pass a statutory grant of immunity, allowing a parent to testify without self incrimination, an adverse inference would no longer be applicable. The parent’s rights would be provided protection while continuing to protect the health and safety of our children. Further, it is arguable that the child’s safety would be enhanced by a parent’s honesty throughout the juvenile proceeding and therapy. The full truth of the situation could then come to light leading to more productive goals for the parent and the child thereby enhancing the possibility that future situations will not occur and that a child and parent be afforded a full recovery from the prior difficulties. Statutory immunity would provide the court with a less restrictive alternative which preserves protection for children while not being so over broad as to unnecessarily infringe on parental rights.
b.In Punishing Child Abusers - Government does have a legitimate interest in penalizing criminal offenders in order to both punish and deter wrong doing. Punishment should be a matter reserved for the criminal system. The juvenile system’s goal is to reunite the family and actions taken through juvenile court should bare these results in mind by limiting procedures to aspects necessary to the best interests of the child and the reunification of the family. Immunity, as formerly suggested, would not affect the juvenile system’s goals; instead, it would promote them. At the same time, it would not interfere or stall the criminal proceeding or the government’s interest in punishing offenders. At present, a parent recognizes the wisdom in not incriminating himself. Thus, immunity is unlikely to change the amount of information the state is able to gather from a juvenile proceeding. Further, a primary philosophy underlying the state’s interest in punishment is to enforce a change in negative behaviors of the criminal. As previously discussed, the proposed immunity helps a parent receive appropriate goals and treatments which correlates with the public policy behind the government’s interest in punishing.
c. Justice Through the Best Information - In making such a difficult decision as removing a child from his home, it is important for the court to have all available information in front of it so as to make the best decision possible. Compelling a parent to testify through the use of immunity would provide the court with additional relevant testimony which would otherwise be withheld but may be useful in making a determination and setting service plans. No longer facing the fear of self-incrimination, a parent would be incentivized to tell the truth. Whether the parent makes a claim of innocence or an admission of guilt, the process would be benefited. With a parent’s testimony, an adverse inference would no longer be automatically drawn and the court’s determination would be decided based upon the facts rather than partially based upon an inference and lack of appropriate information from all parties involved. As a result, fewer false accusations would make it past the adjudicatory stage. A parent’s admission of guilt would assist in setting a service plan best suited for the child. If reunification is found to be the goal, therapy would be required to correct the parent’s abusive behavior. Being able to admit guilt in therapy without the fear of self incrimination, the parent would more readily be able to correct the condition, fulfill the service plan, and be reunited with his children. In any respect, compelled testimony through immunity will provide the court with relevant information which may assist in promoting the process and goals of the juvenile system.
3. Child’s Interests
a. Child’s Interest in Family Integrity – Just as the parent has a fundamental right to associate and rear his children, children have a fundamental interest in the association with their parents. While providing for the health and safety of the child, the least disruptive measures available should be heeded. “’[E]ach child’s biological and psychological need for unthreatened and unbroken continuity of care by his parents’ is essential in the child’s best interest and is ‘vital to a child’s sense of becoming and being an adult in his own right.’” But for a child, his interest is not only concerned as to what he might lose if the parent is adjudged to be abusive, but also as to what he will receive through permanent placement. “A very large percentage of children removed from their homes based upon abuse or neglect will neither be returned home nor adopted.” “Children thus have an especially heightened interest in procedures which will possibly sever their family ties.” Compelling testimony through immunity, as mentioned earlier, will assist in reducing false accusations and speeding up the process towards reunification, both of which would assist the child in retaining his fundamental right of familial association.
4. Other Family Members’ Interests
Loss of custody may result from a charge of abuse or neglect. If a parent is found to have known the child was being abused by the other parent, but did nothing, that parent may be charged with having neglected the child and may lose custody rights as well. As a result, the non-abusing parent is faced with a difficult position: to present evidence against the abusing parent in hopes to rebut the inference that he was privy to the ongoing abuse or to remain silent in hopes that the service plan will reunite the family. If evidence is provided, the family is unlikely to survive after the abuse and neglect proceeding is over. Releasing the fear of self incrimination would allow a parent to testify honestly and not force the other parent to produce evidence which would be detrimental to a marriage or personal relationship and enforce the ability of the parents to maintain a positive relationship with each other.
Abuse and neglect proceedings affect siblings of the abused child as well. When one child is adjudged abused, the ramifications extend over and reach the rights of other siblings. If one child is removed, the siblings’ right to familial association is also violated in that they will no longer live with their sister or brother and might serve as justification for the non-abused children to be removed from the parent’s custody as well. If the siblings are placed together in foster care, one sibling often assumes the “parental responsibility for another.” Immunity which could promote a speedy reunification would benefit the siblings as it would the victim.
IMMUNITY: AS USED BY OTHER STATES
Providing immunity in civil abuse and neglect proceedings is not a novel idea. Several states have led the charge and have enacted statutes providing parents protection from self-incrimination. States tend to differ on how much protection should be afforded and whether such protection should be mandatory or at the discretion of the courts.
In California, the state legislature enacted in 1976 what has now become California Welfare & Institutions Code section 355.1, which provides in part that “[t]estimony by a parent, guardian, or other person who has the care or custody of the minor made the subject of a proceeding under Section 300 [civil child dependency proceedings] shall not be admissible as evidence in any other action or proceeding.” This statute has been determined to provide use immunity for a parent’s statements made not only during juvenile dependency proceedings, but also as to any statements made during court ordered therapy. Providing only use immunity, however, has been deemed not to be coextensive with the Fifth Amendment, and as such, the California courts are unable to compel a parent’s testimony. The court explains its reasoning as to why immunity is important by stating that “dependency proceedings are not pursued for the purpose of marshaling evidence of guilt but are designed to facilitate reunification of the family and to assemble all relevant evidence for the court to make an informed disposition.” California courts state that to force a parent “to choose between incriminating [oneself] or having little chance of complet[ing] reunification… ‘such unpalatable alternatives runs counter to our historic aversion to cruelty reflected in the privilege against self-incrimination.’ ”
2. New York
In 1972, New York provided its own answer to such a difficult dilemma. Pursuant to McKinney’s Family Court Act, the state legislature provided that “the court may grant the respondent or potential respondent testimonial immunity in any subsequent criminal court proceeding.” Although not explicit by the statute, the courts have determined that in view of the historical context of the term ‘testimonial immunity’, it should be interpreted as covering both derivative use of a respondent's testimony as well as the testimony itself. The statute, as a result, is co-extensive with the protection afforded by the Fifth Amendment. The drawback, however, is that the statute is not mandatory, but rather lies at the discretion of the court to be implemented. One instance where the judge may enact the rule is when a parent asks for a stay of the civil abuse and neglect proceeding until the criminal counterpart has been completed. As a result, the court may decide against the stay, and instead provide use and derivative use immunity to the parent “to alleviate any unfairness to respondent and to encourage her to testify so that this court will be as well informed as possible.”
IMMUNITY: IN OTHER CIRCUMSTANCES
A review of the areas of law where immunity is required in order to protect an individual’s Fifth Amendment privilege is essential to formulating an appropriate plan for Illinois using immunity in juvenile proceedings.
1. Motion to Suppress
“When a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection.” The Supreme Court, in Simmons v. U.S., reasoned that although “[a] defendant is ‘compelled’ to testify in support of a motion to suppress only in the sense that if he refrains from testifying he will have to forego a benefit … [when] the benefit to be gained is that afforded by another provision of the Bill of Rights, an undeniable tension is created.” The defendant in Simmons was “obliged either to give up what he believed, with advice of counsel, to be a valid Fourth Amendment claim or, in legal effect, to waive his Fifth Amendment privilege against self-incrimination.” In these circumstances, the court found it to be “intolerable that one constitutional right should have to be surrendered in order to assert another.”
Instituting a motion to suppress, however, is not a guarantee that one will succeed on his Fourth Amendment claim. Abuse and neglect proceedings may be seen in a similar light. The parent is faced with the choice of testifying in hopes of retaining a ‘benefit’, his fundamental right to familial association, or remaining silent and having the worst presumed. When children are involved, there are pressures above and beyond just that of the parents own selfish concerns. When such an ‘intolerable’ choice is forced upon an individual, be it in a civil or criminal trial, the same policy that the court holds here at least merit’s investigation of the less intrusive alternative of providing statutory immunity.
The interplay of immunity with public employment has been determined by the Supreme Court through two separate decisions. The first, in Garrity v. State of New Jersey, where police officers who were being investigated were faced with the decision of either testifying and risking self-incrimination or not to testifying and forfeiting their employment. The court ruled “that when a policeman had been compelled to testify by the threat that otherwise he would be removed from office, the testimony that he gave could not be used against him in a subsequent prosecution.”
In the second case, Gardner v. Broderick, the court held “that a policeman who refuses to waive his privilege against self-incrimination or to sign a waiver of immunity may not be dismissed from office solely for that refusal.” Dismissal is allowed, however, if the “appellant, a policeman, had refused to answer questions specifically, directly, and narrowly relating to the performance of his official duties, without being required to waive his immunity with respect to the use of his answers or the fruits thereof in a criminal prosecution of himself, the privilege against self-incrimination would not have been a bar to his dismissal.”
Illinois has ruled that the “net of these decisions, …, is that if a public employee refuses to testify as to a matter concerning which his employer is entitled to inquire, he may be discharged for insubordination, but if he does testify his answers may not be used against him in a subsequent criminal prosecution.” The result is, if the employee does not testify, he will most likely lose his employment, where as if he does testify, he may or may not remain employed, but either way, his testimony is secured against being used against him.
These employment situations are similar to the situation at hand in abuse and neglect proceedings. But if a parent does not testify and an adverse inference is applied, it is likely that the children will at least be temporarily removed. If the parent chooses to testify, he may or may not lose his children; however, he is not afforded the same protection as public employees and will not receive protection from his statements made.
An attorney undergoing disciplinary hearings is afforded the full protection of the Fifth Amendment and assertion of that privilege is not grounds for disbarment. The Supreme Court stated that “[t]he threat of disbarment and the loss of professional standing, professional reputation, and of livelihood are powerful forms of compulsion to make a lawyer relinquish the privilege.” However, the courts have afforded attorneys the same right to immunity in answering to the attorney disciplinary committee as public employees.
In Lefkowitz v. U.S., the Supreme Court ruled that a statute, disqualifying contractors from contracting with the government for a term of five years if they were to refuse to testify to a grand jury or waive immunity, was held to be unconstitutional. The court stated that “[a] waiver secured under threat of substantial economic sanction cannot be termed voluntary.” “[A]nswers elicited upon the threat of the loss of employment are compelled and inadmissible in evidence.” “[I]f answers are to be required in such circumstances, States must offer to the witness whatever immunity is required to supplant the privilege and may not insist that the employee or contractor waive such immunity.”
“Immunity is required if there is to be ‘rational accommodation between the imperatives
of the privilege and the legitimate demands of government to compel citizens to testify.’” “It is in this sense that immunity statutes have ‘become part of our constitutional fabric.’” The United States Supreme Court has held that an individual cannot be forced to choose between the risk of self incrimination and foregoing a motion to suppress, the loss of public employment, disbarment, or disqualification from holding and obtaining contracts for public work. “Statements in these decisions as to ‘the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will', would, if read literally, embrace and invalidate the conduct of the instant child abuse trial prior to the criminal proceedings against respondent.” “For, her ‘free choice to speak out or to remain silent’, about the charged crime would be affected by the fact that her silence would cost her the opportunity to defend herself against the allegations of child abuse.” That said, caution is needed. “[I]n each of the above cases a respondent or defendant's choice against testifying and risking self incrimination resulted in a direct and automatic loss of a benefit, and there appears to be no United States Supreme Court decision invalidating a less drastic consequence.” In analyzing abuse and neglect proceedings, they are not so different from the situations in which the above mentioned philosophy has been utilized by the United States justice system.
It should be remembered that there are two parts to abuse and neglect proceedings where admitting guilt may later incriminate the parent. First is testimony at trial. Recall that if a parent does not testify, an adverse inference is allowable against the parent. Courts have held, however, that an adverse inference, which on its own is insufficient to remove the children, does not amount to a direct and automatic loss of a benefit. But in reality, the only additional requirement for a parent to lose his benefit or rights is that there be some additional evidence. This additional requirement is already met by the time of trial in that the case would not have been brought if DCFS did not have at least some evidence. The Department does not rely on the alleged abusers testimony to make a case for otherwise immunity would have to be granted. Since the additional evidence will assuredly be there, then this is not really any different than other cases where the courts have held it impermissible to force a citizen to give up a ‘direct and automatic loss of a benefit’ or waive his privilege under the Fifth Amendment.
Second, if children are removed due to a parent remaining silent and the adverse inference is being held against them, the parent will be placed on a service plan where he will generally be required to undergo therapy for the abuse. Many therapists in require an admission of guilt as a pre-requisite to completing the program. Although the courts have held that they cannot order therapy requiring an admission of guilt, they can order meaningful therapy, and one court has interpreted that meaningful therapy may sometimes require such an admission. Further, the burden inappropriately switches to the parent to prove that no possibility of meaningful therapy existed without an admission, near impossible to meet burden. By choosing to remain silent, a parent is essentially losing a direct, and nearly automatic, benefit. As a result, protection should be afforded the parent to prevent the ‘intolerable’ choice between his children or his Fifth Amendment right. A parent’s right to raise his children is arguably vastly more important than a government contractor or employee remaining employed. Therefore, immunity should be allotted to the parent in juvenile proceedings as it is to the lesser entitled person subject to losing employment benefits.
“The privilege against self-incrimination would be reduced to a hollow mockery if its exercise could be taken as equivalent either to a confession of guilt or a conclusive presumption of perjury.” Yet this is exactly what is prescribed from presuming a negative inference. As the court pointed out in Ullmann v. U.S., “a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing … [and the ] privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances.” “The possibility of such self incrimination through testimony intended as exculpation must be recognized; for even a defendant's admission that he knew a guilty person might ‘link’ him with a crime despite his innocence.” The “prosecutorial use of any testimony by respondent herein must be viewed as a realistic risk, considering the District Attorney's frequent efforts to secure transcripts of the testimony in child abuse cases.” As such, the parent faces a difficult choice, protect his fundamental right and benefit of familial association by testifying, or assert his Fifth Amendment privilege. “'To force an individual to choose ... such unpalatable alternatives runs counter to our historic aversion to cruelty reflected in the privilege against self-incrimination.”
When two constitutional rights are in conflict with one another, and a less restrictive alternative, such as immunity as suggested herein, is available, the government should take action and implement procedures to reduce the burden resulting from the conflict. Immunity would provide additional information to the courts, assisting them in making decisions best in line with the interests of all those involved: the parent, children, spouse, siblings, and the public in general. In analyzing other states’ laws, the best approach in protecting a parent’s fundamental right of association with his children would be for the state legislature to provide statutory immunity co-extensive with the parent’s Fifth Amendment privilege. As a suggested modification to the Juvenile Court Act of 1987, the following language would be sufficient to provide a parent just such protection:
No testimony provided by a parent, guardian, or other person having the custody of the minor made the subject of an abuse and neglect proceeding under the Juvenile Court Act of 1987, or any information directly or indirectly derived from that testimony shall be admissible as evidence in any other action or proceeding.
The recommended change would provide the much needed protection to the parent or guardian by providing both use and derivative use immunity and enable the court to compel testimony in abuse and neglect proceedings. Such a statute would act to protect the aforementioned interests, while merely limiting the states’ rights to the testimony which, if it were not for the need for brevity in abuse and neglect proceedings to protect the child, the state would not have in the first place. Statutory immunity would provide protection where there currently is none with only minimal intrusiveness on governmental interests, and therefore should be adopted and implemented by the State of Illinois for juvenile proceedings.
Colleen McMahon, Due Process:Constitutional Rights and the Stigma of Sexual Abuse Allegations in Child Custody Proceedings, 39 Cath. Law. 153, 153 (1999) (discussing due process concerns of a parent accused of sexual abuse in family courts).
David H. Taylor, Defending the Indefensible to Further A Later Case: Sanctioning Respondents in Illinois Domestic Violence Cases, 23 N. Ill. U.L. Rev. 403, 403 (2003) (discussing the interests of the petitioner when domestic violence occurs in Illinois).
750 Ill. Comp. Stat. 60/101 (West, Westlaw through P.A. 96-890 of the 2010 Reg. Sess.); see also People v. Houar, 302 Ill. Dec. 890 (app. Ct. 2d Dist. 2006) (drawing of a negative inference permitted in child abuse and neglect cases).
In re A.W., 231 Ill. 2d 92, 324 Ill. Dec. 530, 539, 896 N.E.2d 316, 325 (2008) (Court may not mandate therapy requiring respondent to admit to the abuse or neglect, but may order “meaningful therapy”).
325 Ill. Comp. Stat. 5/1 (West, Westlaw through P.A. 96-890 of the 2010 Reg. Sess.)
325 Ill. Comp. Stat. 5/4
325 Ill. Comp. Stat. 5/2
325 Ill. Comp. Stat. 5/5
705 Ill. Comp. Stat. 405/2-9(1) (West, Westlaw through P.A. 96-890 of the 2010 Reg. Sess.)
705 Ill. Comp. Stat. 405/2-9(2)
705 Ill. Comp. Stat. 405/2-13.
705 Ill. Comp. Stat. 405/2-10 (2)
705 Ill. Comp. Stat. 405/2-10 (2)
705 Ill. Comp. Stat. 405/2-14(b)
705 Ill. Comp. Stat. 405/2-21(1)
705 Ill. Comp. Stat. 405/2-21(2)
705 Ill. Comp. Stat. 405/2-22(1)
705 Ill. Comp. Stat. 405/2-22(1)
89 Ill. Adm. Code 315.80(a) (West, Westlaw through April 16, 2010).
89 Ill. Adm. Code 315.130(d)(2-3)
705 Ill. Comp. Stat. 405/2-22(5)
705 Ill. Comp. Stat. 405/2-28(2)
705 Ill. Comp. Stat. 405/2-28(2)(B-1)
750 Ill. Comp. Stat. 60/101; see also Houar, 302 Ill. Dec. 890 (drawing of a negative inference permitted in child abuse and neglect cases).
705 Ill. Comp. Stat. 405/2-10 (2)
In re A.W., 896 N.E.2d 316, 325 (2008); citing Lefkowitz v. Cunningham, 431 U.S. 801, 805 (1977).
750 Ill. Comp. Stat. 60/101; see also Houar, 302 Ill. Dec. 890.
In Re A.W., at 110.
Id. at 108.
William Lesley Patton, The World Where Parallel Lines Converge: The Privilege Against Self-Incrimination in Concurrent Civil and Criminal Child Abuse Proceedings, 24 Ga. L. Rev. 473, 499 (1990).
Id. at 500.
98 C.J.S. Witnesses § 555 (2009)
1 Trial Handbook for Illinois Lawyers – Criminal § 46:24 (2009); see also 725 Ill. Comp. Stat. 5/106-2 (West, Westlaw through P.A. 96-890 of the 2010 Reg. Sess.).
Kastigar v. U.S., 406 U.S. 441, 92 S.Ct. 1653 (U.S.Cal. 1972); citing Blair v. U.S, 250 U.S.273
Kastigar, 406 U.S. at 446.
Patton, supra note 29, at 486; citing Wisconsin v. Yoder, 406 U.S.205, 232 (1972); Quillion v Walcott, 434 U.S. 246, 254-56 (1978); Smith v. Organization of Foster Families, 431 U.S. 816, 823-24, 843-46 (1977); see also Griswold v. Connecticut, 381 U.S. 479 (1965).
89 Ill. Admin. Code 315.50
Patton, supra note 29, at 486.
Id. at 489.
Id. at 492
Cal.Welf. & Inst.Code § 355.1(f) (West, Westlaw through all 2009 Reg.Sess. laws; all 2009-2010 1st through 5th, 7th, and 8th Ex.Sess. laws; urgency legislation through Ch. 19 of the 2010 Reg.Sess.; and propositions on the 6/8/2010 ballot).
Id.; see also In re Katrina L., 200 Cal. App. 3d 1288, 1295, 247 Cal. Rptr. 754 (1st Dist. 1988).
In re Jessica B. 207 Cal. App. 3d 504, 517, 254 Cal. Rptr. 883 (5th Dist., 1989).
Id.; citing, Ramona R. v. Superior Court, 37 Cal.3d at p. 810.
N.Y. McKinney's Family Court Act § 1014(d) (West, Westlaw through through L.2010, chapters 1 to 49, 52 and 61 to 68.)
Matter of Vance A., 105 Misc.2d 254, 432 N.Y.S.2d 137 (N.Y.Fam. Ct 1980).
Id.; citing Piccirillo v New York, 400 U.S. 548, 568 [BRENNAN, J. dissenting]); Tierney vUnited States, 409 U.S. 1232, 1233-1234.
Simmons v. U.S., 390 U.S. 377, 394, 88 S.Ct. 967, 976 (U.S.Ill. 1968).
Id. at 394.
Gardner v. Broderick 392 U.S. 273, 276-277, 88 S.Ct. 1913, 1915 (U.S.N.Y. 1968); citing Garrity v. State of New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967).
Krammer v. Bd. Of Fire & Polisce Com’rs of Vill. Of Lombard, 44 Ill.2d 500, 506, 256 N.E.2d 12, 16 (Ill., Jan 28, 1970); citing Gardner v. Broderick 392 U.S. 273, 278, 88 S.Ct. 1913, 1916 (U.S.N.Y. 1968).
Spevack v. Klein, 385 U.S. 511, 516, 87 S.Ct. 625, 628 (U.S.N.Y. 1967): citing, United States v. White, 322 U.S. 694, 698, 64 S.Ct. 1248, 1251, 88 L.Ed. 1542.
Lefkowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316 (U.S.N.Y. 1973).
Id. at 82-83.
Id. at 85.
Id. at 81-82; citing Kastigar, 406 U.S. at 446.
Id. at 82; citing, Ullmann v. United States, 350 U.S. 422, 438, 76 S.Ct. 497, 506, 100 L.Ed. 511 (1956).
Matter of Vance A. 105 Misc.2d at 258 -259; citing Simmons, 390 U.S. at 394; Gardner v Broderick, 392 U.S. 273; Sanitation Men v Sanitation Comr., 392 U.S. 280; Garrity v New Jersey, 385 U.S. 493; Spevack v Klein, 385 U.S. 511; and Lefkowitz, 431 U.S. at 806.
Matter of Vance A., 105 Misc.2d at 258 -259; citing Spevack, 385 U.S. at 514.
Matter of Vance A., 105 Misc.2d at 258 -259; citing Garrity, 385 U.S., at 497.
Matter of Vance A., 105 Misc.2d at 258 -259.
Slochower v. Board of Higher Ed. of City of New York, 350 U.S. 551, 557-558, 76 S.Ct. 637, 641 (U.S. 1956)
Ullmann v. United States, 350 U.S. 422, 438, 76 S.Ct. 497, 506, 100 L.Ed. 511 (1956); see also Slochower, 350 U.S. at 557-558.
Matter of Vance A., 105 Misc.2d at 257; citing Grunewald v United States, 353 U.S. 391, 422; see also Baxter v Palmigiano, 425 U.S. 308, 327. [Brennan, J., dissenting in part].
Matter of Vance A., 105 Misc.2d at 257.
In re Jessica B., 207 Cal.App.3d at 520 -521; citing Ramona R. v. Superior Court, supra, 37 Cal.3d at p. 810.