Baltimore City Department of Social Services. v. Bouknight
493 U.S. 549 (1990)
Rule of Law:
A parent who has accepted custody of a child subject to a court order as part of a noncriminal, civil regulatory scheme for child welfare cannot invoke the Fifth Amendment privilege against self-incrimination to resist a court order to produce the child.
Facts:
- At three months old, Maurice M. was hospitalized with a fractured femur and other injuries indicative of severe physical abuse.
- Hospital personnel observed Maurice's mother, Jacqueline Bouknight, handling him in a manner inconsistent with his recovery.
- A juvenile court declared Maurice a 'child in need of assistance,' placing him under the oversight of the Baltimore City Department of Social Services (BCDSS).
- The court permitted Bouknight to retain custody of Maurice, conditioned on her agreement to cooperate with BCDSS and adhere to a protective supervision order.
- Eight months later, BCDSS reported that Bouknight had violated nearly all conditions of the protective order and was uncooperative.
- When BCDSS caseworkers visited Bouknight's home on two occasions, she refused to produce Maurice or disclose his location.
- Inquiries with Bouknight's known relatives revealed that none had recently seen Maurice.
- BCDSS prompted police to issue a missing persons report and referred the case for a homicide investigation, expressing fears that Maurice was endangered or deceased.
Procedural Posture:
- The Baltimore City Department of Social Services (BCDSS) petitioned the juvenile court to remove Maurice M. from the custody of his mother, Jacqueline Bouknight.
- The juvenile court ordered Bouknight to produce Maurice. When she failed to comply, the court held her in civil contempt and ordered her imprisoned until she produced the child.
- Bouknight appealed the contempt order to the Court of Appeals of Maryland (the state's highest court), arguing it violated her Fifth Amendment privilege against self-incrimination.
- The Court of Appeals of Maryland vacated the contempt order, ruling that it unconstitutionally compelled Bouknight to provide incriminating testimony through the act of production.
- BCDSS, as petitioner, successfully sought a writ of certiorari from the U.S. Supreme Court to review the decision of the Maryland Court of Appeals.
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Issue:
Does the Fifth Amendment privilege against self-incrimination protect a parent, who is the custodian of her child under a court order, from a juvenile court's order to produce the child?
Opinions:
Majority - Justice O’Connor
No. The Fifth Amendment privilege against self-incrimination does not protect a parent from a court order to produce their child when that parent's custody is subject to a noncriminal, civil regulatory scheme designed to protect the child's welfare. Although the act of producing the child may have a testimonial aspect by implicitly communicating control, the privilege is not absolute. When Bouknight accepted custody of Maurice under the conditions of the court's protective order, she submitted to a civil regulatory regime and assumed an obligation to permit inspection for the child's welfare. This regime is not directed at a 'selective group inherently suspect of criminal activities' but is a broad system to protect children. The state's demand for production is for compelling reasons unrelated to criminal law enforcement, and in this context, the testimonial aspect of production is a necessary component of the regulatory scheme that overrides the parent's privilege.
Dissenting - Justice Marshall
Yes. The Fifth Amendment privilege against self-incrimination should protect a parent from being compelled to produce her child when doing so presents a 'real and appreciable' threat of incrimination. The majority's reliance on the 'collective entity' and 'civil regulatory' doctrines is misplaced. Bouknight is Maurice's mother acting in a personal capacity, not an agent of an entity with no Fifth Amendment rights. Furthermore, Maryland's juvenile welfare system is not a neutral civil scheme; it is 'intimately related' to the enforcement of criminal child abuse statutes and is targeted at a selective group—parents suspected of abuse or neglect. The act of production could be a crucial link in a potential criminal prosecution for abuse, neglect, or even homicide, and the court should not deny Bouknight's constitutional protection now in the hope that her compelled testimony will not be used against her later.
Analysis:
This decision carves out a significant exception to the Fifth Amendment's act-of-production privilege, prioritizing the state's regulatory interest in child welfare over an individual's right against self-incrimination in civil proceedings. The Court extended the logic of the 'required records' and 'custodian' doctrines, previously applied mainly in commercial contexts, to the deeply personal parent-child relationship. This ruling establishes that when a parent's custody is governed by a court-supervised child protection plan, that parent's obligations to the civil regulatory scheme can override their Fifth Amendment privilege, potentially forcing them to provide evidence that could be used in a subsequent criminal prosecution.
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