In re L.C., ___ N.C. App. ___, 800 S.E.2d 82 (2017)

Held: 
Vacated and Remanded in Part

 

  • Facts: Respondent mother, who had pending misdemeanor child abuse charges as a result of leaving her child in a specific person’s care in violation of a safety plan with DSS, was summonsed to appear at the adjudicatory hearing. She was called as the sole witness in the A/N/D adjudicatory hearing by the DSS attorney. After answering questions about the safety plan that she agreed to after her child was injured the first time, the respondent mother invoked her V Amendment right when she was directly asked who she thought caused her child’s injuries. The court ordered her to answer after concluding that she had waived her right to invoke the privilege by answering earlier questions about the safety plan and the specific individual.
  • The V Amendment privilege against self-incrimination in a future criminal proceeding extends to civil proceedings. The finder of fact in the civil action may use the witness’ invocation of that privilege to infer that the testimony would have been unfavorable to her.
  • The standard of review for alleged constitutional violations is de novo. Applying the reasoning  discussed in Herndon v. Herndon, 368 N.C. 826 (2016) regarding the V Amendment’s application to a voluntary versus a compelled witness, respondent mother was a compelled (not voluntary) witness as a result of being called by the adverse party even in the absence of a subpoena. Unlike a voluntary witness, who can choose whether or not to testify after weighing the advantage of taking the privilege against putting forward her version of the facts and her reliability as a witness, a compelled witness must testify and “has no occasion to invoke the privilege against self-incrimination until testimony sought to be elicited will in fact tend to incriminate.”  Herndon at 830. It’s at that point that a compelled witness may invoke or waive the privilege. If the compelled witness invokes the privilege, the court may order her to testify if it determines the answer will not be self-incriminating. Respondent’s answer was incriminating, and she was deprived of her constitutional right against self-incrimination. The court should not have considered the answer when determining whether the child was abused.
  • Although not all constitutional errors are prejudicial, respondent mother was prejudiced in this action. The finding that respondent knew that an individual caused the child’s initial injuries supports the determination that the child was abused as a result of respondent allowing the creation of a substantial risk of serious physical injury by other than accidental means when the child suffered a second round of injuries after being left by the respondent in that same individual’s care. See GS 7B-101(1). Although not knowing the weight given to respondent’s testimony, it appears that her testimony likely constituted the primary basis for the finding.
Category:
Abuse, Neglect, Dependency
Stage:
Adjudication
Topic:
Abuse
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