In re Interest of Vladimir G.
944 N.W.2d 309
Neb.2020Background:
- Child (Vladimir, b. July 2016) treated in March 2018 for abusive head trauma, large abrasion, fractures, and multiple bruises; State filed petition under Neb. Rev. Stat. § 43-247(3)(a).
- Mother Abigail had sought a February 2018 exam alleging possible sexual abuse by her boyfriend, Thomas Boyd, and had told authorities she would not allow Boyd contact with the child; nevertheless she left the child in Boyd’s care in March when the serious injuries occurred.
- At the March 6, 2019 adjudication hearing Abigail invoked the Fifth Amendment; the court initially overruled, Abigail testified after the State stipulated a continuing objection, and later moved to strike her testimony; the court denied the motion.
- Depositions of treating physician and nurse (admitted without objection) concluded injuries were consistent with abuse occurring while Vladimir was with Boyd; some deposition notes conflicted with Abigail’s testimony.
- The county court adjudicated Vladimir under § 43-247(3)(a), finding Abigail’s decision to leave him with Boyd or her lack of concern placed him in danger; Abigail appealed asserting Fifth Amendment/statutory right violations and insufficiency of evidence.
- The Nebraska Supreme Court held that a parent may invoke the Fifth Amendment in juvenile adjudications, any error in requiring Abigail’s testimony was not reversible, and the evidence (without her arguably incriminating testimony) sufficed to affirm the adjudication.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court violated Abigail’s Fifth Amendment/statutory right by compelling her testimony after she invoked the privilege | Abigail: court forced her to testify despite invoking Fifth and statutory notice; immunity offer after testimony insufficient; other authorities might prosecute | State: Abigail’s testimony was not incriminating, State would not prosecute and offered immunity, and blanket refusals were improper | Parent may invoke Fifth in adjudication; court could have honored privilege but any error in admitting her testimony was not reversible because testimony was not shown to unfairly prejudice and Fifth violation requires use in criminal prosecution |
| Whether evidence was sufficient to adjudicate Vladimir under § 43-247(3)(a) | Abigail: evidence insufficient; court applied strict liability by holding her responsible for injuries occurring in another’s care; she lacked notice that her ongoing relationship with Boyd was a basis | State: depositions and deputy testimony show injuries consistent with abuse while child was with Boyd and Abigail left child in Boyd’s care despite prior concerns | Evidence met the preponderance standard; adjudication supported on either or both statutory bases even excluding Abigail’s arguably incriminating testimony |
Key Cases Cited
- State v. Phillips, 286 Neb. 974, 840 N.W.2d 500 (2013) (standards for invoking Fifth Amendment; liberal construction and line-of-questioning analysis)
- Hoffman v. United States, 341 U.S. 479 (1951) (privilege extends to answers that might incriminate and to considering a line of questioning)
- Lefkowitz v. Turley, 414 U.S. 70 (1973) (compelled testimony must be protected against use and derivative use in later criminal cases)
- Chavez v. Martinez, 538 U.S. 760 (2003) (Fifth Amendment violation occurs only if compelled testimony is used in a criminal prosecution; prophylactic immunity discussion)
- Allen v. Illinois, 478 U.S. 364 (1986) (Fifth Amendment privilege can be asserted in civil proceedings)
- Behrens v. Blunk, 280 Neb. 984, 792 N.W.2d 159 (2010) (privilege applies at multiple stages of proceedings, including discovery)
- In re Interest of Clifford M., 6 Neb. App. 754, 577 N.W.2d 547 (1998) (parents may assert Fifth Amendment privilege in termination proceedings)
- In re Interest of Giavonni P., 304 Neb. 580, 935 N.W.2d 631 (2019) (juvenile appeals reviewed de novo on the record)
- In re Interest of Jeremy U., 304 Neb. 734, 936 N.W.2d 733 (2020) (petition must give parent notice; State must prove allegations by preponderance)
- State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006) (trial court must inquire and exercise discretion whether Fifth claims are justifiable)
- Weyh v. Gottsch, 303 Neb. 280, 929 N.W.2d 40 (2019) (in civil cases evidentiary error is reversible only if it unfairly prejudices a substantial right)