In re: L.C.Â
253 N.C. App. 67
| N.C. Ct. App. | 2017Background
- Infant Lily (under 8 months) suffered serious injuries in Feb and April 2016 (fractured ribs, possible femur injury, bite-mark bruise; later clavicle fracture, brain hemorrhage, facial and other bruising).
- Respondent (mother) lived with boyfriend Matt and others; DSS required polygraphs of adults; Matt refused and was excluded from contact by a safety plan.
- Respondent left Lily in Matt’s care on April 7, 2016; Lily was hospitalized April 9; Respondent delayed seeking care for two days because she feared DSS removal.
- DSS filed a juvenile petition (abuse, neglect, dependency) and obtained custody; criminal charges were pending against both Respondent and Matt.
- At the adjudicatory hearing DSS called Respondent to testify (she was a compelled witness). Respondent invoked the Fifth when asked who she thought caused February injuries; the trial court ordered her to answer. The court adjudicated Lily abused, neglected, and dependent, ceased reunification, and set adoption as the permanent plan.
Issues
| Issue | Plaintiff's Argument (DSS) | Defendant's Argument (Respondent) | Held |
|---|---|---|---|
| Whether ordering Respondent (compelled witness) to answer who she thought caused earlier injuries violated Fifth Amendment | Respondent waived privilege by voluntarily answering other questions; could be compelled on subject matter | She was compelled to testify and explicitly invoked Fifth when asked an incriminating question; court erred in forcing answer | Court: Fifth Amendment violated for that specific compelled question; testimony on that point must be disregarded and abuse adjudication vacated and remanded |
| Whether findings supported adjudication of abuse | DSS relied on Respondent’s testimony that she knew Matt caused February injuries | Respondent says the incriminating testimony was compelled and inadmissible | Because the incriminating answer was compelled and relied upon, the adjudication of abuse is vacated and remanded (prejudice cannot be ruled harmless) |
| Whether findings supported adjudication of neglect and dependency | DSS relied on Respondent leaving child with Matt and delaying care | Respondent argued infirmities in findings and Fifth Amendment issues | Neglect adjudication affirmed (supported by independent evidence: leaving with Matt and two-day delay). Dependency adjudication vacated for lack of required findings on parental ability and alternative care |
| Whether dispositional orders (ceasing reunification; adoption plan without relative-findings) were supported | DSS argued aggravated circumstances & appropriate disposition | Respondent argued court lacked prior-court determination of aggravated circumstances and failed to make required relative-placement findings | Court vacated order ceasing reunification under §7B-901(c) (requires prior court determination per In re G.T.), and vacated/remanded adoption/placement decision for failure to make required findings about relative placements under §7B-903(a1) |
Key Cases Cited
- Debnam v. N.C. Dep’t of Correction, 334 N.C. 380 (N.C. 1993) (Fifth Amendment privilege applies in civil proceedings)
- Herndon v. Herndon, 368 N.C. 826 (N.C. 2016) (distinguishes compelled vs. voluntary witnesses and scope of Fifth Amendment invocation)
- Brown v. United States, 356 U.S. 148 (U.S. 1958) (voluntary witness standard and choice to testify vs. assert privilege)
- In re Trogdon, 330 N.C. 143 (N.C. 1991) (finder of fact may draw adverse inference from invocation of Fifth in civil case)
- State v. Eason, 328 N.C. 409 (N.C. 1991) (trial court must determine whether an answer would reasonably be self-incriminating before compelling testimony)