Threat to take away kids is coercive

Jennifer Roth, former ADO and current Shawnee County PD, won in State v. Brown, No. 96,862 (Kan. May 16, 2008) affirming Judge Parrish's suppression of statements in a Shawnee County child abuse prosecution. My previous blogs about this case here and here provide more details. Although the KSC didn't draw an absolute line, it made it clear that coercive statements obtained during CINC proceedings are not likely to later be admissible in a criminal case:

An excerpt from the case plan for the time from May 20, 2003, to November 16, 2003, shows the task: "Chris and/or Michelle will admit how injuries were sustained to children." A termination of parental rights motion was filed on January 16, 2004, and one of the factual bases listed was that the parents allowed the children to be harmed and could not or would not provide a reasonable explanation for the injuries. A permanency-objectives form listed a target date of August 16, 2004, for the parents to admit how the injuries were sustained to the children, showing that the task continued to be required after the termination motion was filed. Kansas children's Services League reports informed the district court that the agency could not assure the safety of the children in the parents' home until the cause of the injuries was made known.

The pretrial conference for the termination proceedings was set for January 5, 2005, and the trial was set for March 29, 2005. The records from the child in need of care (CINC) proceedings did not show any additional problems in the family. The caseworker's deposition confirmed there were no problems such as drug abuse or other issues of a major concern outside of the parents' inability to provide a reasonable explanation for the injuries.

These facts show that Brown was placed in a "classic penalty" situation. Although SRS may not have been motivated to obtain an admission of abuse because it planned to ensure a criminal prosecution, the penalty that Brown faced if he did not make a statement to SRS was the type of penalty capable of coercing incriminating testimony from him. His failure to invoke his constitutional privilege against self-incrimination is therefore excused, and the privilege became self-executing under the facts of this case.

The KSC went on to reject any sort of balancing between the privilege against self-incrimination with the state's interest in protecting the child:

The State also argues that the Court of Appeals improperly relied on cases in which the purpose of the interrogations was to aid law enforcement in preparing a criminal case. The State distinguishes the present case because the admissions that the State was seeking were aimed at protecting children from abuse and neglect and were not aimed at preparing a criminal case against the defendant. The argument follows that the purpose in trying to get the information from the Browns was constructive so that recommendations could be made to ensure the parents would be able to safely parent their children.

It appears the State seeks to balance its interest in protecting the welfare of children against a parent's constitutional privilege against self-incrimination. The United States Supreme Court, however, has rejected such a balancing of interests when dealing with the privilege against self-incrimination "in its pristine form." New Jersey v. Portash, 440 U.S. 450, 459 (1979) ("Balancing . . . is not simply unnecessary. It is impermissible.").

We are not called upon in this case to set out rules governing how social service agencies should conduct CINC investigations or treatment plans other than to state that such CINC proceedings based on those investigations and/or intervention plans must remain within constitutional limits.

It seems like a correct result that, where the state threatens to take away your children unless you confess, those statements are not voluntary. And every judge that looked at the question thought so!