In Re Ariel G.

SALMON, Judge. Ariel G., who was born on January 28, 1991, is the son of Teresa Brock. On September 18, 2000, the Circuit Court for Baltimore City found Ariel to be a child in need of assistance (CINA) and placed him in the custody of the Baltimore City Department of Social Services (BCDSS). The BCDSS put Ariel in a Carroll County foster home, but on January 9, 2001, he left the home without permission.

Police looked for Ariel’s mother, Ms. Brock, but could not ⁷⁰⁰ locate her. Soon thereafter, the police came to believe that Ms. Brock had absconded with Ariel. Meanwhile, Ms. Brock had been charged in the Circuit Court for Baltimore City with constructive contempt of court for other (unrelated) misconduct involving Ariel. A bail hearing was held on August 3, 2001, on the constructive contempt matter.

After bail was set, Ms. Brock was brought back into court, before the same judge who had presided at the bond hearing but who was then sitting in his capacity as a juvenile court judge. A hearing was held by the juvenile court judge concerning the whereabouts of Ariel. Ms. Brock objected to the hearing, on the ground that neither she nor her counsel had received adequate notice of the hearing. Counsel said: First and foremost, I’ve not been given any notice of what proceeding was going to .be called when your office called me this afternoon at two o’clock and left a message; it was simply that Ms. Brock was here and to get over here.

And I’ve done so. The first thing that I was presented with was a constructive criminal contempt petition that was served on my client and myself, and I’ve dealt with that matter. I have no idea what Mr. Cohen [an attorney for the BCDSS] intends to call. I was only told that whatever CINA eases would also be added to the docket.

I have a great concern, Your Honor, with notice in both of these matters. That effectively, I received notice at two o’clock this afternoon that my client was going to be brought before the court. All I was told about the CINA case is that they were adding a CINA case to the docket. And now I hear that it’s the civil contempt, when we’ve just dealt "with the criminal contempt.

I have not received any notice of any petition of the civil contempt Your Honor. The prosecutor responded, Your Honor, there is no petition. The issue is that Ms. Brock has absconded with the child. The court needs to ask her where the child is and then we’ll deal with what happens after [unclear].

There’s no petition in this case yet. Until ⁷⁰¹ the court confronts Ms. Brock with the question as to whether or not she’s in contempt of court. The court was informed by Mr. Cohen that two representatives of the Carroll County State’s Attorney’s office had advised him that Ms. Brock “had indicated that she does have the child.” The court then asked Ms. Brock, “Do you know anything about the whereabouts of Ariel G.?” After conferring with counsel, Ms. Brock declined to answer the question on Fifth Amendment grounds. Immediately thereafter, the court said, “Well, I find you in contempt.

And you will remain in jail until you purge yourself of that contempt by revealing the whereabouts of Ariel G.” A written order was entered by the court that read, in pertinent part: The following order(s) resulted from a Child in Need of Assistance hearing. As a result of the other (miscellaneous) hearing in the above case(s), the Court finds: The mother was present, and represented by APD [Assigned Public Defender] Beverly Schulterbrandt. The BCDSS posed the question to the mother as to the whereabouts of her son. The court asked the mother the question as to the whereabouts of her son.

The mother invoked her 5th Amendment to remain silent. The court ordered that the mother remain in the BCDC [Baltimore City Department of Corrections] under Civil Contempt, until she purges the contempt by revealing the whereabout of her son. It is further ordered that the Clerk of the Court cause a copy of this order to be served upon the parties to this proceeding. So ordered by this Court, on this 6th day of August, 2001.

No appeal was filed from the August 6, 2001, order. A purge review hearing was held on January 16, 2002, and Ms. Brock again refused to answer the court’s question as to the whereabouts of Ariel G. Due to her failure to answer the ⁷⁰² same question as previously posed, her imprisonment was continued. Another purge hearing was held on June 5, 2002. This time Ms. Brock said she did not know Ariel’s present whereabouts because she had not seen him for ten months.

The following then transpired, [COUNSEL FOR BCDSS]: Where were you when you last saw him ten months ago? A. I have to plead the Fifth on that. Q. I can’t hear you. A. I cannot answer that at this time.

I have a [pending] criminal case. I take the Fifth Amendment. I have a case pending in Carroll County. Q. Okay.

So your answer is that you take the Fifth Amendment, right? But the last time you saw him you said was ten months ago? The criminal charges to which Ms. Brock referred were charges pending in Carroll County arising from her (alleged) act of absconding from the foster home with Ariel G. The court orally ruled as follows: She knew where he was ten months ago. Now that question has been asked and she will not reveal where he was ten months ago based on her Fifth Amendment privilege.

And the problem that I have is if she was willing to tell [where] he was ten months ago then there would have be[en] an attempt to purge but there has been no attempt to purge. * * ❖ She hasn’t answered the question. And (unintelligible) where the child is and she certainly knew where he was ten months ago. The child is committed to the Department of Social Services and she took him away from the Department of Social Services. ⁷⁰³ She has not purged herself of the civil contempt, and she will be returned to the jail. The juvenile court judge’s June 26, 2002, order read, in relevant part: The following order(s) resulted from a Child in Need of Assistance hearing.

As a result of the Review hearing in the above case(s), the Court finds: Respondent’s mother—Teresa Brock [-] was transported to court by BCDC. Respondent still remains missing and has an outstanding runaway warrant out on him. Mother has a pending case in Carroll County. Mother—Teresa Brock [-] has failed to advise the [cjourt of ... [rjespondent’s whereabouts.

Mother—Teresa Brock [-] is still in Civil Contempt and is remanded to BCDC. An appeal was filed from the June 26, 2002, order. Ms. Brock had another purge hearing on September 26, 2002, at which she again failed to divulge the whereabouts of Ariel G. The juvenile court, by an order dated September 29, 2002, ruled that Ms. Brock was still in contempt. No appeal was taken from the September 29, 2002, order.

Sometime after September 29, 2002, Ariel G. was located by BCDSS. He was placed with relatives, and Ms. Brock was released from custody on the contempt charge(s). QUESTIONS PRESENTED 1. Was this appeal timely filed? 2.

Where Ms. Brock faced pending charges of [absconding with] her child from foster care, and was at risk of criminal contempt charges, was the contempt order [resulting from her failure to testify as to where she was when she last saw her child] entered in violation of Ms. Brock’s privilege against self-incrimination? 3. Did the lower court violate the Maryland Rules and principles of due process by holding Ms. Brock in direct civil contempt wdien she invoked her privilege against ⁷⁰⁴ self-incrimination and refused to disclose her knowledge of the whereabouts of her child? I. FIRST ISSUE Generally speaking, persons held in contempt of court are entitled to maintain an appeal from a contempt finding despite having been released from the imprisonment brought about by the (alleged) contempt. Droney v. Droney, 102 Md.App. 672, 682 , 651 A.2d 415 (1995) (“With contempt ... even if the purge cannot be undone, and thus the party cannot be made ‘whole,’ the party remains entitled to seek exoneration of the contempt finding.”); Williams v. Williams, 63 Md.App. 220, 225-26 , 492 A.2d 649 (1985)(same); Jones v. State, 61 Md.App. 94, 96 , 484 A.2d 1050 (1984)(same).

In this case, however, no immediate appeal order was filed from the initial order holding appellant in contempt, nor were appeals filed from the orders dated January 16, 2002, and September 29, 2002, in which the court ruled that appellant had failed to purge herself of contempt. It is now too late to file an appeal as to the orders filed on August 6, 2001; January 16, 2002; and September 29, 2002. The period for filing an appeal expired thirty days after that order was entered. 1 Appellant failed to file an appeal from these contempt findings within thirty days. See Droney 102 Md.App. at 681 , 651 A.2d 415 (citing and applying rule that parties must file any appeals within thirty days of the entry of judgment).

The question then becomes: Is it now too late to file an appeal from the June 26, 2002, order in which the court made a written finding that appellant had failed to purge herself of contempt? ⁷⁰⁵ United States v. Wheeler, 952 F.2d 326 (9th Cir.1991), involved a defendant who was ordered by the Court to turn over certain records to the Internal Revenue Service. Id. at 326-27 . The defendant failed to comply with the court’s order and was held in contempt. Id. at 327 .

The defendant did not appeal that order, but about five months after being held in contempt, the defendant filed a pleading that the District Court treated as a motion to vacate the earlier contempt order. Id. The Wheeler Court held that “a district court’s order refusing to vacate an underlying contempt order is nonappealable when the ground on which vacatur is sought existed at the time the contempt order was entered and the contemnor failed to appeal timely from the order.” Id. at 327 . The Wheeler Court went on to say: [I]f a contemnor may appeal an order denying vacatur of a contempt order merely by a continuing inability to comply with the order, the time limit of Fed. R.App. P. 4(a) will have little meaning.

The contemnor would be able to indefinitely extend the deadline for appealing the issue of his ability to comply. Id. The court’s order of June 26, 2002, however, stands on a different legal footing from the order discussed in Wheeler . First, this case does not involve a motion to vacate a contempt finding.

Second, the purportedly contemptuous conduct that caused the court to rule in June 2002 that the contempt had not been purged was different from the conduct that had caused the original contempt finding. As mentioned earlier, at the first and second hearings, the question appellant refused to answer was, in substance: “Where is the child?” When appellant was asked at the June 2002 hearing that same question, she said she did not know Ariel G.’s present whereabouts. That answer was not contradicted or impeached. The question appellant refused to answer at the June 2002 hearing was: “Where were you when you last saw [Ariel G.] ten months ago?” The court ruled that appellant had not purged the contempt by failing to answer that new question. ⁷⁰⁶ Appellant filed an appeal within thirty days of the June 26, 2002, order from that contempt finding. 2 As to the order dated June 26, 2002, the appeal was timely.

See United States v. Brumfield, 188 F.3d 303, 306 (1999)(an order holding that an individual who has been adjudicated in contempt had not purged himself of contempt is a final appealable order); see also Consolidated Rail Corp. v. Yashinsky, 170 F.3d 591, 594 (6th Cir.1999); Doe v. United States (In re Grand Jury Subpoena), 150 F.3d 170, 172 (2d Cir.1998). Based on the federal precedent above mentioned, we hold that the appeal from the June 26, 2002, order was timely.

II

Appellant contends that she had a right, protected by the Fifth Amendment to the Constitution of the United States, to refuse to answer the question, “Where were you when you last saw [Ariel GJ ten months ago?” [T]he privilege against compelled self-incrimination, under both the Fifth Amendment and Article 22 of the Declaration of Rights, must be accorded a liberal construction in favor of the right that it was intended to secure. Choi v. State, 316 Md. 529, 536 , 560 A.2d 1108 (1989)(internal quotation marks omitted). We have consistently applied the standards of Hoffman v. United States, 341 U.S. 479 , 71 S.Ct. 814 , 95 L.Ed. 1118 (1951), that a witness is entitled to invoke the privilege against self-incrimination if “the witness has reasonable cause to apprehend danger from a direct answer: ... and that: To sustain the privilege, it need only be evidence from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. ⁷⁰⁷ The Court in Hoffman concluded that, in the case before it, the claim of privilege should have been allowed because the witness “could reasonably have sensed the peril of prosecution” and because “it was not ‘perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer[s] cannot possibly have such tendency’ to incriminate.” Id. at 536-37 , 560 A.2d 1108 (citations omitted)(emphasis in original). The BCDSS claims that appellant had no Fifth Amendment right to refuse to answer the question propounded at the June 2002 purge hearing.

It bases its position almost entirely on Baltimore City Department of Social Services v. Bouknight, 493 U.S. 549, 551-52 , 110 S.Ct. 900 , 107 L.Ed.2d 992 (1990). The Bouknight case involved the BCDSS’s efforts to locate Maurice M. (“Maurice”), the son of Bouknight. Due to abuse visited upon Maurice by Ms. Bouknight, Maurice was adjudicated to be a CIÑA and placed under BCDSS’s supervision.

Id. at 552 , 110 S.Ct. 900 . BCDSS, despite the abuse, agreed that Maurice should remain in Ms. Bouknight’s custody, “but only pursuant to extensive conditions set forth in a court-approved protective order.” Id. Among the conditions in the protective order, to which Ms. Bouknight agreed, were requirements that she “cooperate with BCDSS, follow a prescribed training regimen and be subject to further court orders.” Id. at 559 , 110 S.Ct. 900 . Eight months after the consent order was signed, BCDSS returned to the juvenile court and asked that Maurice be removed from Ms. Bouknight’s care and custody.

The BCDSS was concerned, inter alia, that Maurice might be dead because Ms. Bouknight would not reveal his whereabouts, nor had the BCDSS been able to locate Maurice through its own investigative efforts. Id. at 552-53 , 110 S.Ct. 900 . Ms. Bouknight was held in contempt by the juvenile court due to her failure to produce Maurice after having been ordered by the court to do so. The juvenile court (1) rejected Ms. Bouknight’s claim that the contempt order violated her ⁷⁰⁸ Fifth Amendment privilege against self-incrimination and (2) ordered that she be imprisoned until she produced the child.

Id. The Maryland Court of Appeals reversed, holding that the contempt order unconstitutionally compelled Ms. Bouknight to admit, through the act of production, “a measure of continued control and dominion over Maurice’s person,” even though Ms. “Bouknight had a real apprehension that she will be prosecuted.” In re Maurice M., 314