In Re Ariel G.

²⁴² HARRELL, Judge. On 17 September 1996, the Baltimore City Department of Social Services (BCDSS) took then five year old Ariel G. into protective custody from his mother, Teresa B. BCDSS promptly filed a petition in the Circuit Court for Baltimore City alleging that Ariel was a Child in Need of Assistance (CINA) based on his mother’s refusal to provide him with appropriate medical treatment for his severe asthma. After the court entered an order placing Ariel in protective custody, but before an: adjudicatory hearing could be held, Teresa absconded with Ariel. After three and a half years of eluding the authorities, Teresa was found and arrested on 27 March 2000.

Although she refused to disclose Ariel’s whereabouts, he subsequently was found and committed by the court to BCDSS under an order of shelter care. The court found Teresa in direct contempt for preventing the court from exercising its jurisdiction over Ariel. She also later was convicted of a violation of the terms of her probation. 1 Later that year, the court found Ariel to be a CINA and placed him in a foster home in Carroll County. Ariel remained in the foster home until the morning of 9 January 2001, when the foster parents discovered that Ariel was missing from his bedroom.

Attempts to locate his mother were unsuccessful, and it was widely speculated that Teresa again had fled with Ariel. Over the next few months the juvenile court held hearings during which evidence was adduced that, if believed, strongly indicated that Teresa was involved in Ariel’s latest disappearance and that Ariel was with her currently. In fact, the prosecutor in Carroll County charged Teresa with kidnapping. 2 In addition, the State charged her with constructive ²⁴³ criminal contempt for conduct unrelated to Ariel’s 9 January 2001 disappearance. 3 Teresa was apprehended once more and jailed in Baltimore City pending a bail hearing. Ariel’s whereabouts, however, were unknown.

On 3 August 2001, the Circuit Court for Baltimore City held a bail hearing. The court instructed Teresa’s counsel in the CIÑA case to appear with Teresa at a hearing that afternoon. The court, now sitting as a juvenile court, directly questioned Teresa concerning Ariel’s whereabouts. Teresa refused to answer, claiming that she was not required to do so based on her Fifth Amendment privilege against self-incrimination.

The court found Teresa in direct contempt and ordered her detained until she purged herself of the contempt by disclosing Ariel’s whereabouts. The court periodically brought her back over the ensuing months, but each time she refused to answer questions concerning Ariel’s whereabouts, resulting in her continued incarceration. On 5 June 2002, Teresa was brought before the juvenile court once more and given the opportunity to purge her contempt by disclosing the whereabouts of Ariel. Teresa responded by indicating that, because she had been detained for the last ten months, she no longer had knowledge as to Ariel’s present location.

The court then suggested Teresa could purge the contempt by disclosing where she was the last time she saw Ariel prior to her capture and confinement. Teresa refused to answer this question, invoking again her right against self-incrimination. After Teresa refused once more at a hearing on 26 September 2002 to disclose any information concerning her child’s whereabouts, Ariel nonetheless was found by BCDSS and placed with relatives. Teresa was released from custody. 4 ²⁴⁴ Teresa appealed to the Court of Special Appeals from the Circuit Court’s 5 June 2002 order finding her in contempt for her refusal to answer questions concerning the last known whereabouts of Ariel. 5 On 10 December 2003, the intermediate appellate court reversed the decision of the juvenile court, concluding that Teresa had a Fifth Amendment privilege to refuse to answer questions regarding her knowledge of Ariel’s whereabouts.

In re Ariel G., 153 Md.App. 698, 712-13 , 837 A.2d 1044, 1052 (2003). The Court of Special Appeals reasoned that the kidnapping charges pending against Teresa in Carroll County presented “reasonable cause to apprehend danger from a direct answer” to such questions. Id. BCDSS sought review in the Court of Appeals by writ of certiorari, which we granted on 8 April 2004.

In re Ariel G., 380 Md. 617 , 846 A.2d 401 (2004). 6 I. The Fifth Amendment to the United States Constitution provides that “No person ... shall be compelled in any criminal case to be a witness against himself.” U.S. Const. Amend. V. In order to invoke successfully the protection of the Fifth Amendment, an individual’s statement must be compelled, testimonial, and self-incriminating. Fisher v. U.S., 425 U.S. 391, 408 , 96 S.Ct. 1569, 1579 , 48 L.Ed.2d 39 (1976) ²⁴⁵ (stating that the Fifth Amendment “applies only when the accused is compelled to make a testimonial communication that is incriminating”).

This right against self-incrimination is based on the “conviction that too high a price may be paid even for the unhampered enforcement of the criminal law and that, in its attainment, other social objects of a free society should not be sacrificed.” Hoffman v. U.S., 341 U.S. 479, 486 , 71 S.Ct. 814, 818 , 95 L.Ed. 1118 (1951) (citations omitted). To accomplish this aim, the Fifth Amendment allows an individual to refuse, without threat of punishment, to respond to questions the answers to which not only would support a criminal conviction, but also those that would “furnish a link in the chain of evidence needed to prosecute the claimant for a ... crime.” Id. Although the Fifth Amendment only mentions criminal proceedings, the Supreme Court has held that the right “can be claimed in any proceeding, be it criminal or civil, administrative or judicial, investigatory or adjudicatory.” In re Gault, 387 U.S. 1, 47 , 87 S.Ct. 1428, 1454 , 18 L.Ed.2d 527 (1967) (quoting Murphy v. Waterfront Commission, 378 U.S. 52, 94 , 84 S.Ct. 1594, 1611 , 12 L.Ed.2d 678 (1964) (White, J., concurring)). 7 As a threshold matter, it is clear that the questions posed to Teresa at the several pertinent hearings in the Circuit Court, including the question posed at the 5 June 2002 hearing, all had the potential, if answered, to implicate her in the charged crime of kidnapping Ariel. 8 The Supreme Court has held that ²⁴⁶ to invoke the right against self-incrimination, “it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer ... might be dangerous because injurious disclosure could result.” Hoffman, 341 U.S. at 486-87 , 71 S.Ct. at 818 , 95 L.Ed. 1118 . Although it is not certain on this record who, if anyone, assisted Ariel in eloping from the foster home in Carroll County during the early morning hours of 9 January 2001, BCDSS and the State’s Attorney’s Office for Carroll County clearly believed that Teresa was responsible.

At the time of the hearing on 3 August 2001 in the Circuit Court for Baltimore City, when Teresa was first questioned about her son, the trial judge was aware that she was wanted by Carroll County police on an arrest warrant issued as a result of her alleged involvement in Ariel’s disappearance. Because of the pending kidnapping charges, Teresa had “reasonable cause to apprehend danger from a direct answer” to the court’s question concerning Ariel’s whereabouts. Hoffman, 341 U.S. at 486 , 71 S.Ct. at 818 , 95 L.Ed. 1118 . Questioning Teresa as to the location, or even the last known location, of Ariel possessed the potential for demonstrating her culpability in the alleged kidnapping.

Although the juvenile court’s primary objective was to determine Ariel’s location for his- safety, it was clear that his mother’s statements not only could be used to locate the child, but also to gather evidence for law enforcement purposes as to how Ariel left the ²⁴⁷ foster home. Such evidence could then be used to discover what role Teresa may have had in Ariel’s disappearance. Furthermore, the threat of prosecution was not hollow or speculative, but rather immediate and certain. See Choi v. State, 316 Md. 529, 536-37 , 560 A.2d 1108, 1111-12 (1989).

The Carroll County prosecutor, through the procurement of an arrest warrant, took affirmative steps to prosecute Teresa for kidnapping her son. 9 Even though her testimony was being compelled in a civil juvenile proceeding, Teresa was well aware that any information she provided to the juvenile court might be used against her in a subsequent criminal trial on the pending kidnapping charge in Carroll County. Her invocation of her Fifth Amendment right was justified.

II

BCDSS, however, argues that this Court should apply Baltimore City Department of Social Services v. Bouknight, 493 U.S. 549 , 110 S.Ct. 900 , 107 L.Ed.2d 992 (1990) to conclude that the Fifth Amendment does not apply to proceedings in which the location of a child found to be CINA is at issue. We find the reasoning in Bouknight to be inapplicable to the circumstances of the present case. In Bouknight , a mother refused a court order to produce her child. Id. at 552 , 110 S.Ct. at 903-04 , 107 L.Ed.2d 992 .

The child had been declared a CINA, based on the mother’s consistent physical abuse, and was placed under the oversight of BCDSS. Id. at 551-52 , 110 S.Ct. at 903 , 107 L.Ed.2d 992 . Despite reservations, BCDSS agreed to allow the mother, Jacqueline Bouknight, to continue as the physical custodian of the child, subject to certain conditions placed upon her by a court-approved protective supervision order. Id. at 552 , 110 S.Ct. at 903 , 107 L.Ed.2d 992 .

When BCDSS later learned ²⁴⁸ that Bouknight was violating the terms of the protective order, it petitioned the court to remove the child from Bouknight for placement in a foster home, which petition the court granted. Id. at 552-53 , 110 S.Ct. at 903-04 , 107 L.Ed.2d 992 . Bouknight, however, refused to produce the child or reveal to BCDSS the location of the child. Id. at 553 , 110 S.Ct. at 904 , 107 L.Ed.2d 992 .

After several hearings at which Bouknight persisted in refusing to produce the child, the juvenile court found Bouknight in contempt and ordered that she be confined until she either produced the child or revealed his whereabouts. Id. The Supreme Court held that the Fifth Amendment could not be invoked successfully to resist the order of the court to produce the child. Id. at 555 , 110 S.Ct. at 905 , 107 L.Ed.2d 992 .

Producing the child pursuant to a court order, the Court held, was not a sufficiently testimonial communication and therefore fell outside the boundaries of the Fifth Amendment’s protections. Id. at 554-59 , 110 S.Ct. at 905-07 , 107 L.Ed.2d 992 . Furthermore, the Court held that when an individual is subject to a non-criminal regulatory regime, such as a CINA juvenile proceeding, that individual may not rely on the Fifth Amendment to resist an order that furthers the objectives of the regulatory regime. Id. at 555-56 , 110 S.Ct. at 905 , 107 L.Ed.2d 992 .

Because Bouknight explicitly had consented to the conditions placed upon her by BCDSS at the time it approved her continuance as the physical custodian, the Court held that Bouknight was subject to the regulatory regime of the BCDSS and thus her ability to invoke the Fifth Amendment was reduced. Id. at 558 , 110 S.Ct. at 906 , 107 L.Ed.2d 992 . A. Although Bouknight , at first blush, may appear similar factually to the present case, its reasoning is not applicable to the present case. First, in the present case, the juvenile court’s contempt order was not based on Teresa’s failure to produce Ariel, but rather upon her failure to testify regarding her knowledge of his whereabouts, first couched in the present ²⁴⁹ tense and later framed in terms of the relatively near past.

The Supreme Court long ago held that the Fifth Amendment is inapplicable to a court order requiring the production of documents or other tangible objects. See Fisher, 425 U.S. at 409 , 96 S.Ct. at 1580-81 , 48 L.Ed.2d 89 (holding that the disclosure of tax documents in the possession of an attorney did not violate the Fifth Amendment even though the documents contained potentially incriminating information). Although in very limited circumstances the act of production may be testimonial in nature and be afforded Fifth Amendment protection, U.S. v. Doe, 465 U.S. 605, 613 , 104 S.Ct. 1237, 1242 , 79 L.Ed.2d 552 (1984), the Supreme Court held that the custodian of an object may not withhold it “based upon the incrimination that may result from the contents or nature of the thing demanded.” Bouknight, 493 U.S. at 555 , 110 S.Ct. at 905 , 107 L.Ed.2d 992 . In Bouknight , the “object” demanded was a child, and the Court held that the act of producing that child was not a testimonial communication, but rather an act of production that fell outside the Fifth Amendment’s protection.

Id. at 554-59 , 110 S.Ct. at 905-07 , 107 L.Ed.2d 992 . Teresa, however, was not held in contempt for her failure to produce Ariel, but rather for her refusal to give a purely testimonial communication. At the time of the 5 June 2002 hearing, the juvenile court appeared satisfied that she may not be aware of the present whereabouts of Ariel due to the fact that she had been incarcerated for the previous ten months. Nonetheless, the court surmised that the circumstances of her last contact with Ariel might be of assistance to the authorities in determining his present location.

Although Teresa may have been required to produce Ariel if he was within her control, compelling her to inform the court of the whereabouts of the subject of the production order is foreclosed by the Fifth Amendment, if properly asserted as here. See U.S. v. Hubbell, 530 U.S. 27, 34-35 , 120 S.Ct. 2037, 2042 , 147 L.Ed.2d 24 (2000) (holding that “there is a significant difference between the use of compulsion to extort communications from a defendant and compelling a person to engage in conduct that ²⁵⁰ may be incriminating”); Curcio v. U.S., 354 U.S. 118, 123-24 , 77 S.Ct. 1145, 1149 , 1 L.Ed.2d 1225 (1957). In Curdo, the Supreme Court held that a custodian of corporate records could not be compelled to testify regarding the whereabouts of documents that the custodian was required to produce pursuant to a court order. 354 U.S. at 128 , 77 S.Ct. at 1151-52 , 1 L.Ed.2d 1225 . Although the Fifth Amendment does not allow a custodian to withhold incriminating documents, the privilege does shield a custodian from being compelled to give incriminating testimony about the documents, including their location.

See id. (stating that “forcing the custodian to testify orally as to the whereabouts of nonproduced records ... is contrary to the spirit and letter of the Fifth Amendment”). Therefore, even if Ariel was within Teresa’s custody or control, the court could not overcome the proper assertion of her Fifth Amendment right and compel her to testify about the location of the