Matter of Carter

Moore, J., delivered the opinion of the Court. On February 1, 1973 juvenile petitions were filed in the Circuit Court for Baltimore County, sitting as a Juvenile Court, against Victoria Elaine Carter, age 11, and Cindy Ann Spalding, age 13, charging that both were delinquent children and children in need of supervision within the meaning and intent of Code, Art. 26, § 70-2. 1 The petition against Victoria Elaine Carter alleged that “on 1-29-73 and for one year prior thereto in the County aforesaid [County of Baltimore] the respondent, Victoria Elaine Carter, did engage in various forms of sex practices and participated in the consumption of controlled or prohibitive [sic] drugs. It is further alleged that the respondent is ungovernable and so deports herself as to endanger herself and others. “It appears that the respondent is in need of ⁶³⁶ supervision, guidance, treatment, and/or rehabilitation beyond that being offered.” The petition against Cindy Ann Spalding alleged similarly that -“on 1-31-73 in the County aforesaid an investigation by the Baltimore County Police Department revealed that the respondent had consumed controlled and prohibitive narcotics and engaged in acts of sexual intercourse and sexual perversion with an unknown number of male ■ and female adults for a period of more than one year. The respondent is ungovernable and beyond the control of her parent, deports herself in such a manner as to be a danger to herself and others and is in need of care and treatment.” On the same day, an adjudication was made by Juvenile Master Kahl that both girls were children in need of supervision and in need of care and treatment. 2 They were committed to the custody of the State Department of Juvenile Services.

On February 7 they were ordered taken to the Maryland Children’s Center for evaluation, to be returned to court one month thereafter. On March 7 the report from th^ Maryland Children’s Center was filed and a disposition hearing was held before Juvenile Master Peach. He recommended their retention in the custody of the Department of Juvenile Services for placement and a Commitment Order, signed by him on March 7, was approved by Judge Jenifer. On March 12 counsel for both respondents filed general exceptions to the findings of the master and requested a hearing de novo on the entire matter pursuant to Maryland Rule 908 e 3.

On May 3 separate adjudicatory and disposition hearings upon the exceptions were held before the Juvenile Court (Jenifer, J.). In a verbal opinion the court found both children to be in need of supervision, to be committed to the care and custody of the Department of Juvenile Services for placement. A formal Order was adopted by the court on May 7, 1973. At the time of argument on this appeal, both children were in foster ⁶³⁷ homes, the parents having been granted limited visitation rights.

From these adjudications and dispositions both respondents have taken this appeal. At the hearing before Judge Jenifer, Officer Joseph Price of the Baltimore County Police Department, Dundalk Station, testified that in the early morning hours of January 31, 1973 he was summoned to City Hospital to investigate a possible rape and overdose of narcotics. He was met by Mr. Lenlie Carter, father of appellant, Victoria Elaine Carter, who advised him that his daughter had taken a white tablet that had dilated her eyes and affected her speech and equilibrium, and that he wanted her treated for the drug and examined for possible sexual intercourse. He explained that she had confessed to having intercourse with one Sheldon Coon on January 29.

Questioned about the matter by the officer in her parents’ presence, Elaine at first denied the intercourse (“she denied having any, denied to her mother and denied to her father . . .”), but eventually she admitted that on January 29 she had climbed out her bedroom window in her parents’ apartment at 2007 Bear Ridge Road and slipped down to the apartment immediately below where she was let in by Coon. Several persons were there, all nude. Coon gave her a pill that “made her float,” after which she engaged in sexual acts with Coon and others including two women. According to the officer, Elaine’s speech during this recitation was impaired, and her parents assisted him in eliciting details and the names of those involved in the “party.” Following the initial questioning Elaine remained at the hospital (with her parents) for out-patient treatment.

At approximately 6:30 a.m., in response to a phone call by Officer Price, Cindy Ann Spalding was brought to the ⁶³⁸ Dundalk police station by her mother. The Carters also went to the station, taking with them Victoria Elaine and the Reverend Robert Gatney, the pastor of a church in Baltimore attended by both families. Mr. Price and another police officer talked with the girls in an atmosphere of some commotion: the parents “insisted on the girls giving the information. They were at sometimefs] . . . yelling at the girls and the girls being upset, crying, they were trying to calm them down.

They were trying to help and assist getting all the information they could.” Cindy Ann Spalding confessed to the police that on the evening of the 29th at about 9:00, Coon helped her out of her bedroom window and drove her to the Bear Ridge Road apartment where she had intercourse with several males and two adult women performed unnatural acts upon her. She stated that on previous occasions she had had sexual relations with other men including one who lived in the basement of her mother’s house. With the consent of the parents the girls gave written statements to the police incorporating the substance of their oral statements. They were then taken to University Hospital for examination for possible intercourse (City Hospital apparently did not have the necessary facilities).

The same day they were given over to the custody of the Department of Juvenile Services. On cross-examination, Price was asked if he had given the Miranda warnings at the police station prior to beginning questioning. He indicated he had announced “to everyone in the room” that anything they said could be used against them in a court of law if they were charged. On redirect he stated he never considered the girls or their parents to be in custody: “They volunteered all of this information to begin with, and it was so bizarre I started asking questions to try to pinpoint dates and times and individuals.” The Carters “wanted everybody named and wanted them arrested and punished.” Mrs. Spalding wanted “this Mr. Coon arrested and charged, because he had beaten Cindy Spalding and she was afraid for her. . . .” Rev. Gatney was in the forefront of the questioning and at one point, the officer testified, he “had to threaten to arrest him just to keep him quiet.” At ⁶³⁹ another time, the parents began to walk out, themselves disenchanted with the investigation: “They said they did not like the way [we were] handling it.

We were paid off just like everybody else.” Price told them “they could go if they wanted to, but they were not going to get anywheres. 3 We talked it over and used cool heads.” Over her counsel’s objection to her being called by the State, Victoria Elaine Carter confirmed the essentials of her statement to the police. She testified she had met Sheldon Coon through the church and known him about a year. She had attended about fifteen “parties” with him in the apartment below her parents’, in each case without their knowledge. Her escape from her parents’ surveillance, “bizarre” but evidently effective, was managed by dropping sleeping pills given her by Coon in whatever they were drinking that evening, usually coffee.

They had never become suspicious. Downstairs she would receive her pill from Coon and eventually everyone, as many as “twenty-five, thirty,” “took off their clothes and made sex.” On other occasions they would go instead to the Lacottis’ and similar events would transpire. Asked why she went out with Coon, who was “just an old man” to her, the eleven-year-old Victoria Elaine explained: “A. Time I was under the pill. THE COURT: What, would he [Coon] give you a pill and then you’d go out with him?

A. Yes. THE COURT: How about when you went to the Lacottis’, what would happen? A. I’d get a pill before I went.” She recalled telling Coon once that she was going to confess her activities to her parents, but “he said, if you do, I’ll kill you.” On cross-examination Victoria Elaine stated that her brother, Steve, age 19, who had since left home, had first ⁶⁴⁰ taken her to the parties. Indeed it was he and Coon who helped her make her way back through her bedroom window after a night’s events.

Cindy Ann Spalding also testified over her counsel’s objection and his instructions to her on the record not to testify. She identified her written statement made to the police and affirmed its truth. On cross-examination she responded to counsel’s question as to whether she had been advised that she did not have to make the statements: “A. Well, we more or less made it on our own. We figured we could save some more kids, but they gave us no rights or anything.

THE COURT: Give you what? A. Any kind of rights, we thought we were doing the State a favor.” Called by counsel for her daughter, Mrs. Carter testified as to her “intention in going to City Hospital and calling the police:” “A. Well, we thought that these men should be taken in custody to keep this from happening to other little children, we thought they should be apprehended and all- these rings broken up in the city; we thought they’d be interested to know this.” Reverend Gatney testified and stated that he had also “want[ed] to see justice” since “[tjhese men [were] guilty for assaulting these children,” but the police had been incredulous for a while: “. . . if you say anything like that [he paraphrased Price] people are going to put you in jail.” At the conclusion of the adjudicatory hearing the court found that the girls had been “associated in immoral sexual activities for a period of at least three months prior to January 31, 1973;” had been “given drugs of a narcotic nature and [had] indulged in the taking of the drug itself;” had engaged in activities “certainly of a nature that would not have been permitted [by their parents] had they been known about;” had “deported themselves so as to injure or ⁶⁴¹ endanger themselves or others;” had “endangered their own welfare” in being “thrown in” with Coon, and had, in sum, “gone through a very traumatic experience” requiring guidance, treatment or rehabilitation. In challenging the Order of Court declaring them to be children in need of supervision and committing them to the care and custody of the Department of Juvenile Services for placement, appellants make the following contentions: 1) their statement (oral and written) to the police should have been suppressed at the de novo hearing, and they should have been permitted to cross-examine Officer Price on the issues of voluntariness and Miranda warnings; 2) they were denied their constitutional right to refuse to testify at the de novo hearing; 3) the court erred in deciding the issue of need of supervision based on “all the statutory definitions rather than limiting the issue to the charge alleged in the petition”; 4) the court erred in denying the motion of Cindy Spalding challenging venue and the power of the Circuit Court for Baltimore County to hear, the allegation that she was a child in need of supervision; 5) the evidence was insufficient to justify a finding that they were children in need of supervision. With respect to contentions 1) and 2) appellants strenuously urge that the decision of the Supreme Court in the celebrated case of In Re Gault, 387 U. S. 1 (1966) is applicable to a proceeding to determine whether a child is in need of supervision.

Appellants argue that there is no valid distinction between delinquent and CINS (child in need of supervision) proceedings and that a CINS case falls within the ambit of Gault . Consequently, it is asserted, Fifth Amendment guarantees are applicable to a CINS proceeding so that the child may choose to remain silent and is also entitled to a determination by the court of a Motion to Suppress on the ground of constitutional involuntariness ⁶⁴² and under the rule of Miranda v. Arizona, 384 U. S. 436 (1966), which was made applicable to delinquency proceedings by Gault . For the reason stated in Section I, infra, we find Miranda inapplicable upon the facts disclosed in this record. On the broad constitutional issues presented we also conclude in Section II that Gault is not applicable to a CINS proceeding.

The remaining substantive contentions we find to be without merit. Finally, at the conclusion of this opinion we deny appellants’ motion set forth in brief to “strike portions of the record” and we aiso formally deny appellee’s “motion ne recipiatur” addressed to the aforesaid motion to strike. I Counsel for appellants contend that the questioning by the police at the hospital and at the police station was custodial interrogation within the meaning of Miranda and assert that appellants were not adequately apprised of their rights under Miranda and “could not have knowingly waived” them, and that in the totality of the circumstances their statements were not voluntary but a product of their youth, lack of sleep or “alleged” weakened condition from a drug, and above all of the combined coercion of the police, their parents and their minister. The short answer to this contention is that appellants were not in custody at the time of the statements in question.

To hold otherwise would be to find custodial interrogation in any case where a police officer was present and participating or where the questioning took place at a police station. Miranda defined custodial interrogation as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” The Supreme Court noted this was what it had meant in Escobedo v. Illinois, 378 U. S. 478 (1964) when it spoke of an investigation that was “no longer a general inquiry into an unsolved crime but [had] begun to focus on a particular suspect.. . .” 378 U. S. at 490 . Custody thus requires a significant deprivation of ⁶⁴³ the freedom of one upon whom the eye of criminal suspicion has begun to focus. To see the matter thus is to perceive the considerable distance separating custodial interrogation from the questioning that took place here.

The evidence shows that Officer Price went to City Hospital in response to a call to police headquarters from Mr. and Mrs. Carter. There he was met by parents who were alarmed by their discoveries concerning their child and determined to seek exposure and punishment of the persons responsible. What triggered police involvement in the case was thus the anger of parents who believed their child to have been victimized and who were demanding police action. This position of the parties — and not that suggested by counsel for appellants who claims “they were treated by the police as victims and not defendants” — continued when the Carters arrived at the station a few hours later accompanied by the Spaldings and Rev. Gatney.

Mrs. Spalding, of course, had been called to the station with her daughter by the police, but her real motivation in being there was unquestionably her desire to see Coon prosecuted. Indeed the general picture conveyed of the scene is of a chorus, or a tumult, of competing voices — police, parental, and pastoral — all anxious to uncover the facts of the girls’ abuse and “to see justice.” Thus while Officer Price saw fit to give an unparticularized Miranda warning “to everyone in the room,” we consider this of small account. His role in questioning the girls and receiving their written statements received the parents’ unqualified support — indeed he was their “adversary,” it would appear, only in holding the questioning to an orderly course and insisting on separating fact from fiction. We find in all this no resemblance to the situation contemplated by Miranda : any restraint upon the girls’ freedom at this point was at their parents’ initiative and with their continued cooperation, and the overriding “focus” of misconduct during the interrogation was not upon the girls but upon their exploiters.

This was merely confirmed the next day when the juvenile master found inadequate evidence to support a juvenile delinquency petition against the girls, and on the day thereafter when ⁶⁴⁴ warrants were sworn out for the arrest of at least four of the adults named by them. Because the oral and written statements of the girls to the police did not stem from custodial interrogation, the- State was not required to demonstrate compliance with the procedural safeguards of Miranda , as a condition of their admissibility. For the same reason the court below did not err in refusing to permit defense counsel “to question the officer about what warning he did give these children” before the statements were introduced. (It may be noted that counsel did in fact, following admission of the statements, and some seven transcript pages later, cross-examine the officer in detail on precisely this matter.) Appellants argue that the statements should have been rejected in any event as the product of the girls’ youth, their fatigue or possible weakness from drugs, and the combined coercion of their parents and minister.

The Supreme Court in Gault, supra, wisely cautioned that where admissions of juveniles are involved, the greatest care must be taken to assure they are not the result of coercion, suggestion, adolescent fantasy, fright or despair. 387 U. S. at 55 . We have no doubt that in confessing their activities the girls were in good measure yielding to the demands of their parents and pastor. On the other hand we reject as unwarranted the suggestion of counsel that “a significant conflict of interest between the interests of the parent and of the child” was thereby created, which itself contributed to a setting of custodial interrogation. The “ ‘paternal’ urgings” or worse found suspect by Gault 3 are not those involved here where parents — alarmed and perhaps painfully made aware of their own inadequacy — demand from their children an accounting of their conduct.

Furthermore, Cindy Spalding gave the complete answer to the question of the voluntariness of the girls’ statements: ⁶⁴⁵ “A. Well, we more or less made it on our own. We figured we could save some more kids, but they gave us no rights or anything. THE COURT: Give you what? “A. Any kind of rights, we thought we were doing the State a favor.” II The Supreme Court has established that State juvenile proceedings “by which a determination is made as to whether a juvenile is a ‘delinquent’ as a result of alleged misconduct on his part, with the consequence that he may be committed to a State institution,” must measure up to the essentials of due process and fair treatment. Gault at 13, 30 .

Some of the constitutional requirements which apply equally to a state criminal trial and the adjudicative phase of a state juvenile court delinquency proceeding are the rights to appropriate notice, to counsel, to confrontation and to cross-examination, and the privilege against self-incrimination. McKeiver v. Pennsylvania, 403 U. S. 528 (1971). These constitutional rights are also expressly required in juvenile delinquency hearings at the adjudicative stage by Maryland law. See Matter of Anderson, 20 Md. App. 31 , 315 A. 2d 540 (1974), n. 18.

Gault made absolutely clear that its extension of the privilege against self-incrimination related only to a proceeding “to determine delinquency which may result in commitment to an institution in which the juvenile’s freedom is curtailed. . . .” At 41. Elsewhere it spoke of “the determination of delinquency, carrying with it the awesome prospect of incarceration in a state institution.. ..” Idem, at 36-37. While the Court observed that “the availability of the privilege does not turn upon the type of proceeding in which its protection is invoked, but upon the nature of the statement or admission, and the exposure which it invites,” (emphasis added), this was said in reply to the argument that juvenile proceedings are “civil” and not “criminal” and therefore that the privilege should not apply to them. The Court went on to identify other “types” of proceedings: “The ⁶⁴⁶ privilege may, for example, be claimed in a civil or administrative proceeding, if the statement is or may be inculpatory.” The Court reasoned that it would be “entirely unrealistic to carve out of the Fifth Amendment all statements by juveniles on the ground that these cannot lead to ‘criminal’ involvement,” since, at least as respects juvenile delinquency proceedings, these “may lead to commitment to a state institution,” and “[i]ndeed, in over half of the States, there is not even assurance that the juvenile will be kept in separate institutions, apart from adult ‘criminals.’ In those States juveniles may be placed in or transferred to adult penal institutions after having been found ‘delinquent’ by a juvenile court.

For this purpose, at least, commitment is a deprivation of liberty. It is incarceration against one’s will, whether it is called ‘criminal’ or ‘civil.’ ” The Court added that “* * * apart from the equivalence for this purpose of exposure to commitment as a juvenile delinquent and exposure to imprisonment as an adult offender, the fact of the matter is that there is little or no assurance in Arizona, as in most if not all of the States, that a juvenile apprehended and interrogated by the police or even by the Juvenile Court itself will remain outside of the reach of adult courts as a consequence of the offense for which he has been taken into custody. In Arizona, as in other States, provision is made for Juvenile Courts to relinquish or waive jurisdiction to the ordinary criminal courts. In the present case when Gerald Gault was interrogated concerning violation of a section of the Arizona Criminal Code, it could not be certain that the Juvenile Court Judge would decide to ‘suspend’ criminal prosecution in court for adults by proceeding to an adjudication in Juvenile Court.” 387 U. S. at 49-51 . ⁶⁴⁷ The quoted language from Gault is important, we think, as indicating the essential and grave concerns which caused the Court to penetrate the “feeble enticement of the ‘civil’ label-of-convenience which has been attached to juvenile proceedings” and extend to them the safeguards of the Fifth Amendment: the juvenile delinquent may be committed to a state institution; 4 if so, he is without even the likelihood of assurance that he will be kept separate from adult criminals; and there is no certainty to begin with that he will remain outside of the reach of adult courts as a consequence of the offense for which he has been taken into custody, because of waiver provisions.

It is in this context that we must examine the category entitled “Child in Need of Supervision” created by Chapter 432, Acts of 1969, of the General Assembly of Maryland. This enactment substantially revised the law of Maryland governing juvenile causes. In Re Hamill, 10 Md. App. 586 , 271 A. 2d 762 (1970). The purposes of the new subtitle, as set forth in the present Courts Art. § 3-802, 5 are: “(1) To provide for the care, protection, and wholesome mental and physical development of children coming within the provisions of this subtitle; ⁶⁴⁸ (2) To remove from children committing delinquent acts the taint of criminality and the consequences of criminal behavior; (3) To provide for a program of treatment, training, and rehabilitation consistent with the protection of the public interest; (4) To place a child in a wholesome family environment