People in Interest of K.S-E., 2019 COA 93

In this appeal of a direct contempt order against a respondent parent, the Court of Appeals considers the lawfulness of a court order implicating a parent’s Fifth Amendment rights.
At a hearing considering the appointment of a GAL for mother, the department called mother as a witness. Mother’s counsel informed the court that she was facing criminal charges with overlapping factual allegations. The court advised mother about her Fifth Amendment right against self-incrimination but denied counsel’s motion to stand up and advise her to invoke the privilege on a question-by-question basis. Counsel continued to attempt to contemporaneously advise mother to invoke the privilege on a question-by-question basis, and after being threatened with contempt, resorted to knocking on counsel table to alert her to invoke her privilege. The court held counsel in direct contempt for violating its order. In holding counsel in contempt, the court clarified that its order had prohibited counsel not only from standing but also from contemporaneously communicating with mother about her right to invoke the Fifth Amendment. Counsel unsuccessfully moved to reconsider and then to vacate the contempt motion but was ultimately held in contempt and fined $1,000.

The Court holds that the Fifth Amendment’s right against self-incrimination has a concomitant right to the advice of counsel that encompasses contemporaneous advice; the RPC was entitled to advise mother of her Fifth Amendment rights on a question-by-question basis. Because the court’s order prohibited such advice, the Court concludes the order was unlawful under the Fifth Amendment.

The Court next considers whether RPC was excused from complying with the order. Acknowledging that a party must generally comply with unlawful court orders or being held in contempt, the Court notes an exception clarifying that if compliance with the order poses a substantial risk of irreparable harm, the party’s failure to comply cannot support a finding of contempt. The Court determines that in this case, the risk of irreparable harm was sufficient to implicate this exception. Analyzing § 19-3-207, the Court concludes that its limited scope, which protects only parents’ formal admissions or denial of the allegations and not statements, did not provide sufficient mitigation of the risk of harm. Additionally, in this case, mother’s potential need for a GAL increased the risk that she would be unable to exercise her Fifth Amendment right without counsel’s contemporaneous advice.

The Court vacates the district court’s direct contempt order.

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