                          STATE OF MICHIGAN

                           COURT OF APPEALS



                                                                    FOR PUBLICATION
In re BLAKEMAN, Minors.                                             October 25, 2018
                                                                    9:00 a.m.

                                                                    No. 341826
                                                                    Ingham Circuit Court
                                                                    Family Division
                                                                    LC Nos. 17-000250-NA;
                                                                            17-000251-NA;
                                                                            17-000252-NA;
                                                                            17-000253-NA


Before: BECKERING, P.J., and RIORDAN and CAMERON, JJ.

CAMERON, J.

        In this interlocutory appeal from a child protection hearing, respondent-father appeals 1 a
dispositional order that prohibits him from residing in the family home with his wife and four
children. Respondent came under the jurisdiction of the court for assaulting an unrelated toddler
for whom his wife was babysitting. After respondent completed court-ordered services,
petitioner, the Department of Health and Human Services (DHHS), had recommended to the trial
court over the course of a year that respondent be allowed to return to the home. The assistant
prosecuting attorney (APA) representing DHHS disagreed and urged the trial court to continue
only supervised visitation. The trial court repeatedly denied DHHS’ requests for reunification,
concluding that respondent’s failure to accept responsibility for assaulting the toddler precluded
him from returning to the family home and having unsupervised visitation with his children. On
appeal, respondent argues the trial court violated his Fifth Amendment right against self-
incrimination when it conditioned reunification on respondent’s admission to abusing an
unrelated toddler. We agree that the trial court committed error and, therefore, vacate and
remand.

                     I. FACTUAL AND PROCEDURAL BACKGROUND




1
  See In re Blakeman, unpublished order of the Court of Appeals, entered February 7, 2018
(Docket No. 341826).


                                               -1-
        Respondent and his wife have four children. On occasion, respondent’s wife would
babysit an unrelated toddler. In November 2016, the toddler suffered a seizure, and thereafter,
often screamed and cried while he was in respondent’s home. On February 9, 2017,
respondent’s wife was babysitting the toddler. Late in the afternoon, respondent’s wife left to
pick up food for dinner, leaving the toddler with respondent. When respondent’s wife returned,
the toddler was unresponsive. Respondent’s wife called 911, and the emergency responders
believed the toddler suffered a seizure. The toddler was transported to the hospital where the
physicians discovered a large, life-threatening skull fracture. The physicians determined the
fracture was non-accidental and occurred close to the time the toddler was admitted to the
hospital. The toddler survived the fracture, but his physician expects significant long-term
physical and cognitive deficits.

        The day after the toddler was taken to the hospital, DHHS filed a child protective petition
against both respondent and his wife. The trial court authorized the petition but allowed the four
children to stay with their parents in the home. However, after a custody review hearing, the trial
court removed the children from the family home and authorized supervised parenting time. The
parents then requested an additional custody review hearing. The trial court held the additional
custody review hearing and released the children to the parents.

       DHHS filed a second, final amended petition on April 7, 2017. DHHS did not seek
termination of petitioner’s parental rights, and instead requested that the children be temporarily
removed from the home.

        In June 2017, the trial court held a multi-day adjudicative bench trial. At the trial,
respondent was informed of his right against self-incrimination, but he chose to waive that right
and testified. Respondent maintained his innocence throughout the examination, claiming he did
not know how the toddler sustained the skull fracture. At the close of the trial, the trial court
found that respondent fractured the toddler’s skull, concluded that the court had jurisdiction over
the children, and ordered respondent to leave the family home and have no contact with his
children other than supervised visits. As to respondent’s wife, the trial court found that she was
not responsible for the toddler’s injuries and was thus a nonrespondent.

        Respondent then began a court-ordered service plan designed to address his issues and to
allow him to move back into the family home and have unsupervised visitation with his children.
In late June 2017, respondent began weekly counseling sessions with a therapist. Shortly
thereafter, he had a psychological evaluation. The evaluator noted that respondent may have
passive-aggressive traits and other related traits such as “a pattern of passive resistance,
opposition, stubbornness, failure to engage in direct communication, blaming others, feigning
compliance, and a negative disposition.” The evaluator stated that there was no information to
assess whether respondent had fractured the toddler’s skull, but noted that there were no reports
that he had ever abused his own children. The evaluator concluded, “[t]his clinician cannot
reflect on any compelling reasons why [respondent] should not be able to return home.”

       In July 2017, a dispositional review hearing was held, and a DHHS foster care worker
updated the trial court on respondent’s progress. According to her, the only barriers to
respondent’s return to the family home was the completion of court-ordered services. By this
time, respondent had already completed a psychological evaluation, a counselor had been

                                                -2-
assigned, and respondent was scheduled to begin trauma-based therapy, a parenting class, and he
was made aware that additional services could be added depending on the results of his
psychological evaluation. The parties all agreed, including the APA, that respondent “appear[ed]
to be off to a compliant start.” However, before setting the date for the next dispositional
hearing, the trial court expressed doubt that the outstanding psychological report, or any other
evidence for that matter, could support reunification:

       I don’t know a good way forward, quite honestly, because the findings that I was
       required to make by the evidence that was presented was that, [respondent]
       brutally beat another child. . . . So, it’s going to take a lot for me to be convinced
       that he ought to have any unsupervised time with his children, or any other
       children, quite honestly, because of the nature of the beating, and what occurred
       to this other boy. . . . And so - and I don’t know what treat - I don’t know what
       treatment there is.

        In September 2017, DHHS submitted a written report to the trial court to be considered
before the next dispositional review hearing. In the report, DHHS indicated that respondent and
his wife had been cooperative and that their four children were doing well, although some of the
children were having adjustment issues relating to respondent’s removal from the family home.
The supervisor of the parental visits reported no concerns and indicated that respondent was
“fully engaged and interacts well with the children.” DHHS recommended that the trial court
maintain jurisdiction and that respondent be permitted to return to reside in the family home
without supervised visitation.

        In October 2017, the trial court held another dispositional review hearing. Beforehand,
DHHS provided the trial court with an updated dispositional review report, stating that there
were no safety concerns during respondent’s supervised visits with his children, and he had
“exhibited positive communication, appropriate discipline techniques, and positive parenting
techniques.” DHHS reiterated its recommendation that respondent be allowed to return to the
family home. Respondent’s court-ordered therapist, Cynthia Swartz, also submitted a letter to
the trial court affirming respondent’s progress and explaining that his primary diagnosis is
Adjustment Disorder. She stated that respondent had been cooperative and concluded her letter
stating, “In summary, I would echo [the psychological evaluator’s] recommendation by saying
that I can find no compelling reason why [respondent] should not be able to return home; and in
fact, suggest that his absence has become a hardship for his family.”

        At the October 2017 dispositional review hearing, the DHHS foster care worker
reiterated that there were no concerns about respondent returning to his family while continuing
his private counseling. After testimony concluded, the APA stated he was “[not] comfortable
endorsing the suggestion of foster care, that -- that dad go home at this time” because he was
concerned that the severity of the toddler’s injuries, coupled with the psychological report, raised
“a lot of red flags,” and he was not convinced that Swartz considered the psychological report as
part of her written recommendation to the trial court. Respondent’s attorney responded that his
client had complied with all court ordered services and that he was “not sure what else we need
to do to get [respondent] back in the home.” The trial court rejected DHHS’ reunification
recommendation, and expressed dissatisfaction “with how this has been overseen by the [DHHS]
caseworker.” The trial court ordered respondent’s therapist to appear at the next dispositional

                                                -3-
review hearing to explain her conclusions and recommendation. Further, the trial court
expressed disbelief that the therapist and DHHS were recommending reunification when
respondent had not even admitted to his therapist that he assaulted the toddler:

       And, you know, ten therapy sessions later, don’t [sic] change the fact -- especially
       in the a [sic] situation where this -- the -- the father is not, he’s not taking any
       responsibility for any of this. Matter of fact, it’s everybody else’s fault. It’s not
       his fault. So how do you change your behavior? How do you have insight
       without any acknowledgement that you did anything wrong? . . . Ten therapy
       sessions have done no good. There’s no more insight. [Emphasis added.]

The trial court then questioned whether the therapist even considered how respondent’s claim of
innocence might interfere with respondent’s therapy: “There’s no indication the therapist had
analyzed anything in terms of his responses to the types of things there [sic] working on.
Whether he’s taking accountability, responsibility, and he knows what things and tools he needs
to do to change his behavior.” The trial court concluded the hearing, stating: “The fact[] in this
case is that [respondent] fractured the skull of a young, special needs child. And he’s staying out
of the house because I’m not having him do that again.”

       At the December 2017 dispositional review hearing, Swartz and the DHHS foster care
worker defended their recommendation to allow respondent’s return to the family home. The
APA challenged both Swartz and the DHHS worker regarding their recommendations. The
DHHS worker acknowledged to the court that the toddler’s injuries were serious and that the trial
court had concluded that respondent was found legally responsible for those injuries. She further
acknowledged that respondent had not admitted to injuring the toddler. The APA then
questioned the DHHS worker as to how she could recommend respondent’s return to the family
home under those circumstances. The DHHS worker explained that respondent was working
toward addressing any anger, parenting, or other underlying issues, and neither DHHS nor
Swartz had identified any safety concerns that should prevent respondent from returning home
and continuing DHHS services.

        During the APA’s brief cross-examination, Swartz also was pressed about whether
respondent had made any admissions during his therapy sessions and how she could conclude
that respondent was benefiting from counseling if “we haven’t identified that he did anything
wrong.” Like the DHHS worker, Swartz acknowledged that respondent had not admitted
responsibility for the toddler’s injuries. The trial court then interrupted questioning and the
following exchange occurred:

                       Court: Generally when I benefit from therapy it’s because
               I recognize that there’s something that I’ve done wrong or some-
               thing that I’m not doing appropriately or something that I need to
               improve upon and then I focus on those things and I act
               accordingly and change my behavior. Is that the purpose of
               therapy?

                       Swartz: Sure. I would say how to handle things in life that
               are not going the way you maybe expected that they would go.

                                                -4-
                      Court: Right, like a kid crying all day.

                      Swartz: Sure.

                       Court: All right. The outcome for him under this court’s
              ruling on medical information, trial that I held, indicates that he
              handled that in a brief moment in time by giving this kid a skull
              fracture. How that happened I don’t know. I just know that he did
              it, that’s what I conclude, all right? So, given that reality . . . ,
              without acknowledging your responsibility for that behavior, how
              are you going to avoid engaging in that behavior in the future if
              you don’t acknowledge that you did something wrong?

                       Swartz: Do you want me to give you my hypothesis on
              this? . . . [W]e have not talked about [the toddler]. So, what I have
              observed however is deep empathy and understanding love, en-
              gagement with his own children and, you know, a desire to be a
              good parent for them. So, I feel like that, along with the history of
              his parenting with his children is an indication that he would con-
              tinue in that way.

                      Court: I find it to be rather shocking, quite honestly, that
              [the toddler] hasn’t been talked about.

                      Swartz: We’ve talked about it in the terms of his-he claims
              that that was not the case and, you know, if you like excuses but
              you were wrong in that-

                      Court: Right.

                        Swartz: -so, yeah, and there is empathy for the injury for
              [the toddler] but no . . . admission that he did it. I’ve been doing it
              long enough that I feel like our relationship is good enough that if
              there was an admission to that, he would have said that to me
              but . . . I’m not a mind reader and I can’t say whatever but-so I
              think from his perspective . . . the frustration is having been
              accused of something that he didn’t do and how do you deal with
              that . . . and show that he is a good parent and be trusted with his
              children.

        At the close of the hearing, the children’s lawyer-guardian ad litem stated that she had
changed her position and that respondent should not return to the home. The APA, despite the
DHHS recommendation, also argued that respondent should not be allowed to return home. In
response, respondent’s counsel argued that the trial court should allow respondent to return home
and raised the following concern:

       [I]t’s problematic to be asking a parent to incriminate himself in order to allow
       him to get his kids back in his care because then we’re just inviting I guess

                                               -5-
criminal charges. So . . . I think that’s a legal issue and certainly [respondent] at
least would not be advised by me to make such an admission, at least at this point
in time.

The trial court then summarized its ruling as follows:

I didn’t sit through a trial for no reason. I didn’t make these findings for no
reason. I haven’t heard anything that would change the court’s conclusion. . . .
[W]hether or not your client has legal implications from addressing what I
consider him to be in denial about-that’s of no import to me. It doesn’t matter to
me whether you, you know, parents come to court many times and say your
Honor I’m going to assert my [F]ifth [A]mendment rights against self-
incrimination because I don’t want to testify because, ah, I’m under threat of
criminal prosecution. Well, that’s a choice. In that instance you’ve chosen your
liberty interest over your children’s. That’s a choice that parents make. . . . So,
again, I hate to be the, you know, the immovable object but I concluded that based
on his injuries and based upon the window of time that this child was at in
[respondent’s] care, that that injury occurred while the child was in his care alone.
I came to that conclusion, that’s a finding. The therapist doesn’t trust my finding
apparently based upon the work she’s had with him. [Respondent] doesn’t
believe-he denies that that happened, I found that it did. And to go on like as if
nothing happened, I am absolutely astounded that the state would take that
position. . . . Why file this petition in the first instance? I am astounded that the
State of Michigan has taken that position. Well, you know, he seems like a good
dad to me, we just let him back in the house and, you know, he’s had a
psychological evaluation, he’s talked to a therapist for a while and yeah, you
might have found that he crushed this kid, broke this kid’s skull but there’s, you
know, he’s not-that’s neither here nor there, we’re just going to proceed
according[ly].

        [N]othing has changed. He and his therapist are not even talking about
[the toddler]. It’s not even coming up in discussion. So we’re living in this other
world where he didn’t do anything wrong and he’s just trying to be a better dad
and husband.

                                      * * *

So my reality is much different than everybody else’s reality except for [the
prosecutor] and now [the LGAL]. Everyone’s reality is different than mine but
these children are my court wards. . . . [S]omehow the [c]ourt has gotten it wrong
and . . . he’s been able to convince everybody that he’s a good guy and the kids
miss him, we’re just going to forget about [the toddler] and what he did to him.
That’s not how it works, folk[s].

      So, I have to make decisions based upon my reality, the reality of this
case. The reality of this case is that [respondent] had a frustration, anger,
whatever it is that was working, he caused a skull fracture to the young man who

                                         -6-
       had to be rushed to the hospital. . . . So, the Court made that finding. [N]othing I
       heard today pushes the ball forward. I’m affirming the prior orders.

                                              * * *

       Unless something changes, I can’t tell you that I’m going to change. [Emphasis
       added.]

The trial court entered its order following the dispositional review hearing, continuing its
directive that respondent not live in the home and only have supervised contact with the
children.2

        On appeal, we must answer a constitutional question of first impression, which is whether
a parent’s constitutional right against compelled self-incrimination bars a court in child
protection proceedings from requiring that parent, as a condition of reunification, to admit to
having abused an unrelated child. We conclude that it does, and therefore, vacation and remand
is required.

                                 II. STANDARD OF REVIEW

        Dispositional orders entered after a court assumes jurisdiction over a child “are afforded
considerable deference on appellate review.” In re Sanders, 495 Mich 394, 406; 852 NW2d 524
(2014). A trial court’s dispositional order is reviewed for clear error. Id. This Court reviews
constitutional questions de novo. In re AMAC, 269 Mich App 533, 535; 711 NW2d 426 (2006);


2
  Since the filing of this interlocutory appeal, the APA and trial court have relied on respondent’s
failure to admit guilt as evidence that respondent could not have made progress toward
reunification as DHHS has reported. Indeed, the APA recently asked DHHS, “Why are we
giving [respondent] services if he hasn’t recognized that he has an anger problem?” Further,
because respondent had not made a “breakthrough” in acknowledging his abuse of the toddler,
the APA has opined that the case would likely result in the “permanent wardship” of the
children. In these same hearings the trial court’s justification for continuing only supervised
visitation was that “additional counseling is required to address the acceptance of responsibility
for the behavior that led to the injury to the minor child . . . in order for [respondent] to fully
benefit from the services that are being provided to him.”
       At the most recent dispositional review hearing in August 2018, the DHHS worker
informed the trial court that respondent completed all services, and therefore, unsupervised
parenting time was recommended. At the conclusion of the hearing, the APA again argued
against unsupervised parenting time, stating that “our only options are a full custody order in
mom, a release of parental rights by dad[,] or termination of parental rights by dad.” The trial
court scheduled another dispositional review hearing date, stating: “I disagree with the
assessment of the case. . . . I’m not satisfied based on what’s been reported to the [c]ourt. I
[don’t have] any degree of confidence in [respondent’s] ability to provide care without
supervision.” No further services have been recommended for respondent.


                                                -7-
People v Conat, 238 Mich App 134, 144; 605 NW2d 49 (1999). Similarly, “[w]hether a party
has been afforded due process is a question of law, subject to review de novo.” In re Contempt
of Henry, 282 Mich App 656, 668; 765 NW2d 44 (2009).

                                        III. ANALYSIS

        Respondent argues that, by requiring him to confess to an act of criminal child abuse as a
condition of reunification with his children, the trial court violated his Fifth Amendment right
against compelled self-incrimination. We agree.

         The rights recognized by the Fifth Amendment of the United State Constitution include
the guarantee that “[n]o person . . . shall be compelled in any criminal case to be a witness
against himself . . . .” US Const, Am V. This provision applies to the states through operation of
the Fourteenth Amendment, People v Cheatham, 453 Mich 1, 9; 551 NW2d 355 (1996) (BOYLE,
J.), citing Malloy v Hogan, 378 US 1; 84 S Ct 1489; 12 L Ed 2d 653 (1964), and appears
verbatim in the Michigan Constitution. Const 1963, art 1, § 17.

        The constitutional protection is worded as one applicable to criminal cases, and thus it
applies in any situation where a criminal prosecution might follow, regardless of how likely or
unlikely such additional machinations may seem. See United States v Miranti, 253 F2d 135, 139
(CA 2, 1958) (“We find no justification for limiting the historic protections of the Fifth
Amendment by creating an exception to the general rule which would nullify the privilege
whenever it appears that the government would not undertake to prosecute.”). Accordingly,
“[t]he privilege can be claimed in any proceeding, be it criminal or civil, administrative or
judicial, investigatory or adjudicatory.” People v Ferency, 133 Mich App 526, 533; 351 NW2d
225 (1984), retaining italics and quoting In re Gault, 387 US 1, 47; 87 S Ct 1428; 18 L Ed 2d
527 (1967) (quotation marks and citation omitted). Any testimony “having even a possible
tendency to incriminate is protected against compelled disclosure.” People v Lawton, 196 Mich
App 341, 346; 492 NW2d 810 (1992). The privilege may be invoked even when criminal
proceedings have not been instituted or even planned. People v Guy, 121 Mich App 592, 609-
619; 329 NW2d 435 (1982). Here, although respondent has not been charged for assaulting the
toddler, we can reasonably conclude that an inculpatory statement by respondent could be used
in the future by the Ingham County prosecutor, and therefore, respondent is afforded the
protections under the Fifth Amendment throughout the child protection proceedings.

       We acknowledge that the trial court did not demand a confession from respondent, but it
instead refused to allow respondent an opportunity to return to the family home if he did not
admit responsibility for the toddler’s injuries to his therapist as part of his services. Any such
admission to his therapist would not be privileged against disclosure in this child protection
proceeding. See MCL 722.631 (abrogating privileges in communications other than those
between attorney and client, or priest and penitent, in child protection proceedings).

        The privilege against self-incrimination permits a defendant to refuse to answer official
questions in any other proceeding, no matter how formal or informal, if the answer may
incriminate him in future criminal proceedings. Philips v Deihm, 213 Mich App 389, 399-400;
541 NW2d 566 (1995). Our courts have seldom addressed the Fifth Amendment right against
self-incrimination in the context of child protective proceedings. In In re Stricklin, 148 Mich

                                               -8-
App 659, 662-663; 384 NW2d 833 (1986),3 the parents argued that the trial court violated their
rights against compelled self-incrimination when it refused to adjourn the child protection
proceedings pending the outcome of the criminal proceedings against them. Id. In that case, this
Court recognized two interrelated requirements for a Fifth Amendment violation: compulsion,
i.e., evidence that “a person is unable ‘to remain silent unless he chooses to speak in the
unfettered exercise of his own will,’ ” that is grounded on a penalty exacted for appellants’
refusal to testify. Id. at 663-664. The question in In re Stricklin was “whether a penalty was
exacted for appellants’ refusal to testify [at the child protection proceedings], sufficient to
amount to the kind of compulsion contemplated by the Fifth Amendment.” Id. at 664.
According to the appellants, “compulsion was present in the case at bar because the specter of
losing their parental rights was held over their heads if they chose not to testify.” Id.4 This
Court disagreed, noting that for “a Fifth Amendment violation, the testimony offered at the
criminal proceeding would have had to have been incriminating.” Id. However, any testimony
proffered at a proceeding in the child protection case would have been “nonincriminating,” and
therefore, “the choice not to testify was no more than appellants’ tactical decision as to the best
course to follow through the probate and criminal proceedings.” Id. at 666.

         Here, unlike in In re Stricklin, respondent waived his Fifth Amendment right against self-
incrimination at the adjudicative bench trial. He provided “nonincriminating” testimony,
claiming he did not injure the toddler and believed that any injury resulted from a seizure. At the
close of trial, the trial court found by a preponderance of the evidence that respondent caused the
injuries to the toddler. At a later dispositional review hearing, the trial court gave respondent a
Hobbesian choice to either (1) retract his claim of innocence, admit to the child abuse at therapy
as a condition of completing services, and expose himself to criminal liability for child abuse, or
(2) maintain his innocence, which would likely result in the termination of his parental rights to
his four children. Even though respondent initially waived his Fifth Amendment right to remain
silent,5 there was a sufficient showing of compulsion at the dispositional review hearing. “The
compulsion of nonincriminating testimony is not the sort of compulsion contemplated by the
Fifth Amendment.” Id. at 665 (emphasis added). The trial court, however, conditioned


3
  We acknowledge that Court of Appeals decisions before November 1, 1990 are not binding.
MCR 7.215(J)(1). However, In re Stricklin has not been overruled or modified, and we see no
reason to depart from it now.
4
  Importantly, “the Fifth Amendment does not forbid adverse inferences against parties to civil
actions when they refuse to testify in response to probative evidence offered against them: the
amendment does not preclude the inference where the privilege is claimed by a party to a civil
cause.” Phillips v Deihm, 213 Mich App 389, 400; 541 NW2d 566 (1995), citing Baxter v
Palmigiano, 425 US 308, 318; 96 S Ct 1551; 47 L Ed 2d 810 (1976).
5
  Voluntary testimony given in one proceeding does not constitute a waiver of the Fifth
Amendment privilege against self-incrimination in a subsequent proceeding. See People v
Hunley, 63 Mich App 97, 101; 234 NW2d 169 (1975) (stating that a “[d]efendant’s decision to
testify at the preliminary examination does not prevent the defendant from asserting his Fifth
Amendment right not to testify at trial”) (quotation marks and citation omitted).


                                                -9-
reunification on an admission of guilt to the child abuse. We see no reason to conclude that there
is a lack of compulsion simply because respondent initially waived his Fifth Amendment right,
testified at the trial, and was then later compelled to retract his claim of innocence and
incriminate himself. Compulsion occurs “when a person is unable ‘to remain silent unless he
chooses to speak in the unfettered exercise of his own will.’ ” Id. at 664. As the trial court
explained, he had a choice to choose between his liberty interests or his children. Respondent
chose the former, but any right to remain silent was no longer unfettered, and there was sufficient
compulsion “to be a witness against himself.” US Const, Am V.

        Turning to the second Stricklin requirement, there must be a penalty exacted on
respondent for refusing to admit to the crime sufficient to compel self-incrimination. In this
case, that penalty was obvious. Because respondent would not incriminate himself and admit to
the child abuse, he was ordered to remain outside the family home, was granted only supervised
visiting time, and was informed by the government that he most likely faces the future
termination of his parental rights to his four children. Therefore, unlike In re Stricklin,
respondent was given an extreme and detrimental choice—admit to the child abuse at therapy,
which could be used in future criminal proceedings—or continue to be separated from his
children and eventually lose his parental rights. This was a severe penalty threatened, and
therefore, a violation of respondent’s Fifth Amendment right against compelled self-
incrimination.

       The circumstances underlying the instant case square with the plurality decision in
McKune v Lile, 536 US 24; 122 S Ct 2017; 153 L Ed 2d 47 (2002). In McKune, the United
States Supreme Court decided whether participation in Kansas’ Sex Abuse Treatment Program
(SATP) violated an inmate’s right against compelled self-incrimination. Id. at 29-30.

       As part of the program, participating inmates are required to complete and sign an
       “Admission of Responsibility” form, in which they discuss and accept
       responsibility for the crime for which they have been sentenced. Participating
       inmates also are required to complete a sexual history form, which details all prior
       sexual activities, regardless of whether such activities constitute uncharged
       criminal offenses. A polygraph examination is used to verify the accuracy and
       completeness of the offender’s sexual history. [Id. at 30.]

The Court acknowledged that any information provided as part of SATP was not privileged and
would “leave[] open the possibility that new evidence might be used against sex offenders in
future criminal proceedings.” Id. Choosing not to participate in the program automatically
resulted in the reduction of “privilege status,” which included a reduction in “visitation rights,
earnings, work opportunities, ability to send money to family, canteen expenditures, access to a
personal television,” and “transfer[] to a maximum-security unit.” Id. at 30-31.

        The defendant refused to participate in the program and filed an action, claiming that the
requirements of the SATP violated his Fifth Amendment right against compelled self-
incrimination. Id. at 29. The issue before the United States Supreme Court was “whether the
State’s program, and the consequences for nonparticipation in it, combine to create a compulsion
that encumbers the constitutional right.” Id. at 35. With a showing of compulsion, Kansas could
no longer “continue the program in its present form.” Id. The Court in McKune, however,

                                               -10-
determined that “[t]he consequences in question . . . are not ones that compel a prisoner to speak
about his past crimes despite a desire to remain silent.” Id. at 36. The consequences in this
case—a loss of one’s constitutional right to provide care to his children—is far greater than the
consequences that the defendant faced in McKune.

        Our Supreme Court and the United States Supreme Court have found that a constitutional
violation arises when a person is subject to a severe consequence unless they waive their Fifth
Amendment right against compelled self-incrimination. A concurrence in State Bar Grievance
Administrator v Baun, 395 Mich 28, 42 n 9; 232 NW2d 621 (1975), noted that “[t]he United
States Supreme Court has limited the collateral consequences or penalties which may be imposed
on the [one] claiming the privilege” against self-incrimination. Id. at 41 n 9 (LEVIN, J.,
concurring), citing Lefkowitz v Turley, 414 US 70; 94 S Ct 316; 38 L Ed 2d 274 (1973), and
Slochower v Bd of Higher Ed, 350 US 551; 76 S Ct 637; 100 L Ed 692 (1956). In Lefkowitz, the
state “sought to interrogate [the] appellees about their transactions with the State and to require
them to furnish possibly incriminating testimony by demanding that they waive their [Fifth
Amendment] immunity and by disqualifying them as public contractors when they refused.”
Lefkowitz, 414 US at 82. The United States Supreme Court disapproved of that tactic, holding
that “[a] waiver secured under threat of substantial economic sanction cannot be termed
voluntary.” Id. at 82-83. In Slochower, the Court disapproved, on due process grounds, of a
provision of the Charter of the City of New York that arbitrarily conditioned continued
municipal employment on employees waiving their right against self-incrimination whenever
asked a question relating to official conduct. Id. at 552, 556, 559. As part of its reasoning, the
Court noted that “a witness may have a reasonable fear of prosecution and yet be innocent of any
wrongdoing,” and thus that the right against self-incrimination “serves to protect the innocent
who otherwise might be ensnared by ambiguous circumstances.” Id. at 557-558. In Spevack v
Klein, 385 US 511, 516; 87 S Ct 625; 17 L Ed 2d 574 (1967), the Court held that “[t]he threat of
disbarment and the loss of professional standing, professional reputation, and of livelihood are
powerful forms of compulsion to make a lawyer relinquish the privilege.”

        Threatened termination of one’s parental rights presents an imperative at least as great as
continued municipal employment, eligibility for public contracting, and the threat of disbarment,
and if the latter may not be used to condition the waiver of one’s right against self-incrimination,
neither should one’s parental rights. By requiring respondent to confess to the criminal abuse of
the toddler in order to regain care and custody of his children, the trial court was requiring an
inculpatory admission against respondent’s penal interests. This could also be self-defeating
because such an admission may lead to criminal charges that end with him being taken away
from his children due to incarceration. This practice offends due process when a respondent is
required, on pain of being deprived of the care and custody of his children, to confirm the trial
court’s determination that he had committed severe child abuse. Even more, requiring
respondent to admit to the child abuse after he had already testified at trial and denied any
wrongdoing would subject him to possible perjury charges. The record clearly shows that the
trial court violated respondent’s Fifth Amendment right against self-incrimination when it
conditioned unsupervised visitation and eventual reunification on respondent’s admission to the
child abuse.




                                               -11-
        With that said, this Court has the difficult task of providing guidance to the trial court in
light of this constitutional violation. “[A]t each review hearing, the court is required to consider,
among other things, ‘[c]ompliance with the case service plan with respect to services provided or
offered to the child and the child’s parent, . . . whether the parent . . . has complied with and
benefited from those services,’ and ‘[t]he extent to which the parent complied with each
provision of the case service plan, prior court orders, and an agreement between the parent and
the agency.’ ” In re Mason, 486 Mich 142, 156; 782 NW2d 747 (2010), quoting MCL
712A.19(6)(a) and (c). Under MCL 712A.19(6)(d), the trial court must also take into account
the likely harm to the children if they continue to be separated from respondent, as well as the
likely harm to the children if they are returned to their parent’s care, MCL 712A.19(6)(e). We
remand this case to the trial court for a balancing of imperatives, instructing the trial court to
decide anew the questions of visitation and whether to allow respondent to return to his family
home, taking into consideration all the facts and circumstances while refraining from considering
respondent’s persistent claim of innocence in connection with the toddler. In doing so, the trial
court must ensure that it is complying fully with the requirements of MCL 712A.19(6).6



6
  While not raised on appeal, we believe it is important for the trial court to address whether the
prosecutor has standing to proceed in this case. There are three avenues in which a county
prosecutor acquires standing in a child protection proceeding: (1) the prosecutor appears when
requested by the court, (2) the prosecutor appears when requested by the family independence
agency to act as a “legal consultant,” or (3) when the prosecutor has filed an original petition for
termination of parental rights. In re Jagers, 224 Mich App 359, 363-364; 568 NW2d 837
(1997), citing MCL 712A.17(4) and (5) and MCL 712A.19b(1); In re Hill, 206 Mich App 689,
692; 522 NW2d 914 (1994).

        Here, the original and amended petitions were filed by a DHHS worker—not the
prosecutor—and there is no indication that the trial court requested the prosecutor’s appearance.
Thus, it appears the prosecutor’s only basis for standing is if DHHS had requested the
prosecutor’s representation as a “legal consultant.” On appeal, the prosecutor has unequivocally
denied representing DHHS “as a client.” Instead, the prosecutor asserted that it appears at the
child protective proceedings only “as a legal consultant pursuant to MCR 3.914.”

        MCR 3.914(C)(1) states: “On request of the Michigan Family Independence Agency or
of an agent under contract with the agency, the prosecuting attorney shall serve as a legal
consultant to the agency or agent at all stages of a child protective proceeding.” With that said,
“the agency may retain legal representation of its choice when the prosecuting attorney does not
appear on behalf of the agency or an agent under contract with the agency.” MCR 3.914(C)(2)
(emphasis added). MCR 3.914 does not define a “legal consultant.” However, subsection (C)(2)
indicates that a prosecutor appears “on behalf of the agency.” This potential issue has surfaced
because the prosecutor and DHHS strongly disagree about whether reunification should occur.
Considering the prosecutor’s express declaration that it is not representing DHHS, the trial court
should determine on remand whether the prosecutor has standing to be heard during the
remainder of the proceedings.



                                                -12-
Vacated and remanded. We do not retain jurisdiction.



                                                  /s/ Thomas C. Cameron
                                                  /s/ Jane M. Beckering
                                                  /s/ Michael J. Riordan




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