A.Clear and Convincing Evidence Standard
Because US Const, Am XIV, provides natural parents with a fundamental liberty interest in the care, custody, and management of their children, the state must provide fundamentally fair procedures when it seeks to permanently terminate parental rights. Santosky v Kramer, 455 US 745, 752-754 (1982). Consequently, at a termination proceeding, the state must prove parental unfitness by clear and convincing evidence. Santosky, supra at 769.1 See also MCL 712A.19b(3).2
Evidence is clear and convincing when it
“‘produce[s] in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable [the factfinder] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.’” Hunter v Hunter, 484 Mich 247, 265 (2009), quoting In re Martin (Michael), 450 Mich 204, 227 (1995).
B.Privilege Against Self-Incrimination3
Both the state and federal constitutions prohibit compelled self-incrimination in a criminal case. US Const, Am V (no person “shall be compelled in any criminal case to be a witness against himself”); Const 1963, art 1, §17 (“[n]o person shall be compelled in any criminal case to be a witness against himself”). “The constitutional protection is worded as one applicable to criminal cases, and thus it applies in any situation in which a criminal prosecution might follow, regardless of how likely or unlikely that outcome may seem. Accordingly, ‘[t]he privilege can be claimed in any proceeding, be it criminal or civil, administrative or judicial, investigatory or adjudicatory.’ . . . The privilege may be invoked even when criminal proceedings have not been instituted or even planned.” In re Blakeman, 326 Mich App 318, 332-333 (2018) (even though respondent had not been charged with a crime, the privilege applied throughout the child protection proceeding because “an inculpatory statement by respondent could be used in the future by the . . . prosecutor”) (citations omitted; alteration in original).
“The privilege against self-incrimination permits a [witness] 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.” In re Blakeman, 326 Mich App at 333. However, a witness “‘has no occasion to invoke the privilege against self-incrimination until testimony sought to be elicited will in fact tend to incriminate.’” People v Ferency, 133 Mich App 526, 533-534 (1984), quoting Brown v United States, 356 US 148, 155 (1958). The trial judge must determine that the witness’s answer does not have a tendency to incriminate him or her before ordering the witness to respond. Ferency, 133 Mich App at 534. This inquiry should be conducted outside a jury’s presence. See In re Stricklin, 148 Mich App 659, 666 (1986).
To protect a person’s privilege against self-incrimination, courts may stay civil proceedings pending the outcome of criminal proceedings. Landis v North American Co, 299 US 248, 254-255 (1936). A court has inherent authority to stay a proceeding pending the outcome of a separate action even though the parties to both proceedings are not the same. Id. at 254-255.
“In [Stricklin], [the Court of Appeals] 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.”
•“there must be a penalty exacted on respondent for refusing to admit to the crime sufficient to compel self-incrimination.” In re Blakeman, 326 Mich App at 333-334, 336.
“The compulsion of nonincriminating testimony is not the sort of compulsion contemplated by the Fifth Amendment.” In re Stricklin, 148 Mich App at 666. Where the respondent-parents’ testimony was presumed to be nonincriminating, the penalty exacted for respondent-parents’ refusal to testify at termination proceedings was insufficient to amount to a breach of the parents’ rights of self-incrimination. Id. at 664-666 (holding that the purported penalty—the increased risk of loss of parental rights by refusing to testify during the protective proceeding—did not amount to compulsion prohibited by the state and federal constitutions. The parents’ asserted increased risk of loss of their parental rights implied that they would present nonincriminating testimony during the civil proceedings, making their choice not to give nonincriminating testimony a matter of trial strategy, not a matter of protecting their constitutional rights). But see In re Blakeman, 326 Mich App at 334-336 (even though “respondent waived his Fifth Amendment right against self-incrimination at the adjudicative bench trial[, and h]e provided ‘nonincriminating’ testimony, . . . there was a sufficient showing of compulsion at the dispositional review hearing” when the trial court “conditioned reunification [with his children] on an admission of guilt to [an act of criminal] child abuse”; his “right to remain silent was no longer unfettered, and there was sufficient compulsion ‘to be a witness against himself’” when the trial court required the respondent “to choose between his liberty interests or his children.”).
“The preservation of one’s parental rights . . . may not be used to condition the waiver of one’s right against self-incrimination[.] In re Blakeman, 326 Mich App at 339. Conditioning unsupervised visitation and possible reunification on a respondent’s admission to a crime that he or she denies committing offends due process and violates the respondent’s Fifth Amendment right against self-incrimination. Id. at 339. In Blakeman, the respondent refused to admit to committing severe child abuse that the trial court determined he had committed. Id. at 336. The trial court then ordered him “to remain outside the family home, was granted only supervised visiting time [with his children], and was informed by the government that he most likely face[d] the future termination of his parental rights to his four children.” Id. at 336. This ultimatum constituted “an extreme and detrimental choice–admit to the child abuse at therapy, which could be used in future criminal proceedings [as well as subject him to perjury charges]–or continue to be separated from his children and eventually lose his parental rights.” Id. at 336.
1 The United States Supreme Court granted the states with discretion to implement a higher standard of proof. Santosky, 455 US at 769-770. However, Michigan uses the clear and convincing standard. See In re Utrera, 281 Mich App 1, 15 (2008).
2 The standard of proof at trial is by a preponderance of the evidence, regardless of whether the petition contains a request to terminate parental rights. MCR 3.972(C).
3 See also Section 8.9 (privilege against self-incrimination does not allow a parent to refuse to undergo a psychological examination) and Section 16.6 (privilege does not allow parent to refuse to produce a child subject to a court order).