Domestic Relations – Fifth Amendment Right Against Self-Incrimination – Adjudication of Abuse and Neglect

The trial court did not err by allowing Mother to invoke her Fifth Amendment right against self-incrimination. The unchallenged findings of fact support the trial court’s conclusion of law that the minor child is an abused juvenile.

We affirmed the trial court’s adjudication and disposition orders as to both Mother and Father.

Mother and Father appealed from an order adjudicating their minor child, Amy, abused and neglected and from a disposition order continuing Amy’s custody with the Forsyth County Department of Social Services (DSS). On appeal, Mother argued the trial court committed reversible error by permitting her, a minor parent with a Rule 17 guardian ad litem (GAL), to decide whether to waive her Fifth Amendment right against self-incrimination during compelled testimony. Father separately argued the trial court erred in adjudicating Amy as an abused juvenile. We disagreed with both arguments.

Mother’s sole contention on appeal was that the trial court erred by allowing her to personally decide whether to assert her Fifth Amendment right. Mother was appointed a Rule 17 GAL due to her status as an unemancipated minor parent. The GAL was appointed before the initial nonsecure custody hearing and was present at the adjudication hearing, where the trial court advised Mother of her right to remain silent. Although the Rule 17 GAL did not speak on the record at that time, Mother’s attorney objected to her testifying and reiterated that objection after Mother invoked her Fifth Amendment right.

The trial court fully explained Mother’s right against self-incrimination, and Mother affirmatively acknowledged her understanding, stated she had no questions, and thereafter selectively answered questions while expressly invoking her Fifth Amendment right when asked about Amy’s broken tibia. Mother did not show how the Rule 17 GAL could have taken additional steps beyond those already taken by counsel to secure a more favorable outcome. Where counsel has adequately raised objections, a Rule 17 GAL’s repetition of those objections would add nothing of substance.

Moreover, there is no evidence suggesting Mother lacked the capacity to understand the trial court’s explanation of her rights for any reason other than her age and unemancipated status. Neither Rule 17 nor N.C. Gen. Stat. § 7B-602 prescribes specific actions constituting “active participation” by a GAL. Accordingly, the trial court did not err by allowing Mother to decide whether to assert her Fifth Amendment right.

Father argued the trial court erred in adjudicating Amy as abused, contending the findings of fact do not support an inference that the parents inflicted or allowed the infliction of her injuries. Father did not challenge the adjudication of neglect. The unchallenged findings establish that Amy suffered unexplained, non-accidental injuries and support the inference that Mother and Father either inflicted those injuries or allowed them to occur. Those findings further demonstrate that the parents created or allowed a substantial risk of serious physical injury. Accordingly, the findings support the conclusion that Amy is an abused juvenile under N.C. Gen. Stat. § 7B-101(1).

Affirmed.

In re A.H.-G. (Lawyers’ Weekly No. 011-307-25, 32 pp.) (Per Curiam) Appealed from Forsyth County District Court (David E. Sipprell, J.) Theresa A. Boucher for Petitioner-Appellee Forsyth County Department of Social Services. Mercedes O. Chut for Respondent-Appellant Mother. Robert W. Ewing for Respondent-Appellant Father. Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by Justin B. Lockett and Michael W. Mitchell, for guardian ad litem. North Carolina Court of Appeals