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In re Dependency of A.M.-S.

Court of Appeals of Washington, Division 1

December 16, 2019

In the Matter of the Dependency of A.M.-S., DOB: 12/17/08.
v.
STATE OF WASHINGTON, Respondent. SERGIO MICHEL-GARCIA, Petitioner,

          Andrus, J.

         Sergio Michel-Garcia, the father of A.M.-S., appeals a trial court order denying his request for derivative use immunity for statements he has made or may make during a psychological evaluation or any other court-ordered services during this dependency proceeding. We conclude the trial court does not have the inherent authority to grant Michel-Garcia derivative use immunity and therefore affirm.

         FACTS

         In May 2018, the Department of Social and Health Services[1] filed a dependency petition on behalf of 10-year-old A.M.-S., alleging that the child's mother[2] and father, Sergio Michel-Garcia, had physically abused A.M.-S. and three other children living in the home. The Snohomish County Sheriff's Office opened a criminal investigation into the alleged abuse.

         The parents agreed to the entry of a shelter care order removing the children from their home in May 2018, and an order finding the children dependent in August 2018.[3] Michel-Garcia denied the allegations of abuse, but "given the nature of the allegations and the possibility of criminal charges, the father agree[d] that he [wa]s unable to care for the child at this time and admit[ted] that if this matter proceeded to a [f]act-[f]inding hearing, the Department would more likely than not prove that the child [wa]s dependent by a preponderance of the evidence." He stipulated to a finding under RCW 13.34.030(6){b)[4] that "the child is abused or neglected as defined in Chapter 26.44 RCW," and a finding under RCW 13.34.030(6)(c) that the child had no parent capable of adequately caring for the child.

         Michel-Garcia also acknowledged that the services listed in section 4.5 of the order "would be required in order to reunite him with his child." One of the services listed, and in which he agreed and the court ordered him to participate, was a psychological evaluation with a parenting component. The court reserved on whether to order Michel-Garcia to undergo other services that the Department requested-namely, a domestic violence assessment and an anger management assessment.

         In September 2018, Michel-Garcia asked the court to grant him use and derivative use immunity, under State v. Decker, [5] for any statements he made or information he provided in any services ordered by the dependency court. The Department notified the Snohomish County Prosecuting Attorney's Office of the father's immunity request, and the Prosecuting Attorney objected to a judicial grant of immunity broader than that statutorily authorized under RCW 26.44.053.[6] The Prosecuting Attorney argued that Michel-Garcia's Fifth Amendment right against self-incrimination could be adequately protected during any evaluation by this grant of statutory use immunity and the presence of counsel.

         The dependency court denied Michel-Garcia's request for derivative use immunity. The court found that with a criminal investigation pending against him, Michel-Garcia voluntarily agreed to engage in psychological evaluations but wished to do so without waiving any Fifth Amendment rights. It also found that "[t]he custom in our juvenile court historically is to grant Decker motions [for immunity] if unopposed." It found no case law directly on point on the issue of whether a parent should be granted Decker immunity in a dependency case so he can engage in evaluations and treatment.

         The court analyzed two cases on which Michel-Garcia relied-In re Dependency of Q.L.M., 105 Wn.App. 532, 20 P.3d 465 (2001), and In re Dependency of J.R.U.-S., 126 Wn.App. 786, 110 P.3d 773 (2005)-and found neither case applicable. The court noted that, contrary to Q.L.M., neither parent in this case had requested a protective order limiting the questions the parents could be forced to answer. It further concluded that under J.R.U.-S., court-ordered psychological evaluations are not testimonial in nature and, as a result, Decker did not apply.

         The court reasoned:

Parents always have the right to go to trial on termination and dependency petitions, and to have extended hearings, so the court can evaluate their statements in various ways. It is the parents' choice not to go to trial after consulting with their attorneys about what the best strategy is. In this case the strategy was to accept a 'b' and 'c' dependency without an explicit statement of facts. The parents are still free to have a termination trial if it comes to that. They can give their statements and be subject to cross-examination, and if they invoke the Fifth Amendment at trial, ... the court can draw whichever conclusions it wishes to draw.

         The court concluded that RCW 26.44.053(2), the statute granting use immunity to parents for statements made or information provided during dependency evaluations, combined with the parents' ability to simply refuse to answer questions that might elicit inculpatory information, sufficiently protected the parents' Fifth Amendment rights. The court ordered:

Pursuant to RCW 26.44.053, no information given at any examinations of the parents (completed in association with this dependency action) may be used against the parents in subsequent criminal proceedings against the parents concerning the alleged abuse or neglect of the child. The Department shall not provide copies of the parents' evaluations to the Prosecuting Attorney, nor shall the Department discuss the evaluations/recommendations with the Prosecuting Attorney.

         The court ordered Michel-Garcia to participate in a psychological evaluation and a domestic violence assessment pursuant to the terms of this protective order.

         We granted Michel-Garcia's request for discretionary review of the order denying derivative use immunity.

         ANALYSIS

         Michel-Garcia asks this court to hold that trial courts in Washington have the inherent authority to grant derivative use immunity to parents participating in dependency services when necessary to protect their Fifth Amendment rights against self-incrimination. But the Snohomish County Prosecuting Attorney asks the court to hold that immunity is solely a legislative prerogative and that, in the absence of statutory authorization to grant immunity, courts have no authority to grant immunity to any party or witness without prosecutorial consent. And the Department asks the court to dismiss the appeal as moot.

         A. Mootness

         The Department asks the court to dismiss the appeal as moot because Michel-Garcia has completed the court-ordered psychological evaluation. A case is moot if we can no longer provide effective relief. State v. T.J.S.-M., 193 Wn.2d 450, 454, 441 P.3d 1181 (2019). We conclude the case is not moot because the dependency is still ongoing and additional services may be ordered for which Michel-Garcia could seek derivative use immunity for any statements he may make while participating in these additional dependency services, not just the already completed psychological evaluation. The parties have fully litigated and briefed this issue, and it would be a waste of judicial resources to dismiss an appeal on an issue that is likely to recur. See Orwick v. City of Seattle, 103 Wn.2d 249, 253, 692 P.2d 793 (1984). We are in a position to provide the relief Michel-Garcia seeks, and the appeal is thus not moot.

         Moreover, we may consider technically moot issues "when the court discerns a likelihood of recurrence of the same issue, generally in the framework of a 'continuing' or 'recurring' controversy, and 'public interest' in the controversy." In re Dependency of H., 71 Wn.App. 524, 527-28, 859 P.2d 1258 (1993) (quoting DeFunis v. Odegaard., 84 Wn.2d 617, 627, 529 P.2d 438 (1974)); see also State v. Hunley, 175 Wn.2d 901, 907, 287 P.3d 584 (2012) (case may be decided if it involves matters of continued and substantial public interest).

         This case is appropriate for review under this alternative basis because the issue of a dependency court's inherent authority to grant derivative use immunity is not unique to Michel-Garcia. Because criminal investigations into alleged child abuse occur frequently, dependency courts would benefit from guidance on what authority they have to grant derivative use immunity. And future recurrence is not merely likely, it is probable. During the pendency of this appeal, the court received a motion for discretionary review in a different dependency proceeding in which another father sought review of an order denying his request for immunity. That motion became moot when the father relinquished his parental rights. Thus, this issue is one "capable of repetition, yet evading review." See Dependency of H., 71 Wn.App. at 528 (reaching issue of shelter care procedures because there was no possibility that the procedures could be reviewed by an appellate court before mooted by subsequent hearings). Based on these considerations, we deny the Department's motion to dismiss the appeal and proceed to the merits.

         B. Immunity

         Michel-Garcia argues the trial court erred by denying his request for derivative use immunity. The Prosecuting Attorney asks the court to clarify that trial courts, absent statutory authority, cannot grant derivative use immunity in dependency proceedings over the objection of the State.[7] Resolving this issue requires us to review current immunity principles and the protection they afford before reaching the question of whether Washington trial courts have the inherent authority to grant derivative use immunity in dependency proceedings.

         1. Standard of Review

         Orders from dependency proceedings are generally reviewed for an abuse of discretion. J.R.U.-S., 126 Wn.App. at 792 n.1. But in other contexts our Supreme Court has reviewed de novo the scope of a trial court's inherent authority. In re Dependency of A.K., 162 Wn.2d 632, 644, 174 P.3d 11 (2007); see also State v. Gassman, 175 Wn.2d 208, 211, 283 P.3d 1113 (2012). Thus, we review de novo whether superior courts have inherent authority to grant derivative use immunity.

         2. Scope of Michel-Garcia's Right Against Self-incrimination

         The trial court concluded that Michel-Garcia's Fifth Amendment rights were not at risk in this case because participation in a psychological evaluation was not "compelled" or sworn testimony. We disagree with this legal conclusion.

         The Fifth Amendment to the United States Constitution and article I, section 9 of the Washington Constitution both provide that no person may be compelled in any criminal case to give evidence or be a witness against himself. The state protection against self-incrimination afforded in article I, section 9 is co-extensive with the protection of the Fifth Amendment. State v. Earls, 116 Wn.2d 364, 374-75, 805 P.2d 211 (1991). Both constitutional provisions permit a person to refuse to testify at a criminal trial or to refuse to answer official questions in any other proceeding where the answer might tend to incriminate them in future criminal proceedings. State v. King, 130 Wn.2d 517, 523-24, 925 P.2d 606 (1996). The privilege not only extends to answers that would in themselves support a conviction but also embraces any statements "which would furnish a link in the chain of evidence needed to prosecute" a person for a crime. Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 (1951).

         The privilege against self-incrimination may be invoked whenever circumstances indicate that a real and substantial danger of incrimination exists; it is not limited to circumstances in which a person is in custody or under compulsion to speak. J.R.U.-S., 126 Wn.App. at 793: accord State v. Diaz-Cardona, 123 Wn.App. 477, 491, 98 P.3d 136 (2004) (court cannot require juvenile to participate in special sex offender disposition evaluation before sentencing because it violates the juvenile's privilege against self-incrimination). Although a parent participating in a dependency evaluation is not under compulsion to speak, and therefore has no constitutional right to counsel during the evaluation, there is nevertheless a real and substantial danger of incrimination during such an evaluation, creating a threat to that parent's Fifth Amendment rights. J.R.U.-S., 126 Wn.App. at 798-800.

         In this case, the trial court ordered Michel-Garcia to participate in services, including a psychological evaluation with a parenting component and a domestic violence assessment. Dependency courts are statutorily required to conduct review hearings to determine a parent's compliance with court-ordered services. RCW 13.34.138. A parent's level of compliance determines whether the child is reunified with that parent or whether the parent could lose his parental rights. RCW 13.34.141. Therefore, although ...


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