In the Matter of the Welfare of: J.G.W. and J.L.W.

                                 No. C2-88-566

                      Supreme Court of Minnesota, En Banc

                       433 N.W.2d 885;  1989 Minn. 

                             January 6, 1989, Filed

PRIOR HISTORY: Review of Court of Appeals

SYLLABUS:   [*1]

   Parent's fifth amendment privilege against compelled self-incrimination
protects him from being ordered by court to admit sexual abuse as pre-
requisite to visiting his children but the privilege does not protect him
from the risk of being denied visitation for any failure in treatment
resulting from his failure to admit guilt.

   Affirmed.

COUNSEL: Mary Elizabeth Hannon, Assistant County Attorney, Minneapolis, MN

John P. Guzik, St. Paul, MN, Robert J. Hajek, Minneapolis, MN

JUDGES: AMDAHL, Chief Justice. Considered and decided by the court en banc
without oral argument.

OPINION BY: AMDAHL

OPINION: OPINION
 
AMDAHL, Chief Justice

   The court of appeals held in this case that the juvenile court abused its
discretion to the extent that the court required G.W. to admit, as a pre-
requisite to obtaining even closely supervised visitation with his
children, that he had sexually abused the children. Stating that it was
relying on our decision in Matter of Welfare of J.W., 415 N.W.2d 879 (Minn.
1987), the court of appeals ruled that the juvenile court's order violated
G.W.'s fifth amendment privilege against compelled self-incrimination. The
court of appeals remanded to the trial court for further proceedings.   [*2] 
 Matter of Welfare of J.G.W., 429 N.W.2d 284 (Minn. App. 1988). We granted
the state's petition for review not because we disagreed with the court of
appeals' ultimate decision remanding the case to the trial court but because
we wanted to expand upon the court of appeal's analysis.

   Matter of Welfare of J.W., 415 N.W.2d 879 (Minn. 1987), dealt with the
self-incrimination issue in the context of a court-ordered treatment plan in
a child dependency and neglect proceeding. The trial court in that case
ordered the parents to obtain psychological evaluations and to explain the
death of their 2-year-old nephew, who had been in their care, consistent
with the medical findings. The parents, in the face of the threat of
termination of parental rights, asserted their privilege against compelled
self-incrimination. We held that the trial court's order, to the extent it
directly required the parties to incriminate themselves in order to avoid
termination, violated the privilege and that their non-compliance with the
trial court's order could not be used as grounds for termination or for
keeping the children in foster care. 415 N.W.2d at 883. However, we also
said that while the state could [*3] not directly compel the parents to
incriminate themselves as part of the treatment plan, the state could
require the parents to undergo treatment successfully and that the parents'
failure to admit their guilt might as a practical matter make them fail in
treatment. Id. As we put it, "[T]he risk of losing the children for failure
to undergo meaningful therapy is neither a 'threat' nor a 'penalty' imposed
by the state' but is "simply a consequence of the reality that it is unsafe
for children to be with parents who are abusive and violent." 415 N.W.2d at
884.

   The trial court's order in this case stated in one finding "[t]hat the
Respondent father still refuses either to recognize or explain that he has
committed sexual abuse upon the children and that failure to make such
statements has prevented his engagement with any effective therapy to bring
about visitation with his children." This seems to say simply that thus far
therapy has been ineffective because the father has not acknowledged the
sexual abuse. Under J.W. this finding, if we have interpreted the finding
correctly, does not by itself violate the father's privilege. However, in
the next finding the trial court stated  [*4]   'there has not been
substantial compliance with the Case Plan by the father since he refuses to
explain the sexual abuse upon the children." Further, the trial court
ordered the father "to continue to cooperate with the other party's
respective therapist fully and completely to re-initiate visitation between
the father and the children." The court of appeals apparently interpreted
these findings, read together, as directly requiring the father to explain
his sexual abuse upon the children if he ever wants to visit them.

   The court of appeals' decision is not incorrect but it emphasizes only
the first part of our holding in Matter of Welfare of J.W., supra, that it
is a violation of a parent's fifth amendment privilege to directly require
the parent to admit guilt as a part of a court-ordered treatment plan. We
granted review because we believe that the second part of our holding in
J.W., that the privilege does not protect the parent from the consequences
of any failure to succeed in a court-ordered treatment plan merits equal
emphasis.

   As we said, we agree with the court of appeals' ultimate decision to
remand the case to the trial court for further proceedings. On remand [*5]
the trial court is free to clarify its order consistent with the principles
expressed in this decision and expressed more fully in our decision in J.W.

   Affirmed.