In Re the Welfare of S.A.V.

OPINION SEDGWICK, Judge. S.A.V. and S.M.V. were adjudicated dependent children pursuant to Minn.Stat. § 260.015, subd. 6(d) (1984). The parents appeal, challenging the adjudication of dependency and the dispositional order. We affirm. FACTS S.A.V. and S.M.V. are the twin daughters of B.V. (father) and L.V. (mother). The twins were born in July 1985 and were approximately eleven weeks old at the time of the relevant events. On October 2, 1985, S.M.V. was taken to the local hospital in Marshall, Minnesota by her parents. Dr. Jewett, the physician who examined her, suspected that S.M.V. was suffering from spinal meningitis, so transferred her to Sioux Valley Hospital in Sioux Falls, South Dakota for further testing. The physician at Sioux Valley Hospital concluded that S.M.V. had suffered brain damage resulting in seizures. In addition, retinal hemorrhage and bruises were noted. During the course of her hospitalization, doctors discovered chip fractures of her arms and legs, a fracture of the fibula, and several rib fractures. Based upon the nature and extent of S.M.V.’s injuries, her physician became concerned that she had been physically abused. As a result of the concern regarding S.M.V.’s injuries, S.A.V. was examined by Dr. Jewett. Dr. Jewett found some bruising, chip fractures of the arms and legs, a fractured fibula, and rib fractures. Based on the physicians’ reports and investigatory reports, a dependency petition was filed. Three physicians testified at the dependency hearing: Dr. Jewett, Dr. Blake (from Sioux Valley Hospital) and Dr. Ophoven (a forensic pathologist). All three physicians were of the opinion that the children had been abused. They testified that, although fractures in infants are difficult to detect, it would be highly unlikely that the children would not be irritable and fussy due to their broken bones. Dr. Blake testified that the arm and leg fractures could only have been caused by vigorous pulling or twisting of the extremities; they could not have been caused accidentally. Dr. Blake testified that S.M.V.’s leg fracture occurred at least two weeks before he examined her, but that her rib fractures were more recent. He was unable to date the chip fractures. He concluded that the bruises were also recent. Dr. Jewett found that S.A.V.’s fractures had probably occurred about two weeks before he examined her. Neither parent provided an explanation for the children’s injuries. All witnesses denied ever having seen abuse perpetrated on the children and also denied having noticed any symptoms of abuse. The parents' admitted a period of time when both children were somewhat fussy, but attributed it to gastric problems. The fussiness ceased after the children’s formula was changed. Both parents denied injuring the children themselves and denied any knowledge of abuse by the other. Mother was unemployed and spent most of her time at home with the children. She was out of the home for only about two to three hours per week. Father was employed full time during the summer months and was a student in the fall. He was out of the home about 25 hours per week. The twins were rarely left with babysitters. After waiving his privilege against self-incrimination, father testified regarding what happened the morning S.M.V. was *262 taken to the hospital: He was at home alone with the twins while mother ran some errands. The twins were sitting on the floor in infant seats while he did some schoolwork. When he got up to go to the bathroom, he tripped over S.M.V.’s infant seat, jarring her. He readjusted her seat and returned to the bathroom. When he returned from the bathroom, he noticed that S.M.V. was not breathing. He removed her from the seat and tried to revive her. He described moving her from side to side in a rotating motion, but denied shaking her back and forth (toward and away from himself). She finally resumed breathing when he gave her mouth to mouth resuscitation. He then placed her in the infant seat again and resumed working on his schoolwork. When mother returned approximately ten minutes later, father told her what had happened. S.M.V. was palish yellow and emitted a high-pitched cry at that time. Mother called her mother, who, upon observing S.M.V., said she should be taken to the hospital. The parents then took S.M.V. to the hospital. Father speculated that his resuscitative efforts may have caused S.M.V.’s brain injuries. Dr. Blake, on the other hand, testified that the injuries could not have been caused by the resuscitative efforts. To cause injuries such as S.M.V.’s, a child would have to be shaken violently forward and backward, causing blood vessels to tear and the brain to strike the back and front of the skull. The trial court made detailed findings regarding the children’s injuries. The court found that S.M.V.’s brain injury most likely caused her to stop breathing. The court further found: 22. That the injuries are so extensive and so severe a nature to [S.A.V. and S.M.V. they] should have been apparent to anyone who provided care to them because of the manifestation of irritability and discomfort by the children. 23. That the injuries to [S.A.V. and S.M.V.] were caused by either [mother or father] or by both of them and by no one else; and that if the injuries were caused by one and not the other of the parents, then with the knowledge of the other parent. Thus, the court concluded that the twins were dependent children within the meaning of Minn.Stat. § 260.015, subd. 6(d) because they were without proper parental care due to the emotional disability and state of immaturity of their parents. The court further concluded that the children were at risk of further injury if returned to their parents without intervention to help them overcome their parenting deficiencies. In its dispositional order, the court continued legal custody in the welfare department and placement of the children in foster care with the mother’s brother and sister-in-law, subject to visitation by the parents. The court found as a fact: That the parents need to acknowledge the causes of the children’s injuries before any meaningful change will occur in the care and treatment they provide to the children. The court then ordered that the welfare department prepare a plan for the psychological or psychiatric evaluation of the parents and that the parents “cooperate fully in the evaluation process.” The parents were also ordered to participate in counseling and parenting classes. ISSUES 1. Is the evidence sufficient to support a finding that S.A.V. and S.M.V. were dependent children within the meaning of Minn.Stat. § 260.015, subd. 6(d)? 2. Does the dispositional order requiring the parents to “cooperate in the evaluation process” violate father’s constitutional right to be free from compelled self incrimination? ANALYSIS 1. A child is dependent if he or she “is without proper parental care because of the emotional, mental, or physical disability, or state of immaturity of his parent * * Minn.Stat. § 260.015, subd. 6(d) *263 (1984). Because a parent is presumed to be fit to care for his or her child, allegations of dependency and neglect must be proved by clear and convincing evidence. In re Welfare of R.A. and J.A., 375 N.W.2d 578, 580 (Minn.Ct.App.1985) (citations omitted); Minn.R.Juv.P. 59.05. The standard of appellate review is whether the trial court’s findings are “supported by substantial evidence and are not clearly erroneous.” In re Welfare of J.M.S., 268 N.W.2d 424, 428 (Minn.1978) (citations omitted). Where more than one child is involved, the findings must be reviewed with respect to each child. Welfare of R.A., 375 N.W.2d at 580 . The parents quarrel with the trial court’s finding that they either perpetrated the abuse, or knew or should have known of abuse perpetrated by the other. Both parents argue that this finding is not supported by the evidence. We cannot agree. The evidence makes it painfully clear that these children were repeatedly abused. It is also clear that one or both of the parents is responsible for the children’s injuries. Each of the children sustained multiple injuries. The evidence indicates that the injuries occurred on more than one occasion. Moreover, because the parents were the primary caregivers, it does not appear that the injuries were caused by anyone other than the parents. Finally, experts testified that it would be highly unlikely for children with broken bones not to display some symptoms, such as irritability or fussiness. It defies belief, given the severe nature of the injuries involved here, that a parent would not know that something was wrong with the children. The evidence adequately supports the trial court’s findings and conclusion that each of these children is dependent. The statute requires that the petitioner show that the children are without proper parental care because of emotional or mental disability, or immaturity of a parent. There is clear evidence that these children were abused. This fact alone is sufficient to establish that the children were without proper parental care. Abuse by a parent, or knowledge of abuse by another without taking corrective action is clear evidence of emotional disability or immaturity of a parent. 2. Appellant father argues that the dis-positional order infringes on his right to be free from compelled self-incrimination. He argues that the requirement that he cooperate with psychological evaluation compels him to incriminate himself and enhances the threat of criminal prosecution. The privilege against self-incrimination applies in civil as well as criminal proceedings. Parker v. Hennepin County District Court, 285 N.W.2d 81 , 82-83 (Minn.1979) (citations omitted); see also Minnesota State Bar Association v. Divorce Assistance Association, 311 Minn. 276 , 248 N.W.2d 733 (1976). If testimony in a civil action would enhance the threat of criminal prosecution, the privilege may be invoked. Parker, 285 N.W.2d at 83. An individual may not be compelled to testify absent a grant of immunity from use of the statements in any subsequent prosecution. Lefkowitz v. Turley, 414 U.S. 70, 77-78 , 94 S.Ct. 316, 322 , 38 L.Ed.2d 274 (1973) (citing Kastigar v. United States, 406 U.S. 441 , 92 S.Ct. 1653 , 32 L.Ed.2d 212 (1972)). The United States Supreme Court has held that a state may not exact a penalty for refusal to waive immunity. See Lefkowitz v. Cunningham, 431 U.S. 801 , 97 S.Ct. 2132 , 53 L.Ed.2d 1 (1977) (removal and five-year bar from public office for refusal to waive immunity is unconstitutional); Uniformed Sanitation Men Association v. Commissioner of Sanitation, 392 U.S. 280 , 88 S.Ct. 1917 , 20 L.Ed.2d 1089 (1968) (termination from public employment for refusal to waive immunity held unconstitutional); Gardner v. Broderick, 392 U.S. 273 , 88 S.Ct. 1913 , 20 L.Ed.2d 1082 (1968) (dismissal of police officer for refusal to sign a waiver held unconstitutional); Garrity v. New Jersey, 385 U.S. 493 , 87 S.Ct. 616 , 17 L.Ed.2d 562 (1967) (statements given by police officers faced with termination for refusal to answer could not be used in subsequent criminal prosecution). *264 We recognize that appellant in this case may not be forced to waive his privilege to be protected from compelled self-incrimination. At the same time, we do not view this case as one in which the state is attempting to impose an unconstitutional penalty upon appellant or as posing an unconstitutional choice. The Supreme Court has recently stated: In each of the so-called “penalty” cases, the state not only compelled an individual to appear and testify, but also sought to induce him to forgo the Fifth Amendment privilege by threatening to impose economic or other sanctions “capable of forcing the self-incrimination which the Amendment forbids.” Minnesota v. Murphy, 465 U.S. 420, 434 , 104 S.Ct. 1136, 1146 , 79 L.Ed.2d 409 (1984) (quoting Lefkowitz v. Cunningham, 431 U.S. 801, 806 , 97 S.Ct. 2132, 2136 , 53 L.Ed.2d 1 (1977)). The “penalty” cases have no applicability here. Appellant has not been threatened with sanctions for refusing to waive his privilege. Appellant has not been placed in a situation in which the state has required him to either waive immunity and testify or suffer dire consequences. In fact, appellant has not demonstrated that he has been faced with a situation in which he has sought to exercise his privilege. While recognizing appellant’s rights in this matter, we also recognize the state’s interest and the children’s rights. The state has both a strong interest and a mandate to protect these children from an environment where they have suffered brain damage and repeated fractures. The state is required to work with the parents to correct the conditions which caused the abuse with the aim of returning the children to the parents as soon as this can be done safely. See In re Welfare of Solomon, 291 N.W.2d 364 (Minn.1980); Minn. Stat. § 260.221 (b)(5) (1984). However, if appellant refuses to cooperate in the process, or is unable or unwilling to correct the behavior that led to the abuse, the children cannot be returned safely to his custody. Termination of appellant’s parental rights is a very real possibility if he does not cooperate with counseling because the state will be unable to work with him toward resumption of his parental responsibilities. The trial court’s finding that the parents need to recognize the cause of the children’s injuries before any meaningful change can occur recognizes that a parent who acknowledges the need for professional help is more amenable to treatment than one who denies the need for help. See, e.g., S. O’Brien, Child Abuse 124 (1980). Termination in such a situation is not, however, a sanction for exercise of a constitutional right, but simply the necessary result of failure to rectify parental deficiencies. Although the state cannot require appellant to waive his constitutional right, that does not mean it must relinquish its right and obligation to protect these children. DECISION The evidence is sufficient to support a finding of dependency as to each child. The dispositional order does not violate appellant’s right to be free from compelled self-incrimination. Affirmed.