Q&A with Pat Merriman, Dunn County State’s Attorney

Reader Questions: As promised in our first edition, our first feature will always be replies to reader questions/ comments.

Whether you email us or, just walk up to Pat Merriman at Nana Lil’s (at breakfast) or just approach him on the streets of Killdeer, we will try to get you an answer for any question related to crime, local law enforcement agencies, statistics or the operation of the States Attorney’s Office in Killdeer, ND.

If the writer allows us to use their name in our response, we will do so. If they are shy, we will respect their privacy and use their initials. Either way, we are here to serve you and answer your questions. Please avoid the use of profanity and be patient. We will get to you as we tweak and update our information.

AC asks Q- “Recently I have seen and heard a lot of children removed from their homes by social services. Some for abuse but mostly from drug abuse. My question is why are the parents not being charged with anything? Why are they only removing the child for a short time with little or no repercussions to the parents. In the least should they not be charged with drug ingestion or possession of a controlled substance?

Some even all the way to illegally providing to a child? Thank you.” A-[by Pat] OK, complicated issue and, without a specific case that I have worked on, I cannot answer your specific concerns. And, I certainly don’t agree that there is a general policy or practice in Dunn County of “little or no repercussions to the parents” who are using drugs around their children.

In fact, quite the opposite. But, to address AC’s general comments, first, the Department of Human Services (DHS), the entity solely tasked with dealing with complaints regarding children outside the adult criminal justice process, operates in an administrative (non-criminal capacity) under their enabling statutes.

For a more comprehensive explanation, check out their website at www.nd.gov/dhs/services/ childfamily/cps/. So, initially, DHS’ “investigation” is solely an administrative matter governed by their policies adopted pursuant to the North Dakota Century Code–50-25.1, Child Abuse & Neglect.

So, typically, a peace officer is not contacted but, rather, DHS gets a complaint of “suspected” child abuse or neglect from a 3rd party (often an anonymous telephone call) and, they open their non-criminal file–no questions asked because child safety is the issue not due process at the initial inception of their complaint. Essentially, the mandate of DHS is to “protect the health and welfare of children” and accomplish this by “encouraging the reporting of children who are known to be or suspected of being abused or neglected.”

At that point, the DHS investigator is tasked with not only protecting any children but, there is also another mandate to “provid[e] adequate services for the protection and treatment of abused and neglected children and to protect them from further harm.” This includes attempting to reunite families (parents with their kids) and helping that family learn how to avoid whatever problem led to DHS’ initial involvement. So, a 2 pronged approach–(1) protect children but, also, (2) accomplish this by trying keep the family unit intact.

Now, AC’s question involves illegal narcotics. Can a parent’s abuse of narcotics constitute “child abuse or neglect” under 50-25.1, NDCC? Absolutely… because an “abused child” means an individual under the age of eighteen who has been subjected by a parent, adult family or household member, guardian, or other custodian to:

Bodily injury, substantial bodily injury, or serious bodily injury. Sexual abuse. Neglect. Prenatal exposure to controlled substances. Inadequate parental care or control, subsistence, education, or other care or control necessary for the child’s physical, mental, or emotional health, or morals. A disreputable place or associating with vagrants or vicious or immoral persons.

An occupation forbidden by the laws of this state or an occupation injurious to the child’s health or morals or the health or morals of others. So, if a person responsible for the supervision of a minor either actively puts the minor at risk, fails to exercise adeqaute control over the minor, or fails to provide for the minor’s essential needs; such that, the minor is “at risk”, DHS has a mandate to stop that behavior, but yet, attempt to keep the family together.

How does DHS perform their administrative job? §50-25.1- 05, NDCC, provides that their local office does an “assessment” of each situation taking into consideration the following: Immediately cause a formal assessment to be made of any report of child abuse or neglect. That includes, when appropriate, a home assessment of residence of the child, any school or child care facility attended by the child, and the circumstances surrounding the report of abuse or neglect. If the report alleges a violation of a criminal statute involving sexual or physical abuse, DHS and local law enforcement coordinate the planning and execution of the investigation with the law enforcement agency having the primary role in that investigation since a crime has been committed.

No arrest based on probable cause, no immediate judicial review, no incarceration in lieu of bail and, most importantly, no legal requirement to prove allegations beyond a reasonable doubt.

Once a DHS assessment has been completed, §50-25.1-05.1, determines what “services” DHS may employ. If it is determined that services should be provided to the family, DHS has to immediately make a written report of that decision to the local Juvenile Court to seek some sort of judicial supervision.

And, of course, that applies even if the children are left with the family. Services which DHS may provided, under §50-25.1-06, include whatever is “necessary for their well-being” and are based on “appropriate social services, as the circumstances warrant to the parents, custodian, or other essential persons with respect to the child. Sometimes, that includes removing the child from the home and taking them into “protective custody” under §50-25.1-07 or appointing a guardian ad litem for the child. Regardless, reuniting the family is the main goal when services are provided and, criminal prosecution is not on the table. Under §50-25.1-16, prenatal exposure to controlled substances is strictly defined and mandates that the controlled substance must have been consumed by the mother “for a non-medical purpose during the pregnancy.” And, DHS is specifically prohibited from conducting a formal report or assessment if the mother “voluntarily enters treatment in a licensed treatment program. If the pregnant woman does not complete voluntary treatment.”

The same rules also generally apply regarding prenatal exposure to alcohol abuse under §50-25.1-18. So, in summary, DHS does not have any burden regarding proof “beyond a reasonable doubt” or “probable cause” or even a “reasonable suspicion” as we have discussed in prior editions of this newsletter. They are a state administrative agency which is tasked to investigate any allegation of abuse or neglect (including the parents’ ingestion of illegal narcotics) as opined by AC.

Now, comes the other side of AC’s question– why are the parents not being charged criminally with anything? Well, that’s pretty simple. Remember that a problem exists in a DHS investigation before a criminal case is opened by a license peace officer in North Dakota. DHS can refer the matter to law enforcement at any point but, any time the government (including any government agency like DHS) is seeking to evoke “guilt seeking” questions or information from a citizen, Miranda and other 4th and 5th Amendment rights (including the right to counsel and due process, i.e., judicial review) attach and come into play.

Forcing someone to answer questions, provide body fluid tests or other evidence, under threat of later removal of their children or arrest/incarceration is, well, illegal if you intend to use those statements or evidence against them. Remember the Trinity High School arson case last year. And, DUI cases in this country, including North Dakota, which have very strict time limits and civil rights protections about statements or incriminating evicence.

You cannot threaten someone with the loss of a constitutionally protected right and, then obtain a “knowing and voluntary waiver” of those same rights. And, that is what is pre-supposed in AC’s question, i.e., that simply because children are involved, a parent or guardian loses all their Constitutional rights. And, or course, nothing could be farther from the truth. Our judges have been quite specific about that in written court opinions.

Next, §19-03.1-22.3, NDCC defines the charge of ingesting a controlled substance. A person who intentionally ingests, inhales, or otherwise takes into the body a controlled substance, unless the substance was obtained directly from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of the practitioner’s professional practice, is guilty of a class A misdemeanor. Of course, an element of that crime is proof, beyond a reasonable doubt, that the suspect did, in fact, ingest an illegal controlled substance without it having been first prescribed to him. And, unlike DHS who has no burden of proof (other than erring on the side of child safety) in dealing with their assessments regarding allegedly intoxicated parents, peace officers (including yours truly) are strictly limited, for almost the last 60 years, to only 2 methods to obtain scientific, independent analysis of another person’s body fluids or hair, under Schmerber vs California 384 US 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) and its progeny. Either obtain “consent” (a waiver of 4th and 5th Amendment rights) or, get a search warrant (court order).

Again, under both the federal and North Dakota Constitutions, our courts have ruled that threats to remove children or other sanctions “overbear the will” of criminal suspects is a violation of their Constitutional rights. Hence, a no-go on getting voluntary consent! The other option– obtain a court order (search warrant) to suck blood, seize hair or perform other invasive bodily procedures (the classic method to provide drug intoxication) is manpower intensive (it takes several hours) and, frankly in my experience, very unsuccessful simply because (despite popular mythology) the presence of illegal controlled substances in the human body, particularly non-marihuana, dissipates rapidly and, in the time it takes to get the search warrant and execute it (3-5 hours), there is nothing left to detect.

Hence, why most of our criminal convictions for ingesting a controlled substance come because we catch the offender immediately after he/ she has smoked or injected the substance with additional controlled substances or paraphernalia in close proximity to them when they are arrested. And, to address the inevitable question about marijuana “ingestion” (reputed, incorrectly, to remain in the body for “months”), remember another difficulty–being present when someone else is smoking pot is not a crime. Hence, why in marijuana cases in a criminal prosecution, “knowing” ingestion or possession is an element of that crime.

Contact highs don’t count and, although letting dopers smoke pot around your kids is certainly grounds for DHS intervention, the state’s hands are tied on the much higher burden imposed when you are talking about prosecuting someone for ingesting the substance or, contributing to the delinquency of the child. We have to catch them actually “holding” in order for the crime to stick. Also, remember, that under the res gestae criminal rule, there must be some independent corroboration of a defendant’s confession to using, possessing or distributing illegal controlled substances in order to sustain a criminal conviction too. In other words, anyone can confess to anything abut, unless there is independent proof that a crime actually occurred, that statement is nothing more than hot air. DHS could use such an admission in conducting their assessment but, even with a Miranda warning, an incriminating statement or even other eyewitness testimony, there is going to have to be proof (beyond a reasonable doubt) that a particular controlled substances was actually knowingly possessed or ingested by this particular defendant in order to sustain a criminal conviction, i.e., in all of our drug cases (even with a confession) a lab test showing the actual presence of a detectable amount of the controlled substance is mandatory.

So, again, just because children are adversely affected by possessing or using drugs by their parents does not relieve the state from its burden of proof (beyond a reasonable doubt) or, its duties in collecting or using incriminating evidence. In regards to AC’s comment “Some even all the way to illegally providing to a child”, I can assure you that if an investigation proves that a parent/guardian is supplying illegal drugs to a child, it will be prosecuted. However, until a state peace officer comes to that knowledge, again, there is no remedy that we can provide. If you suspect this activity, make a hotline call to DHS or contact local law enforcement. Grousing or complaining don’t solve the problem. Get involved! Make the call!

In closing, although I am specifically not taking AC’s questions this way, I have often heard another grossly erroneous comment even from some prosecutors, i.e., if I have “probable cause” to believe a crime was committed and this suspect committed it, I have a duty to file the case and “let a jury decide.” Sorry, that is not the oath we take as prosecutors. Charging based on mere probable cause is persecution not prosecution as my first mentor at the US Attorneys office said. We are “ministers of justice” and are not supposed to ever initiate any criminal prosecution unless we have a good faith basis that: (1) a crime occurred; (2) this defendant was somehow legally involved; and (3) a jury of this defendant’s peers would find him/her guilty of that offense beyond a reasonable doubt. Something that has been sorely ignored in recent years and, led to the undermining of our system of checks and balances. So, again, AC, a DHS investigation vs a criminal prosecution are not the same thing and, I hope this answers your questions.


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