In re M.H. , 2018 Ohio 4848 ( 2018 )

[Cite as In re M.H., 2018-Ohio-4848.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105742
IN RE: M.H.
A Minor Child
[Appeal by State of Ohio]
JUDGMENT:
REVERSED AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. DL-16105732
BEFORE: McCormack, P.J., Jones, J., and Keough, J.
RELEASED AND JOURNALIZED: December 6, 2018
ATTORNEYS FOR APPELLANT
Michael C. O’Malley
Cuyahoga County Prosecutor
Joanna N. Lopez
Anthony Thomas Miranda
Assistant County Prosecutors
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Mark A. Stanton
Cuyahoga County Public Defender
Paul Kuzmins
Assistant Public Defender
310 Lakeside Ave., Ste. 200
Cleveland, OH 44113
TIM McCORMACK, J.:
{¶1} Plaintiff-appellant state of Ohio appeals from the judgment of the Cuyahoga
County Court of Common Pleas granting defendant-appellee M.H.’s motion to suppress his
statements made to a social worker who was employed with the Cuyahoga County Department of
Children and Family Services (“CCDCFS”). For the reasons that follow, we reverse the
decision of the trial court and remand the matter for further proceedings.
{¶2} On August 24, 2016, M.H. was charged in a delinquency complaint with one
count of rape in violation of R.C. 2907.02(A)(2). The charge stems from an incident that
occurred on or about August 18, 2015. At the time of the alleged rape, M.H. was 13 years old
and the alleged victim was 12 years old.1
{¶3} In response to a referral to the CCDCFS regarding the alleged rape, a social
worker from the CCDCFS interviewed M.H., the alleged perpetrator on December 2, 2015.
During this interview, M.H. made certain admissions. On March 14, 2017, the state filed a
motion in limine to use M.H.’s admissions to the social worker. Thereafter, M.H. filed a
motion to suppress his statements, arguing the statements were “barely probative” and would
cause significant confusion and delay. He also argued that the statements were obtained in
violation of both due process and his right against self-incrimination. In its opposition, the state
asserted that M.H.’s statements are relevant, probative, and not unfairly prejudicial. The state
also offered that M.H.’s statements were voluntarily made and the rights afforded by the Fifth
Amendment do not apply here because M.H. was not in a custodial interrogation.
{¶4} On April 6, 2017, the court held a suppression hearing, during which the
following individuals testified: M.H.’s mother; Esther Bradley, the social worker; and Christina
Cottom, a Cleveland police detective.
{¶5} M.H.’s mother testified that she received a letter at home sometime between
October and November 2015 from Esther Bradley, a social worker with CCDCFS, requesting she
bring M.H. to the Jane Edna Hunter Building for an interview. In response, M.H.’s mother
1
We note that the record in this case includes conflicting information concerning M.H.’s birthdate, specifically the
birth year. The complaint and various pleadings filed by both M.H.’s trial counsel and the prosecutor identify
M.H.’s birthdate as June 26, 2001. The complaint, however, which was filed in August 2016, also identifies M.H.’s
age as 14 years at the time the complaint was filed, which would place his birth year at 2002 and his age at the time
of the alleged offense in August 2015 at 13 years. Additionally, the juvenile court’s intake fact sheet, home
detention report, and the warrant identify M.H.’s birthdate as June 26, 2002. Moreover, M.H.’s mother testified at
the suppression hearing held in April 2017 that her son was 14 years old at the time of the hearing, which places
M.H.’s birth year at 2002. Using June 26, 2002, as the correct birthdate, M.H. would have been 13 years old at the
time of the alleged incident that occurred in August 2015.
phoned Bradley, who confirmed the time and place of the interview. She stated that Bradley did
not tell her the reason for the interview, but M.H.’s mother had her “suspicions,” stating that she
“knew the situation that was going on.” M.H.’s mother brought M.H. to the interview at the
scheduled time and place. The mother testified that Bradley met them in the lobby and advised
her that Bradley would be taking M.H. to a different location for a private interview. M.H.’s
mother never asked to be present for her son’s interview, nor did she advise Bradley that M.H.
was not permitted to be interviewed without her. The mother stated that M.H. never asked for
his mother to accompany him. She testified that M.H. was in the private room with Bradley for
approximately 40 minutes.
{¶6} Esther Bradley is a child protection specialist in the Sexual Abuse Unit of the
CCDCFS. She conducts child sexual abuse investigations based upon referrals made to the
agency. Bradley testified that her role in this position is to “ensure safety” and ensure that
“families and individuals receive services that they need regarding any issues that the family or
the individual may be having.”
{¶7} Bradley testified that she went to M.H.’s home in October 2015 to complete a
home assessment; however, she found no one home. She left a letter informing M.H.’s mother
who she is, that M.H. “had been named as an alleged perpetrator in an open sex abuse
investigation,” and that she needed to speak to M.H. regarding the allegations. Bradley stated
that the letter was “very general” and noted that the recipient may call the department “if they
choose to.”
{¶8} When M.H.’s mother did, in fact, phone Bradley on December 1, 2015, Bradley
advised M.H.’s mother of the allegations against M.H. Bradley testified that she “extended an
opportunity to see if [M.H.’s mother] would allow [her] to interview [M.H.].” Bradley
informed the mother that the interview with M.H. would be private. Bradley testified that it is
common for parents of alleged perpetrators to tell Bradley that they do not want to meet with her
upon learning that the interview would be private; however, M.H.’s mother did not voice an
objection at that time to the private interview.
{¶9} On December 2, 2015, M.H.’s mother brought M.H. to the Jane Edna Hunter
Building where Bradley interviewed M.H. for approximately 40 minutes. Bradley testified that
she did not believe she informed M.H. about the nature of the interview, and she never told M.H.
that he could leave at any time. She also stated that M.H. never told her that he did not wish to
speak with her, nor did M.H.’s mother tell Bradley that she wished to be in the room with her
son. Bradley stated that there was no police presence at the interview; there was no police
interaction with M.H. or Bradley at the time of the interview; the interview room had windows;
the door to the interview room was not locked; and there were no restraints.
{¶10} Bradley testified that her purpose for interviewing M.H. was twofold: to
determine whether any inappropriate sexual behavior occurred between M.H. and the alleged
victim and to ensure the safety of the alleged victim. Bradley explained that because M.H. and
the alleged victim are considered family, she needed to determine whether a safety plan, “or
something of that nature,” was required to ensure that “nothing else inappropriate happens.”2
{¶11} Bradley began the interview with M.H. by asking general questions, building up to
the purpose of her interview. When she asked M.H. if he was sexually active, M.H. disclosed
that he was sexually active and his only sexual partner was the alleged victim, whom he
2
The record demonstrates that M.H.’s mother’s boyfriend is the father of the victim and is also the father of M.H.’s
half-sister. M.H. lives with his mother and her boyfriend (along with M.H.’s other siblings), and the alleged victim
often visited their home where her father resided. M.H. refers to the alleged victim as his half-sister.
identified as his half-sister. M.H. told Bradley that they had sex when the alleged victim spent
the night at his house.
{¶12} After the interview, Bradley advised M.H.’s mother of M.H.’s disclosures and
informed her that Bradley would be making a referral to the OhioGuidestone PROTECT
program. Bradley then prepared a report based upon her interview with M.H. and provided the
report to her supervisor as well as Detective Cottom. Bradley explained that she is required to
share her information with law enforcement. Because a police report had previously been made
by the alleged victim, Bradley was aware that Detective Cottom had been assigned the case.
{¶13} Detective Cottom is a detective in the Sex Crimes Unit of the Cleveland police
department, whose role is conducting follow-up investigations to reports of child abuse or child
sexual abuse. Detective Cottom testified that she was assigned to M.H.’s case on October 20,
2015, regarding an incident that occurred in August 2015. On December 4, 2015, the detective
reached out to CCDCFS to determine in what stage the social worker was with the case.
Detective Cottom stated that typically the police and the agency attempt to conduct joint
interviews of the victim. In this case, however, because the police report was not made until
months after the incident, the social worker had already interviewed the victim. And because
the interview with M.H. had already been conducted, Detective Cottom did not separately
interview M.H. The detective therefore requested Bradley’s written report, through a
December 4, 2015 voicemail message left for Bradley. The detective received the report on
December 17, 2015. Detective Cottom testified that she and Bradley never spoke concerning
the case, and the detective did not instruct Bradley as to how to conduct the interview with M.H.
or what questions to ask. The detective stated that she was not aware of M.H.’s interview until
after Bradley completed the interview. Detective Cottom included Bradley’s report in the
“juvenile package.” On August 24, 2016, M.H. was formally charged.
{¶14} Immediately after hearing the testimony, the trial court granted M.H.’s motion to
suppress his statements to the social worker “in light of the child’s due process, Constitutional
guarantees, [and] Evid.R. 403(A).” The court stated that “the relationship between [CCDCFS
and] the state [is] a little close for comfort.”
{¶15} The state now appeals the trial court’s decision, asserting that the trial court erred
in suppressing M.H.’s statements to the social worker because the interview did not constitute a
custodial interrogation and the social worker was not acting as an agent of law enforcement.
{¶16} This court reviews a trial court’s ruling on a motion to suppress under a mixed
standard of review that involves questions of law and fact. Cleveland v. Giering,
2017-Ohio-8059, 98 N.E.3d 1131, ¶ 12 (8th Dist.), citing State v. Burnside, 100 Ohio St. 3d 152,
2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. In a motion to suppress, “the trial court assumes the role
of trier of fact and is in the best position to resolve questions of fact and evaluate witness
credibility.” State v. Curry, 95 Ohio App. 3d 93, 96, 641 N.E.2d 1172 (8th Dist.1994). The
reviewing court must therefore accept the trial court’s findings of fact in ruling on a motion to
suppress if the findings are supported by competent, credible evidence. Giering; Burnside.
The reviewing court, however, must independently determine whether those facts satisfy the
applicable legal standard. Id.
{¶17} The Fifth Amendment to the United States Constitution provides that “[n]o person
* * * shall be compelled in any criminal case to be a witness against himself * * *.” State v.
Graham, 136 Ohio St. 3d 125, 2013-Ohio-2114, 991 N.E.2d 1116, ¶ 19. Pursuant to Miranda v.
Arizona, “the prosecution may not use statements, whether exculpatory or inculpatory, stemming
from custodial interrogation of the defendant unless it demonstrates the use of procedural
safeguards effective to secure the privilege against self-incrimination.” 384 U.S. 436, 444, 86
S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
{¶18} Under Miranda, law enforcement officers and their agents must inform a suspect
that: (1) he has the right to remain silent; (2) his statements may be used against him at trial; (3)
he has the right to have an attorney present during questioning; and (4) if he cannot afford an
attorney, one will be appointed. State v. Foust, 105 Ohio St. 3d 137, 2004-Ohio-7006, 823
N.E.2d 836, ¶67, citing Miranda at 478-479. “Once an accused invokes his right to counsel, all
further custodial interrogation must cease and may not be resumed in the absence of counsel
unless the accused thereafter effects a valid waiver or himself renews communication with the
police.” State v. Knuckles, 65 Ohio St. 3d 494, 605 N.E.2d 54 (1992), paragraph one of the
syllabus.
{¶19} Miranda warnings are required only when a suspect is subjected to custodial
interrogation. State v. Jones, 8th Dist. Cuyahoga No. 83481, 2004-Ohio-5205, ¶ 39.
“Custodial interrogation” is defined as “questioning initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived of his freedom of action in any
significant way.” Miranda at 444. The Miranda requirements do not apply when admissions
are made to persons who are not law enforcement officers or their agents, even if an individual’s
efforts aid in law enforcement. State v. Jackson, Slip Opinion No. 2018-Ohio-2169, ¶ 15, citing
State v. Watson, 28 Ohio St. 2d 15, 271 N.E.2d 153 (1971), and State v. Bolan, 27 Ohio St. 2d 15,
271 N.E.2d 839 (1971).
{¶20} When determining whether an individual is in custody for Miranda purposes, we
must consider whether there was a formal arrest or the functional equivalent of “a restraint of an
individual’s freedom of movement commensurate with that of a formal arrest.” Jones at ¶ 39,
citing Miranda. In so doing, we examine the totality of the circumstances and how a reasonable
person would have understood the circumstances. State v. Montague, 8th Dist. Cuyahoga No.
97958, 2012-Ohio-4285, ¶ 8, citing Berkemer v. McCarty, 468 U.S. 420, 442, 104 S. Ct. 3138, 82
L. Ed. 2d 317 (1984).
{¶21} Generally, courts have held that social workers do not have a duty to advise
suspects of their Miranda rights because they are private citizens with no power to arrest. Jones
at ¶ 40; State v. Coonrod, 12th Dist. Fayette No. CA2009-08-013, 2010-Ohio-1102, ¶ 9; State v.
Thoman, 10th Dist. Franklin No. 04AP-787, 2005-Ohio-898, ¶ 7; State v. Dobies, 11th Dist.
Lake No. 91-L-123, 1992 Ohio App. LEXIS 6361 (Dec. 18, 1992); State v. Simpson, 4th Dist.
Ross No. 1706, 1992 Ohio App. LEXIS 818 (Feb. 21, 1992).
{¶22} Where, however, the social worker performs as an agent of law enforcement, the
social worker may be required to provide Miranda warnings. Jones, 8th Dist. Cuyahoga No.
83481, 2004-Ohio-5205, citing State v. Evans, 144 Ohio App. 3d 539, 760 N.E.2d 909 (1st
Dist.2001), citing Watson, 28 Ohio St. 2d 15, 26, 275 N.E.2d 153. A social worker is an agent
of law enforcement where the social worker acts under the direction or control of law
enforcement. Bolan, 27 Ohio St. 2d at 18, 271 N.E.2d 839. “‘[W]hether someone is acting as
an agent of law enforcement is dependent upon the unique circumstances of each case.’”
Jackson, Slip Opinion No. 2018-Ohio-2169, at ¶ 17, quoting State v. Bernard, 31 So. 3d 1025,
1033 (La.2010).
{¶23} Nevertheless, the “ultimate inquiry” is whether the suspect was in custody at the
time of the interrogation, i.e. “whether there [was] a ‘formal arrest or restraint on freedom of
movement’ of the degree associated with a formal arrest.” California v. Beheler, 463 U.S.
1121, 1125, 103 S. Ct. 3517, 77 L. Ed. 2d 1275 (1983), citing Oregon v. Mathiason, 429 U.S. 492,
495, 97 S. Ct. 711, 50 L. Ed. 2d 714 (1977); Jones at ¶ 40.
{¶24} In considering whether an individual is in custody for Miranda purposes, “courts
must first inquire into the circumstances surrounding the questioning and, second, given those
circumstances, determine whether a reasonable person would have felt that he or she was not at
liberty to terminate the interview and leave.” State v. Hoffner, 102 Ohio St. 3d 358,
2004-Ohio-3430, 811 N.E.2d 48, ¶ 27, citing Thompson v. Keohane, 516 U.S. 99, 112, 116 S. Ct.
457, 133 L. Ed. 2d 383 (1995).
{¶25} In resolving the issue of custody, courts consider certain factors relevant to this
determination: (1) the location of the questioning; (2) the duration of the questioning; (3)
statements made during the interview; (4) the presence or absence of physical restraints; and (5)
whether the individual was released at the end of the interview. Howes v. Fields, 132 S. Ct.
1181, 1189, 182 L. Ed. 2d 17 (2012); In re J.S., 3d Dist. Marion No. 9-15-26, 2016-Ohio-255, ¶
13. Moreover, a juvenile’s age may be considered for purposes of Miranda, “so long as the
juvenile’s age was known to the officer at the time of questioning or would have been objectively
apparent to a reasonable officer.” In re R.S., 3d Dist. Paulding No. 11-13-10, 2014-Ohio-3543,
¶ 18, citing J.D.B. v. North Carolina, 564 U.S. 261, 131 S. Ct. 2394, 180 L. Ed. 2d 310 (2011).
However, “[w]hile ‘a juvenile’s age may be considered in the Miranda custody analysis, the
Supreme Court cautioned that ‘this does not mean that a child’s age will be a determinative, or
even a significant, factor in every case * * *.’” Id., quoting J.D.B. at syllabus.
{¶26} The state contends that M.H. was not subjected to a custodial interrogation because
the social worker conducting the interview was not acting as an agent of law enforcement and
M.H. was not in custody when he was interviewed by the social worker. The state argues,
therefore, that the trial court erred in suppressing M.H.’s statements. While we find, as did the
trial court, the totality of the circumstances of this case troubling, we are constrained to find that
M.H. was not subjected to a custodial interrogation as contemplated by Miranda.
{¶27} We first address the question whether Esther Bradley, the social worker, was an
agent of law enforcement. In light of the case law in Ohio, including the Ohio Supreme Court’s
recent decision concerning a social worker’s duty in child abuse investigations, as well as the
record in this case, we must answer this question in the negative.
{¶28} In Jackson, supra, the Ohio Supreme Court held that a social worker’s statutory
duty to cooperate and share information with law enforcement with respect to a child abuse
investigation does not render the social worker an agent of law enforcement for purposes of the
Fifth and Sixth Amendments to the United States Constitution when the social worker interviews
an alleged perpetrator unless other evidence demonstrates that the social worker acted at the
direction or under the control of law enforcement. Slip Opinion No. 2018-Ohio-2169, at
syllabus. The Supreme Court determined that although the children services agency is
statutorily obligated to cooperate with and provide information to law enforcement regarding
child abuse investigations, the statute “does not mandate that agency employees interview alleged
perpetrators of child abuse at the direction or under the control of law enforcement.” Jackson,
Slip Opinion No. 2018-Ohio-2169, at ¶ 21. The Court then concluded that the social worker in
Jackson did not act as an agent of law enforcement when interviewing the defendant where: the
only evidence of contact between the social worker and law enforcement about the investigation
was testimony that the social worker contacted law enforcement to coordinate a joint interview
of the victim; there was no evidence that law enforcement asked the social worker to interview
the defendant; and there was no evidence that law enforcement influenced the social worker’s
interview of the defendant in any way. Id. at ¶ 23.
{¶29} Here, the record demonstrates that Bradley performed her customary duties as a
child protection specialist with CCDCFS. Bradley testified that she conducts child sexual abuse
investigations based upon referrals made to the agency. She stated that her role in sexual abuse
investigations is to ensure the safety of the children and ensure that individuals and families
receive any services they may need. Specifically, she testified that her purpose for interviewing
M.H. was to investigate the abuse allegations as well as to ensure the victim’s safety. Bradley
explained that in this case, the alleged perpetrator and the alleged victim were considered family,
because M.H. and his mother lived with the alleged victim’s father with whom the alleged victim
often visited, and a familial relationship could necessitate a need for a safety plan.
{¶30} Thus, in this case, Bradley received a referral concerning child sexual abuse
allegations that named M.H. as the alleged perpetrator, and she went to M.H.’s home to
investigate. Bradley then conducted her interview of M.H. to determine whether any
inappropriate sexual behavior occurred and whether a safety plan was required. The fact that
M.H. was the subject of the investigation “‘does not trigger the need for Miranda warnings in a
noncustodial setting.’” State v. Smith, 10th Dist. Franklin No. 96APA10-1281, 1997 Ohio App.
LEXIS 2426, 7 (June 3, 1997), quoting Minnesota v. Murphy, 465 U.S. 420, 431, 104 S. Ct. 1136,
79 L. Ed. 2d 409 (1984).
{¶31} We are troubled by a social worker’s typically close working relationship with
law enforcement, where a child-abuse investigation seemingly moves along an official conveyor
belt — from interview to sharing the findings with police to an arrest. And in this case, that is
exactly what happened. However, as the Ohio Supreme Court recently declared, this duty to
report did not make Bradley an agent of law enforcement for Miranda purposes. Jackson, Slip
Opinion No. 2018-Ohio-2169, at syllabus. In considering the record in this case, along with
Bradley’s duty, we find there is no evidence that law enforcement requested the interview,
provided instructions to Bradley on how to conduct the interview or what questions to ask M.H.,
or influence the interview in any way. In fact, the detective assigned to the case testified that
she never actually spoke with Bradley regarding this case, leaving only a voicemail requesting a
copy of the social worker’s report. And although the detective and the social worker typically
conduct joint interviews of the victim, Detective Cottom testified that Bradley had conducted the
interview independently by the time the detective had contacted Bradley. We therefore find that
in interviewing M.H. and reporting her findings to law enforcement, Bradley was not acting
under the direction or control of the police, but rather, she was performing her customary duties
as a child protection specialist. See Coonrod, 12th Dist. Fayette No. CA2009-08-013,
2010-Ohio-1102, at ¶ 12.
{¶32} Next, we consider whether M.H. was in custody at the time of the interview. In
reviewing the relevant factors outlined above, we note that M.H. was only 13 years old at the
time he was interviewed. Although we recognize there is no evidence that M.H. asked why he
was brought to the social services center, became confused, contested to being there, or behaved
immaturely or in a manner demonstrating he was not able to comprehend what was being said to
him, we question how any child of this young age could understand or appreciate the
circumstances. Equally troubling is the fact that M.H.’s mother likely felt compelled to respond
to the social worker’s “request” and did not fully appreciate that she could, in fact, refuse to
deliver M.H. to Bradley as requested in the letter or sit in on the interview.
{¶33} We note, however, that the majority of the factors weigh against a finding that
M.H. was in custody. First, no charges had been filed and M.H. was not under arrest. M.H.’s
mother brought M.H. to the social services center in response to the social worker’s letter
requesting an interview; M.H. was not ordered to appear at the police station. M.H. was also
free to leave the building after the interview. See In re T.W., 3d Dist. Marion No. 9-10-63,
2012-Ohio-2361, ¶ 30 (factor weighing against finding custody is that juvenile was not escorted
by a police officer); Jones, 8th Dist. Cuyahoga No. 83481, 2004-Ohio-5205, at ¶ 41, citing
Oregon, 429 U.S. 492, 97 S. Ct. 711, 50 L. Ed. 2d 714 (holding that defendant was not in custody
if he voluntarily appeared for questioning and was free to leave afterward).
{¶34} Additionally, the interview, which lasted 40 minutes, was conducted in a private
room at the social services center while M.H.’s mother waited in the lobby. In re B.J., 11th
Dist. Lake No. 2013-L-091, 2014-Ohio-5701, ¶ 19 (finding the interview of approximately 30
minutes “a short duration”); In re T.W. at ¶ 30 (finding parents waiting in lobby during interview,
suggesting the interview would be brief). The interview did not occur at the police station, nor
was there any direct police involvement or police presence at any time during the interview.
See In re D.B., 10th Dist. Franklin Nos. 17AP-83 and 17AP-85, 2018-Ohio-1247, ¶ 26 (factors
suggesting no custodial interrogation include the interview being conducted at a social services
station rather than a police station, an unlocked room, and the juvenile leaves with his parent).
Bradley was the only adult present during the interview. The door to the interview room was
closed but not locked, the room had windows, and M.H. was not physically restrained. M.H.
never told the social worker that he did not wish to speak with her or express reluctance or
hesitation in answering Bradley’s questions. Finally, there is no evidence of overt intimidation
or coercion exerted over M.H. at any point that day.
{¶35} Accordingly, under the dictates of the current law in Ohio and the totality of the
circumstances in this case, we find the record establishes that the child protection specialist was
conducting her customary duties as an investigator for CCDCFS, and there is no evidence that
she was acting under the direction or control of law enforcement when she interviewed M.H.,
despite her cooperation with law enforcement. Additionally, we find that M.H. was not
restrained, and a reasonable juvenile in his circumstances would have felt free to leave the
interview. Thus, M.H. was not in custody or otherwise deprived of his freedom of action in any
significant way at the time he made the incriminating statements. The trial court therefore erred
in determining that M.H.’s statements should have been suppressed because M.H. was not
informed of his Miranda rights prior to being questioned.
{¶36} M.H. contends that even if this court does not find a violation of Miranda, M.H.’s
statements were obtained in violation of the due process clause and Evid.R. 403, asserting that
M.H.’s statements were not freely or voluntarily made, and they are prejudicial because the
admission of the statements would cause significant confusion and delay. M.H. further argues
that because the state failed to address these arguments, this court should affirm the trial court’s
decision granting the motion to suppress. We find no merit to this argument.
{¶37} Following the suppression hearing, the trial court granted the defense motion,
stating that it granted the motion to suppress “in light of the child’s due process, Constitutional
guarantees, [and] Evid.R. 403(A) * * *.” However, the transcript reveals that immediately after
its ruling, the trial court explained that the relationship between CCDCFS and the state was “a
little close for comfort,” thus suggesting that the social worker was acting as an agent of law
enforcement when she interviewed M.H. We therefore find the trial court reasoned that M.H.’s
statements were obtained in violation of Miranda.
{¶38} Nevertheless, even if we do not find that the court’s statement was the basis for the
trial court’s decision, we likewise do not find that M.H.’s statements were otherwise improperly
obtained.
{¶39} First, we do not find the statements were obtained in violation of M.H.’s due
process rights. Whether a defendant made a statement voluntarily and whether the defendant
voluntarily, knowingly, and intelligently waived his right to counsel and against
self-incrimination are separate and distinct issues. See State v. Dennis, 79 Ohio St. 3d 421, 425,
683 N.E.2d 1096 (1997); State v. Chase, 55 Ohio St. 2d 237, 246, 378 N.E.2d 1064 (1978).
“‘The Due Process Clause requires an inquiry, separate from custody considerations, concerning
whether a defendant’s will was overborne by the circumstances surrounding the giving of his
confession.’” State v. Johnson, 12th Dist. Warren No. CA2015-09-086, 2016-Ohio-7266, ¶ 76,
quoting State v. Kelly, 2d Dist. Greene No. 2004-CA-20, 2005-Ohio-305, ¶ 10. Both issues,
however, are measured under the totality of the circumstances. Dennis at 425. Under this
standard, a court should consider “the age, mentality, and prior criminal experience of the
accused; the length, intensity, and frequency of interrogation; the existence of physical
deprivation or mistreatment; and the existence of threat or inducement.” State v. Edwards, 49
Ohio St. 2d 31, 358 N.E.2d 1051 (1976), paragraph two of the syllabus, vacated on other
grounds, 438 U.S. 911, 98 S. Ct. 3147, 57 L. Ed. 2d 1155 (1978).
{¶40} For reasons similar to those discussed above, we conclude that M.H.’s statements
were not involuntary. Here, M.H. was brought to the social services center by his mother,
where he was interviewed by a social worker. The interview, which was conducted solely by
the social worker, was relatively brief, lasting 40 minutes, and lacked any direct police presence.
There is no evidence — or allegations — of any threats, coercion, suggestions, restraints, or
physical deprivation or harm to M.H. Nor is there evidence that M.H. told the social worker
that he did not wish to speak to her or that he conducted himself in a manner suggesting he did
not wish to be interviewed. M.H. provided his statement in answer to Bradley’s question
regarding whether he was “sexually active.” Given the circumstances, we find the evidence
demonstrates that M.H.’s will was not overcome by the circumstances surrounding the giving of
his statements to the social worker.
{¶41} Secondly, we do not find the record supports M.H.’s generic contention that his
statements are “more prejudicial than probative” in violation of Evid.R. 403. Evid.R. 401
provides that relevant evidence “means evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or less probable
than it would be without the evidence.” Evid.R. 403(A) states that, “[a]lthough relevant,
evidence is not admissible if its probative value is substantially outweighed by the danger of
unfair prejudice, of confusion of the issues, or of misleading the jury.”
{¶42} In his motion to suppress, M.H. argues, without explanation or support, that his
statements are “barely probative” and would cause significant confusion and delay “in these
already arduous proceedings.” An admission that he had sex with his 12-year-old “half-sister”
is clearly relevant to the social worker’s investigation into allegations that M.H. did indeed
engage in inappropriate sexual conduct with an individual under 13 years of age. His admission
is likewise probative of the allegations. However, M.H. has failed to demonstrate how his
statements are unfairly prejudicial or how his admission would cause confusion or delay.
Moreover, we find nothing in the record supporting his argument.
{¶43} The state’s sole assignment of error is sustained.
{¶44} Judgment reversed and remanded for proceedings consistent with this opinion.
It is ordered that appellant recover of said appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas
court, juvenile division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
_______________________________________
TIM McCORMACK, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., CONCURS (WITH SEPARATE OPINION ATTACHED);
LARRY A. JONES, SR., J., DISSENTS (WITH SEPARATE OPINION ATTACHED)
KATHLEEN ANN KEOUGH, J., CONCURRING:
{¶45} Based on the testimony provided at the suppression hearing, it is clear that the
social worker interviewed M.H. during the normal course of her investigation and not at the
request or direction of law enforcement. These facts put this case squarely within the Ohio
Supreme Court’s holding in Jackson. Accordingly, I must concur with the lead opinion and
agree with the lead opinion’s concerns regarding the relationship between the social worker and
law enforcement, and the lack of understanding M.H. and his mother demonstrated regarding the
interview process with the social worker.
{¶46} I feel compelled, however, to write separately because this case involves a
13-year-old juvenile who was interviewed outside the presence of his mother. My concern in
this case falls on the role of the social worker and what information should be provided to the
parent or guardian of a child suspected of child abuse. In this case, the social worker testified
that she told M.H.’s mother that the interview would be “private.” According to the social
worker, this advisement was the mother’s opportunity to decide whether to bring M.H. to the
interview knowing that it would be conducted without a parent or guardian present. To me, the
word “private” indicates that the nature and substance of the interview would not be shared. I
believe this was the mother’s understanding and find that a reasonable person in mother’s
situation would not have understood the circumstances surrounding the interview.
{¶47} M.H.’s mother stated that she did not know that the meeting with the social worker
was voluntary and she did not ask to be present during the interview because she thought it was
not permissible. Although mother stated that she had suspicions about what the interview was
about, she further stated that had she known about the purpose and nature of the meeting, and
potential consequences, she would have had an attorney present.
{¶48} The record is clear that at no time was mother apprised that the interview was
voluntary, she could request to be present, or have any attorney present. She did not understand
that the statements her son made could be used against him or would be provided to law
enforcement. In fact, the social worker admitted that she kept the information given to mother
“very general.”
{¶49} Additionally, the social worker admitted that at no time did she advise M.H. of the
purpose for the interview, that the interview was voluntary, he was free to leave, and the
information he shared would be not be private, but shared with law enforcement. According to
the social worker, she did not have to advise M.H. of any rights or this additional information
because she is not law enforcement. I believe that because the social worker was a former
seasoned law enforcement officer, she understood the legal consequences of the interview,
admissions the child made, and information that was necessary to assist in a criminal
investigation. Despite the fact that the social worker initially testified that the investigation and
interview is to ensure the “safety of the victim,” she subsequently stated that her purpose when
interviewing M.H. was “to determine whether or not some type of inappropriate sexual behavior
happened between the two of them and if anything criminal happened, then I pass that on to law
enforcement.” (Tr. 64.) Based on that answer, the social worker was asked to explain how
“interviewing M.H. has to do at all, if at all, with the safety of the victim?” Therefore, it is
questionable if victim safety was her primary concern.
{¶50} I can appreciate the trial court’s position that the role of the CCDCFS social worker
and law enforcement is “a little close for comfort” in these circumstances. While the law
protects CCDCFS records as confidential, thus arguably not subject to discovery by the defense,
the law allows the records to be shared with law enforcement and included in the “juvenile
package” that is presented to the prosecutor to determine whether a complaint should be brought
against the juvenile. These reports contain statements made by the juvenile who was not
Mirandized, and whose interview was not recorded. Absolutely no procedural safeguards are in
place during this “non-custodial, but yet, your words will be used against you” interrogation.
{¶51} I am troubled by the circumstances of this case and see potential abuse by law
enforcement when handling these types of cases when juveniles are the alleged perpetrators. I
feel that the holding in Jackson allows law enforcement to sit on their hands and not conduct
their own investigation when an allegation of child abuse occurs because they know that
CCDCFS will interview the juvenile and provide a copy of their report to law enforcement. The
Jackson holding makes it clear that as long as law enforcement keeps an arm length’s distance
from CCDCFS during its investigative stage, then the social worker will not be classified as law
enforcement; thus, no constitutional safeguards need to be implemented to protect an alleged
perpetrator’s rights.
{¶52} My concern is evidenced by the facts in this case that although Detective Cottom
was assigned to investigate the allegation of abuse on October 20, 2015, she did not have any
contact with CCDCFS until December 4, 2015 (conveniently two days after M.H.’s interview
with the social worker) when she left a message on the social worker’s voicemail requesting her
write-up on the case. As Detective Cottom admitted, she did not have to interview M.H.
because “it had already been done” by the social worker at CCDCFS. (Tr. 75.) That, to me,
leaves me no doubt that law enforcement use social workers as their agents to obtain information
that they otherwise would not be able to obtain so freely.
LARRY A. JONES, SR., J., DISSENTING:
{¶53} Respectfully, I dissent. I would affirm the trial court’s judgment suppressing
statements M.H. made to the CCDCFS social worker.
{¶54} While the majority opinion finds Jackson controlling of this case, despite its
concerns of the social worker’s conduct, I find the Ohio Supreme Court’s recent decision in
Jackson, Slip Opinion No. 2018-Ohio-2169, distinguishable from this case.
{¶55} The issue in Jackson was
whether a social worker’s statutory duty to cooperate and share information with
law enforcement regarding a child abuse investigation renders the social worker
an agent of law enforcement for purposes of the Fifth and Sixth Amendments to
the United States Constitution if the social worker interviews an alleged
perpetrator.
Id. at ¶ 1.
{¶56} As the court stated in Jackson, “‘whether someone is acting as an agent of law
enforcement is dependent upon the unique circumstances of each case.”’ Id. at ¶ 17, quoting
State v. Bernard, 31 So. 3d 1025, 1033 (La.2010). The Jackson court concluded that the social
worker, based in part on the record in the case, was not acting as an agent of law enforcement
when she interviewed the defendant. Id. at ¶ 21. The court explained,
a social worker’s statutory duty to cooperate and share information with law
enforcement with respect to a child abuse investigation does not render the social
worker an agent of law enforcement for purposes of the Fifth and Sixth
Amendments to the United States Constitution when the social worker interviews
an alleged perpetrator unless other evidence demonstrates that the social worker
acted at the direction or under the control of law enforcement.
(Emphasis added.)
{¶57} As the dissent in Jackson noted (in agreeing with the majority) “R.C. 2151.421(G)
and related statutory provisions do not categorically transform a children’s services investigator
into a law-enforcement agent.” Id. at ¶ 41 (DeGenaro, J., dissenting). The specific facts of
this case, however, lead to the conclusion that the social worker was acting as the functional
equivalent of law enforcement. Those facts include: M.H.’s age, what was said (or more
importantly not said) to M.H. and M.H.’s mother prior to questioning, and the social worker
herself.
{¶58} The trial court’s decision in this case was not based solely on whether the social
worker was an agent of law enforcement or acted at the direction or under the control of law
enforcement. The trial court also found that M.H.’s due process rights were violated and his
statements were inadmissible under Evid.R. 403. I believe there was competent credible
evidence in the record to support these findings.
{¶59} The defendant in Jackson was 31 years old at the time of the alleged rape; here,
M.H. had just turned 13 years old at the time of the alleged incident and was still only 13 when
he was interviewed by the social worker. The social worker testified that she told M.H.’s
mother that the interview with M.H. would be “private” but that mother would not be allowed to
be in the interview room with M.H. As the concurring opinion notes, “the word ‘private’
indicates that the nature and substance of the interview would not be shared.”
{¶60} The other facts noted by the concurring opinion, specifically that the social worker
testified that (1) she did not advise M.H. of the purpose of the interview; (2) she did not advise
M.H. that the interview was voluntary or he was free to leave; and (3) she never told M.H. or his
mother that the information he shared with her could be shared with law enforcement — also go
against the voluntariness of M.H.’s statements. In fact, the social worker testified that she
started out her interview with M.H. by asking him questions to build rapport and “didn’t tell him
anything to do with why he was there.” M.H.’s mother testified that had she known about the
purpose and nature of the meeting, she would have had an attorney present. Compare Jackson,
where the social worker told the 31-year-old defendant that anything he said could be
subpoenaed by the courts. Id. at ¶ 3. The social worker did not advise 13-year-old M.H. of
the same.
{¶61} As mentioned, the investigating detective did not interview M.H. Detective
Cottom was assigned to investigate the case a month and a half before the social worker
interviewed M.H. The detective testified that she did not separately interview M.H. because the
social worker had already interviewed him. This allowed the detective to circumvent normal
procedural safeguards that an accused offender would usually have. In other words, this
allowed the detective to “use” the social worker to do the detective’s investigation without
ensuring the rights of the child.
{¶62} The social worker testified that she told the victim and her mother to make a police
report. They made a police report and the social worker followed up by interviewing M.H.
The social worker, who spent ten years working for the Atlanta police department as a patrol
officer, general investigator, and homicide detective, additionally admitted that she would be
interviewing M.H. on what could be criminal allegations. The social worker stated that because
there was a “strong possibility” that the allegations were criminal in nature, she would turn over
her report to the police. The detective, on the other hand, did not interview M.H. because the
detective knew she could just use the report generated by the social worker.
{¶63} The state argued that M.H.’s age was relevant in that it alters the CCDCFS
investigator’s role in this case from investigating allegations, as in Jackson, to assessing the
safety of both M.H. and the alleged victim. Perhaps that’s true in some cases, but here the
social worker testified that her purpose in interviewing M.H. was “to determine whether or not
some inappropriate sexual behavior happened between the two of them and if anything criminal
happened, then I pass that on to law enforcement.” More troubling is the admission by the
social worker that when she interviewed the alleged victim — prior to interviewing M.H. —
neither the alleged victim nor the alleged victim’s mother communicated any concerns about the
alleged victim’s safety.
{¶64} The trial court also excluded M.H.’s statements based on Evid.R. 403, which states
that exclusion of relevant evidence is mandatory “if its probative value is substantially
outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the
jury.” Evid.R. 403(A). Again, there was competent, credible evidence that supports the trial
court’s findings.
{¶65} In light of the above and the specific facts of this case, I find the facts of Jackson
distinguishable and would affirm the decision of the trial court.