In re A.V. , 2022 Ohio 1061 ( 2022 )

[Cite as In re A.V., 2022-Ohio-1061.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE A.V. :
: No. 110344
A Minor Child :
:
[Appeal by B.V., Mother] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 31, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. AD19910956
Appearances:
John H. Lawson, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Joseph C. Young, Assistant Prosecuting
Attorneys, for appellee CCDCFS.
Michael B. Telep, for appellee J.T.
MARY EILEEN KILBANE, J.:
Appellant B.V. (“Mother”) appeals from the juvenile court’s decision
awarding legal custody of her minor child, A.V., to appellee J.T. (“Father”). For the
following reasons, we affirm.
Factual and Procedural History
On September 10, 2019, the Cuyahoga County Division of Children
and Family Services (“CCDCFS” or “the agency”) filed a complaint alleging that
minor child A.V., then 16 months old, was neglected and seeking temporary custody
of A.V.1 The agency simultaneously filed a motion for emergency predispositional
custody of the child. The complaint alleged that on or about August 24, 2019,
Mother was involved in an automobile accident wherein she struck multiple parked
cars while A.V. was in the car with her. Following the accident, Mother was observed
to be in an altered mental state and subsequently tested positive for prescription
medications.
The complaint also alleged that on or about February 18, 2019, A.V.
was diagnosed with failure to thrive. The complaint went on to allege that since the
diagnosis, Mother has not consistently followed through with A.V.’s medical
appointments or been consistent in treating A.V.’s medical needs. The complaint
went on to allege that Mother’s mental health disorders interfered with her ability
to care for A.V.
Finally, the complaint alleged that Mother’s older child was in the
legal custody of the child’s maternal grandmother. The complaint named J.T. as
1 CCDCFS had previously filed a complaint alleging neglect and seeking protective
supervision of A.V. on June 14, 2019, in Cuyahoga J.C. No. AD19907498. Upon filing the
complaint in the instant case on September 10, 2019, CCDCFS dismissed the June 14,
2019 complaint because it was not resolved within the relevant statutory timeframe.
A.V.’s alleged father and alleged that he has not established paternity and has failed
to support, visit, or communicate with the child since birth.
On December 3, 2019, following multiple continuances, Mother
waived her right to have the matter heard within 90 days pursuant to R.C.
2151.35(B)(1). On February 6, 2020, the court granted the agency’s motion for
temporary custody. On July 27, 2020, Father filed a motion for legal custody.
Mother and J.F. had previously been in a romantic relationship, and
the agency had temporarily placed A.V. with J.F.'s parents. On October 19, 2020,
counsel for J.F. filed a motion to intervene and a motion for legal custody. At the
time he filed these motions, J.F. was residing with his parents and A.V.
On October 20, 2020, the court held a hearing. The court granted the
agency’s oral motion for a first extension of temporary custody. The court also held
J.F.’s October 19 motions in abeyance, finding that they had not been properly
served on all parties. On October 29, 2020, J.F. filed a motion for an immediate
restraining order preventing the agency from removing A.V. from her current
placement. J.F. also refiled his motion to intervene and motion for legal custody.
On November 30, 2020, the agency filed a brief in opposition to J.F.’s
motion to intervene.
On December 10, 2020, the court held a hearing on J.F.’s pending
motions. The court reconvened for a continuation of that hearing on December 14,
2020. The court began by stating that, with respect to J.F.’s motion to intervene, it
had previously heard testimony, considered the parties’ arguments, and took the
matter under advisement. The court found that the motion to intervene had not
been proven under Juv.R. 2(Y); J.F. was not a party to the case and did not have a
permissive right to intervene under Civ.R. 24(A) and/or (B). Based on these
findings, the court denied J.F.’s motion to intervene. The court likewise denied
J.F.’s motion for an immediate restraining order on the basis that J.F. lacked
standing to file this motion.
The court then proceeded to a hearing on the competing motions for
legal custody filed by J.F.2 and Father. Father testified that he had a brief romantic
relationship with Mother beginning in July 2017 and lasting until September or
October 2017. Father testified that he learned that Mother became pregnant, but he
was not sure if she would decide to carry the pregnancy to term. Father testified that
he had reached out to Mother periodically since October 2017 but did not receive
any response and believed that she had terminated the pregnancy. Father further
testified that he did not know that A.V. was born in April 2018 until he received
correspondence related to the agency’s motion for emergency custody in September
or October 2019.
Father began spending time with A.V. in February 2020 through
supervised visits. In March 2020, genetic testing confirmed Father’s paternity of
A.V. Father testified that since then, he took steps to continue to establish a
2 At the outset of the December 14, 2020 hearing, the court stated that although
J.F. was not permitted to intervene as a party, the court would still consider his motion
for legal custody and J.F. would be permitted to provide testimony to support his motion
if he chose to do so.
relationship with A.V. by regularly spending time together. At the time of the
hearing, Father testified that A.V. had been spending weekends with him.
Father testified that he participated in a pain management program
through MetroHealth for acute back pain. As part of that program, Father was
prescribed medication and had a medical marijuana card. Father testified that he
was a recovering drug addict, but beyond a prescribed amount of marijuana, he did
not use any other drugs and did not drink alcohol. Father testified that he received
regular income through construction work as an independent contractor. He also
testified that he would be able to make childcare arrangements with his family and
with a daycare several blocks from his house if he were to receive legal custody of
A.V.
CCDCFS social worker Jamila Baugh (“Baugh”) also testified at the
December 14, 2020 hearing. Baugh testified that she had been involved with the
case since 2018. Baugh testified that Father’s case plan goals were to establish
paternity, build a relationship with A.V., and complete substance abuse assessments
or treatment as needed. Baugh testified that Father had established paternity and
begun to establish a relationship with A.V. Baugh testified that Father was cautious
during his first visit with A.V., but otherwise their visits have been positive and
appropriate, and he was continuing to build a relationship with A.V. Baugh testified
that she had the opportunity to investigate Father’s home and, as a result of her
observations, she believed that he had appropriate accommodations for A.V.
On January 19, 2021, the court reconvened for a continuation of the
hearing on Father’s and J.F.’s competing motions for legal custody. At the outset of
the hearing, the court addressed Father’s counsel and the following exchange took
place:
THE COURT: I know you called witnesses at the last hearing in support
of your motion. Do you have any further witnesses at this time?
FATHER’S COUNSEL: Yes. I would like to call on the Mother, [B.V.].
THE COURT: This is on the abuse, neglect, dependency case. She does
have the right to remain silent. [Counsel for Mother,] is your client
waiving that right?
MOTHER’S COUNSEL: No, your Honor.
Unable to call Mother as a witness, Father called the GAL to testify.
The GAL testified that although she had not filed a report and
recommendation since the last hearing, she had recently visited Father’s home and
deemed it appropriate for A.V. The GAL also testified that it was clear that A.V. “felt
very safe and comfortable in [Father’s] presence” and that she had no concerns
about A.V.’s safety at Father’s home.
The GAL also testified that she had met J.F. when she visited his
parents’ home as part of her investigation prior to the emergency grant of temporary
custody. The GAL confirmed that A.V. was currently placed in that home and that
she had no safety concerns about that residence. She testified that she was able to
witness A.V. and J.F. interact and that “she does have a bond with him because he
is a part of the household she’s living in.” During cross-examination of the GAL, the
following exchange took place:
J.F.’s COUNSEL: Have you had any conversations with the mother
regarding the child’s bond with [J.F.]?
GAL: Yes.
J.F.’s COUNSEL: And would you agree that she believes that it is in the
child’s best interest to maintain that bond with [J.F.]?
FATHER’S COUNSEL: Objection, your Honor.
THE COURT: Basis to the objection?
FATHER’S COUNSEL: If the mother wants to testify, she can testify.
She’s waiving her right to testify. [The GAL] can’t say what the mother’s
intentions are.
THE COURT: Sustained. Your next question?
Baugh then testified. Baugh’s testimony largely mirrored her
testimony at the December 14, 2020 hearing. Baugh also testified that when Father
informed the agency that he smoked marijuana, both Mother and Father were
ordered to submit to drug testing. Baugh testified that Father submitted to these
screens and they were positive for marijuana. She went on to testify that she learned
that Father was using marijuana as prescribed by his doctor and that she had no
reason to believe that A.V. was not in a safe environment with Father.
Following Baugh’s testimony, Father’s counsel informed the court
that it had no additional witnesses. The court then asked the agency attorney and
Mother’s counsel if they had any witnesses, and both stated that they did not. The
court then directed J.F.’s counsel to call the first witness in support of J.F.’s motion
for legal custody.
J.F. testified that he had been in A.V.’s life since birth and that the
bond they shared was “that of a father and daughter.” J.F. testified that he spoke to
Mother regularly and it was his understanding that Mother wanted A.V. to remain
with him.
J.F. then called J.S., Mother’s mother, to testify in support of his
motion for legal custody. J.S. testified that she had no concerns about J.F.’s ability
to care for A.V. J.S. testified that she did not know Father, but she was aware of his
prior relationship with Mother and believed that it was not a good relationship. J.S.
testified that she had not had contact with her daughter in approximately nine
months. She described that as typical for their relationship and testified that Mother
had struggled with mental health and substance abuse issues throughout her life.
At the conclusion of the hearing, following closing arguments from
Father’s counsel, the following exchange took place:
MOTHER’S COUNSEL: I did file a motion for legal custody to [J.F.] I
realize that it wasn’t timely, but I do have a witness if in fact the Court
would allow it.
FATHER’S COUNSEL: Well, I’m gonna object to that, Your Honor.
COURT: [Mother’s Counsel], I asked you if you had any witnesses as it
related to either of these motions and you said no. The motion that was
—
MOTHER’S COUNSEL: I thought you were asking me about one
certain witness. I’m sorry.
COURT: The motion that was handed to this Court was not
timestamped. I don’t even know if it was filed and it was handed
probably 10 or 15 minutes before this hearing was even —
MOTHER’S COUNSEL: Right. I filed it today, yeah.3
COURT: So at this point if there’s an objection, I’m going to deny —
I’m not going to allow the witness to testify. You had the opportunity
to call this person.
MOTHER’S COUNSEL: Well, I wanted to call [Mother], but —
COURT: Is there an objection, [Father’s Counsel]?
FATHER’S COUNSEL: Objection to calling [Mother] when she has not
shown any interest in getting legal custody for herself? Yes, there’s an
objection.
COURT: She’s had the opportunity to testify. [CCDCFS attorney], do
you have an objection?
CCDCFS: Yes, we have an objection as well.
COURT: [GAL]?
GAL: Your Honor, at this point I would object.
COURT: I’m not going to allow it at this point in time. Like I said, these
motions have been pending. [Father’s] motion has been pending since
July. [J.F.’s] motion has been pending since the fall of last year. This
is our second day of trial and I’ve given everyone the opportunity to call
witnesses and she’s had the opportunity to testify.
MOTHER’S COUNSEL: Okay. Thank you, Your Honor.
The court then heard closing arguments from the agency attorney, Mother’s counsel,
and J.F.’s counsel, and the hearing concluded.
3 Our review of the record shows that Mother did not file a motion for legal custody
on January 19, 2021.
On January 25, 2021, the magistrate issued a decision granting
Father’s motion for legal custody and denying J.F.’s motion for legal custody. On
February 4, 2021, J.F. filed objections to the magistrate’s decision. On February 5,
2021, Mother filed objections to the magistrate’s decision. On February 10, 2021,
the court adopted the magistrate’s decision without ruling on Mother’s or J.F.’s
objections. The court made the following findings, in relevant part:
The Court finds that there has been significant progress on the case
plan by Father and progress has been made in alleviating the cause for
the removal of the child from the home.
The continued Temporary Custody of the child is not necessary and is
not in the child’s best interest.
The custody plan for the child is Termination of Temporary Custody
and Legal Custody to [Father], with an Order of Protective Supervision
to Cuyahoga County Division of Children and Family Services.
[Father] has established paternity. He visits with the child on a weekly
basis, unsupervised from Thursday through Sunday. The visits have
occurred without incident. Ms. Baugh testified that there is a bond
between the father and child. [Father] has maintained his sobriety,
engaging in mental health treatment and establishing housing.
[Mother] has not completed case plan objectives, including completing
substance abuse treatment, maintaining her sobriety, engaging in
mental health treatment and establishing housing.
[J.F.] is the son of the child’s foster parents. He was previously involved
in a relationship with the child’s mother. Prior to [Father] learning that
he was the child’s biological father, the child’s mother allegedly offered
[J.F.] the opportunity to serve the role of the child’s father. He is not
the child’s parent.
On February 16, 2021, the agency filed a brief in opposition to Mother’s and J.F.’s
objections.
On March 2, 2021, Mother filed a notice of appeal. On June 23, 2021,
this court sua sponte remanded the case, issuing the following journal entry:
Sua sponte, to resolve the appearance of any jurisdictional
impediment, the case is remanded to the trial court, pursuant to App.R.
4(B) and App.R. 9(E), to enter judgment on any timely filed objections
to the magistrate’s decision. The record transmitted to this court
indicates that objections were timely filed. The trial court, pursuant to
Juv.R. 40(C)(4)(e)(ii), adopted the magistrate’s decision prior to the
extended time for filing objections had passed. Therefore, the judgment
did not address the objections. However, a notice of appeal was then
filed, depriving the trial court of jurisdiction to take further action in
the case except in aid of the appeal. See In re S.J., 106 Ohio St.3d 11,
2005-Ohio-3215, 829 N.E.2d 1207. The briefing of the parties indicates
that the trial court ruled on those objections after the notice of appeal
was filed. The record before this court does not contain those rulings.
To ensure it has the jurisdiction to do so, the trial court shall re-enter
judgment on any objections during the remand.
On July 20, 2021, the juvenile court overruled the objections to the magistrate’s
decision, and the case was returned to this court with the supplemental record on
July 26, 2021.
Mother presents two assignments of error for our review:
I. The trial court erred and abused its discretion by denying Appellant’s
legal counsel’s request to call Appellant B.V. as a witness.
II. The trial court erred and abused its discretion by ruling that
Appellant had a general “right to remain silent” in a civil case.
Law and Analysis
In Mother’s first assignment of error, she argues that the trial court
erred and abused its discretion by denying Mother’s counsel’s request to call Mother
as a witness. In Mother’s second assignment of error, she argues that the trial court
erred and abused its discretion by ruling that she had a general right to remain silent
in a civil case.
“‘A trial court has broad discretion in the admission or exclusion of
evidence,” and therefore its judgment will not be reversed absent a clear showing of
an abuse of discretion. In re M.E.G., 10th Dist. Franklin Nos. 06AP-1256, 06AP-
1257, 06AP-1258, 06AP-1259, 06AP-1263, 06AP-1264, 06AP-1265, 2007-Ohio-
4308, ¶ 23, quoting State v. Rowe, 92 Ohio App.3d 652, 665, 637 N.E.2d 29 (10th
Dist.1993). The term abuse of discretion connotes more than an error of law or
judgment; it implies that the court’s attitude is unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140(1983).
Both of Mother’s assignments of error deal with the trial court’s
exclusion of evidence in the form of Mother’s testimony, either by permitting
Mother to invoke her Fifth Amendment right and refuse to testify when Father
attempted to call her as a witness or by declining to allow Mother’s counsel to call
her as a witness. Therefore, we will review both assignments of error for abuse of
discretion.
In Mother’s first assignment of error, Mother argues that the trial
court erred and abused its discretion when it denied Mother’s counsel’s request to
call Mother as a witness. In support of this assignment of error, Mother argues that
as A.V.’s mother, she should have been permitted to testify and “share her
sentiments” as to the two competing custody motions filed by Father and J.F.
Trial courts have broad discretion over their proceedings, including
the admissibility of witness testimony. Evid.R. 611(A) provides that the trial court
shall exercise reasonable control over the mode and order of
interrogating witnesses and presenting evidence so as to (1) make the
interrogation and presentation effective for the ascertainment of truth,
(2) avoid needless consumption of time, and (3) protect witnesses from
harassment or undue embarrassment.
Additionally, Juv.R. 40(C)(2) provides that magistrates in juvenile court are
authorized to regulate proceedings and to do everything necessary for the efficient
performance of their responsibilities, including putting witnesses under oath and
examining them. Juv.R. 40(C)(2)(c).
We agree that Mother’s testimony was critical to the outcome of the
juvenile court proceedings in this case, and we acknowledge that it is unusual for a
parent to participate in custody proceedings without testifying. We disagree,
however, that the court abused its discretion when it denied her counsel’s request to
call Mother as a witness. In addition to when Father attempted to call Mother as a
witness, discussed at length below, Mother’s counsel was given the opportunity to
call witnesses — Mother or presumably anyone else she deemed appropriate — and
declined, stating that she had no witnesses to call. Specifically, at the January 19,
2021 hearing, the court asked Mother’s counsel if she had “any witnesses,” and
Mother’s counsel responded that she did not. At the conclusion of the hearing, when
both Father and J.F. had rested and after Father’s counsel had made his closing
argument, Mother’s counsel addressed the court. Mother’s counsel referred to a
motion for legal custody she had untimely filed that day and informed the court that
she had a witness “if in fact the Court would allow it.” The court reiterated that it
had asked Mother’s counsel if she had any witnesses related to either Father’s or
J.F.’s motions, and she did not. According to Mother’s counsel, she was confused,
and “thought [the court] was asking [her] about one certain witness.”
Mother, citing a case in which the appellant’s parental rights were
terminated, argues that “a parent’s right to testify must be balanced against the trial
court’s ability to manage its docket.” In re J.W., 1st Dist. Hamilton No. C-190189,
2019-Ohio-2730, ¶ 12, quoting In re M/W Children, 1st Dist. Hamilton No. C-
180623, 2019-Ohio-948, ¶ 33. We are mindful of Mother’s interest in these
proceedings, and we acknowledge that this interest stems from her fundamental
liberty interest in the right to custody of her child. O’Malley v. O’Malley, 8th Dist.
Cuyahoga No. 98708, 2013-Ohio-5238, ¶ 15, citing Troxel v. Granville, 530 U.S. 57,
65-66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Additionally, we acknowledge that
pursuant to Juv.R. 2(Y), Mother is a party to the proceedings and as such “has a right
‘to a reasonable opportunity to be present at trial.’” In re M/W Children at ¶ 33,
quoting Brown v. Bowers, 1st Dist. Hamilton No. C-070797, 2008-Ohio-4114, ¶ 15.
Because, however, Mother “had adequate opportunity to participate * * * yet opted
not to do so,” it was not unreasonable for the trial court to deny her belated request
to testify. In re J.W., 1st Dist. Hamilton No. C-190189, 2019-Ohio-2730, ¶ 12.
Therefore, Mother’s first assignment of error is overruled.
Mother’s second assignment of error argues that the trial court erred
and abused its discretion by ruling that Mother had a general “right to remain silent”
when it prevented Father’s counsel from calling Mother as a witness on the basis
that her attorney informed the court that she was invoking her Fifth Amendment
right to refrain from self-incrimination. We disagree.
Our review here encompasses an analysis of the interaction among
the trial court’s authority to manage its proceedings, Father’s right to present a full
case in support of his motion for legal custody, and Mother’s Fifth Amendment
rights. With respect to the trial court’s authority to manage its proceedings, Evid.R.
611(A) provides that the trial court
shall exercise reasonable control over the mode and order of
interrogating witnesses and presenting evidence so as to (1) make the
interrogation and presentation effective for the ascertainment of truth,
(2) avoid needless consumption of time, and (3) protect witnesses from
harassment or undue embarrassment.
Additionally, Juv.R. 40(C)(2) provides that magistrates in juvenile court are
authorized to regulate proceedings and to do everything necessary for the efficient
performance of their responsibilities, including putting witnesses under oath and
examining them. Juv.R. 40(C)(2)(c).
With respect to Father’s right to present his case in support of his
motion for legal custody, Ohio courts have long held that a parent’s right to custody
of their child is a fundamental liberty interest protected by due process, and
therefore a court may not deprive a parent of their right to custody of their child
without due process of law. In re D.P., Jr., 8th Dist. Cuyahoga No. 110729, 2022-
Ohio-135, ¶ 27. In the specific context of Father’s right to call witnesses on his
behalf:
An ability to testify on one’s behalf and cross-examine the opposing
party is particularly significant in custody hearings, as the dispute
rarely leads to litigation unless the parents are in disagreement about
what is in their child’s best interest. * * * At a minimum, the trial court
must give each parent the opportunity to testify and to cross-examine
the other and, if it must place time limitations on their presentation of
evidence, it must do so in a manner that is fair to both parties.
Loewen v. Newsome, 9th Dist. Summit Nos. 25559 and 25579, 2012-Ohio-566, ¶ 16.
Although Loewen v. Newsome involved a domestic relations case rather than a
juvenile case, the due process considerations are similar and therefore instructive.
Finally, with respect to Mother’s Fifth Amendment privilege against
self-incrimination, Ohio courts have long held that the scope of the privilege against
self-incrimination is comprehensive and can be claimed in civil and criminal
proceedings, including a dependency action in juvenile court. In re Billman, 92
Ohio App.3d 279, 280, 634 N.E.2d 1050 (8th Dist.1993). While the privilege can
apply in a variety of contexts, the nature and scope of the privilege varies based on
the particular context:
In a criminal proceeding, the Fifth Amendment permits a criminal
defendant to completely refuse to testify. By contrast, in a civil
proceeding, the Fifth Amendment prohibits the state from compelling
a witness to testify regarding a matter that “may tend to incriminate”
the witness in a future criminal proceeding. “Compulsion, in this sense,
arises whenever some penalty is imposed for failing to offer testimony.”
In re M.J., 11th Dist. Ashtabula No. 2011-A-0014, 2011-Ohio-2715, ¶ 72, quoting In
re Myers, 3d Dist. Seneca No. 13-06-48, 2007-Ohio-1631, ¶ 32.
Therefore, while the privilege may be invoked in a juvenile court
proceeding, such invocation is not limitless:
[I]n such an action, the right does not relieve a person of the obligations
to either appear for a proceeding or respond to certain questions;
rather, the right prohibits the state from compelling the witness to
testify regarding matters that “may tend to incriminate” the witness in
a future criminal proceeding.
In re A.I., 8th Dist. Cuyahoga No. 99808, 2014-Ohio-2259, ¶ 42, quoting In re
Myers, 3d Dist. Seneca No. 13-06-48, 2007-Ohio-1631, ¶ 32, citing Tedeschi v.
Grover, 39 Ohio App.3d 109, 111, 529 N.E.2d 480 (10th Dist.1988). Further, while
an individual may invoke their Fifth Amendment protection during a juvenile court
proceeding, the protection does not permit the individual to completely refuse to
testify. Id., citing In re Shrider, 3d Dist. Wyandot Nos. 16-05-20 and 16-05-21,
2006-Ohio-2792, ¶ 34.
Here, when Father attempted to call Mother as a witness, the trial
court asked Mother’s counsel if Mother was waiving her right to remain silent.
Mother’s counsel responded that she was not. The court, apparently satisfied with
this response, effectively precluded Father from calling Mother as a witness,
therefore allowing Mother to completely refuse to testify.
“The doctrine of invited error holds that a litigant may not ‘take
advantage of an error which he himself invited or induced.’” In re D.B., 8th Dist.
Cuyahoga No. 102163, 2015-Ohio-4488, ¶ 15, quoting Hal Artz Lincoln-Mercury,
Inc. v. Ford Motor Co., 28 Ohio St.3d 20, 502 N.E.2d 590 (1986), paragraph one of
the syllabus. Although the trial court adopted an inappropriately broad
interpretation of Mother’s Fifth Amendment protection, this was directly predicated
on Mother’s purported invocation of her right. Therefore, pursuant to the invited-
error doctrine, we cannot reward her with a reversal of the trial court’s judgment
based on an error that she induced. For these reasons, Mother’s second assignment
of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant 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.
MARY EILEEN KILBANE, JUDGE
FRANK DANIEL CELEBREZZE, III, P.J., CONCURS;
LISA B. FORBES, J., DISSENTS (WITH SEPARATE OPINION)
LISA B. FORBES, J., DISSENTING:
I respectfully dissent from the majority’s opinion and would find that
the juvenile court erred by misconstruing Mother’s Fifth Amendment privilege
against self-incrimination and effectively prohibiting her from testifying in this
abuse, neglect, dependency case involving her daughter, A.V.
The Fifth Amendment
not only protects [an] individual against being involuntarily called as a
witness against himself in a criminal prosecution but also privileges
him not to answer official questions put to him in any other proceeding,
civil or criminal, formal or informal, where the answers might
incriminate him in future criminal proceedings.
Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973).
This court has previously held that “[w]hile the umbrella of Fifth
Amendment guarantees is broad, the prohibition against compulsory testimony
does not relieve a party from appearing or answering questions in a civil action.”
Tedeschi v. Grover, 39 Ohio App.3d 109, 111, 529 N.E.2d 480 (1988). In other
words, the Fifth Amendment does not “prohibit civil litigation while the possibility
of criminal prosecution exists.” Id. at 110.
In the case at hand, the following colloquy took place at the hearing
on Father’s motion for legal custody:
THE COURT: Do you have any further witnesses at this time?
FATHER’S COUNSEL: Yes. I would like to call on the mother, [B.V.].
THE COURT: This is on the abuse, neglect, dependency case. She does
have the right to remain silent.
[Mother’s counsel], is your client waiving that right?
MOTHER’S COUNSEL: No, your Honor.
THE COURT: Your next witness, [Father’s counsel]?
FATHER’S COUNSEL: Okay. I guess I’ll call the Guardian ad Litem.
By not waiving her right to remain silent, Mother was not refusing to
testify. Rather, she was protecting her Fifth Amendment privilege against self-
incrimination should the situation arise that she needed to invoke the Fifth
Amendment. However, the juvenile court proceeded as if Mother refused to testify.
The United States Supreme Court has consistently recognized that
“the relationship between parent and child is constitutionally protected.” Quilloin
v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978). “The liberty
interest at issue in this case — the interest of parents in the care, custody, and control
of their children — is perhaps the oldest of the fundamental liberty interests
recognized by this Court.” Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147
L.Ed.2d 49 (2000). See also Wisconsin v. Yoder, 406 U.S. 205, 232, 92 S.Ct. 1526,
32 L.Ed.2d 15 (1972) (“The history and culture of Western civilization reflect a strong
tradition of parental concern for the nurture and upbringing of their children. This
primary role of the parents in the upbringing of their children is now established
beyond debate as an enduring American tradition.”).
I would find that the juvenile court violated Mother’s fundamental
right as a parent “to make decisions concerning the care, custody, and control of
their children.” Troxel at 66. Mother’s voice was silenced, and this permeated the
remainder of the proceedings regarding the care, custody, and control of her child.
Therefore, I would find reversible error and remand this case to the juvenile court
for further proceedings.