In Re Billman

634 N.E.2d 1050, 92 Ohio App. 3d 279, 1993 Ohio App. LEXIS 5321

• Court: Ohio Court of Appeals
• Decided: November 22, 1993
• Docket: Nos. 63927, 63928.
• Status: Published

Opinions

Per Curiam.

The appellant, Karen Hayes, was before the Cuyahoga County Court of Common Pleas, Juvenile Division, pursuant to a dependency complaint filed by the Cuyahoga County Department of Human Services (“CCDHS”) regarding Franklin Billman, Jr., the son of Hayes. When CCDHS called Hayes as a witness, she asserted her Fifth Amendment privilege against self-incrimination. 1 The trial judge overruled the objection, apparently believing that once Hayes was represented by counsel, she waived her other constitutional rights.

The United States Supreme Court has held that the right to refrain from self-incrimination applies to juvenile court proceedings. In In re Gault (1967), 387 U.S. 1, 47-48, 87 S.Ct. 1428, 1454, 18 L.Ed.2d 527, 557, the court held:

“The language of the Fifth Amendment, applicable to the States by operation of the Fourteenth Amendment, is unequivocal and without exception. And the scope of the privilege is comprehensive. As Mr. Justice White, concurring, stated in Murphy v. Waterfront Commission, 378 U.S. 52, 94 [84 S.Ct. 1594, 1611, 12 L.Ed.2d 678, 704] (1964):

“ ‘The privilege can be claimed in any proceeding, be it criminal or civil, administrative or judicial, investigatory or adjudicatory * * * [and] it protects any disclosures which the witness may reasonably apprehend could be used in a criminal prosecution or which could lead to other evidence that might be so used.’” (Emphasis sic and footnote omitted.)

Clearly, the right to refrain from testifying against oneself attaches to a dependency action in juvenile court. The Gault court also emphatically stated that the application of the constitutional privilege does not turn on the type of proceeding:

“It is true that the statement of the privilege in the Fifth Amendment, which is applicable to the States by reason of the Fourteenth Amendment, is that no person ‘shall be compelled in any criminal case to be a witness against himself.’ However, it is also clear that the availability of the privilege does not turn upon the type of proceeding in which its protection is invoked, but upon the nature of the statement or admission and the exposure which it invites. The privilege may, for example, be claimed in a civil or administrative proceeding, if the statement is or may be inculpatory.” (Emphasis sic and footnote omitted.) Id. at 49, 87 S.Ct. at 1455, 18 L.Ed.2d at 558.

In the case sub judice, Hayes was required to testify in a dependency proceeding. A “dependent child” is defined in R.C. 2151.04 as follows:

“As used in this chapter, ‘dependent child’ includes any child:

“(A) Who is homeless or destitute or without proper care or support, through no fault of his parents, guardian, or custodian;

“(B) Who lacks proper care or support by reason of the mental or physical condition of his parents, guardian, or custodian;

“(C) Whose condition or environment is such as to warrant the state, in the interests of the child, in assuming his guardianship;

“(D) To whom both of the following apply:

“(1) He is residing in a household in which a parent, guardian, custodian, or other member of the household has abused or neglected a sibling of the child;

“(2) Because of the circumstances surrounding the abuse or neglect of the sibling and the other conditions in the household of the child, the child is in danger of being abused or neglected by that parent, guardian, custodian, or member of the household.”

Testimony elicited from a parent on any of these issues would open the door for potential prosecution, at a minimum, for child endangering pursuant to R.C. 2919.22.

In the case sub judice, Hayes chose to assert her constitutional right to silence, and the court committed reversible error in forcing her to testify.

Appellant’s assignment of error is well taken.

Judgment reversed and cause remanded for rehearing.

John F. Corrigan, P.J., and Jambs D. Sweeney, J., concur. Harper, J., dissents.

1 . Appellant sets forth one assignment of error:

"The trial court denied Karen Hayes her privilege against self-incrimination and thereby denied her due process of law when it ordered her to testily during CCDHS's case-in-chief at the dependency adjudication hearing.

"A. A Mother Has A Right To Remain Silent at a Dependency Adjudication Hearing.

"B. Right to Remain Silent Does Not Dissipate If a Party Is Represented by Counsel.

"C. The Trial Court’s Ordering Karen Hayes to Testify in CCDHS’s Case-in-Chief Constituted Prejudicial Reversible Error.”