[Cite as In re A.W., 2022-Ohio-1553.]

IN THE COURT OF APPEALS OF OHIO

ELEVENTH APPELLATE DISTRICT

ASHTABULA COUNTY

IN THE MATTER OF:

A.W., ABUSED CHILD

CASE NO. 2021-A-0026

Civil Appeal from the

Court of Common Pleas, 

Juvenile Division

Trial Court No. 2021 JC 00015

O P I N I O N

Decided: May 9, 2022

Judgment: Affirmed

Matthew C. Bangerter, The Bangerter Law Office, 4124 Erie Street, Willoughby, OH 

44094 (For Appellant).

Colleen M. O’Toole, Ashtabula County Prosecutor, Shelley M. Pratt, Assistant 

Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 (For Appellee).

Carol G. Grasgreen, Carol G. Grasgreen & Associates Co., LPA, 5061 Glenn Lodge 

Road, Mentor, OH 44060 (Guardian Ad Litem).

JOHN J. EKLUND, J.

{¶1} Appellant, Thea Moller, Mother of A.W., appeals following the Ashtabula 

Court of Common Pleas, Juvenile Division’s Judgment Entry requiring appellant to 

cooperate with the Ashtabula County Children Service Board’s (ACCSB) investigation 

into the circumstances of A.W.’s injury.
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{¶2} Appellant raises one assignment of error arguing that the trial court erred 

by requiring her to cooperate with ACCSB’s investigation in contravention of her Fifth 

Amendment rights against self-incrimination.

{¶3} After review of the record and the applicable caselaw, we find the 

appellant’s assignment of error to be without merit. Appellant’s Fifth Amendment 

privileges were not violated. Her right against self-incrimination does not foreclose the 

trial court’s ability to make a reasonable dispositional custody decision tailored to the best 

interests of the child in the absence of her cooperation with ACCSB. The trial court did 

not compel appellant’s testimony in violation of the Fifth Amendment but did require 

appellant’s cooperation with the investigation into A.W.’s injuries to assure the safety of 

the child. The judgment of the Ashtabula Court of Common Pleas, Juvenile Division is 

affirmed.

Substantive and Procedural History

{¶4} On February 19, 2021, ACCSB filed a Verified Complaint and ex parte 

Motion for Temporary Custody in the Ashtabula County Court of Common Pleas, Juvenile 

Division. ACCSB alleged that A.W. was an abused child after he was hospitalized 

presenting with intermittent seizure-like activity, intercranial hemorrhage, tachycardia, 

and unequal pupils. This injury was characterized as non-accidental and consistent with 

“shaken baby syndrome.” The trial court granted ACCSB temporary custody of A.W. and 

he was placed in the care of appellant’s cousin.

{¶5} On April 13, 2021, Lisa Savel, A.W.’s maternal grandmother, filed a Motion 

to Intervene and a Motion for Temporary Custody.
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{¶6} On April 21, 2021, the court held an adjudicatory hearing and found that 

A.W. was an abused child pursuant to R.C. 2151.031(B). Under R.C. 2151.031(B), an 

abused child includes any child who “[i]s endangered as defined in section 2919.22 of the 

Revised Code, except that the Court need not find that any person has been convicted 

under that section in order to find that the child is an abused child[.]”

{¶7} On May 10, 2021, the court held a dispositional hearing pursuant to R.C. 

2151.35(A)(1) to “hear the evidence as to the proper disposition to be made” for the child. 

At the hearing, all parties agreed that appellant and father have complied with three of 

the four goals identified in the case plan. The terms of the case plan were that A.W.’s 

parents were to: (1) maintain sobriety; (2) have a safe and stable housing and income 

with proof of residency; (3) complete a parenting class; and (4) cooperate with the 

investigation concerning A.W.’s injuries. The final unmet goal was for A.W.’s parents to

cooperate with the investigation concerning A.W.’s injuries.

{¶8} At the dispositional hearing, ACCSB caseworker Christina Church testified 

that A.W. was removed from the household because he showed symptoms of “shaken 

baby syndrome.” The medical records indicated that the injury was non-accidental. 

Church said that because mother and father had not cooperated with the investigation 

into A.W.’s injuries, ACCSB was seeking to maintain temporary custody and to continue 

placement of A.W. with appellant’s cousin. In addition, the Guardian ad Litem in the case 

recommended temporary custody remain with ACCSB and that the court adopt the case

plan with the requirement that the parents cooperate with the investigation. 

{¶9} The basis for ACCSB’s request for cooperation was “[d]ue to the extent of 

the injuries and to make sure that he’s in a safe environment, we need to know how the 
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injuries occurred.” Church said that no one besides appellant, father, and grandmother 

had been identified as potential perpetrators in the case. The only form of cooperation 

ACCSB was seeking was for mother and father to be “interviewed by the police.” 

{¶10} After the Dispositional Hearing, the magistrate issued a Decision granting 

legal custody to appellant with protective custody to ACCSB. The magistrate modified the 

case plan by removing the requirement that A.W.’s parents cooperate with the 

investigation into his injuries and added an additional goal of meeting A.W.’s basic 

emotional, educational, medical, dental, and mental needs. In that Decision, the 

magistrate also noted that grandmother’s motion to intervene had been granted without 

objection and that her motion for temporary custody was to be held in abeyance.

{¶11} ACCSB timely objected to the magistrate’s Decision, appellant and father 

responded to the objections while grandmother did not. The trial court reviewed the 

objections noting that A.W.’s injuries were non-accidental, that it was uncontroverted that 

the injuries occurred while the child was “in the care of Mother, Father and/or Maternal 

Grandmother. * * * It is implicit upon this record this child was injured via a culpable act.” 

The court quoted In re Pitts, 38 Ohio App.3d 1, 5, 525 N.E.2d 814 (5th Dist.1987), and 

said that R.C. 2151.031 makes no reference to fault in finding that a child is abused but 

that the “‘focus is upon harm to the child, not upon parental or custodial blameworthiness.’”

{¶12} The court acknowledged that appellant and father were opposed to the 

requirement to cooperate with the investigation claiming it would interfere with their Fifth 

Amendment rights against self-incrimination and that there is no evidence of parental 
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fault. However, the court said that parental fault is not the issue. Rather, the ongoing 

safety of the child was the central focus. 

{¶13} The court said there was no evidence to suggest that appellant or father 

had personally asserted the Fifth Amendment right against self-incrimination but instead, 

the evidence indicated that appellant and father had simply not engaged in any way with 

investigators. The court noted that appellant and father are not required to cooperate with 

law enforcement and that such a decision “does not automatically implicate the Fifth 

Amendment rights of the parent. Such a decision also does nothing to impact this Court’s 

responsibility to ensure the safety of this child. * * * At this point in these proceedings, the 

applicability of the Fifth Amendment has not been demonstrated to exist.” 

{¶14} The court found that A.W.’s placement with appellant was “not a suitable 

dispositional option, and restoring custody to Mother with a grant of protective supervision 

to the agency is insufficient to assure the safety of this child.” For the same reasons, the 

court found that “Father and Maternal Grandmother are also not suitable dispositional 

alternatives.” Therefore, the court sustained ACCSB’s objections and restored the 

requirement that appellant and father cooperate with the investigation. The court also 

denied grandmother’s Motion to Intervene and Motion for Temporary Custody because 

the record established by the Dispositional Hearing indicated that she was not a suitable 

dispositional alternative to appellant or father because she was one of the three people 

caring for A.W. at the time of his non-accidental injuries.

Assignment of Error and Analysis

{¶15} Appellant timely filed this appeal raising a single assignment of error.
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{¶16} “The trial court erred to the prejudice of the Mother-Appellant in allowing the 

State to require the Appellant to submit to a law enforcement interview as a condition of 

regaining custody of her child. (09-01-2021 Judgment Entry).”

{¶17} Appellant argues that she has an “absolute right” under the Fifth 

Amendment to decline to make any statements to law enforcement and that, because of 

this right, the trial court erred by maintaining the requirement that she cooperate with the 

investigation into A.W.’s injuries as a condition of the case plan.

{¶18} It is worth noting that appellant states in her brief that she has spoken to 

representatives of ACCSB on numerous occasions and maintains that she did not cause 

A.W.’s injuries and does not know the cause of A.W.’s injuries. However, the trial court 

found in its Judgment Entry that “there is no testimony or evidence in this record that even 

suggests Mother and/or Father have ever met with ACCB and/or law enforcement 

regarding the circumstances of this child’s injury.” (Emphases in original). 

Dispositional Hearing Standard:

{¶19} In Ohio, the purpose of the adjudicatory hearing in a child-neglect case is 

to determine whether the alleged neglect is true. See Juv.R. 2(B). A finding of neglect, as 

is the case here, places the child within the court's jurisdiction. The purpose of the 

dispositional hearing is to determine what action shall then be taken with respect to the 

child with a focus on the best interest of the child. See Juv.R. 3(M); In re Baby Girl Baxter,

17 Ohio St.3d 229, 233, 479 N.E.2d 257 (1985). The Ohio Supreme Court has recognized 

that “parents who are suitable persons have a ‘paramount’ right to the custody of their 

minor children.” (Citations omitted.) Matter of T.C., 11th Dist. Ashtabula No. 2018-A-0090, 

2019-Ohio-2287, ¶ 64, quoting In re Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 
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(1990). “However, parental rights are not absolute and the state has a right to intervene 

when the exercise of the parent’s rights presents a health or safety hazard to a child.” Id., 

citing In re Cunningham, 59 Ohio St.2d 100, 106 391 N.E.2d 1034. The law does not 

require a child to be placed in a particular environment before a court can determine 

whether the environment is unhealthy or unsafe. In re Bishop, 36 Ohio App.3d 123, 126, 

521 N.E.2d 838 (5th Dist.1987), citing In re Campbell, 13 Ohio App.3d 34, 36, 468 N.E.2d 

93 (12th Dist.1983)

Fifth Amendment Right Against Self-Incrimination:

{¶20} The Fifth Amendment of the United States Constitution, incorporated to the 

States by the Fourteenth Amendment, “not only protects the 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).

The standard for determining whether the privilege applies is “whether the claimant is 

confronted by substantial and ‘real,’ and not merely trifling or imaginary, hazards of 

incrimination.” Marchetti v. United States, 390 U.S. 39, 53, 88 S.Ct. 697, 19 L.Ed.2d 889

(1968).

{¶21} The type of proceeding does not determine the availability of the privilege; 

rather, it turns upon whether the statement or admission is or may be inculpatory. In re

Billman (1993), 92 Ohio App.3d 279, 280–281, 634 N.E.2d 1050, 1050–1052. Fifth 

Amendment privileges may not be employed “to avoid giving testimony that” a person 

“simply would prefer not to give.” Roberts v. United States, 445 U.S. 552, 560 n. 7 (1980). 
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“The Fifth Amendment right against self-incrimination is a personal right ‘that can only be 

invoked by the individual whose testimony is being compelled.’ Moran v. Burbine (1986), 

475 U.S. 412, 433, 106 S.Ct. 1135, 89 L.Ed.2d 410, fn. 4 (during interrogation, police 

rebuffed attorney who had been hired by a Mirandized suspect’s sister, where suspect 

had not requested assistance of counsel).” State v. Williams, 99 Ohio St.3d 439, 2003-

Ohio-4164, 793 N.E.2d 446, ¶ 29.

{¶22} To qualify for the Fifth Amendment privilege, the communication in question 

must be testimonial, incriminating, and compelled. See United States v. Hubbell, 530 U.S.

27, 34–38, 120 S.Ct. 2037, 147 L.Ed.2d 24 (2000). “[I]n order to be testimonial, an 

accused's communication must itself, explicitly or implicitly, relate a factual assertion or 

disclose information”. Doe v. United States, 487 U.S. 201, 210, 108 S.Ct. 2341, 101

L.Ed.2d 184 (1988). A court may not compel a parent’s admission to a crime in custody 

proceedings, if the admission could be used against the parent in a subsequent criminal 

proceeding, under the threat of losing parental rights. Matter of Ma.H., 134 N.E.3d 41, 47 

(Ind. 2019); See In re A.D.L., 133 Nev. 561, 402 P.3d 1280, 1285 (2017) (collecting 

cases). See generally Lefkowitz v. Cunningham, 431 U.S. 801, 805, 97 S.Ct. 2132, 53

L.Ed.2d 1 (1977) (“[W]hen a State compels testimony by threatening to inflict potent 

sanctions unless the constitutional privilege is surrendered, that testimony is obtained in 

violation of the Fifth Amendment[.]”). Matter of Ma.H. at 47.

{¶23} In In re Amanda W., 124 Ohio App.3d 136, 705 N.E.2d 724 (6th Dist.1997), 

the Sixth District held that it was a violation of father’s Fifth Amendment right against selfincrimination where the case plan in a child abuse case required counseling that would 

result in the admission of father’s guilt. Id. at 141. The court said that because any 
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admission pursuant to counseling would require mandatory reporting under R.C. 

2151.421, the father could reasonably apprehend that any admission to his sexual abuse 

could lead to criminal prosecution. Id.

{¶24} The Sixth District further said that “an implicit, and potent, penalty for failure 

to satisfy the requirements of a particular case plan is the loss of a parent's fundamental 

liberty right to the care, custody, and management of his or her child.” Id., citing In re

Murray (1990), 52 Ohio St.3d 155, 157, 556 N.E.2d 1169, 1171–1172, citing Santosky v.

Kramer (1982), 455 U.S. 745, 753, 102 S.Ct. 1388, 1394–1395, 71 L.Ed.2d 599, 606. The 

record in that case made it clear that father was “made fully aware of the fact that the 

‘failure to admit’ would lead to the imposition of this penalty. Id. (Emphases added). The 

court held that this “compelling sanction * * * forces an individual to admit to offenses in 

violation of his right not to incriminate himself. * * * The state was required to offer * * * 

protection from the use of any compelled statements and any evidence derived from 

those answers in a subsequent criminal case[.]” Id. 

{¶25} In a similar case, the Oregon Court of Appeals discussed cases involving 

potential Fifth Amendment rights. The Oregon court surveyed In re Amanda W., supra, 

as well as cases from Vermont, Nebraska, Minnesota, New Jersey, and New York. Dept.

of Human Services v. K.L.R., 235 Or.App. 1, 230 P.3d 49, citing In re J.A., Juvenile, 166

Vt. 625, 699 A.2d 30 (1997) (J.A.); In re Interest of Clifford M., 6 Neb.App. 754, 765, 577

N.W.2d 547 (1998); Matter of Welfare of J.W., 415 N.W.2d 879 (Minn.1987); Div. of Youth

& Family Services v. S.S., 275 N.J.Super. 173, 177, 645 A.2d 1213, 1216 (1994); In re

S., 66 Misc.2d 683, 690, 322 N.Y.S.2d 170, 177–78 (1971).
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{¶26} In K.L.R., the court said that there is no Fifth Amendment violation when 

there was not “a scintilla of evidence that any incest treatment program required an 

admission of guilt, let alone that all treatment programs require it or that [father] has tried 

unsuccessfully to obtain treatment that would not require it.” K.L.R., 235 Or.App. 4, citing 

State ex rel. Juvenile Dept. of Lane Cty. v. Black, 101 Or.App. 626, 792 P.2d 1225 

(Or.App.1990). In contrast, the Oregon Court of Appeals noted that where a juvenile court 

ordered a mother to complete a polygraph examination asking mother whether she 

injured the child or knew who did, the court said that this did violate the Fifth Amendment 

because the answers “could expose mother to criminal liability.” Id. at 4. Moreover, the 

“court’s order put her in the Hobson’s choice of waiver her rights against self-incrimination 

or suffering adverse consequences in her quest to preserve her parental rights.” Id.

Reiner II:

{¶27} Appellant argues that the trial court erred by sustaining ACCSB’s objections 

to the magistrate’s decision to remove the requirement that she cooperate with the 

investigation into A.W.’s injuries. She claims that she has an “absolute right” under the 

Fifth Amendment to decline to make any statements to law enforcement. In her brief, 

appellant claims that State v. Reiner, relied upon by the trial court, actually supports her 

position that the trial court’s order is in violation of the Fifth Amendment.

{¶28} In State v. Reiner, 89 Ohio St.3d 342, 731 N.E.2d 662 (2000) (Reiner I), the 

defendant had been convicted of involuntary manslaughter after the death of his infant 

child. He appealed claiming that he was prejudiced by the grant of transaction immunity 

to a babysitter who testified as a witness for the prosecution. The babysitter denied 
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wrongdoing. In Reiner I, the court held that the babysitter’s claim of innocence precluded 

her Fifth Amendment privilege. Id. at 352

{¶29} On appeal to the United States Supreme Court in Ohio v. Reiner, 532 U.S. 

17, 121 S.Ct. 1252, 149 L.Ed.2d 158 (2001), the court held that despite the babysitter’s 

claim of innocence, she did have a reasonable cause to apprehend danger from her 

answers at trial and could assert her Fifth Amendment privilege. The reason for this was 

because the babysitter had spent significant time alone with the victim within the time 

frame of the fatal trauma. Id. at 21. Therefore, it was reasonable for her to fear that her 

answers might incriminate her. Id. at 21-22.

{¶30} On remand, the Ohio Supreme Court in State v. Reiner, 93 Ohio St.3d 601, 

757 N.E.2d 1143 (2001) (Reiner II) reversed to the extent that it held the babysitter did 

not have a Fifth Amendment privilege against self-incrimination and affirmed the original 

decision that the grant of immunity to the babysitter resulted in prejudice to the defendant 

and did not further the administration of justice. Id. The Ohio Supreme Court noted in 

Reiner II that the prosecution “did not have two potentially culpable persons. Instead, this 

was an either/or situation.” Id. at 605. Either Reiner or the babysitter was guilty. The court

said that a grant of immunity is not appropriate in an either/or situation because “it could 

actually hinder the search for truth.” Id.

{¶31} The circumstances here differ from Reiner II. Under Reiner II’s holding, 

appellant could have a cognizable Fifth Amendment privilege because she, like the 

babysitter in the case, spent significant time alone with A.W. within the time frame of his 

injuries and it is reasonable that she may apprehend self-incrimination. 
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{¶32} However, the similarity ends there. Unlike in Reiner II, appellant claims here

that her Fifth Amendment privileges overcome the trial court’s ability to make a 

dispositional determination that is in the best interest of the child. The distinctions lead to 

the failure of appellant’s assignment of error for several reasons.

{¶33} First, the trial court has not compelled an admission of a crime as a condition 

of reunification with A.W., nor has the court sought to compel appellant to submit to a 

polygraph or to testimony in a trial or hearing. Had the court done so, such an order would 

plainly violate the Fifth Amendment. See In re Amanda W., supra; Dept. of Human

Services v. K.L.R., supra. The trial court has not terminated or limited appellant’s parental 

rights based on an unwillingness to acknowledge her wrongdoing. See Dept. of Human

Services v. K.L.R., supra; In re Interest of Clifford M., 6 Neb.App at 765. (“[T]here is a 

very fine, although very important, distinction between terminating parental rights based 

specifically upon a refusal to waive protections against self-incrimination and terminating 

parental rights based upon a parent’s failure to comply with an order to obtain meaningful 

therapy or rehabilitation, perhaps in part because a parent’s failure to acknowledge past 

wrongdoing inhibits meaningful therapy. The latter is constitutionally permissible; the 

former is not.”) 

{¶34} Here, the court is requiring cooperation with the investigation as part of the 

case plan. The court required cooperation with the investigation to serve the best interests 

of the child, to which parental interests are subject. See In re Cunningham, 59 Ohio St.2d 

100, 391 N.E.2d 1034 (1979) (“As it has been perceptively noted elsewhere, ‘it is plain 

that the natural rights of a parent are not absolute, but are always subject to the ultimate 

welfare of the child, which is the polestar or controlling principle to be observed.’”) Id. at 
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106, quoting In re R. J. C., 300 So.2d 54, 58, (Fla.App. 1974)). Unlike In re Amanda W., 

the court has not imposed a penalty for a “failure to admit.” Instead, the trial court is 

requiring cooperation, which does not require self-incrimination. 

{¶35} Reiner II would suggest that appellant has a cognizable Fifth Amendment 

privilege in this situation. However, there is nothing in the record to suggest that appellant 

has met with law enforcement. Therefore, appellant has not yet demonstrated the 

applicability of the Fifth Amendment. The time may come when appellant can 

demonstrate the applicability of, and invoke, her Fifth Amendment privilege. However, it 

has not yet.

{¶36} The trial court made its custody decision based upon the evidence adduced 

at the Dispositional Hearing in furtherance of the best interests of the child. Appellant did 

not testify at the hearing and did not specifically invoke her right against self-incrimination. 

The trial court’s Judgment Entry did not draw an adverse inference about the appellant’s 

guilt based upon her refusal to testify at the dispositional hearing. Rather, the trial court 

made its dispositional determination about A.W.’s best interests based upon appellant’s 

failure to cooperate with the investigation. In its Judgment Entry, the court said that there 

was “no testimony or evidence in this record that even suggests mother and/or Father 

have ever met with ACCSB and/or law enforcement regarding the circumstances of this 

child’s injury.” (Emphases in original). The court said that appellant’s decision to not 

cooperate with ACCSB or law enforcement “does not automatically implicate the Fifth 

Amendment rights of the parent. Such a decision also does nothing to impact this Court’s 

responsibility to ensure the safety of this child.” (Emphases added).
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{¶37} The court considered the welfare of A.W. and noted that the “‘law does not 

require the court to experiment with the child’s welfare to see if * * * [the child] will suffer 

great detriment or harm.’ In re S.J.J., [12th Dist. Butler No. CA2006-02-021] 2006-Ohio6354, at ¶ 12.” Because of the lack of evidence that the danger to A.W. had been 

“identified, ameliorated or otherwise addressed”, the trial court relied on the evidence that 

it did have to issue its Judgment Entry. The entry determined that appellant was not a 

suitable dispositional option for custody and retained the cooperation requirement and 

A.W.’s custody with ACCSB to “assure the safety of this child.”

{¶38} For the above reasons, we hold that the case plan requirement to cooperate

with the investigation does not violate appellant’s Fifth Amendment right against selfincrimination. The trial court can require appellant to cooperate with the investigation into 

A.W.’s injuries as part of the case plan. The Judgment Entry does not compel speech 

from appellant, and appellant cannot blanketly invoke the Fifth Amendment in a merely 

theoretical manner prior to questioning. At this time, the record shows that appellant has 

not been questioned and that she has not asserted her personal right against selfincrimination. See Moran, 475 U.S. at 433. Further, the trial court has not precluded 

appellant from personally invoking her right against self-incrimination should she choose 

to do so during the investigation. The trial court has not violated appellant’s Fifth 

Amendment privilege because it did not order her to waive the privilege when it merely 

required her cooperation with the investigation as part of the case plan.

{¶39} The trial court’s Judgment Entry does not prohibit appellant from invoking 

her Fifth Amendment privileges during her cooperation with the investigation as the 

situation demands. If, during her cooperation with the investigation, she determines that 
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she must invoke her Fifth Amendment privilege, she is free to do so. Although the trial 

court required cooperation with the investigation, cooperation alone does not necessarily 

entail the implication of the Fifth Amendment privilege. To be sure cooperation with the 

investigation could involve both statements that are protected and not protected by the 

right against self-incrimination. It may well be that during cooperation with the 

investigation, that the Fifth Amendment could be implicated. However, that situation is not 

before this court, and we decline to issue an advisory ruling giving guidance on how to 

resolve such a situation should it arise. See Egan v. Natl. Distillers & Chem. Corp., 25 

Ohio St.3d 176, 495 N.E.2d 904 (1986), syllabus.

{¶40} Accordingly, appellant’s sole assignment of error is without merit.

{¶41} For the foregoing reasons, the judgment of the Ashtabula Court of Common 

Pleas, Juvenile Division is affirmed.

THOMAS R. WRIGHT, P.J.,

MARY JANE TRAPP, J.,

concur.