[Cite as In re O.B., 2012-Ohio-4780.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
IN THE MATTER OF O.B.                          :       Hon. Patricia A. Delaney, P.J.
ALLEGED DEPENDENT/ABUSED                       :       Hon. W. Scott Gwin, J.
CHILD                                          :       Hon. William B. Hoffman, J.
                                               :
                                               :
                                               :       Case No. 2012-CA-7
                                               :
                                               :
                                               :       OPINION




CHARACTER OF PROCEEDING:                           Civil appeal from the Richland County Court
                                                   of Common Pleas, Case No.
                                                   2011DEP00014

JUDGMENT:                                          Dismissed

DATE OF JUDGMENT ENTRY:                            October 11, 2012

APPEARANCES:

For Richland County Children’s Services            For Father

ROBERT HARVEY                                      GEORGE KEYSER
3400 Ashton Drive                                  2752 Country Meadows
Uniontown, OH 44685                                Shelby, OH 44875


For Guardian Ad Litem

DALE MUSILLI
71 Shady Lane
Mansfield, OH 44907
[Cite as In re O.B., 2012-Ohio-4780.]


Gwin, J.,

        {¶1}     Appellants Richland County Children Services Board [“RCCSB”], Randy

Parker [“Parker”], Edith Gilliland [Gilliland”], Kevin Goshe [“Goshe”], Amanda Belford

[“Belford”], and Angie Poth [“Poth”] appeal the January 25, 2012 Judgment Entry of the

Richland County Court of Common Pleas, Juvenile Division, overruling their motion to

quash subpoenas. Appellee is the Richland County Juvenile Court and the guardian ad

litem, Dale Musilli [“Musilli”].

                                 I. FACTS AND PROCEDURAL HISTORY

        {¶2}     In the proceedings below, a child dependency action, Musilli, brought

charges of criminal contempt against RCCSB, alleging that it intentionally destroyed

subpoenaed evidence and willfully disregarded a court order to produce the evidence.

In furtherance of the criminal contempt claim, Musilli subpoenaed five RCCSB

employees he believes are responsible for the alleged destruction of evidence: Parker,

Gilliland, Goshe, Belford, and Poth.

        {¶3}     On August 23, 2011, Musilli served a subpoena on RCCSB pursuant to

Ohio Civ. R. 45, for a video recording of an incident that took place in its lobby on

August 22, 2011. Sixteen days after service of the subpoena, RCCSB moved that the

subpoena be quashed. This motion was overruled, but the recording was not produced

at that hearing. On October 24, 2011, the Court ordered that the video be produced at

the next hearing, set for November 23, 2011. On November 23, 2011, the recording was

again not produced. Again, the court ordered its production for November 30, 2011.

        {¶4}     On September 8, 2011, RCCSB, through its counsel Edith Gilliland, filed a

motion to quash the subpoena on grounds of confidentiality and relevance. On October
Richland County, Case No. 2012-CA-7                                                     3


24, 2011, a magistrate denied RCCSB’s motion to quash the subpoena and directed it

to give the Musilli access to the requested video recording. On December 1, 2011, the

magistrate reiterated this directive and ordered RCCSB to provide the court with the

original recording or a copy by December 5, 2011. The trial court adopted the

magistrate’s opinion on December 1, 2011. Thereafter it was discovered the subject

recording no longer existed. The court was informed on December 5, 2011.

      {¶5}   On December 13, 2011, Musilli filed a "Motion to Show Cause," pursuant

to R.C. 2705.02, requesting that RCCSB and "relevant agents thereof” be held in

contempt for allegedly "willfully allowing" the recording "to be destroyed." Subsequently,

an amended Motion to Show Cause was filed on January 25, 2012. This amendment

deleted a demand that agents and employees of RCCSB be held in contempt.

      {¶6}   The contempt matter was originally set for January 13, 2012. On that day

pretrial discussions of a possible resolution ensued, the contempt hearing was reset to

January 30, 2012 and the case was set for status conference on January 24, 2012.

      {¶7}   Subpoenas were issued to Belford, Gilliland, Goshe, Parker, Poth and

Zahn for the January 30, 2012 hearing on the Show Cause motion. All subpoenaed

witnesses, except Zahn, were employees of RCCSB during the times relevant to the

contempt. RCCSB moved that these subpoenas be quashed. Although the Motion to

Quash did not include Bedford and Poth, the parties agreed and the Court permitted

extension of the motion to include Bedford and Poth. That hearing was conducted on

January 24, 2012 and by Judgment Entry filed January 25, 2012 that motion was

overruled.
Richland County, Case No. 2012-CA-7                                                          4

                                II. ASSIGNMENTS OF ERROR,

       {¶8}   Appellants raise two assignments of error,

       {¶9}   “I. THE TRIAL COURT ERRED AS A MATTER OF LAW BY PLACING

THE BURDEN OF PRODUCTION AND THE BURDEN OF PERSUASION ONTO

RICHLAND COUNTY CHILDREN SERVICES TO PROVE ITSELF INNOCENT OF

CRIMINAL CONTEMPT, THEREBY DEPRIVING IT OF ITS CONSTITUTIONAL DUE

PROCESS RIGHT TO A PRESUMPTION OF INNOCENCE THAT CANNOT BE

OVERCOME UNLESS ITS GUILT IS PROVEN BEYOND A REASONABLE DOUBT.

       {¶10} “II. THE TRIAL COURT ERRED AS A MATTER OF LAW BY DENYING

THE    INDIVIDUAL     APPELLANTS'        MOTION      TO    QUASH     SUBPOENAS        AND

COMPELLING THEM TO BE CROSS EXAMINED FOR THE PURPOSE OF ELICITING

TESTIMONY TO BE USED TO CHARGE THEM WITH CRIMINAL CONTEMPT,

RESULTING IN A DEPRIVATION OF THEIR CONSTITUTIONAL FIFTH AND

FOURTEENTH AMENDMENT RIGHTS.”

                                          III. ANALYSIS

       A. Jurisdiction of Court of Appeals

       {¶11} Before reaching the merits of the appeal, we must address the threshold

issue of whether the judgment appealed is a final, appealable order. Appellees have

raised an issue that the appeal herein is premature. We agree.

       {¶12} Even if a party does not raise the issue, this court must address, sua

sponte, whether there is a final appealable order ripe for review. State ex rel. White vs.

Cuyahoga Metro. Hous. Aut., 79 Ohio St.3d 543, 544, 1997-Ohio-366, 684 N.E.2d 72.

Thus, we shall first consider whether this court has jurisdiction over appellant's appeal.
Richland County, Case No. 2012-CA-7                                                            5


       {¶13} Appellate courts have jurisdiction to review the final orders or judgments of

lower courts within their appellate districts. Section 3(B)(2), Article IV, Ohio Constitution.

If a lower court's order is not final, then an appellate court does not have jurisdiction to

review the matter and the matter must be dismissed. General Acc. Ins. Co. vs.

Insurance of North America, 44 Ohio St.3d 17, 20, 540 N.E.2d 266(1989); Harris v.

Conrad, 12th Dist. No. CA-2001-12 108, 2002-Ohio-3885. For a judgment to be final

and appealable, it must satisfy the requirements of R.C. 2505.02 and if applicable, Civ.

R. 54(B). Denham v. New Carlisle, 86 Ohio St.3d 594, 596, 716 N.E.2d 184 (1999);

Ferraro v. B.F. Goodrich Co., 149 Ohio App.3d 301, 2002-Ohio-4398, 777 N.E.2d 282.

If an order is not final and appealable, an appellate court has no jurisdiction to review

the matter and it must be dismissed.

       {¶14} The order denying the motion to quash subpoenas commanding an

employee or employees of RCCSB to appear and testify is not a final appealable order.

Appellants point to no specific statutory privilege to exempt them from giving testimony.

Rather, appellants raise a vague claim to a Fifth Amendment privilege to refuse to

testify ostensibly because said testimony may expose RCCSB to criminal liability.

Although such testimony may properly fall within the right against self-incrimination, it

must first be demonstrated that the testimony sought falls within the privilege. The trial

court should afford the parties the opportunity to litigate the issue of self-incrimination.

       {¶15} The Fifth Amendment privilege against self-incrimination provides that no

person shall be compelled to be a witness against himself in a criminal case and

permits a person to refuse to answer official questions in another proceeding, civil or

criminal, formal or informal, where the answers might incriminate him in future criminal
Richland County, Case No. 2012-CA-7                                                       6

proceedings. Minnesota v. Murphy, 465 U.S. 420, 426, 104 S.Ct. 1136, 79 L.Ed.2d

409(1984), citing Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 38 L.Ed.2d

274(1973).

       {¶16} The Ohio Supreme Court has held that when a witness asserts a privilege

against self-incrimination, a court may not rely upon the witness's claim alone, but has a

duty to determine whether the witness's refusal to answer is justified. State v. Jackson,

92 Ohio St.3d 436, 447, 751 N.E.2d 946(2001). A valid assertion exists where a witness

has reasonable cause to apprehend a real danger of incrimination. United States v.

Apfelbaum, 445 U.S. 115, 127, 100 S.Ct. 948, 63 L.Ed.2d 250(1980); In re Morganroth

718 F.2d 161, 167(C.A.6, 1983). “To sustain the privilege, it need only be evident from

the implications of the question, in the setting in which it is asked, that a responsive

answer * * * might be dangerous because injurious disclosure could result. * * *”

Hoffman v. United States, 341 U.S. 479, 486-487, 71 S.Ct. 814, 95 L.Ed. 1118(1951).

The privilege extends to answers which would furnish a link in the chain of evidence,

exposing the witness to criminal liability. Id. at 486; Blau v. United States, 340 U.S. 159,

71 S.Ct. 223, 95 L.Ed. 170(1950); and State v. Landrum, 53 Ohio St.3d 107, 120-121,

559 N.E.2d 710(1990).

       {¶17} In this case, no witness has been called to testify. Nor has the trial court

determined if the refusal to testify is justified. No witness has been compelled to testify

to anything.

       {¶18} Because there is no final appealable order, this court does not have

jurisdiction to entertain appellant's appeal.
Richland County, Case No. 2012-CA-7                                            7


      {¶19} For the foregoing reasons, the appeal of the judgment of the Court of

Common Pleas, Juvenile Division, Richland County, Ohio, is hereby dismissed.

By Gwin, J.,

Delaney, P.J., and

Hoffman, J., concur


                                           _________________________________
                                           HON. W. SCOTT GWIN


                                           _________________________________
                                           HON. PATRICIA A. DELANEY


                                           _________________________________
                                           HON. WILLIAM B. HOFFMAN
WSG:clw 0924
[Cite as In re O.B., 2012-Ohio-4780.]


              IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT

                               :
                               :
IN THE MATTER OF O.B.          :
ALLEGED DEPENDENT/ABUSED CHILD :
                               :
                               :
                               :
                               :                     JUDGMENT ENTRY
                               :
                               :
                               :
                               :
                               :
                               :
                               :                     CASE NO. 2012-CA-7




    For the reasons stated in our accompanying Memorandum-Opinion, the appeal of

the judgment of the Court of Common Pleas, Juvenile Division, Richland County, Ohio,

is hereby dismissed. Costs to appellants.




                                                _________________________________
                                                HON. W. SCOTT GWIN


                                                _________________________________
                                                HON. PATRICIA A. DELANEY


                                                _________________________________
                                                HON. WILLIAM B. HOFFMAN
