[This decision has been published in Ohio Official Reports at
97 Ohio St.3d 92.]
IN RE HOFFMAN.
[Cite as In re Hoffman, 2002-Ohio-5368.]
Juvenile law—Permanent custody proceeding—Parties to the proceeding have
the right to cross-examine the guardian ad litem concerning the contents
of the report and the basis for the custody recommendation when the
report will be a factor in the trial court’s decision.
(No. 2002-0246—Submitted June 26, 2002—Decided October 23, 2002.)
CERTIFIED by the Court of Appeals for Stark County, No. 2001CA00207,
2001-Ohio-1816.
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SYLLABUS OF THE COURT
In a permanent custody proceeding in which the guardian ad litem’s report will be
a factor in the trial court’s decision, parties to the proceeding have the right
to cross-examine the guardian ad litem concerning the contents of the report
and the basis for a custody recommendation.
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ALICE ROBIE RESNICK, J.
{¶1} On April 18, 2000, Stark County Department of Human Services
(“SCDHS”) filed a complaint seeking temporary custody of appellee Brenda
Hoffman’s two children: Brandon Hoffman, born July 30, 1999, and Melanie
Dedmon, born August 14, 1991. The complaint alleged that Brandon was an
abused, dependent, and neglected child due to a skull fracture and an epidural
hematoma. The complaint further alleged that Melanie was a dependent child due
to the abuse of Brandon and the instability of her biological father. After an
emergency hearing, the trial court ordered that the children be placed in the
temporary custody of SCDHS and that appellee undergo a psychological
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evaluation. The trial court also issued a “no contact” order, prohibiting appellee
from having any contact with her children.
{¶2} An adjudicatory hearing was held on June 29, 2000. At that hearing,
appellee stipulated to a finding of abuse regarding Brandon and a finding of
dependency relative to Melanie. Brandon remained in the temporary custody of
SCDHS and was placed in foster care with Allen and Martha Miller. The trial court
granted legal custody of Melanie to her paternal grandparents. Thereafter, the
involvement of SCDHS with Melanie was terminated.
{¶3} In February 2001, appellant, Stark County Department of Job and
Family Services (“SCDJFS”), filed a motion for permanent custody of Brandon and
termination of appellee’s parental rights pursuant to R.C. 2151.414. Carol and
Raymond Ritchey, relatives of appellee, also filed a motion for custody. On April
17, 2001, the guardian ad litem filed a written report pursuant to R.C. 2151.414(C),
which detailed her investigation of all parties involved in the dispute. The report
was admitted into evidence by the trial court.
{¶4} The trial court hearing on the permanent custody motion, which began
on May 29, 2001, was divided into two phases. The first phase focused on
termination of appellee’s parental rights, while the second phase focused on the
best interests of the child. Appellee, through her counsel, initially represented that
she would stipulate to phase one. At that time, appellee specified that she intended
to litigate the best-interest phase. Upon inquiry by the court, appellee requested a
trial for both phases, and the case proceeded. SCDJFS called appellee as its sole
witness in phase one; appellee called no witnesses.
{¶5} The best-interest phase was contested due to the fact that both the
Ritcheys and the Millers sought placement pending an adoption. During this
portion of the hearing, the guardian ad litem participated in the cross-examination
of witnesses; however, the parties were not allowed to cross-examine the guardian
pertaining to her report.
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January Term, 2002
{¶6} On June 22, 2001, the trial court issued a decision terminating
appellee’s parental rights, privileges, and obligations and granting permanent
custody of Brandon to SCDJFS. Further, the trial court denied the Ritcheys’ motion
for custody and ordered that Brandon remain with the Millers pending an adoption
decree by the probate court. In reaching its decision, the trial court quoted portions
of the guardian’s report as follows: “The guardian states, ‘The Millers have
provided Brandon with a placement which is both emotionally and physically
healthy. … While it is true that children can adapt to change, it is equally true *
… that children grieve at the loss of loved ones and that their grieving is
commensurate to the attachment they have to their care takers. In this case, the
grieving would be lengthy, unnecessary and contrary to Brandon’s best interest.’ ”
{¶7} The appellate court reversed and remanded the case, concluding,
“[O]nce the trial court admitted the guardian’s report into evidence, the trial court
was required to permit mother to cross-examine the guardian.”
{¶8} Appellant moved the court of appeals to certify a conflict to this court
on the issue of whether, in a permanent custody action, a party may cross-examine
the guardian ad litem, notwithstanding the language of R.C. 2151.414(C), which
specifies, “A written report of the guardian ad litem … shall be submitted to the
court … but shall not be submitted under oath.” The court of appeals granted
appellant’s motion, finding its judgment to be in conflict with the judgment of the
Court of Appeals for Wayne County in In re Fox (Sept. 27, 2000), Wayne App.
Nos. 00CA0039, 00CA0038, 00CA0040 and 00CA0041, 2000 WL 1420276.
{¶9} The cause is now before this court upon our determination that a
conflict exists.
{¶10} The question certified for our review is “whether, in a permanent
custody action, a party may cross-examine the guardian ad litem, notwithstanding
the language of R.C. 2151.414(C).” For the reasons that follow, we answer the
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certified question in the affirmative and therefore affirm the judgment of the court
of appeals.
{¶11} R.C. 2151.414(C) states:
{¶12} “In making the determinations required by this section … a court
shall not consider the effect the granting of permanent custody to the agency would
have upon any parent of the child. A written report of the guardian ad litem of the
child shall be submitted to the court prior to or at the time of the hearing … but
shall not be submitted under oath.”
{¶13} From the plain language of the statute, it is reasonable to conclude
that the purpose of enacting R.C. 2151.414(C) is to give the court information, in
addition to that elicited at the hearing, to assist it in making sound decisions
concerning permanent custody placements. This legislative enactment, however,
cannot come at the expense of a parent’s opportunity to defend herself against the
possibility of termination of her rights.
{¶14} In In re Hayes (1997), 79 Ohio St.3d. 46, 48, 679 N.E.2d 680, the
court noted, “Permanent termination of parental rights has been described as ‘the
family law equivalent of the death penalty in a criminal case.’ … Therefore,
parents ‘must be afforded every procedural and substantive protection the law
allows,’ ” quoting In re Smith (1991),
77 Ohio App.3d 1, 16,
601 N.E.2d 45.
{¶15} The United States Supreme Court has recognized that in permanent
custody proceedings, parents must be afforded due process before their rights can
be terminated. In Santosky v. Kramer (1982), 455 U.S. 745,
102 S.Ct. 1388,
71
L.Ed.2d 599, parents appealed from the judgment of a family court that had found
their children to be neglected.
Id. at 751,
102 S.Ct. 1388,
71 L.Ed.2d 599. Based
on that finding, the trial court permanently terminated the parents’ custody, and the
appellate court affirmed.
Id. at 752,
102 S.Ct. 1388,
71 L.Ed.2d 599.
{¶16} The United States Supreme Court vacated the judgment and noted,
“The fundamental liberty interest of natural parents in the care, custody, and
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January Term, 2002
management of their child does not evaporate simply because they have not been
model parents or have lost temporary custody of their child to the State. Even when
blood relationships are strained, parents retain a vital interest in preventing the
irretrievable destruction of their family life. If anything, persons faced with forced
dissolution of their parental rights have a more critical need for procedural
protections than do those resisting state intervention into ongoing family affairs.
When the State moves to destroy weakened familial bonds, it must provide the
parents with fundamentally fair procedures.” Id. at 753-754,
102 S.Ct. 1388,
71
L.Ed.2d 599.
{¶17} In Lassiter v. Dept. of Social Serv. of Durham Cty., North Carolina
(1981), 452 U.S. 18, 24-25,
101 S.Ct. 2153,
68 L.Ed.2d 640, the United States
Supreme Court stated, “For all its consequence, ‘due process’ has never been, and
perhaps can never be, precisely defined. … Rather, the phrase expresses the
requirement of ‘fundamental fairness,’ a requirement whose meaning can be as
opaque as its importance is lofty. Applying the Due Process Clause is therefore an
uncertain enterprise which must discover what ‘fundamental fairness’ consists of
in a particular situation by first considering any relevant precedents and then by
assessing the several interests that are at stake.”
{¶18} While the issue of cross-examination of guardians ad litem in
permanent custody proceedings is one of first impression in this court, other states
have concluded that due process concerns dictate that parties should be given the
opportunity to cross-examine persons who prepare investigative reports for the
court’s consideration.
{¶19} In Collins v. Collins (1984), 283 S.C. 526,
324 S.E.2d 82, the wife
appealed from the judgment of the court in her divorce action, which granted
custody of the parties’ daughter to the husband. The wife contended that the court’s
in camera receipt of the recommendation of the guardian ad litem, and her resulting
inability to cross-examine, denied her due process.
Id. at 528,
324 S.E.2d 82.
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Although the error was ultimately ruled harmless, the court held, “We believe that
the ends of justice are better served by permitting cross-examination of a guardian
ad litem. … [W]e hold that where the report contains statements of fact, the
litigants are entitled to cross-examine the guardian ad litem and any witnesses
whose testimony formed the basis of the guardian’s recommendation. The family
court’s failure … to permit proper cross-examination is reversible error ….”
Id. at 530,
324 S.E.2d 82.
{¶20} In Mazur v. Lazarus (App.D.C.1964), 196 A.2d 477, the court
determined that the action of the court in basing its decision, at least in part, on
investigative reports without opportunity for the parties to cross-examine the
persons who prepared them violated due process requirements. The court
expounded, “[T]he courts of this jurisdiction sometimes call to their aid
experienced and disinterested trained social workers … to make unbias[ed]
examinations of the qualifications of those seeking custody of children, and the
circumstances of the children themselves. But it has never been the practice to
receive such reports after trial, with no opportunity for the parties to read them or
to cross-examine the persons who prepared them. There is an obvious and
fundamental unfairness in receiving evidence in this manner, for it violates due
process requirements. It amounts to a private investigation by the court in
assembling or receiving evidence, out of the sight and hearing of the parties, who
are thus deprived of the opportunity to test, explain or rebut it.”
Id. at 479.
{¶21} In State ex rel. Fisher v. Devins (1972), 294 Minn. 496,
200 N.W.2d
28, the Supreme Court of Minnesota also upheld the right to cross-examine a
probation officer who had prepared a report for custody proceedings. In Fisher, a
long-term foster mother appealed the decision of the trial court to award custody of
a son to the natural mother.
Id. Specifically, the foster mother contended that she
should have been given the opportunity to cross-examine the probation officer who
prepared a report relating to custody of the child.
Id. The court agreed with the
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January Term, 2002
foster mother, stating, “Counsel for appellant was not permitted to cross-examine
the probation officer to ascertain the basis for her opinion … . Under our
decisions it was error to deny appellant’s counsel an opportunity to cross-examine
the probation officer in order to ascertain the basis of her opinion that the child
should be removed from the custody of [the foster mother].” Id. at 499-500,
200
N.W.2d 28. The court added, “If the report is to be used as a basis, wholly or in
part, for a determination as to what is best for the welfare of the child, the one who
made the report should be subject to cross-examination in order to ascertain what
it is based on.”
Id. at 501,
200 N.W.2d 28.
{¶22} Likewise, in Stanford v. Stanford (1963), 266 Minn. 250, 258,
123
N.W.2d 187, the court said, “We do not condemn the practice of using court
agencies to make investigations and reports on custody questions. Where the sole
issue is what will best serve the welfare of the child, such reports are an invaluable
aid to the court in determining the question. Their use should be encouraged, but
care should be taken to give fair notice of the contents of such reports to the parties
involved so as to afford them every opportunity to test the credibility of the reporter
through cross-examination or otherwise and to meet or answer every adverse fact
or inference included therein.”
{¶23} Finally, in In re Dolly D. (1995), 41 Cal.App.4th 440, 48 Cal Rptr.2d
691, the child was adjudicated a dependent of the juvenile court. The trial court
denied the father’s request to cross-examine the social worker who had prepared
the report relating to custody. The appellate court reversed the trial court’s
judgment, stating, “In dependency proceedings, as in other civil proceedings,
parties have a due process right to cross-examine and confront witnesses.”
Id. at
444,
48 Cal.Rptr.2d 691.
{¶24} Applied to the case at bar, Brandon was adjudged an abused,
dependent, and neglected child. During the best-interest phase of the permanent
custody hearing, appellee requested that the guardian ad litem be called to testify
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about her report. That request was denied by the court. In the alternative, appellee
requested that the court allow her to cross-examine the guardian ad litem regarding
the contents of her report, which request was also denied.
{¶25} Due process necessitates that appellee should have had the right to
cross-examine the guardian ad litem, since the trial court relied upon the report. As
such, notwithstanding R.C. 2151.414(C), we hold that in a permanent custody
proceeding in which the guardian ad litem’s report will be a factor in the trial court’s
decision, parties to the proceeding have the right to cross-examine the guardian ad
litem concerning the contents of the report and the basis for a custody
recommendation. Without these safeguards, there are no measures to ensure the
accuracy of the information provided and the credibility of those who made
statements.
{¶26} We remand this cause to the trial court for a proceeding in which the
guardian ad litem may be subject to cross-examination.
Judgment affirmed.
MOYER, C.J., DOUGLAS, F.E. SWEENEY, PFEIFER and LUNDBERG STRATTON,
JJ., concur.
COOK, J., concurs in judgment only.
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Michael B. Vaccaro, for appellant.
Christopher M. VanDevere, for appellee.
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