In re Disqualification of Giesler ( 2011 )

[Cite as In re Disqualification of Giesler, 135 Ohio St.3d 1201, 2011-Ohio-7083.]
IN RE DISQUALIFICATION OF GIESLER.
IN RE M.N. ET AL.
[Cite as In re Disqualification of Giesler, 135 Ohio St.3d 1201,
2011-Ohio-7083.]
Judges—Affidavit of disqualification—R.C. 2701.03—Request for removal
denied—No basis established warranting disqualification.
(No. 11-AP-083—Decided September 13, 2011.)
ON AFFIDAVIT OF DISQUALIFICATION in Ottawa County Court of Common Pleas,
Juvenile Division, Case Nos. 20930097, 20930098, and 20930099.
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O’CONNOR, C.J.
{¶ 1} Loretta Riddle, counsel for J.N., the biological mother of the minor
children at issue in the underlying case, has filed an affidavit with the clerk of this
court under R.C. 2701.03 to disqualify Judge Kathleen L. Giesler from acting on
any further proceedings in the above-referenced cases, now pending in the
Juvenile Division of the Court of Common Pleas of Ottawa County.
{¶ 2} Attorney Riddle contends that Judge Giesler must be disqualified
because she presides over the HOPE Court. In 2008, the Ottawa County Juvenile
Court created its Family Dependency Treatment Court, a specialized docket
known as the HOPE (“Helping Our Parents Excel”) Court, with financial
assistance and ongoing administrative support from the Supreme Court of Ohio.
The HOPE Court is designed to help parents who have substance-abuse problems
and have had children removed from their care. Attorney Riddle alleges that
Judge Giesler’s participation in the HOPE Court program creates a conflict of
interest leading to bias against her client. Riddle claims that, through her
participation in HOPE Court, Judge Giesler has engaged in improper ex parte
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communications with parties and witnesses, thereby creating an appearance of
impropriety.
{¶ 3} Judge Giesler has responded in writing to the concerns raised in
the affidavit. The judge explains that J.N. entered the HOPE Court program in
February 2010 but was removed from the program in November 2010, after being
sanctioned numerous times for failing to abide by the court’s treatment orders.
Judge Giesler denies harboring any bias or prejudice against J.N. and maintains
that no party gained any advantage from her participation in HOPE Court.
{¶ 4} For the reasons to follow, no basis has been established for
ordering the disqualification of Judge Giesler.
Relevant Facts
{¶ 5} On December 29, 2009, J.N. was arrested for child endangerment
after two of her children, ages one and two, were found wandering outside the
home while J.N. was passed out on the couch. On December 30, 2009, the
Ottawa County Department of Job and Family Services (“Family Services”) filed
a complaint charging that J.N.’s minor children were neglected and dependent.
All three of J.N.’s children were removed from her home and placed in temporary
custody. On January 13, 2010, J.N. admitted that the allegations of dependency
were true, and the allegations pertaining to neglect were withdrawn.
{¶ 6} J.N. voluntarily entered HOPE Court in February 2010. During
J.N.’s time in the HOPE Court program, Judge Giesler participated regularly in
J.N.’s treatment-team meetings. J.N. also routinely appeared before the judge to
review her progress during the first two stages of the program. The trial court,
however, terminated J.N. from HOPE Court in December 2010, after sanctioning
her several times for failing to abide by the court’s treatment orders.
{¶ 7} On January 25, 2011, J.N. agreed that legal custody of the children
should be awarded to M.Y., J.N.’s former aunt by marriage. On April 28, 2011,
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January Term, 2011
Judge Giesler denied M.Y. legal custody, but instead ordered that the children
remain in M.Y.’s temporary custody pending a review hearing on May 31, 2011.
{¶ 8} On June 3, 2011, Family Services moved the trial court to award
legal custody to M.Y. On or around June 30, 2011, Riddle filed a motion to
return the children to J.N. and to award J.N. legal and residential custody.
According to Riddle, the trial court held hearings on these motions on July 1 and
August 2, 2011, with a final hearing set for August 23, 2011. Riddle filed the
instant affidavit of disqualification on August 15, eight days before the final
hearing.
Alleged Improper Ex Parte Communications
{¶ 9} Attorney Riddle first claims that Judge Giesler must be
disqualified because she engaged in improper ex parte communications with the
parties and certain witnesses while presiding over J.N.’s HOPE Court program.
Attorney Riddle, however, overlooks the fact that Jud.Cond.R. 2.9(A)(6) states
that a judge may engage in ex parte communications “when administering a
specialized docket, provided the judge reasonably believes that no party will gain
a procedural, substantive, or tactical advantage while in the specialized docket
program as a result of the ex parte communication.” Judge Giesler states that no
party gained any advantage as a result of J.N.’s participation in the HOPE Court
specialized docket, and Riddle has offered no evidence to the contrary. In this
regard, Riddle makes blanket assertions that Judge Giesler was exposed to
prejudicial information about J.N. (1) outside of J.N.’s presence and (2) without
J.N.’s being afforded counsel. But Jud.Cond.R. 2.9 contemplates that when
administering a specialized docket, judges will assume a more interactive role
with parties, treatment providers, probation officers, social workers, and others.
In addition, the record in this case reflects that J.N. was represented by counsel
throughout the underlying proceedings, and J.N. agreed to participate in HOPE
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Court. If she had questions or concerns about the program, she should have
discussed them with counsel before entering the program.
Alleged Violations of Constitutional Rights/Improper Legal Rulings
{¶ 10} Riddle also claims that her client’s constitutional rights were
violated. She further complains that Judge Giesler admitted prejudicial testimony
about her client over Riddle’s objections. But it is well settled that an affidavit of
disqualification is not the mechanism for determining whether a judge has
violated a party’s constitutional rights. See In re Disqualification of Griffin, 101
Ohio St.3d 1219, 2003-Ohio-7356, 803 N.E.2d 820, ¶ 8-9. Likewise, Riddle’s
challenges to the judge’s evidentiary rulings and other legal decisions are not
evidence of bias or prejudice. In re Disqualification of Floyd, 101 Ohio St.3d
1217, 2003-Ohio-7351, 803 N.E.2d 818, ¶ 4 (counsel’s disagreement or
dissatisfaction with a court’s legal rulings, even if those rulings may be erroneous,
is not grounds for disqualification); In re Disqualification of Solovan, 100 Ohio
St.3d 1214, 2003-Ohio-5484, 798 N.E.2d 3, ¶ 4 (an affidavit of disqualification
“is not a vehicle to contest matters of substantive or procedural law”). The
matters that Riddle complains of here fall within the sound discretion of the trial
judge. If Riddle wishes to challenge these discretionary rulings, she may do so by
way of appeal. But reviewing alleged legal errors is not the chief justice’s role in
deciding an affidavit of disqualification. In re Disqualification of Russo, 110
Ohio St.3d 1208, 2005-Ohio-7146, 850 N.E.2d 713, ¶ 6.
Conclusion
{¶ 11} “A judge is presumed to follow the law and not to be biased, and
the appearance of bias or prejudice must be compelling to overcome these
presumptions.” In re Disqualification of George, 100 Ohio St.3d 1241, 2003-
Ohio-5489, 798 N.E.2d 23, ¶ 5. Those presumptions have not been overcome in
this case.
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January Term, 2011
{¶ 12} For the reasons stated above, the affidavit of disqualification is
denied. The case may proceed before Judge Giesler.
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