In re R.G.M. ( 2023 )

[Cite as In re R.G.M., 2023-Ohio-685.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN THE MATTER OF: Hon. William B. Hoffman, P.J.
Hon. John W. Wise, J.
R.G.M (dob 9/13/20) Hon. Craig R. Baldwin, J.
R.G.M. (dob 9/13/20) Case Nos. CT2022-0046 and 0047
OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas,
Juvenile Division, Case Nos. 22030176 and
22030177
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: March 3, 2023
APPEARANCES:
For Appellee MCCS For Appellant K.G.
RON WELCH RICHARD D. HIXSON
PROSECUTING ATTORNEY 3808 James Court, Suite 2
JOHN CONNOR DEVER Zanesville, Ohio 43701
ASSISTANT PROSECUTOR
27 North Fifth Street, Suite 201
Zanesville, Ohio 43701
Guardian ad Litem
EVAN WAGNER
3970 Brown Park Drive, Suite B
Hilliard, Ohio 43026
Muskingum County, Case Nos. CT2022-0046 and 0047 2
Wise, J.
{¶1} Appellant-Mother K.G. appeals the decision of the Muskingum County
Court of Common Pleas, Juvenile Division, which granted legal custody of her minor
children to their maternal aunt.
STATEMENT OF THE FACTS AND CASE
{¶2} The relevant facts leading to this appeal are as follows:
{¶3} Appellant K.G. is the mother of minor children R.G.M. and R.G.M.,
{¶4} On September 17, 2020, following an ex parte hearing, the minor children
were initially placed in the temporary custody of Muskingum County Adult and Child
Protective Services.
{¶5} A Complaint was filed on the same date alleging the minor children were
dependent under R.C. § 2151.04(B) and §2151.04(C). The children were found to be
dependent children at the adjudicatory hearing, and temporary custody was continued
with Muskingum County Adult and Child Protective Services.
{¶6} On March 8, 2021, a motion to grant temporary custody to Amanda
McPeak, maternal aunt, was filed by Muskingum County Adult and Child Protective
Services.
{¶7} On June 15, 2021, a hearing was held on the motion, following which the
trial court granted the motion, with protective supervision remaining with the Agency.
{¶8} On July 26, 2021, a motion to grant legal custody to Amanda McPeak and
terminate protective supervision was filed by the Agency.
{¶9} On May 17, 2022, a hearing on the motion was held. At the hearing, the
Agency presented testimony from Caseworker Wendy Swartz. As part of her testimony,
Muskingum County, Case Nos. CT2022-0046 and 0047 3
Caseworker Swartz testified regarding a psychological evaluation of Appellant-Mother
completed by Dr. Gary Wolfgang. Dr. Wolfgang was not present at the hearing. The trial
court also had before it the written report of the Guardian ad Litem.
{¶10} By Judgment Entry filed May 31, 2022, the trial court granted the motion to
grant legal custody to Amanda McPeak and terminated protective supervision.
{¶11} Appellant now appeals, raising the following Assignments of Error:
ASSIGNMENTS OF ERROR
{¶12} “I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
ALLOWING THE ADMISSION OF DR. WOLFGANG'S PSYCHOLOGICAL REPORT, AS
ADMITTING THE REPORT VIOLATED APPELLANT'S RIGHT TO PROCEDURAL DUE
PROCESS.
{¶13} “II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
FINDING IT WOULD BE IN THE BEST INTERESTS OF THE CHILDREN TO THEIR
MATERNAL AUNT, AMANDA McPEAK, AS SUCH A FINDING WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.”
I.
{¶14} In her first assignment of error, Appellant argues that the trial court’s
decision to allow the admission of Dr. Wolfgang’s psychological report violated her right
to procedural due process. We agree.
STANDARD OF REVIEW
{¶15} Unlike in a permanent custody proceeding where a juvenile court's standard
of review is by clear and convincing evidence, the court's standard of review in legal
custody proceedings is a preponderance of the evidence. In re S.D., 5th Dist. Stark Nos.
Muskingum County, Case Nos. CT2022-0046 and 0047 4
2013CA0081, 2013CA0082, 2013-Ohio-5752, ¶ 32; In re A.C., 12th Dist. No. CA2006-
12-105, 2007-Ohio-3350 at ¶ 14; In re Nice, 141 Ohio App.3d 445, 455, 751 N.E.2d 552(7th Dist.2001).
{¶16} We review the trial court's award of legal custody for an abuse of discretion
and recognize that a trial court has broad discretion in proceedings involving the care and
custody of children. In re R.D.J., 5th Dist. Delaware No. 12 CAF 07 0046, 2013-Ohio-
1999, ¶ 29, quoting In re Gales, 10th Dist. No. 03AP-445, 2003-Ohio-6309; In re Nice,
141 Ohio App.3d 445, 455, 2001-Ohio-3214, 751 N.E.2d 552; In re Mullen, 129 Ohio
St.3d 417, 2011-Ohio-3361, ¶ 14.
{¶17} Abuse of discretion connotes more than an error of law or judgment; rather,
it implies that the trial court's decision was unreasonable, arbitrary or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
ANALYSIS
{¶18} Appellant herein argues that her right to procedural due process was
violated when the trial court admitted Dr. Gary Wolfgang’s report into evidence when Dr.
Wolfgang was not available for cross-examination by Appellant.
{¶19} Appellant relies upon the Ohio Supreme Court case In re Hoffman, 97 Ohio
St.3d 92, 776 N.E.2d 485, 2002–Ohio–5368, wherein the Court held
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
Muskingum County, Case Nos. CT2022-0046 and 0047 5
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.
{¶20} The Hoffman court reached this decision after considering cases from
other states which found, in cases involving non-terminal custody issues, “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.” Id. at ¶ 18, 776
N.E.2d 485 et seq. :
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. 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.
Muskingum County, Case Nos. CT2022-0046 and 0047 6
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.
In State ex rel. Fisher v. Devins (1972), 294 Minn. 496, 200 N.W.2d
28, the Supreme Court of Minnesota also upheld **489 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 foster
Muskingum County, Case Nos. CT2022-0046 and 0047 7
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.
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.”
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
Muskingum County, Case Nos. CT2022-0046 and 0047 8
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.
In re Hoffman, 97 Ohio St.3d 92, 2002-Ohio-5368, 776 N.E.2d 485, ¶¶ 19-23
{¶21} Therefore, we find support for application of Hoffman exists outside of the
termination of parental rights.
{¶22} In re A.K., 9th Dist. Summit No. 26291, 2012-Ohio-4430, ¶ 23, the Ninth
District Court found the same principles applied to legal custody cases:
Although a disposition of legal custody is less drastic than permanent
custody because it does not completely sever parental rights, it “potentially
terminates a parent's constitutional right to custody of her child[ren]
because that placement “ ‘is intended to be permanent in nature.’ “ In re
A.A., 9th Dist. No. 25253, 2010–Ohio–5735, ¶ 7, quoting R.C. 2151.42. For
that reason, this Court has held that a legal custody proceeding is
“sufficiently analogous” to a permanent custody proceeding and that the
parents should have the same due process right to cross-examine the
guardian ad litem that they would be afforded at a permanent custody
hearing. Id.{¶23} Upon review of the trial court’s decision, we find that the trial court relied
upon Dr. Wolfgang’s report in making its decision:
4. Ms. Swartz further testified that Mother completed a psychological
evaluation with Dr. Gary Wolfgang consisting of four (4) appointments held
Muskingum County, Case Nos. CT2022-0046 and 0047 9
on 11-20-20, 11-30-20, 12-7-20 and 1-5-21 and Dr. Wolfgang completed
his report on 1-26-21 in which the report indicated that Mother has several
mental health conditions, which include obsessive compulsive disorder,
PTSD and generalized anxiety disorder; and that Mother would need
continued therapy and psychotropic medications to manage said disorders;
and that Dr. Wolfgang's evaluation strongly suggests that Mother's anxiety
could impair, if not limit completely, Mother's ability to parent her children;
and that there are specific concerns that Mother could project her own high
level of anxiety and fearfulness onto her children which could result in the
children's own anxiety; and that Mother's anxiety could result in her
performing tasks in a hapless and helpless manner which could result in the
needs of the children being unmet by Mother; and that the prognosis for
Mother to make the needed changes to avoid the above scenarios is at best
guarded but is probably poor.
{¶24} For the same due process considerations as set forth in Hoffman, supra,
we find Appellant herein should have had the right to cross-examine Dr. Gary Wolfgang,
since the trial court relied upon the report in making its decision.
{¶25} Appellant's first assignment of error is sustained.
II.
{¶26} In her second assignment of error, Appellant argues that the trial court’s
finding that it would be in the best interest of the children to grant legal custody to their
maternal aunt was against the manifest weight of the evidence.
Muskingum County, Case Nos. CT2022-0046 and 0047 10
{¶27} Because our disposition of Appellants' first assignment of error requires a
reversal of the trial court's judgment and a remand to that court, a decision on Appellant’s
second assignment of error would be premature at this juncture and is overruled on that
basis.
{¶28} For the foregoing reasons, the judgment of the Court of Common Pleas,
Juvenile Division, Muskingum County, Ohio, is hereby reversed and the matter is
remanded for further proceedings consistent with the law and this opinion.
By: Wise, J.
Hoffman, P. J., and
Baldwin, J., concur.
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