In re S.S. , 2018 Ohio 1249 ( 2018 )

[Cite as In re S.S., 2018-Ohio-1249.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In the Matter of: :
S.S., : No. 17AP-681
(C.P.C. No. 15JU-13229)
[S.G. :
(ACCELERATED CALENDAR)
Appellant]. :
:
In the Matter of:
: No. 17AP-682
K.N. et al., (C.P.C. No. 15JU-13227)
:
[S.G. (ACCELERATED CALENDAR)
:
Appellant].
:
D E C I S I O N
Rendered on March 30, 2018
On brief: John T. Ryerson, for appellant.
On brief: Robert J. McClaren, for appellee Franklin County
Children Services.
APPEALS from the Franklin County Court of Common Pleas,
Division of Domestic Relations, Juvenile Branch
BROWN, P.J.
{¶ 1} S.G. ("mother"), appellant, appeals the judgment of the Franklin County
Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, in which the
court granted the motions of Franklin County Children Services ("FCCS"), appellee, for
Nos. 17AP-681 and 17AP-682 2
permanent court commitment ("PCC") with regard to three sons, S.S., Ca.N., and C.N.,
Jr., and one daughter, K.N. (collectively "the children").
{¶ 2} Mother and father, Ch.N. (collectively "the parents"), are the parents of all
four children. On October 29, 2015, FCCS filed two complaints alleging the children were
dependent, the parents had drug issues, and the children failed to attend school regularly.
In January 2016, the trial court adjudicated the children dependent. FCCS was awarded
temporary court commitment.
{¶ 3} On June 29, 2016, FCCS filed a motion for PCC in each case. Based upon a
conflict between the recommendation of the children's guardian ad litem ("GAL") and the
wishes of the children, the GAL became attorney for the children, and the court appointed
a new GAL.
{¶ 4} The GAL filed reports on March 13, 2017, recommending that PCC be
granted to FCCS. On April 21, 2017, FCCS refiled their motions for PCC alleging the
children had been in the custody of FCCS for 12 months of a consecutive 22-month
period.
{¶ 5} On July 9, 2017, the GAL filed a report in each case, again recommending
PCC be granted to FCCS. On the date of trial, July 10 2017, counsel for mother requested a
one-day continuance because mother was out of town but would be traveling home that
day, and the GAL did not comply with Sup.R. 48(F) and Loc.Juv.R. 4(D) of the Court of
Common Pleas of Franklin County, Juvenile Branch, by filing her reports less than seven
days prior to the trial date. The trial court granted the continuance until the next day to
allow for mother's appearance at trial.
{¶ 6} Trial commenced on July 11, 2017. Father was present, but mother did not
appear. Mother's counsel did not ask for a continuance again based on the late filing of the
GAL reports. Testimony was adduced and evidence presented, the details of which are not
germane to the issues presently on appeal. On August 25, 2017, the trial court granted
FCCS's motions for PCC. Mother appeals the trial court's judgment, asserting the
following assignment of error:
The Court below erred in granting the Motion for Franklin
County Children Services (FCCS) for Permanent Custody, due
to the fact that the case should have been continued or the
testimony of the Guardian ad Litem stricken because of the
Nos. 17AP-681 and 17AP-682 3
failure of the Guardian ad Litem to comply with the terms of
Superintendence Rule 48 and Local Court Rule 4.
{¶ 7} Mother argues in her assignment of error the trial court erred when it did
not continue the trial or strike the GAL's testimony because the GAL did not comply with
Sup.R. 48(F) and Loc.Juv.R. 4(D) when she filed her report in each case less than seven
days prior to the trial date. Sup.R. 48(F) provides:
Reports of guardians ad litem. A guardian ad litem shall
prepare a written final report, including recommendations to
the court, within the times set forth in this division. * * * In
addition, the following provisions shall apply to guardian ad
litem reports in the juvenile and domestic relations divisions
of Courts of Common Pleas:
(1) In juvenile abuse, neglect, and dependency cases and
actions to terminate parental rights:
***
(c) Unless waived by all parties or unless the due date is
extended by the court, the final report shall be filed with the
court and made available to the parties for inspection no less
than seven days before the dispositional hearing.
(d) A guardian ad litem shall be available to testify at the
dispositional hearing and may orally supplement the final
report at the conclusion of the hearing.
Loc.Juv.R. 4(D) provides, in pertinent part:
(D)(3) Reports and court Appearances: A guardian ad litem
shall be present at all hearings pertaining to the child(ren),
and shall prepare a written final report, including
recommendations to the court, within the times set forth in
this division. * * * In addition, the following provisions shall
apply to guardian ad litem reports:
In juvenile abuse, neglect, and dependency cases and actions
to terminate parental rights:
***
(3) Unless waived by all parties or unless the due date is
extended by the court, the final report shall be filed with the
Nos. 17AP-681 and 17AP-682 4
court and made available to the parties for inspection no less
than seven days before the dispositional hearing.
(4) A guardian ad litem shall be available to testify at the
dispositional hearing and may orally supplement the final
report at the conclusion of the hearing.
Thus, both Sup.R. 48(F) and Loc.Juv.R. 4(D) require the GAL to file a final report with
the court no less than seven days before the dispositional hearing.
{¶ 8} In the present case, the GAL filed reports in each case on March 13, 2017,
recommending PCC be granted to FCCS. On July 9, 2017, the GAL filed another report in
each case, again recommending PCC be granted to FCCS. The trial was to be held the next
day, July 10 2017, but counsel for mother requested a continuance because: (1) mother
was out of town but returning that day, and (2) the GAL did not comply with Sup.R. 48(F)
and Loc.Juv.R. 4(D) by filing her reports less than seven days prior to the trial date. The
trial court granted the continuance until the next day to allow for mother's appearance at
trial. In its judgment, the trial court noted that although he admonished the GAL for
failing to comply with Sup.R. 48(F), it took no further action because the reports filed on
July 9, 2017 contained the same recommendations as the reports the GAL filed on
March 13, 2017. Furthermore, the court found the untimely GAL reports filed on July 9,
2017 were not admitted into evidence and were not considered. The court also indicated
that, even without considering the recommendation of the GAL, a legally secure
permanent placement could not be achieved for the children without an order of PCC to
FCCS.
{¶ 9} Mother contends there is no language in Sup.R. 48 or Loc.Juv.R. 4 that
provides an exception that the seven-day rule does not apply when the final report
contains the same recommendations as an earlier report. Mother also cites the oft-
repeated principle that the termination of parental rights is the family law equivalent of
the death penalty in a criminal case and, thus, parents must receive every procedural and
substantive protection the law permits. Furthermore, mother asserts any error was more
than harmless error, because she was denied a crucial seven-day period to communicate
with the GAL about her progress on the case plan, and mother was not aware of the
recommendations of the GAL until the morning of the original trial date.
Nos. 17AP-681 and 17AP-682 5
{¶ 10} In addition, mother urges this court to reject certain case law finding the
Rules of Superintendence are only "internal housekeeping rules that do not create
substantive rights in individuals or procedural law." In re M.T., 12th Dist. No. CA2016-11-
100, 2017-Ohio-1334, ¶ 44, quoting In re B.J., 12th Dist. No. CA2016-05-036, 2016-Ohio-
7440. Instead, mother encourages the court to follow Nolan v. Nolan, 4th Dist. No.
11CA3444, 2012-Ohio-3736. In Nolan, the appellate court found the trial court should
have stricken the report and testimony of the GAL in a custody determination case
because the GAL's investigation fell below the minimum standards established in Sup.R.
48 by failing to conduct proper interviews, perform visits, and investigate relevant details.
The court acknowledged that " 'Ohio appellate courts have indicated that the Rules of
Superintendence are general guidelines for the conduct of the courts and do not create
substantive rights in individuals or procedural law.' " Id. at ¶ 26, quoting In re K.G., 9th
Dist. No. 10CA0016, 2010-Ohio-4399, ¶ 11. Thus, Sup.R. 48 does not have the force of
law. Id. However, the court further stated:
We do not believe * * * that Sup.R. 48 should be ignored. And
here, where the guardian ad litem fell so far below the
minimum standards of Sup.R. 48(D)(13), we fail to see how
his testimony or report can be considered competent, credible
evidence of the Child's best interests. Accordingly, we agree
that the trial court abused its discretion by considering the
guardian ad litem's testimony and report.
Nolan at ¶ 26.
{¶ 11} After reviewing mother's arguments, we find them without merit. While we
agree that neither Sup.R. 48 nor Loc.Juv.R. 4 contains any exception that the seven-day
rule does not apply when the final report contains the same recommendations as an
earlier report, and agree that the termination of parental rights is of utmost gravity, we
adhere to the well-established tenet acknowledged by mother that the Rules of
Superintendence are only internal housekeeping rules that do not create substantive
rights in individuals or procedural law, and they do not have the force of law.
{¶ 12} With respect to Nolan, we find that case inapposite and does not provide
binding or persuasive precedent for the present case. The court in Nolan found that
"[b]ecause Sup.R. 48 does not have the force of law, we limit our holding to the specific
facts of this case. That is, we do not intend to create a bright-line rule regarding the
Nos. 17AP-681 and 17AP-682 6
minimum standards of Sup.R. 48(D)(13). Instead, based on the unique facts of this case,
we find that the guardian ad litem failed to adequately investigate the Child's situation."
Id. at ¶ 27. Thus, why Nolan is unpersuasive in the present case is two-fold: (1) the court
in Nolan limited its holding to the specific and unique facts of that case, and (2) the facts
and issues pertinent in Nolan—the minimum standards of Sup.R. 48(D)(13) and the
GAL's failure to adequately investigate the child's situation—are not at issue in the present
case. Thus, we find Nolan does not aid mother's argument here with respect to the seven-
day requirement in Sup.R. 48(F)(1)(c).
{¶ 13} Several courts have addressed the seven-day filing requirement in Sup.R.
48(F)(1)(c). In M.T., the father argued the trial court denied his due process rights to the
care, custody, and management of his child when it considered the GAL's report, which
was filed four days before the hearing date, in contravention of Sup.R. 48(F)(1)(c). The
court of appeals found no error. The court reasoned the parties had all received a copy of
the GAL's report. The court found father did not show any prejudice or explain how he
was unable to offer an adequate defense due to the untimely filing. The court noted the
report was ten double-spaced pages and not voluminous. The court also found that
"[p]erhaps most importantly for purposes of due process, the GAL testified. Father's
counsel had the opportunity to and did cross-examine the GAL. The GAL's testimony was
consistent with and essentially duplicative of much of the content of the report." Id. at
¶ 48. The court further found there was no indication in the record or in father's argument
on appeal that any particular portion of the report caused father to be unprepared to
oppose the agency's PCC motion.
{¶ 14} In B.J., the mother argued that her due process rights were violated when
the juvenile court considered the GAL's recommendations and allowed the trial court to
go forward even though the GAL's report was filed only three days before trial, in
contravention of Sup.R. 48(F)(1)(c). In reviewing the matter under the plain-error
standard, the trial court found no error. The court concluded the GAL was present at the
PCC hearing and was therefore subject to cross-examination by mother as to his report
and recommendation. The court also concluded mother's due process rights were not
violated by the late filing of the GAL's report. The court explained due process requires
notice and the opportunity to be heard, and mother had notice of the GAL's report and
Nos. 17AP-681 and 17AP-682 7
was given the opportunity to be heard on the contents of the report. Specifically, mother
was given the opportunity to cross-examine the GAL as to his report and recommendation
at the permanent custody hearing.
{¶ 15} In In re M.S., 8th Dist. No. 102127, 2015-Ohio-1847, the father argued, inter
alia, that the trial court erred in proceeding with the permanent custody hearing because
the GAL's report was filed only three days before the hearing instead of seven days before
the hearing as specified in Sup.R. 48 and Loc.Juv.R. 20 of the Court of Common Pleas of
Cuyahoga County, Juvenile Branch. However, the court rejected the argument, finding
there is nothing in the record to suggest the father was prejudiced by the GAL's untimely
submission of the report. The court explained that although the father claimed he lacked
adequate time to prepare for cross-examination of the GAL, he failed to identify any new
or surprising information in the GAL's report that he was not fully prepared to address.
The court noted the father had the opportunity to review the report before the hearing
and an opportunity to cross-examine the GAL regarding his report and recommendation
at the hearing.
{¶ 16} In In re E.W., 3d Dist. No. 14-10-31, 2012-Ohio-308, the mother argued the
trial court erred when it allowed the GAL to testify and offer a recommendation when he
did not submit a report prior to the dispositional hearing or the final custody hearing.
Proceeding under a plain-error standard, the appellate court found no error in allowing
the GAL to testify, finding that mother cross-examined the GAL at the hearing and failed
to demonstrate how she was prejudiced by the GAL's failure to file a written report or the
GAL's testimony.
{¶ 17} Although the report in M.T. was filed four days prior to the hearing, and the
reports in B.J. and M.S. were filed three days prior to the hearing, while the reports here
were filed only two days before the hearing, several of the same considerations from the
above cases are relevant here. In the current case, mother has not shown how she was
unable to present an adequate defense. The GAL's report was only four double-spaced
pages long and contains no surprising revelations. The report could be easily digested in
the two days between its filing and the hearing. Importantly, as in the above cases, the
GAL here testified at the hearing. Mother's counsel had a full and fair opportunity to
cross-examine the GAL. Mother does not claim the GAL testified any differently than
Nos. 17AP-681 and 17AP-682 8
recommended in the report, and, at the hearing, the GAL referred to the second report as
a "supplement" that contained the same recommendations as the first report. As these
cases demonstrate, contrary to mother's argument that the GAL should not have been
permitted to testify due to the untimely filing of her report, it is the testimony and cross-
examination of the GAL that actually cures the untimely filing. Mother also does not
assert that any particular portion of the report caused father to be unprepared to oppose
FCCS's PCC motions. Although mother does claim that, if the GAL had timely filed her
report, she could have used the additional days to communicate with the GAL and
demonstrate her progress, she fails to detail what she might have communicated or any
progress she would have reported to the GAL during this period. Worthy of note is that, in
E.W., the court found no error in letting the GAL testify when, in that case, the GAL did
not file any report at all prior to the hearing. Here, filing the reports two days before the
hearing did not constitute a violation of mother's due process rights. For the foregoing
reasons, we find the trial court did not err when it did not continue the hearing a second
time and allowed the GAL to testify at the hearing regarding her recommendations.
Therefore, we overrule mother's assignment of error.
{¶ 18} Accordingly, mother's single assignment of error is overruled, and the
judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations,
Juvenile Branch, is affirmed.
Judgment affirmed.
KLATT and BRUNNER, JJ., concur.
____________________