[Cite as In re D.C.J., 2012-Ohio-4154.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION Nos. 97681 and 97776
IN RE: D.C.J.
A Minor Child
(Appeal by Maternal Grandparents and Guardian Ad Litem)
JUDGMENT: REVERSED AND REMANDED
Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. CU 03109953
BEFORE: S. Gallagher, J., Stewart, P.J., and Cooney, J.
RELEASED AND JOURNALIZED: September 13, 2012 ATTORNEYS FOR APPELLANTS
For Maternal Grandparents
John H. Lawson Brownhoist Building 4403 St. Clair Avenue Cleveland, OH 44103
For Guardian Ad Litem
Pinkie Lue Clark P.O. Box 93184 Cleveland, OH 44101
ATTORNEYS FOR APPELLEE
Joseph J. Triscaro Robert P. DeMarco DeMarco & Triscaro, Ltd. 30505 Bainbridge Road Suite 225 Solon, OH 44139
Also listed:
For Amicus Curiae Advisory Committee, G.A.L. Project
Steven E. Wolkin 820 W. Superior Avenue Suite 510 Cleveland, OH 44113 SEAN C. GALLAGHER, J.:
{¶1} This is a consolidated appeal arising from the proceedings in the Cuyahoga
County Court of Common Pleas, Juvenile Division, on father’s motion to change
allocation of parental rights and responsibilities in regard to his minor child, D.C.J., and
the maternal grandparents’ motion for legal custody. In 8th Dist. No. 97681, D.C.J.’s
maternal grandparents appeal the judgment of the trial court that designated father as the
residential parent and legal custodian of D.C.J. We reverse this decision and remand the
case for a new trial. In 8th Dist. No. 97776, the guardian ad litem appeals the lower
court’s determination of guardian ad litem fees. We reverse this determination and
remand for a hearing and redetermination of guardian ad litem fees.
{¶2} D.C.J. was born in September 2003. At the time of D.C.J.’s birth, mother
and father, who were not married, resided with the maternal grandparents (hereafter
“appellants” or “the grandparents”). After a short time, father moved out of the
grandparents’ home. He eventually permanently relocated to Columbus, Ohio.
{¶3} Mother and father entered an agreed shared parenting plan on February 25,
2004. They entered a second shared parenting plan on December 21, 2005. Both plans
were adopted by the court. Father was designated as the nonresidential parent and legal
custodian of D.C.J. He was granted regular visitation, which was increased under the
second plan. {¶4} In June 2008, mother suffered a massive stroke and was hospitalized. She
passed away on January 18, 2009.
{¶5} On August 7, 2008, father filed a motion to change allocation of parental
rights and responsibilities. He also filed a motion for temporary custody. On September
15, 2008, the grandparents filed a motion to intervene and motion for temporary custody,
and a motion for legal custody. On January 20, 2009, the grandparents filed a motion for
temporary, emergency custody and motion for legal custody. The trial court granted the
grandparents temporary custody of D.C.J. and awarded father temporary parenting time.
{¶6} D.C.J. lived with his mother at the grandparents’ house for all but one year
when mother and D.C.J. lived in a nearby condominium. He continued to reside with the
grandparents during mother’s hospitalization and after her death. D.C.J. attends school
in the grandparents’ school district. There was evidence demonstrating that D.C.J.
suffers from behavioral problems and has special needs. He has received therapy,
counseling, and psychiatric services.
{¶7} Father has a criminal record, which includes several alcohol-related incidents.
He tested positive for cocaine during the pendency of the case in 2009. However,
subsequent tests were negative, and the court terminated continued drug testing on May
19, 2010. The trial court required father to participate in a drug and alcohol assessment,
which was performed by Netcare of Ohio. Netcare found father to be on the level of
“Axis 1:305:Alcohol Abuse.”
{¶8} The trial court denied the grandparents’ requests for an in camera interview of the child. The court delayed ruling on numerous motions and continued the trial date
several times. The matter finally proceeded to trial in April and May 2011. The court
required counsel for the grandparents to conduct the examination of father in the form of
a direct examination. The court limited the report and testimony of Dr. Douglas
Waltman, the court-appointed evaluator. The court also excluded portions of the
guardian ad litem’s report and testimony. On December 6, 2011, more than three years
after the matter began, the trial court issued a judgment designating father as the
residential parent and legal custodian of D.C.J. The grandparents timely appealed the
trial court’s decision.
{¶9} On December 1, 2011, the trial court issued a ruling on the motion for
approval of guardian ad litem fees. The trial court approved the award as modified by
application of reduced rates. The guardian ad litem appealed this ruling.
Appeal No. 97681
{¶10} We begin by addressing the assignments of error presented in the
grandparents’ appeal. The first assignment of error provides as follows:
[I.] The trial court erred when it failed to maintain a complete audible record of proceedings.
{¶11} Appellants argue that there were 148 “inaudibles” in the voluminous
transcript of proceedings in the trial court, that portions of the transcript are inaccurate
and unintelligible, and that a lengthy speaking objection is missing from the transcript.
{¶12} Juv.R. 37(A) states:
[t]he juvenile court shall make a record of adjudicatory and dispositional proceedings in abuse, neglect, dependent, unruly, and delinquent cases; permanent custody cases; and proceedings before magistrates. In all other proceedings governed by these rules, a record shall be made upon request of a party or upon motion of the court. The record shall be taken in shorthand, stenotype, or by any other adequate mechanical, electronic, or video recording device.
{¶13} When a trial court records an entire proceeding that results with portions of
the record being inaudible, there is no violation of Juv.R. 37(A) so long as there is no
difficulty in fully understanding the development of the proceedings regarding the facts at
issue. In re L.P.R., 11th Dist. No. 2010-L-144, 2012-Ohio-1671, ¶ 33-35; In re Mitchell,
11th Dist. Nos. 2002-L-078 and 2002-L-079, 2003-Ohio-4102, ¶ 26-30.
{¶14} Assuming the proceedings in this private custody matter were to be recorded
pursuant to Juv.R. 37(A), the record reflects that the juvenile court recorded the entire
proceeding. Although the record contains a number of inaudibles, after reviewing the
entire transcript, there is no difficulty in fully understanding the development of the
proceedings regarding the facts at issue. Thus, we find no violation of Juv.R. 37(A) and
overrule the first assignment of error.
{¶15} Appellants’ second assignment of error provides as follows:
[II.] The trial court abused its discretion when it ruled in contravention of
Ohio Evidence Rule 611 that appellants had to conduct the examination of
an adverse party in the form of a direct examination and allowed the
appellee to conduct a cross-examination of his own client.
{¶16} The witness lists filed by the grandparents’ attorney indicated calling father
upon cross-examination. However, at the time of trial, the court expressed its belief that because “you’re calling him in your case in chief, then you direct him.” Although the
objection was omitted from the transcript, several affidavits were submitted that indicated
the grandparents’ attorney protested this determination.
{¶17} The examination of father began in the form of a direct examination. While
leading questions also were used in the course of father’s examination and greater leeway
was given on redirect, the overall examination nonetheless was impeded by the trial
court’s ruling. Further, the trial court permitted father’s attorney to cross-examine his
own client.
{¶18} Later, the grandparents’ attorney moved to strike all of father’s testimony
and to permit the use of leading questions in direct examination of father. Counsel
expressed that this is an adversarial case in which his ability to confront father and his
trial strategy had been impaired and that the grandparents were denied a fair hearing.
The trial court denied the oral motion. The trial court also denied a motion for new trial
that was filed by the grandparents.
{¶19} Evid.R. 611(C) provides the following:
Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.
It is within the trial court’s discretion to allow or refuse leading questions in the
examination of a witness. Ramage v. Cent. Ohio Emergency Servs. Inc., 64 Ohio St.3d
97, 1992-Ohio-109, 592 N.E.2d 828, paragraph six of the syllabus. “‘Abuse of discretion’ implies that the court acted in an unreasonable, arbitrary, or unconscionable
manner.” Banford v. Aldrich Chem. Co., 126 Ohio St.3d 210, 2010-Ohio-2470, 932
N.E.2d 313, ¶ 38.
{¶20} In this case, the trial court improperly directed the grandparents’ attorney to
examine father in the form of a direct examination and later admonished counsel that he
could be held in contempt. The trial court’s decision was made upon its misconception
that leading questions were not permitted in the case-in-chief. Father was clearly an
adverse party to whom the exception in Evid.R. 611(C) applied. Further, the court
permitted a cross-examination by father’s own attorney, yet the rule disallows leading
one’s own witness “except as may be necessary to develop the witness’ testimony.”
While the trial court later revisited the issue and permitted some leading questions on
redirect examination, the grandparents’ ability to present their case nonetheless was
impeded.
{¶21} This was a custody dispute, and father was shown to have a strong aversion
to the grandparents. The staff notes to Evid.R. 611 recognize the trial court’s discretion
“in applying and relaxing the general rules for the introduction of testimony according to
circumstances to achieve justice” and the court’s “active duty to aid in eliciting truth so
that the verdict of the jury may approach the ends of justice.” In this case, the trial court
failed to abide by these principles.
{¶22} Accordingly, because the trial court arbitrarily dictated the form of
examination without proper regard to Evid.R. 611(C)’s exception for adverse witnesses, we find the court abused its discretion. Appellants’ second assignment of error is
sustained.
{¶23} Appellants’ third assignment of error provides as follows:
[III.] The trial court abused its discretion during a bench trial by refusing to
admit appellee’s mug shot into evidence.
{¶24} A trial court has broad discretion in the admission of evidence, and its
decision will not be disturbed unless it has clearly abused its discretion and the defendant
has been materially prejudiced thereby. State v. Issa, 93 Ohio St.3d 49, 64,
2001-Ohio-1290, 752 N.E.2d 904. Moreover, “[u]nder Evid.R. 403 and 611(A), the
admission of photographs is left to a trial court’s sound discretion.” State v. Nields, 93
Ohio St.3d 6, 25, 2001-Ohio-1291, 752 N.E.2d 859. “Even relevant evidence may be
excluded under Evid.R. 403(A), if its ‘probative value is substantially outweighed by the
danger of unfair prejudice, of confusion of the issues, or of misleading the jury.’” State
v. Myers, 97 Ohio St.3d 335, 2002-Ohio-6658, 780 N.E.2d 186, ¶ 91, quoting Evid.R.
403(A).
{¶25} We find that the trial court could have reasonably found that the probative
value of the mug shot was outweighed by its prejudicial impact. The trial court
recognized that the booking picture, which was taken three years prior to trial, “only tells
a thousand words for the day that it was taken.” Finding no abuse of discretion,
appellants’ third assignment of error is overruled.
{¶26} Appellants’ fourth assignment of error provides as follows: [IV.] The trial court abused its discretion by failing to permit the court’s
own expert psychologist to rely on the findings of the court’s prior expert
psychologist.
{¶27} Dr. Douglas Waltman from the juvenile court’s diagnostic clinic conducted
an updated psychological evaluation and was called to testify in the matter. The
grandparents contest the trial court’s ruling that Dr. Waltman could not rely on the
findings of the initial evaluator, Dr. Frank Ezzo. Dr. Ezzo was not called to testify, and
his report was not submitted into evidence at trial.
{¶28} Evid.R. 703 provides: “[t]he facts or data in the particular case upon which
an expert bases an opinion or inference may be those perceived by the expert or admitted
in evidence at the hearing.” The Ohio Supreme Court has held that “[w]here an expert
bases his opinion, in whole or in major part, on facts or data perceived by him, the
requirement of Evid.R. 703 has been satisfied.” State v. Solomon, 59 Ohio St.3d 124,
570 N.E.2d 1118 (1991), syllabus. A doctor’s opinion has been found to be “based on
facts or data perceived by him” within the meaning of Evid.R. 703, despite being partially
based on reports not in evidence, where the doctor also conducted a personal
examination. Id. at 126; State v. Mack, 73 Ohio St.3d 502, 512, 1995-Ohio-273, 653
N.E.2d 329; Cox v. MetroHealth Med. Ctr. Bd. of Trustees, 8th Dist. No. 96848,
2012-Ohio-2383, ¶ 57-59; Czubaj v. E.B.P., 8th Dist. No. 65517, 1995 Ohio App. LEXIS
4522 (Oct. 12, 1995), *38-39.
{¶29} In the instant case, Dr. Waltman testified that he reviewed Dr. Ezzo’s evaluation for background information and that he reviewed affidavits from other
professionals in the case, as well as other collateral information. However, Dr. Waltman
also performed his own diagnostic and clinical interviews, psychological testing, and
observational assessment. He testified that he personally interviewed father, both
grandparents, and D.C.J. He also had the opportunity to conduct interactional interviews
with both D.C.J. and his father and D.C.J. and the grandparents. His evaluation utilized
psychological test results of father and the grandparents that included use of the
Minnesota Multiphasic Personality Inventory-2nd Edition-RF (MMPI-2-RF) and the NEO
Personality Inventory-Revised (NEO PI-R). Our review of the record reflects that Dr.
Waltman relied heavily on his own observations and expertise in rendering his evaluation
and that his expert opinion was primarily based on facts or data perceived by him.
Accordingly, the trial court abused its discretion to the extent it precluded Dr. Waltman
from basing his opinion, in part, on Dr. Ezzo’s evaluation and in limiting the report and
testimony of Dr. Waltman. Appellants’ fourth assignment of error is sustained.
{¶30} The grandparents’ fifth assignment of error provides as follows:
[V.] The trial court abused its discretion by permitting an improperly
conducted Daubert examination of the court’s own expert witness.
{¶31} At trial, father’s attorney objected to the evaluation and testimony of Dr.
Waltman pursuant to Evid.R. 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Father’s attorney’s argument
was based upon Dr. Waltman’s reliance on affidavits from other professionals and other collateral sources in the matter. It was requested at the very least, that Dr. Waltman’s
testimony be limited to his observational assessments and the psychological testing that
was performed.
{¶32} Insofar as the grandparents argue that father did not file a pretrial motion in
limine or request a pretrial hearing, they fail to cite, nor have we found, any legal
authority requiring that a Daubert objection be raised prior to trial.
{¶33} “Trial courts have broad discretion in determining the admissibility of expert
testimony, subject to review for an abuse of discretion. * * * In general, courts should
admit such testimony when material and relevant, in accordance with Evid.R. 702 * * *.”
Terry v. Caputo, 115 Ohio St.3d 351, 2007-Ohio-5023, 875 N.E.2d 72, at ¶ 16.
{¶34} Evid.R. 702, which governs expert testimony, provides the following:
A witness may testify as an expert if all of the following apply:
(A) The witness’ testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons;
(B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;
(C) The witness’ testimony is based on reliable scientific, technical, or other
specialized information. * * *.
{¶35} In Daubert, 509 U.S. 579, 125 L.Ed.2d 469, 113 S.Ct. 2786, the United
States Supreme Court listed several factors to be considered in determining the reliability
of scientific evidence but recognized that the inquiry is flexible. The Ohio Supreme Court adopted the Daubert standard in Miller v. Bike Athletic Co., 80 Ohio St.3d 607,
1998-Ohio-178, 687 N.E.2d 735.
{¶36} The United States Supreme Court later clarified that the Daubert standard of
evidentiary reliability extends not only to “scientific” testimony, but to all expert
testimony. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147-149, 119 S.Ct. 1167,
143 L.Ed.2d 238 (1999). The Court further recognized the flexible nature of the
reliability inquiry and that the specific factors enumerated in Daubert do not all
necessarily apply in every instance. Id. at 150-151. In some cases, “the relevant
reliability concerns may focus upon personal knowledge or experience.” Id. at 150.
Thus, the Daubert standard has been found to apply to all expert testimony, including
from psychologists. State v. Abner, 2d Dist. No. 20661, 2006-Ohio-4510, ¶ 32; see also
In re Kaylee P., 6th Dist. No. F-04-011, 2004-Ohio-3807; In re Lauren P., 6th Dist. No.
L-03-1252, 2004-Ohio-1656.
{¶37} There is no question that Dr. Waltman was testifying to matters beyond the
knowledge of a lay person and was qualified as an expert. The record reflects that Dr.
Waltman was well qualified and had ample experience in clinical psychology and
chemical dependency. He provided his educational background and testified that he has
been a licensed clinical psychologist since 1985. He also has been a chemical
dependency counselor for 17 years and is licensed to do chemical dependency
evaluations. He has been a consultant with the juvenile court diagnostic clinic for
approximately 15 years. He has a private practice and his areas of specialization are in chemical dependency, domestic violence, anger management, and the assessment and
treatment of children with attention deficit disorder.
{¶38} Dr. Waltman testified to the standard practices he follows for conducting his
evaluations. He testified to the interactional interviews and psychological testing that he
performs. He indicated that he also reviews any collateral information that is made
available to him and that all parties are told that they may submit such collateral
documentation.
{¶39} Dr. Waltman found that D.C.J. has behavioral problems that require special
treatment. While Dr. Waltman considered the sworn affidavits of other professionals in
the matter, his assessment was also based on his personal observations and expertise. Dr.
Waltman conducted his own interviews, and he personally observed behavior of D.C.J.
that was consistent with the diagnoses of the other professionals. Dr. Waltman testified
that father did not agree with his son’s diagnoses, that father took a very dim view of his
son receiving any kind of treatment, and that he believed father would neglect his son’s
special needs.
{¶40} Dr. Waltman also found that father met the clinical criteria for alcohol abuse
disorder. While the finding was based in part on information contained in Dr. Ezzo’s
report concerning father’s continued alcohol use and uncorroborated information
provided by the grandparents regarding father’s drinking during D.C.J.’s visits, Dr.
Waltman also relied on father’s history of multiple alcohol-related arrests as well as the
diagnosis of Netcare. {¶41} Police reports regarding father’s prior alcohol-related incidents, father’s
drug test results, and the Netcare assessment were matters admitted into evidence. See
Evid.R. 703. Dr. Waltman agreed with the diagnosis by Netcare of Axis I, 305.00,
alcohol abuse by history. Dr. Waltman recommended that father enter into a chemical
dependency treatment program with a goal of obtaining stable sobriety from alcohol. He
recommended that D.C.J. remain in the custody of the grandparents. His professional
opinion is that it is “highly unlikely that [father] would meet [D.C.J.’s] special needs,”
that father’s use of alcohol “would interfere with his ability to adequately care for his son
and potentially would put his son at risk,” and that father “has demonstrated a marked
incapacity to work cooperatively with the grandparents.”
{¶42} Our review of the record reflects that Dr. Waltman had ample qualification
and experience, that he used accepted practices in performing his evaluation, that his
findings were based on his personal observations as well as the use of his expertise in
reviewing the affidavits of other professionals and other collateral matters, and that his
testimony was relevant and reliable. Father was free to question Dr. Waltman
concerning the documents and facts supporting his findings, and the court could assess
the weight and credibility to be given to the conclusions reached by Dr. Waltman.
{¶43} As the Ohio Supreme Court has recognized,
Relevant evidence based on valid principles will satisfy the threshold reliability standard for the admission of expert testimony. The credibility to be afforded these principles and the expert’s conclusions remain a matter for the trier of fact. The reliability requirement in Evid.R. 702 is a threshold determination that should focus on a particular type of scientific evidence, not the truth or falsity of an alleged scientific fact or truth. State v. Nemeth, 82 Ohio St.3d 202, 211, 1998-Ohio-376, 694 N.E.2d 1332. Moreover,
“[t]he Staff Note to Evid.R. 702 directs that questions of reliability are to be directed at
principles and methods used by an expert in reaching his or her conclusions, rather than at
the correctness or credibility of the conclusions themselves.” State v. Conway, 108 Ohio
St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶ 121.
{¶44} Accordingly, we find the trial court abused its discretion in limiting the
testimony of Dr. Waltman and his report. Appellants’ fifth assignment of error is
{¶45} Appellants’ sixth assignment of error provides as follows:
[VI.] The trial court abused its discretion by failing to consider or admit the
portion of the guardian ad litem’s testimony and report pertaining to the
allocation of parental rights and responsibilities.
{¶46} Upon the conclusion of the guardian ad litem’s testimony at trial, father’s
attorney moved to strike the guardian ad litem’s report and testimony. Father argued that
the guardian ad litem failed to meet various duties set forth in Sup.R. 48(D) and that the
court could not consider the recommendation of the guardian ad litem in determining the
best interest of the child because the report was not admitted as an exhibit pursuant to
Sup.R. 48(F)(2). After considering the arguments of counsel, the court denied father’s
motion “except as it relates to any statement as to what the guardian ad litem believes to
be in the best interest of the child, as it was not offered, and therefore, it could not be
moved into evidence, either in part or in whole, per Superintendence Rule 48.” {¶47} Sup.R. 48 states that its provisions “shall apply in all domestic relations and
juvenile cases in the courts of common pleas where a court appoints a guardian ad litem
to protect and act in the best interest of a child.” Sup.R. 48(A). Sup.R. 48(D) sets forth
various responsibilities of the guardian ad litem. Sup.R. 48(F) provides in pertinent part,
A guardian ad litem shall prepare a written final report, including recommendations to the court, within the times set forth in this division. * * *
(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. * * *. A copy shall be provided to the court at the hearing. * * *.
(2) In domestic relations proceedings involving the allocation of parental
rights and responsibilities, the final report shall be filed with the court and
made available to the parties for inspection no less than seven days before
the final hearing unless the due date is extended by the court. * * * A copy
of the final report shall be provided to the court at the hearing. The court
shall consider the recommendation of the guardian ad litem in determining
the best interest of the child only when the report or a portion of the report
has been admitted as an exhibit.
{¶48} Assuming arguendo that Sup.R. 48(F)(2) applies to a juvenile court custody
proceeding, we do not find that it was grounds for excluding the guardian ad litem’s best
interest determination. Because Sup.R. 48 is a general guideline that does not have the
force of statutory law, the father does not have any substantive right to enforce it. Rice v. Rice, 5th Dist. No. 10 CA F 11 0091, 2011-Ohio-3099, ¶ 40. Thus, similar objections as
presented by father have been rejected by other courts:
Rules of Superintendence are only general guidelines for the court to follow at its discretion and do not give rise to substantive rights. Many courts have considered this particular argument in the context of application of this rule in parental rights cases and have dismissed the argument. Allen v. Allen, 11th Dist. No. 2009-T-0070, 2010-Ohio-475, ¶ 29-31; In re E. W., 4th Dist. Nos. 10CA18, 10CA19, 10CA20, 2011-Ohio-2123, ¶ 15; and In re B.K., 12th Dist. No. CA2010-12-324, 2011-Ohio-4470, ¶ 23.
In re K.V., 6th Dist. No. L-11-1087, 2012-Ohio-190, ¶ 27.
{¶49} As explained by another court,
The “Rules of Superintendence are designed (1) to expedite the disposition of both criminal and civil cases in the trial courts of this state, while at the same time safeguarding the inalienable rights of litigants to the just processing of their causes; and (2) to serve that public interest which mandates the prompt disposition of all cases before the courts.” State v. Singer (1977), 50 Ohio St.2d 103, 109-110, 362 N.E.2d 1216. “They are not the equivalent of rules of procedure and have no force equivalent to a statute. They are purely internal housekeeping rules which are of concern to the judges of the several courts but create no rights in individual defendants.” State v. Gettys (1976), 49 Ohio App.2d 241, 243, 360 N.E.2d 735. Accord State v. Navedo, 11th Dist. No. 2007-L-094, 2008-Ohio-2324, at P18, citing State v. Kowalski, 11th Dist. No. 93-P-0057, 1995 Ohio App. LEXIS 1089, at *16-*17.
Allen v. Allen, 11th Dist. No. 2009-T-0070, 2010-Ohio-475, ¶ 31.
{¶50} In considering the arguments of counsel, the trial court referenced Cuyahoga
C.P. Loc.Juv.R. 20, which requires the guardian ad litem to file a written report in
permanent custody cases where a written report is prepared and requires the guardian ad
litem to perform his or her duties in accordance with Cuyahoga C.P. Loc.Juv.R. 17(G).
Loc.Juv.R. 20 places an obligation on the parties to provide the guardian ad litem with any relevant information wished to be considered as part of the guardian ad litem’s
investigation. The enforcement of local rules is a matter within the sound discretion of
the court. Allen at ¶ 33.
{¶51} In the present case, the guardian ad litem filed her report in November 2010,
five months before trial. Both the court and counsel had the opportunity to question the
guardian ad litem about her report. Further, the trial court in a proper exercise of
discretion could have allowed the admission of the report over father’s objection. Under
these circumstances, we find the trial court abused its discretion in limiting the testimony
and report of the guardian ad litem. Appellants’ sixth assignment of error is sustained.
{¶52} Appellants’ seventh assignment of error provides as follows:
[VII.] The trial court’s decision regarding the allocation of parental rights
and responsibilities was against the sufficiency and manifest weight of
evidence.
{¶53} We have already found that the trial court committed numerous errors in the
underlying proceedings. The court abused its discretion with regard to the form of
questioning permitted with regard to father’s testimony, by limiting the testimony and
report of Dr. Waltman, and by failing to consider portions of the testimony and report of
the guardian ad litem. We find that these errors were not harmless and that the
grandparents were deprived of their right to a fair trial. Basic notions of due process and
fairness require that we reverse and remand the case for a new trial. Accordingly, we do
not need to make a determination of whether the court’s judgment was supported by some competent, credible evidence. We overrule this assignment of error as moot.
{¶54} Appellants’ eighth assignment of error provides as follows:
[VIII.] The trial court erred by refusing to conduct an in camera interview
pursuant to O.R.C. 3109.04(B)(1).
{¶55} In order to address the assigned error, we first must consider the applicable
law to a child custody action arising in juvenile court between a parent and nonparent.
{¶56} R.C. 2151.23(A)(2) vests exclusive original jurisdiction in the juvenile court
over custody disputes concerning “any child not a ward of another court of this state[.]”
This typically encompasses custody disputes between parents and nonparents. Scavio v.
Ordway, 3d Dist. No. 17-09-07, 2010-Ohio-984, ¶ 18. “[R.C. 2151.23], unlike R.C.
3109.04, does not state a test or standard to be used by the juvenile courts in determining
child custody cases.” Hockstok v. Hockstok, 98 Ohio St.3d 238, 2002-Ohio-7208, 781
N.E.2d 971, ¶ 15. However, Ohio case law offers guidance on the issue.
{¶57} In custody cases between a parent and nonparent, there is an overriding
principle “that natural parents have a fundamental liberty interest in the care, custody, and
management of their children.” Hockstok at ¶ 16. Further, a parent who is deemed
suitable has a paramount right to the custody of his or her minor child unless they have
forfeited that right. Id. at ¶ 21. Thus, “a finding of parental unsuitability has been
recognized * * * as a necessary first step in child custody proceedings between a natural
parent and nonparent.” Id. at ¶ 18.
{¶58} In In re Perales, 52 Ohio St.2d 89, 369 N.E.2d 1047 (1977), the Ohio Supreme Court held:
In an R.C. 2151.23(A)(2) child custody proceeding between a parent and a nonparent, the hearing officer may not award custody to the nonparent without first making a finding of parental unsuitability — that is, without first determining that a preponderance of the evidence shows that the parent abandoned the child, that the parent contractually relinquished custody of the child, that the parent has become totally incapable of supporting or caring for the child, or that an award of custody to the parent would be detrimental to the child.
Id. at syllabus. We emphasize that “[t]he appropriate analysis is whether the natural
father is unsuitable as custodian, not whether someone else is more suitable.” In re S.M.,
160 Ohio App.3d 794, 2005-Ohio-2187, 828 N.E.2d 1044, ¶ 31 (8th Dist.), McMonagle,
J., concurring. Nonparents seeking custody have the burden of demonstrating a parent’s
unsuitability. Scavio, 3d Dist. No. 17-09-07, 2010-Ohio-984, at ¶ 26.
{¶59} Where a parent is found suitable for custody and the parent has not
previously lost custody of the child to a nonparent, there is no need to further determine
that a change in circumstances has occurred or that custody is in the best interest of the
child. Scavio at ¶ 23. However, where a parent is found unsuitable, the juvenile court
must determine whether an award of legal custody to the nonparent is in the best interest
of the child. See Reynolds v. Goll, 75 Ohio St.3d 121, 124-125, 661 N.E.2d 1008 (1996).
This is in accordance with R.C. 2151.23(F)(1), which requires that the juvenile court
exercise its jurisdiction in child custody matters in accordance with R.C. 3109.04. R.C.
3109.04(B)(1), provides that in any original grant or subsequent modification of custody,
the court shall consider the best interest of the child. Additionally, R.C. 3109.04(B)(1)
instructs that the court “upon the request of either party, shall interview in chambers any or all of the involved children regarding their wishes and concerns with respect to the
allocation.”
{¶60} In this case, the grandparents twice requested the trial court to conduct an in
camera interview with D.C.J. Because the trial court would have to make a best interest
determination if father is deemed unsuitable, this request was warranted under R.C.
3109.04(B)(1). The trial court is statutorily mandated to conduct such a hearing upon the
request of either party. We also recognize that R.C. 2151.23 does not address whether
the court should conduct an in camera interview of the child with regard to a suitability
determination. Given the nature of the inquiry, we find an in camera interview was
warranted under the circumstances of this case. Accordingly, we find the trial court
erred by failing to conduct an in camera interview of the child. Appellants’ eighth
assignment of error is sustained.
{¶61} Finally, we admonish the lower court for failing to promptly handle the
proceedings in this action. This matter was pending for more than three years before a
judgment was rendered with numerous delays in the trial court’s rulings on the matters
before it. Trial courts should be mindful of the interest in achieving a prompt resolution
in child custody matters.
Appeal No. 97776
{¶62} The guardian ad litem has presented two assignments of error for our
review, which provide as follows:
I. The trial court abused its discretion in failing to conduct a hearing on guardian ad litem fees as provided by Local Rule 17. II. The trial court abused its discretion by reducing the hourly rate of the
guardian ad litem.
{¶63} An order to compensate a guardian ad litem is reviewed under an abuse of
discretion standard. Robbins v. Ginese, 93 Ohio App.3d 370, 372, 638 N.E.2d 627 (8th
Dist.1994). Cuyahoga C.P. Loc.Juv.R. 17(D) provides in pertinent part:
(1) Guardians ad litem shall be compensated at the authorized rate for in-court and out-of-court time not to exceed the maximum fee total in effect at the time of acceptance of the assignment. * * *.
(2) Upon motion for guardian ad litem fees to be assessed to the parties, the
Court shall conduct a hearing and determine if the fee sought by the
guardian ad litem is reasonable and necessary and the amount each party
shall contribute toward the fee. The Administrative Judge may, for good
cause and with notice, modify said schedule in accordance with budget
restraints.
Pursuant to Loc.Juv.R. 17(D)(3), the maximum compensation to which a guardian ad
litem is entitled, is $250 per hour. Further, Loc.Juv.R. 17(D)(5) provides a mechanism
whereby a GAL can be compensated for “extraordinary fees.”
{¶64} In this case, the court found that the amount of the fees sought, which was at
the rate of $175 per hour and totaled $19,109.50, was not reasonable “as the amount has
no differentiation between out of court and in court hours.” The court approved the
award at a modified rate of $125 per hour for 34.8 hours of in-court services, and $75 per
hour for 74.4 hours of out-of-court services, for a total fee of $9,930. {¶65} The trial court did not hold a hearing, nor did it allow the guardian ad litem
an opportunity to address the court before reducing the hourly rate for fees. Although the
court found that the “the services provided were reasonable and necessary,” it failed to
explain how it formulated the modified rate or offer an adequate explanation for the
application of a reduced rate.
{¶66} This court has previously recognized,
[T]he following guidelines from Ohio Code Prof.Resp. DR 2-106(B) are useful to the situation at hand: 1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; 2) The fee customarily charged in the locality for similar legal services; 3) The amount involved and the results obtained; 4) The time limitations imposed by the client or by the circumstances; 5) The nature and length of the professional relationship with the client; and 6) The experience, reputation, and ability of the lawyer.
In re Thomas, 8th Dist. Nos. 86375 and 86939, 2006-Ohio-3324, ¶ 18. We also
recognize that the domestic relations division sets the hourly rate for guardians ad litem at
$125 per hour. Cuyahoga C.P. Loc.Dom.Rel.R. 35(E).
{¶67} While the trial court’s determination is discretionary, we find the trial court
abused its discretion by failing to conduct a hearing and in arbitrarily reducing the hourly
rate for guardian ad litem’s fees in this matter. Accordingly, we sustain the assignments
of error and remand the matter for a hearing where the above guidelines should be
considered. Conclusion
{¶68} In 8th Dist. No. 97681, we find the trial court committed numerous errors in
the trial of this matter that require us to reverse the decision of the trial court and remand
the matter for a new trial.
{¶69} In 8th Dist. No. 97776, we find the trial court abused its discretion by
modifying the guardian ad litem’s fees without holding a hearing and by arbitrarily
applying a reduced hourly rate to the services provided.
{¶70} Judgment reversed; case remanded for a new trial and a guardian ad litem
fee hearing. The lower court is instructed to give this case expedited treatment upon
remand.
It is ordered that appellants recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
COLLEEN CONWAY COONEY, J., CONCURS; MELODY J. STEWART, P.J., CONCURS IN JUDGMENT ONLY