The Supreme Court ruled that a parent in a legal custody proceeding has fewer legal safeguards than a parent in a permanent custody proceeding.

The Supreme Court ruled that a parent in a legal custody proceeding has fewer legal safeguards than a parent in a permanent custody proceeding.

The Supreme Court of Ohio ruled today that a parent in a legal custody proceeding in juvenile court does not have the same legal safeguards as a parent facing the loss of parental rights in a permanent custody proceeding.

In a unanimous opinion, the Supreme Court reversed a Fifth District Court of Appeals decision. The appeals court found that the due process rights of a Muskingum County woman identified as “ K.G”  were violated during a May 2022 legal custody hearing when a psychologist’s report questioning her parenting ability was admitted without the psychologist being present for her attorney to cross-examine.

Writing for the Supreme Court, Justice Jennifer Brunner explained that the Fifth District relied on precedent in cases dealing with permanent custody, by which a parent may lose all parental rights when a court terminates them. In a permanent custody case, a parent is entitled to “every procedural and substantive protection” the law allows, the opinion noted.

Noting the difference between legal and permanent custody proceedings, Justice Brunner wrote that when a parent loses the right to physical control over a child but does not lose all parental rights, state law provides fewer procedural safeguards than for loss of permanent custody. Therefore, it was acceptable for the juvenile court to issue a ruling in a legal custody proceeding relying on the psychologist’s report without the psychologist being present, the Court concluded.

Protective Services Concerned About Prematurely Born Twins
In September 2020, K.G. gave birth to twins who were born prematurely, and each weighed less than 5 pounds at birth. The hospital where the children were born contacted Muskingum County Adult and Child Protective Services, raising concerns about the birth mother, K.G.’s, ability to care for them.

After the hospital reported K.G. having a mental health episode, the agency received temporary custody of the twins through the Muskingum County Juvenile Court. The children were placed in the care of their maternal aunt. The juvenile court conducted a hearing on the custody of the children and ordered a psychological evaluation of K.G.

K.G. met four times with psychologist Gary L. Wolfgang, who submitted a report to the juvenile court in January 2021. The court provided attorneys for K.G. and the protective services agency with copies to review with their clients. In June 2021, the agency sought to grant temporary legal custody of the twins to their aunt and cited Wolfgang’s report as part of its reasoning for the move.

The juvenile court issued an entry adopting the change in legal custody and, in its findings, also cited the agency’s report that included references to Wolfgang’s report. Wolfgang had raised concerns about K.G.’s ability to parent.

Legal Custody Hearing Contested
In May 2022, the juvenile court conducted a hearing to consider moving the aunt’s oversight from temporary legal custody to legal custody. Before the hearing, the agency notified K.G. of the witnesses who were expected to testify, and Wolfgang was not listed. At the hearing, the agency requested that one of its caseworkers read a portion of Wolfgang’s report into the record.

K.G.’s attorney objected. K.G.’s counsel conceded the proceeding was a dispositional hearing, which is less formal than other court hearings, and that Wolfgang’s report was admissible without Wolfgang being present for questioning. Her counsel cited “more of a due process objection on fundamental fairness.”  Counsel for the agency stated it would only have the agency witness quote from Wolfgang’s report without giving an opinion on it. The court stated that it would not admit the report but told the parties it would consider it in its decision. No one objected to that.

The Muskingum County prosecutor argued that the witness simply read from a report already submitted to the court. The judge agreed with the prosecutor and admitted portions of the report. The juvenile court granted legal custody to the aunt and awarded K.G. visitation rights with her children.

K.G. appealed to the Fifth District. Citing the Supreme Court’s 2002 In re Hoffman decision, the appeals court reversed the juvenile court’s decision. The Muskingum County Prosecutor’s Office appealed the decision to the Supreme Court, which agreed to hear the case.

Supreme Court Analyzed Custody Hearing Law
Justice Brunner explained that under R.C. Chapter 2151, parents who are part of custody proceedings in juvenile courts are entitled to a fair hearing with appropriate safeguards of their constitutional rights. The opinion noted that parents have a fundamental right to parent their children, while children have basic rights to adequate care and to be free from abuse and neglect. Juvenile courts have broad discretion to craft orders protecting the best interests of children, the opinion explained.

The Court noted that the aunt was granted legal custody under R.C. 2151.011(B)(21), which gave her “the right to physical care and control of the children.” However, K.G. retained her parental rights, and the law still allows K.G. to seek to modify or terminate the legal custody order.

Because K.G. retained her parental rights, “the law provided her far different procedural safeguards in the legal-custody proceeding than those that would be afforded a parent in a permanent-custody proceeding through which parental rights could be completely terminated,” the Court stated.

Under juvenile court rules and R.C. 2151.35(B)(2), the juvenile court may consider hearsay evidence , such as the psychologist’s report, without Wolfgang being present to testify, the opinion noted.

The Court found K.G.’s circumstances were significantly different than those of the parents in the Hoffman decision. In Hoffman, the parents were facing the termination of parental rights through a permanent custody hearing, and the court prohibited a parent’s attorney from cross-examining a guardian ad litem who presented a report to the court. Unlike Wolfgang, the Court noted that the guardian in Hoffman was present at the hearing, participating in the case, and available to be cross-examined had the judge allowed it.

The Supreme Court found that the Fifth District incorrectly erred when it applied the fundamental fairness issues of Hoffman to K.G.’s case. In Hoffman, the parent was barred from cross-examining the witness, the opinion noted. While in K.G.’s legal custody hearing,  K.G. was not prevented from questioning Wolfgang, the Court ruled, having had Wolfgang’s report for more than a year before the legal custody hearing and having made no attempts to contact Wolfgang or subpoena him to appear at the hearing.

“There is simply nothing in the record to demonstrate that K.G. was denied an opportunity to cross-examine Dr. Wolfgang,” the Court stated.

Further, the Court ruled that K.G. presented no evidence of how she was harmed by the juvenile court following the law, which allowed the report to be presented. The Fifth District did not explain why cross-examining Wolfgang at the hearing would have been so critical to K.G.’s case to warrant reversing the juvenile court’s decision, the Court stated.

The Court remanded the case to the Fifth District to consider other legal arguments K.G. raised in her appeal.

2023-0514. In re R.G.M., Slip Opinion No. 2024-Ohio-2737.

View oral argument video of this case.

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