The Family Court and CPS Violated the 4th Amendment Right of this Young Mother


The Guardian at Lidem was put on the stand was not sworn in- and gave testimony on behalf of CPS, when he was finished the judge dismissed him and the defense was not allowed to cross examine him. The court stated that he was just giving a summary and that his testimony would not be used to determine the case when in fact it was. The appeals court ruled that the family court and CPS had indeed violated the defenese’s 4th amendment rights.

[Cite as In re J.M., 2008-Ohio-6357.]
STATE OF OHIO, HARRISON COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
IN THE MATTER OF:
JAYDIS MUZE, A NEGLECTED AND
DEPENDENT CHILD.
)))))))
CASE NO. 08-HA-1
OPINION
CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common
Pleas of Harrison County, Ohio
Juvenile Division
Case No. 20073027
JUDGMENT: Reversed and remanded
APPEARANCES:
For Plaintiff-Appellee Rhonda L. Greenwood
Assistant Prosecuting Attorney
111 W. Warren Street
P.O. Box 248
Cadiz, Ohio 43907
For Defendant-Appellant Attorney Kathleen Allmon Stoneman
63 Second Street S.W.
P.O. Box 235
Carrollton, Ohio 44615
JUDGES:
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Dated: December 5, 2008

DONOFRIO, J.
{¶1} Appellant, A.M., appeals a decision of the Harrison County Common
Pleas Court, Juvenile Division, terminating her parental rights over her son, J.M., and
granting permanent custody of him to appellee, Harrison County Department of Job
and Family Services (DJFS). She argues that the trial court’s finding that she had
abandoned her son and that DJFS had expended reasonable efforts towards
reunification were against the manifest weight of the evidence and an abuse of
discretion. She also argues that the trial court’s reliance on the guardian ad litem’s
report in reaching its decision violated her Fourteenth Amendment procedural due
process rights.
{¶2} On September 11, 2006, fifteen-year-old A.M. gave birth to J.M. (Tr.
29.) Since A.M. tested positive for drugs when she was admitted to the hospital to
give birth to J.M., a referral was made to DJFS. (Tr. 28, 252.) In November 2006,
A.M., along with her mother, agreed to voluntary services from DJFS. A case plan
was developed for A.M.’s mother, A.M. and J.M., with the goal of reunification. A.M.’s
case plan goals included: a mental health assessment and counseling, if needed;
drug and alcohol assessment and counseling; Help Me Grow services; and parent
education. (Tr. 31, 86-87.)
{¶3} On December 21, 2006, A.M.’s mother agreed to relinquish custody of
A.M. and J.M. to DJFS through a voluntary thirty-day agreement with the previously
initiated voluntary services and case plan to continue. (Tr. 29.) A.M. and J.M. were
placed in foster care together. (Tr. 40.) On January 17, 2007, DJFS filed complaints
of dependency with respect to A.M. and J.M. and both remained in the temporary
custody of DJFS until February 26, 2007, when they were both returned to A.M.’s
mother with DJFS retaining court-ordered protective supervision.
{¶4} Due to a previous unruly determination, A.M. was on probation. (Tr.
275.) On May 8, 2007, a day when A.M. was supposed to be in school, A.M.’s mother
called A.M.’s probation officer, Laurie McAfee, and reported that A.M. had left the
home without permission, taking J.M. with her. (Tr. 276.) Officer McAfee, along with
the assistance of Sergeant Mark Smith of the Cadiz Police Department, went to
A.M.’s home in search of her. (Tr 65.) A.M.’s mother indicated that A.M. was seen
walking in town. (Tr. 66.) Sgt. Smith and Officer McAfee located A.M. in town walking
with a friend and pushing J.M. in a stroller. (Tr. 66, 277, 279.) McAfee questioned
A.M. about why she was not in school and inquired about what was going on. (Tr.
66.) A.M. indicated that she was having problems with her mother and that she
needed help. (Tr. 66) Sgt. Smith contacted Children Services and they sent
Demetrius Carrothers. (Tr. 66, 280.) A.M.’s aunt arrived at the scene and she let her
hold J.M. (Tr. 70, 235, 281) When it became apparent to A.M. that she and J.M. were
going to be placed in the care of Children Services, she fled the area. (Tr. 67, 70-71,
236, 281.) J.M. was placed in foster care. (Tr. 40-41.)
{¶5} Unable to locate A.M., Sgt. Smith had her entered into LEADS as a
missing/runaway juvenile. (Tr. 69.) A.M. went to an ex-boyfriend’s house in the Akron
area and then later moved to Barberton. (Tr. 237-238, 263.) While there, A.M. made
phone calls to her grandmother. Once the grandmother determined that A.M. was in
Barberton, she notified their police department and DJFS. (Tr. 190, 203.) Barberton
Police Department recovered A.M. on August 27, 2007, and Officer McAfee and a
Cadiz Police Department officer went to Barberton and returned A.M. to Harrison
County. (Tr. 67.) A.M. was then returned to her mother’s custody. (Tr. 39.) J.M.
remained in foster care.
{¶6} On November 30, 2007, A.M.’s mother kicked her out of her home at
which point she went to live with her grandmother. (Tr. 88.) A.M. attributed the
incident to a fight she got into with her mother’s boyfriend and his giving her mother
an ultimatum that either he or her kids had to go. (Tr. 243-244.) A.M.’s grandmother
would later obtain legal custody of her in March 2008.
{¶7} Due to A.M.’s lack of progress on the case plan, on April 9, 2008, DJFS
moved for permanent custody of J.M. based on the ninety-day period of
abandonment that resulted from A.M.’s running away and that it would be in J.M.’s
best interests for DJFS to have permanent custody. A.M. opposed the motion
alleging that she had made enough progress on the case plan to warrant a six-month
extension.
{¶8} The matter proceeded to a hearing on May 6, 2008, and May 20, 2008.
At the May 6th hearing, before proceeding on DJFS’s motion for permanent custody,
the trial court denied A.M.’s grandmother’s motion to terminate temporary custody
and for legal custody of J.M.. The court limited her role to that of A.M.’s legal
guardian and custodian only. On May 6, 2008, DJFS presented the testimony of eight
witnesses: (1) Courtney Walker, A.M.’s first DJFS case worker; (2) Sergeant Mark
Smith, Cadiz Police Department; (3) Valerie Warrington; (4) Linda Shoppe, A.M.’s
second DJFS case worker; (5) Mark Kowalski, Harrison Central High School
Assistant Principal; (6) Robert Brooks, Harrison Central High School Resource
Officer; (7) Monica Goddard, A.M.’s drug and alcohol counselor; and (8) Cindy
Sickles, A.M.’s mental health counselor. On May 20, 2008, A.M. testified on her own
behalf and presented the testimony of her grandmother.
{¶9} On May 28, 2008, the juvenile court granted permanent custody of J.M.
to DJFS. The court determined that A.M. had abandoned J.M., that attempts to
reunify them had failed, and that it was in J.M.’s best interests that DJFS be granted
permanent custody. This appeal followed.
{¶10} A.M. raises three assignments of error. A.M.’s third assignment of error
will be addressed first since it is dispositive of this appeal. It states:
{¶11} “THE TRIAL COURT’S RELIANCE UPON THE REPORT OF THE
GUARDIAN AD LITEM OF THE CHILD WITHOUT PROVIDING APPELLANT AN
OPPORTUNITY TO CROSS-EXAMINE THE GUARDIAN AD LITEM CONSTITUTED
AN ABUSE OF DISCRETION AND VIOLATED APPELLANT’S FOURTEENTH
AMENDMENT RIGHT TO PROCEDURAL DUE PROCESS.”
{¶12} The guardian ad litem (GAL) of the subject child is required to submit a
written report to the court prior to or at the time of the hearing. R.C. 2151.414(C). In
this case, at the May 6, 2008 hearing, J.M.’s GAL submitted his report to the court.
Without being sworn in, he orally summarized his findings and recommendation that
it would be in J.M.’s best interest to be permanently placed with DJFS. (Tr. 20-22.)
The trial court did not allow any examination of the GAL and specifically stated that
there would be no cross-examination of the GAL. (Tr. 22.)
{¶13} A.M. states that it is unclear upon which parts of the GAL’s report the
trial court relied in terminating her parental rights toward her son. Since she was not
allowed to cross-examine the GAL, she concludes that her due process rights were
violated. In response, DFJS argues that A.M. waived any issue regarding the GAL
because she failed to object at the hearing.
{¶14} “It is well recognized that the right to raise a child is an ‘essential’ and
‘basic’ civil right. In re Murray (1990), 52 Ohio St.3d 155, 157, 556 N.E.2d 1169,
1171, quoting Stanley v. Illinois (1972), 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31
L.Ed.2d 551, 558. Furthermore, a parent’s right to the custody of his or her child has
been deemed ‘paramount.’ In re Perales (1977), 52 Ohio St.2d 89, 97, 6 O.O.3d 293,
297, 369 N.E.2d 1047, 1051-1052. Permanent termination of parental rights has
been described as ‘the family law equivalent of the death penalty in a criminal case.’
In re Smith (1991), 77 Ohio App.3d 1, 16, 601 N.E.2d 45, 54. Therefore, parents
‘must be afforded every procedural and substantive protection the law allows.’ Id.” In
re Hayes (1997), 79 Ohio St.3d 46, 48, 679 N.E.2d 680.
{¶15} Regarding GAL reports, the Ohio Supreme Court has held 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 right to cross-examine
the guardian ad litem concerning the contents of the report and the basis for a
custody recommendation.” In re Hoffman, 97 Ohio St.3d 92, 2002-Ohio-5368, 776
N.E.2d 485, syllabus. “Even where the outcome may be the same and therefore the
error may be presumed to be harmless, it is imperative that the cross-examination
take place and the failure to provide that opportunity is reversible error.” In re
Kangas, 11th Dist. No. 2006-A-0010, 2006-Ohio-3433, at ¶36, citing Hoffman at ¶19.
{¶16} DJFS attempts to skirt Hoffman’s holding by arguing that A.M. waived
the issue and that the record does not reveal that the trial court relied on the GAL’s
report. There are a line of cases distinguishing Hoffman on the basis that the parent
waived the issue and/or it was apparent that the court had not based its decision on
the GAL’s report. See, e.g., In re A.L.D., 10th Dist. No. 08AP-238, 2008-Ohio-3626
(mother never attempted or requested to cross-examine GAL); Bates-Brown v
Brown, 11th Dist. No. 2006-T-0089, 2007-Ohio-5203; (no denial of due process
where GAL filed report one month after hearing and there was no indication that the
trial court’s decision was based upon the GAL report); In re A.D., 8th Dist. No. 85648,
2005-Ohio-5441 (father failed to request to cross-examine GAL or object to the trial
court’s use of the GAL report).
{¶17} Here, it cannot be said that A.M. waived the issue or that the record is
apparent that the trial court did not rely on the GAL’s report. In those cases dealing
with waiver, the key seems to be whether the parent had an opportunity to crossexamine
the GAL. For example, in In re Kangas, 11th Dist. No. 2006-A-0010, 2006-
Ohio-3433, the Eleventh District found that an untimely GAL report (i.e., filed
following the hearing) precluded the parent from an opportunity to cross-examine the
GAL and, thus, violated the parent’s due process rights in accordance with Hoffman.
In this case, A.M. was likewise precluded from cross-examining the GAL. Just prior to
DJFS calling its first witness, the trial court had the GAL give an oral summary of his
findings and recommendation. When he finished, the court stated:
{¶18} “THE COURT: Thank you very much, sir. You are excused.
{¶19} “Just so all the parties know that Guardian Ad Litem’s, there is not any
cross examination permitted. It is purely the reading of their report. So with that, Mr.
Tabacchi, the Court thanks you and you are excused.” (Tr. 22.)
{¶20} Under the facts and circumstances of this case, this clear
pronouncement by the court immediately following the GAL’s statement precluded
any meaningful or effective opportunity by A.M. to even attempt to cross-examine the
GAL. It is evident that the court had no intention of allowing any of the parties to
question the GAL. In essence, the court peremptorily overruled any anticipated
objections concerning inquiry of the GAL. An objection following the court’s ruling on
the matter might have been ideal, but at that time and place might have seemed
fruitless and maybe even seen as risking an admonishment or contempt of court.
{¶21} Lastly, Hoffman cannot be distinguished on the basis that the trial court
did not rely on the GAL’s report. The court discusses the report at page two of its
decision. And, at page nine of the entry, in determining J.M.’s best interest, the court
made a specific finding that the GAL had recommended permanency. Therefore, the
court did rely, at least in part, on the GAL’s report, and denying A.M. the opportunity
to cross-examine was violative of her due process rights.
{¶22} Accordingly, A.M.’s third assignment of error has merit.
{¶23} A.M.’s first and second of assignments of error states:
{¶24} “THE TRIAL COURT’S FINDING THAT APPELLANT HAD
ABANDONED HER CHILD WITHOUT CONSIDERING EVIDENCE THAT
REBUTTED THE STATUTORY PRESUMPTION OF ABANDONMENT
CONSTITUTED AN ABUSE OF DISCRETION AND WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.”
{¶25} “THE TRIAL COURT’S FINDING THAT THE DEPARTMENT OF JOB
AND FAMILY SERVICES HAD USED REASONABLE EFFORTS TO REUNIFY
APPELLANT WITH HER CHILD AND ITS DENIAL OF A SIX MONTH EXTENSION
TO ALLOW APPELLANT TO COMPLETE HER CASE PLAN WERE IMPROPER,
WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND
CONSTITUTED AN ABUSE OF DISCRETION.”
{¶26} These assignments or error are rendered moot by our disposition of
A.M.’s third assignment of error. App.R. 12(A)(1)(c).
{¶27} Based on our resolution of A.M.’s third assignment of error, the
judgment of the trial court is hereby reversed and remanded for the court to hold an
evidentiary hearing on the guardian ad litem’s report. At that hearing, A.M. should be
permitted to cross-examine the guardian ad litem and present any rebuttal witnesses
or evidence to the report.
Vukovich, J., concurs.
Waite, J., concurs.

About yvonnemason

Background:  The eldest of five children, Yvonne was born May 17, 1951 in Atlanta, Georgia. Raised in East Point, Georgia, she moved to Jackson County, Ga. until 2006 then moved to Port St. Lucie, Florida where she currently makes her home.  Licensed bounty hunter for the state of Georgia. Education:  After a 34 year absence, returned to college in 2004. Graduated with honors in Criminal Justice with an Associate’s degree from Lanier Technical College in 2006. Awards:  Nominated for the prestigious GOAL award in 2005 which encompasses all of the technical colleges. This award is based not only on excellence in academics but also leadership, positive attitude and the willingness to excel in one’s major. Affiliations:  Beta Sigma Phi Sorority  Member of The Florida Writer’s Association – Group Leader for St Lucie County The Dream:  Since learning to write at the age of five, Yvonne has wanted to be an author. She wrote her first novel Stan’s Story beginning in 1974 and completed it in 2006. Publication seemed impossible as rejections grew to 10 years. Determined, she continued adding to the story until her dream came true in 2006. The Inspiration:  Yvonne’s brother Stan has been her inspiration and hero in every facet of her life. He was stricken with Encephalitis at the tender age of nine months. He has defied every roadblock placed in his way and has been the driving force in every one of her accomplishments. He is the one who taught her never to give up The Author: Yvonne is currently the author of several novels, including:  Stan’s Story- the true story of her brother’s accomplishments, it has been compared to the style of Capote, and is currently being rewritten with new information for re-release.  Tangled Minds - a riveting story about a young girl’s bad decision and how it taints everyone’s life around her yet still manages to show that hope is always possible. This novel has been compared to the writing of Steinbeck and is currently being written as a screenplay. This novel will be re-released by Kerlak Publishing in 2009  Brilliant Insanity – released by Kerlak Publishing October 2008  Silent Scream – Released by Lulu.com October 2008- Slated to be made into a movie Yvonne’s Philosophy in Life - “Pay it Forward”: “In this life we all have been helped by others to attain our dreams and goals. We cannot pay it back but what we can do is ‘pay it forward’. It is a simple
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2 Responses to The Family Court and CPS Violated the 4th Amendment Right of this Young Mother

  1. kindness says:

    I live here in canton ohio. I have 2 kids in foster care. cps & family court has to be stop. we have to all come together. we need a good strong organization here in ohio. I would like for anyone here in ohio to contact me. we have to keep fighting for our kids & rights. cps is all about money & lies. join me in my fight against cps & family court. my e-mail is kindnessohio33@yahoo.com please I need everyone &to send me a e-mail. we need a lot of support & help here in ohio. keep fighting

    Like

  2. m brown says:

    I love how these parents who have these children dont care if they play in the streets alone or who they hang out with or who they leave them with until it affects the parents welfare check or tax refund. i believe anyone who supports a child while sitting on thier ass and not contributing to the benifit of the community should not be a parent or have children

    Like

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