Tuesday, November 8, 2005

Case Law Development: Necessity for Independent Counsel for Child in Dependency Actions; Admission of Expert Testimony and GAL Reports when Based on Hearsay

In a child dependency action, the Ohio Court of Appeals was called upon to address a number of procedural protections for both parent and child. In this proceeding, the court had appointed both a guardian ad litem and an attorney for the four children involved.  In the dispositional hearing, t  he guardian ad litem recommended that the children not live with father as that would not be in their best interests.  Attorney for the children took the same position based on the wishes of the children.  However, after Father violed an ex parte order and had a conversation with oldest daughter in the courthouse hallway, daughter indicated that she had changed her mind and wanted to live with Father. 

Despite this change in position, and the attorney for the children's admission that she did not know how to advocate for oldest daughter given this change in preference, the trial court did not conduct an additional in camera interview of the daughter or appoint a separate attorney to represent her.  The Court of Appeals held that the failure to interview daughter to ascertain whether separate counsel was required was reversable error.  The concurring judge indicated that he believed that independent counsel was absolutely requiredd given the daughter's change in goals.

In a second issue, the court considered whether admission of the expert testimony of a psychological expert was error when the expert's conclusions were based on inadmissible hearsay statements of others.  The court concluded that this was reversable error. The expert's testimony was based on reports from others that were not admitted into evidence, such as a social worker report containing statements made by the children to the foster parents, who then reported it to the social worker, who wrote it in the report. 

In contrast, the court did not consider the court's admission of the guardian ad litem's testimony to be in error, even though it too contained otherwise inadmissibile hearsay statements.  The court noted that "Ordinarily, a GAL's report is not considered evidence, but is merely submitted as additional information for the court's consideration, similar to a presentence investigation report in a criminal proceeding.  So long as the GAL is available for cross examination by the parties, the court may consider the GAL's report irrespective of the hearsay contained in the report.

In re Sherman, 2005 Ohio 5888; 2005 Ohio App. LEXIS 5312 (November 7, 2005)
Opinion on the web at http://www.sconet.state.oh.us/rod/newpdf/3/2005/2005-ohio-5888.pdf (last visited November 8, 2005 bgf)

http://lawprofessors.typepad.com/family_law/2005/11/case_law_develo_8.html

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