The Supreme Court of Ohio has ruled that a parent in a legal custody proceeding does not have the same legal safeguards as a parent facing the loss of parental rights in a permanent custody proceeding. This decision reverses a Fifth District Court of Appeals ruling which found that the due process rights of a Muskingum County woman, identified as "K.G.," were violated during a May 2022 legal custody hearing.
Justice Jennifer Brunner, writing for the unanimous court, explained that the appeals court had relied on precedent from cases dealing with permanent custody, where parents are entitled to extensive procedural and substantive protections. In contrast, legal custody proceedings involve fewer safeguards since they do not result in the complete termination of parental rights.
The case arose after K.G. gave birth to twins prematurely in September 2020. Concerns about her ability to care for them led Muskingum County Adult and Child Protective Services to obtain temporary custody of the children, who were placed with their maternal aunt. Following a psychological evaluation by Gary L. Wolfgang, whose report raised concerns about K.G.'s parenting abilities, the agency sought to grant temporary legal custody to the aunt.
During a May 2022 hearing on changing this arrangement from temporary to legal custody, K.G.'s attorney objected to portions of Wolfgang's report being read into the record without Wolfgang being present for cross-examination. The juvenile court admitted parts of the report and granted legal custody to the aunt while awarding visitation rights to K.G.
K.G. appealed this decision, and citing the Supreme Court’s 2002 In re Hoffman decision, the Fifth District reversed it. However, Justice Brunner clarified that under R.C. Chapter 2151, parents involved in juvenile court custody proceedings are entitled only to fair hearings with appropriate constitutional safeguards but not necessarily those afforded in permanent custody cases.
The Supreme Court found significant differences between K.G.’s situation and that in Hoffman, where parents faced termination of parental rights and were barred from cross-examining witnesses present at hearings. In contrast, K.G. had access to Wolfgang's report well before her hearing and did not attempt to subpoena him.
“There is simply nothing in the record to demonstrate that K.G. was denied an opportunity to cross-examine Dr. Wolfgang,” stated Justice Brunner.
The Court concluded that K.G.’s inability to cross-examine Wolfgang did not constitute harm or unfairness warranting reversal of the juvenile court’s decision and remanded other arguments raised by K.G. back to the Fifth District for consideration.