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In re S.J.9/21/2005
DECISION AND JOURNAL ENTRY
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
{ } Appellant Ella Morris appeals from the Summit County Court of Common Pleas, Juvenile Division, which awarded legal custody of her now six-year-old child, S.J., to the child's godmother, Vivian Powers. We reverse.
I.
{ } S.J. was born on June 23, 1999. Ms. Morris and Larnell Jones are her biological parents. Although unwed, Ms. Morris and Mr. Jones lived together with S.J. On March 6, 2003, Ms. Morris brought S.J. to Ms. Powers' home and asked her to care for the three-year-old girl while she was away. Ms. Powers agreed and Ms. Morris left for Minnesota to be with a man she had met on the internet, one Kenneth Lehman. When Ms. Morris had not returned by March 15, 2003, Ms. Powers notified the Children Services Board (CSB). CSB placed S.J. with Ms. Powers while they attempted to reconcile the situation.
{ } Eventually, CSB brought the case to juvenile court, which declared S.J. dependent and a legal custody proceeding ensued. Ms. Morris, Mr. Jones and CSB each sought custody, although CSB urged that custody be awarded to Ms. Powers. Following a two-part evidentiary hearing, the magistrate recommended that legal custody be awarded to Ms. Powers. The trial court agreed, and after ruling on the parties' objections, awarded legal custody to Ms. Powers. Ms. Morris timely appealed, asserting four assignments of error for review. We address the third assignment of error first, as it is dispositive of the outcome.
II.
A. Third Assignment of Error
"THE TRIAL COURT ERRED IN UPHOLDING THE MAGISTRATE'S ORDER WHERE THE MAGISTRATE REFUSED TO ALLOW APPELLANT TO INTRODUCE THE ENTIRE INTERSTATE COMPACT REPORT INTO THE RECORD IN THIS CASE PURSUANT TO EVIDENCE RULE 106."
{ } Ms. Morris alleges that the trial court improperly excluded admission of an entire document after portions of it had been introduced out of context. Ms. Morris contends that she was prejudiced by this exclusion, in that the guardian ad litem testified to excerpts from this document, the finder-of-fact relied on those excerpts, and the remainder of the document was necessary to put the excerpts in context; to supplement, explain or dispute those excerpts. We agree.
{ } Evid.R. 106 is the "rule of completeness" and is intended to avoid the misleading impressions that occur when statements are taken out of context. State v. Barna (Nov. 3, 1993), 9th Dist. No. 93CA005564, *9. This rule states:
"When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part or any other writing or recorded statement which is otherwise admissible and which ought in fairness to be considered contemporaneously with it." Evid.R. 106.
Nothing in this rule, its advisory notes or commentary suggests that it is available only to a defendant. We know of no case law that would support such a position.
{ } In the present case, a magistrate conducted a dispositional hearing, pursuant to Juv.R. 34, to determine legal custody of S.J. Procedurally, this was a typical evidentiary hearing: the State presented its case and then rested, Ms. Morris presented her case and rested, Mr. Jones presented his case and rested, and finally, the court called the guardian ad litem to testify as the court's witness.
{ } During her testimony, the guardian ad litem cited a Minnesota Human Services Interstate Compact Report (hereinafter the "Report"), and admittedly relied on
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