In re S.J.9/21/2005
ng does not affect the document's admissibility under Evid.R. 106 following the guardian ad litem's testimony. Also, trial counsel retains discretion over tactical decisions, such as stipulation as to authenticity or the introduction of rebuttal evidence. Moreover, it would appear that this document was otherwise admissible pursuant to Juv.R. 34(B), and Ms. Morris held no power to prevent its admission, via coerced stipulation or otherwise.
{ } Regarding paragraph [3.], we fail to see the contradiction implied by the trial court. Essentially, Ms. Morris argues that the Report, read in its entirety, is so patently flawed as to render it incredible, which therefore undermines the reliability of the excerpts offered at trial (and ultimately relied upon by the magistrate in his decision). Ms. Morris' premise is entirely consistent with her attempt to either exclude it entirely or else admit it entirely. Once again, we question whether this isn't mere after the fact rationalization.
{ } Regarding paragraph [4.], however, we are compelled to examine this issue from a new perspective - and in so doing address an alleged flaw in Ms. Morris' appeal. Under the trial court's view, Ms. Morris failed to demonstrate prejudice - that is, she "has not sufficiently demonstrated that admission of the Report would have changed, in any way, the outcome of the dispositional hearing." This may be true. However, we must recognize that this was a dispositional hearing at which legal custody of her child was awarded to someone else. In context of permanent custody disposition, this Court has stated on numerous occasions: "Since permanent termination of parental rights has been described as 'the family law equivalent of the death penalty in a criminal case,' parents must be afforded every procedural and substantive protection the law allows." In re Woodall (June 13, 2001), 9th Dist. Nos. 20346 & 20436, *52, citing In re Hayes (1997), 79 Ohio St. 3d 46, 48. E.g., also, In re M.B., 9th Dist. No. 21760, 2004-Ohio-597, at , citing In re Hoffman, 97 Ohio St.3d 92, 2002-Ohio-5368, at ; In re L.A., 9th Dist. No. 21531, 2003-Ohio-4790, at ; In re A.D., 9th Dist. No. 02CA008090, 2002-Ohio-6032 at ; In re Pittman, 9th Dist. No. 20894, 2002-Ohio-2208. While legal and permanent custody are admittedly different things, we find them sufficiently analogous to apply a tolerant view of prejudice, and so afford the child's parents the procedural and substantive protections available under the law. We also note the United States Supreme Court's view on Fed.R.Evid. 106 as it relates to relevance:
"We take this to be a reaffirmation of the obvious: that when one party has made use of a portion of a document, such that misunderstanding or distortion can be averted only through presentation of another portion, the material required for completeness is ipso facto relevant and therefore admissible under Rules 401 and 402. * * * The District Court's refusal to admit the proffered completion evidence was a clear abuse of discretion." (Internal citations omitted.) Beech Aircraft Corp. v. Rainey (1988), 488 U.S. 153, 172, 102 L.Ed.2d 445.
As the magistrate, and subsequently the trial court, explicitly relied on the excerpts from the Report in a manner that was directly adverse to Ms. Morris, we find that the remaining portions were ipso facto relevant, particularly as analyzed under Juv.R. 34(B). Furthermore, we find that under these circumstances the threshold for prejudice in a legal custody disposition hearing has been breached and Ms. Morris' inability to demonstrate further prejudice is not fatal.
{ } Appellee also points out that Ms. Morris failed to have the Report marked and made part of the rec
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