Kohus v. Daly
2016 Ohio 73
Ohio Ct. App.2016Background
- Parents divorced in June 2014; mother (Amanda Daly) awarded custody of three daughters (born 2002, 2008, 2010). Father (Frank Kohus) sought a DVCPO on behalf of the children, alleging neglect/endangerment while mother worked at a strip club and left children in cars/hotels and exposed them to unsafe people.
- Court granted an ex parte temporary DVCPO and scheduled multiple full hearings between July and October 2014; hearings were continued several times; mother appeared pro se at the August 7 hearing but later obtained counsel for subsequent hearings.
- Witnesses included an investigator from Clermont County Children’s Services (Sandy Kelly), a guardian ad litem (GAL) for the eldest child, relatives, and father; the eldest child (J.K.) testified about being left in a car overnight, frequent relocations, being left alone, and witnessing domestic incidents.
- The magistrate issued a one-year DVCPO finding mother had created a substantial risk to the children’s health or safety by violating a duty of care; the trial court overruled mother’s objections and adopted the magistrate’s decision.
- Mother appealed raising four assignments: (1) court failed to inquire whether she wanted counsel before letting her cross-examine Kelly while pro se; (2) Kelly should have been treated as an expert and her testimony excluded under Boston; (3) GAL exceeded scope and improperly testified about all children; (4) insufficient evidence that mother created a substantial risk under R.C. 2919.22(A).
Issues
| Issue | Plaintiff's Argument (Kohus) | Defendant's Argument (Daly) | Held |
|---|---|---|---|
| 1. Whether court erred by not asking mother if she wanted counsel before allowing testimony on Aug 7 | Court proceeded properly; mother had notice and opportunity to be heard | Mother contends she was forced to cross-examine investigator while pro se and court should have inquired about counsel | No error. DVCPO proceedings are civil; no right to appointed counsel; mother had notice, time to obtain counsel, did not request continuance, and was allowed to present evidence later. |
| 2. Whether investigator Kelly’s testimony improperly expressed opinions about child veracity (Boston) | Investigator’s testimony was admissible and material to safety concerns | Mother argues Kelly testified to veracity and continued after a CPS “closed” finding, violating Boston; seeks reversal for plain error | No reversal. Any inappropriate comment was not outcome-determinative; trial court relied on child J.K.’s testimony, not Kelly, so plain error not shown. |
| 3. Whether GAL improperly testified beyond her appointment for J.K. | GAL had contact with whole family and her observations were relevant to custody/safety issues | Mother claims GAL’s testimony duplicated Kelly’s and lacked independent investigation and exceeded scope | No error. GAL had interacted with family members, visited homes, and offered relevant opinion; court properly considered her testimony. |
| 4. Whether evidence supports finding mother created a substantial risk under R.C. 2919.22(A) | Evidence (child testimony, GAL, investigator) shows mother’s conduct endangered children | Mother contends testimony was inconsistent, father biased, and evidence insufficient | Affirmed. Credible testimony by eldest child provided competent evidence that mother’s conduct created substantial risk; trial court’s credibility determinations stand. |
Key Cases Cited
- State v. Boston, 46 Ohio St.3d 108 (Ohio 1989) (expert may not testify as to veracity of child declarant)
- Goldfuss v. Davidson, 79 Ohio St.3d 116 (Ohio 1997) (plain-error doctrine in civil cases is disfavored and cabined to exceptional circumstances)
- Felton v. Felton, 79 Ohio St.3d 34 (Ohio 1997) (DVCPO requires preponderance proof that petitioner or household members are in danger of domestic violence)
- Butcher v. Stevens, 182 Ohio App.3d 77 (Ohio Ct. App. 2009) (DVCPO petitions are civil, not criminal, and no attendant right to counsel)