Kelley v. Kelley

• Decision Date: 18 December 2007
• Docket Number: No. 104,787.,104,787.
• Parties: Ray Lynn KELLEY, Petitioner, v. Visca Karolina Amasaman KELLEY, Respondent, Christine Gronlund, Guardian ad litem, real party in interest, and Lisa K. Hammond, Judge of the District Court, real party in interest.
• Court: Oklahoma Supreme Court

175 P.3d 400

2007 OK 100

Ray Lynn KELLEY, Petitioner, v. Visca Karolina Amasaman KELLEY, Respondent, Christine Gronlund, Guardian ad litem, real party in interest, and Lisa K. Hammond, Judge of the District Court, real party in interest.

No. 104,787.

Supreme Court of Oklahoma.

December 18, 2007.

Application to Assume Original Jurisdiction, Petition for Writ of Prohibition and Mandamus.

¶ 0 The petitioner, Ray Lynn Kelley (father), seeks to enjoin the respondent, Honorable Lisa K. Hammond (trial judge), from enforcing an order which excuses the respondent, Christine Gronlund (guardian ad litem), from being called as a witness in the underlying custody dispute. Relying on 43 O.S. Supp.2006 § 107.3(A)(2)(e), the guardian ad litem argues that she may not be called as a witness. We assume original jurisdiction to address a single matter of first impression involving parents' fundamental rights and determine that due process necessitates that parties in a custody proceeding have the right to cross-examine the guardian ad litem concerning the basis of any custody recommendation. To the extent that 43 O.S. Supp. 2006 § 107.3(A)(2)(e), providing that no discovery shall be allowed of the guardian ad litem, may be construed to excuse such testimony, it is unconstitutional.

ORIGINAL JURISDICTION ASSUMED; WRIT OF MANDAMUS ISSUED.

Howard F. Israel, Oklahoma City, OK, for Petitioner.

James Schaefer, Ponca City, OK, for Respondent.

Christine N. Gronlund, Anne Scott, Public Defender's Office of Oklahoma County, Oklahoma City, Oklahoma, Guardians ad litem.

WATT, J.

¶ 1 The original action involves a custody dispute. At issue are the constitutionality of 43 O.S. Supp.2006 § 107.3(A)(2)(e),¹ providing that no discovery shall be allowed of the guardian ad litem, and the trial court's order² prohibiting the guardian ad litem from being called as a witness in the cause.³ We consider the constitutionality of § 107.3 only to the extent that it can be construed to prohibit cross-examination of a guardian ad litem in a custody proceeding, necessarily limiting our discussion to the validity of the statute as applied.⁴

¶ 2 Original jurisdiction is assumed and a writ of mandamus issued.⁵ In deciding the first-impression matter involving the fundamental rights of parents,⁶ we hold that state due process⁷ necessitates that parties in a custody proceeding have the right to cross-examine the guardian ad litem concerning the basis of any custody recommendation. To the extent that 43 O.S. Supp.2006 § 1.07.(A)(2)(e) and the trial court's order exempt the guardian ad litem from appearing as a witness, they are unconstitutional.

¶ 3 Our determination is based on Malone v. Malone, 1979 OK 21, 591 P.2d 296, holding that due process necessitates that preparers of reports utilized by trial courts to make custody determinations must be subject to cross-examination. Also convincing is the almost unanimous extant jurisprudence determining that due process requires that guardians ad litem must be available for cross-examination by parents where their recommendations will weigh in the trial court's custody determination.⁸

RELEVANT FACTS

¶ 4 The custody proceeding has been pending in district court in excess of two years, largely as a result of a tortured procedural history of requested extensions, a failed settlement and substitution of counsel. On March 31, 2005, the trial court appointed the guardian ad litem to protect and foster the best interests of the minor child. At issue here is the trial court's order prohibiting the guardian ad litem from being called as a witness in the custody proceeding.⁹ It is uncontested that the order is a form regularly utilized in domestic cases in Oklahoma County.¹⁰

¶ 5 At a pre-trial conference held on June 21, 2007, the guardian ad litem recommended that the mother retain primary custody of the child. The father filed a combined application to assume original jurisdiction, petition for writ of prohibition and mandamus, and brief in support on June 25, 2007, attacking the constitutionality of 43 O.S. Supp.2006 § 107.3(A)(2)(e)¹¹ upon which the guardian ad litem relies for the proposition that her recommendations are not subject to cross-examination.

¶ 6 On October 5, 2007, following oral argument before one of this Court's Referees, the father filed an amendment to Petitioner's Application to Assume Original Jurisdiction and Petition for Extraordinary Alternative Writ of Prohibition/Mandamus and Brief in Support. The guardian ad litem responded on October 11, 2007. Pursuant to 12 O.S. Supp.2003 § 1653(C),¹² we advised the Attorney General of the constitutional challenge to 43 O.S. Supp. § 107.3 giving him the option of filing a brief in the cause within 10 days of the order. The Attorney General did not respond to the October 11th order.

¶ 7 DUE PROCESS NECESSITATES THAT PARENTS IN A CUSTODY PROCEEDING HAVE THE RIGHT TO CROSS-EXAMINE THE GUARDIAN AD LITEM CONCERNING THE BASIS OF ANY CUSTODY RECOMMENDATION. TO THE EXTENT THAT 43 O.S. SUPP. 2006 § 107.3(A)(2)(e) AND THE TRIAL COURT'S ORDER EXEMPT THE GUARDIAN AD LITEM FROM APPEARING AS A WITNESS, THEY ARE UNCONSTITUTIONAL.

¶ 8 The father asserts that he has a fundamental right to the care, custody, companionship and management of his child protected by the federal and state constitutions.¹³ To ensure those protections, he insists that he must have the due process right to cross-examine the guardian ad litem. To the extent that 43 O.S. Supp.2006 § 107.3(A)(2)(e)¹⁴ and the trial court's order, prohibit such cross-examination, the father contends they are unconstitutional. Conversely, the guardian ad litem argues that she may not be called as a witness because she is, essentially, an attorney advocating in the cause. Furthermore, the guardian ad litem asserts that neither 43 O.S. Supp.2006 § 107.3(A)(2)(e) nor the trial court's order¹⁵ prohibiting the father from calling her as a witness violates any principle of due process. We disagree with the guardian ad litem's position.

¶ 9 Although this cause presents an issue of first impression in Oklahoma, research reveals that it has been considered in several jurisdictions. The overwhelming majority of the states addressing the parental right to cross-examine a guardian ad litem have held either expressly, or by necessary implication, that an order or decree awarding or modifying custody must be based on evidence heard in open court in observance of the requirements of due process.¹⁶ Our sister states make it clear that due process does not exist in absence of the opportunity of a parent to cross-examine the guardian ad litem.

¶ 10 We have not previously addressed the question of whether, not withstanding the language of 43 O.S. Supp.2006 § 107.3(A)(2)(e), due process necessitates that a parent facing the loss or change of custody be allowed to cross-examine a guardian ad litem. Nevertheless, we have considered the issue of whether cross-examination must be allowed in situations where a trial court's custody decision may be influenced by a professional's report.

¶ 11 In Malone v. Malone, 1979 OK 21, 591 P.2d 296, the trial court ordered an in-home study by the Department of Institutions and Social Rehabilitative Services after trial proceedings were concluded. The parent argued that the trial court's consideration of the report outside open proceedings, and without allowing the preparer to be cross-examined, violated due process rights. The Malone Court agreed, stating:

Due process requires an orderly proceeding adapted to the case in which the parties have an opportunity to be heard, and to defend, enforce and protect their rights. An action involving the change of custody of minor children from one parent to another is a judicial proceeding and must be conducted in a strictly judicial manner. The decision is to be rendered by the judge only upon evidence properly before him. An investigator may not make a secret report. There is no back door to the courts for witnesses, investigators, or litigants. Reports of experts are aids to the court in contested custody matters. However, it must be borne in mind that they are only aids, and, if they are not woven into the fabric of the record, they should not form the basis for a decision. If such reports are taken into consideration by the court, they must be made available to counsel, and the preparers thereof subject to cross-examination. [Footnotes omitted. Emphasis provided.]

In Malone, it was emphasized that it is fundamentally unfair to receive evidence in a manner that does not advise the parent of its content and provide an opportunity for the information to be tested through cross-examination. Furthermore, the Malone Court made it clear that such procedures amount to private investigations by the court in assembling and receiving evidence, out of the sight and hearing of the parties, who are deprived of the opportunity to defend, rebut, or explain. Due process simply does not exist in such an atmosphere.

¶ 12 Our previous decision in Malone, although not precisely on all fours with the situation presented today, necessitates our holding that in a permanent custody proceeding once the guardian ad litem's report is proffered to the trial court, parties have the right to cross-examine the guardian ad litem concerning the contents of the report and the basis for a custody recommendation. The determination is supported by the great weight of authority from jurisdictions addressing the issue.¹⁷

CONCLUSION

¶ 13 The right of trial involves the right to confront and cross-examine adverse witnesses.¹⁸ The father's fundamental due process rights are protected by the Oklahoma Constitution.¹⁹ Due process necessitates that a parent have the right to cross-examine the guardian ad litem once the guardian's report is proffered to the trial court.

¶ 14 The legislative act removing the guardian ad litem from the discovery process cannot be construed so as to deny due...