Former St. Joseph Co. referee admonished for suspending parenting time based on unauthorized ex parte information

A former St. Joseph County referee has avoided formal discipline after she temporarily suspended a father’s parenting time based on notes she received from a guardian ad litem that she later refused to share with the father and his counsel.

The Indiana Commission on Judicial Qualifications issued a public admonition for Barbara Johnston on Friday after it concluded she violated Code of Judicial Conduct Rules 1.1, 1.2, 2.2, 2.5(A), and 2.9(A) while serving as a referee for the St. Joseph Probate Court.

Johnston voluntarily retired from the bench on May 31.

According to the July 1 public admonition, a father and mother had been in an ongoing custody dispute regarding their minor daughter since 2012. In April 2021, the child’s GAL submitted a report to the probate court expressing concerns about the child returning to live with the father.

The report was based partially on an interview the GAL had conducted with the child in November 2020. The father and his counsel did not receive a copy of the GAL’s report until late April 2021, according to the commission.

Meanwhile, the GAL also filed motions requesting that portions of her report remain confidential from the other parties, at the child’s request, and that Johnston conduct an in camera interview of the child. In the alternative, the GAL asked that the referee review the GAL’s notes of her earlier interview with the child.

On April 29, 2021, Johnston in her official capacity issued an order directing the GAL to tender her notes to the court. Although neither the father nor his counsel had been given a copy of the GAL’s notes, the commission’s admonition states that Johnston elected to review the GAL’s notes in camera in lieu of conducting her own in camera interview of the child.

Johnston allegedly made that decision “in order to avoid requiring the child to submit a second interview in which the child might feel frustrated and emotionally traumatized by having to give another statement against her parent.”

“Pursuant to I.C. § 31-17-2-9(a)(b), Referee Johnston was permitted to interview the minor child outside the presence of the parties (in camera) had she elected to do so. This statute, however, did not authorize Johnston to receive and review written documents without providing copies to all parties,” the commission wrote in a footnote. “Further, no other legal authority allowed her to take the actions she took in this matter.”

When the parties appeared for a May 4, 2021, hearing on the father’s petition to modify custody, Johnston temporarily suspended the father’s visitation rights with his daughter based on the GAL’s interview notes and set the matter for an evidentiary hearing.

During the hearing, the father’s counsel requested a copy of the GAL’s interview notes, which Johnston denied because she felt “the matters raised in the notes were enough to justify termination of visitation rights.” Specifically, the GAL’s notes raised questions about the safety of the child, according to the commission.

Pursuant to Supreme Court Admission and Discipline Rule 25 VIII E(7) and with the consent of Johnston, the commission concluded it would not formally charge her with ethical misconduct, although it concluded that formal disciplinary charges were warranted.

Johnston was similarly admonished in 2012 when she issued an ex parte ruling in 2011 which denied a father due process in a custody hearing.

“The Commission recognizes that judicial officers may be confronted with difficult situations in child custody matters regarding child welfare and may wish to modify certain court procedures to alleviate stress on the child,” the admonition states. “The law certainly provides some flexibility, such as allowing judges to conduct an in camera interview of a child who is the subject of custody proceedings. Nonetheless, to ensure that litigants are afforded the right to fair and impartial proceedings, judges still must conduct proceedings in a manner that complies with the Code of Judicial Conduct and refrain from engaging in or considering ex parte communications unless authorized by law.

“The Commission further would note that its decision to issue this Public Admonition in lieu of filing formal charges was influenced, in part, by Referee Johnston’s proactive corrective actions to remedy her mistake,” the admonition continues. “Such actions included immediately granting Father’s request for change of judge, participating in additional ethics learning opportunities, and cooperating fully with the Commission. Had Referee Johnston not taken these actions, the Commission would have been inclined to pursue a stronger course of action.”