[Cite as In re W.W., 2011-Ohio-4912.]

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

IN RE: W.W. :

: 

: 

: 

: 

APPEAL NOS. C-110363 

 C-110402 

TRIAL NO. F08-1778 

 

O P I N I O N.

Civil Appeal From: Hamilton County Juvenile Court 

 

Judgment Appealed From Is: Affirmed 

Date of Judgment Entry on Appeal: September 28, 2011 

Bernadette Longano, for Appellant Kenneth Winkle, 

Ginger S. Bock, for Appellant Diana Winkle, 

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Kellie S. Bley, 

Assistant Prosecuting Attorney, for Appellee Hamilton County Job and Family 

Services, 

Marianna Ford, Guardian ad Litem for W.W., 

Jonathan Schiff, Guardian ad Litem for Diana Winkle. 

Note: We have removed this case from the accelerated calendar. 
OHIO FIRST DISTRICT COURT OF APPEALS 

2

Per Curiam. 

{¶1} In these consolidated appeals, appellants Kenneth and Diana Winkle 

challenge the judgment of the Hamilton County Juvenile Court adopting a magistrate’s 

decision to grant permanent custody of their only child, W.W., to Hamilton County Job 

and Family Services (“HCJFS” or “the Agency.”) 

{¶2} The parents raise several assignments of error, contending that the trial 

court erred by failing to appoint independent counsel for W.W. and by admitting into 

evidence their recorded telephone messages to various HCJFS employees and service 

providers, and that the court’s award of permanent custody was not supported by the 

evidence. Because we find that the award of permanent custody was supported by the 

record, and that the trial court did not err by declining to appoint independent counsel for 

W.W. or by admitting the challenged recordings, we affirm. 

I. Procedural History and Facts 

{¶3} Kenneth and Diana Winkle are the parents of W.W., who was born in 

2000. HCJFS became involved with the family in 2007, in part because W.W. was not 

attending school regularly. An investigation raised new concerns; Diana reported a 

history of domestic violence between Kenneth and her that occurred in front of W.W., and 

Diana and W.W. exhibited mental-health issues. Diana had been diagnosed as having a 

bipolar disorder, and she had a history of obsessive-compulsive behavior. Further, Diana 

had sustained a traumatic brain injury (“TBI”) when she was two years old and was 

receiving MRDD1 services as a result of a diagnosis of borderline mental retardation. 

{¶4} Diana continued to report occurrences of domestic violence by Kenneth, 

including that he had placed a knife at her throat and had threatened to harm her and 

 1 “MRDD” is an acronym for the Hamilton County Board of Mental Retardation and 

Developmental Disabilities. The agency’s name has been changed to the Hamilton County Board 

of Developmental Disabilities Services. 
OHIO FIRST DISTRICT COURT OF APPEALS 

3

W.W. The police responded during one altercation over a dead goldfish. Kenneth stood 

outside in his underwear and refused to let go of the razor that he held in his hand. He 

finally dropped it after receiving multiple warnings from an officer that he would use his 

Taser on Kenneth. 

{¶5} The state filed criminal charges against Kenneth on several occasions as the 

result of Diana’s allegations. But Diana generally failed to follow through on her 

complaints. As a result of the goldfish incident, the state charged Kenneth with domestic 

violence and resisting arrest, and Kenneth pleaded guilty to a reduced charge of disorderly 

conduct. 

{¶6} HCJFS and MRDD attempted to assist Diana to create a safe home 

environment for W.W. by offering placement in a domestic-violence shelter, domesticviolence counseling, and support in obtaining civil protection orders. Diana and Kenneth 

failed to demonstrate a pattern of compliance to remedy the chaotic home environment 

and the issue of domestic violence. Diana continued to allow Kenneth to live in the family 

home. Further, the parents established a pattern of refusing to send W.W. to school due to 

an unwarranted fear for his safety, and they exhibited inappropriate parenting practices 

such as neglecting W.W.’s nutritional requirements and his hygiene. For example, W.W.’s 

parents never took him to a dentist and they mainly served him “junk food” because he did 

not like nutritious food. 

{¶7} In July 2008, HCJFS filed a complaint alleging that W.W. was dependent 

and neglected, and simultaneously moved for an interim order of temporary custody. A 

juvenile court magistrate granted the motion after a hearing. In her entry, the magistrate 

found, as required by R.C. 2151.419, that HCJFS had made “reasonable efforts to prevent 

the removal of the child from the child’s home, to eliminate the continued removal of the 

child from the child’s home, or to make it possible for the child to return safely home.” 
OHIO FIRST DISTRICT COURT OF APPEALS 

4

{¶8} The magistrate authorized W.W.’s removal from the home and his 

placement in foster care, where he has remained during the entirety of the proceedings. In 

addition, the magistrate provided the parents with supervised visitation and appointed a 

guardian ad litem (“GAL”) for W.W. 

{¶9} The court continued the interim custody a week later after another hearing. 

The Agency filed a case plan to remedy the various concerns that led to W.W.’s removal, 

including the domestic violence and issues related to Diana’s TBI, which the Agency 

identified as her mental illness, her compulsions, and her inappropriate parenting 

practices. 

{¶10} Despite Kenneth’s adequate employment at the time, the family had failed 

to pay rent for 18 months, and they were served with an eviction notice. Diana was 

criminally charged after she made a false allegation of rape in an effort to keep the 

residence. Diana and Kenneth then vacated the residence and moved to a residence in 

Clinton County owned by a friend. Clinton County Job and Family Services provided 

courtesy case-management services to the Winkles, but the agency eventually terminated 

its involvement after about eight months due to nonparticipation by Kenneth and Diana. 

{¶11} After appointing a GAL for Diana, the magistrate conducted bifurcated 

adjudication and dispositional hearings. Diana declined to attend the adjudication 

hearing due to her anxiety. Ultimately, the magistrate recommended adjudicating W.W. 

dependent and neglected and awarding temporary custody to HCJFS, as provided in R.C. 

2151.353(A)(2). The magistrate again found, based on the evidence presented at the 

hearing, that HCJFS had made “reasonable efforts.” 

{¶12} The magistrate adopted a reunification plan. Reunification services for the 

parents focused on their mental-health issues, domestic-violence issues, and parenting 

issues. Specifically, the court ordered case management, therapy, psychiatric services and 
OHIO FIRST DISTRICT COURT OF APPEALS 

5

medication to address Diana’s cognitive impairments and mental/behavioral instability; 

interactive parenting education for both parents as arranged by HCJFS; Kenneth’s 

completion of the AMENDS program that he had already been ordered to complete; 

domestic-violence counseling for Diana; and supervised visitation. 

{¶13} In addition, with respect to Kenneth, who had been diagnosed with a 

narcissistic personality disorder after initially refusing a mental-health assessment, the 

court ordered HCJFS to create a plan to address his mental health because his evaluator 

had concluded that he was not a good candidate for therapy. Eventually the parties 

agreed, and the magistrate approved, that Kenneth would attend individual therapy with 

Diana’s psychotherapist. 

{¶14} Kenneth filed an objection to the magistrate’s decision awarding temporary 

custody on the ground that he and Diana had remedied the issues that brought W.W. into 

the Agency’s care. The trial court overruled the objection, approved the magistrate’s 

decision adjudicating W.W. neglected and dependent, and placed W.W. in the temporary 

custody of the Agency. No appeal was filed. 

{¶15} HCJFS twice moved to have temporary custody extended while it pursued 

the goal of family reunification. The juvenile court granted both requests. The court 

again found that the Agency had made reasonable efforts at reunification. 

{¶16} During this time, W.W. had been enrolled in individual therapy and had 

been doing well in the foster home. The parents participated in supervised visitations but 

were repeatedly corrected for treating W.W. in an age-inappropriate manner. The parents 

engaged in some services, but they continued to resist case-planning services and to make 

allegations to government organizations about HCJFS and the service providers. They 

accused Jermil Tarver, the HCJFS caseworker assigned to the family in December 2007, 

of abusing W.W. Despite the Agency’s reasonable efforts, these circumstances and the 
OHIO FIRST DISTRICT COURT OF APPEALS 

6

parents’ move from Hamilton County to Clinton County complicated the provision of 

services. 

{¶17} In the entry extending temporary custody for the second time, the 

magistrate noted that there had been substantial progress towards reunification as 

follows: Kenneth had begun the final phase of the AMENDS program and had arranged 

for individual therapy at Professional Psychiatric Services; Diana had continued to comply 

with recommended psychiatric medication, services, and therapy, and she had attended 

domestic-violence counseling; Kenneth and Diana were to begin parenting classes and 

couple’s therapy to address past issues of violence; and supervised visitation had gone 

well. 

{¶18} But soon after the magistrate noted this substantial progress, Diana 

stopped taking her medication and ended her participation in all services. Her emotional 

and behavioral status declined significantly, as evidenced by the increase in 

communications she had with HCJFS, service providers, and attorneys that were marked 

by threats, paranoid beliefs, and delusional thinking. 

{¶19} Kenneth participated in the communications by making his own comments 

and by prompting and supporting Diana. He failed to attend individual mental-health 

therapy. Additionally, although Diana completed a four-hour on-line parenting class, 

neither Kenneth nor Diana completed the interactive parenting classes, and the parents 

did not attend couple’s therapy. 

{¶20} Also, in the spring of 2010, W.W. made allegations of sexual abuse against 

his father to his therapist. This prompted HCJFS to suspend Kenneth’s visits while the 

allegations were investigated and eventually unsubstantiated. Family therapy was delayed 

in part due to these allegations. 
OHIO FIRST DISTRICT COURT OF APPEALS 

7

{¶21} In June 2010, HCJFS moved to modify temporary custody to permanent 

custody, thereby allowing the agency to place the child for adoption. The magistrate 

arranged for independent mental-health evaluations for both parents to assist in their 

defense. Diana declined to attend her initial evaluation but eventually attended an 

evaluation by Dr. Buban while the custody trial was in progress. 

{¶22} W.W.’s GAL recommended that the juvenile court grant HCJFS permanent 

custody. In accordance with In re Williams,

2 the magistrate conducted an in camera 

interview of W.W. to explore W.W.’s wishes or desires. The magistrate determined that 

W.W.’s wishes did not conflict with those of his GAL because W.W. had not consistently 

expressed a desire to return home. As a result, the magistrate declined to appoint 

independent counsel for W.W. 

{¶23} Beginning on November 1, 2010, the magistrate held a six-day hearing on 

HCJFS’s motion for permanent custody. Multiple witnesses testified in support of 

HCJFS’s motion, including Tarver, the family’s ongoing HCJFS caseworker; Amy 

Muddiman, W.W.’s treatment coordinator at Altercrest who discussed his progress; Karen 

Black, the visitation facilitator at the Family Nurturing Center who supervised some of the 

Winkles’ family visits; Kathleen Ann Murphy, an assessment specialist who diagnosed 

Kenneth as having a narcissist personality; W.W.’s foster father, who expressed the foster 

family’s wish to adopt W.W.; Denise Gray, who attempted to provide domestic-violence 

and parenting classes to Diana through the Alternatives to Violence Center; and Shelly 

Weaton from Clinton County Job and Family Services, who terminated that agency’s 

courtesy case-management services due to the parents’ nonparticipation. 

 2 101 Ohio St.3d 398, 2004-Ohio-1500, 805 N.E.2d 1110. 
OHIO FIRST DISTRICT COURT OF APPEALS 

8

{¶24} Substantial exhibits were admitted. These included over six hours of 

recorded telephone messages from Diana and Kenneth to various service providers and 

HCJFS employees. 

{¶25} Dr. Aziz and Dr. Scudder, Diana’s treating psychiatrists did not testify. But 

their medical records were admitted into evidence. These records included a letter written 

by Dr. Aziz to the court in June 2009, stating that because of Diana’s response to 

treatment and her compliance with therapy and medication recommendations, he 

believed she could manage her mental illness and that it would not limit her ability to 

parent W.W. But in an October 2010 letter, Dr. Aziz informed the court that Diana had 

terminated the therapy and medication provided by his office. 

{¶26} Both Diana and Kenneth testified. Diana stated that she had selfterminated the psychotherapy and the medication Dr. Aziz had prescribed to manage her 

mental illness because she “felt [she] didn’t need them.” Also, she admitted that she was 

not under the care of any mental-health professional. Kenneth characterized Diana’s “rant 

and tirades” to so many of the individuals involved in the case as “therapeutic.” He 

testified that he complied with her requests to join her in the inappropriate behavior to 

avoid a confrontation with her. With respect to his own mental health, he contested his 

diagnosis and did not pursue psychotherapy. 

{¶27} Kenneth’s independent medical examiner, Dr. Walters, testified that 

Kenneth did not suffer from a narcissistic personality disorder and that Kenneth could 

parent W.W. Dr. Walters also testified, however, that he had considered limited collateral 

information in arriving at his conclusions. For example, he was unaware of the telephone 

messages Kenneth had participated in making. Dr. Walters also recommended 

psychotherapy for Kenneth. 
OHIO FIRST DISTRICT COURT OF APPEALS 

9

{¶28} After hearing all the evidence and considering the recommendation of 

W.W.’s GAL in favor of granting the motion for permanent custody, the magistrate found 

that W.W., who had been the in temporary custody of HCJFS for well over 12 continuous 

months, could not be placed with either of his parents within a reasonable time or should 

not be place with either of his parents. The court based this conclusion on findings made 

under the criteria set forth in R.C. 2151.414(E)(1) and (2). Specifically, the magistrate 

found that (1) both parents failed continuously and repeatedly to remedy the conditions 

that caused W.W. to be placed outside the home despite reasonable case planning and 

diligent efforts to assist the parents and (2) Diana’s mental illness prevented her from 

providing an appropriate home environment for W.W. at that time and within the next 

year. 

{¶29} The magistrate further determined that it was in the best interest of W.W. 

to terminate Kenneth’s and Diana’s parental rights and to award permanent custody to 

HCJFS. The magistrate incorporated into her factual findings the factual findings set forth 

in the October 2008 entry adjudicating W.W. neglected and dependent and the January 

2009 entry granting temporary custody to HCJFS. 

{¶30} Both Kenneth and Diana filed general objections to the magistrate’s 

decision, arguing that the decision was not supported by sufficient evidence. Neither party 

objected to the magistrate’s specific factual determinations. The trial court overruled the 

objections and adopted the magistrate’s decision granting permanent custody of W.W. to 

HCJFS. 

{¶31} Kenneth and Diana filed separate notices of appeal, and they raise separate 

assignments of error challenging the judgment granting permanent custody of W.W. to 

HCJFS. Diana’s GAL filed a brief advocating for the reversal of the juvenile court’s 

decision, but her GAL did not file a notice of appeal from the trial court’s decision. As a 
OHIO FIRST DISTRICT COURT OF APPEALS 

10

result, we consider the brief of Diana’s GAL as an amicus brief. W.W.’s GAL has filed a 

brief advocating that this court affirm the trial court’s decision, a position also held by 

HCJFS. 

II. Independent Counsel 

{¶32} Before we address the assignments of error challenging the evidence in 

support of the permanent-custody award, we first address Kenneth’s second assignment 

of error. In it, he contends that the trial court erred by not appointing independent 

counsel for W.W. 

{¶33} Under R.C. 2151.352, a child who is the subject of a juvenile court 

proceeding to terminate parental rights is a party to that proceeding and, therefore, is 

entitled to independent counsel in certain circumstances.3 This court held in In re 

Walling that circumstances necessitating independent counsel include when the child’s 

wishes conflict with the child’s GAL’s recommendation and the GAL is serving as the 

child’s attorney.4 

{¶34} In this case, unlike in In re Walling, W.W.’s GAL did not serve as the 

child’s attorney. This difference, however, is without consequence for our inquiry; the 

court appointed an attorney to take legal actions on behalf of the GAL in the best interest 

of W.W. The issue then is whether W.W.’s wishes conflicted with those of his GAL. 

{¶35} W.W.’s GAL recommended that permanent custody be granted to HCJFS. 

The magistrate investigated as to whether W.W.’s wishes conflicted with the 

recommendation of his GAL and held an in camera interview of the child. The magistrate 

determined that W.W. “did not consistently express a desire to return home” and that the 

 3 In re Williams, supra, at syllabus. 

4 In re Walling, 1st Dist. No. C-050646, 2006-Ohio-810, ¶24, cited in In re Graham, 1st Dist. No. 

C-060129, 167 Ohio App.3d 284, 2006-Ohio-3170, 854 N.E.2d 1126, ¶32. See, also, Sup.R. 

48(D)(8) (“When a guardian ad litem determines that a conflict exists between the child’s best 

interest and the child’s wishes, the guardian ad litem shall, at the earliest practical time, request 

in writing that the court promptly resolve the conflict by entering appropriate orders.”) 
OHIO FIRST DISTRICT COURT OF APPEALS 

11

record did not contain any evidence that W.W.’s wishes conflicted with those of W.W.’s 

GAL. With respect to this later comment, the magistrate noted that “the parents declined 

to present evidence on this issue.” Thereafter, the magistrate declined to appoint 

independent counsel for him. 

{¶36} Kenneth challenges the magistrate’s finding by arguing that W.W.’s 

therapy notes demonstrate a conflict. But Kenneth did not raise this issue before or 

during the permanent-custody hearing, when any error could have been corrected. Nor 

did Kenneth raise this issue in his objections to the magistrate’s decision. 

{¶37} An objection to a magistrate’s decision “shall be specific and state with 

particularity all grounds for objection.”5 Juv.R. 40(D)(3)(b)(iv) and its counterpart in the 

civil rules, Civ.R. 53(D)(3)(b)(iv), provide that “[e]xcept for a claim of plain error, a party 

shall not assign as error on appeal the court’s adoption of any factual finding or legal 

conclusion, * * *, unless the party has objected to that finding or conclusion * * *.”6 

While these rules also require the trial court to undertake an independent examination of 

the magistrate’s decision even if no objections are filed, this analysis is limited to errors of 

law or other defects “on the face of the magistrate’s decision.”7

{¶38} We decline to find plain error because the record, including the evidence 

Kenneth cites, demonstrates only that W.W. was “confused about whom he wished to live 

with.” The magistrate interviewed the 10-year-old child and confirmed this.8 Without 

evidence that W.W. consistently expressed a desire to live with his parents, W.W.’s wishes 

did not conflict with those of his GAL.9 Thus, we conclude that the magistrate was not 

 5 Juv.R. 40(D)(3)(b)(ii); Civ.R. 53(D)(3)(b)(ii). 

6 See In re Etter, 134 Ohio App.3d 484, 491, 731 N.E.2d 694 (citing identical language found in prior versions of the rules.) 

7 See Juv.R. 40(D)(3)(c) and Civ.R. 53(D)(3)(c). 

8 Kenneth does not challenge the magistrate’s findings related to the content of the in camera 

interview, and the transcript from this interview is not a part of the record for this appeal. 

9 In re Graham, supra, at ¶37-39. 
OHIO FIRST DISTRICT COURT OF APPEALS 

12

required to appoint counsel, and that magistrate and the trial court did not error in failing 

to do so.10 Accordingly, we overrule Kenneth’s second assignment of error. 

III. Admission of Recordings 

{¶39} Next, we address Diana’s first assignment of error. In it, she contends that 

the trial court erred by admitting into evidence the telephone messages that she and 

Kenneth left for numerous service HCJFS employees and case-plan service providers 

involved in the case. Diana and Kenneth made the challenged recorded telephone 

messages during a period from April to October 2010. 

{¶40} At the permanent-custody hearing, Diana objected to the admission of the 

recordings on the basis of relevancy and redundancy. HCJFS argued the recordings were 

highly relevant to demonstrate that the parents had failed to remedy the issues that 

brought W.W. into the Agency’s care—Diana’s compulsions and emotional and behavioral 

instability, and Kenneth’s anger and intimidation problems—despite the parents’ physical 

attendance and completion of some of the services provided. 

{¶41} With respect to Diana’s objection based on redundancy, HCJFS argued 

that the calls were redundant only to the extent that Diana and Kenneth left messages for 

so many different individuals and over such a long period of time, facts that further 

established the relevancy of the recordings. The magistrate overruled the objection and 

allowed the recordings into evidence. 

{¶42} Diana maintains that the recordings were not relevant. Her position, 

essentially, is that her manic and compulsive behavior exhibited with these phone calls 

had no bearing on her ability to provide an adequate home for W.W. Alternatively, she 

argues that any relevancy of the telephone messages is substantially outweighed by the 

danger of unfair prejudice. She explains that the unfair prejudice involves the trial court’s 

 10 Id. 
OHIO FIRST DISTRICT COURT OF APPEALS 

13

desire to punish her because of the content of these messages in which she and Kenneth 

threatened legal action, criticized the actions of people trying to help them, and made 

accusations of abuse. 

{¶43} Generally, we review evidentiary rulings under an abuse of discretion 

standard. But because Diana failed to object to the magistrate’s decision on this ground, 

we review only for plain error.11

{¶44} We find no error, much less plain error, in the admission of the challenged 

recordings. These recordings, some made just weeks before the permanent-custody 

hearing, were extremely relevant to show that Diana still suffered from compulsions and 

had not achieved emotional and behavioral stability. These defects had directly led to 

W.W.’s neglect and dependency, and they had indirectly affected Diana’s ability to parent 

W.W. by creating a barrier that prevented Diana from receiving the services she needed to 

control these defects. And the evidence demonstrated that Kenneth still suffered from 

anger-management issues and that he was either unwilling or unable to help Diana 

control her compulsions. Further, the relevancy of this evidence was not substantially 

outweighed by any “unfair prejudice” as contemplated by Evid.R. 403(A). Accordingly, we 

overrule Diana’s first assignment of error. 

IV. Termination of Parental Rights 

{¶45} Finally, we address Kenneth’s first assignment of error and Diana’s second 

assignment of error. They both contend that the trial court erred in granting permanent 

custody to HCJFS, essentially challenging the weight of the evidence adduced before the 

magistrate. 

{¶46} The trial court’s determination to award permanent custody must be 

supported by clear and convincing evidence. “Clear and convincing evidence” is evidence 

 11 See Juv.R. 40(D)(3)(b)(iv); Civ.R. 53(D)(3)(b)(iv). 
OHIO FIRST DISTRICT COURT OF APPEALS 

14

sufficient to “produce in the mind of the trier of fact[] a firm belief or conviction as to the 

facts sought to be established.”12 As an appellate court, we do not review the juvenile 

court’s decision under an abuse-of-discretion standard;13 rather, we must examine the 

record and determine if the juvenile court had sufficient evidence before it to satisfy the 

statutory clear-and-convincing standard.14 We will not substitute our own judgment for 

that of the trial court applying a clear-and-convincing standard where some competent 

and credible evidence supports the trial court’s determinations.15 

{¶47} An agency can obtain permanent custody of a child by more than one 

method. In this case, HCJFS moved for permanent custody under R.C. 2151.413(A), after 

obtaining temporary custody under R.C. 2151.353(A)(2). R.C. 2151.414 governs the 

procedures a juvenile court must follow and the findings it must make before granting a 

motion for permanent custody filed under R.C. 2151.413.16

{¶48} R.C. 2151.414(B) establishes the test for the juvenile court to apply in ruling 

on a motion for permanent custody.17 A juvenile court may grant permanent custody of a 

child to an agency in response to an agency’s R.C. 2151.413(A) motion if the court finds by 

clear and convincing evidence that (1) permanent custody is in the best interest of the 

child and (2) one of four conditions set forth in R.C. 2151.414(B)(1)(a)-(d) applies.18 

 12 In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809, ¶42, quoting Cross v. 

Ledford (1954), 161 Ohio St. 469, 120 N.E.2d 118, paragraph three of the syllabus. 

13 R.C. 2151.414(B); In re Wilkinson, 1st Dist. Nos. C-040182, C-040203, and C-040282, 2004-

Ohio-4107, ¶37. 

14 See In re Adoption of Holcomb (1985), 18 Ohio St.3d 361, 368, 481 N.E.2d 613; see, also, In re 

Heston (1998), 129 Ohio App.3d 825, 828, 719 N.E.2d 93, and In re Walling, supra, 2006-Ohio810, at ¶15. 

15 In re Baby Girl Doe, 149 Ohio App.3d 717, 2002-Ohio-4470, 778 N.E.2d 1053, ¶89, citing C.E. 

Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578, syllabus. 

16 In re C.W., 104 Ohio St.3d 163, 2004-Ohio-6411, 818 N.E.2d 1176, ¶9, quoted in In re C.F., 113 

Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶22. 

17 See In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶31, quoted in In re 

C.F., supra, at ¶23. 

18 Absent statutorily enumerated circumstances, the court must also find that the agency made 

reasonable efforts to reunify the family before terminating parental rights. In re C.F., supra, at 

¶43. 
OHIO FIRST DISTRICT COURT OF APPEALS 

15

{¶49} The R.C. 2151.414(B)(1) conditions include that (1) “the child is 

abandoned”;19 (2) “the child is orphaned, and there are no relatives of the child who are 

able to take permanent custody”;20 (3) at the time the agency files the motion for 

permanent custody, “the child has been in the temporary custody of one or more public 

children services agencies or private child placing agencies for twelve or more months of a 

consecutive twenty-two month period” (the “12 of 22” provision);21 or (4) none of the 

preceding conditions apply and “the child cannot be placed with either of the child’s 

parents within a reasonable time or should not be placed with the child’s parents,” based 

on an analysis under R.C. 2151.414(E).22 

A. “12 of 22” Provision 

{¶50} In this case, HCJFS moved to modify temporary custody to permanent 

custody in July 2010 because of the length of time that W.W. had been in the temporary 

custody of the agency. Generally, where the agency has made reasonable efforts to 

reunify, an agency must file for permanent custody once a child has been in the agency’s 

temporary custody for 12 or more months of a consecutive 22-month period.23 A child 

shall be considered to have entered the temporary custody of an agency on the date the 

child is adjudicated pursuant to R.C. 2151.28 or the date that is 60 days after the removal 

of the child from the home, whichever is earlier.24

{¶51} “The ‘12 of 22’ provisions set forth in R.C. 2151.413(D)(1) and R.C. 

2151.414(B)(1)(d) balance the importance of reuniting a child with the child’s parents 

against the importance of a speedy resolution of the custody of the child. Through the ‘12 

of 22’ provisions in the permanent-custody statutes, the legislature provides parents with 

 19 R.C. 2151.414(B)(1)(b). 

20 R.C. 2151.414(B)(1)(c). 

21 R.C. 2151.414(B)(1)(d). 

22 R.C. 2151.414(B)(1)(a). 

23 R.C. 2151.413(D)(1) and 2151.413(D)(3); In re C.W., 2004-Ohio-6411, at ¶20. 

24 R.C. 2151.414(B)(1). 
OHIO FIRST DISTRICT COURT OF APPEALS 

16

12 months to work toward reunification before any agency can institute a permanentcustody action asserting R.C. 2151.414(B)(1)(d) grounds.”25 

{¶52} We note that the magistrate never cited R.C. 2151.414(B)(1)(d) or its “12 of 

22” language in her decision. But the magistrate made the requisite finding that in July 

2008 the state removed W.W. from the family home and placed him in foster care, where 

he remained throughout the proceedings. This finding is undisputed. 

{¶53} Thus, the record clearly and convincingly demonstrates that when HCJFS 

moved for permanent custody in June 2010, W.W. had been in the temporary custody of 

the Agency for the requisite 12 months of the preceding 22-month period, the condition 

set forth in R.C. 2151.414(B)(1)(d). 

B. R.C. 2151.414(B)(1)(a) and R.C. 2151.414(E) factors 

{¶54} HCJFS additionally specified in its motion to modify temporary custody to 

permanent custody that W.W. could not be placed with either parent within a reasonable 

time or should not be placed with either parent, the condition set forth in R.C. 

2151.414(B)(1)(a). Although not required to do so because the “12 of 22” condition had 

been met, the trial court also determined that W.W. could not be placed with either parent 

within a reasonable time or should not be placed with either parent, citing the factors set 

forth in R.C. 2151.414(E)(1) and (2). 

{¶55} R.C. 2151.414(E)(1) provides: “Following the placement of the child outside 

the child’s home and notwithstanding reasonable case planning and diligent efforts by the 

agency to assist the parents to remedy the problems that initially caused the child to be 

placed outside the home, the parent has failed continuously and repeatedly to 

 25 In re C.W., supra, at ¶22, internal citations omitted. But, see, In re M.J., 8th Dist. No. 95131, 

2010-Ohio-5793, ¶12 (suggesting that the agency must wait for the expiration of 22 months even 

when the child has been in the temporary custody of the agency for 12 consecutive months.) 
OHIO FIRST DISTRICT COURT OF APPEALS 

17

substantially remedy the conditions causing the child to be placed outside the child’s 

home.” 

{¶56} R.C. 2151.414(E)(2) provides: “Chronic mental illness, chronic emotional 

illness, mental retardation, physical disability, or chemical dependency of the parent that 

is so severe that it makes the parent unable to provide an adequate permanent home for 

the child at the present time and, as anticipated, within one year * * * .” 

{¶57} Kenneth challenges the trial court’s determination that W.W. could not be 

placed with either parent within a reasonable time.26 Diana attacks the trial court’s finding 

with respect to both of the R.C. 2151.414(E) factors. 

{¶58} We need not consider these findings in determining whether one of the 

criteria in R.C. 2151.414(B)(1) has been satisfied because it is undisputed that R.C. 

2151.414(B)(1)(d), which is based on the length of the temporary custody, has been met by 

clear and convincing evidence. However, we will review these findings because HCJFS 

has not taken the position that the findings were unnecessary and because we believe the 

magistrate found these factors significant when determining the best interest of W.W. 

Placement with Either Parent within a Reasonable Time 

{¶59} The magistrate found that HCJFS had diligently attempted to implement 

reasonable case-plan services for both Kenneth and Diana, but that the parents’ behavior 

and emotional instability prevented them from effectively engaging in and benefitting 

from these interventions. 

{¶60} Both Kenneth and Diana contend that HCJFS’s efforts at reunification 

were not reasonable and diligent, and that they had substantially remedied the conditions 

causing W.W’s removal. Therefore, they argue, the evidence does not support the 

 26 Kenneth additionally argues that R.C. 2151.414(B)(2) applies to this case. We disagree. That 

statute applies when HCJFS moves for permanent custody under R.C. 2151.413(D)(2) after a court 

has made a finding under R.C. 2151.419(A)(2)’s bypass provision. 
OHIO FIRST DISTRICT COURT OF APPEALS 

18

magistrate’s finding. But neither objected to the magistrate’s decision on this specific 

basis. Thus, they have waived this argument, absent plain error.27 The plain-error 

doctrine is reserved for “ ‘exceptional circumstances where error, to which no objection 

was made at the trial court, seriously affects the basic fairness, integrity, or public 

reputation of the judicial process * * *.’ ”28

{¶61} Reasonable and Diligent Efforts. Case plans are tools to facilitate 

reunification; therefore, “the plan and the agency’s efforts should account for the 

respective abilities of the parents and children in pursuing individualized concerns, goals, 

and steps necessary for reunification.”29 But the agency’s responsibility to facilitate 

reunification is not unlimited. The issue is whether the agency’s case planning and efforts 

were reasonable and diligent, and not “whether there was anything more” that the agency 

could have done.30 In this case, the Agency began a case plan before W.W.’s removal 

from the home, and a case plan continued through the proceedings. 

{¶62} Diana refers to the case plan that HCJFS implemented on her behalf as 

“cookie-cutter,” and she describes it as one that she was incapable of following because of 

her “condition.” Similarly, amicus curiae, Diana’s GAL, suggests that the case plan 

approved by the court was “fatally flawed” because it did not include services to identify 

and treat Diana’s TBI and possible brain damage. 

{¶63} Both arguments rely on the evaluation of clinical psychologist Mary Eileen 

Buban, who, due to Diana’s tarrying, did not evaluate Diana until after the permanentcustody hearing had started. After a short evaluation, Dr. Buban diagnosed Diana as 

suffering from “dementia due to brain trauma with memory and behavioral features,” 

 27 See Juv.R.40(D)(3)(b)(iv) and Civ.R. 53(D)(3)(b)(iv). 

28 In re Etter, supra, 134 Ohio App.3d at 492, quoting Goldfuss v. Davidson (1997), 79 Ohio St.3d 

116, 122-123, 679 N.E.2d 1099. 

29 In re Leveck, 3rd Dist. Nos. 5-02-52, 5-02-53, and 5-02-54, 2003-Ohio-1269, ¶10. 

30 Id. 
OHIO FIRST DISTRICT COURT OF APPEALS 

19

including “obsessive compulsive behaviors when under stress.” She also recommended a 

“neuropsychological assessment” to identify Diana’s strengths and weaknesses. 

{¶64} Dr. Buban did not testify at the permanent-custody hearing. In her report, 

which was admitted into evidence, Dr. Buban expressed “concern” that Diana’s “unique 

needs have not been adequately assessed and addressed by the various providers involved 

with her case.” 

{¶65} But Dr. Buban’s statement criticizing the case plan was conclusory, and, 

notably, she did not suggest what services would be helpful other than the 

neuropsychological assessment. The Agency relied on service providers such as Dr. Aziz 

and Dr. Scudder, who both diagnosed Diana with a traumatic brain injury and bipolar 

disorder. Despite the representations of Diana and her GAL otherwise, the evidence 

demonstrated that Dr. Aziz and Dr. Scudder treated her for these conditions. Her 

treatment goals included stabilizing her mood, reducing posttraumatic symptoms, and 

decreasing anxiety. 

{¶66} Diana attended psychotherapy for over a year and she complied with the 

recommended medication regime. During this time of compliance, Dr. Aziz reported that 

Diana’s response to the treatment was “very satisfactory” and that she could manage her 

illness and parent W.W. But in January 2010, Diana self-terminated the therapy and the 

Depakote, her psychiatric medication. Her emotional and behavioral stability declined 

significantly, as demonstrated by the voluminous communications she had with 

employees of HCJFS, service providers, and attorneys. The magistrate accurately 

described these communications as “marked by threats, paranoid beliefs, and delusional 

thinking.” HCJFS presented ample evidence that Diana could not manage her illness 

without complying with the mental-health services provided in the case plan. 
OHIO FIRST DISTRICT COURT OF APPEALS 

20

{¶67} Diana also challenges the Agency’s inclusion of group therapy as part of her 

reunification plan, arguing essentially that she could not function in a group. Part of 

Diana’s case plan included participation in group counseling on domestic violence and 

individual parenting training, both through Alternatives to Violence. Diana claims that 

Denise Gray, Diana’s service provider, testified that Diana did not have the capacity to 

learn and function in a group setting. 

{¶68} But Gray did not testify that Diana could not function in a group setting. 

She testified that Diana had the capacity to function in a group setting, but that Diana 

chose not to do so and refused to focus on the materials in the class. 

{¶69} In addition to the group therapy, Diana received significant one-on-one 

services. Gray testified that she provided individual parenting training to Diana, and that 

Diana also failed to successfully complete the training. In fact, after Gray’s repeated efforts 

to redirect Diana’s dialogue to improving her parenting skills for reunification, Diana 

pursued an action against Gray for violating her freedom of speech. Gray, who testified 

that she had successfully worked with individuals with the same disorders as Diana, was 

forced to terminate Diana from both the domestic-violence and parenting programs after 

a few sessions, less than 25 percent of the programs. Gray explained to HCJFS that she 

terminated Diana because Diana “has her own ideas of what she needs from our classes. 

She has demonstrated that she is unwilling to attempt to process any information that 

does not fit her agenda.” 

{¶70} We note also that HCJFS arranged for Diana to attend a different 

domestic-violence support group after her termination from the Alternatives to Violence 

program, but Diana discontinued her participation after a few sessions. 

{¶71} In addition to the domestic-violence counseling, the individual parenting 

classes, and the mental-health services, HCJFS provided a caseworker, Tarver, and weekly 
OHIO FIRST DISTRICT COURT OF APPEALS 

21

supervised parent/child visits. Beginning in September 2008, these visits included parent 

coaching and therapeutic supervision to enhance the parent/child interaction and to 

immediately correct both parents’ deficient parent skills. Further, family therapy was a 

part of the case-plan services. This therapy did not occur for several reasons, including the 

recommendation by W.W.’s individual therapist that W.W. was not ready for it due to 

delays in his individual therapy. 

{¶72} The parents blame the Agency for the transportation problems that delayed 

W.W.’s individual therapy, and cite this delay as an example of the Agency’s lack of 

diligence. But the evidence supported the magistrate’s finding that the parents 

contributed significantly to the transportation problems by making false abuse 

accusations against Tarver, thereby preventing Tarver from assisting in the transportation. 

And W.W.’s allegations of sexual abuse against his father to his individual therapist in 

March 2010 significantly impeded the goal of family therapy. Further, the trial court 

cannot deny an agency’s permanent-custody motion “solely because the agency failed to 

implement any particular aspect of the child’s case plan.”31 

{¶73} Other circumstances impeded HCJFS’s coordination of services, such as 

the parents’ move to Clinton County, the expiration of contracts between HCJFS and 

service providers, the discontinuation of services by the providers because of Diana’s 

accusations and both parents’ failure to abide by the providers’ policies. Despite these 

obstacles, the Agency worked persistently to continue with the reunification plan. This 

persistence was not enough to overcome both Kenneth’s and Diana’s efforts to derail the 

reunification. 

{¶74} The magistrate’s finding that HCJFS acted reasonably and with diligence to 

effect reunification is supported by the record. 

 31 R.C. 2151.414(C). 
OHIO FIRST DISTRICT COURT OF APPEALS 

22

{¶75} Failure to Remedy the Conditions Causing the Removal. Both 

parents argue that they successfully had remedied the conditions causing W.W. to be 

removed from the home, citing evidence of their participation in services and the 

magistrate’s finding that there had been no new allegations of domestic violence. Neither 

parent specifically objected to the magistrate’s conclusion that the conditions had not been 

remedied or to the magistrate’s factual findings that supported the conclusion. Thus, they 

have waived all but plain error, and we decline to find plain error. 

{¶76} Kenneth specifically challenges the magistrate’s finding that he and Diana 

used age-inappropriate parenting techniques at every supervised visit. But Karen Black, 

the visitation facilitator from April 2010 to August 2010, testified that based on her own 

observations and her review of the records of the other facilitators, the parents’ treatment 

of W.W. in an age-inappropriate manner was an “ongoing issue” during the visitations, 

and that based on her direct observations, “it still [wa]s happening weekly, but not 

throughout the entire time weekly.” Black explained that the parents stifled W.W.’s 

independence by treating him like a small child—coddling him, allowing him to sit on 

their laps, rocking him and patting him, and giving into his demands to avoid upsetting 

him. While Black conceded that the parents had made progress and appeared to be 

internalizing the corrections enough to allow some unsupervised visitation, she concluded 

that the parents still required some ongoing supervised visitation. 

{¶77} Kenneth also challenges the magistrate’s finding that he refused to engage 

in mental-health services. He contends that he fully complied with his case plan’s 

requirement that he participate in a mental-health assessment and follow the 

recommendations arising from the assessment. 

{¶78} Kenneth was evaluated by Kathleen Ann Murphy, an assessment specialist 

for the Mental Health & Recovery Center of Clinton County. Murphy assessed Kenneth as 
OHIO FIRST DISTRICT COURT OF APPEALS 

23

having a narcissistic personality disorder and an “adjustment reaction.” But Murphy did 

not order any treatment at that time, considering it feckless, as Kenneth denied that he 

had a mental-health issue. The magistrate, however, ordered that a course of action be 

taken to address Kenneth’s mental-health issues. At one point, Kenneth agreed to see 

Diana’s psychologist, but did not follow through with the psychotherapy requirement. 

{¶79} Kenneth disagreed with his diagnosis and sought a second opinion from 

William Walters, a clinical psychologist. Although Dr. Walters did reject Murphy’s 

assessment of narcissistic personality disorder, he also found an adjustment disorder. 

Importantly, in making his diagnosis, Dr. Walters used limited collateral information, 

gaining information primarily from Kenneth, and Dr. Walters reported that even with his 

diagnosis, Kenneth still needed psychotherapy. 

{¶80} The record contains competent, credible evidence to support the 

magistrate’s finding that Kenneth had ultimately refused to engage in mental-health 

services as required by the reunification plan. 

{¶81} Importantly, as the magistrate found, the evidence at the permanentcustody hearing also demonstrated that the parents had not fully internalized the lessons 

from the case-plan objectives. The evidence showed that even though Diana had 

completed an on-line parenting course, she would continue to make bad decisions 

concerning the parenting of W.W. and that Kenneth would support those bad decisions. 

Kenneth testified that when Diana wanted him to participate in the clearly inappropriate 

phone calls, he had first resisted. But when she continued to insist, he complied with her 

request to avoid an argument. And when asked about the option of the court returning 

W.W. to his custody, but not Diana’s, he candidly testified that “[t]he fact that he would be 

returned to my custody would just be basically a word, because we would both, you know, 

have care of him, and wouldn’t be any different than if they returned him to both of us 
OHIO FIRST DISTRICT COURT OF APPEALS 

24

really.” Further, he indicated that his responsibility to protect W.W. would be the same as 

before W.W.’s removal, because even then he had directed W.W. when Diana had engaged 

in compulsive or inappropriate behavior. 

{¶82} We reject the parents’ claim that the evidence does not support the 

magistrate’s finding that they had failed to remedy the conditions that led to W.W.’s 

removal. 

Chronic mental illness 

{¶83} Diana challenges the trial court’s adoption of the magistrate’s finding, In 

accordance with R.C. 2151.414(E)(2), that her mental illness prevents her from providing 

an adequate home environment for W.W. Specifically, she argues that HCJFS failed to 

establish that her erratic, explosive, and compulsive behavior during reunification 

services, including false accusations of abuse, had impacted W.W. 

{¶84} First, we reject Diana’s claim that HCJFS was required to show that her 

destructive behavior during reunification services impacted W.W. Diana relies on this 

court’s holding in In re Walling,

32 which involved the sufficiency of the evidence to 

support a finding of dependency under R.C. 2151.04(B). That section defines a dependent 

child as any child who “lacks adequate parental care by reason of the mental or physical 

condition of the child’s parents * * * .” We held in In re Walling that to support a finding 

of dependency under R.C. 2151.04(B), the agency must demonstrate that the parent’s 

mental condition actually interfered with the parent’s ability to provide adequate care for 

the child.33 

{¶85} But this appeal does not involve a challenge to the juvenile court’s 2008 

final order adjudicating W.W. dependent and neglected and granting temporary custody 

 32 Supra. 

33 Id. at ¶17. 
OHIO FIRST DISTRICT COURT OF APPEALS 

25

of W.W. to the Agency. The time to appeal that order has long passed.34 Thus, the holding 

of In re Walling concerning the sufficiency of the evidence for dependency does not apply. 

{¶86} Second, we note that the record does contain evidence that, even with 

Diana’s limited exposure to W.W. during the reunification services, her failure to control 

her mental illness directly affected W.W. For example, Tarver testified that W.W. became 

visibly upset watching his mother lose control during one of the supervised visits, after she 

was reprimanded for failing to follow the rules of the Family Nurturing Center. 

{¶87} The record contains ample evidence that Diana discontinued her mentalhealth treatment and case-management services that were aimed at controlling the mental 

illness and disruptive behavior that led to W.W.’s removal. We note that because of 

Diana’s erratic, explosive, and compulsive behavior before removal, which impacted W.W. 

and contributed to both his dependency and his neglect, the court ordered as part of the 

reunification plan that Diana “shall achieve mental/behavioral health stability” and that 

she “shall comply with case management, therapy, psychiatric services, and medication.” 

{¶88} Under these circumstances, the evidence supported the magistrate’s 

finding that the severity of Diana’s mental illness rendered her unable to provide an 

adequate permanent home for W.W. at the time of the hearing and, as anticipated, within 

one year from the hearing. 

{¶89} In summary, competent credible evidence supports the trial court’s 

determination that W.W. had been in the temporary custody of the Agency for the 

requisite period of time as set forth under R.C. 2151.414(B)(1)(d), and that W.W. could not 

be placed with either parent within a reasonable time and should not be placed with either 

 34 See, In re H.F., 120 Ohio St.3d 499, 2008-Ohio-6810, 900 N.E.2d 607, syllabus (“An appeal of 

an adjudication order of abuse, dependency, or neglect and the award of temporary custody 

pursuant to R.C. 2151.353[A][2] must be filed within 30 days of the judgment entry pursuant to 

App.R. 4[A].”) 
OHIO FIRST DISTRICT COURT OF APPEALS 

26

parent as set forth under R.C. 2151.414(B)(1)(a). As such, one half of the test set forth in 

R.C. 2151.414(B) was satisfied. 

C. Best Interest 

{¶90} In assessing the best interest of the child, the court is directed to “consider 

all relevant factors,” including those expressly set forth in R.C. 2151.414(D)(1). These 

include the following: (1) the interaction and interrelationship of the child with the child’s 

parents, siblings, relatives, foster caregivers and out-of-home providers, and any other 

person who may significantly affect the child; (2) the wishes of the child, as expressed 

directly or through the child’s guardian ad litem; (3) the custodial history of the child, 

including whether the child has been in the temporary custody of public or private 

children services agencies for twelve or more months; and (4) the child’s need for a legally 

secure permanent placement and whether that type of placement can be achieved without 

a grant of permanent custody.35

{¶91} Additionally, the court must consider the factors listed in R.C. 

2151.414(E)(7) through (11), if applicable to the parents or child. 

{¶92} The evidence demonstrated that W.W. had resided with the same foster 

family since August 2008. When W.W. entered foster care, he displayed significant 

emotional, behavioral, and academic delays. Additionally, he struggled with issues related 

to poor hygiene, inadequate dental care, and poor nutrition. These conditions were 

caused by parental neglect. 

{¶93} W.W. made significant advancement in all areas while living with the foster 

family, and he developed a strong and positive attachment to the foster parents and their 

extended family. W.W.’s foster father unequivocally testified that the foster family would 

like to adopt W.W. 

 35 R.C. 2151.414(D). 
OHIO FIRST DISTRICT COURT OF APPEALS 

27

{¶94} Early in his placement, W.W. attempted to engage in inappropriate sexual 

contact with a granddaughter of the foster parents. He received counseling, which 

revealed his concerns over the domestic violence between his parents. He later made 

allegations of sexual abuse by his father, but no criminal charges were pursued due to lack 

of evidence. 

{¶95} W.W. retained a strong bond with his parents, but he was ambivalent 

about returning to his parents’ care. And the parents were unable to remedy the 

conditions that led to W.W.’s removal. 

{¶96} W.W.’s parents were provided weekly supervised visitation with W.W. after 

his removal, although Kenneth’s visitation was suspended for several months after W.W. 

made allegations of sexual abuse against him. According to Karen Black, the visitation 

facilitation coordinator, W.W. enjoyed these visits, but his parents did not consistently 

interact with him in an age-appropriate manner, requiring the staff to redirect them. At 

the time of the permanent-custody hearing, Black could not even recommend the 

termination of supervised visitation. 

{¶97} The magistrate found, and the evidence demonstrated, that Diana’s 

mental illness prevented her from providing an appropriate home environment for W.W. 

as evidenced by her refusal to send him to school, her inability to provide appropriate 

meals, the lack of proper hygiene and attention to health care, and her isolation of W.W., 

which at least contributed to his emotional and behavioral delays. Notwithstanding her 

diagnosis of bipolar behavior, her TBI, and her history of obsessive-compulsive behavior, 

in January 2010 she stopped taking her medication, she discontinued her attendance in 

counseling and psychiatric appointments, and she terminated case-management services. 

{¶98} As part of the case plan, W.W.’s parents were ordered to participate in 

domestic-violence counseling because of their history of domestic violence and their 
OHIO FIRST DISTRICT COURT OF APPEALS 

28

inability to protect W.W. from this hostility. Kenneth resisted the counseling, as 

demonstrated by the extraordinarily long time before his completion of the AMENDS 

program. But there was evidence that Kenneth had benefitted from the AMENDS 

program because Diana had not made any new reports of domestic violence after W.W.’s 

removal. This apparent progress, however, was undermined by Kenneth’s participation in 

the inappropriate and angry telephone messages to HCJFS employees and case-plan 

service providers. 

{¶99} Further, before W.W.’s removal from the family home, Kenneth was either 

unable or unwilling to provide protection in the home for W.W. The evidence at the 

permanent-custody hearing demonstrated that this would continue. Kenneth placated 

Diana when he should have corrected her; he characterized her rants and accusations as 

“therapeutic,” and he apparently acquiesced in her termination of mental-health 

treatment. And he testified that if the court returned W.W. to his custody only, it would be 

no different than if the court had awarded custody to Diana also. 

{¶100} With respect to W.W.’s wishes, the magistrate noted that W.W.’s GAL had 

recommended the grant of permanent custody so that W.W. could be adopted by his 

foster family. The juvenile court may consider the child’s wishes as expressed directly by 

the child or through the child’s GAL.36 The magistrate also considered that W.W. had 

enjoyed his supervised visits, but that he had been ambivalent about returning to his 

parents’ care. The magistrate considered this ambivalence in the context of W.W.’s 

guarded discussion of his experiences while in his parents’ care. 

{¶101} Finally, the evidence demonstrated that HCJFS could not locate any 

relatives or friends who had the desire and the ability to provide appropriate care for W.W. 

 36 In re C.F., supra, at ¶55. 
OHIO FIRST DISTRICT COURT OF APPEALS 

29

{¶102} Amicus curiae Diana’s GAL urges this court to reverse the trial court’s 

judgment based on the Ohio Supreme Court’s decision in In re D.A.

37 In that case, the 

court reversed a judgment that terminated the parental rights of a mentally-retarded 

couple, holding that in a permanent-custody hearing, a trial court may not determine a 

child’s best interest based “solely on the limited cognitive abilities of the parents.”38 The 

court found persuasive the absence of evidence of harm or threat of harm to the children, 

and that the parents’ low cognitive abilities constituted the sole reason for the termination 

of the parental rights. 

{¶103} Although there are some similarities between the situation in this case and 

that in In re D.A., there are many differences. The primary focus of this case was not on 

Diana’s limited cognitive abilities, but on the parents’ mental-health and domesticviolence issues and their neglect of their child’s welfare. And the record in this case 

contains clear and convincing evidence of a threat of harm to W.W. due to the parents’ 

failure to remedy the conditions that led to W.W.’s removal. 

{¶104} Importantly, Diana stopped the therapy and medication designed to help 

stabilize her mental health. Kenneth denied that he had mental-health issues and needed 

therapy. The voluminous, threatening and angry telephone calls the parents made in the 

months before the permanent-custody hearing demonstrated that despite the Agency’s 

efforts, W.W. would be returned to a chaotic, unstable, and violent household, much like 

the environment from which he had been removed, and that Kenneth would condone 

Diana’s inadequate parenting and fail to provide protection in the home for W.W. 

Moreover, the record demonstrates that the diagnosis of the parents’ mental illnesses is 

only one of many factors that contributed to the termination of parental rights. 

 37 113 Ohio St.3d 88, 2007-Ohio-1105, 862 N.E.2d 829. 

38 Id. at syllabus. 
OHIO FIRST DISTRICT COURT OF APPEALS 

30

{¶105} We are fully aware that suitable parents have a “paramount” right to the 

custody of their minor children39 and that “the permanent termination of parental rights 

is the family law equivalent of the death penalty in the criminal case.”40 But the parents’ 

fundamental interest is not absolute and, at the dispositional phase, the parents’ interest 

takes a back seat to the best interest of the child.41 

{¶106} In light of the above, we hold that the juvenile court’s decision that it was in 

the best interest of W.W. to terminate Kenneth’s and Diana’s parental rights was based on 

clear and convincing evidence. As such, the other half of the test set forth in R.C. 

2151.414(B) was satisfied. 

{¶107} Accordingly, we overrule Kenneth’s first and Diana’s second assignment of 

error. 

V. Conclusion 

{¶108} We affirm the judgment of the juvenile court granting permanent custody 

of W.W. to HCJFS. 

Judgment affirmed. 

SUNDERMANN, P.J., HENDON and CUNNINGHAM, JJ.

Please Note: 

 The court has recorded its own entry on the date of the release of this decision. 

 39 Id. at ¶10, internal citations omitted. 

40 Id., internal citations omitted. 

41 Id. at ¶11.