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In Re: W.W.

September 28, 2011


Civil Appeal From: Hamilton County Juvenile Court Judgment Appealed From Is: Affirmed TRIAL NO. F08-1778

Per curiam.

Cite as In re W.W.,


Note: We have removed this case from the accelerated calendar.


{¶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 MRDD*fn1 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 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, domestic- violence 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."

{¶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 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 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.

{¶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,*fn2 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.

{¶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.

{¶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.

{ΒΆ31} 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 result, we consider the brief of Diana's GAL as an amicus brief. W.W.'s GAL ...

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