In re W.W.
2011 Ohio 4912
Ohio Ct. App.2011Background
- HCJFS moved for permanent custody of W.W. born 2000; child had been in foster care since 2008 after removal for neglect/instability amid domestic-violence history and Diana's mental-health issues.
- Reunification efforts were pursued via case plans addressing Diana's bipolar disorder, TBI, and parenting; Kenneth had narcissistic tendencies and temper-issues.
- Six-day permanent-custody hearing began November 1, 2010, with multiple witnesses and substantial exhibits including six hours of recordings.
- The magistrate interviewed W.W. in camera; GAL recommended permanent custody to HCJFS; no independent counsel for W.W. was appointed.
- Trial court adopted the magistrate’s decision; Kenneth and Diana appeal challenging lack of independent counsel, admissibility of recordings, and sufficiency of evidence for permanent custody.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Independent counsel required for W.W. under RC 2151.352? | W.W. should have independent counsel if wishes conflicted with GAL. | GAL did not act as attorney for W.W.; no conflict shown. | No error; no conflict evidenced; independent counsel not required. |
| Admission of recorded telephone messages into evidence | Recordings are highly relevant to show failure to remedy conditions. | Possible redundancy/prejudice; less probative value. | Admissible; not plain error; recordings supported reunification analysis. |
| Sufficiency of evidence for permanent custody under RC 2151.414(B) | Record shows parents failed to remedy conditions; 12-of-22 period satisfied. | Evidence insufficient to prove cannot be placed with parents within reasonable time. | Clear and convincing evidence supports permanent custody. |
| Application of 12 of 22 (RC 2151.414(B)(1)(d)) | W.W. had been in temporary custody for 12 months within 22 months. | If not satisfied, court could not grant permanent custody. | Satisfied; 12 of 22 condition met. |
| Best interest determination under RC 2151.414(D) and (E) | Foster home attachment and lack of safe return support termination. | Parental bond and potential for reunification. | Best interests supported termination and adoption by foster family. |
Key Cases Cited
- In re Williams, 101 Ohio St.3d 398 (2004-Ohio-1500) (provides framework for termination proceedings and guardian ad litem role)
- In re Walling, 1st Dist. No. C-050646 (2006-Ohio-810) (addresses when independent counsel is required for a child)
- In re C.W., 104 Ohio St.3d 163 (2004-Ohio-6411) (discusses reasonable efforts and best-interest analysis in permanency)
- In re H.F., 120 Ohio St.3d 499 (2008-Ohio-6810) (addressed timing and procedures for permanent-custody appeals)
- In re Etter, 134 Ohio App.3d 484 (2003-Ohio-1269) (discusses plain-error review and objections to magistrate decisions)