[Cite as In re A.S., 2014-Ohio-2458.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )
IN RE A.S. C.A. Nos. 14CA010532 14CA010534
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 07JC16614
DECISION AND JOURNAL ENTRY
Dated: June 9, 2014
BELFANCE, Presiding Judge.
{¶1} Appellants, Rachel W. (“Mother) and Robert S. (“Father”), appeal from a
judgment of the Lorain County Court of Common Pleas, Juvenile Division, that terminated their
parental rights and placed their minor child in the permanent custody of Lorain County Children
Services (“LCCS”). For the reasons that follow, this Court affirms.
I.
{¶2} Mother and Father are the natural parents of A.S., born September 5, 2006. The
parents have an older child together who was removed from their custody shortly after his birth
in 2004. However, that child is not a party to this appeal. Mother had used cocaine during her
pregnancy with A.S.’s older sibling, who was born four weeks premature and tested positive for
cocaine. In addition to concerns about Mother’s drug use, the older child’s juvenile case focused
on drug use by Father, domestic violence between the parents, and their lack of stable housing. 2
The parents made little progress on the reunification goals of the case plan, and the sibling was
ultimately placed in the legal custody of a maternal cousin.
{¶3} Shortly after the birth of A.S., LCCS filed a dependency and neglect complaint
that alleged parenting problems similar to those in the case of the older sibling. Although A.S.
did not test positive for drugs at the time of his premature birth, Mother admitted that she had
used cocaine during most of the pregnancy. The agency’s initial concerns in this case were that
Mother continued to abuse drugs and alcohol, lacked stable housing, and was not able to meet
the basic needs of A.S. At that time, Father was not living with Mother and his whereabouts
were unknown. A.S. was adjudicated a neglected and dependent child and was allowed to stay
with Mother under an order of protective supervision by LCCS. Mother was enrolled in a
residential substance abuse treatment program at that time, where she could reside with A.S. and
receive supportive services from the facility’s staff. In addition, she had agreed to cooperate
with LCCS and the treatment facility personnel. The order of protective supervision was
terminated during May 2007 upon motion by LCCS because the agency believed that Mother
had completed a substance abuse treatment program and was remaining sober through
compliance with an aftercare program and the Alcoholics Anonymous 12-step program. The
agency further believed that Mother was meeting the basic needs of A.S.
{¶4} During May 2012, LCCS became involved with the family again after receiving
referrals that Mother had started using cocaine again. Mother initially cooperated with LCCS on
a voluntary basis. On August 12, 2012, however, LCCS filed a motion to remove A.S. from
Mother’s legal custody, alleging that a change had occurred in the circumstances of A.S. and
Mother, and that his best interest required that he be placed in the temporary custody of LCCS.
See R.C. 2151.42(B). Specifically, although Mother had enrolled in a residential drug treatment 3
program, she had left A.S. in the care of Father, who was not providing for the child’s basic
needs. Moreover, LCCS had learned that A.S., then six years old, had numerous medical and
dental problems and developmental delays that had not been appropriately addressed by his
parents.
{¶5} The trial court found that a termination or modification of the legal custody order
was warranted under the terms of R.C. 2151.42(B) and ordered that A.S. be placed in the
temporary custody of LCCS. The case plan focused on Mother and Father addressing their
substance abuse and mental health issues, obtaining the education and skills that they needed to
provide for the basic and special needs of A.S., and demonstrating that they could provide him
with a safe and stable home and consistently meet all of his needs.
{¶6} Over the course of the next several months, however, neither parent made
sufficient progress on any of the goals of the case plan. Father did not maintain contact with
LCCS or the juvenile court for a period of several months during the case. Mother started
several drug treatment programs but repeatedly dropped out and began using drugs again.
Although Mother attended most scheduled visits with A.S., Father did not. Moreover, neither
parent completed parenting classes or attended any of the appointments with A.S.’s doctors or
therapists that would have taught them how to appropriately care for their child.
{¶7} On July 9, 2013, LCCS moved for permanent custody of A.S. Mother filed an
alternate dispositional motion for legal custody. Father later informed the court that he
supported Mother’s request for legal custody. Following an evidentiary hearing on the alternate
dispositional motions on October 7 and 8, 2013, the trial court found that A.S. could not be
placed with either parent within a reasonable time or should not be placed with them and that 4
permanent custody was in his best interest. See R.C. 2151.414(B)(1). Consequently, it
terminated parental rights and placed A.S. in the permanent custody of LCCS.
{¶8} Mother and Father separately appealed, and this Court later consolidated their
appeals for review. Mother’s two assignments of error and Father’s four assignments of error
will be combined and rearranged for ease of discussion.
II.
MOTHER’S ASSIGNMENT OF ERROR I
THE JUDGMENT ENTRY IN THIS MATTER IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE TO AWARD PERMANENT CUSTODY OF THE CHILD TO [LCCS.]
FATHER’S ASSIGNMENT OF ERROR I
THE TRIAL COURT ABUSED ITS DISCRETION IN DETERMINING THAT MOTHER AND FATHER HAD NOT MET THE MINOR CHILD’S MEDICAL AND DENTAL NEEDS BASED UPON THE TESTIMONY OF WITNESSES WHO HAD NO MEDICAL EXPERTISE OR BACKGROUND.
FATHER’S ASSIGNMENT OF ERROR II
THE TRIAL COURT’S FINDING THAT THE MINOR CHILD COULD NOT OR SHOULD NOT BE PLACED WITH MOTHER OR FATHER WITHIN A REASONABLE PERIOD OF TIME WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
FATHER’S ASSIGNMENT OF ERROR IV
THE TRIAL COURT’S JUDGMENT THAT PERMANENT CUSTODY TO THE AGENCY WAS IN THE CHILD’S BEST INTERESTS WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶9} We will address these assigned errors together because each pertains to the weight
and/or propriety of the evidence supporting the trial court’s permanent custody decision. Before
a juvenile court may terminate parental rights and award permanent custody of a child to a
proper moving agency it must find clear and convincing evidence of both prongs of the
permanent custody test: (1) that the child is abandoned, orphaned, has been in the temporary 5
custody of the agency for at least 12 months of a consecutive 22-month period, or that the child
cannot be placed with either parent within a reasonable time or should not be placed with either
parent, based on an analysis under R.C. 2151.414(E); and (2) that the grant of permanent custody
to the agency is in the best interest of the child, based on an analysis under R.C. 2151.414(D).
See R.C. 2151.414(B)(1) and 2151.414(B)(2); see also In re William S., 75 Ohio St.3d 95, 99
(1996).
{¶10} The trial court found that the first prong of the permanent custody test had been
satisfied because A.S. could not be returned to either parent within a reasonable time or should
not be returned to them based on its factual findings under R.C. 2151.414(E)(1), (E)(4), (E)(8),
and (E)(14). Through these four assignments of error, the parents have challenged the trial
court’s findings on each of the alternate (E) factors.
{¶11} To demonstrate reversible error, however, Mother and Father must demonstrate
not only that the trial court committed error but also that the error negatively affected the
outcome of the case. Lowry v. Lowry, 48 Ohio App.3d 184, 190 (4th Dist.1988), citing Gries
Sports Ents., Inc. v. Cleveland Browns Football Co., Inc., 26 Ohio St.3d 15, 28 (1986). Because
the trial court is required to find only one statutory ground to support the first prong of the
permanent custody test, this Court has repeatedly emphasized that any error in its alternate
findings is not prejudicial as long as one of the trial court’s stated grounds is proper. See, e.g., In
re R.H., 9th Dist. Lorain Nos. 11CA010002 and 11CA010003, 2011-Ohio-6749, ¶ 14.
{¶12} Consequently, as we have reviewed the record and determined that the evidence
fully supported the trial court’s first finding under R.C. 2151.414(E), we will limit our written
review to that factor. Consequently, this Court will not address Father’s first assignment of error
to the extent that it pertains to the trial court’s alternate finding under R.C. 2151.414(E)(8) that 6
the parents repeatedly withheld medical treatment for A.S. To the extent the parents’ other
assignments of error also raise challenges to the trial court’s alternate findings under R.C.
2151.414(E)(4), (E)(8), and (E)(14), they will not be addressed.
{¶13} R.C. 2151.414(E)(1) required the trial court to conclude that A.S. “cannot be
placed with either parent within a reasonable time or should not be placed with either parent” if it
found clear and convincing evidence that “the parent has failed continuously and repeatedly to
substantially remedy the conditions causing the child to be placed outside the child’s home.”
The reason LCCS initially became involved with this family was Mother’s admitted cocaine
abuse during her pregnancy with A.S., a problem that had also led to the removal of an older
sibling from the parents’ custody. In addition to the agency’s concerns about the substance
abuse and mental health problems of both parents, A.S. was removed from the home because
Mother was living in a residential treatment facility and had left A.S. in the care of Father, who
was not meeting the child’s basic and special needs.
{¶14} After receiving referrals about the well-being of A.S., the caseworker went to the
home to find Father sleeping on the couch and A.S. tending to his own needs. A.S. had been
eating junk food, which was scattered all over the room. Although it is not clear from the record
when LCCS learned about the developmental delays and medical problems of A.S., the
caseworker apparently knew at that time that A.S. was not toilet trained at the age of six. When
A.S. came to the door to let her into the home, however, the caseworker observed that he had
feces going up his back and was so drenched in urine that even his shirt was soaked. Father
awoke and immediately began cleaning up the food that was strewn around the room. The
caseworker redirected him to first tend to the hygiene needs of A.S. When the caseworker 7
questioned Father about a liquor bottle she saw in the home, Father admitted that he had been
drinking.
{¶15} Neither parent argues that Father had sufficiently remedied his parenting
problems or that he was able to provide A.S. with a suitable permanent home at the time of the
hearing. Instead, Father supported Mother’s motion for legal custody because he was unable to
meet even his own daily needs without assistance. His financial needs were covered by benefits
he received from the United States Department of Veterans Affairs (“VA”), but the check was
made payable to a designated payee because he was unable to handle his own finances. Father
had limited cognitive ability, could not communicate well, and required assistance with daily
tasks such as running errands or paying his bills. Father also suffered from mental health and
substance abuse problems, which he failed to resolve during this case. Father also failed to
maintain regular contract with the caseworker or the court, did not visit A.S. regularly, and did
not attend any of the child’s medical or therapy appointments.
{¶16} Both parents argue that Mother had sufficiently remedied her parenting problems
and was prepared to provide A.S. with a suitable home at the time of the hearing. Although
Mother alternatively argues that the trial court should have granted an extension of temporary
custody, none of the parties had requested that the trial court extend temporary custody. Both
parents explicitly supported mother’s motion for full legal custody.
{¶17} Mother testified that she knew how to care for A.S. and had been meeting his
needs before he was removed from her home, but LCCS presented substantial evidence to the
contrary. The trial court had no expert testimony before it about the specific medical or
psychological diagnoses of A.S. or either parent. Although Father argues through his first
assignment of error that the trial allowed improper lay opinion testimony on this issue, he is 8
mistaken. In fact, the trial court sustained his repeated objections to lay witnesses testifying
about any of the parties’ specific medical, developmental, or psychological problems because
they were not qualified to make those diagnoses.
{¶18} Nevertheless, the trial court did admit the testimony of the caseworker and other
lay witnesses about their personal observations of A.S.’s significant developmental delays, his
medical and dental problems, and the behavior of the parents that affected their ability to meet
A.S.’s needs. The witnesses testified about A.S.’s physical and developmental limitations that
were apparent to them as lay people, the extensive and ongoing treatment that he received after
he was removed from the home, the significant positive changes in the child’s behaviors that
they observed during this case after his placement in a foster home, and the lack of any
involvement of the parents in those changes. Based on her own observations, the caseworker
testified that she and LCCS remained concerned that Mother would not be able to meet the basic
and special needs of A.S. Taken in context, the caseworker did not purport to render an opinion
that “relate[d] to matters beyond the knowledge or experience possessed by lay persons” that
would require expert testimony under Evid.R. 702(B). Rather, given the record in this case, it
was permissible for the caseworker as a lay witness to testify about what she personally observed
and to offer “opinions or inferences” that were “rationally based on [her] perception” and
“helpful to * * * determination of a fact in issue.” Evid.R. 701. Moreover, the majority of the
testimony admitted about the special needs of A.S. was based on firsthand perception and “more
in the nature of a description by example than the expression of a conclusion.” State v. Jackson,
107 Ohio St.3d 53, 2005-Ohio-5981, ¶ 74, citing State v. Jells, 53 Ohio St.3d 22, 29 (1990).
{¶19} At the time A.S. came into LCCS custody, he was not toilet trained, he had
difficulty walking, most of his teeth were decayed and required extensive dental treatment, and 9
his speech was significantly delayed. Although Mother had enrolled A.S. in school and made
some medical and therapy appointments, A.S. did not attend all of those appointments and did
not regularly attend school or receive regular intervention services to address his special needs.
{¶20} After his removal from the home, A.S. began receiving regular medical and dental
care and began attending occupational and physical therapy sessions several times a week.
Addressing A.S.’s special medical, dental, and developmental needs was a primary component of
the case plan, which the parents were required to address to be reunified with him. Despite being
encouraged to attend A.S.’s medical and therapy appointments, however, Mother and Father
failed to attend any of the appointments during the 12 months before the permanent custody
hearing. Mother did not enroll in parenting classes until shortly before the permanent custody
hearing. At the time of the hearing, she had completed only a few classes. Consequently, LCCS
remained concerned throughout this case that Mother and Father did not acquire any of the
knowledge or skills that they would need to meet the special needs of A.S.
{¶21} Mother admitted that she did not attend any of the medical and therapy
appointments, despite being encouraged to do so. Several witnesses testified that, through
regular therapy and treatment, A.S. had made significant developmental changes over the course
of the year, including that he was toilet trained and his speech and mobility had improved
significantly. The foster mother testified about the physical and occupational therapy
appointments that A.S. attended several times a week as well as the exercises that she performed
with him at home for approximately two hours every day to improve his strength, coordination,
and mobility.
{¶22} At the hearing, Mother attempted to explain her lack of attendance at the medical
and therapy appointments by pointing to the fact that the providers were located in Westlake, 10
several miles from her home in Lorain, and she did not have a vehicle. Mother admitted,
however, that she was the one who had made the original appointments at the Westlake location.
The caseworker further testified that Mother never told her that she had a transportation problem
until shortly before the permanent custody hearing, after the caseworker asked Mother why she
had not attended any of the appointments. Moreover, several witnesses testified that Mother was
able to arrange transportation to and from her own appointments and regular Alcoholics
Anonymous (“AA”) meetings, which were located in four different cities. Mother admitted that
she had been able to arrange transportation through her friends and acquaintances at AA and
stated that it would be no problem for her to move furniture for A.S. from the home of Father’s
adult daughter, who lived in Sandusky, approximately twice as far away from Mother’s home as
Westlake.
{¶23} Mother also failed to make substantial progress on other primary goals of the case
plan: addressing her substance abuse and mental health problems and demonstrating an ability to
financially provide for A.S. Although she had been in and out of numerous drug treatment
programs during the past ten years, she was never able to maintain long-term sobriety from her
“drug of choice[,]” cocaine. Mother failed to regularly submit to drug testing, as ordered by the
court, and many of the samples that she did submit tested positive for drugs. During this case,
Mother entered several different programs, but did not complete an approved residential drug
treatment and aftercare program. She repeatedly dropped out of treatment or aftercare programs
because she “didn’t want to follow the rules” and would typically begin using drugs again.
{¶24} The first witness to testify at the hearing, S.W., had known Mother through the
AA program for several years. She testified that Mother informed her that she had suffered
several drug relapses since October 2012, her purported sobriety date, but had not disclosed the 11
relapses to her caseworker, her AA sponsor, or any of her treatment providers. S.W., a
recovering addict herself, sent a letter to the caseworker to report Mother’s relapses. She
explained that it was fundamental that Mother be honest with herself and others before she can
achieve and maintain sobriety.
{¶25} Apparently after the caseworker confronted Mother about S.W.’s letter, Mother
admitted that she had not been honest about her abstinence from drugs and stated that her actual
sobriety date was May 2013, right about the time that S.W. sent the letter. During her multiple
drug relapses throughout this reopened case, Mother became involved in criminal activity that
led to two periods of incarceration, stemming first from a theft conviction and later for violating
the terms of her probation by testing positive for drugs. At the time of the hearing, although
Mother then purported to have been sober for approximately four months, she had not completed
a drug treatment and aftercare program that sufficiently addressed her longtime addiction to
cocaine.
{¶26} Mother also failed to complete the mental health component of the case plan.
Although she admitted that she had mental health problems and had been taking a prescribed
psychiatric medication, she did not obtain a mental health assessment until after LCCS filed the
permanent custody motion. She had not started any follow-up treatment with a counselor or
psychiatrist.
{¶27} Finally, Mother was required to demonstrate that she had a source of income that
she could budget to financially provide for the basic needs of A.S. Mother had no independent
source of income but was dependent upon Father’s VA benefits for support. Father’s VA
benefits were sufficient to provide for the family’s basic needs, provided that the funds were
properly managed. Although Mother had managed Father’s VA benefits for the family, she was 12
removed as the payee during March 2013 because she had used the funds to buy drugs and for
other personal reasons without first paying for the family’s food, rent, and utilities. She admitted
that she was removed and Father’s adult daughter was designated the payee because her “life
was unmanageable” and she had not been “accountable” or “responsible” with the VA benefits.
{¶28} Without explanation, Mother further testified that she does not qualify for food
stamps because she owes the department of job and family services $8,000 for “extra money for
food stamps.” Mother had also been unable to open a cable television account in her own name
because of an outstanding balance with the provider. During this case, Mother did not obtain
employment or take any other steps to improve her ability to financially provide for her son’s
needs on a consistent basis. At the time of the hearing, Father’s adult daughter continued to
manage Father’s VA benefits, and Mother’s outstanding debts to the cable company and the
department of job and family services had not been resolved.
{¶29} The evidence before the trial court overwhelmingly demonstrated that the parents
had failed to substantially remedy any of the problems that led to A.S.’s removal from their
home. Consequently, the trial court did not err in finding LCCS had established the first prong
of the permanent custody test under R.C. 2151.414(E)(1).
{¶30} Mother and Father also challenge the trial court’s finding that permanent custody
to LCCS was in the best interest of A.S. When determining whether a grant of permanent
custody is in a child’s best interest, the juvenile court must consider all the relevant factors,
including those enumerated in R.C. 2151.414(D): the interaction and interrelationships of the
child, the wishes of the child, the custodial history of the child, and the child’s need for
permanence in his life. See In re R.G., 9th Dist. Summit Nos. 24834 AND 24850, 2009-Ohio-
6284, ¶ 11. “Although the trial court is not precluded from considering other relevant factors, 13
the statute explicitly requires the court to consider all of the enumerated factors.” In re Smith,
9th Dist. Summit No. 20711, 2002 WL 5178, *3 (Jan. 2, 2002); see also In re Palladino, 11th
Dist. Geauga No. 2002-G-2445, 2002-Ohio-5606, ¶ 24.
{¶31} Although Mother visited A.S. on a consistent basis during this case, her
interaction with him never progressed beyond supervised visitation because she did not comply
with any of the primary goals of the case plan. Father attended only about 25 percent of the
scheduled visits and did not engage in play with A.S. when he did attend. For a period of
approximately five months, Father did not attend any of the scheduled visits with A.S. As
explained already, neither parent attended any of the medical and therapy appointments and
lacked any training about how to address the special needs of the child. With his foster family,
on the other hand, the basic and special needs of A.S. were being met, and he was receiving
consistent love, care, and encouragement in that home.
{¶32} The guardian ad litem testified that, although A.S. was seven years old at the time
of the hearing, she had not asked him about his wishes because he had significant cognitive
delays. She testified that, in her opinion, permanent custody was in his best interest.
{¶33} A.S. had spent most of his life in the custody of his parents who did not
adequately provide for his basic or special needs. During the 12 months that he lived outside
their home, however, A.S. had resided in a stable home, where his special medical, dental, and
development needs were consistently addressed. He had made significant improvements while
living in the foster home and had assimilated into that family.
{¶34} The trial court had clear and convincing evidence before it to support its
conclusion that A.S. was in need of a legally secure permanent placement and that such a
placement would only be achieved by terminating parental rights and placing him in the 14
permanent custody of LCCS. LCCS presented undisputed evidence that A.S had spent his entire
seven-year life living in and out of his parents’ custody while he waited for them to achieve
sobriety and develop the skills and stability required to meet his basic and special needs on a
daily basis. Because his parents had failed to remedy their problems, they could not provide a
suitable home for A.S. LCCS had explored numerous relatives as potential caregivers for A.S.,
but none of them was able or willing to provide A.S. with a permanent home. Specifically, the
maternal cousin who had legal custody of A.S.’s older sibling did not believe that she would be
able to meet all of his special needs.
{¶35} Therefore, given the evidence before the trial court, Mother and Father have failed
to demonstrate that the trial court erred in finding that permanent custody was in the best interest
of A.S. Mother’s first and Father’s first, second, and fourth assignments of error are overruled.
FATHER’S ASSIGNMENT OF ERROR III
THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING FATHER’S MOTION FOR [A] CONTINUANCE OF THE TRIAL.
{¶36} Father’s third assignment of error is that the trial court erred in denying his
motion to continue the permanent custody hearing. The decision to grant or deny a continuance
lies within the sound discretion of the trial judge, which requires a balancing of “any potential
prejudice to a [party against] concerns such as a court’s right to control its own docket and the
public’s interest in the prompt and efficient dispatch of justice.” State v. Unger, 67 Ohio St.2d
65, 67 (1981). Pursuant to Juv.R. 23, “[c]ontinuances shall be granted only when imperative to
secure fair treatment for the parties.” Loc.R. 21(A)(1) of the Court of Common Pleas of Lorain
County, Juvenile Division, requires that “[r]equests for continuance of any trial before the Judge
shall be filed no later than thirty (30) days prior to trial[,]” but “[t]his requirement may be waived
by the Court for good cause shown.” 15
{¶37} Father was served with the permanent custody motion in early July 2013 and, by
the end of July, the trial court had scheduled the hearing to commence on October 7. Over the
next two months, counsel for LCCS and counsel for Mother issued subpoenas to witnesses and
for documentary evidence to be presented at the October 7 hearing.
{¶38} Although Father had not requested counsel throughout the pre-hearing
proceedings, he filed a motion for court-appointed counsel less than two weeks before the
permanent custody hearing was scheduled to commence. The trial court apparently contacted the
attorney who was appointed as Father’s trial counsel that same day and filed the order appointing
her a few days later. The following day, less than one week before the hearing was scheduled to
commence, Father’s counsel filed a motion for a continuance, requesting more time to become
familiar with the facts of the case.
{¶39} The trial court denied the written motion, explaining that trial counsel had been
informed about the hearing date at the time she agreed to accept the appointment by the court.
Given that Father was aware of the impending proceedings but waited until shortly before the
hearing to request court-appointed counsel and counsel was aware of the impending hearing date
when she accepted the appointment, under the circumstances of this case, we cannot say that the
trial court acted unreasonably or arbitrarily when it denied Father’s request for a continuance.
Moreover, Father has failed to argue or demonstrate any prejudice to his defense by the trial
court’s denial of the continuance. Father’s third assignment of error is overruled.
MOTHER’S ASSIGNMENT OF ERROR II
MOTHER’S TRIAL COUNSEL WAS INEFFECTIVE IN ASSISTING HER IN THIS MATTER.
{¶40} Mother’s remaining assignment of error is that she was denied the effective
assistance of trial counsel because counsel failed to “subpoena several witnesses” who “would 16
have testified about Mother’s ability to meet the case plan goals, as she was successful in prior
matters with LCCS in meeting her case plan goals.”
{¶41} To establish a claim of ineffective assistance of counsel, a defendant must
demonstrate that counsel’s performance was deficient and that the deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). A “deficient
performance” is one that fell below an objective standard of reasonableness. Id. at 687-88. To
establish prejudice, the defendant must show that there is a reasonable probability that, but for
counsel’s errors, the result of the proceeding would have been different. Id. at 694. Moreover,
trial counsel’s decision whether to call a witness generally “falls within the rubric of trial
strategy and will not be second-guessed by a reviewing court.” State v. Treesh, 90 Ohio St.3d
460, 490 (2001).
{¶42} As explained above, the trial court’s permanent custody decision focused in part
on Mother’s ability, at the time of the hearing, to provide her son with a suitable home under
circumstances of sustained sobriety and stable mental health. Even assuming counsel was
deficient in failing to call LCCS witnesses to testify about Mother’s past ability to reach her prior
case plan objectives, Mother has not established prejudice. Mother’s ability to successfully work
a case plan five or six years earlier, although relevant to the background of this case, did not
establish that she had the current ability to provide A.S. with a suitable permanent home. Given
the evidence in the record before us, Mother has not explained how such testimony would have
affected the outcome of the case. Mother’s second assignment of error is overruled.
Judgment affirmed. 17
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellants.
EVE V. BELFANCE FOR THE COURT
HENSAL, J. WHITMORE, J. CONCUR.
APPEARANCES:
KATHLEEN M. AMERKHANIAN, Attorney at Law, for Appellant.
THOMAS MCGUIRE, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and ERIN MYERS, Assistant Prosecuting Attorney, for Appellee.