[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.
