[Cite as In re J.M-R., 2013-Ohio-1560.]




                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                       No. 98902



                                          IN RE: J.M-R.
                                            Minor Child
                                   [Appeal By T.M., Mother]



                                           JUDGMENT:
                                            AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                       Juvenile Division
                                   Case No. AD 11919533


        BEFORE: Boyle, P.J., Rocco, J., and Keough, J.

        RELEASED AND JOURNALIZED:                 April 18, 2013
ATTORNEY FOR APPELLANT

Timothy R. Sterkel
1414 South Green Road
Suite 310
South Euclid, Ohio 44121


ATTORNEYS FOR APPELLEES

For Cuyahoga County Department of Children and Family Services

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Mark Adelstein
Assistant Prosecuting Attorney
8111 Quincy Avenue
Room 450
Cleveland, Ohio 44104

For D.R.

Jay L. Mattes
4699 Azalea Lane
North Olmsted, Ohio 44070

Guardian Ad Litem for Child

Melinda J. Annandale
20033 Detroit Road
Annex F1-1
Rocky River, Ohio 44116

Guardian Ad Litem for Mother

Amy L. Habinski
526 Superior Avenue
Suite 1255
Cleveland, Ohio 44114
MARY J. BOYLE, P.J.:

       {¶1} Appellant-mother, T.M.1 (“mother”), appeals the juvenile court’s judgment

granting permanent custody of her minor child, J.M-R. (d.o.b. November 3, 2011), to

Cuyahoga County Department of Children and Family Services (“CCDCFS” or “the

agency”). She raises three assignments of error for our review:

       1. The trial court committed error when it proceeded with the permanent
       custody hearing without complying with 25 U.S.C. 1912.

       2. The trial court committed error when it terminated appellant’s parental
       rights and granted permanent custody to CCDCFS.

       3. Appellant was denied effective assistance of counsel.

       {¶2} Finding no merit to her appeal, we affirm.

                       Procedural History and Factual Background

       {¶3} On November 4, 2011, CCDCFS filed a complaint alleging that J.M-R. was

a dependent child and requesting a disposition of permanent custody. After a hearing on

CCDCFS’s motion, the agency was granted predispositional temporary custody of J.M-R.

 The court appointed a guardian ad litem for mother and a guardian ad litem for J.M-R.

       {¶4} On March 12, 2012, mother filed a motion for legal custody, requesting that

she be granted legal custody of J.M-R., or in the alternative, that legal custody be granted

to the maternal grandmother, M.M., or the child’s cousin, N.M.


        The parties are referred to by their initials or title in accordance with this
       1


court’s established policy regarding non-disclosure of identities in juvenile cases.
       {¶5} On March 20, 2012, the child’s guardian ad litem, Melinda Annandale,

submitted a report to the court stating that it was her opinion that it was in the child’s best

interest to be placed in the permanent custody of CCDCFS. Annandale explained that

she had been involved with mother since August 14, 2009. She was the guardian ad

litem for mother’s other two children who had been permanently removed from mother

and father. She stated that the alleged father “has never made an appearance nor made

his whereabouts known to me.” She stated that mother was cooperative and expressed

her desire to rear her children, but that she had been diagnosed with learning disabilities

and limited intellectual capabilities. Annandale opined that reunification would require

significant support from other adults, but that there was no suitable person available.

Annandale further stated that no relative was suitable for placement.           According to

Annandale, father had not engaged in any case plan services. Mother had made attempts,

but had not, or could not, follow through. She explained that mother did complete a

parenting class, but failed to benefit from it.         Further, mother has had multiple

opportunities to establish her own residence to provide basic needs, but “it just never

happens.” Since the case had not been tried, Annandale reserved the right to change her

recommendation.

       {¶6} On June 20, 2012, mother and alleged father, D.R., admitted to an amended

complaint alleging dependency, including (1) mother and alleged father had two children

permanently removed from their care due to physical abuse of one of the children and

both were placed in permanent custody in July 2011; (2) mother and alleged father had a
domestically violent relationship, and mother needs domestic violence services; (3)

mother has developmental delays; (4) mother had independent supportive housing for

herself and resides with alleged father; (5) mother engaged in parenting classes and needs

to re-engage; (6) alleged father needs to engage in parenting classes; (7) alleged father

needs substance abuse treatment; and (8) alleged father needs to visit child and has

attempted to establish paternity. Subsequently, the court adjudicated J.M-R. to be a

dependent child.

      {¶7} The court held a permanent custody hearing on July 31, 2012. Present at

the hearing were mother, mother’s counsel, mother’s guardian ad litem, the guardian ad

litem for J.M-R., counsel for CCDCFS, and Michelene Willis, the CCDCFS social

worker assigned to the case.

      {¶8} Willis testified that she got involved with mother and father when the

agency obtained emergency custody of their two older children, born November 14, 2008

and January 4, 2010, after the oldest child suffered multiple leg fractures when he was in

father’s care. The leg fractures were at different stages of healing when Willis was

assigned to the case. This oldest child also had other injuries, including bruising on his

face and a burn on his thumb.      Willis testified that the agency received permanent

custody of these children in June 2011. CCDCFS became involved with J.M-R. because

mother became pregnant with him while she still had an active case with the agency.

Because neither mother nor father had completed their case plans for the other children,

the agency removed J.M-R. from mother and father at birth.
       {¶9} Regarding J.M-R., Willis testified that mother’s case plan for all three

children included a mental health component. Mother did not comply with this part of

her case plan with the other two children or with J.M-R. Willis explained that mother

had a psychological evaluation through the court clinic.          It found that mother has

borderline intellectual capabilities. Mother was referred for mental health counseling.

This counselor was assigned to not only assist mother with mental health counseling, but

also to assist mother with all of the other components of her case plan. Although mother

initially went to her appointments, she stopped going.

       {¶10} Regarding mother’s parenting component of her case plan, Willis testified

that mother attended 15 of 18 parenting classes at the YWCA and did not receive her

certificate. Mother was subsequently referred to two other parenting classes through

Beech Brook and Carl Stokes, but she did not complete either of those programs.

       {¶11} Willis testified that mother was supposed to receive domestic violence

services as part of her case plan. Mother was referred to the YWCA for its seven-week

domestic violence program. Although mother attended “the seven classes,” she did not

obtain a certificate because she failed to complete the final phase of the program that

included her preparing a safety plan and giving it to the instructor.

       {¶12} According to Willis, mother and father lived together in a two-bedroom

house. Mother and father admitted to a domestic violence history that included pushing

each other. Father admitted to putting “his hands on” mother in the past. Father never

completed a domestic violence program. Although Willis agreed that there had not been
any domestic violence in their home since father had moved in, Willis explained that

there were safety concerns because mother still lived with father.

       {¶13} Willis further testified that mother never obtained a stable job, which was

part of her case plan.

       {¶14} Willis testified that father never completed any of his case plan. He had not

established paternity. He did have a substance abuse assessment, but never followed

through with the recommendations. Father never submitted to any random drug tests,

although he admitted to smoking marijuana. Father never completed domestic violence

classes, parenting classes, or provided proof of a stable income. Willis also stated that

since the agency had obtained emergency custody of J.M-R., father had only visited him

three times.

       {¶15} Willis did not know definitively how many times mother had visited J.M-R.,

but said that mother visited him about once a month. Willis transports J.M-R. to each

visit with mother and supervises the visits. Willis said that the majority of the time

J.M-R. cries the “entire visit.”

       {¶16} Willis testified that J.M-R. was placed in a foster-to-adopt home. She

stated that J.M-R. was doing well and was “developmentally on target.” According to

Willis, J.M-R. is very bonded to his foster family and his extended foster family. When

Willis takes him back to the foster home, he is “excited to be back home and he calms

down.”
       {¶17} Willis testified that the agency investigated relatives to take custody of

J.M-R. She stated that a paternal aunt’s home study was denied due to drug-related

convictions. A maternal cousin was rejected due to a 2004 felony burglary conviction,

plus she had a prior history with CCDCFS and Lorain County children services, with a

substantiated sexual abuse allegation. The maternal grandmother was also investigated.

Willis testified that at first the grandmother told her a few months before the permanent

custody hearing that she did not want custody of J.M-R. because “she wanted to get her

life together.” Willis said that the maternal grandmother still had two minor children in

her custody, out of six or seven children. The maternal grandmother had a history with

CCDCFS, including seven or eight referrals, with four being substantiated or indicated.

Grandmother did visit with J.M-R. approximately 40 percent of the time, but according to

Willis, J.M-R. was not bonded to the grandmother. The grandmother also had a prior

drug trafficking conviction.

       {¶18} Mother had several witnesses testify against permanent custody.          The

maternal grandmother testified that she had been visiting J.M-R. since he was born. She

testified that she wanted legal custody of him. She stated that she had not had a drug

trafficking conviction since 1991. She had seven children, two still at home. Mother

was actually born while she was in prison for her drug trafficking conviction. While

grandmother was in prison, her other children were in the custody of their father, but she

said they were never removed from her custody.
       {¶19} The maternal cousin testified that she visited J.M-R. when he was born.

She testified that she even took her daughters to visit him one time. The last time she

visited him was at Christmas in 2011. She stated that she had asked to visit with him

again, but the visitation schedule conflicted with her children’s schedules. She testified

that she was never incarcerated for her convictions; she only served two months of

probation. She further testified that her children were never removed from her custody.

She said that in preparation for obtaining custody of other children, she attended foster

care parenting classes and received a certificate in March 2011, but Willis told her it was

only good for one year. The maternal cousin testified that she was taking the classes

again to obtain a new certificate. The maternal cousin further explained that she receives

SSI because she was born with spinal meningitis that left her with cerebral palsy on the

right side of her body.

       {¶20} On cross-examination, the maternal cousin agreed that she never completed

a home study to have foster children live with her.

       {¶21} Annandale, the child’s guardian ad litem, testified that after she heard all of

the evidence, her recommendation remained the same, i.e., that CCDCFS receive

permanent custody of J.M-R.        On cross-examination, Annandale testified that the

maternal grandmother did not want custody of J.M-R. until Annandale told her that she

could receive money from the state for having custody of him.

       {¶22} After hearing all of the evidence, the trial court granted CCDCFS’s motion

for permanent custody.
       {¶23} Mother’s assignments of error will be addressed out of order for ease of

discussion.

                            Permanent Custody Determination

       {¶24} In her second assignment of error, mother argues that the trial court erred

when it granted CCDCFS’s motion for permanent custody.

       {¶25} An agency may obtain permanent custody of a child in two ways. In re

E.P., 12th Dist. Nos. CA2009-11-022 and CA2009-11-023, 2010-Ohio-2761, ¶ 22. An

agency may first obtain temporary custody of the child and then file a motion for

permanent custody. See R.C. 2151.413. Or, an agency may request permanent custody

as part of its original abuse, neglect, or dependency complaint, which is what the agency

did in the present case. See R.C. 2151.27(C) and 2151.353(A)(4).

       {¶26} The termination of parental rights is governed by R.C. 2151.414. In re

M.H., 8th Dist. No. 80620, 2002-Ohio-2968, ¶ 22. A trial court must apply a two-prong

test under this statute, measured by clear and convincing evidence. Id.      R.C.

2151.414 establishes a two-part test for courts to apply when determining a motion for

permanent custody to a public services agency. The statute requires the court to find, by

clear and convincing evidence, that (1) granting permanent custody of the child to the

agency is in the best interest of the child under R.C. 2151.414(D), and (2) either the child

(a) cannot be placed with either parent within a reasonable period of time or should not be

placed with either parent if any one of the factors in R.C. 2151.414(E) are present; (b) is

abandoned; (c) is orphaned and no relatives are able to take permanent custody of the
child; or (d) has been in the temporary custody of one or more public or private children

services agencies for twelve or more months of a consecutive 22-month period. R.C.

2151.414(B)(1).

       {¶27} Clear and convincing evidence is

       that measure or degree of proof which is more than a mere “preponderance
       of the evidence” but not to the extent of such certainty required “beyond a
       reasonable doubt” in criminal cases, and which will produce in the mind of
       the trier of facts a firm belief or conviction as to the facts sought to be
       established.

 In re Awkal, 95 Ohio App.3d 309, 642 N.E.2d 424 (8th Dist.1994), fn. 2, citing

Lansdowne v. Beacon Journal Publishing Co., 32 Ohio St.3d 176, 512 N.E.2d 979

(1987).

       {¶28} “An appellate court will not reverse a juvenile court’s termination of

parental rights and award of permanent custody to an agency if the judgment is supported

by clear and convincing evidence.” In re Jacobs, 11th Dist. No. 99-G-2231, 2000 Ohio

App. LEXIS 3859, *11 (Aug. 25, 2000), citing In re Taylor 11th Dist. No. 97-A-0046,

1999 Ohio App. LEXIS 2620 (June 11, 1999).

       A. First Prong: Placement With Either Parent

       {¶29} The trial court’s determination of whether the child cannot or should not be

placed with either parent is guided by R.C. 2151.414(E). This section sets forth 16

factors that the trial court may consider in its determination. It provides that if the trial

court finds by clear and convincing evidence that any of the 16 factors exists, the court
must enter a finding that the child cannot or should not be placed with either parent within

a reasonable period of time. In re D.J., 8th Dist. No. 88646, 2007-Ohio-1974,  64.

       {¶30} Relevant to this section, the trial court made the following findings:

       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 substantially remedy the conditions causing the child to be
       placed outside the child’s home. [R.C. 2151.414(E)(1)]

       The chronic mental illness, chronic emotional illness, mental retardation,
       physical disability, or chemical dependency of the parent that is so severe
       that it makes the parents unable to provide an adequate permanent home for
       the child at the present time and, as anticipated, within one year from the
       time the court holds the hearing. [R.C. 2151.414(E)(2)]

       The parent has demonstrated a lack of commitment toward the child by
       failing to regularly support, visit, or communicate with the child when able
       to do so, or by other actions showing an unwillingness to provide an
       adequate permanent home for the child. [R.C. 2151.414(E)(4)]

       The father has abandoned the child. [R.C. 2151.414(E)(10)]

       The parent has had parental rights terminated with respect to a sibling of the
       child and the parent has failed to provide clear and convincing evidence to
       prove, that notwithstanding the prior termination, the parent can provide a
       legally secure permanent placement and adequate care for the health,
       welfare, and safety of the child. [R.C. 2151.414(E)(11)]

       {¶31} One of the 16 factors would have been sufficient. In re M.W., 8th Dist. No.

91539, 2009-Ohio-121, ¶ 49. It is undisputed that mother had two previous children

involuntarily removed from her custody. This factor alone would have supported the

trial court’s finding that J.M-R. could not or should not be returned to mother within a

reasonable period of time. Id.
      {¶32} But the record also shows that while mother was attempting to make

progress toward her case plan, she had not completed any of the components of it. She

had stopped going to her mental health counselor, who was not only helping her with

various counseling issues, but was there to help her understand and complete the other

aspects of her case plan. Mother failed to complete the requirements of her parenting

and domestic violence classes. Although she obtained a stable residence, she had not

obtained a safe residence because she still allowed father to live with her. Father had not

completed any of his case plan, especially relating to domestic violence, substance abuse,

and anger management issues. Evidence also established that mother had not obtained

stable employment.

      {¶33} Further, the trial court heard evidence that mother had borderline intellectual

capacity. Without support, mother would not be able to care for J.M-R. by herself.

According to J.M-R.’s guardian ad litem, there was no person suitable to assist mother in

caring for J.M-R.

      {¶34} Mother argues that Willis acknowledged that mother needed “specialized

classes” because of her disability. Mother contends that Willis further admitted that she

sent mother to parenting and domestic service classes that were not “specialized classes.”

 Because of this, mother contends that the agency ignored mother’s needs. We disagree.

 Willis testified that mother’s mental health counselor was set up to assist mother in all

aspects of her case plan, but that mother stopped going to her mental health appointments.
      {¶35} In light of the evidence presented at trial, we conclude that the trial court did

not err in determining that notwithstanding reasonable efforts by CCDCFS to reunite

J.M-R. with mother, J.M-R. cannot and should not be placed with either parent within a

reasonable time.

      B. Second Prong: Best Interest Determination

      {¶36} When determining whether a grant of permanent custody is in the children’s

best interest, the juvenile court must consider the following factors under R.C.

2151.414(D)(1):

      (a) 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;

      (b) The wishes of the child, as expressed directly by the child or through the
      child’s guardian ad litem, with due regard for the maturity of the child;

      (c) The custodial history of the child, including whether 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 * * *;

      (d) 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 to the agency;

      (e) Whether any of the factors in divisions (E)(7) to (11) apply in relation to
      the parents and child.

      {¶37} This court has “consistently held that only one of the factors set forth in R.C.

2151.414(D) needs to be resolved in favor of the award of permanent custody in order for

the court to terminate parental rights.” In re Z.T., 8th Dist. No. 88009, 2007-Ohio-827, ¶

56.
       {¶38} The trial court found that placement with a relative was not in J.M-R.’s best

interest. It further found that it would be contrary to J.M-R.’s best interest to be returned

to mother. It noted that the mother had another child, a sibling, removed from her

permanently. It further concluded that the agency provided relevant services to mother,

but that those services were not successful in assisting mother to complete her case plan.

       {¶39} After reviewing the record, we conclude that the trial court had sufficient

competent credible evidence before it to find that it was in J.M-R.’s best interest to be

placed in permanent custody. CCDCFS presented evidence at the permanent custody

hearing establishing that J.M-R. had a very strong bond with his foster family, that he was

doing well and was developmentally “on target.” J.M-R. was not old enough to express

his own wishes, but his guardian ad litem recommended it was in his best interest to be

placed in the permanent custody of CCDCFS.

       {¶40} Further, evidence was presented to establish that J.M-R.’s need for a legally

secure permanent placement could not be achieved without a grant of permanent custody.

 Neither parent had completed any aspect of their case plan — even before J.M-R. was

born with respect to the other two children. Notably, even after they received a new case

plan for J.M-R., they were not able to complete the new case plan either.

       {¶41} The court also heard evidence that mother chose to allow father to live with

her. Mother and father both admitted that their relationship had been violent. But even

more significant, father had severely abused their oldest child, which resulted in mother

and father permanently losing custody of both of their older children. Mother still chose
to live with father, without father addressing any of his issues relating to child abuse and

domestic violence.

       {¶42} Finally, the fact that mother and father had two other children (siblings of

J.M-R.) who had been placed in the permanent custody of CCDCFS is another factor a

court can consider when determining what is in the child’s best interest.              R.C.

2151.414(D)(1)(e) (whether any of the factors in (E)(7) to (11) apply; other children

being placed in the permanent custody of the agency is (E)(11)).

       {¶43} Mother argues that she was “clearly * * * progressing toward reunification

with her child.”     She maintains that she had continually visited her child, obtained

housing, and completed various classes that she was asked to attend. Mother contends

that based on this evidence, “the best interest of the child was not served in terminating”

her rights.

       {¶44} While mother may be correct that the evidence shows that she was

attempting to complete the requirements of her case plan, it also shows that mother had

not completed many aspects of her case plan. Most notably, mother stopped going to her

mental health counselor, who was the one person who could have assisted mother in

completing the other aspects of her case plan. Further, mother continued to live with

father despite the fact that he had not completed any aspect of his case plan.

       {¶45} Accordingly, after reviewing the record, we conclude it supports the trial

court’s finding that it was in J.M-R.’s best interest to be placed in the permanent custody

of CCDCFS.
      {¶46} Mother’s second assignment of error is overruled.

                                 Indian Child Welfare Act

      {¶47} In her first assignment of error, mother claims that the trial court erred when

it proceeded with the permanent custody hearing without complying with the Indian Child

Welfare Act (“ICWA”).

      {¶48} The ICWA provides certain procedural safeguards in child custody

proceedings when the subject child is an Indian child, as defined in 25 U.S.C. 1903. The

ICWA was enacted due to the increasing concern over the large number of Native

American children who were being placed in non-Native American foster or adoptive

homes. See 25 U.S.C. 1901(4). The ICWA provides, in part:

      [I]t is the policy of this Nation to protect the best interests of Indian children
      and to promote the stability and security of Indian tribes and families by the
      establishment of minimum federal standards for the removal of Indian
      children from their families and the placement of such children in foster or
      adoptive homes which will reflect the unique values of Indian culture[.]

25 U.S.C. 1902.      Subchapter 1 of the ICWA is applicable to this case because it

addresses child custody proceedings and proceedings that terminate parental rights. In re

Sanchez, 11th Dist. No. 98-T-0104, 1999 Ohio App. LEXIS 5940 (Dec. 10, 1999).

      {¶49} A tribe has exclusive jurisdiction over child custody proceedings in

situations in which the Native American child resides or is domiciled within its

reservation. 25 U.S.C. 1911(a). However, when a subject child does not reside on a

reservation, child custody proceedings may be initiated in a state court. 25 U.S.C.

1911(b).   In these situations, the state court, “in the absence of good cause to the
contrary, shall transfer such proceeding to the jurisdiction of the tribe.” Id. Notice must

be given to the tribe “in any involuntary [child custody] proceeding in a state court, where

the court knows or has reason to know that an Indian child is involved[.]” 25 U.S.C.

1912(a).

       {¶50} In order for any of the provisions of the ICWA to apply, the court must first

determine that the child is an “Indian child” as defined in the ICWA. See 25 U.S.C.

1912(a); In re J.D.B., 584 N.W.2d 577, 582 (Iowa App.1998). An Indian child is

defined as “any unmarried person who is under age eighteen and is either (a) a member of

an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological

child of a member of an Indian tribe[.]” 25 U.S.C. 1903(4). The burden rests on the

party who asserts the applicability of the ICWA to prove that the child meets the

definition. In re Jordan, 9th Dist. Nos. 20773 and 20786, 2002 Ohio App. LEXIS 271,

*22 (Jan. 30, 2002), citing In re J.D.B., 584 N.W.2d 577, 582, and Hofmann v. Anderson,

176 Ore. 311, 315, 31 P.3d 510 (2001).

       {¶51} In this case, mother had the burden to prove that the children met the

statutory criteria required for the ICWA to apply. Mother asserts in her brief that “the

parents of the minor child are in the best position to inform the court as to whether or not

their minor child is an Indian child.” The record is clear that mother never notified the

trial court orally or in writing that J.R.-M. had Native American heritage, nor did she

request a transfer to a tribal court.

Accordingly, we overrule mother’s first assignment of error.
                             Ineffective Assistance of Counsel

       {¶52} In her third assignment of error, mother contends that her trial counsel was

ineffective because her counsel “allowed her to enter a plea to the amended dependency

complaint knowing the state was seeking permanent custody of her child.”

       {¶53} The right to counsel, guaranteed in permanent custody proceedings by R.C.

2151.352 and Juv.R. 4, includes the right to the effective assistance of counsel. In re

Wingo, 143 Ohio App.3d 652, 666, 758 N.E.2d 780 (4th Dist.2001), citing In re Heston,

129 Ohio App.3d 825, 827, 719 N.E.2d 93 (1st Dist.1998). “‘Where the proceeding

contemplates the loss of parents’ ‘essential’ and ‘basic’ civil rights to raise their children,

* * * the test for ineffective assistance of counsel used in criminal cases is equally

applicable to actions seeking to force the permanent, involuntary termination of parental

custody.’” Id., quoting Heston.

       {¶54} To reverse a trial court’s judgment based upon a claim of ineffective

assistance, a defendant must show, first, that counsel’s performance was deficient and,

second, that the deficient performance prejudiced the defense so as to deprive the

defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,

80 L.Ed.2d 674 (1984); State v. Noling, 98 Ohio St.3d 44, 65, 2002-Ohio-7044, 781

N.E.2d 88; State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). Both prongs of

this test need not be analyzed, however, if a claim can be resolved under one prong.

State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000); State v. Loza, 71 Ohio

St.3d 61, 83, 641 N.E.2d 1082 (1994).
       {¶55} As mother states, “[t]rial counsel knew, or at the very least, should have

known, that factor 2151.414(E)(11) existed and that the court would find that the child

could not be placed with either parent within a reasonable time.” Indeed, the agency

requested that permanent custody be granted in their initial complaint. So we agree that

her counsel knew that factor R.C. 2151.414(E)(11) existed (that mother had two other

children permanently removed from her custody). But we find that mother’s counsel’s

performance was not deficient, nor do we find any prejudice.            The state presented

evidence that mother had two other children permanently removed from her custody by

certified journal entry and the testimony of Willis at both the adjudication hearing and the

permanent custody hearing.

       {¶56} Accordingly, mother’s third assignment of error is overruled.

       {¶57} Judgment affirmed.

       It is ordered that appellees recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



MARY J. BOYLE, PRESIDING JUDGE

KENNETH A. ROCCO, J., and
KATHLEEN ANN KEOUGH, J., CONCUR
