[Cite as In re N.P., 2012-Ohio-4298.]


                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                          Nos. 97846, 97847, 97848, 97849, 97850,
                           97851, 97852, 97853, 97854 and 97855


                       IN RE: N.P., R.W., T.W. and E.W.
                               Minor Children
         [Appeal by Merle P., Ricky W. and Rondaline W.]



                                 JUDGMENT:
                         AFFIRMED IN PART, REVERSED
                           IN PART, AND REMANDED



                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                        Juvenile Division
                              Case Nos. AD 08939556, AD 08939557,
                                 AD 09920158, and AD 11902585

        BEFORE: E. Gallagher, J., Sweeney, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                  September 20, 2012
ATTORNEYS FOR APPELLANT

For Rondaline W.

Dale M. Hartman
2195 South Green Road
University Heights, Ohio 44121

For Ricky A. W.

Betty C. Farley
17316 Dorchester Drive
Cleveland, Ohio 44119

For Merle P.

Jeffrey Froude
P. O. Box 771112
Lakewood, Ohio 44107

ATTORNEYS FOR APPELLEE

For C.C.D.C.F.S.

Cheryl Rice
Assistant County Prosecutor
C.C.D.C.F.S.
3955 Euclid Avenue
Cleveland, Ohio 44115

Gregory S. Millas
Assistant Prosecuting Attorney
C.C.D.C.F.S.
8111 Quincy Avenue, Rm. 444
Cleveland, Ohio 44104

For Guardian Ad Litem

Daniel Bartos
20220 Center Ridge Road
Suite 320
Rocky River, Ohio 44116
EILEEN A. GALLAGHER, J.:

           {¶1} Appellants Merle P., Ricky W. and Rondaline W. appeal from the

judgment of the Cuyahoga County Court of Common Pleas, Juvenile Division, granting

permanent custody of N.P., R.W., E.W. and T.W. to the Cuyahoga County Department

of Children and Family Services (“Department”).1 Through their consolidated appeals,

appellants argue that the court’s decision granting permanent custody to the Department

was against the manifest weight of the evidence, that it was not in the best interest of the

children, that the court failed to follow the mandates of Juv.R. 29 and that counsel for

appellant Merle P. rendered ineffective assistance.              For the following reasons, we

affirm, in part, reverse, in part, and remand the matter for proceedings consistent with

this opinion.

           {¶2} This case involves four young girls: N.P., (d.o.b. November 16, 1998),

R.W. (d.o.b. May 15, 2008), E.W. (d.o.b. October 11, 2009); and T.W. (d.o.b. January 5,

2011).      The children’s mother is appellant Rondaline W., appellant Merle P. is the

children’s maternal great-grandmother and appellant Ricky W. is the biological father of

E.W., and T.W., and the legal father of R.W. N.P.’s father is a man by the name of

Stuart Miller who, at the time of this appeal, failed to support, visit or communicate with

his daughter since her birth.         R.W.’s biological father is Gary Macon, though the

       1
         The parties are referred to herein by their initials or title in accordance with this court’s
established policy regarding nondisclosure of identities in juvenile cases.
Department referred to appellant Watson as R.W.’s legal father because he and

Rondaline W. were married at the time of her birth.

           {¶3} On October 22, 2008, the Department removed N.P. and R.W. from

Rondaline W. and Ricky W.’s care.         At the time of removal, Rondaline W. and Ricky

W. had not supervised the children, they had not benefitted from parenting classes, Ricky

W. had an admitted substance abuse problem with marijuana and Rondaline W. did not

want her daughters returned to her care.          Additionally, N.P. had been perpetrating

sexual activity on her younger brother and had set fire to a bed in the family home.

N.P.’s actions were the result of past sexual abuse by her maternal grandfather2 for

which she was to receive counseling.        However, Rondaline W. continuously cancelled

appointments with N.P.’s therapist.

           {¶4} On January 6, 2009, the magistrate adjudged N.P. and R.W. dependent and

committed the girls to the custody of the Department. At the time of the hearing,

Rondaline W. agreed with the children’s temporary placement with the Department.

The trial court adopted the magistrate’s decision on January 29, 2009. Subsequently,

the Department moved to modify the order of temporary custody to permanent custody

on July 16, 2009.

           {¶5} While in the Department’s custody, N.P. disclosed to her therapist, Peggy

Haynes, that she had been sexually abused by her mother, her stepfather Ricky W. and



       2
        See CR-483847, in which Darrell Green pleaded guilty to gross sexual imposition and
abduction on July 17, 2007. The trial court classified Green as a sexually oriented offender and
 her father’s friend, Gary Macon.        N.P. was very descriptive about oral, vaginal and anal

 sex with the two men. Additionally, N.P. disclosed that she had watched pornography

 with her mother. N.P. made these same disclosures to David R. Denholm, a therapist

 and coordinator of the secure treatment unit at the Berea Children’s Home and Lauren

 McAliley, the Associate Director of the Center for Pediatric Ethics and a Pediatric Nurse

 Practitioner with Child Advocacy Protection at Rainbow Babies and Children’s Hospital.

  N.P.’s disclosures to all three individuals were consistent, specific and detailed.

            {¶6} Based on N.P.’s disclosures, Rondaline W., Ricky W. and Gary Macon

 were all indicted for various crimes and each were convicted of various charges relating

 to their abuse of N.P.3

            {¶7} Rondaline W. gave birth to E.W. on October 11, 2009. E.W. was born

 prematurely with a club foot, range of motion problems with her upper and lower

 extremities and acid reflux, which affected her weight gain.            A magistrate conducted an

 emergency custody hearing on October 30, 2009, at which time the parties agreed to the

 grant of emergency custody.         The Department placed E.W. with Merle P., her maternal



sentenced him to three years in prison with five years of postrelease control.

       See CR-534303. The court found Rondaline W. guilty of two counts of
        3

endangering children and sentenced her to one year of community controlled
sanctions. See CR-550133. A jury found Ricky W. guilty of two counts of rape
with sexually violent predator specifications, two counts of kidnapping with sexual
motivation specifications, two counts of disseminating matter harmful to juveniles
and two counts of endangering children. The trial court sentenced Ricky W. to 25
years to life on April 4, 2012. See CR-534303. The court found Gary guilty of one
count each of rape of a child under 13 years old, gross sexual imposition and
kidnapping. The court sentenced Gary to mandatory life in prison without the
great-grandmother.       At that time, the magistrate ordered Merle P. to supervise all

interaction between E.W. and her parents and specifically instructed Merle P. that the

child was not to be left unsupervised with her parents.

       {¶8} On February 23, 2010, Merle P. filed a motion for legal custody of N.P.,

R.W., and E.W. and the trial court made her a party to each of the children’s cases.

Even though she wanted custody of each of the children, Merle P. admitted that she did

not believe the allegations of sex abuse that N.P. had made against her mother and

stepfather and testified on behalf of Rondaline W. at her criminal trial.   Also, Merle P.

facilitated contact between N.P. and her mother, in violation of the trial court’s

no-contact order.

       {¶9} On August 16, 2010, the trial court held an adjudicatory hearing and found

E.W. to be a dependent child.     At the hearing, Rondaline W. testified that she had been

diagnosed with post-traumatic stress disorder and borderline personality disorder and

that her two older children, N.P. and R.W., had previously been removed from her care

and that her son was in the permanent custody of his father. Rondaline W. admitted

that she had a history of unsanitary housing and that she had demonstrated a lack of

parenting skills with regard to her older two daughters.

       {¶10}     E.W. remained in the care of her maternal great-grandmother until

February 2011.      At that time, the Department claimed that Merle P. violated the court’s

no-contact order by leaving E.W. unsupervised with her father.      Merle P. later testified


possibility of parole.
that she was left in an unwinnable position. Specifically, Merle P. was called to testify

in Rondaline W.’s criminal trial one day earlier than originally planned, the Department

had failed up until that point to provide Merle P. with respite care, Merle P. was not

permitted to bring E.W. into the courtroom while she testified and the trial court judge

ordered Merle P. to leave E.W. in the hall, where she remained with court security,

assistant county prosecutors and Ricky W..

       {¶11}     Notwithstanding this issue, the Department cited to other issues

concerning Merle P.’s care of E.W. in that she repeatedly missed E.W.’s neurological

and genetic appointments.           Additionally, Merle P. admitted that even though the

Department had removed E.W. from her care, she continued to receive and accept social

security benefits for that child.

       {¶12}    Rondaline W. gave birth to T.W. on January 5, 2011. Initially, the

Department did not know Rondaline W. had given birth to another baby. When they

were informed, social workers responded to Rondaline W.’s and Ricky W.’s residence.

Rondaline W. eventually admitted to social workers that she had birthed another child

and that the baby was staying with a friend down the street. Social workers removed

T.W. from her parents’ care and filed a complaint on February 14, 2011, alleging

dependency with a prayer for permanent custody.

       {¶13}    On April 15, 2011, Rondaline W. and Ricky W. admitted to an amended

complaint and the court adjudicated T.W. as a dependent child.           At the hearing,

Rondaline W. admitted that she was convicted of two counts of child endangering
relating to her conduct with her eldest daughter, N.P., and that she was to have no

contact with this child. Ricky W. admitted that he was awaiting trial on charges of

rape, kidnapping and disseminating matter harmful to juveniles relating to his conduct

with his stepdaughter, N.P. Additionally, Ricky W. stated that he did not comply with

the Department’s request for random drug screens.       Merle P. again moved for legal

custody of the youngest child and completed a statement of understanding for legal

custody on April 15, 2011.

       {¶14}    The Department presented evidence that since their removal, N.P., R.W.

and T.W. have all been placed in the same foster home.             N.P.’s aggressive and

sexualized behavior have improved and she also saw an improvement in her grades at

school.     E.W. no longer has any physical or medical conditions requiring special

services and although she is in a different foster home than her sisters, the foster family

is willing to take her in as well.

       {¶15} The Department also presented evidence that since 2008, Rondaline W. and

Ricky W. have failed to remedy the conditions that caused the removal of the four

children.    The Watson’s problem with maintaining a hygienic environment for the

children was ongoing, Ricky W. failed to complete a drug assessment and comply with

random drug tests, Rondaline W. failed to complete the mental health component of the

case plan and failed to consistently attend counseling. While Ricky W. and Rondaline

W. attended a support group for parents, they failed to complete the more hands-on

program recommended by their social workers.        Lastly, Rondaline W., Ricky W. and
Gary Macon all were convicted for their various forms of sexually-related abuse of N.P.

          {¶16}   The court consolidated the four children’s cases and conducted the

hearing for permanent custody over several days.         The court heard numerous days of

the testimony and evidence outlined above.       Additionally, the guardian ad litem issued a

report recommending that the court grant permanent custody of all the children to the

Department.       After reviewing the foregoing, the trial court denied Merle P.’s motion for

legal custody and ordered that the children be committed to the permanent custody of the

Department.       The court then severed the parental rights of Rondaline W. as they related

to all four children, Ricky W. as they related to N.P., E.W., and T.W. and Gary Macon,

as they related to R.W.

          {¶17}   Rondaline W., Ricky W. and Merle P. all filed separate appeals, which

this court consolidated. While the court severed the parental rights of Rondaline W.,

Ricky W. and Gary Macon, the court did not sever the rights of Stuart Miller, N.P.’s

father.     We note that the Department attempted to involve Mr. Miller in the

proceedings, even providing service to all last-known addresses and through publication.

 However, the court’s failure to sever his parental rights as they related to N.P.

constitutes an error that must be corrected on remand.

          {¶18}   In appellant Merle P.’s first assignment of error, she argues that the trial

court’s decision to not award her legal custody of the four children was against the

manifest weight of the evidence. In appellant Ricky W.’s first and second assignments

of error, he argues that the Department failed to show both that the grant of permanent
custody of E.W. and T.W. was in the children’s best interest and that Rondaline W. had

not remedied the conditions that caused the removal of the children from the home.

Lastly, in appellant Rondaline W.’s first assignment of error, she argues that the grant of

permanent custody of the four children was against the manifest weight of the evidence.

Because these assigned errors involve the same standard of review and apply the same

facts, this court shall address them contemporaneously.

                      Grant of Permanent Custody of E.W. and T.W.
                             Pursuant to an Original Complaint

       {¶19}   Before a trial court may terminate parental rights pursuant to an original

complaint, it must find by clear and convincing evidence that: (1) it is in the best interest

of the child to be placed in the permanent custody of the moving agency, based on an

analysis under R.C. 2151.414(D), and (2) that the child cannot be placed with either

parent, based on an analysis under R.C. 2151.414(E). Appellants claim the trial court’s

decision is against the manifest weight of the evidence.         In applying the manifest

weight standard of review, our role is to determine whether there is relevant, competent

and credible evidence upon which a fact finder could base its judgment.                In re

Laigle/King Children, 5th Dist. No. 2001CA00145, 2001 Ohio App. LEXIS 3692 (Aug.

13, 2001); Cross Truck v. Jeffries, 5th Dist. No. CA-5758, 1982 Ohio App. LEXIS

15233 (Feb. 10, 1982). Judgments supported by some competent, credible evidence

going to all the essential elements of the case will not be reversed as being against the

manifest weight of the evidence. In re P.R., 8th Dist. No. 76909, 2002-Ohio-2029.          It
is based upon this standard that we review the appellants’ various assigned errors.    R.C.

2151.414(D)(1) provides as follows:

       (D)(1) In determining the best interest of a child at a hearing held pursuant
       to division (A) of this section or for the purposes of division (A)(4) or (5)
       of section 2151.353 or division (C) of section 2151.415 of the Revised
       Code, the court shall consider all relevant factors, including, but not
       limited to, the following:

       (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, or 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 and, as described in division (D)(1) of section
       2151.413 of the Revised Code, the child was previously in the temporary
       custody of an equivalent agency in another state;

       (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) of this section
       apply in relation to the parents and child.

       {¶20}   Although a trial court is required to consider each of the factors quoted

above in making its permanent custody determination, this Court has noted that “[o]nly

one of these factors needs to be resolved in favor of the award of permanent custody.”

In re Moore, 8th Dist. No. 76942, 2000 Ohio App. LEXIS 3958 (Aug. 31, 2000).
       {¶21}    In making its decision, the trial court in this case specifically considered

all of the above factors. It found that while E.W. and T.W. were too young to express

their wishes, the guardian ad litem appointed on their behalf recommended permanent

custody as being in the children’s best interest. Further, the court noted the custodial

history of the two children.   The court then recited the failure on the part of Rondaline

W. and Ricky W. to complete and follow through with services provided by the

Department, their failure to remedy the conditions precipitating the children’s removal,

their failure to complete assessments and evaluations and their lack of commitment to

the children.   The court then determined that no relatives were able to provide suitable

care to E.W. and T.W., and that the children’s need for legally secure placement could

not be achieved without the grant of permanent custody.         Based on the foregoing, the

court determined that it was in the best interest of E.W. and T.W. that permanent custody

to CCDCFS be granted.

       {¶22}    The trial court’s findings are supported by the record.     We, therefore,

find that the court’s determination that permanent custody is in the best interests of E.W.

and T.W., is supported by competent, credible evidence.

       {¶23}    Next, we determine whether the court’s finding that E.W. and T.W.

cannot be placed with a parent within a reasonable time or should not be placed with a

parent, is equally supported by competent, credible evidence.

       {¶24}    R.C. 2151.414(E)(1)-(16) provides a list of conditions, the existence of

any one of which, requires a court to conclude that the child cannot be placed with the
child’s parents.     In the present case, the trial court concluded that the following

subsections apply:

      (E) In determining at a hearing held pursuant to division (A) of this section
      or for the purposes of division (A)(4) of section 2151.353 of the Revised
      Code whether a child cannot be placed with either parent within a
      reasonable period of time or should not be placed with the parents, the
      court shall consider all relevant evidence. If the court determines, by
      clear and convincing evidence, at a hearing held pursuant to division (A) of
      this section or for the purposes of division (A)(4) of section 2151.353 of
      the Revised Code that one or more of the following exist as to each of the
      child’s parents, the court shall enter a finding that the child cannot be
      placed with either parent within a reasonable time or should not be placed
      with either parent:

      (1) 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.    In determining whether the parents have

      substantially remedied those conditions, the court shall consider parental

      utilization of medical, psychiatric, psychological, and other social and

      rehabilitative services and material resources that were made available to

      the parents for the purpose of changing parental conduct to allow them to

      resume and maintain parental duties.

      {¶25}    The evidence in the record supports the trial court’s conclusions.        In

making its determination that R.C. 2151.414(E)(1) applied, the court found as follows:
       The Court finds that the Cuyahoga County Department of Children and
       Family Services has made reasonable efforts to prevent the removal of the
       child, to eliminate the continued removal of the child from her home, or to
       make it possible for the child to return home. Relevant services provided
       to the family and the reasons those services were not successful: 1) mother
       failed to follow through with recommendations from Mental Health
       Assessment, 2) mother failed to benefit from parenting and mental health
       counseling, 3) mother and father, Ricky * * * had a parent aide in the home
       to assist with their personal hygiene and maintenance of the home, but
       failed to benefit from the services, 4) mother and father, Ricky * * *, have
       exhibited a lack of commitment to the children by failing to consistently
       visit with them, 5) father, Ricky * * *, failed to complete a psychological
       evaluation and failed to benefit from parenting education, 6) father, Ricky
       * * *, repeatedly failed to participate in recommended outpatient substance
       abuse treatment.

       {¶26} The court’s findings were supported by the testimony of Department social

workers.   Additionally, the trial court heard testimony concerning Rondaline W.’s

conviction of two counts of felony child endangering and, that at the time of the

disposition, Ricky W. was awaiting trial on charges of rape, kidnapping and

disseminating matter harmful to juveniles. Although the parties argue that the grant of

permanent custody is not in the best interest of the children and is against the manifest

weight of the evidence, no party has pointed to any error in the trial court’s statutory

proceedings.

       {¶27}    Based on the foregoing, we that find competent, credible evidence

supports the trial court’s conclusion that E.W. and T.W. could not, and should not, be

placed with either parent.   Accordingly, the trial court’s grant of permanent custody was

not against the manifest weight of the evidence.

                     Grant of Permanent Custody of N.P. and R.W.
                     Pursuant to a Motion for Permanent Custody

      {¶28}    When proceeding on a motion for permanent custody, the trial court must

satisfy two statutory requirements before issuing such an order. First, the court must

find by clear and convincing evidence of the existence of at least one of the four

conditions set forth under R.C. 2151.414(B)(1):

      (B) (1) Except as provided in division (B)(2) of this section, the court may
      grant permanent custody of a child to a movant if the court determines at
      the hearing held pursuant to division (A) of this section, by clear and
      convincing evidence, that it is in the best interest of the child to grant
      permanent custody of the child to the agency that filed the motion for
      permanent custody and that any of the following apply:

      (a) The child is not abandoned or orphaned, has not 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, or has not 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 if, as
      described in division (D)(1) of section 2151.413 of the Revised Code, the
      child was previously in the temporary custody of an equivalent agency in
      another state, and the child cannot be placed with either of the child’s
      parents within a reasonable time or should not be placed with the child’s
      parents.

      (b) The child is abandoned.

      (c) The child is orphaned, and there are no relatives of the child who are
      able to take permanent custody.

      (d) 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 or 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 and, as described in division (D)(1)
      of section 2151.413 of the Revised Code, the child was previously in the
      temporary custody of an equivalent agency in another state.

      {¶29}     In the case of N.P. and R.W., the court determined that R.C.

2151.414(B)(1)(d) applied:

      The child is not abandoned or orphaned; the child has been in the
      temporary custody of a public children services agency or private child
      placing agency for twelve or more months of a consecutive twenty-two
      month period. Therefore, it is in the best interest of the child to be placed
      in the permanent custody of the Cuyahoga County Department of Children
      and Family Services.

      {¶30}    The court’s conclusion is supported by competent evidence in the record.

 Specifically, the Department presented evidence that at the time of the hearing, N.P.

and R.W. had been in the agency’s custody for 2 years, 11 months and 21 days.

      {¶31}    Next, we must determine whether the court’s finding that granting

permanent custody of N.P. and R.W. to the Department pursuant to R.C.

2151.414(D)(1)(a)-(e) is equally supported by competent, credible evidence.

      {¶32}    In granting permanent custody to the Department, the court considered

each of the factors on R.C. 2151.414(D)(1)(a)-(e) and found as follows:

      Upon considering the interaction and interrelationship of the child with the
      child’s parents, siblings, relatives, and foster parents; the wishes of the
      child; the custodial history of the child, including whether the child has
      been in temporary custody of a public children services agency or private
      child placing agency under one or more separate orders of disposition for
      twelve or more months of a consecutive twenty-two month period; the
      child’s need for a legally secure placement and whether that type of
      placement can be achieved without a grant of permanent custody; and, the
      report of the Guardian Ad Litem, the court finds by clear and convincing
      evidence that a grant of permanent custody is in the beset interests of the
      child and the child cannot be placed with one of the child’s parents within
      a reasonable time or should not be placed with either parent.
       {¶33}        The court noted that Rondaline W. and Ricky W. failed to remedy the

problems precipitating the removal of N.P. and R.W., that the parents committed an

abuse against N.P., that the parents demonstrated a lack of commitment toward N.P. and

R.W., and, that Rondaline W. was convicted of two counts of endangering children and

Gary Macon was convicted of rape and received a life sentence at Lorain Correctional

Institution.

       {¶34}       The trial court’s findings are supported by the record.     We, therefore,

find the court’s determination that permanent custody is in the best interests of N.P. and

R.W. is supported by competent, credible evidence.

       {¶35}       Based on the foregoing, we overrule Merle P.’s first assignment of error,

overrule Ricky W.’s first and second assignments of error, and overrule Rondaline W.’s

first assignment of error. While we find the court’s judgment to be supported by

competent, credible evidence and supported by the manifest weight of the evidence, as it

relates to the parental rights of Stuart Miller, only, we find that the court committed

error. As such, we remand this cause to the trial court for disposition of Stuart Miller’s

parental rights.

       {¶36} In her second and final assignment of error, appellant Merle P. argues that

her counsel rendered ineffective assistance when counsel failed to move the court for

legal custody of each of the four children.     We disagree.

       {¶37}       “The established test for ineffective assistance of counsel used in criminal
cases is equally applicable to actions seeking to force the permanent termination of

parental rights.” In re C.M., 9th Dist. Nos. 23606, 23608, and 23629, 2007-Ohio-3999,

at ¶ 27, citing In re Heston, 129 Ohio App.3d 825, 827, 719 N.E.2d 93 (1st Dist.1998).

This two-part test requires a demonstration that counsel’s performance fell below an

objective standard of reasonable representation and that the client has suffered

prejudice. State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two

of the syllabus. See also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984). Proof of both parts of the test is necessary to establish the claim.

Bradley, 42 Ohio St.3d at 142.       In applying the test, the reviewing court should

recognize that counsel is strongly presumed to have rendered adequate assistance. Id.

       {¶38}   The basis for this assigned error is Merle P.’s assertion that her trial

counsel failed to move for legal custody of all four children.   A review of the record of

each children’s case reveals otherwise.   On February 23, 2010, Merle P.’s attorney filed

a motion for legal custody of N.P., R.W. and E.W. The trial court considered these

motions and on December 21, 2011, denied each one.         Merle P. is correct when she

states that her trial counsel failed to file a motion for legal custody of T.W.

Nonetheless, Merle P. did file a statement of understanding for legal custody with the

court and the trial judge made Merle P. a party in T.W.’s case.           The trial court

acknowledged that because Merle P. and her counsel failed to file a motion for legal

custody, it would not consider Merle P.’s claim. Notwithstanding the foregoing, the

court noted in its decision terminating the parental rights of Rondaline W. and Ricky W.,
that “the child cannot be placed with relatives for the following reason: No relatives are

able to provide suitable care.”

       {¶39}   Even if this court were to conclude that the failure of Merle P.’s counsel

to move for legal custody in the case of T.W. constituted deficient performance, Merle P.

cannot demonstrate to this court that she suffered any prejudice.   Specifically, it is clear

from the record that the court considered Merle P. as a possible placement for T.W. but

ultimately, found her to be not suitable. Thus, we cannot conclude that Merle P.’s trial

counsel rendered ineffective assistance.

       {¶40}   Merle P.’s second and final assignment of error is overruled.

       {¶41}   In her second and final assignment of error, appellant Rondaline W.

argues the trial court erred when it failed to follow the mandates of Juv.R. 29 during the

adjudicatory hearings for both E.W. and T.W. This assignment of error lacks merit.

       {¶42}    In this assigned error, Rondaline W. makes a number of assertions

regarding the admissions that were made regarding E.W. and T.W.’s adjudication.

First, Rondaline W. argues that the court erred during E.W.’s adjudication by not

advising her that by stipulating to the amended allegations in the complaint that she was

waiving her right to remain silent, by failing to inform her of the possible consequences

and by failing to determine if notice requirements were met.          Rondaline W. also

contends that the court erred by permitting Ricky W. to admit to the amended complaint

through counsel.

       {¶43}    However, neither Rondaline W. nor Ricky W. raised any of these
arguments in the trial court.   As such, they have waived all but plain error. State v.

McCollins, 8th Dist. No. 95486, 2011-Ohio-2398. Plain error does not exist unless it

can be said that, but for the error, the outcome of the trial clearly would have been

otherwise. Id.; State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978). Moreover,

on appeal, Rondaline W. has failed to argue that plain error exists.      An appellate court

may disregard an assignment of error pursuant to App.R. 12(A)(2) if an appellant fails to

cite to any legal authority in support of an argument as required by App.R. 16(A)(7).

State v. Martin, 12th App. No. CA99-01-003, 1999 Ohio App. LEXIS 3266 (July 19,

1999), citing Meerhoff v. Huntington Mtge. Co., 103 Ohio App.3d 164, 658 N.E.2d 1109

(3d Dist.1995); Siemientkowshi v. State Farm Ins., 8th Dist. No. 85323,

2005-Ohio-4295. “If an argument exists that can support this assigned error, it is not

this court’s duty to root it out.” Cardone v. Cardone, 9th Dist. Nos. 18349 and 18673,

1998 Ohio App. LEXIS 2028 (May 6, 1998).

       {¶44}   Accordingly, we disregard Rondaline W.’s final assignment of error.

       {¶45}   Based on the foregoing, we affirm the decision of the trial court in part,

and remand the matter for proceedings consistent with this opinion.

       It is ordered that appellant recover of said appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the

lower 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.




EILEEN A. GALLAGHER, JUDGE

JAMES J. SWEENEY, P.J., and
SEAN C. GALLAGHER, J., CONCUR
                             Appendix

Assignments of Error, Appeal Nos. 97847, 97849, 97852 and 97855:

      “I. The trial court erred in finding no suitable relatives were available
      against the manifest weight of the evidence.

      II. The assigned counsel for maternal great grandmother was ineffective
      and therefore the rights under Sixth Amendment of the United States
      Constitution of this party have been violated.”

Assignments of Error, Appeal Nos. 97851 and 97854:

      “I. The Cuyahoga County Department of Children and Family Services
      failed to show by clear and convincing evidence that permanent custody is in
      the minor children’s best interests.

      II. The Cuyahoga County Department of Children and Family Services
      failed to show by clear and convincing evidence that the mother of the
      children, Rondaline W., had not remedied the conditions which caused the
      removal of the children from the home.”

Assignments of Error, Appeal Nos. 97846, 97848, 97850 and 97853:

      “I. The trial court erred in granting permanent custody since (1) none of
      the circumstances set forth in R.C. 2151.414(E) were proven by clear and
      convincing evidence and (2) the judgment is against the manifest weight of
      the evidence.

      II. The court erred during the adjudicatory hearing by failing to follow the
      mandates of Juv.R. 29.”
