[Cite as In re F.I., 2014-Ohio-2350.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


IN RE:                                         :   JUDGES:
F.I.                                           :
J.I.                                           :   Hon. W. Scott Gwin, P.J.
                                               :   Hon. Sheila G. Farmer, J.
                                               :   Hon. Patricia A. Delaney, J.
                                               :
                                               :   Case No. 14-CA-1
                                               :
                                               :
                                               :
                                               :
                                               :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Fairfield County
                                                   Juvenile Court Case Nos. 2013-AB-
                                                   0021 and 2013-AB-0258



JUDGMENT:                                          AFFIRMED




DATE OF JUDGMENT ENTRY:                            May 29, 2014




APPEARANCES:

For Appellee:                                      For Mother-Appellant:

GREGG MARX                                         KRISTI R. MCANAUL
FAIRFIELD CO. PROSECUTOR                           660 Hill Road N., P.O. Box 220
Zoe A. Lamberson                                   Pickerington, OH 43147
Andrea K. Green
239 W. Main St., Ste. 101
Lancaster, OH 43130
Fairfield County, Case No. 14-CA-1                                                         2

Delaney, J.

        {¶1} Appellant J. I. (“Mother”) appeals from the December 18, 2013 Entries of

the Fairfield County Court of Common Pleas, Juvenile Division terminating her parental

rights and granting permanent custody of F.I. (d.o.b. 6/21/2013) and J.I. (d.o.b.

2/4/2011) to Fairfield County Child Protective Services (“CPS”). Appellee is the state of

Ohio.

        {¶2} This case comes to us on the expedited calendar and shall be considered

in compliance with App. R. 11.2(C).

                         FACTS AND PROCEDURAL HISTORY

        {¶3} J.I. was born on February 4, 2011 to Mother and J.D.I. (“Father”), who is

deceased. F.I. was born on June 21, 2013 to Mother and an undetermined father.

                Mother Surrenders Permanent Custody of Three Older Children

        {¶4} Mother surrendered permanent custody of three older children prior to the

births of the minor children at issue in the instant case: J.I. (d.o.b. 5/7/00), J.I. (d.o.b.

7/23/02), and J.I. (d.o.b. 12/11/03). The three older children were initially removed by

C.P.S. due to allegations of abuse and/or neglect. Mother did not contest the motions

for permanent custody.

                             Mother’s Troubled Relationship History

        {¶5} Mother’s prior involvement with CPS was due in part to her history of

relationships with sex offenders.      Mother’s boyfriend at age 16 was convicted of

corruption of a minor; another boyfriend was convicted of gross sexual imposition

against a 3-year-old Mother babysat; and her husband (“Father”) was found in

possession of child pornography and was convicted of pandering sexually-oriented
Fairfield County, Case No. 14-CA-1                                                        3


matter involving a juvenile. Mother cooperated in the prosecution of Father, voluntarily

gave up custody of one of their children together, and then reunited with Father, who

died in 2010.

       {¶6} Mother, age 30, then became involved with R.A., age 57, one of the

putative fathers of F.I. (d.o.b. 6/21/2013), who knew her “all her life.”        R.A. was

reportedly violent with Mother and one of her children.        Mother also still maintains

contact with her mother’s boyfriend who sexually abused her from the age of 5 until the

age of 13. Mother testified she forgives people and believes they can change.

            The Drano Incident and J.I.’s (d.o.b. 2/4/2011) Ongoing Medical Needs

       {¶7} Mother frequently allowed J.I. to drink Lipton’s “sweet tea” because it was

his favorite beverage, to the extent his front teeth became so decayed they had to be

removed.

       {¶8} On November 7, 2012, J.I. ingested Drano drain cleaner which Mother put

in a Lipton’s “sweet tea” bottle and left unattended. J.I. suffered internal and external

third-degree burns and was placed on life support.        His esophagus was eventually

replaced and at the time of trial he was still hospitalized due to complications. J.I. faces

significant ongoing medical issues; his medical care requires twice-daily dressing

changes, pressure garments, and a feeding tube.

       {¶9} Mother acknowledges she does not know how to provide the specific care

J.I. requires. She was told scratching J.I.’s burn scars reinforces behavior that will

jeopardize healing but was observed scratching scars during visitation and was

redirected with difficulty. She told an evaluator she is not prepared for J.I. to come

home and is afraid of injuring him further.
Fairfield County, Case No. 14-CA-1                                                        4

                                     Mother’s Mental Health

       {¶10} Dr. Bradley Hedges testified as an expert witness about his psychological

evaluation of Mother based upon her referral by CPS. He testified his assessment of

Mother is based upon the entire clinical record available to him, including evaluations

compiled in 2005, 2007, and 2013 from earlier CPS referrals. His expert opinion is

Mother has difficulty meeting her own needs independently, let alone the needs of her

children, because she consistently relies upon others for help in meeting those needs.

The individuals Mother relies upon expose her children to a high risk of victimization.

Mother requires a significant degree of intervention and intense supervision to ensure

the long-term safety of her children. Her ability to parent has not improved significantly

over the time Hedges has evaluated her. Mother’s borderline intellectual functioning,

maladaptive personality dynamics and history demonstrate she has consistently failed

to apply her knowledge to her parenting, resulting in significant harm to her children.

                                       Procedural History

       {¶11} After the Drano incident, CPS sought ex parte emergency custody of J.I.,

which was granted on December 7, 2012 in Fairfield County Juvenile Court Case

Number 2012 AB 0187. On December 10, 2012, CPS filed a dependency complaint on

behalf of J.I. under the same case number and that day J.I. was placed in temporary

shelter custody.

       {¶12} On January 29, 2013, Fairfield County Juvenile Court Case No. 2012 AB

0187 was dismissed without prejudice and a dependency complaint was re-filed under

Case No. 2013 AB 0021. J.I. was again placed into the temporary shelter custody of

CPS.
Fairfield County, Case No. 14-CA-1                                                  5


       {¶13} A case plan was developed for Mother on December 20, 2012 and filed in

Case No. 2013 AB 0021 on February 5, 2013. This case plan was later amended to

include F.I. (d.o.b. 6/21/2013).     A caseworker testified at trial that Mother is in

compliance with her case plan, the terms of which include compliance with mental

health recommendations and compliance with criminal court orders.         Mother has

participated in her case plan and has made progress but still needs mental health and

parenting support.

       {¶14} On March 4, 2013, Mother was convicted of one count of attempted child

endangering, a felony of the fourth degree, for the Drano incident. She was placed on

felony probation for five years and is presently in compliance with the terms of her

criminal probation.

       {¶15} On March 28, 2013, J.I. was found to be neglected and was placed in the

temporary custody of CPS and has remained in the custody of CPS since that date.

       {¶16} On June 21, 2013, CPS was granted ex parte emergency custody of F.I.

in Fairfield County Juvenile Court Case No. 2013 AB 153. A dependency complaint

was filed on June 24, 2013 under Case No. 2013 AB 153 and F.I. was placed in the

temporary shelter custody of CPS.

       {¶17} On September 19, 2013, CPS filed a motion for permanent custody of J.I.

The same day, F.I.’s case under Fairfield County Juvenile Case No. 2013 AB 153 was

dismissed without prejudice and a dependency complaint was filed on behalf of F.I.

under Case No. 2013 AB 0258. CPS requested the trial court consider disposition of

permanent custody of F.I. to CPS and F.I. was placed in the temporary shelter care of

CPS.
Fairfield County, Case No. 14-CA-1                                                      6


       {¶18} Both children were placed with the same foster family and are both doing

well. They have two older foster brothers. The children are “extremely bonded” with

their foster family, who have demonstrated unconditional love and support for both

children. The foster family has demonstrated willingness and ability to provide for J.I.’s

medical needs throughout “many” procedures and daily care.

       {¶19} One trial was held in both cases on November 25, 2013. The trial court

filed its Entries terminating Mother’s parental rights to both J.I. and F.I., placing the

minor children in the permanent custody of C.P.S., on December 18, 2013.

       {¶20} Mother now appeals from the trial court’s Entries of December 18, 2013.

                                Note on Appellate Case History

       {¶21} The two permanent custody cases were appealed under the instant single

appellate case number. Mother filed two appellate briefs with separate assignments of

error, and appellee moved to strike the second brief. Mother responded with a “Motion

of Appellant for an Order Allowing Both Briefs to Stand under Consolidated Case

Number 2014-CA-0001 or the Alternative Motion of Appellant for Leave to Plead to

Consolidate Briefs.” We denied the motion to strike and ruled we would allow both

briefs to stand under a single case number “and will consider both underlying cases

simultaneously for the purposes of merit review.”
Fairfield County, Case No. 14-CA-1                                            7


      {¶22} Mother raises eight assignments of error:

                             ASSIGNMENTS OF ERROR

      {¶23} “I.     ALL   TESTIMONY     AND   OTHER     EVIDENCE   RELATED   TO

[MOTHER’S] PRIVILEGED COMMUNICATIONS WITH DR. BRADLEY A. HEDGES

AND DR. CHRISTOPHER RAY, PRIOR TO 2013 SHOULD NOT HAVE BEEN

ADMISSIBLE.”

      {¶24} “II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

FINDING BY CLEAR AND CONVINCING EVIDENCE THAT J.I. CANNOT BE PLACED

WITH [MOTHER] WITHIN A REASONABLE TIME OR SHOULD NOT BE PLACED

WITH [MOTHER].”

      {¶25} “III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

FINDING BY CLEAR AND CONVINCING EVIDENCE THAT IT WOULD BE IN THE

BEST INTEREST OF J.I. FOR PERMANENT CUSTODY TO BE GRANTED TO

FAIRFIELD COUNTY CHILD PROTECTIVE SERVICES.”

      {¶26} “[IV.] ALL TESTIMONY AND OTHER EVIDENCE RELATED TO

[MOTHER’S] PSYCHOLOGICAL EVALUATION AND INTELLIGENCE TESTING

CONDUCTED BY PSYCHOLOGIST’S (sic) BRADLEY A. HEDGES AND ERIN DAVIS

SHOULD NOT HAVE BEEN ADMISSIBLE.”

      {¶27} “[V.]    EVEN    IF   THE   COURT     FINDS   THE   PSYCHOLOGICAL

EVALUATION OF 2013 IS ADMISSABLE (sic), ALL TESTIMONY AND OTHER

EVIDENCE       RELATED       TO      [MOTHER’S]    PREVIOUS     PSYCHOLOGICAL

EVALUATIONS AND INTELLIENCE TESTING CONDUCTED BY PSYCHOLOGIST’S
Fairfield County, Case No. 14-CA-1                                                    8

(sic) BRADLEY A. HEDGES AND CHRISTOPHER RAY SHOULD NOT HAVE BEEN

ADMISSIBLE.”

      {¶28} “[VI.] THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

FINDING BY CLEAR AND CONVINCING EVIDENCE THAT F.I. CANNOT BE PLACED

WITH [MOTHER] WITHIN A REASONABLE TIME OR SHOULD NOT BE PLACED

WITH [MOTHER.]

      {¶29} “[VII.] THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

FINDING BY CLEAR AND CONVINCING EVIDENCE THAT IT WOULD BE IN THE

BEST INTEREST OF F.I. FOR PERMANENT CUSTODY TO BE GRANTED TO

FAIRFIELD COUNTY CHILD PROTECTIVE SERVICES.”

      {¶30} “[VIII.] THE APPELLANT WAS PREJUDICIALLY DEPRIVED OF HER

OHIO CONSTITUTIONAL RIGHT TO A FAIR TRIAL DUE TO THE INEFFECTIVE

ASSISTANCE OF COUNSEL.”

                                      ANALYSIS

                                       I., IV., V.

      {¶31} Mother’s first, fourth, and fifth assignments of error are related; she

contends the trial court should not have considered testimony and other evidence

related to psychological evaluations performed in compliance with her case plans,

including those case plans in previous cases. We disagree.

      {¶32} Evidence such as that provided by Dr. Hedges in the instant case falls

within an exception to the physician-patient privilege.    In In re Wieland, the Ohio

Supreme Court held the physician-patient privilege applied to communications between

a parent and a therapist in court-ordered treatment as part of a reunification plan in a
Fairfield County, Case No. 14-CA-1                                                      9


dependency and neglect proceeding. 89 Ohio St.3d 535, 2000-Ohio-233, 733 N.E.2d

1127, syllabus. In reaction to Wieland, the General Assembly amended the statutory

physician-patient privilege in 2000 to add section (B)(1)(b), which states in pertinent

part:

                     The testimonial privilege established under this division does

              not apply, and a physician or dentist may testify or may be

              compelled to testify, in any of the following circumstances:

                     In any civil action concerning court-ordered treatment or

              services received by a patient, if the court-ordered treatment or

              services were ordered as part of a case plan journalized under

              section 2151.412 of the Revised Code or the court-ordered

              treatment or services are necessary or relevant to dependency,

              neglect, or abuse or temporary or permanent custody proceedings

              under Chapter 2151. of the Revised Code.

        {¶33} Mother acknowledges the above would typically defeat a claim of privilege

in a permanent custody case, but argues here the exception does not apply because no

case plan applicable to F.I. (d.o.b. 6/21/2013) was in effect when the earlier evaluations

Hedges took into account were performed. She therefore concludes the information

obtained in those evaluations could not be part of the comprehensive evaluation. We

find no such limitation in the statutory exception. Hedges has personally repeatedly

evaluated Mother, for past CPS referrals and due to the case plan in J.I.’s case, later

amended to include F.I. To expect a mental health professional to exclude his prior
Fairfield County, Case No. 14-CA-1                                                       10


knowledge of her history from his assessment to the court would defeat the purpose of

the statutory exception altogether.

       {¶34} Mother further argues the opinion of Dr. Hedges was inadmissible

because it was based on a history of testing and evaluation for which Mother did not

waive the physician-patient privilege. She refers to herself as a “client” of the evaluating

psychologists.   Mother’s evaluations which resulted from CPS referrals, however, do

not require waiver to be admissible.          In In re Jones,   the Ohio Supreme Court

interpreted its holding in Wieland, supra, to specify “[a] psychological examination is

considered to be for forensic purposes when it is ordered to assist the court in

determining facts or making conclusions of law. Individuals interacting with a

professional in such an examination are not clients of the professional for purposes of

the privilege statutes.” 99 Ohio St.3d 203, 2003-Ohio-3182, 790 N.E.2d 321, ¶ 13.

       {¶35} We find Mother’s psychological evaluations, present and past, to be

forensic in nature because the examinations were for the specific purpose of

determining her psychological fitness as a parent, not for the purpose of treatment in a

therapeutic relationship. The past evaluations were relevant to Hedges in making a

comprehensive recommendation to the trial court.

       {¶36} Finally, we note even if any of the challenged communication was

privileged, we find any arguable error to be harmless beyond a reasonable doubt. In re

Patfield, 11th Dist. Lake No. 2005-L-007, 2005-Ohio-3769, ¶ 35.           Mother’s mental

health was only one facet of the trial court’s decision; as we discuss infra, absent the

mental health testimony, the record is replete with clear and convincing evidence

supporting the judgment of the trial court.
Fairfield County, Case No. 14-CA-1                                                        11


       {¶37} Mother’s first, fourth, and fifth assignments of error are overruled.

                                          II., III., VI., VII.

       {¶38} Mother argues in her second, third, sixth, and seventh assignments of

error the trial court erred in granting permanent custody of J.I. and F.I. to C.P.S. We

disagree.

       {¶39} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re

Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990), quoting Stanley v. Illinois, 405

U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). An award of permanent custody must

be based on clear and convincing evidence. R.C. 2151.414(B)(1). Clear and convincing

evidence is that evidence “which will provide in the mind of the trier of facts a firm belief

or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St.

469, 120 N.E.2d 118 (1954). “Where the degree of proof required to sustain an issue

must be clear and convincing, a reviewing court will examine the record to determine

whether the trier of facts had sufficient evidence before it to satisfy the requisite degree

of proof.” Id. at 477.

       {¶40} If some competent, credible evidence going to all the essential elements

of the case supports the trial court's judgment, an appellate court must affirm the

judgment and not substitute its judgment for that of the trial court. C.E. Morris Co. v.

Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).

       {¶41} Issues relating to the credibility of witnesses and the weight to be given to

the evidence are primarily for the trier of fact. Seasons Coal v. Cleveland, 10 Ohio St.3d

77, 80, 461 N.E.2d 1273 (1984). Deferring to the trial court on matters of credibility is

“crucial in a child custody case, where there may be much evidence in the parties'
Fairfield County, Case No. 14-CA-1                                                     12

demeanor and attitude that does not translate to the record well.” Davis v. Flickinger, 77

Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997).

       {¶42} R.C. 2151.414 sets forth the guidelines a trial court must follow when

deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court

schedule a hearing and provide notice upon the filing of a motion for permanent custody

of a child by a public children services agency.

       {¶43} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to

grant permanent custody of the child to the public or private agency if the court

determines, by clear and convincing evidence, it is in the best interest of the child to

grant permanent custody to the agency, and that any of the following apply: (a) the child

is not abandoned or orphaned, 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; or (d) the child has been in the temporary custody

of one or more public children services agencies or private child placement agencies for

twelve or more months of a consecutive twenty-two month period ending on or after

March 18, 1999.

       {¶44} R.C. 2151.414(B) establishes a two-pronged analysis the trial court must

apply when ruling on a motion for permanent custody. In practice, a trial court will

usually determine whether one of the four circumstances delineated in R.C.

2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding

the best interest of the child.
Fairfield County, Case No. 14-CA-1                                                         13


       {¶45} In determining the best interest of the child at a permanent custody

hearing, R.C. 2151.414(D) mandates the trial court must consider all relevant factors,

including, but not limited to, the following: (1) the interaction and interrelationship of the

child with the child's parents, siblings, relatives, foster parents and out-of-home

providers, and any other person who may significantly affect the child; (2) 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; (3) the custodial history of the child; and (4) 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.

                   R.C. 2151.414(E) Factors: Clear and Convincing Evidence

       {¶46} The trial court found J.I. and F.I. could not be placed with Mother within a

reasonable time or should not be placed with Mother. If the child is not abandoned or

orphaned, the focus turns to whether the child cannot be placed with either parent within

a reasonable period of time or should not be placed with the parents. Under R.C.

2151.414(E), the trial court must consider all relevant evidence before making this

determination. The trial court is required to enter such a finding if it determines, by clear

and convincing evidence, that one or more of the factors enumerated in R.C.

2151.414(E)(1) through (16) exist with respect to each of the child's parents.1

       {¶47} The trial court found that notwithstanding the reasonable case planning

and diligent efforts of CPS to assist Mother to remedy the problems that initially caused

the children to be placed outside the home, Mother failed continuously and repeatedly

1
 With respect to F.I. (d.o.b. 6/21/2013), the trial court also found F.I. (d.o.b. 6/21/2013)
could not be placed with the putative fathers within a reasonable time or should not be
placed with the putative fathers within a reasonable time. The putative fathers’ rights
were also terminated in the underlying proceeding and are not parties to this appeal.
Fairfield County, Case No. 14-CA-1                                                    14


to substantially remedy the conditions causing the children to be placed outside of the

home. R.C. 2151.414(E)(1). Mother argues she “has addressed each and every

concern of [C.P.S.].” The evidence shows Mother substantially complied with the case

plan requirements, but the statute provides that she substantially remedy the conditions

that caused her child to be placed outside of the home. Mother has attended parenting

classes and is compliant with court orders, but she is admittedly unprepared, and

unwilling, to deal with J.I.’s substantial medical needs. She has not shown improvement

in her parenting skills over the 13 years of CPS involvement and has exhausted all of

the options; in Hedges’ terms, she is doing as well as she ever will. This still exposes

her children to danger.      She created the conditions that led to J.I.’s severe and

irreparable injuries. In the ensuing time, Mother was instructed not to scratch J.I.’s

scars and not to encourage him to do so, but removed a pressure garment and was

observed scratching his scars during a visit.

       {¶48} The trial court also noted “[a]ny other factor the court considers relevant”

pursuant to R.C. 2151.414(E)(16). The trial court did not make a finding pursuant to

R.C. 2151.414(E)(11), but did note in its findings of fact Mother had her parental rights

involuntarily terminated with respect to three siblings of the children.

       {¶49} We find the trial court’s decision is supported by the evidence presented

under R.C. 2151.414(E)(1).

                               Best Interests of the Minor Children

       {¶50} We next turn to the issue of best interests. We have frequently noted “[t]he

discretion which the juvenile court enjoys in determining whether an order of permanent

custody is in the best interest of a child should be accorded the utmost respect, given
Fairfield County, Case No. 14-CA-1                                                        15


the nature of the proceeding and the impact the court's determination will have on the

lives of the parties concerned.” In re Mauzy Children, 5th Dist. Stark No.2000CA00244,

2000 WL 1700073 (Nov. 13, 2000), citing In re Awkal, 85 Ohio App.3d 309, 316, 642

N.E.2d 424 (8th Dist.1994). The trial court determined it was in the best interest of the

children to be placed in the permanent custody of C.P.S. pursuant to R.C. 2151.414(D)

and we agree.

       {¶51} J.I. and F.I. deserve safety and stability.      J.I. in particular has unique

medical needs that require constant care and attention that Mother is not able to

provide. His foster family has been attentive to his needs throughout numerous medical

procedures. J.I. and F.I. are very bonded with their foster family, which has provided

them with unconditional love and support. We note the guardian ad litem recommended

permanent custody of both children should be granted to C.P.S.

       {¶52} We find the trial court did not err in finding J.I. and F.I. could not or should

not be placed with Mother within a reasonable period of time and the grant of

permanent custody to C.P.S. is in the children’s best interest.

       {¶53} Mother’s second, third, sixth, and seventh assignments of error are

overruled.

                                               VIII.

       {¶54} In her eighth assignment of error, Mother argues she was denied effective

assistance of counsel in the permanent custody proceeding. We disagree.

       {¶55} We have recognized “ineffective assistance” claims in permanent custody

appeals. See, e.g., In re Utt Children, 5th Dist. Stark No. 2003CA00196, 2003–Ohio–

4576. Where the proceeding contemplates the loss of parents' ‘essential’ and ‘basic’
Fairfield County, Case No. 14-CA-1                                                            16


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.” In re Wingo, 143 Ohio App.3d 652, 666,

758 N.E.2d 780 (4th Dist.2001), quoting In re Heston, 129 Ohio App.3d 825, 827, 719

N.E.2d 93 (1st Dist.1998). Our standard of review for an ineffective assistance claim is

thus set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984). In re Fell, 5th Dist. Guernsey No. 05 CA 8, 2005–Ohio–5790, ¶ 11.

       {¶56} To succeed on a claim of ineffectiveness, an appellant must satisfy a two-

prong test. Initially, an appellant must show that trial counsel acted incompetently. See,

Strickland v. Washington, supra, 466 U.S. at 668. In assessing such claims, “a court

must indulge a strong presumption that counsel's conduct falls within the wide range of

reasonable professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action ‘might be considered

sound trial strategy.’” Id. at 689, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct.

158 (1955). “There are countless ways to provide effective assistance in any given

case. Even the best criminal defense attorneys would not defend a particular client in

the same way.” Strickland, 466 U.S. at 689. The question is whether counsel acted

“outside the wide range of professionally competent assistance.” Id. at 690.

       {¶57} Even if an appellant shows that counsel was incompetent, the appellant

must then satisfy the second prong of the Strickland test. Under this “actual prejudice”

prong, the appellant must show that “there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694. The United States Supreme Court and the Ohio Supreme
Fairfield County, Case No. 14-CA-1                                                    17


Court have held a reviewing court “need not determine whether counsel's performance

was deficient before examining the prejudice suffered by the defendant as a result of

the alleged deficiencies.” State v. Bradley, 42 Ohio St.3d 136, 143, 538 N.E.2d 373

538 N.E.2d 373, quoting Strickland at 697. Accordingly, we will direct our attention to

the second prong of the Strickland test. In re Huffman, 5th Dist. Stark No.2005–CA–

00107, 2005–Ohio–4725, ¶ 22.

       {¶58} Mother summarily contends she received ineffective assistance of counsel

because counsel failed to object to the admissibility of the psychological evaluation for

the reasons discussed supra in assignments of error I., IV., and V. In light of our

disposition of those assignments of error, we conclude counsel did not err in failing to

object to the admissibility of the evaluation.

       {¶59} Mother’s eighth assignment of error is overruled.
Fairfield County, Case No. 14-CA-1                                                18


                                     CONCLUSION

      {¶60} Mother’s eight assignments of error are overruled and the judgment of the

Fairfield County Court of Common Pleas, Juvenile Division is affirmed.

By: Delaney, J. and

Gwin, P.J.

Farmer, J., concur.
