In Re J.E., 23865 (2-6-2008)
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
{¶ 1} Appellant, Jessica Lamtman, appeals from a judgment of the Summit County Court of Common Pleas, Juvenile Division, that terminated her parental rights to her minor child and placed the child in the permanent custody of Summit County Children Services Board (“CSB“). This Court affirms.
I.
{¶ 2} Ms. Lamtman is the natural mother of J.E., born May 29, 2006. The father of the child is not a party to this appeal. J.E. was removed from the home when he was five months old, and was later adjudicated a dependent child, due to
{¶ 3} Similar concerns had caused the juvеnile court to terminate Ms. Lamtman‘s parental rights to J.E.‘s older sibling, J.L., in 2001. In that case, CSB had become involved with the family after Ms. Lamtman took J.L. to the hospital with a severe skin rash. J.L. was later diagnosed with eczema and multiple food allergies, conditions that requirеd J.L.‘s caregiver to monitor his diet and home environment and to maintain regular contact with his allergist. Ms. Lamtman did not seem to understand how to deal with J.L.‘s medical needs. CSB was also concerned about Ms. Lamtman‘s failure to interact or express affection with J.L. and her inability to comfort him when he cried.
{¶ 4} Throughout this case and the prior case involving J.L., CSB‘s concerns focused on Ms. Lamtman‘s limited cognitive ability, her inability to understand how to care for and stimulate her children, and her failure to interact or bond with them, pаrticularly given that each child had special needs. CSB saw almost no improvement in Ms. Lamtman‘s parenting ability throughout the two cases.
{¶ 5} According to the guardian ad litem in this case, what was most noticeable to her was the lack of emotional cоnnection and lack of eye contact between Ms. Lamtman and J.E. Several witnesses had observed that Ms. Lamtman spoke very little to J.E., except to keep saying his name; she did not sing
{¶ 6} Ms. Lamtman had also failed to achieve any stability in her life throughout the two cases. She was unemployed, she did not drive, and she was dependent on others for transportation. Further, she had lived in seven different places during an 18-month period. She was apparеntly unable to work, as she had recently qualified for Social Security Disability benefits due to her mental retardation. Several witnesses explained that Ms. Lamtman seemed to be unable to care for her own needs, let alone those of her child, and she continued to be dependent on others and sometimes exercised poor judgment by trusting people who were not trustworthy.
{¶ 7} Although Ms. Lamtman was often willing to take direction from CSB workers and other service providers when they attempted to correсt her inappropriate behavior, she appeared to be unable to retain what she had been told, but would continue to display the same inappropriate behavior. CSB believed that
{¶ 8} Although CSB developed a case plan and initially worked toward reunification of Ms. Lamtman and J.E., the agency later sought and obtained a determination by the trial court that it was not required to make reasonable efforts tо work toward reunification of the family because Ms. Lamtman‘s parental rights to a sibling of J.E. had been involuntarily terminated. See
{¶ 9} CSB moved for permanent custody of J.E. and Ms. Lamtman moved for a six-month extension of temporary custody. Following a hearing on both motions, the trial court found that J.E. could not be returned to Ms. Lamtman‘s custody within a reasonable time or should not be returned to her and that permanent custody was in J.E.‘s best interest. Consequently, it terminated Ms. Lamtman‘s parental rights and placed J.E. in the permanent custоdy of CSB.
{¶ 10} Ms. Lamtman appeals and raises four assignments of error, which will be consolidated and rearranged for ease of discussion.
II.
ASSIGNMENT OF ERROR I
“THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN ITS DETERMINATION TO GRANT PERMANENT CUSTODY TO [CSB] UPON THE LIMITED COGNITIVE ABILITIES OF JESSICA LAMTMAN, AS STATED IN IN RE D.A.”
ASSIGNMENT OF ERROR III
“THE TRIAL COURT ERRED IN GRANTING [CSB‘S] MOTION FOR PERMANENT CUSTODY BECAUSE [CSB] FAILED TO MEET ITS BURDEN OF PROOF REQUIRING CLEAR AND CONVINCING EVIDENCE WITH REGARDS THAT J.E. CAN NOT AND SHOULD NOT BE REUNITED WITH MS. LAMTMAN. THE TRIAL COURT‘S DECISION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
{¶ 11} Through her first and third assignments of error, Ms. Lamtman contends that the trial court‘s permanent custody decision was not supported by the evidence presented at the hearing.
{¶ 12} Before a juvenile court can terminate parental rights and award to a proper moving agency permanent custody of a child, it must find clear and convincing evidence of both prongs of thе permanent custody test: (1) that the child is abandoned, orphaned, has been in the temporary custody of the agency for at least 12 months of the prior 22 months, or that the child cannot be placed with either parent within a reasonable time or shоuld not be placed with either parent, based on an analysis under
{¶ 13} The trial court found that the first prong of the test was satisfied because J.E. could not be placed with either parent within a reasonable time or should not be placed with them. Sеe
{¶ 14} The trial court supported its finding that J.E. cannot be placed with Ms. Lamtman within a reasonable time or should not be placed with her with two factors under
“(2) Chronic * * * mental retardation * * * of the pаrent that is so severe that it makes the parent unable to provide an adequate permanent home for the child at the present time and, as anticipated, within one year after the court holds the hearing pursuant to division (A) of this section or fоr the purposes of division (A)(4) of section
2151.353 of the Revised Code;“* * *
“(11) The parent has had parental rights involuntarily terminated pursuant to this section or section
2151.353 or2151.415 of the Revised Code with respect to a sibling of the child.”
{¶ 5} Ms. Lamtman challenges the trial court‘s finding under
{¶ 16} To demonstrate reversible error, Ms. Lamtman has the burden to demonstrate error as well as prejudice resulting from that error. Lowry v. Lowry (1988), 48 Ohio App.3d 184, 190, citing Gries Sports Enterprises, Inc. v. Cleveland Browns Football Co. (1986), 26 Ohio St.3d 15, 28. “A prejudicial error is defined as onе which affects or presumptively affects the final results of the trial.” Miller v. Miller, 5th Dist. No. 06 CA 3, 2006-Ohio-7019, at ¶ 12 (Citations omitted). Because Ms. Lamtman does not dispute that the court‘s finding under
{¶ 17} Moreover, although Ms. Lamtman has asserted that her inability to parent J.E. is not her fault, the focus of
{¶ 18} Because Ms. Lamtman has not demonstrated any error by the trial court in its permanent custody decision, her first and third assignments of error are overruled.
ASSIGNMENT OF ERROR II
“THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FINDING THAT [CSB] WAS NOT REQUIRED TO MAKE REASONABLE EFFORTS TO PREVENT J.E.‘S CONTINUED REMOVAL FROM THE HOME ALLOWING [CSB] TO FILE FOR PERMANENT CUSTODY AT THE INITIAL DISPOSITION HEARING.”
“[MS. LAMTMAN] WAS NOT PROVIDED WITH COMPETENT TRIAL COUNSEL.”
{¶ 19} Next, Ms. Lamtman asserts that the trial court erred in granting CSB‘s motion for a reasonable efforts bypass and that her trial counsel was ineffective for failing to timely raise this issue in the trial court.
{¶ 20} Initially, this Court will note that the trial court did not rule on CSB‘s reasonable efforts bypass motion until six months after CSB filed its dependency complaint. During the six months prior to the trial court‘s ruling, CSB had developed a case plan for Ms. Lamtman, with a goal of reunification, and the agency had implemented reunification services. Thus, even though the trial court later excused CSB from working toward reunification, it does appear that the agency did make such efforts prior to the trial court‘s order.
{¶ 21} Because Ms. Lamtman‘s parental rights to J.E.‘s siblings had been involuntarily terminated in a prior case,
{¶ 22} Ms. Lamtman maintains that some courts have held that the trial court has the authority to override this statutory mandate. See, e.g., In re Nicholas P., 169 Ohio App.3d 570, 2006-Ohio-6213, at ¶ 36 (construing the language of
{¶ 23} The reasonable efforts bypass issue was determined by a magistrate, and that decision was adopted by the trial court. Ms. Lamtman filed no objections to the magistrаte‘s decision and no transcript was prepared of the hearing before the magistrate.
{¶ 24} Ms. Lamtman has failed to demonstrate any error in the trial court‘s decision to grant a reasonable efforts bypass or that her trial counsel was deficient
III.
{¶ 25} Ms. Lamtman‘s four assignments of error are overruled. The judgment of the Summit County Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
The Court finds that there were reasonable grounds for this appeal.
We order that a speciаl mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute thе journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
SLABY, J., DICKINSON, J., CONCUR