Children Under 18 Years of Age. Daniel D. v. Known (In re Interest Alyssa D.)

IN RE INTEREST OF ALYSSA D. ET AL., CHILDREN UNDER 18 YEARS OF AGE.

DANIEL D., APPELLEE, v. ANGELA D., NOW KNOWN AS ANGELA C., APPELLANT.

No. A-15-1158.

NEBRASKA COURT OF APPEALS

August 23, 2016

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the County Court for Hall County: JOHN P. RADEMACHER, Judge. Affirmed.

Jerry Fogarty for appellant.

Mark Porto, of Shamberg, Wolf, McDermott & Depue, for appellee.

INBODY, RIEDMANN, and BISHOP, Judges.

BISHOP, Judge.

Angela D., now known as Angela C., appeals from the decision of the county court for Hall County, sitting as a juvenile court, terminating her parental rights to her minor children, Alyssa D., Addison D., Aidan D., and Abigail D., pursuant to Neb. Rev. Stat. § 43-292(4) (Cum. Supp. 2014). The court found that Angela is an unfit parent by reason of her habitual use of intoxicating liquor; that Angela's conduct is seriously detrimental to the children's health, morals, or well-being; and that terminating Angela's parental rights is in the children's best interests. For the following reasons, we affirm.

BACKGROUND

Alyssa, Addison, Aidan, and Abigail are the children of Angela and Daniel D., who were married in May 2000. Alyssa was born in July 2003, Addison was born in July 2006, Aidan was born in September 2009, and Abigail was born in September 2010. On May 27, 2011, Daniel filed for divorce from Angela. The record does not contain the decree dissolving the parties' marriage; however, the record reflects that the marriage was dissolved and that Daniel had custody of the children.

In July 2014, following her divorce from Daniel, but before the present termination proceeding commenced, Angela gave birth to another child, Emilio C., whose father is Rogelio C. Angela married Rogelio in December 2014. Neither Emilio nor Rogelio is involved in this termination proceeding.

On December 22, 2014, in the district court for Hall County, Daniel filed a motion to terminate Angela's parental rights to their children pursuant to § 43-292(4). The motion was transferred to the juvenile court. On April 21, 2015, at the first hearing on the motion for termination of parental rights, the juvenile court advised Angela of the nature of the proceedings, the potential consequences, and her rights, as required by Neb. Rev. Stat. § 43-279.01 (Cum. Supp. 2014). The court also read verbatim the allegations contained in the motion, which alleged in detail Angela's history of alcohol abuse. In response to questioning by the court, Angela, who was represented by counsel, confirmed that she understood the allegations against her. Subsequently, Angela filed a written answer in which she denied the allegations contained in the motion.

While the termination proceedings were pending, Angela filed a total of four motions relating to visitation. Because we ultimately determine that the issue of visitation has become moot, we only briefly summarize the procedural history related to visitation. Initially, on June 18, 2015, on Angela's motion, the court granted Angela 1-hour supervised visits each Saturday and Sunday. After Angela missed two consecutive visits in violation of the terms of the visitation order, Daniel and the children's guardian ad litem began denying her visitation. Angela then filed a motion to compel visitation, and following a hearing on the motion, the court terminated visitation pending final resolution of the proceedings. In September and October, Angela filed two more motions for visitation. The court denied the visitation motions, reasoning, in part, that the hearing on Daniel's motion for termination of parental rights was less than one week away and that restarting visitation was not in the children's best interests, given that they had not had visitation with their mother for approximately three months.

The hearing on Daniel's motion for termination of parental rights commenced on October 19, 2015. Daniel called Angela as his first witness. During her testimony, Angela was shown medical records from her alcohol-related hospitalizations and treatment, as well as criminal records related to various criminal convictions. Generally, Angela acknowledged the events reflected in the records, which are briefly summarized below. Each time that Daniel's counsel offered one or more of the records into evidence, Angela's counsel objected on grounds of relevance, foundation, hearsay, and/or confrontation. We address the objections in greater detail in our analysis section below. The court overruled the objections and received all of the records into evidence.

Angela's testimony and the exhibits received into evidence revealed the following events: Angela's first alcohol-related hospitalization was on July 7, 2011, when she was admitted to the emergency room with a blood alcohol content (BAC) of .219. She was flown the same day via helicopter from a hospital in Grand Island, Nebraska, to a hospital in Lincoln, Nebraska. On August 24, Angela was admitted to the emergency room with a BAC of .309. On September 17, she was admitted to the emergency room with a BAC of .158. Angela underwent inpatient treatment at a facility in O'Neill, Nebraska, from September 24 through October 14.

Angela was arrested on April 3, 2012, and was subsequently convicted of driving under the influence (DUI) and obstruction of a peace officer. She was placed on probation for 9 months. Angela was arrested again on May 16 and charged with driving under suspension. She was convicted and sentenced to 30 days in jail. On May 23, she was again admitted to the inpatient treatment facility in O'Neill, but she voluntarily left the facility on May 29. On June 30, she was arrested for domestic assault of her boyfriend. Pursuant to a plea agreement, Angela was convicted of disturbing the peace and was sentenced to 30 days in jail.

On July 30, 2012, Angela was admitted to the emergency room with a BAC of .147 after being found unresponsive in her home. At that time, Angela's parents obtained a temporary guardianship of her and admitted her to a treatment facility in Kearney, Nebraska, but she was discharged for unknown reasons shortly thereafter. On August 20, Angela was admitted to the emergency room with a BAC of .346, and she was brought back to the treatment facility in Kearney. On September 11, she was admitted to a different inpatient treatment facility. Angela did not successfully complete the treatment program and was administratively discharged on October 11, because her counselor believed she was focusing on external issues, her negative behaviors with staff were increasing, she was telling her peers to be dishonest with counselors to get needs met, and she was disruptive in groups. At an undisclosed time, Angela's parents dropped the temporary guardianship proceedings.

On January 1, 2013, Angela was arrested and charged with aggravated DUI, criminal impersonation, obstruction of a peace officer, refusal to submit to a blood test, refusal to submit to a preliminary breath test, and driving during suspension. Angela was convicted of DUI and criminal impersonation and sentenced to 18 months' probation. On March 4, Angela was arrested again and subsequently was convicted of driving during suspension, second offense. On August 14, Angela tested positive for alcohol and served 72 hours in jail as a probation sanction. On September 23, a probation officer observed empty cans of an alcoholic beverage in a trash can in Angela's home. The probation records received into evidence showed that Angela was then required to wear a continuous alcohol monitoring device for 90 days.

Angela was discharged from her probation in July 2014, the same month that her son Emilio was born. Angela's next alcohol-related incident occurred on November 22, when her wedding to Rogelio had to be cancelled because she was too intoxicated. The wedding later took place on December 3. On December 18, Angela was arrested for domestic assault against Rogelio. Her BAC was .223 at the time, and Emilio was present when the offense occurred.

On February 14 and 23, 2015, Angela was arrested for DUI. On March 7, Angela was admitted to the emergency room because "[she] was drunk, [she] was sick, and [she] was sad." She told medical staff, "I'm an alcoholic and I want help," but she left the hospital against medical advice. On March 9, she was again admitted to the emergency room. Her chief complaints to medical staff were, "I'm really drunk" and "I'm an alcoholic." She went from the hospital to inpatient treatment, and she successfully completed the inpatient treatment program on April 7. However, on April 20, Angela was admitted to the emergency room after having consumed ethyl alcohol, which "was essentially hand sanitizer."

In July 2015, Angela began living at the Oxford House, which is a "three-quarter house." She was asked to leave after one month because she failed a breath test. Angela also lost her job at Casey's during July. She testified that it was "a mutual thing," but she was impeached with an employee separation form, which was received into evidence and indicated that Angela's employment was terminated after she showed up for work intoxicated.

Angela testified that when the problems with her alcohol abuse began in 2011, she was employed as a licensed mental health practitioner. In September 2011, her coworkers conducted an intervention regarding her use of alcohol. In October, the Nebraska Department of Health and Human Services (DHHS) initiated disciplinary action against her regarding her alcohol abuse. The disciplinary complaint, which was received into evidence, showed that at the end of October, Angela entered into the Nebraska Licensee Assistance Program. However, in July 2012, following a relapse, a missed "random body fluid screen," an alcohol-related hospitalization, and an...