Children Under 18 Years of Age. State v. Tara C. (In re Interest John J.)

IN RE INTEREST OF JOHN J. ET AL.,

CHILDREN UNDER 18 YEARS OF AGE.

STATE OF NEBRASKA, APPELLEE AND CROSS-APPELLEE, v. TARA C., APPELLANT, AND BYRON J., APPELLEE AND CROSS-APPELLANT.

No. A-19-178.

NEBRASKA COURT OF APPEALS

December 10, 2019

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 Separate Juvenile Court of Douglas County: ELIZABETH G. CRNKOVICH, Judge. Affirmed.

Kenneth Jacobs, of Jacobs Alexander Law, for appellant.

Mark Hanna, Deputy Douglas County Attorney, for appellee State of Nebraska.

Thomas C. Riley, Douglas County Public Defender, Claudia L. McKnight, and Reilly White, Senior Certified Law Student, for appellee Byron J.

PIRTLE, RIEDMANN, and WELCH, Judges.

PIRTLE, Judge.

I. INTRODUCTION

Tara C. appeals, and Byron J. cross-appeals, from an order of the separate juvenile court of Douglas County terminating their parental rights to six minor children. Based on the reasons that follow, we affirm the order of the juvenile court.

II. BACKGROUND

Tara and Byron have six minor children together: John J., born in 2001; Nathaniel J., born in 2004; Kaytlynn J., born in 2007; Paityn J., born in 2008; Conner J., born in 2011; and Giovanna J. (Gia), born in 2016. On November 4, 2016, law enforcement was called to the home of Tara and Byron and observed the home to be "in a filthy, unwholesome condition placing said children at risk for harm." Soon after, the State filed an ex parte motion for immediate custody requesting that the children be placed in the temporary custody of the Nebraska Department of Health and Human Services (DHHS). That motion was granted and the children were placed in the custody of DHHS. After a number of hearings and orders on the matter, the State ultimately filed a motion for termination of parental rights and second motion for termination of parental rights in regard to Tara and Byron. Trial on both motions took place over 3 days on October 29, December 3, and December 6, 2018.

The State's first witness, Erin Noland, testified that she has known Tara since 1996 and the two attended high school together. At the time of trial, Nathaniel and John were residing with Noland. Both were first placed with Noland in November 2016, but John was removed temporarily in early 2017. The other four children briefly resided with Noland for a period of 2½ weeks in December 2017.

Noland testified that at the time Nathaniel was first placed in her home by Child Protective Services (CPS) he was 12 years old and unable to read or write, but has since excelled. She testified that Nathaniel has an Individualized Education Program (IEP) and that Tara attended the initial meeting associated with the IEP, but Byron did not. Noland testified that Nathaniel's supervised visitation with Tara was initially twice a week but was suspended in April or May 2017. Separate supervised visitation with Byron was also initially scheduled for twice a week but was later suspended.

Noland noted that she is responsible for coordinating medical, dental, and vision appointments for Nathaniel. Since Nathaniel entered Noland's care, Tara attended two medical appointments when he broke his leg, and Byron attended one. Noland testified that since their visitation was cancelled, neither Tara nor Byron have contacted her to check on the well-being of Nathaniel. When visits were ongoing, both parents would communicate with Noland and Nathaniel.

On cross-examination, Noland testified that she was unaware of whether Byron was notified of Nathaniel's IEP meeting and that she did not notify him of medical appointments because he did not have a phone at the time. Noland testified that she has never had any concerns for the well-being of Tara and Byron's children. When Nathaniel and John were initially placed in Noland's care, John refused some of the first visits with Byron, but eventually began attending.

Gisela Lacy, a temporary kinship foster parent, testified that four of the six children were placed in her home between late December 2017 and June 2018. Lacy testified that after each visit with Tara, the children would return upset, slam doors, and avoid talking. These behaviors were less prevalent after visits with Byron, but still occurred. After visits with Byron, the children would smell like cigarette smoke. After visits with Tara, Gia would often have a soaking diaper and a baddiaper rash. Gia would also come back wearing clothes that were too tight to the extent they "were almost like hurting her" and left marks.

Lacy testified that neither Byron nor Tara attended any of the children's appointments, despite her communicating the appointments to the caseworker. Each of the school-age children--Connor, Kaytlynn, and Paityn--had one IEP meeting while in Lacy's care. However, Tara and Byron only attended Connor's, which was on his birthday, and arrived 15 minutes late. Lacy also testified that prior to placement in her home, the three school-age children had never attended public school and could not read or write, despite being 6, 9, and 10 years old.

Lacy further testified that on one occasion, the three oldest children came back from a visit with Tara with cellphones, despite a PromiseShip rule that prohibited the children having such. When Lacy took the phones from the children, Tara apparently called Lacy screaming at her, threatening to call the police, and accusing her of stealing. The police ultimately were dispatched to Lacy's home, whereafter Lacy blocked Tara's phone number and did not communicate with her after the incident.

On cross-examination, Lacy testified that while the children were in her care she was to make them available for family therapy, but that the therapy never occurred due to transportation issues. Lacy was willing to transport the children to therapy, but was not willing to have it take place in her home and did not want to be confronted by Tara after the previous cellphone incident.

Erica Austin, a supervisor at Capstone Behavioral Health, testified that she supervised Tara's drug testing for approximately the year leading up to trial. Austin prepared and testified regarding a document outlining Capstone's involvement with Tara over that year. A number of Tara's drug tests came back "presumptive positive for benzo." On cross-examination, Austin testified that the individual administering the drug tests would have had a list of Tara's prescriptions, and although each column within exhibit 52 did not indicate Tara had a prescription for benzodiazepines, it was possible that she had a prescription at the time of each positive test. She further testified that she would not have information that would reveal whether the levels of benzodiazepines discovered were in accordance with any existing prescription.

Rachel Peters, John's juvenile probation officer, testified that throughout her year and a half as John's probation officer, John spent time at the Douglas County Youth Center (DCYC), Canyon State in Arizona, and a kinship home placement with Noland. Peters testified that her only interaction with Tara was a phone conference family team meeting while John was at Canyon State. She testified that it was concerning that Tara discussed John coming back to live with her, when that was not something that was going to happen. She testified that because John was a ward of the State, she was up-to-date on court orders pending for him. It was her understanding that there was a no contact order between John and Tara and Byron, and that it was concerning that Byron attended one of John's probation hearings.

On cross-examination, Peters testified that John's guardian ad litem did not mention a no contact order on the phone meeting while John was at Canyon State, but did express concern when Tara began discussing John coming back to live with her. She further testified that what she believed to be a no contact order could have been a no visitation order instead. Peters also testified that John was frustrated he was unable to take advantage of an earned visit with either Tara orByron because of a court order, but that "he also understood that those circumstances were outside of his control."

Dylan Best, a family support specialist, testified that he supervised visitation for Byron from January to October 2017, and Tara from February to June 2017. Best testified that during his time supervising Byron's visits, he never had any major safety concerns, but did raise concerns with the language Byron used with the children. During one visit, Byron had apparently told one of the children to "shut up." Best testified that Byron did not always take redirection well and would tell Best it was not his job to parent his children. Best also testified that at times, Byron would appear frustrated taking care of the children, but that he did not believe it to be an overreaction given the number and age of the children. Over the course of his supervision, Best acknowledged three visitation dates that were cancelled due to weather or Byron not feeling well.

Best testified that he also worked with Byron on family support goals, obtaining employment, and arranging a batterer's intervention course and chemical dependency evaluation. Best testified that Byron located temporary employment with a sanitation company, did not complete the batterer's intervention course in the 9 months he worked with him, and Byron self-reported that he completed the chemical dependency evaluation.

Best testified that most of Tara's visits took place at a neutral location, and never at a family home. Best testified that at times Tara appeared overwhelmed on the visits, and the children would sometimes talk back, but in his opinion she was still able to parent. He noted that Tara sometimes appeared frustrated with the children from her body language and, occasional harsh language. Best testified...