Children Under 18 Years of Age. State v. Benjamin T. (In re Interest Jade H.)

25 Neb.App. 678

911 N.W.2d 276

IN RE INTEREST OF JADE H. et al., children under 18 years of age.

State of Nebraska, appellee,

v.Benjamin T., appellant.

No. A-17-513.

Court of Appeals of Nebraska.

Filed March 27, 2018.

Darren J. Pekny and Courtney R. Ruwe, of Johnson & Pekny, L.L.C., Omaha, for appellant.

Donald W. Kleine, Douglas County Attorney, Sarah Schaerrer, and Laura Elise Lemoine, Senior Certified Law Student, for appellee.

Pirtle, Riedmann, and Arterburn, Judges.

Pirtle, Judge.

INTRODUCTION

Benjamin T. appeals the order of the separate juvenile court of Douglas County terminating his parental rights to his three children. He challenges the juvenile court's finding that the minor children came within the meaning of Neb. Rev. Stat. § 43–292(2), (8), (9), and (10)(d) (Reissue 2016); that no reasonable efforts were required under Neb. Rev. Stat. § 43–283.01 (Reissue 2016) ; and that termination was in the best interests of the children. Following our de novo review of the record, we affirm.

BACKGROUND

Benjamin is the father of Jade H., Aly T., and Kazlynn T., born May 2015, January 2010, and June 2008, respectively. On the afternoon of October 24, 2016, the children were in Benjamin's vehicle, which he was driving, when a collision occurred. All the children were properly restrained in the back seat. Kazlynn was severely injured in the collision and placed on life support. Aly was unconscious after the accident and had serious injuries, but was doing well at the time of the termination hearing. Jade suffered only minor injuries. The children were placed in protective custody the next day.

Immediately after the accident, Randy Plugge, the driver of the other vehicle involved in the collision, got out of his vehicle and went over to Benjamin's vehicle to see if he was all right. Plugge talked to him briefly and said he was going to call the 911 emergency dispatch service. Plugge did not see the children in the back seat because airbags had deployed. When Plugge walked away from Benjamin's vehicle, Benjamin drove off. Benjamin drove to a park where an Omaha police officer found him disposing of alcohol that had been in his vehicle.

In November 2016, the State filed an "Amended Petition and Termination of Parental Rights" alleging that the children came within the meaning of Neb. Rev. Stat. § 43–247(3)(a) (Reissue 2016); that reasonable efforts under § 43–283.01 were not required because Benjamin had subjected the children to aggravating circumstances and had committed a felony assault which resulted in serious bodily injury to them; and that termination of Benjamin's parental rights was warranted under § 43–292(2), (8), (9), and (10), which termination was in the children's best interests.

The evidence at trial showed that for the 4 to 5 years before trial, Benjamin was the primary caregiver for Jade, Aly, and Kazlynn, and was the only person they knew as a parent. Jade was placed in foster care when she was 6 weeks old due to her mother's alcohol addiction, but Benjamin received placement and eventual custody of Jade when she was 9 months old.

After the accident, Aly and Jade were placed in the care of the woman who had been Jade's foster mother when she was removed from her mother's care at 6 weeks old. From the time they were placed with her until the termination trial, Benjamin maintained contact from jail with Aly and Jade through telephone calls. Telephone calls would occur once or twice per week, and the foster mother testified that all conversations were appropriate. She testified that Aly would tell Benjamin she loved him. Aly also prayed for him every night. The foster mother testified that she believed it was in Aly's best interests to continue to have contact with Benjamin.

Plugge, the other driver involved in the accident, testified that he was going straight at the intersection where the accident occurred and his light was green. He stated that he was driving "either 40 or 50" miles per hour and that he believed the speed limit was 45 miles per hour. Plugge denied stating to Benjamin that he was sorry and that he did not see him. He testified that he asked Benjamin why he had "run the red light." Plugge also denied that Benjamin told him his children were in the vehicle and he needed to get to a hospital. However, Omaha police officer Matthew Kelly testified that Plugge told him that after the accident, Benjamin yelled from his vehicle that he was taking his children to the hospital.

Kelly also testified that Plugge told him he had a green light at the intersection, but there were no independent witnesses to the accident that could verify which direction of traffic had the green light at the time of the collision. Kelly testified that Benjamin's statement in regard to his location and the direction he was headed at the time of the collision was inconsistent with what he found at the scene. Kelly stated that in his opinion, Plugge had a green light and Benjamin had a red light at the time of the collision, and that his opinion was based on Plugge's statement that he had a green light and on Benjamin's inconsistent statements. Kelly testified that he could not tell who "ran the red light" based on the evidence at the scene of the accident.

Omaha police officer Jodi Sautter testified that after the accident, she was the officer that located Benjamin at the park, which was about 16 blocks from the scene of the accident. As she drove into the park, she saw Benjamin's vehicle and observed Benjamin running away from the vehicle. When she got closer, Benjamin appeared to throw something into a trash can and started walking back toward his vehicle. Sautter told Benjamin to get on the ground, and she restrained him. She testified that she could smell an odor of alcohol when she handcuffed him. At that time, Benjamin stated that his children were in the vehicle. She looked inside the vehicle and saw that the children were badly injured. Sautter called for medical assistance and began trying to help the children. Aly and Kazlynn were both unconscious. Kazlynn had a hematoma on the top of her head and was bleeding from her nose and mouth. Sautter testified that she could also smell alcohol inside the vehicle and that she observed an open can of beer spilled on the floorboard on the driver's side of the vehicle. Sgt. John Wells testified that there was also a beer can on the floorboard of the passenger side, as well as a bottle of whiskey in the vehicle. Wells also testified that the trash can, which Sautter had observed Benjamin throwing something into, contained two unopened cans of beer and a bottle of whiskey.

Omaha police officer Nicholas Andrews testified that he did an investigation of Benjamin for driving under the influence of alcohol (DUI). He testified that he could smell an odor of alcohol when Benjamin was in the back seat of his police cruiser. He stated that Benjamin had bloodshot eyes, slurred speech, and a "disheveled look." Andrews had Benjamin perform field sobriety tests which indicated Benjamin was impaired. He subsequently had Benjamin do a preliminary breath test, which Benjamin failed. Andrews stated that based on the field sobriety tests and the preliminary breath test, Benjamin was under the influence of alcohol such that he could not safely operate a motor vehicle.

Omaha police officer Kevin O'Keefe interviewed Benjamin at the hospital after the accident. Benjamin told him he had consumed one beer and two wine coolers before the accident. He also stated that he was on two prescription medications and that he felt the effects of those more than the effect of the alcohol he had consumed. Benjamin told O'Keefe that after the collision, he saw Kazlynn bleeding from her mouth and left the scene to take the children to the hospital. O'Keefe testified that when he asked Benjamin about discarding alcohol in a trash can after the accident, Benjamin did not believe he did so. Benjamin admitted there was alcohol in his vehicle, but said it was not open. O'Keefe testified that Benjamin did not specifically say he had a green light at the time of the collision, but did state that the accident was Plugge's fault.

Following the accident, Benjamin was transported to the hospital where blood was drawn from him for testing. The nurse that drew Benjamin's blood testified that Benjamin told her he looked at the children in the back seat after the accident and got scared. The laboratory report with the results of Benjamin's blood test was entered into evidence, as well as testimony from the forensic chemist who tested the blood.

The results showed that Benjamin's blood alcohol content was ".115 plus or minus .003 grams of ethanol per 100 milliliters of blood." There was also evidence that Benjamin had been convicted of DUI four times prior to the accident. The convictions were in 2003, 2005, 2007, and 2009.

Dr. Andrew Macfadyen, an attending physician in the pediatric intensive care unit (ICU) at the hospital, testified regarding the medical condition of Aly and Kazlynn after the accident. Macfadyen testified that when Aly came into the ICU, she was not opening her eyes and would only respond to painful stimuli. Aly had a small hemorrhage in the part of her brain "known as the internal capsule," a concussion, and a bruise on her lung. She was in the ICU for 3 days with a severe traumatic brain injury. He testified that she improved during the course of those 3 days and was transferred from ICU to a regular hospital floor.

In regard to Kazlynn, Macfadyen testified that he first saw her the morning after the accident. She had a breathing tube and would only move her eyes a little bit in response to painful stimuli, but otherwise did not move. She had hemorrhaging in part of her "internal capsule," a skull fracture, a jaw fracture, severe swelling of her brain, and a laceration on her forehead and on her chin. Her pituitary gland, which is considered part of the brain, was also injured. Macfadyen testified that swelling of...