State v. Amie B. (In re Interest of B.B.)

29 Neb.App. 1

951 N.W.2d 526

IN RE Interest of B.B. et al., children under 18 years of age.

State of Nebraska, appellee,

v.Amie B., appellant.

No. A-19-1206.

Court of Appeals of Nebraska.

Filed October 13, 2020.

Abby Osborn, of Shiffermiller Law Office, P.C., L.L.O., Lincoln, for appellant.

Patrick F. Condon, Lancaster County Attorney, and Shellie D. Sabata, for appellee.

Steffanie J. Garner Kotik, of Kotik & McClure, Lincoln, guardian ad litem.

Moore, Chief Judge, and Bishop and Welch, Judges.

Bishop, Judge.

I. INTRODUCTION

Amie B. appeals from an order of the juvenile court in an ongoing juvenile case that, in part, removed eight children from her home and also granted sibling visitation between three other children. In addition, she challenges the continuation of a placement hearing following an emergency placement order. And for the first time, she raises subject matter jurisdiction as a matter of plain error. We affirm.

II. BACKGROUND

This case involves 11 children: B.B., born in 2004; N.B., born in 2005; Q.B., born in 2006; M.B., born in 2008; twins G.M. and Z.M., born in 2012; J.M., born in 2013; L.M., born in 2014; R.M., born in 2015; and twins C.M. and K.M., born in 2017.

Amie is the adoptive mother of B.B., N.B., Q.B., and M.B.; Anthony B., Amie's ex-husband, is the adoptive father of these four children. Amie is the biological mother of L.M., R.M., C.M., and K.M.; Gabriel M. is the biological father of these four children. In addition, Gabriel is also the biological father of G.M., Z.M., and J.M.; the biological mother of these three children either relinquished or otherwise had her parental rights terminated several years ago. Neither Anthony nor Gabriel is part of this appeal, and they will only be discussed as necessary.

In the record before us, Gabriel is sometimes referred to as "Amie's fiance," and at other times, they are referred to as "husband and wife." However, at a hearing on November 21, 2019, Gabriel was asked, "Just to clarify, [Amie] is not your wife, correct?" Gabriel, via an interpreter, responded, "No." In any event, Amie and Gabriel lived together with all of the children (although Q.B. lived with Anthony for a period of time, including December 2018, but Q.B. returned to live in Amie and Gabriel's home sometime in February 2019).

On December 31, 2018, the State filed a motion for and was granted an ex parte order for the emergency temporary custody of N.B., based on allegations that he engaged in sexually assaultive behaviors toward some of his siblings within the family home. N.B. was placed in the temporary custody of the Nebraska Department of Health and Human Services (DHHS). In an order filed on January 14, 2019, the juvenile court noted that at a temporary custody hearing on January 9, Amie, Gabriel, and Anthony had no objection to the temporary legal and physical custody of N.B. remaining with DHHS for out-of-home placement, and the court entered its order accordingly. N.B. has remained out of the home ever since.

The State filed a petition on January 2, 2019, and amended petitions on January 14 and on April 29 (amended in court on April 25, but not filed until April 29), alleging that all 11 children were children as defined by Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016) in that they were without proper parental support through no fault of Amie and Gabriel or that the children were in a situation dangerous to life or limb or injurious to their health or morals. As finally amended, the State specifically alleged that on one or more occasions since August 2018, N.B. engaged in sexually inappropriate behaviors with one or more of his siblings residing in the family home, and that despite safety planning, the family was unable to prevent continued incidents of inappropriate contact between the siblings. The State further alleged that the situation placed the children at risk of harm.

In an order filed on April 29, 2019, the juvenile court adjudicated all 11 children as being within the meaning of § 43-247(3)(a), based on Amie's and Gabriel's no contest pleas to the allegations in the petition, as finally amended, at a hearing on April 25.

In its disposition order filed on June 20, 2019, the juvenile court found that the primary permanency plan for N.B. was reunification and that the primary permanency plan for the other 10 children was family preservation. The court ordered that N.B. was to remain in the custody of DHHS. The court ordered that the other 10 children be placed in the temporary legal custody of DHHS in order to ensure necessary services and oversight were provided; physical custody of those 10 children was to remain with Amie and Gabriel. N.B. was ordered to follow all conditions of his probation and placement, follow all recommendations from the evaluation completed by a named provider, and have no contact with his siblings except as approved by DHHS after consultation with the therapists. B.B., Q.B., M.B., G.M., Z.M., J.M., and L.M. were ordered to participate in individual therapy as arranged by DHHS. Amie, Gabriel, and Anthony were ordered to cooperate with family therapy when it was recommended by the children's therapists and to maintain legal means of income and appropriate housing. Finally, the court ordered that there was to be no physical discipline of the children by any parent or care provider. A review hearing was scheduled for September 5.

On August 29, 2019, the State filed a motion for and was granted an order approving an emergency change in placement for all of the children, except for N.B., from the home of Amie and Gabriel, based on allegations of sexual contact between siblings, domestic violence in the home, inappropriate physical discipline, and neglect (i.e., not enough food for the children). The court ordered temporary custody and placement of the children with DHHS, pending a placement hearing. A hearing was set for September 4, but after a number of continuances, it was ultimately held on November 21.

On November 12, 2019, N.B.’s guardian ad litem (GAL), on behalf of N.B., filed a motion asking the juvenile court for an order approving sibling visitation between N.B. and his brothers, B.B. and Q.B. A hearing on the motion was set for November 21.

On November 21, 2019, and as relevant to this appeal, the matter came on for a hearing for review of disposition, a placement hearing pursuant to the court's August 29 order, and a hearing on the motion for sibling visitation. A summary of the relevant evidence follows.

Rebekah Henderson, a DHHS children and family services specialist, had been assigned to this case since January 2019. Henderson testified that prior to August, it was "difficult" to set meetings with Amie and see the children. When asked if there were scheduling issues because of the commitments of the family, Henderson responded, "I'm not sure why it was difficult. I know there were baseball and different activities that went clear into the evening which made it very difficult to schedule the meetings."

Henderson testified that Linda Marcy, M.B.’s therapist, forwarded Henderson a copy of an email Marcy received from Nicole Sabata on August 28, 2019. Sabata is the therapist working with Z.M., J.M., and L.M. And according to Henderson, Marcy oversees Sabata. In the email, which was received into evidence, Sabata stated that she was told that Z.M. (girl, approximately age 7 in 2019) and L.M. (girl, approximately age 5 in 2019) shower together; according to Sabata, it "is a concern if any siblings are showering together since there [have] been problems with sexualized behavior already." L.M. told Sabata that B.B. and Q.B. (boys, approximately ages 15 and 13 in 2019) "used to put their private parts into her private parts, but they no longer do it as [she] sleeps in her parents room." L.M. also reported that Amie was "very mean to her and will yell, ignore, and grab her arm putting her to bed."

And L.M. reported being "spank[ed]" by Gabriel, but she also indicated that she was not being spanked anymore. Sabata witnessed Gabriel "pull" on the children's arms to get them to quit doing things and to come for sessions, and she felt "it was more aggressive than it should have been." Sabata also stated that she had been told by the children that there were days when they would go to bed without eating dinner.

Henderson forwarded the email to her supervisor, who then called Sabata to verify the information in the email. After that, an affidavit for emergency placement was drafted. A motion for emergency placement was filed, and an order was entered on August 29, 2019. Thereafter, the children were interviewed at the Child Advocacy Center (CAC).

Henderson was able to listen in on the CAC interviews as they were occurring. Henderson stated that during L.M.’s interview, L.M. was not specifically asked if B.B. or Q.B. put their privates in her privates, but when L.M. was asked general questions about inappropriate sexual touching and whether anyone had touched her, L.M. said, "No." When reminded that she disclosed some things to her therapist, L.M. said that she did not want to talk about it and that she already told her therapist so she should not have to talk about it anymore.

Henderson testified that during the CAC interviews, Q.B. stated he heard Amie "yell at the kids to stop touching each other's butts, but he didn't actually see anything physically." According to Henderson, during B.B.’s interview, he stated that "the little kids do touch each other while they're in the shower together.... [H]e saw the boys touching each other's penises and butts when they were showering together when he walked by." B.B. "also stated when the kids would go outside to play, he would see both girls and boys take off all their clothes and touch each other like they do in the shower"; he said "they would turn on the water hose and get everything wet and jump on the trampoline with no clothes on." B.B. stated it was M.B.’s job to watch the children. (M.B. is a girl,...