State v. Ayanna L. (In re Dylan L.)

In re Interest of Dylan L., a child under 18 years of age.

State of Nebraska, appellee, v. Ayanna L., appellant.

No. A-21-712

Court of Appeals of Nebraska

April 5, 2022

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: Mary M.Z Stevens, Judge. Affirmed.

Rachael A. Smith, of Smith Law, P.C., L.L.O, for appellant.

Cara Stirts, Deputy Douglas County Attorney, and Traemon Anderson Senior Certified Law Student, for appellee.

Pirtle, Chief Judge, and Riedmann and Welch, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL (MEMORANDUM WEB OPINION)

WELCH, JUDGE

I. INTRODUCTION

Ayanna L. appeals the order of the Douglas County Separate Juvenile Court terminating her parental rights. Ayanna contends that the juvenile court erred in finding (1) by clear and convincing evidence that she substantially and continuously or repeatedly neglected her child and finding that reasonable efforts to preserve and reunify have failed to correct the conditions leading to the adjudication; (2) that termination of her parental rights was in her child's best interests; and (3) that continued visitation between Ayanna and her child was not in the minor child's best interests. For the reasons set forth herein, we affirm.

II. STATEMENT OF FACTS

Ayanna is the natural mother of Dylan L. who was born in May 2012. The parental rights of Dylan's father have been terminated and he is not a party to this appeal. Dylan's father will be mentioned only as necessary for context.

In February 2018, an intake was received by the Nebraska Child Abuse and Neglect Hotline alleging that Ayanna was using marijuana, disciplining Dylan by shooting him with a BB gun, and that there was no food in the home. Dylan was removed from Ayanna's home on February 8. That same day, the State filed an adjudication petition alleging that Dylan was a child within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016) due to Ayanna's use of drugs and/or alcohol which placed Dylan at risk for harm; that Ayanna failed to provide proper parental care, support, and/or supervision for Dylan; that Ayanna failed to provide safe, stable, and/or appropriate housing for Dylan; and that these conditions placed Dylan at risk for harm.

In March 2018, the juvenile court adjudicated Dylan as a child within the meaning of § 43-247(3)(a) based upon Ayanna's admission to the allegations in the State's petition that her use of drugs and/or alcohol placed Dylan at risk for harm and that she failed to provide proper parental care, support, and/or supervision for Dylan.

In April 2018, following a dispositional hearing, the juvenile court ordered Ayanna to complete a psychological and a psychiatric evaluation, participate in residential treatment, submit to random urinalysis testing as requested by the case manager, participate and complete classes through the Women's Center for Advancement, and complete a parenting class. In subsequent orders, the juvenile court further ordered Ayanna to follow the recommendations outlined in the psychiatric and psychological evaluations; complete an updated chemical dependency evaluation and follow the recommendations; complete "Family Works" and follow the discharge recommendations; complete the Circle of Security parenting class; obtain and maintain a legal source of income and provide proof of income and employment to the case manager on a monthly basis; obtain and maintain safe and stable housing; participate in Dylan's educational programming and medication management; consistently participate in supervised and/or unsupervised visitation and/or communicate ahead of time with the visitation specialist and the case manager when unable to attend; not allow unauthorized individuals to be present during parenting time with Dylan unless approved by DHHS; participate in Parent/Child Interactive Therapy (PCIT) until successfully discharged; consult with the PCIT provider to develop concrete, verifiable expectations and goals to be practiced during parenting time with Dylan, as Dylan's behaviors consistently exhibit the need for Ayanna's active, constant involvement in his behavioral education and training; participate in at least three 12-step meetings per week until beginning treatment; submit to all random drug screens; comply with medication management recommendations, take medications as prescribed and provide proof of prescribed medications to the case manager and drug and alcohol testing professionals; abstain from the use of illegal drugs, alcohol, and medications not prescribed by a licensed physician; and participate in relinquishment counseling.

In February 2021, the State filed a motion to terminate Ayanna's parental rights pursuant to Neb. Rev. Stat. § 43-292(2), (6), and (7) (Reissue 2016), and alleged that termination was in Dylan's best interests. The motion further alleged that, pursuant to § 43-292(6), reasonable efforts to preserve and reunify the family, if required, under the direction of the court, have failed to correct the following conditions leading to adjudication:

A. Ayanna . . . failed to participate in [PCIT] until successfully discharged.

B. Ayanna . . . failed to abstain from the use of illegal drugs, alcohol and medications not prescribed by a licensed physician;

C. Ayanna . . . failed to submit to random weekly drug and alcohol testing and comply with all testing provisions;

D. Ayanna . . . failed to submit to an updated chemical dependency evaluation and follow the recommendations;

E. Ayanna . . . failed to obtain and maintain a legal source of income; [and]

F. Ayanna . . . failed to comply with medication management recommendations.

The termination hearing was held over two days in May and August 2021. The State adduced testimony from witnesses including Heather Peterson, a case manager since November 2020; Joaquin Guerrero Jr., visitation worker; Dr. Jordan Thayer, Dylan's psychologist; Rodney Burger, Dylan's therapist; and Dylan's foster mother.

The evidence established that Dylan has special needs and has been diagnosed with attention deficient disorder, hyperactivity, oppositional defiant disorder, and mood disruption. He also has ongoing behavioral issues including punching holes in the wall, breaking a ceiling fan, breaking his bunkbed, and running away after climbing out of a window. Dylan has an individualized education plan (IEP) at school and takes four different medications to help his behaviors and his sleep. At the time of the termination hearing, Dylan had been in out-of-home placements for 3 years and 3 months.

Petersen testified that in her role as case manager, she conducts monthly face-to-face visits with parents, children and providers; creates case plans; performs safety and risk assessments; assists parents in setting up and participating in court-ordered services such as visitation, evaluations, and therapy; monitors parents' compliance with court-ordered services; prepares case plans and court reports; and determines appropriate permanency objectives. Peterson stated that she contacted Ayanna at least monthly through face-to-face meetings, telephone, and texting, and Ayanna has been "good at responding." Further, Ayanna had completed a psychological evaluation and had been diagnosed with depression, anxiety, post-traumatic stress disorder, and cocaine and marijuana use disorder.

Peterson testified that, at the time of the termination hearing, Ayanna was subject to court orders requiring her to, among other things, (1) complete PCIT until successfully discharged; (2) complete a chemical dependency evaluation and follow the recommendations; (3) provide safe, suitable, and stable housing; (4) obtain a legal source of income; (5) participate in supervised and unsupervised visitation; (6) comply with medication management; and (7) abstain from drugs, alcohol, or medications that were not prescribed by a medical physician and participate in drug testing.

1. Therapy/PCIT

The juvenile court ordered Ayanna to complete PCIT until successfully discharged. According to Peterson, "[w]ith Dylan's behaviors, PCIT is very important for helping to manage those behaviors. And with [Ayanna's] inconsistency of attending PCIT, that consistent structure isn't available to him then."

According to Peterson, from January to September 2019, Ayanna and Dylan participated in PCIT. Peterson stated that Ayanna was "pretty consistent" during February and March but failed to attend most of her PCIT appointments in April. Peterson also indicated that Ayanna attended most appointments in May, but only attended one appointment during June and July.

In September 2019, Ayanna and Dylan began participating in PCIT through a new provider. From September through May 2020, Ayanna participated consistently, but missed all of her appointments in June 2020. At that time, Ayanna and Dylan's PCIT therapist resigned. In September 2020, Ayanna and Dylan resumed therapy with Dr. Thayer.

(a) Dr. Jordan Thayer

Dr. Thayer, a psychologist, testified that he had appointments with Dylan every other week providing

parent management or parent consultation training. It's a standard approach, when working with parents for children often below the ages of 13, on helping them to guide and teach appropriate behaviors in (indiscernible) the environments based upon what is needed and appropriate. And this term, in this case, is defined as what is wanted by the parent. And then, providing just ongoing consultation, regular assessment, and problem-solving around how to continue to teach and support those behaviors.

Dr Thayer testified that Dylan's goals were a reduction in the destruction of...