State v. Bryon B. (In re Alexa B.)

In re Interest of Alexa B. et al., children under 18 years of age.

State of Nebraska, appellee, v. Bryon B., appellant, and Erica B., appellee, and Rick S. and Laura S., intervenors/appellees.

No. A-22-536

Court of Appeals of Nebraska

February 21, 2023

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 Sarpy County: Jonathon D Crosby, Judge. Affirmed.

Colleen M. Dostal, Deputy Sarpy County Public Defender, for appellant.

Gary E. Brollier, Deputy Sarpy County Attorney, and Lauren S Evans, Senior Certified Law Student, for appellee State of Nebraska.

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

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Pirtle, Chief Judge.

INTRODUCTION

Bryon B. appeals from an order of the separate juvenile court of Sarpy County which terminated his parental rights to his five minor children. Bryon challenges the sufficiency of the evidence in support of the juvenile court's finding that termination of his parental rights was in the best interests of the children. Bryon further challenges the juvenile court's finding that the Nebraska Department of Health and Human Services (DHHS) has made reasonable efforts to achieve permanency for the children. For the reasons that follow, we affirm.

BACKGROUND

Bryon and his former wife, Erica B., had five children together Lilly B., born in 2008, James B., born in 2013, Ayden B. born in 2014, Nikolai B., born in 2016, and Alexa B., born in 2019. Bryon and Erica were married in June 2010 and divorced in November 2020. While Erica's parental rights were also terminated in the juvenile court proceedings below, her parental rights are not at issue in this appeal. Accordingly, Erica will be discussed only to the extent necessary to resolve Bryon's claims on appeal.

DHHS first made contact with this family in September 2019, in response to reports that the family home was "exceptionally dirty" with guns and insulin pens left out within the children's reach. There were further concerns that the children were being left at times in the care of Bryon's elderly father who was then confined to a chair and "could barely move to go to the bathroom." DHHS completed a safety plan with Bryon and Erica and established services to help improve the living conditions of the home. Under the safety plan, the children were to be kept out of the family home until it was cleaned. The children were not formally removed from Bryon and Erica's care at that time and DHHS concluded its involvement after completion of the safety plan.

DHHS came into contact with this family a second time in December 2019, in response to reports that Bryon had sexually assaulted Erica's younger sister, who was then a juvenile. On or about December 30, 2019, Bryon was arrested and charged with first degree sexual assault of a child. With the exception of a roughly 3 month period from January to April 2022, Bryon was continuously incarcerated throughout the remainder of the juvenile court proceedings.

In addition to the sexual assault allegations against Bryon, DHHS identified additional safety concerns including the living conditions of the home and Erica's mental capacity. There were further concerns about Erica allowing her parents to have contact with the children. These concerns revolved around reports that Erica's parents knew Bryon had sexually assaulted their minor daughter, but they failed to report it because Bryon was the children's primary caregiver and they did not want him to go to prison. Despite these concerns, the children remained in Erica's care and custody subject to a safety plan.

At some point after December 2019, DHHS learned that the safety plan was being violated, and the children were removed. The children were returned briefly to Erica's care in March 2020. However, the children were removed once again in July 2020, and they remained in an out-of-home placement for the remainder of the juvenile court proceedings.

The July 2020 removal was prompted by reports that the oldest child, Lilly, was engaged in an inappropriate relationship with a 40-year-old male individual. In that regard, a law enforcement officer testified that he was dispatched to the family home on July 21, 2020, upon a report of possible child enticement. The ensuing investigation revealed sexually explicit communications and at least some degree of physical contact between Lilly and the suspect.

On July 23, 2020, the State filed a juvenile petition alleging that the children came within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016) in that they are in a situation dangerous to life or limb or injurious to their health or morals. With respect to Bryon, the petition alleged that he was arrested and charged with sexual assault of a child in December 2019, and had remained incarcerated ever since. At that point, it does not appear that Bryon had either sought or obtained any contact with his children since his arrest in December 2019.

In a December 1, 2020, pretrial order, the juvenile court noted that Bryon remained incarcerated and "has no contact" with the children. The court further noted a stipulation to obtain an opinion regarding contact with Bryon from the children's therapist. In the next pretrial order, entered on January 13, 2021, the juvenile court noted that "the therapist recommends no contact between the children and their father at this time." Shortly thereafter, on January 27, Bryon filed a motion to allow contact with the children, which was set for hearing on February 11. At that hearing, the court announced that the parties had come to an agreement to allow Bryon to write letters to the children which were to be screened by the children's therapist and provided to the children in a therapeutic environment.

On August 3, 2021, the State filed an amended information in Bryon's pending criminal case, alleging one count of attempted first degree sexual assault. On the same day, Bryon pled guilty and was convicted on that charge by the district court for Sarpy County. The district court deferred sentencing until after a presentence investigation and psychosexual evaluation. The sentencing hearing was originally scheduled for October 2021, however, various delays resulted in multiple continuances, and Bryon was not sentenced until April 2022.

While awaiting sentencing in his criminal case, on October 27, 2021, Bryon filed a motion for telephone contact with the children, alleging delays and practical difficulties associated with the court ordered written contact. On January 21, 2022, Bryon filed a motion for visitation alleging that he had posted bond and was released on January 14. Those motions remained pending when, on January 27, the State filed an amended juvenile petition with respect to Erica and a supplemental juvenile petition with respect to Bryon. In addition to allegations under § 43-247, the supplemental petition also alleged grounds to terminate Bryon's parental rights under Neb. Rev. Stat. § 43-292(4) and (7) (Reissue 2016) and alleged that termination of Bryon's parental rights was in the children's best interests.

A hearing scheduled for January 28, 2022, was continued upon a stipulated motion of the parties, so Bryon's requests for contact and visitation were not taken up until March 8. On March 7, Nicole Riggins, who was the therapist for Lilly, James, and Ayden, wrote a letter to the court recommending that telephone contact with Bryon be allowed if requested by the children. Riggins further opined that physical contact between Bryon and the children "could be detrimental to the children's mental health." In a March 8 pretrial order, the juvenile court reiterated the same procedure for Bryon to engage in written contact with the children and ordered that he be allowed supervised telephone contact at the children's request. Bryon apparently participated in one telephone call initiated by Lilly, James, and Ayden sometime after the March 8 pretrial order and before Bryon's sentencing in mid-April.

On April 19, 2022, Bryon was sentenced in his criminal case to 12 to 14 years of incarceration with credit for 797 days' served. Trial on the amended juvenile petition and supplemental juvenile petition was held over the course of three days on May 2, May 3, and June 6, 2022. DHHS case manager, Kyley Dobey, testified that she took over the case in July 2021. Dobey testified that she met with Bryon in jail to discuss services available to him, such as facilitating written contact with the children, a nurturing fathers program, and family team meetings. Dobey recalled that Bryon would attend family team meetings virtually when the jail would allow, and he attended at least one family team meeting in person during the roughly 3 months that he was out of jail from January to April 2022. However, Dobey also recalled that Bryon ceased writing letters to the children and made at least two attempts to have unauthorized contact with Lilly during that time frame.

With regard to the children, Dobey noted an ongoing concern regarding "sexualized behaviors" exhibited by the children. Riggins testified that both James and Ayden exhibited sexualized behaviors at school that were not age appropriate such as "asking peers at recess to show their privates" and "showing other children their penis [sic]." In her March 7, 2022, letter, Riggins wrote that James and Ayden had started to "hump blankets and their beds, which is also very unusual for children their age to know how to do." Riggins further testified that James and Ayden's behaviors seemed to regress following the telephone contact with Bryon. In that regard, Riggins opined that it...