State v. Cheri G. (In re Interest of Madison B.)

IN RE INTEREST OF MADISON B. AND OLIVIA B., CHILDREN UNDER 18 YEARS OF AGE.

STATE OF NEBRASKA, APPELLEE, v. CHERI G., APPELLANT.

No. A-19-786.

NEBRASKA COURT OF APPEALS

April 21, 2020

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 Lancaster County: REGGIE L. RYDER, Judge. Affirmed.

Troy J. Bird, of Hoppe Law Firm, L.L.C., for appellant.

Patrick Condon, Lancaster County Attorney, and Maureen Lamski for appellee.

MOORE, Chief Judge, and RIEDMANN and WELCH, Judges.

RIEDMANN, Judge.

INTRODUCTION

Cheri G. appeals the order of the separate juvenile court of Lancaster County which terminated her parental rights to her minor children. Upon our de novo review of the record, we affirm.

BACKGROUND

Cheri is the mother of two daughters: Madison G., born in 2010, and Olivia G., born in 2012. Throughout the case, Cheri was married to Jose G. Jose is not the biological father of Madison or Olivia, but because he is relevant to the factual history of the case, we refer to him as necessary to address the issues raised on appeal.

Madison and Olivia were removed from Cheri and Jose's home in March 2017 upon reports of physical and mental abuse and neglect. The affidavit in support of their removal from the home alleged that the Nebraska Department of Health and Human Services (DHHS) had received intakes in January reporting that Jose had struck Madison in the face, causing her nose to bleed, and in February alleging that the girls were consistently made to stand in the corner and a relative kicked the girls on their buttocks. The caller in February claimed that Cheri was aware of the abuse and reported telling Cheri that Jose was abusive to Olivia, to which Cheri replied, "'[T]hat's because Olivia has a big mouth.'" The caller also reported that Jose had threatened Cheri. The affidavit further alleged that upon investigation of these reports, Madison said that Jose treats her and Olivia like animals, that he made her eat dog treats and rabbit pellets, and that he bit her.

On March 6, 2017, the State filed a petition alleging that Madison and Olivia were children within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016) due to the faults or habits of Cheri. An adjudication hearing was held, and subsequently, the children were adjudicated under § 43-247(3)(a). Thereafter, the juvenile court held periodic review hearings as required.

On December 11, 2018, the court held an exception hearing pursuant to Neb. Rev. Stat. §§ 43-292.02 (Cum. Supp. 2018) and 43-292.03 (Reissue 2016) to determine whether an exception existed which would relieve the State of its duty to file a motion to terminate Cheri's parental rights. The court recognized that Madison and Olivia had been removed from the home on March 3, 2017, and had remained in an out-of-home placement since that time. After reviewing the record and evidence received at the hearing, the court found that none of the exceptions provided under the law apply in this case.

The State then filed a motion to terminate Cheri's parental rights to Madison and Olivia on February 6, 2019. The motion alleged that termination was appropriate under Neb. Rev. Stat. § 43-292(2), (6), and (7) (Reissue 2016) and that termination was in the best interests of the children.

The termination hearing was held on July 11, 2019. The evidence revealed additional details of the abuse the children suffered in the home. There were reports of Jose using "the hook" on the girls, meaning he would hook his thumb or fingers under their tongues and push down really hard, on occasion dragging them around the room. Madison disclosed that Jose would sometimes put her and Olivia in a box in the bathroom on their hands and knees and hold the door shut while forcing them to stay there for long periods of time. There was a photo of Madison in a dog carrier and reports of hitting, kicking, and name-calling. Madison reported that Jose had previously threatened to kill her if she ever revealed what happened in the home. There were also concerns of possible sexual abuse due to Olivia's inappropriate sexual behaviors, collateral information that Cheri and Jose had sex in front of the children, and Madison's report to a relative that Jose had "raped" her. Shortly before the termination hearing was held, the girls began to describe to their therapist the sexual abuse Jose inflicted on them.

Shortly after they were removed from Cheri's care, Madison and Olivia began attending therapy twice per week with provisionally licensed mental health practitioner, Erica Schroeder. Schroeder repeatedly described Madison as an extremely traumatized child. Madison initiallypresented as very standoffish, fearful of others, and cautious, whereas Olivia acted overly affectionate with people she did not know and referred to unknown people as "mom." Although the girls presented differently from each other, they both showed no attachment to people and failed to make connections with people.

Throughout the case, both girls continued to struggle with extreme and inappropriate behaviors. Madison would scream profanities during fits of anger, act aggressively when asked to do something, and threaten to hurt other children. Olivia continued to have inappropriate physical contact with animals and other adults and struggled with appropriate touching. At one point, Madison was taken to the hospital after making statements that she wanted to die and that it would be better if she was not here anymore. And at a later time, Olivia began taking medication to help alleviate homicidal thoughts. Both girls were expelled from several daycare centers due to their violent behaviors, and they struggled to control their behavior at school.

Cheri had visitation with the girls for the first several months of the case. However, in September 2017, Schroder expressed concerns to the caseworker that Cheri was trying to "coach" Madison during visits because Madison had reported during therapy that the only reason she was placed out of home was because Cheri said that she lies a lot and that if she stops lying she can go home. Visitation was therefore suspended beginning in December.

Once visitation ceased, the children's behaviors began to regulate, and they began communicating more openly to Schroeder about their thoughts and feelings. Both girls would become angry and upset when talking about Jose and commented that they wanted him to go to jail. They used foul language when describing him and said they hated him. At one point, Madison stated that she wished Jose was dead. The girls continued to express extreme fear of Jose during the entirety of the case. They were never allowed contact with him after they were removed from the home.

Throughout the case, Cheri participated in and completed the services DHHS offered to her, including an initial diagnostic interview and the recommended individual therapy, family support services, and a parenting class. Despite this, the record documents ongoing concerns by the caseworkers that Cheri was unable or unwilling to acknowledge the abuse Jose inflicted on Madison and Olivia. In January 2018, the caseworker indicated that it was apparent that Cheri continued to not understand why the children had been removed or accept that any part of what the children had reported was true. In October, the caseworker again expressed concern that Cheri had not acknowledged the reason for the removal of the children; rather, she denied any wrongdoing by her or Jose and had not acknowledged the abuse and neglect that the girls had reported. Two months later, the caseworker again said that there were continuing concerns that Cheri had yet to acknowledge the reason for the removal of the girls or all of the abuse and neglect that they had reported.

In May 2018, Cheri and the girls began exchanging letters with the approval of Schroeder. The girls had various reactions to Cheri's letter writing and were apprehensive to participate. In September, Schroeder arranged a family therapy session between Cheri and each of her daughters separately. Each of the children mentioned Jose's use of "the hook" to Cheri along with other abuse that occurred, but Cheri showed no reaction, acknowledgment, or empathy toward her children. At the end of each session, Cheri said to each of her children, "See you when I see you."When Schroeder spoke with Cheri a few days later, Cheri said that she is in a difficult position between Jose and her children and said that people "have the wrong idea" about Jose and that he is not abusive.

After these September sessions, Schroeder recommended no additional family sessions until Cheri sought further individual therapy in order to help her process her own history of trauma and gain the ability to empathize and provide validation to her children. Schroeder opined that continuing family sessions without Cheri completing these components would damage the progress the girls had made in treatment and not be in the children's best interests.

Cheri returned to individual therapy in November 2018 and continued attending through the time of the termination hearing. In February 2019, Schroeder arranged a therapeutic visit between Cheri and her children by phone. The conversation was not beneficial for the children, however, and their behaviors began to escalate thereafter such that Schroeder did not feel additional phone contact with Cheri was in the children's best interests.

In May 2019, Cheri wrote a letter to Madison and Olivia. Therein, she explained that she wanted to try to answer their question about why she had not left Jose, stating that she cares very much about him and that she also cares very much about her children. She wrote that she feels that Jose is working hard to make their home a safe place for Madison and Olivia, and that she,...