State v. Cheryl C. (In re Interest of Amelia C.)

IN RE INTEREST OF AMELIA C. AND ANAYA C., CHILDREN UNDER 18 YEARS OF AGE.

STATE OF NEBRASKA, APPELLEE, v. CHERYL C., APPELLANT.

No. A-19-1013.

NEBRASKA COURT OF APPEALS

August 11, 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: TONI G. THORSON, Judge. Affirmed.

Jonathan M. Braaten and Mona L. Burton, of Anderson, Creager & Wittstruck, P.C., for appellant.

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

Michelle Paxton, guardian ad litem, and Jared Holzhauser, Senior Certified Law Student, of University of Nebraska College of Law Children's Justice Clinic.

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

WELCH, Judge.

I. INTRODUCTION

Cheryl C. appeals the Lancaster County Separate Juvenile Court order terminating her parental rights pursuant to Neb. Rev. Stat. § 43-292(2), (6), and (7) (Reissue 2016) and finding that termination was in the minor children's best interests. Based on the analysis set forth herein, we affirm.

II. STATEMENT OF FACTS

Cheryl is the adoptive parent of Anaya C., born in February 2006, and Amelia C., born in December 2009. In October 2017, the State filed an adjudication petition alleging Anaya and Amelia were children within the meaning of Neb. Rev. Stat. § 43-247(3)(a)(3) (Reissue 2016) because they lacked proper parental care by reason of the faults or habits of Cheryl or were in a situation dangerous to life or limb or injurious to their health or morals because (1) Cheryl was aware of inappropriate sexual contact between one of the minor children and an adult but failed to report it or take action to ensure the child's safety; (2) Cheryl used unsafe restraints or methods of restraint on one of the minor children that could have resulted in an unsafe situation for the child; and (3) Cheryl failed to provide proper or necessary care, supervision, and protection of the children, all of which placed the children at risk of harm. The State later filed an amended petition alleging that (1) Cheryl had made claims of abuse toward one or more of the children and/or abuse by one of the children but failed to be consistent in the claims and her actions regarding those claims; (2) Cheryl exhibited a pattern of failing to protect the children especially in the persons she allowed around the children; and (3) Cheryl exhibited a pattern of making claims that were inconsistent and/or did not comport with reality regarding behavior problems, abuse, physical illnesses, physical issues such as allergies, and/or reporting historical data about the children. The children were removed from Cheryl's care on October 20, 2017, and placed in the temporary custody of the Department of Health and Human Services (DHHS). Anaya and Amelia have remained in foster care since that time.

In March 2018, the juvenile court adjudicated Anaya and Amelia based on Cheryl's admissions to the allegations contained in the adjudication petition. Cheryl was ordered to complete a psychological evaluation as arranged by DHHS and sign releases allowing DHHS to access information from the evaluation, and DHHS was required to arrange for Cheryl and the children to receive services based on the recommendations contained in the evaluation.

In June 2018, the juvenile court entered an order requiring Cheryl to maintain a legal means of support, maintain a safe and stable living environment, participate in a full psychological evaluation, a parenting assessment, and a medication assessment, and complete a parenting class and demonstrate skills learned from the parenting class. The juvenile court also ordered that DHHS arrange for Amelia to undergo genetic testing to confirm whether she suffered from syndromes impacting her development. Additionally, the juvenile court allowed supervised visits between Cheryl and Amelia but continued with suspended visitation between Cheryl and Anaya.

After numerous attempts to obtain a psychological assessment as further documented below, in December 2018, the juvenile court ordered Cheryl to complete an evaluation with Dr. Nicholas Giles as arranged by DHHS. However, because Dr. Giles was unable to take on Cheryl's case, and after contacting other therapists, DHHS made a referral for Dr. Theodore DeLaet in early 2019. Following Dr. DeLaet's evaluation, the juvenile court ordered DHHS to provide Cheryl with services recommended in Dr. DeLaet's psychological and parenting assessment. On March 28, the State filed a motion to terminate Cheryl's parental rights alleging statutory grounds under § 43-292(2), (6), and (7) and that termination was in Anaya's and Amelia's best interests.

1. TERMINATION HEARING

The termination hearing was held in June 2019. Testimony was adduced from family service specialists, Kellie Carlin (served as specialist in October 2017), Jasna Tubanovic (served as specialist from approximately November or December 2017 to April 2018), and Carolyn Simon (served as specialist from May 2018 to termination hearing); from Anaya and Amelia's therapist Katy Hilgenkamp; and from the psychologist who performed Cheryl's psychological assessment, Dr. Theodore DeLaet.

(a) Evidence Which Led to Removal

Carlin testified that in October 2017, she investigated a report alleging that Cheryl's brother sexually abused Anaya and that, separately, Cheryl duct-taped Anaya's hands together and used a bungee cord to lock Anaya in her room. Anaya's testimony corroborated these allegations. When Carlin arrived at Cheryl's residence, Cheryl told Carlin that Anaya had a history of running away from home, suffered from hallucinations, was provocative, had sexually abused Amelia, and was so aggressive that Anaya could not be around other children. Cheryl explained to Carlin that Anaya was taking medication for her anxiety and depression and that Cheryl had arranged for Anaya to take birth control pills to control her hormones and behavior. Cheryl also informed Carlin that Amelia suffered from medical conditions including microcephaly, fetal alcohol syndrome, Ehlers-Danlos, lactose intolerance, hypermobility of her joints, as well as a high risk of seizures and aortic aneurisms.

When Carlin removed the children from Cheryl's care, Cheryl instructed Anaya to carry Amelia to the car because Amelia's muscles get sore very easily. However, after Carlin brought Amelia to the Foster Care Closet, Amelia began running around, bouncing off the bean bag pillows, doing cartwheels, and did not appear to be in any pain. Carlin arranged supervised visits, assisted Cheryl in setting up a neuropsychological evaluation with Dr. Robert Arias, and discussed individual therapy with Cheryl and Barb Dewey, a therapist. Carlin also set up therapy for Anaya with Hilgenkamp.

(b) Cheryl's Psychological Assessment

Tubanovic assumed the role of Cheryl's family service specialist in approximately December 2017. Tubanovic testified that, at that time, Cheryl had met with Dr. Arias, a clinical psychologist, for the completion of a psychological assessment, but that Cheryl was refusing to continue working with Arias, requiring Tubanovic to find another provider who would perform an assessment for Cheryl. While searching for a replacement psychologist, Tubanovic learned that Cheryl had privately hired Dr. Stephanie Peterson to perform the court-ordered psychological assessment. In response, Tubanovic provided Dr. Peterson with certain collateral information to consider in connection with the assessment. Although Dr. Peterson eventually completed the assessment and issued a report, and despite the court order requiring completion of a psychological assessment, Cheryl refused to release the results of her psychological evaluation to DHHS. As a result, toward the end of February 2018, Tubanovic attended a team meeting that focused on the need to obtain the psychological assessment in order to formulate a case plan and set up services for Cheryl. At that time, Cheryl was seeing a therapist, Barb Dewey, who recommended that Cheryl work with Dr. Diane Marti to obtain the psychological assessment.

In April 2018, DHHS requested that Dr. Marti complete a psychological and parenting assessment for Cheryl. Cheryl cooperated in obtaining this assessment and Dr. Marti submitted her report in November 2018. Following the release of the report, Tubanovic expressed concern that Dr. Marti failed to consider certain collateral information in connection with Cheryl's assessment, including whether Cheryl suffered from "factitious disorder" and whether Dr. Marti was being improperly influenced by Dewey. In response to these concerns, the juvenile court ordered Cheryl to complete a new evaluation.

In connection with that order, DHHS contacted Dr. DeLaet and requested a full psychological evaluation and parenting assessment. Dr. DeLaet agreed and completed his report in April 2019. Dr. DeLaet testified that he considered some of Dr. Marti's psychological data but did not find her parent assessment methods or conclusions valid because she used older versions of personality measures and noted a major variance in how she evaluated parenting issues. Dr. DeLaet's evaluation noted that "[Cheryl] is college educated and has adequate cognitive abilities to be able to understand and make changes in her life." Dr. DeLaet observed that her Full Scale Intelligence Quotient was 116, which falls within the above average range. In the parenting risk assessment, Dr. DeLaet found Cheryl's quality of judgment seemed to be impaired or significantly lower than expected for someone of her intelligence level.

Dr. DeLaet testified that he diagnosed Cheryl with depression and anxiety, and listed three rule-out diagnoses for social anxiety, unspecified personality disorder, and the presence of factitious disorder imposed on another, formerly referred to...