State v. Cindy E. (In re Interest of Brelynn E.)

30 Neb.App. 723

972 N.W.2d 442

IN RE Interest of BRELYNN E., a child under 18 years of age.

State of Nebraska, appellee,

v.Cindy E., appellant.

No. A-21-166.

Court of Appeals of Nebraska.

Filed March 15, 2022.

Michele J. Romero, of Stamm Romero & Associates, P.C., L.L.O., for appellant.

Patrick M. Lee, Deputy Buffalo County Attorney, for appellee.

Jennifer N. Rowling, guardian ad litem.

Moore, Bishop, and Arterburn, Judges.

Arterburn, Judge.

INTRODUCTION

Cindy E. appeals from the order of the county court for Buffalo County, sitting as a juvenile court, which terminated her parental rights to her child Brelynn E. Based on the reasons that follow, we affirm.

BACKGROUND

Cindy is the biological mother of Brelynn, who was born in August 2015. Cindy has two older children, one of whom resides with his paternal grandparents after she voluntarily relinquished her parental rights to him and the other of whom has been placed in a guardianship as a result of a prior juvenile court case involving Cindy. These two children were not involved in the present juvenile court proceedings and, as a result, are not part of this appeal. In addition, the fathers of Cindy's other children were not involved in the juvenile court proceedings below and are not part of this appeal. Wesley E. is the father of Brelynn; however, he relinquished his parental rights to Brelynn on September 28, 2020, during the course of the termination trial.

Brelynn has been removed from Cindy's care by the Department of Health and Human Services (the Department) on two occasions prior to the filing of the present case. Cindy had a voluntary case with the Department in May 2016, following reports that Wesley sexually assaulted Brelynn. Wesley was ultimately convicted of sexually assaulting Brelynn when she was approximately 9 months old. Brelynn was not in Cindy's care for approximately 1 week. In June 2017, Brelynn was again removed from the home. She was returned to Cindy's home in December 2017, but remained in the Department's legal custody until June 2018. This removal was due to concerns regarding Cindy's mental health and regarding Cindy's leaving Brelynn with inappropriate caregivers, including Cindy's sister, whose husband was a registered sex offender.

Because of the concerns about Cindy's mental health, the Department contacted Dr. John Meidlinger, a licensed clinical psychologist, to complete an evaluation in July 2017. Meidlinger diagnosed Cindy with adjustment disorder, anxious mood, and post-traumatic stress disorder, as well as a personality disorder with narcissistic and avoidant features. In his evaluation, he expressed that he would want to see stability in all aspects of Cindy's life before he felt that Brelynn should be placed with Cindy again. Specifically, he noted that if Cindy did not have mental health stability and regulation in place, Brelynn would not be able to trust Cindy and would develop patterns of codependency. In addition, in his opinion, Brelynn could become "[an] easy target[ ] for unscrupulous peers and adults." According to Meidlinger, Cindy would continue to struggle with her mental health unless she worked more than once a week on identifying and implementing coping strategies for her mental health. In his opinion, Cindy does not have an ability to experience adversity and then turn the adversity into a useful path forward. He believes that it would be useful for her to be placed in a 24-hour inpatient facility to teach her the emotional skills that she needs. In addition, he expressed that part of Cindy's narcissistic tendencies would be to seek excessive medical attention for a child as a way of getting attention for herself.

Meidlinger noted his concerns about Cindy's parenting ability. His evaluation noted that Cindy continued to see Wesley after she was convinced Wesley was sexually abusing Brelynn and that Cindy went on to have another child with Wesley. Meidlinger testified that Cindy felt "justified" in leaving Brelynn in the care of her sister and brother-in-law, despite her brother-in-law's also being a registered sex offender. Meidlinger observed Cindy with Brelynn and observed that Cindy did not engage well with Brelynn. He testified that Cindy did not know "how to create space and interact with [Brelynn]." He also noted that Cindy could not manage minor tasks with Brelynn. Meidlinger expressed his concern that when Cindy and Brelynn were at his office, Cindy did not escort Brelynn to his office, despite Brelynn's previously being sexually assaulted by a male. He also observed that Cindy did not appropriately interact with Brelynn in the way that she talked with Brelynn and did not know how to structure play-time with Brelynn. He was concerned about Cindy's ability to make good judgments about Brelynn.

Despite the involvement of the Department in Cindy's and Brelynn's lives from 2016 to 2018, it was the death of Cindy and Wesley's other child, Kamdyn W., which precipitated the current case. Kamdyn was born in September 2018. When Kamdyn was approximately 2 months old, he suffered from a cold. Kamdyn was sleeping on a "Boppy" style pillow in Cindy's bed, at a 45-degree angle, due to his cold, and he rolled off of the pillow onto his stomach. He was transported to the emergency room in an unresponsive condition. The cause of death was determined to be asphyxiation.

Dr. Angela Kratochvil-Stava, a pediatrician who treated both Brelynn and Kamdyn, testified about the instructions she gave to Cindy about safe sleep for babies. She explained that after a baby is born, the parents are required to watch videos on safe sleep for babies. She testified that these videos instruct parents on the appropriate way for a baby to sleep, specifically that the baby is to be placed on his or her back in his or her own bed. Kratochvil-Stava further testified that if a baby has a cold, she advises the parents that the baby should remain on a firm mattress but that the head can be elevated by lifting up the mattress about 15 to 20 degrees by placing something underneath one end. Kamdyn suffered a cold when he was approximately 2 months old. Cindy told the officers investigating the death that her doctor had instructed her to have Kamdyn sleep on a "Boppy" style pillow due to his cold and at a 45-degree angle. According to Cindy, one night, when he was sleeping on this style of pillow, he rolled off of the pillow onto his stomach, which resulted in his death. Kratochvil-Stava denied advising Cindy to use this style of pillow to prop Kamdyn up.

As part of the investigation of Kamdyn's death, law enforcement investigated Cindy's residence. Harley Amy, an investigator with the Buffalo County sheriff's office, observed that there were prescription medications in bottles, as well as loose medications, within Brelynn's reach. He testified that there was a bassinet in Cindy's bedroom; however, the bassinet was full of items, including a basket of prescription medications and toys. In addition, there was cough medicine spilled in the bassinet that had not been cleaned up. He also observed that there was mold growing on items in the kitchen and that the residence smelled of feces and urine. Amy authored an affidavit requesting removal of Brelynn based on the uncleanliness of the home and Kamdyn's death. The affidavit also noted that Brelynn had been previously sexually abused.

On November 6, 2018, the State filed a petition requesting that Brelynn be adjudicated as a juvenile under Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016). The State asserted that Brelynn had previously been in the care and custody of the Department from June 2017 to June 2018 following reports of Cindy's inability to leave Brelynn with appropriate caretakers, an unsanitary home, and Cindy's mental health issues which placed Brelynn at risk of harm. In addition, it was noted that Brelynn had been previously sexually assaulted by Wesley.

Brelynn was removed from Cindy's residence and was placed with her maternal grandmother, Carol Gaedeke, in November 2018. However, after approximately 10 days, Gaedeke requested that Brelynn be removed from her home. According to Gaedeke, she requested that Brelynn be removed in part due to conflict she was experiencing with Cindy along with the grief she was experiencing due to Kamdyn's death. The Department then placed Brelynn into foster care. After a couple of shorter-term placements, Brelynn was placed with a foster family in July 2019 who would consider providing a permanent home for Brelynn, should that be necessary. Later, on April 4, 2019, Gaedeke wrote an email to the court requesting that if Cindy's parental rights to Brelynn were to be terminated and Brelynn was to be adopted, Gaedeke would want to be considered for her adoption. The court noted that it did not consider or review the email and forwarded the email to the attorneys. Although Brelynn lived in more than one foster home, she was not again placed with Gaedeke; nor did she return to Cindy's care. Cindy continued to have supervised visits with Brelynn throughout the pendency of the case.

On March 9, 2020, Cindy filed a motion for an exception. She asked for the court to grant her an exception to the State's duty to file a petition for termination of parental rights under Neb. Rev. Stat. § 43-292.02(3)(b) (Cum. Supp. 2020). She asserted that although more than 15 months had passed since Brelynn was in the care of a nonrelative, she had not had a reasonable opportunity to avail herself of the services deemed necessary in the case plan. The court did not hold a hearing on Cindy's motion.

Two days later, on March 11, 2020, the State filed a motion for termination of Cindy's parental rights. The State alleged that Brelynn had been in the care and custody of the Department since November 2018. The State asserted that Brelynn had been previously removed from Cindy's care from May 26 until May 31, 2016, and June 2017 until December 2017. The State asserted that the grounds for...