State v. Crystal S. (In re Interest of Diamond J.)

IN RE INTEREST OF DIAMOND J., A CHILD UNDER 18 YEARS OF AGE.

STATE OF NEBRASKA, APPELLEE, v. CRYSTAL S., APPELLANT.

No. A-21-085.

NEBRASKA COURT OF APPEALS

July 20, 2021

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 Douglas County: MATTHEW R. KAHLER, Judge. Appeal dismissed.

Thomas C. Riley, Douglas County Public Defender, and Claudia L. McKnight for appellant.

Donald W. Kleine, Douglas County Attorney, and David Ceraso for appellee.

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

PIRTLE, Chief Judge.

INTRODUCTION

Crystal S. appeals from the order of the Separate Juvenile Court of Douglas County which adjudicated her daughter, Diamond J., to be a child within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016), and which granted the Department of Health and Human Services (the Department) continued temporary custody of Diamond and provided that placement of Diamond be outside of Crystal's home. Because the award of custody to the Department was temporary in nature, that portion of the order was not final and appealable. We therefore dismiss the appeal for lack of jurisdiction.

BACKGROUND

Diamond was born in February 2003 in Douglas County, Nebraska. Diamond's father is not involved in this appeal; therefore, we do not address the father further except to provide context.

On October 7, 2020, the State filed a petition alleging that Diamond was a child within the meaning of § 43-247(3)(a) through the faults or habits of her mother, Crystal. The petition alleged that Diamond had endured periods of homelessness since September 2019; that Crystal had failed to report Diamond as missing when Diamond's whereabouts were unknown; and that Crystal had contacted law enforcement twice to request that Diamond be removed from her home. The petition further alleged that Crystal had failed to provide for Diamond's daily needs, including food, clothing, and education; that Crystal had failed to provide appropriate care, support, supervision, and/or safety for Diamond; that Crystal had failed to provide safe, stable, and/or appropriate housing for Diamond; and that Crystal's actions put Diamond at a risk for harm.

Also on October 7, the State filed an ex parte motion requesting that the juvenile court place Diamond in the immediate custody of the Department and outside Crystal's home. In a written order, the juvenile court found that reasonable efforts had been made to prevent Diamond's removal and granted the State's ex parte motion, placing Diamond in the temporary custody of the Department in a foster home.

Crystal failed to appear at a first appearance and protective custody hearing on October 19 and on December 10, 2020. An adjudication hearing on the State's petition was held on January 5, 2021, with Crystal present and represented by counsel. The juvenile court read the petition aloud in open court, and Crystal entered a denial as to the contents.

The State first presented the testimony of Diamond, who was 17 years old at the time of the hearing. Diamond testified that prior to being placed in the custody of the Department, she had lived "on the streets" for approximately a year. She testified that before becoming homeless, she had lived with her father; however, the father had "kicked [Diamond] out" in late 2019 because she refused to comply with his order to stop attending psychotherapy. After leaving her father's home, Diamond stayed anywhere "from public places to abandoned houses to friends' to family members', anywhere that [she] could." She testified that she was not in contact with Crystal during this period.

Diamond testified that in September 2020, Crystal reached out to her via Facebook. Diamond informed Crystal that she was pregnant, but neither Crystal nor Diamond attempted to arrange prenatal medical care. Diamond stayed at Crystal's house for "a few weeks on and off" during the month of September, and she estimated that she "stayed there maybe six [nonconsecutive] days in total throughout the whole time." Diamond testified that she and Crystal were involved in multiple altercations during the weeks she stayed with her mother. She testified that Crystal would remove all the food from the house and turn off the power because "she just wanted [Diamond] gone." Diamond testified that although she initially refused to leave Crystal's home for fear of being reported as a runaway, she was ultimately "kicked out" of Crystal's house on four separate occasions.

Toward the end of September 2020, Crystal contacted the police and asked them to remove Diamond from her home; however, the police refused. Diamond testified that Crystal then calledthe Department, and a social worker arrived to take Diamond to her father's home. However, Diamond's placement with her father only lasted for a day, as the father informed Diamond that she "needed to be out of his house by the time he got back [from work] or he would make [her] leave himself." Diamond testified that she then began staying with an individual who attempted to recruit her for work as a prostitute.

During cross-examination by the guardian ad litem, Diamond testified that while she was homeless, Crystal never offered her money or a place to stay. She explained that the "on and off" living situation with Crystal in September 2020 deteriorated because Crystal informed Diamond that "if you don't have anything to contribute, then you have to go." She testified that Crystal did not provide her with any clothing or money while she stayed at Crystal's house. Diamond testified that Crystal never made arrangements for her to live somewhere else, and she asserted that she had been "mostly providing for [her]self" since the age of 16.

On cross-examination by Crystal's counsel, Diamond admitted that in early September 2020, Crystal drove her to the emergency room on account of pregnancy-related "bleeding and cramping." She testified that following this incident, she stayed at Crystal's house for 3 consecutive days before Crystal "kicked [her] out" because Diamond refused to sign the proceeds of her grandmother's insurance policy over to Crystal. Diamond further testified that around the middle of September, the police returned her to Crystal's house, but that Crystal kicked her out three subsequent times. Diamond admitted that during this period, she and Crystal engaged in a physical altercation, but she denied laying her hands on Crystal or any other family members except for the purpose of self-defense.

The State next presented the testimony of Janet Watson, a child and family services specialist with the Department. Watson testified that the Department "received an intake with concerns for physical neglect of Diamond by her father . . . on August 25 of 2020." Watson attempted to locate Diamond, who had left her father's house by that time. On September 4, Watson made contact with Diamond and Crystal at Crystal's residence. Watson testified that after speaking to both Diamond and Crystal, she "put a safety plan in place to have the family working with intensive in-home services through Release Ministries." The safety plan also provided that Crystal should report Diamond as a runaway if she left the house without permission.

Watson testified that during September 2020, she received information that Diamond had left Crystal's home on three separate occasions. She testified that Diamond said that Crystal had kicked her out, while Crystal claimed Diamond ran away. According to the Omaha Police Department, Crystal did not file a missing persons report at any time.

Watson testified that on September 23, Crystal called to request that Diamond be removed from her residence due to an altercation. Watson "explained to Crystal that we were not at a point where an affidavit would be written and if she needed Diamond removed from the home, she would need to contact law enforcement." Later that day, Watson went to Crystal's residence, but no one answered the door.

The following day, September 24, Watson spoke with Diamond on the porch of Crystal's home. Watson testified that Diamond made her aware of an issue involving benefits Diamond was to receive from a deceased grandmother, which Crystal wanted Diamond to sign over to her name. Watson testified that she was "shown a video of an altercation between Crystal and Diamond during which Crystal was yelling." While Watson and Diamond were speaking, Crystal exited theresidence, locking all the doors behind her. Crystal told Watson that she "did not want Diamond living with her anymore" because "of the altercations that were occurring." Crystal then drove away, and Diamond told Watson that she had no way to get back inside the house. Watson testified that law enforcement then arrived at Crystal's home and reported that Crystal had requested that Watson be removed from the premises. Subsequently, Watson spoke with Diamond's father, who gave permission for Diamond to be brought to his residence; however, that placement proved unsuccessful.

Watson testified that throughout the time Diamond was homeless, neither of her parents had provided any kind of assistance. She testified that although Diamond had attempted to independently arrange for her own prenatal care, she had been refused treatment because she did not have parental consent. She further testified that Crystal never reached out to her about Diamond's whereabouts, nor did Crystal ever articulate a plan for Diamond to live somewhere else.

On cross-examination, Watson testified that prior to September 2020, Diamond had been staying with a former mentor. However, the mentor reported to Watson "that there was [an] altercation between herself and Diamond that caused [the mentor] to say that Diamond could not live there anymore." Watson admitted that Crystal had told her that Diamond stole...