State v. Danelle B. (In re Interest Payton P.)

IN RE INTEREST OF PAYTON P., A CHILD UNDER 18 YEARS OF AGE.

STATE OF NEBRASKA, APPELLEE, v. DANELLE B., APPELLANT, AND ORREY P., APPELLEE, ANDCYNTHIA W. AND DANA W., INTERVENORS-APPELLEES.

No. A-18-733.

NEBRASKA COURT OF APPEALS

April 30, 2019

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 County Court for Scotts Bluff County: JAMES M. WORDEN, Judge. Affirmed.

Jessica R. Meyers, Deputy Scotts Bluff County Public Defender, for appellant.

William E. Madelung, of Madelung Law Office, P.C., L.L.O., for appellee Orrey P.

Katy A. Reichert, of Chaloupka, Holyoke, Snyder, Chaloupka & Longoria, P.C., L.L.O., for intervenors-appellees.

PIRTLE, ARTERBURN, and WELCH, Judges.

PIRTLE, Judge.

INTRODUCTION

Danelle B. appeals from an order of the Scotts Bluff County Court, sitting as a juvenile court, that terminated her parental rights to her child, Payton P. Orrey P. attempts to cross-appeal from the same order that also terminated his parental rights to Payton. Cynthia W. and Dana W., Payton's maternal grandmother and stepgrandfather, also appeal the termination of Danelle's parental rights. Based on the reasons that follow, we affirm the termination of Danelle's and Orrey's parental rights to Payton and we dismiss Cynthia and Dana's appeal for lack of standing.

BACKGROUND

Danelle and Orrey are the biological parents of Payton, born in April 2013. On May 2, 2017, the State filed a petition to adjudicate Payton pursuant to Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016) alleging that her parents' use of controlled substances placed her at risk of harm and/or deprived her of necessary parental care, and that she lacked safe and stable housing. Payton was removed from her home on May 1 and has not returned since. On May 16, the State filed an amended juvenile petition which included the allegations in the original petition and added an allegation that Orrey neglected to provide Payton with proper parental care, support, or protection. On July 12, the State filed a second amended petition alleging only that Payton lacked safe and stable housing through no fault of Danelle and Orrey. Danelle and Orrey both admitted to the allegation in the second amended petition, which the court accepted. Payton was adjudicated under § 43-247(3)(a).

On April 3, 2018, Cynthia and Dana filed a complaint to intervene, which the court granted.

On April 19, 2018, the State filed a motion to terminate Danelle's parental rights to Payton, alleging that termination was appropriate pursuant to Neb. Rev. Stat. § 43-292(2), (4), and (6) (Reissue 2016), and that termination was in Payton's best interests. On the same day, the State filed a motion to terminate Orrey's parental rights, alleging that termination was appropriate pursuant to § 43-292(1), (2), and (6), and that termination was in Payton's best interests.

In June 2018, trial was held on the motions to terminate Danelle's and Orrey's parental rights. As explained later in this opinion, we will not address the termination of Orrey's parental rights, and as such, the evidence discussed below only pertains to Danelle.

Allison Claussen, Payton's foster mom, was the first witness to testify for the State. Payton was placed with her on May 1, 2017, and was 4 years old at the time. Claussen testified that when Payton first arrived she was withdrawn and shy, had erratic behavior and tantrums, was still in diapers, had problems sleeping, would not sleep alone, and would not eat meals and only wanted to snack on "junk food." Claussen testified that she supervised visits between Danelle and Payton in her home for about the first 4 months. The visits took place twice per week. She testified that during the time she supervised visits, Danelle did not play or interact with Payton. Payton spent a lot of the visitation time either watching something on her tablet or Danelle's phone, or watching television. Claussen also observed that when Danelle did interact with Payton it was not at her age level. She testified that Danelle fell asleep during one visit and had problems walking and functioning at another visit.

Claussen testified that in late January or early February 2018, Payton regressed from the progress she had made since May 2017. She testified that Payton became withdrawn again, had a lot of anxiety, was having more tantrums, and regressed on her potty training. Claussen testified that during this time, Danelle had daily visits scheduled with Payton, but Danelle was not being consistent in attending those visits. By the end of March or beginning of April 2018, Payton had progressed back to where she was before the January/February regression. Payton's turnaroundcoincided with a reduction in Danelle's visits. Her visits had been reduced to once per week, and there were family therapy sessions once per week as well.

Claussen testified that Payton functions better when her schedule is consistent; she is happy, does not have tantrums, is well-behaved, and interacts with other children. She testified that Danelle has not been able to provide Payton with a consistent schedule.

Cassie Beasant, Payton's caseworker since May 2017, was next to testify. Beasant testified that Payton was removed from the home based on methamphetamine use by Danelle and Orrey. The case plans that Beasant had prepared over the course of the case were admitted into evidence. Beasant testified that the goals set for Danelle had not changed throughout the case. The goals included: maintaining safe and stable housing free from illegal substances and unsafe individuals, working on and modeling protective parenting skills, and taking all of her medications as prescribed. Beasant testified that Danelle has submitted to a medication evaluation, a substance abuse evaluation, and a psychological and parent capacity evaluation. The psychological and parent capacity evaluation report stated that unless Danelle's past history was addressed, she would continue to have relationships that place her and Payton in harm's way. The report recommended individual therapy and family therapy. At the time of trial, Danelle had only been to three individual therapy sessions. Beasant testified that she talked with Danelle about the need to go to therapy from the time it was recommended in December 2017 until Danelle went to her first session in March 2018. Danelle had been participating in family therapy since November 2017.

Beasant testified that at the time of trial, Danelle was in a relationship with an individual named Chris, and that he had been living in Danelle's home since at least March 2018. Chris has a criminal history that includes multiple assault charges in the past 10 years, the most recent being 3 years ago. Beasant testified that she talked to Danelle about Chris in April or May and expressed her concern about his past and that Danelle told her she would have whomever she wants in her home and she did not believe Chris had the criminal record Beasant claimed he had.

Beasant testified that Danelle completed "Circle of Security" parenting course in summer 2017, but that she has not implemented the skills that she learned. Beasant testified that Danelle had recently been attending most of her scheduled visitations, as well as most of Payton's medical appointments. Beasant testified that she had some concerns about the supervised visitations, including Danelle's lack of redirection of Payton, lack of interaction with Payton resulting in Payton playing alone, and the nonnutritious foods offered by Danelle. She testified that Danelle's lack of interaction with Payton has not changed during the course of the case. Beasant further testified that Payton acts out toward Danelle and is disrespectful at times. Beasant testified that Danelle had fallen asleep at two visits, which Danelle attributed to pain medication and not sleeping well at night. She also testified that Danelle treats Payton like an adult friend, rather than as a small child, and sometimes talks to her about subjects that are not age appropriate for Payton.

Between January and May 2018, Danelle's attendance at visits was very inconsistent. Beasant testified that most of the visits that were missed were due to Danelle not feeling well or an appointment overlapped with her visitation time.

Pursuant to the goal of maintaining safe and stable housing free from illegal substances, Danelle was required to complete urinalysis (UA) testing as requested. Beasant testified that there had been some tests marked as a "no-show" and others marked as a refusal to submit to the test.Beasant also testified that after January 9, 2018, Danelle was required to do a UA test every day. Beasant testified that the results of the tests Danelle have submitted to have widely varied. On November 2, 2017 and April 10, 2018, she tested positive for methamphetamine. Danelle often tested positive for amphetamines, which was attributed to a prescription medication for Attention Deficit Hyperactivity Disorder (ADHD), but the positive test results were not constant. When asked about it, Danelle told Beasant that she does not have to take her ADHD medication all the time, so it will not show up in every test. Danelle also tested positive at times for alcohol, some of which showed high levels of alcohol. There were also results that showed drugs in the opiate category, which were attributed to prescription pain medication.

Danelle suffered a work-related low-back injury in 2005. Danelle's doctor testified that she is prescribed oxycodone for her pain, and she can take one to two pills every 4 to 6 hours as needed for her pain. She was also prescribed Adderall for ADHD, which was to be taken on a daily basis. Her doctor testified that Danelle should not drink an excessive amount of alcohol with her prescription medication, but was not completely restricted from...