State v. Deionte B. (In re Interest of Atticus B.)

IN RE INTEREST OF ATTICUS B., A CHILD UNDER 18 YEARS OF AGE.

STATE OF NEBRASKA, APPELLEE, v. DEIONTE B., APPELLANT.

No. A-19-159.

NEBRASKA COURT OF APPEALS

October 1, 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 Separate Juvenile Court of Douglas County: DOUGLAS F. JOHNSON, Judge. Affirmed.

Thomas C. Riley, Douglas County Public Defender, and Timothy F. Shanahan for appellant.

Donald W. Kleine, Douglas County Attorney, Anthony M. Hernandez, and Teryn Blessin, Senior Certifed Law Student, for appellee.

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

PIRTLE, Judge.

INTRODUCTION

Deionte B. appeals from an order of the Douglas County Separate Juvenile Court terminating his parental rights to Atticus B., his minor child. Deionte argues that the court lacked clear and convincing evidence that termination of his parental rights was in the best interests of the minor child. For the reasons that follow, we affirm.

BACKGROUND

Atticus, born in February 2017, first came to the attention of the Nebraska Department of Health and Human Services (DHHS) in July 2017. A report was accepted for assessment by the Child Abuse and Neglect Hotline whereby the caller indicated the home of Deionte and Shyanna E., the natural mother of Atticus, did not have a stove or a refrigerator. The caller noted that Atticus was not bathed often and frequently was dressed only in a diaper. The caller also expressed concern that Deionte and Shyanna both used and sold drugs in the home, including methamphetamine. In August 2017 the family was referred to Nebraska Families Collaborative (now known as PromiseShip) and assigned to Melanie Nicely, a Family Permanency Specialist (FPS). At the time, a safety plan was in place due to concerns surrounding Shyanna's positive test for methamphetamines, Deionte's admitted marijuana use, and reports that Deionte and Shyanna had ongoing incidents of domestic violence between the two of them in the home. The safety plan provided Atticus with an informal living arrangement with foster parents Trisha Meehan and Liam Meehan, supervised visits for both Shyanna and Deionte, and other drug-related evaluations for Shyanna.

On September 7, 2017, Nicely visited Shyanna and Deionte in their home and spoke to the two regarding a domestic dispute that had occurred 2 days prior. Shyanna previously alleged that Deionte had beaten her with an electrical cord, however, both she and Deionte were silent about the incident throughout Nicely's visit. Nicely acknowledged in a sworn affidavit, that despite her referrals for peer-to-peer support and other services, Shyanna and Deionte failed to mitigate "safety threats related to substance abuse, mental health and domestic violence" throughout her assignment to their case.

On September 28, 2017, the State filed a supplemental petition against Deionte to adjudicate Atticus pursuant to Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016), alleging that Atticus lacked proper parental care by reason of the fault or habits of Deionte, specifically alleging:

A. Deionte's use of alcohol and/or drugs places Atticus at risk for harm.

B. Deionte and Shyanna engage in domestic violence.

C. Despite services being offered to Deionte to reunify with Atticus, he failed to consistently engage in said services.

D. Deionte failed to consistently visit Atticus while he was in temporary foster care.

E. The foregoing reasons place Atticus at risk for harm.

The State also filed an ex parte order for immediate temporary custody requesting that Atticus be placed in the temporary custody of DHHS due to health and safety concerns if he remained in the home of Shyanna and Deionte at that time. The motion was granted and Atticus was placed in temporary custody of DHHS, continuing to live in the home of the Meehans.

On October 5, 2017, at the first appearance and protective custody hearing as to the supplemental petition, Deionte entered a denial of the allegations contained therein, and the continued protective custody of Atticus went unopposed. The court found that due to exigent circumstances, including substance abuse, alleged domestic violence, and the facts set forth in Nicely's affidavit, "it would be contrary to the health and safety of the minor child to be returnedhome at this time." It was ordered that Atticus should remain in the temporary custody of DHHS and the matter was set for a pretrial hearing.

On May 4, 2018, the State amended the supplemental petition, additionally seeking the termination of Deionte's parental rights under Neb. Rev. Stat § 43-292(1), (2), and (9) (Reissue 2016). The State further alleged that under Neb. Rev. Stat. § 43-283.01 (Reissue 2016), reasonable efforts to preserve and reunify the family were not required due to aggravated circumstances including, but not limited to, abandonment, torture, chronic abuse, or sexual abuse.

After several hearings and continuances, the matter concerning the adjudication of Atticus and termination of parental rights of Deionte was heard on November 20, 2018, and January 17, 2019.

At trial, Shyanna testified that she was in a romantic relationship with Deionte from May 2016 until approximately October 2017 and that the two lived together throughout most of that time. She testified that she and Deionte would use marijuana "as often as [they] could," around once or twice a day, and occasionally used cocaine. She testified that Deionte would drink alcohol "[t]hree or four times a week" and "would get so drunk he would throw up." Shyanna testified that Deionte was not employed until Atticus was a month old and that his employment only lasted around 2 or 3 months. Deionte would supplement his income by donating plasma twice a week. She noted that until near the end of their relationship Deionte would spend his money on video games and alcohol rather than help provide for Atticus. Deionte spent most of his time playing Xbox, often 12-16 hours per day.

Shyanna testified that she was concerned with Deionte's ability to parent a child because of his lack of income, aggression, and unstable emotions. She went on to discuss several incidents where she and Deionte would get into an argument and he would become physical, at one point shoving Shyanna onto Atticus' bassinet with him still inside, and hitting her on the jaw to the point where she was unable to open her jaw for a month.

Shyanna testified that throughout their relationship, Deionte attempted suicide on several occasions. Deionte told Shyanna about previous attempts and, on occasion, would leave behind notes before leaving the house for hours. Shyanna noted that Deionte never sought any type of counseling or other services to address his issues with alcohol, anger management, or domestic violence during their relationship. Furthermore, Deionte provided little to no help with the parenting of Atticus, leaving Shyanna to care for him. On one occasion, Deionte left for work, forgetting Atticus was still at home alone.

In the time that Shyanna and Deionte lived together, Deionte invited several other people to live with them, who often would use alcohol and drugs in the home. Shyanna testified that she was concerned about the criminal history of these people and would not have allowed them to move in had it been her choice. She testified that the two bedroom house was not big enough for her, Deionte, Atticus, and the six others Deionte had invited to live with them.

In terms of financial support, Shyanna testified that Deionte had two jobs during their relationship, where he was only employed 2 to 3 months making minimum wage. Deionte set aside $600 for a house deposit, but only about $500 of that was left after Deionte spent a portion of the money on alcohol. Other than the deposit, Deionte contributed approximately $100 per monthtoward rent costs of $650 per month plus utilities. Deionte would not contribute to the purchase of food, diapers, or clothing for Atticus.

On cross-examination, Shyanna explained that the only financial assistance she and Deionte received was from one of Deionte's friends, Bob Cocanougher. Cocanougher would pay most of their rent each month, besides the $100 Deionte contributed, if he had it. She further testified that in the total time she and Deionte were living together, the police were called roughly eight or nine times as a result of disputes between the two.

At one point Shyanna reached out to Heartland Family Services for assistance regarding their rehousing program, but Child Protective Services got involved and Atticus became a ward of the State. At that time, Shyanna ended her relationship with Deionte and moved out of the home they shared.

Shyanna testified that she previously had a protection order for her and Atticus against Deionte, but she dropped it because she felt bad that Deionte had nowhere to go and was sleeping outside. The order was in place for 1 month. Shyanna testified that despite Deionte shoving her into a wall when she was 6 months pregnant, she did not call the police because she was afraid. She "had the ideal picture of mom, dad, and child in one home." Shyanna testified that she never pursued charges against Deionte for the incidents of domestic violence because she likely would have been charged as well.

In regard to visitation, Shyanna testified that she set up her own visits, but Deionte would often attend because he lived in the same home as Shyanna, where the visits took place. On redirect, Shyanna testified that she told Deionte to set up his own visits "several times" but he would respond that he did not have the time or would rather just do them with her.

Tanya Baker, a Family Partner with Owens and Associates, testified that she conducts supervised visits with families and receives referrals through PromiseShip. She testified that her duties are to observe and...