State v. Jacara P. (In re Interest of Joesive P.)

IN RE INTEREST OF JOEZIA P. AND JOESIVE P., CHILDREN UNDER 18 YEARS OF AGE.

STATE OF NEBRASKA, APPELLEE, v. JACARA P., APPELLANT.

No. A-20-468.

NEBRASKA COURT OF APPEALS

January 19, 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 Lancaster County: ROGER J. HEIDEMAN, Judge. Affirmed.

Joy Shiffermiller, of Shiffermiller Law Office, P.C., L.L.O., for appellant.

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

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

PIRTLE, Chief Judge.

INTRODUCTION

Jacara P. appeals from the order of the Separate Juvenile Court of Lancaster County which adjudicated her son, Joesive P., to be a child within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016). For the reasons that follow, we affirm the juvenile court's order.

BACKGROUND

Jacara is the mother of Joezia P., born in August 2017, and Joesive, born in April 2020. After filing her appeal in this case, Jacara voluntarily relinquished her parental rights to Joezia, and we discuss him only to provide context. Neither Joezia's nor Joesive's fathers are involved in this appeal.

On April 3, 2020, the State filed a petition alleging that Joesive was a juvenile within the meaning of § 43-247(3)(a). The petition alleged that Jacara's parental rights to her older children had been involuntarily terminated in 2014; that Joesive's older half-brother, Joezia, had been adjudicated as a juvenile within the meaning of § 43-247(3)(a) and had not been returned to Jacara's care; that Jacara had a long history of substance abuse and was in need of residential treatment prior to being able to safely take care of an infant; and that Jacara's actions put Joesive at a risk of harm.

A hearing on the State's petition was held on June 16 and 23, 2020.

The State first presented the testimony of Julie Ernst, a child and family services specialist with the Nebraska Department of Health and Human Services (the Department). Ernst testified that she had been assigned to Jacara's case in March 2019. At that time, Joesive had not yet been born, but the State had filed a petition alleging that Joezia was a child within the meaning of § 43-247(3)(a). Ernst attempted to help Jacara complete a co-occurring substance abuse and mental health evaluation, which she testified Jacara did not complete. Ernst testified that the Department had concerns about Jacara's substance abuse, her ability to maintain a safe and stable home, to maintain steady income, and about her willingness to complete and follow up with the substance abuse evaluation.

In September 2019, Jacara received a sentence of 365 days' jail time following a conviction for attempted possession of a controlled substance. Ernst testified that it was only after she was incarcerated that Jacara completed the co-occurring evaluation. The evaluation recommended that Jacara participate in long-term residential treatment to address her substance abuse issues. Ernst testified that during her incarceration, Jacara participated in individual therapy and medication management. Jacara was unable to complete other tasks ordered by the Department, such as participating in long-term residential treatment, attending domestic violence programming, completing a Child Dyadic Assessment, and maintaining a legal means of income and stable housing. Ernst testified that in March 2020, she was removed from Jacara's case. At the time Ernst was taken off of the case, Jacara had not yet completed the rehabilitative plan created by the Department.

On cross-examination, Ernst agreed that Jacara had completed programming during her incarceration, including a job readiness life skills class and a trauma healing class. Ernst admitted that at the time she was first assigned to the case, Joezia was still living with Jacara. She testified that Joezia was only placed in the Department's custody in September 2019, due to Jacara's incarceration. Ernst admitted that during the months Joezia was living with Jacara, she did not see evidence that Jacara was abusing substances. However, Ernst stated that she later learned Jacara had not been truthful with her and that Jacara had, in fact, used methamphetamine while Joezia was in her care and while she was pregnant with Joesive.

Karissa Dunkin, a child a family services specialist with the Department, testified. Dunkin was assigned as Jacara's caseworker after Ernst left the case. She testified that when she first met Jacara, she was still incarcerated, and that Joesive had not yet been born. Dunkin testified that Joesive was born in April 2020, 3 days after Jacara was released from jail. At the time of the hearing, the Department had not set up services for Jacara and Joesive, but Dunkin testified that she recommended Jacara comply with regular drug testing. Dunkin testified that to her knowledge, Jacara had not completed any drug testing since her release from jail. She testified that she did nothave any reports proving or disproving that Jacara had used controlled substances since her jail intake in September 2019. On cross-examination, Dunkin admitted that Joesive had tested negative for controlled substances at birth.

Nicole Lemke, a child and family services specialist with the Department, testified at the hearing. Lemke testified that she was a supervisor with the Lancaster County Family Treatment Drug Court Program, which took on cases where substance abuse was the sole or primary reason for adjudication. Lemke testified that although this case began in 2017, Jacara did not cooperate with the Department until she was incarcerated in 2019.

Lemke testified that even after a parent successfully completes a substance abuse treatment program, there is a concern that the parent might relapse. She testified that if a parent abuses substances, there are risks to any children who live in the home. She testified that there were risks because people who abuse substances often associate with other drug users, which could lead to a high volume of traffic in and out of the home. She testified there was also a risk that controlled substances might be present in the home. Lemke testified that a parent who abuses substances may be erratic and short tempered, may sleep for long periods of time, and may not be able to tend to the needs of a child. She further testified that homelessness is often a factor in cases where a parent abuses substances.

On cross-examination, Lemke admitted that both Joesive and Jacara had tested negative for controlled substances at the time of Joesive's birth. She agreed that after her release from jail, Jacara had completed short-term residential treatment for substance abuse, and that at the time of the hearing, Jacara was enrolled in long-term residential treatment. Lemke testified that the treatment facility permitted minor children to live with their mothers on a case-by-case basis.

The State next called Sarah Worley, a licensed drug and alcohol counselor, to testify. Worley completed a mental health and substance abuse evaluation of Jacara in October 2019. Worley testified that Jacara last used methamphetamine the day before she was incarcerated. At the time of the evaluation, Jacara was 16 weeks pregnant with Joesive. Jacara told Worley that she had been unaware she was pregnant until she arrived at the jail. Ultimately, Worley recommended that Jacara complete long-term residential treatment. Worley's recommendation was based on the fact that Jacara had unsuccessfully attempted short-term residential treatment in 2017 and because Jacara had continued to use methamphetamine up until the date of her incarceration. Worley testified that even if Jacara could successfully complete long-term residential treatment, she would still recommend that the Department monitor Jacara via drug testing in order to ensure sobriety. Worley testified that the risks associated with parenting a child while using methamphetamine included erratic and impulsive behaviors which could place a child in danger.

After the conclusion of Worley's testimony, the State rested its presentation of evidence.

Jacara testified that her parental rights to her older children had been terminated in 2014, at which time she had been in prison. Jacara testified that she had come to the Department's attention again in 2017 because Joezia had tested positive for controlled substances at birth. Jacara denied that she had ever used methamphetamine around Joezia. She stated that when she used drugs, she had left Joezia at home with her mother. However, she admitted that she had lied to her caseworkers, including Ernst, about her drug abuse.

Jacara testified that she learned she was pregnant with Joesive when she completed intake at the jail in September 2019. Jacara testified that at the time of the hearing, she was living at along-term residential treatment facility with family support, and that the program would potentially allow Joesive to be placed with her while she completed treatment.

Jacara next called Coral Frazell to testify. Frazell testified that she was the clinical director at Jacara's treatment program. She testified that the program lasted 6 months and allowed mothers and children to live together during treatment. Frazell testified that staff were present at the facility 24 hours a day and that the residents were drug tested at least weekly. She testified that because Jacara had been admitted to the program only a week before the hearing, it was too early to assess whether Jacara had made any progress.

On cross-examination, Frazell agreed that it is important to monitor parents who are in substance abuse treatment and for a period of time after their release from treatment. She testified that when a child's parent abuses substances such as methamphetamine, there is a...