State v. Jeremy H. (In re Interest of Joezia P.)

30 Neb.App. 281

968 N.W.2d 101

IN RE Interest of JOEZIA P., a child under 18 years of age.

State of Nebraska, appellee,

v.Jeremy H., appellant.

No. A-21-156.

Court of Appeals of Nebraska.

Filed October 19, 2021.

Angelica W. McClure, of Kotik & McClure Law, Lincoln, for appellant.

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

Pirtle, Chief Judge, and Moore and Welch, Judges.

Pirtle, Chief Judge.

INTRODUCTION

Jeremy H. appeals from an order of the separate juvenile court of Lancaster County terminating his parental rights to his minor child, Joezia P. For the reasons that follow, we affirm.

BACKGROUND

Jeremy is the father of Joezia (born 2017). Jacara P. is the mother of Joezia. However, Jacara is not part of the appeal before us and thus will be discussed only as necessary to address Jeremy's assigned errors.

In April 2017, Jeremy pled no contest to and was convicted of third degree domestic assault in relation to an incident of domestic violence committed against Jacara on or about January 9, while Jacara was pregnant with Joezia. In December, Jeremy pled no contest to and was convicted of third degree domestic assault in relation to an incident of domestic violence committed against Jacara on or about November 10, while Joezia was present in the home.

On March 29, 2019, the State filed a petition alleging that Joezia was a juvenile as defined by Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016). Count I of the petition alleged Joezia lacks proper parental care by reason of the faults or habits of his father, Jeremy, or that Joezia is in a situation dangerous to life or limb or injurious to his health or morals. Specifically, the petition alleged the following: (1) on or about November 10, 2017, Jeremy was involved in a domestic confrontation with Joezia's mother, Jacara, while Joezia was present; (2) Jeremy has a history of assaultive behavior, including assaulting Jacara while she was pregnant with Joezia; (3) Jeremy was incarcerated from November 12, 2017, until September 24, 2018, and Jacara reports that Jeremy continued to engage in assaultive behavior after his release; (4) the actions of Jeremy or said situation places Joezia at risk of harm; and (5) all the events took place in Lancaster County, Nebraska.

Jeremy was personally served with the petition and summons on June 13, 2019, while he was incarcerated at the Lancaster County jail. Jeremy appeared before the juvenile court and denied the allegations in the petition on June 25. On July 24, the State filed an amended petition containing substantially the same allegations as the March 29 petition. After a formal hearing, the court found the allegations in the amended petition true by a preponderance of the evidence. The court adjudicated Joezia as a juvenile under § 43-247(3)(a) on the grounds that he lacks proper parental care by reason of the fault or habits of his father, Jeremy, and he is in a situation dangerous to life or limb or injurious to his health or morals. Thereafter, on July 25, Jeremy pled no contest to two unrelated criminal charges and was sentenced to a total of 42 months of incarceration.

On September 6, 2019, the court placed Joezia in the temporary legal custody of the Nebraska Department of Health and Human Services (DHHS) and initially permitted Joezia to remain physically placed in the home of Jacara. The court ordered Jeremy to participate in supervised visitation with Joezia, to maintain a legal means of support for himself and Joezia, to maintain a safe and stable home free of domestic violence, to participate in random drug testing, and to complete a men's domestic violence class for batterers. The court ordered DHHS to provide any treatment or services recommended by Jeremy's evaluations. Joezia was removed from Jacara's home on September 25, 2019, and has been placed in foster care continuously since.

In December 2019, following a hearing for review of disposition on the amended petition, the court entered an order of review finding that Jeremy had made poor progress toward alleviating the causes of the court's adjudication and Joezia's out-of-home placement. Accordingly, the court ordered Joezia to remain in the temporary legal custody of DHHS and to remain physically placed in a kinship foster home. The court reiterated its prior orders directed at the parties and also ordered Jeremy to participate in individual counseling to address long-term issues with anger management, violence, and criminal thinking.

In February 2020, the court once again entered an order of review finding that Jeremy had made poor progress toward alleviating the causes of the court's adjudication and Joezia's out-of-home placement. The court ordered Joezia to remain in the temporary legal custody of DHHS and to remain physically placed in a kinship foster home. In addition to reiterating its previous orders, the court ordered Jeremy to participate in child parent psychotherapy (CPP) with Joezia.

In May 2020, the court entered an order of review again finding Jeremy had made poor progress toward alleviating the causes of the court's adjudication and Joezia's out-of-home placement. The court sustained a motion to eliminate the requirement of reasonable efforts to preserve and reunify the family on the grounds that Jeremy previously had his parental rights involuntarily terminated with respect to a sibling of Joezia. See Neb. Rev. Stat. § 43-283.01(4)(c) (Reissue 2016).

On June 23, 2020, the State filed a motion to terminate Jeremy's parental rights to Joezia on the grounds that Jeremy has substantially and continuously or repeatedly neglected and refused to give necessary parental care and protection and that termination of Jeremy's parental rights is in the best interests of Joezia. On June 24, the court entered yet another order of review finding Jeremy had made poor progress toward alleviating the causes of the court's adjudication and Joezia's out-of-home placement. The court also approved a permanency plan of adoption for Joezia.

On July 8, 2020, the State filed an amended motion to terminate Jeremy's parental rights to correct the spelling of Joezia's name in the petition. Jeremy filed a written denial of the allegations in the amended motion for termination of parental rights on July 14. The court scheduled a formal hearing on the amended motion for November 17.

On October 8, 2020, the State charged Jeremy with one count of escape when under arrest on a felony charge in violation of Neb. Rev. Stat. § 28-912(5)(a) (Reissue 2016). On October 13, the State filed an amended information charging Jeremy with one count of attempted escape. Jeremy pled no contest to the charge in the amended information and was sentenced to an additional 18 months of incarceration, extending his expected release date from March 2021 to December 2021.

On December 9, 2020, the court entered an order of review finding that Jeremy had made "no progress" toward alleviating the causes of the court's adjudication and Joezia's out-of-home placement.

HEARING ON NOVEMBER 17, 2020

Prior to the November 17, 2020, hearing, all the parties stipulated to the hearing's being conducted by videoconference in light of the COVID-19 pandemic. Jeremy was incarcerated at the Tecumseh State Correctional Institution in Tecumseh, Nebraska, and due to limitations at that facility, Jeremy attended the hearing telephonically rather than by videoconference. Jeremy objected to the hearing on the grounds that he could not see the witnesses or communicate with counsel using the private "chat" function. As Jeremy was no longer willing to stipulate to a trial by videoconference, the court continued the matter to the December trial term. In doing so, the court noted the matter had already been pending "for a significant amount of time." The court also referred to case law suggesting the formal hearing could proceed without Jeremy's presence upon proper procedural safeguards.

HEARING ON JEREMY'S MOTION TO CONTINUE

On December 3, 2020, the court entered an order for transport to allow Jeremy to be physically present at the trial scheduled for December 18. However, the court vacated the order for transport on December 11, because the Tecumseh State Correctional Institution advised the court that Jeremy was under quarantine and could not be transported. On December 14, Jeremy filed a motion to continue the trial on the grounds that his quarantine would prevent him from attending the trial by any means and prevent him from communicating with counsel.

After a hearing on the matter, the court overruled Jeremy's motion to continue, noting that the trial had already been continued once. The court directed the parties to In re Interest of L.V. , 240 Neb. 404, 482 N.W.2d 250 (1992), "which indicates in these motions to terminate parental rights, the presence of the parent is not necessary so long as their procedural due process rights can be afforded." The court explained the State would present its case as scheduled, after which the matter would be continued to provide an opportunity for Jeremy to review the transcript and consult with counsel prior to presenting his case. The court intimated this procedure would adequately protect Jeremy's due process rights and eliminate the need for transportation during the COVID-19 pandemic.

FORMAL HEARING DAY ONE: DECEMBER 18, 2020

The juvenile court convened for a formal hearing on the amended motion for termination of parental rights on December 18, 2020. Jeremy was represented by counsel, but he was not present at the hearing. The State called four witnesses, including the owner of Associates in Counseling and Treatment (ACT), Jeremy's case manager from the period of time when he was incarcerated at the Community Corrections Center-Lincoln (CCCL), the DHHS case manager assigned to the case during the period of time after March 16, and the therapist who provided CPP services to Joezia from October 2019 to October 2020.

Joezia's therapist testified that...