State v. Jerrita K. (In re Interest of Ariana K.)

IN RE INTEREST OF ARIANA K., A CHILD UNDER 18 YEARS OF AGE.

STATE OF NEBRASKA, APPELLEE, v. JERRITA K., APPELLANT.

No. A-19-969.

NEBRASKA COURT OF APPEALS

April 21, 2020

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 Lincoln County: KENT D. TURNBULL, Judge. Affirmed.

Patrick M. Heng, of Waite, McWha & Heng, for appellant.

Rebecca Harling, Lincoln County Attorney, for appellee.

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

MOORE, Chief Judge.

INTRODUCTION

Jerrita K. appeals from the order of the Lincoln County Court, sitting in its capacity as a juvenile court, terminating her parental rights to her child, Ariana K. The court found that termination of Jerrita's parental rights was proper under Neb. Rev. Stat. § 43-292(1), (2), (4), (6), and (7) (Reissue 2016) and that termination of her parental rights was in Ariana's best interests. The court also found, as required by the Nebraska Indian Child Welfare Act (NICWA), Neb. Rev. Stat. §§ 43-1501 to 43-1517 (Reissue 2016), that active efforts had been made to prevent the breakup of the Indian family, which proved unsuccessful, and that the continued custody of Ariana by Jerrita was likely to result in serious emotional or physical damage to Ariana. Following our de novo review of the record, we affirm.

BACKGROUND

Jerrita is the biological mother of Ariana, who was born in July 2016. Because Jerrita is a member of the Rosebud Sioux Tribe (the Tribe) and Ariana is eligible for membership, NICWA applies to this case. Jerrita has two older children who were previously removed from her care and eventually placed in a guardianship with her mother (the grandmother). Ariana was removed from Jerrita's care and placed in the care and custody of the Nebraska Department of Health and Human Services (the Department) on October 24, 2017, after Jerrita was arrested and jailed for felony drug charges. At that time, the name of Ariana's father was unknown. The identity of Ariana's biological father has remained unknown throughout this case, although Jerrita provided the names of various putative fathers. Paternity testing was ordered on a particular individual, and Ariana was initially placed with his family. After genetic testing proved him not to be her father, Ariana was placed with a nonrelative family where she has remained. The juvenile court ultimately "default[ed]" for the father of record to be Ariana's "presumptive father," the man to whom Jerrita was married at the time of Ariana's birth, and we have referred to him as "the presumptive father" or "the father" in this opinion. He has never had any contact with Ariana. This individual's parental rights to Ariana were also terminated during the course of the present juvenile court proceedings. We have referred to him and to the earlier proceedings involving Jerrita's older children only as necessary to the resolution of Jerrita's appeal.

On October 25, 2017, the State filed a petition in the juvenile court, alleging that Ariana was a child within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016) in that on or about October 24, she was in a situation dangerous to life or limb or injurious to her health or morals. The State set forth details of Jerrita's arrest and incarceration for aiding and abetting possession of methamphetamine with intent to distribute and details of the active efforts that had been provided to Jerrita at the time her older children were made State wards due to her drug use. On that same date, the court entered an order of detention, placing Ariana in the Department's temporary custody. The court found that active efforts were made prior to Ariana's out-of-home placement to prevent or eliminate the need for her removal. The State subsequently filed an amended petition, naming an individual other than Jerrita's spouse at the time of Ariana's birth as Ariana's father (the individual who later proved not to be Ariana's biological father).

On November 7, 2017, at a first appearance hearing, Jerrita entered an admission to the allegations of the petition, and the juvenile court adjudicated Ariana as a child within the meaning of § 43-247(3)(a). The parties agreed that Ariana's first placement met NICWA requirements, and the court ordered her continued placement there, also finding that active efforts had been made to return Ariana to her home. The court also stated that supervised visitation could occur with Jerrita, who was in jail at the time.

On December 7, 2017, the Tribe filed a notice of intervention, and the juvenile court entered an order acknowledging the Tribe's right to intervene pursuant to NICWA.

A dispositional hearing was held on December 19, 2017, and the juvenile court adopted the Department's case plan and court report. The court continued Ariana in the Department's custody, finding that active efforts had been made to return her to her parental home. Jerrita, whoappeared at the hearing, was ordered to comply with the plan recommendations including obtaining a substance abuse evaluation, mental health evaluation, drug testing and visitation.

Jerrita appeared for a status hearing on February 6, 2018, at which time she was having supervised visitation with Ariana and had appointments set "with Region II for evaluations." She was testing positive for methamphetamine and admitted her use. The court adopted the recommendations in the case plan and court report, and it ordered Jerrita to participate in Narcotics Anonymous and/or Alcoholics Anonymous, obtain a chemical dependency evaluation, and remain alcohol and drug free, again finding that active efforts had been made to return Ariana to the parental home. Jerrita did not appear at a status hearing on March 27. We note that Jerrita's attorney appeared at this hearing and at other hearings referenced below at which Jerrita did not appear. Jerrita had made contact with the Department shortly after the previous hearing in February to indicate she was using methamphetamine "heavily" and did not think it was best for Ariana to be around her. The Department's subsequent attempts to locate Jerrita prior to the March hearing were unsuccessful. Likewise, Jerrita did not appear at a status hearing on May 22. At that time, the Department was searching for a new placement for Ariana since after paternity testing results were received, her initial placement was no longer willing/able to provide care. After a NICWA placement hearing in June, at which Jerrita did not appear, the juvenile court found that the new placement obtained by the Department satisfied NICWA requirements. The court found that active efforts had been made to return Ariana to her home, but it noted that the whereabouts of the parents were unknown at that time.

After the contact from Jerrita in February 2018, the Department did not have further communication with her until August when she was incarcerated in the county jail. A caseworker met with her at that time and asked her to make contact upon her release. The Department was given a new phone number to contact her but attempts to do so proved unsuccessful. Jerrita was arrested again and jailed in October, and the Department met with her to discuss permanency options. The Department also met with her in jail in December.

Permanency and exception to termination of parental rights hearings scheduled for October 2018 were continued multiple times for various reasons. At a review hearing on March 19, 2019, Jerrita relinquished her parental rights and the juvenile court changed the permanency goal of the case from reunification to adoption. Jerrita's relinquishment was later withdrawn due to inadequate paperwork required by NICWA.

On April 24, 2019, the State filed a motion to terminate the parental rights of Jerrita and "all possible fathers." With respect to Jerrita, the State alleged statutory grounds for termination pursuant to § 43-292(1), (2), (4), (6), and (7); that termination of Jerrita's parental rights was in Ariana's best interests; that the State had made active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, which had proved unsuccessful; and that continued custody by Jerrita was likely to result in serious emotional harm or physical damage to Ariana.

A termination hearing was held before the juvenile court on July 12, 2019. Jerrita appeared with her attorney; the father's attorney was present, but the father did not appear. The State presented testimony from two Department caseworkers, the foster mother, and an Indian ChildWelfare Act (ICWA) expert, and the court received various documentary exhibits offered by the State, including copies of the files of Jerrita's criminal convictions.

There was evidence presented about Jerrita's criminal history. At the time Ariana was removed from Jerrita's custody in October 2017, Jerrita had a prior felony conviction for third degree assault on a peace officer in 2009 and felony convictions for possession of methamphetamine in 2015 and 2016. On October 24, 2017, she was on postrelease supervision for the 2016 felony drug conviction when police responded to her residence to assist a probation officer with a search of her vehicle, which search located $1,360 cash, drug paraphernalia, and methamphetamine. Ariana was taken into protective custody, and Jerrita was charged with felony aiding and abetting the distribution of methamphetamine and felony child abuse. She later pled to felony child abuse and was sentenced to 300 days in jail with 219 days' credit and 9 months' postrelease supervision. Her postrelease supervision in the 2016 drug case was revoked, and she was sentenced to 300 days in jail with 219 days' credit, with the jail time in both cases to run concurrently. Her probation officer requested early discharge,...