State v. Jesse R. (In re Interest of Havlee S.)

IN RE INTEREST OF HAVLEE S., A CHILD UNDER 18 YEARS OF AGE.

STATE OF NEBRASKA, APPELLEE, v. JESSE R., APPELLANT.

No. A-18-1122.

NEBRASKA COURT OF APPEALS

October 8, 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: KRIS D. MICKEY, Judge. Reversed and remanded for further proceedings.

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

No appearance for appellee.

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

MOORE, Chief Judge.

I. INTRODUCTION

Jesse R. appeals the order of the county court for Scotts Bluff County, sitting as a juvenile court, terminating his parental rights to Havlee S. For the reasons set forth below, we reverse the decision of the juvenile court and remand the cause for further proceedings.

II. BACKGROUND

Havlee, born in September 2014, is the biological daughter of Shelby D. and Jesse. Jesse was unaware that Havlee was his daughter until November 2016, and as a result, Havlee had almost no contact with Jesse until that time. Havlee lived with Shelby and her husband, Thomas D. Shelby, and Thomas had another daughter, Braylei D., who is not involved in this appeal. We discuss Braylei below only as necessary.

The Department of Health and Human Services (the Department) received an intake alleging that Havlee and Braylei were being neglected by their caregivers, Shelby and Thomas. The reporter stated that Shelby and Thomas used methamphetamine and Adderall and that they were asking around town for pain pills. The reporter also stated that law enforcement had been called to Shelby and Thomas' apartment due to fighting and that the children often sat in soiled diapers, which gave them severe rashes.

On April 26, 2017, Anna Brisco and Lauren Trenkle, child and family service specialists with the Department, as well as Rob Kiesel, an officer with the Scotts Bluff Police Department, investigated the intake at Shelby and Thomas' apartment. They found the children physically well. Shelby and Thomas were given drug tests. Both tested positive for amphetamine use, and Thomas tested positive for methamphetamine use. Shelby denied using methamphetamine. She insisted that her regular dose of prescribed Adderall caused the positive drug test result. Thomas explained that he had used methamphetamine one time several days before the investigation and that Shelby did not know about it. Shelby agreed to work on a voluntary case and to follow a safety plan that she and Brisco developed together.

On May 1, 2017, the State filed a petition alleging Havlee was a child within the meaning of Neb. Rev. Stat. § 43-247(3)(a)(Reissue 2016) as to both Shelby and Jesse. The State also filed Brisco's affidavit in support of custody. In her affidavit, Brisco stated that she believed placing Havlee and Braylei in temporary protective custody was necessary because she doubted Shelby's ability to honestly carry out her safety plan. The Department's safety monitor had expressed concerns that Shelby was "'not as clean as she claim[ed].'" Further, Shelby had friends and family members who were known users of methamphetamine and who participated in other criminal behavior. Brisco stated that taken together with Thomas' drug use, Shelby's situation presented ongoing concerns that were a serious threat to Havlee and Braylei's health, safety, and welfare. Although our record does not contain an order to that effect, the court apparently placed Havlee and Braylei in temporary protective custody with Braylei's paternal aunt.

The State later filed an amended petition alleging that Havlee lacked proper parental care because (a) Shelby was using controlled substances, (b) Havlee lacked safe and stable housing, (c) Shelby neglected Havlee's developmental and nutritional needs, and (d) Jesse abandoned Havlee. Shelby pled no contest to the allegations in the State's adjudication petition. Jesse, however, contested the adjudication.

1. ADJUDICATION HEARING

The court held an adjudication hearing on July 11, 2017.

(a) Shelby's Testimony

Shelby testified that although she told Jesse that Havlee was his daughter just days after she was born, Jesse denied paternity. Jesse did not acknowledge that Havlee was his daughter until November 2016 when a DNA test confirmed that he was Havlee's biological father. He had only had contact with Havlee twice: once in November or December 2016 and a second time in February or March 2017. He had not bought clothes, attended doctor's appointments, provided insurance, asked for parenting time, or asked for Havlee to live with him. Shelby admitted that shedisliked Jesse. She was aware that Jesse's home had burned down, but she denied causing the fire that destroyed it.

(b) Brisco's Testimony

Brisco testified that on April 26, 2017, she found Shelby and Thomas in their apartment with Havlee and Braylei. Two of Shelby and Thomas' friends, both of whom had prior involvement with the Department regarding their children, were also present. Havlee was removed from Shelby and Thomas' care that same day after Thomas tested positive for methamphetamine. After some investigation, Brisco discovered that Jesse was Havlee's father. Jesse and his mother came to Brisco's office at her request soon after Havlee was removed from Shelby and Thomas' care. Jesse told Brisco that Shelby's interference made it difficult for him to be part of Havlee's life before the State intervened. According to Jesse, Shelby told him that he was not Havlee's father, and she denied Jesse parenting time when he requested it. According to Brisco, Jesse advised that he did not find out that Havlee was his daughter until she was "quite a bit older." Brisco admitted that she did not visit Jesse's home to determine whether placing Havlee with him would be appropriate. Jesse told Brisco that someone had set his previous residence on fire.

(c) Jesse's Testimony

Jesse testified that Shelby told him that she was pregnant, but that another man was the child's father. Jesse saw Havlee in the hospital after her birth. Later, a paternity test confirmed that Jesse was Havlee's father. After the paternity test, Jesse began paying child support for Havlee. Jesse had been allowed contact with Havlee about four times after her birth. He believed that he had a connection with Havlee. Shelby had recently denied Jesse contact with Havlee during a planned Thanksgiving Day visit. Jesse's residence burned down in December 2016. Because Jesse saw Shelby at his residence shortly after he discovered the fire, Jesse believed that Shelby caused the fire. As a result Jesse did not want to have any contact with Shelby. Jesse had space for Havlee in his residence and he believed he could provide safe and stable housing for her.

(d) Adjudication Order

The juvenile court found that the State had proven by a preponderance of the evidence that Jesse had failed to provide Havlee with safe and stable housing and that he had abandoned her. The court noted that despite Jesse's willingness and ability to provide safe and stable housing at the time of the hearing, Jesse had failed to provide safe and stable housing to Havlee before the State's petition was filed. And because Jesse had little contact with Havlee before the petition was filed and provided her with no clothes or other gifts, the court found he had abandoned her.

2. DISPOSITION HEARING

A disposition hearing was held on July 18, 2017. The court received a case plan and court report, dated July 14, 2017. The Department's goals and strategies for Jessie included providing safe and stable housing; allowing the Department to do a walk-through of his home to check for the safety of the home environment for Havlee; maintaining stable housing with appropriate supplies for Havlee and no inappropriate and unsafe individuals in the home; participating in a psychological evaluation; participating in a parent-child interaction evaluation; following therecommendations set forth in the results of all evaluations; working on building a relationship with Havlee; participating in supervised parenting time visits with Havlee; and participating in Child/Parent Pscychotherapy to work on gaining an understanding to Havlee's age and specific needs and nurture an appropriate relationship. The court also received a report from Havlee's guardian ad litem, which explained that Jesse had been cooperative with the Department and agreeable to working with a therapist to build his relationship with Havlee.

The juvenile court found that the Department had made reasonable efforts to return Havlee to her home, but that the circumstances leading to her removal had not changed. Thus, the court ordered that Havlee was to remain in the Department's custody. Finding the provisions of the Department's case plan to be reasonably material to eliminating the conditions for which the adjudication was obtained, the court adopted it.

3. OCTOBER 3, 2017, REVIEW HEARING

The court held a review hearing on October 3, 2017. The court received the guardian ad litem's report, which provided that Jesse and Havlee were attending therapy together and that Jesse interacted with Havlee as much as she would let him. The court also received the Department's case plan and court report, dated September 28, which contained the same goals and strategies for Jesse. The report noted that although Jesse had not yet engaged the services beyond supervised parenting time, he was very open to doing so. Jesse attended 15 of the 21 supervised parenting time visits he was offered. The case plan listed a permanency objective of reunification for Havlee. Shelby also testified at the hearing that she did not understand why Jesse was receiving supervised parenting time. She felt that introducing Havlee to Jesse would only confuse Havlee as she has known Thomas as her father up until...