State v. Jonathan R. (In re Interest of Chloe R.)

IN RE INTEREST OF CHLOE R. ET AL., CHILDREN UNDER 18 YEARS OF AGE.

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

No. A-19-607.

NEBRASKA COURT OF APPEALS

March 10, 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 Separate Juvenile Court of Douglas County: MATTHEW R. KAHLER, Judge. Affirmed.

Kevin Ryan, of Ryan Law Offices, for appellant.

Laura Lemoine, Deputy Douglas County Attorney, and Katherine Corwin, Senior Certified Law Clerk, for appellee State of Nebraska.

Anne E. Troia, P.C., L.L.O., guardian ad litem.

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

ARTERBURN, Judge.

INTRODUCTION

Jonathan R. appeals from the order of the separate juvenile court of Douglas County terminating his parental rights with respect to Kaitlyn R., Alannah R., and Chloe R. For the reasons that follow, we affirm the juvenile court's order.

BACKGROUND

In the juvenile court proceedings below, this matter involved seven children, but this appeal only concerns Jonathan and the three children he fathered: Kaitlyn, born in 2008, Alannah, born in 2013, and Chloe, born in 2017. For a period of time following Chloe's birth, her paternity was unknown although Jonathan held himself out as her father. Jonathan's paternity of Chloe was later established by DNA testing in November 2018.

The children were adjudicated as juveniles within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016) on October 31, 2017, with respect to Jonathan. Jonathan entered a plea admitting to the allegations that he had failed to provide proper parental care, support, supervision, and/or protection of Kaitlyn, Alannah, and Chloe and that his failure had put the children at risk for harm. Jonathan was ordered to complete a co-occurring evaluation, cooperate with the services of a family support worker, abstain from the use or possession of illegal drugs or alcohol, and submit to random drug and alcohol testing. At the same time, the court suspended Jonathan's visitations with Kaitlyn and Alannah but left in place his visitations with Chloe. On December 18, 2017, following a disposition and permanency planning hearing, the juvenile court reiterated its past orders with respect to Jonathan and additionally ordered him to attend individual therapy, maintain safe and suitable housing, maintain a legal source of income, and participate in supervised visitation.

The operative motion for the termination of Jonathan's parental rights, the third such motion, was filed on January 30, 2019. The State alleged that termination was warranted under Neb. Rev. Stat. § 43-292(2), (6), and (7) (Reissue 2016) and that termination was in the best interests of the children. With respect to § 43-292(6), the State specifically alleged that reasonable efforts to preserve and reunify the family had failed insofar as Jonathan did not put himself in a position to parent the children through his failures to participate in visitation, obtain safe and stable housing, maintain a legal source of income, consistently participate in drug testing, and communicate with the caseworker. This matter came on for trial on May 1, 3, 9, and 23, 2019.

Kaitlyn and Alannah were removed in August 2017 and began living in the foster care of their maternal grandparents, where they remained at the time of trial. Their grandfather, Ervin Portis, testified that Kaitlyn and Alannah spent "a lot of time" with his wife and him ever since they were born, estimating that they visited three to four times per week. Portis said that Kaitlyn was angry and argumentative for about the first year after she and Alannah moved into his home. According to Portis, Kaitlyn spoke about Jonathan with anger and would say things like, "My father abandoned me. I hate my father. I hate what he did to us with [his girlfriend]." Portis said that Kaitlyn told him about times when Jonathan and his girlfriend would disappear for up to 5 days at a time, leaving her with his girlfriend's sons and putting her in charge of baby Chloe. Kaitlyn said that she did not feel safe in Jonathan's home and did not want to return to his care.

Portis testified that Alannah similarly expressed anger toward Jonathan and felt abandoned by him. Alannah, who was only 4 years old when she moved into Portis' home in August 2017, once acted out and said to Portis, "I'm going to cut you." When she calmed down later, Alannah said she learned that phrase from Jonathan's girlfriend. Portis testified that when he picked up Alannah in August 2017, she was unclean and clearly had not been bathed for days. He also said that Alannah told him she had not eaten anything except for candy for days before he arrived.

During the course of their living with him, Portis said Kaitlyn's and Alannah's behaviors improved. He said that at the time of trial, Kaitlyn was able to focus at school, did not have angry outbursts, and was more even-keeled. He said that Kaitlyn had told him that she felt safe and secure in his home. Alannah also progressed and was "bubbly," doing well in preschool, and engaged with a group of friends at the time of trial according to Portis. Portis attributed the girls' behavioral improvement to the structure and accountability that he and his wife had introduced into their lives.

When the court ordered that Jonathan participate in family therapy with Kaitlyn and Alannah with a neutral third-party therapist in December 2018, Portis testified that Sabrina Knerr, the family's case manager, told him to ask Kaitlyn and Alannah whether they wanted to attend. He said that Knerr told him to take Kaitlyn and Alannah if they wanted to have a visit with their father and to cancel the family therapy if the girls did not want to see Jonathan. Portis testified that Knerr specifically told him that it was the girls' choice whether to have visitation with their father. Portis said that he asked Kaitlyn and Alannah about three or four visitations and that they always told him they did not want to attend.

Chloe was placed in the foster care of Kandi Hendershot in August 2017 when she was 5½ months old. Hendershot testified that Jonathan had no visits with Chloe between the fall of 2017 and November 2018. She said that Jonathan held himself out as Chloe's father from the case's beginning, but she acknowledged that some delay in visitations was caused by his paternity not being established immediately. Regular supervised visitations with Chloe did occur beginning in November 2018. Hendershot testified that she had no concerns regarding Jonathan's visitations with Chloe.

Renee Steinhoff supervised Jonathan's visitations with Chloe from August through November 2017. Steinhoff testified that Jonathan's attendance was inconsistent. "There were times we couldn't get ahold of him." Some visitations were cancelled even after he was placed on a call-to-confirm basis because he failed to call at the beginning of the week to confirm his attendance. Nevertheless, there were no concerns with the visitations that Jonathan did attend. He was discharged on November 29, 2017, after the caseworker put his visitations on hold.

Toward the end of August 2017, a visitation was scheduled at Jonathan's home between the children and him. The family permanency specialist took the children to his home, but after waiting for about 35 minutes without Jonathan showing up, they left. The family permanency specialist testified that the children were crying and "highly upset." When she was driving the children back to their grandparents' home, she had to pull over on the side of the road and have Alannah call her grandmother in order to calm down because she was crying and blaming herself for Jonathan's absence.

Visitations with Kaitlyn and Alannah were suspended on October 30, 2017, according to Knerr. Even though Jonathan could continue having visitations with Chloe thereafter, Knerr testified that she did not believe he had any for a while.

Andrea Joyce, a licensed independent mental health practitioner, counseled Kaitlyn from the fall of 2017 through the time of trial. Joyce initially saw Kaitlyn for one or two sessions each week. However, as Kaitlyn progressed, her counseling sessions were reduced to weekly, then twice monthly, and then monthly. Joyce said that Kaitlyn again saw her once or twice per week when her symptoms temporarily worsened. Joyce diagnosed Kaitlyn with attention-deficit/hyperactivedisorder based, in part, on reports of her throwing tantrums, becoming physically aggressive toward her grandparents, and refusing to go to school or complete homework. Additionally, Kaitlyn was diagnosed with oppositional defiant disorder based on the results of a psychological evaluation.

During the course of counseling with Joyce, Kaitlyn described experiences with Jonathan and how they made her feel. Joyce said that Kaitlyn described Jonathan leaving Alannah, Chloe, and her with his girlfriend's sons for days at a time. Kaitlyn told Joyce about one occasion when Jonathan left them alone for five days. She described other times when Jonathan would drop them off with strangers without them knowing how long he would be gone. Kaitlyn told Joyce that she would wake up in the night to feed and change Chloe because Jonathan and his girlfriend did not do it. She also told Joyce about parties that Jonathan had, during which Kaitlyn observed people drinking alcohol and smoking from pipes. Kaitlyn also told Joyce about her mother and Jonathan's girlfriend physically fighting in front of her.

Joyce said that Kaitlyn made progress during counseling after taking approximately nine months to open up to her. At the time of trial, Kaitlyn was speaking freely about past trauma and was able to write letters to Jonathan about her traumatic experiences. Joyce attributed Kaitlyn's progress to counseling and the stability, consistency, and...