State v. Juana L. (In re Interest of Mateo L.)

309 Neb. 565

961 N.W.2d 516

IN RE Interest of MATEO L. et al., children under 18 years of age.

State of Nebraska, appellant,

v.Juana L., appellee and cross-appellee,andLucinda K. Bauer, guardian ad litem, for Mateo L. et al., appellee and cross-appellant.

No. S-20-626.

Supreme Court of Nebraska.

Filed June 25, 2021

Gail Collins and Nathan Eckstrom, Deputy Madison County Attorneys, for appellant.

Bradley C. Easland, of Egley, Fullner, Montag, Morland & Easland, P.C., Norfolk, for appellee Juana L.

Lucinda K. Bauer, of Law Offices of Lucinda K. Bauer, guardian ad litem.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Per Curiam.

This appeal concerns the State's petition to terminate a mother's parental rights based on one proven instance of neglect, her actions in escaping an abusive boyfriend and obtaining work to support her children, and her children's out-of-home placement after her arrest. The juvenile court denied termination, finding that the State had failed to clearly and convincingly show that a statutory basis for termination existed or that termination was in the children's best interests.

We agree that the State has fallen short of carrying its heavy burden for termination. Accordingly, we affirm.

FACTS

ARRIVAL IN UNITED STATES

Juana L. was 16 years old when she came to this country from Guatemala with her two children, Mateo L. and Pedro L. She had grown up speaking K'iche’, a Mayan language common in Guatemala's central highlands, and knew almost no Spanish or English. She had little money. She eventually settled with her children in Norfolk, Nebraska, where she met and began dating Carlos P. She and the children moved in with Carlos. About a year later, when Juana was 17 years old, she gave birth to her third child, Bryan L.

Around the time of Bryan's birth, various nongovernmental service providers spent time with the family, providing aid. They transported Juana as needed, interpreted at her prenatal appointments, provided supplies for the new baby, and even called an ambulance to Juana's house when she went into premature labor. From their experience working with Juana during this period, the service providers stated that while she appeared to lack resources and to be overworked babysitting other children in addition to her own, she was adequately caring for her children.

PROVEN INSTANCE OF NEGLECT

The Nebraska Department of Health and Human Services (DHHS) became involved, however, when Bryan was approximately 1 month old. Juana and Carlos were taking Bryan to a doctor's appointment when a service provider who had accompanied them determined that Mateo and Pedro, who were respectively 4 and 2 years old, had been left at home alone. The service provider called police, who found the boys unharmed at the house. A man who lived in the basement of the house was sleeping downstairs. But because the children were unsupervised, Juana was cited with neglect.

Since Juana, then 17 years old, was still a minor, the charge was filed as a juvenile court matter under Neb. Rev. Stat. § 43-247(1) (Reissue 2016). According to the charging petition, "officers responded to the home of the juveniles as the mother had left the two oldest children home alone while she went to a medical appointment with the youngest juvenile." While the petition further averred that "[t]his was not the first time the mother [had] left her children home alone while she went to appointments," the State offered no evidence at the hearing of any other such instances.

Juana admitted to the charge, stating, through an interpreter:

Well, what happened was in that time it was the only time that I have left them alone. See, the thing what happened that I had to go, and usually [Carlos] stays with them, but this — this time I had to take [Carlos] with me, but that was the only time that I have been done this.

Again, when pressed as to whether she admitted to the charge of neglect, Juana confessed through an interpreter, "Yes. I admit that, that I left them alone, but only once."

Accepting that admission, the county court for Madison County, sitting as a juvenile court, dismissed the § 43-247(1) charge against Juana and adjudicated her children as neglected under § 43-247(3)(a). As a factual basis, the juvenile court found that "at least on ... August 24th, 2017, [the children] were in a situation dangerous to their health or morals." While physical custody over the children remained with Juana, the juvenile court transferred legal custody over the children to DHHS. A guardian ad litem was also appointed to represent the children.

At a hearing a short time later, the parties agreed that Juana appeared to be making progress, but there were some concerns. For instance, a few social workers stated that Juana did not seem properly "attached" to the children. There were also reports of medical issues, including bedbugs, scabies, cavities in Mateo's teeth, and Bryan's "flat head," which doctors believed was due to his lack of "tummy time." Several social workers expressed concern about Carlos’ relationship with the family. Carlos tended to dominate conversations with Juana and would follow her throughout the house to listen and interject when social workers attempted to speak with her in private. At least one social worker expressed concern that Juana might be a human trafficking victim.

Still, the social workers generally concurred in reporting that their services were helping and that Juana's children appeared happy and well cared for. Based on these reports, the juvenile court maintained the above arrangement of physical custody with Juana and legal custody with DHHS.

RELOCATION TO MINNESOTA

Approximately 3 months after the adjudication and transfer of legal custody over the children, DHHS discovered that Juana and her children had left the Norfolk area. Although she told social workers over the phone that they were merely traveling the short distance to Grand Island, Nebraska, DHHS traced Juana's phone calls to Willmar, Minnesota. Since her relocation out of state was in violation of the children's custody arrangement, the juvenile court issued a warrant for Juana's arrest. The juvenile court also issued an ex parte order authorizing the children to be taken into DHHS custody.

Juana was eventually arrested by Willmar police, and her children were placed into temporary foster care. Police learned that Juana's mother and father also lived in Willmar. With the help of her parents and a friend who could watch the children during the day, Juana had taken a job at a turkey processing facility. However, since she lacked legal documentation, she had used a false name and falsified driver's license, Social Security card, and birth certificate to apply for the job. She was charged with felony counts of forgery and using false identification.

While in the custody of Willmar police, Juana disclosed that her relocation from Norfolk had been an escape from Carlos. She said that Carlos had physically and sexually abused her and had physically abused the children. Questioned why she had not disclosed Carlos’ abuse sooner, Juana stated that she had not thought the police could help. She said that it was not something that people typically did in her culture because police there would unlikely help anyway. Based on this account, Juana began working with an immigration attorney to apply for asylum and a visa.

In the Willmar criminal case, Juana ultimately pled guilty to one felony count of forgery. Pursuant to a plea deal, the remaining charge was dismissed. She was discharged based on time served and ordered to complete probation. She was then extradited to Nebraska to face the felony charge for violation of custody. And because she was undocumented, a hold was placed on her by U.S. Immigration and Customs Enforcement (ICE) authorities.

21 MONTHS IN CUSTODY

When Juana was returned to Nebraska, her children had already been back in the state for approximately 2 months. From their temporary foster care in Willmar, they had been picked up by a DHHS social worker and returned to the Norfolk area. Much of Juana's family was apparently not considered for placement due to DHHS’ refusal to place the children with family members who were undocumented. The record indicates Juana supplied at least one name of an individual who was documented, but the record does not indicate that DHHS considered that individual for placement. It is also unclear whether Juana understood that if she had provided the names of other documented relatives, DHHS would have been required to prioritize placement with them over agency based foster parents.¹ Regardless, the children were placed with agency based foster parents.

The foster parents were particularly chosen because the foster mother could speak Spanish. DHHS believed that she would thus help the children maintain the ability to communicate with Juana, who herself had learned some Spanish. All reports indicate that the foster parents generally provided good care for the children. However, the foster mother did not speak Spanish with the children. According to the foster mother, this was because the children did not want to speak Spanish. As a result, the children were soon able to speak and understand only English.

Due in part to the language barrier that quickly developed, and due to the lack of contact that Juana was afforded with her children, communication between Juana and her children faltered. For approximately the next 10 months, Juana was held in the Madison County jail awaiting resolution of the violation of custody charge. During this time, she was allowed no in-person visits with her children and few phone calls. Only noncontact visits separated by a glass window were allowed under the jail's policy, and despite Juana's requests for such visits, DHHS social workers stated they "d[id] not like to do that, especially with babies." Accepting that rationale, the juvenile court stated multiple times that due to...