State v. Julianna O. (In re Interest Alianna C.)

IN RE INTEREST OF BENTLY C. AND ALIANNA C.,

CHILDREN UNDER 18 YEARS OF AGE.

STATE OF NEBRASKA, APPELLEE, v. JULIANNA O., APPELLANT.

No. A-19-1161

No. A-19-1162

NEBRASKA COURT OF APPEALS

August 25, 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).

Appeals from the County Court for Buffalo County: GERALD R. JORGENSEN, JR., Judge. Affirmed.

Vikki S. Stamm, of Stamm Romero & Associates, P.C., L.L.O., for appellant.

Mandi J. Amy, Deputy Buffalo County Attorney, for appellee.

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

MOORE, Chief Judge.

INTRODUCTION

Julianna O. appeals from the order of the Buffalo County Court, sitting in its capacity as a juvenile court, terminating her parental rights to her children, Bently C. and Alianna C. The juvenile court found that the State had proven grounds for termination of Julianna's parental rights to both children under Neb. Rev. Stat. § 43-292 (Reissue 2016) and that termination of her parental rights was in the children's best interests. The court also found that Alianna was a child within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016); Bently had previously been adjudicated under this statute. Following our de novo review of the record, we affirm.

BACKGROUND

Julianna is the mother of Bently, born in February 2016, and Alianna, born in January 2018. She is also the mother of three older children: Neveah, Brooklyn, and Jaxon. These children are not part of the present case, and were in guardianship placements at the start of the present proceedings. Neveah's guardianship was dissolved in August 2018 when her guardian could no longer care for her, and due to the case involving Bently, Neveah was placed in the Department's custody. There was evidence about the older children presented at the termination of parental rights proceedings with respect to Bently and Alianna, and we discuss them as necessary to the resolution of the present appeal. Jeffrey C. is the father of Bently and Alianna (he is also Jaxon's father). His parental rights to Bently and Alianna were also terminated in the present proceedings, but he is not involved in this appeal. We discuss him only as necessary to the resolution of Juliana's appeal.

Bently was removed from Juliana's care in February 2018 after law enforcement placed him "in an emergency hold" due to Julianna testing positive for methamphetamine at the time of his birth; Bently's meconium tested positive for amphetamines. Julianna left Nebraska for a time while pregnant with Alianna, who was born in North Carolina. Alianna was removed from Julianna's care on February 1, 2019, shortly after Julianna's return to Nebraska. Both children were placed in out-of-home placements at the times of their respective removals and have not returned to Julianna's care since those dates. Bently was initially placed for a few days with Jeffrey's ex-wife who had guardianship of Jaxon, but when he was a week old, Bently was placed with his current foster parents. Alianna was placed with the same foster parents as Bently when she was 4 weeks old.

On February 16, 2018, the State filed a petition alleging that Bently was a child within the meaning of § 43-247(3)(a) and lacked proper parental care due to the fault or habits of Julianna. In the accompanying motion and affidavit for emergency placement, the State asserted Bently had been exposed to amphetamines and methamphetamine upon his birth as Julianna had tested positive for these substances. The court entered an ex parte order placing Bently in the temporary custody of the Nebraska Department of Health and Human Services (Department). The State filed a supplemental petition on June 14, 2018, adding allegations with respect to Jeffrey.

A first appearance/adjudication hearing on the original petition was held on February 28, 2018. The juvenile court explained the parties' rights, the possible dispositions, and possible consequences of the case, including the possibility of termination of parental rights. Julianna entered an admission to the allegations of the petition, and the court adjudicated Bently as a child within the meaning of § 43-247(3)(a). The court's journal entry and order provided that reasonable visitation was to be determined by the Department and continued Bently's out-of-home placement.

Following a dispositional hearing on April 16, 2018, the juvenile court ordered the parties to comply with the Department's case plan and court report received at the hearing and continued Bently in the Department's custody and out-of-home placement. The permanency objective at that time was reunification. The first goal of the case plan was for Julianna to exhibit healthy parenting decisions, including following recommendations made by medical professionals, finding alternative ways to cope when tempted to use drugs, and attending therapy to help with past trauma. The strategies to meet that goal were that Julianna would obtain substance use and mental healthevaluations and follow the recommendations of those evaluations and that she would begin individual therapy to work on past trauma and learn better ways to cope than through substance use. The second goal of the case plan was that Julianna would provide consistent parenting, by means including maintaining a safe and stable home, providing age appropriate supervision, and providing for Bently's needs. Strategies to meet that goal were providing a consistent home for Bently, contacting "the SAFE center" and obtaining tools and resources to address domestic violence, maintaining employment and/or resources to provide basic necessities for Bently, and working with family support on budgeting, prioritizing her needs from her wants, and a parenting class.

Following a hearing on July 16, 2018, the juvenile court adjudicated Bently under the allegations of the supplemental petition, continued Bently in the Department's custody and out-of-home placement, and ordered the parties to comply with the provisions of the case plan offered at that hearing. The case plan goals and permanency objective remained the same. An updated court report and case plan were received by the court at a review hearing on November 20. The permanency goal with respect to Bently at that time was reunification with a concurrent plan of adoption. The case plan goals remained essentially the same, although wording was added to address Neveah who was in the Department's custody by that point. Julianna did not appear, but she was represented by counsel at the November review hearing.

On January 31, 2019, the State filed a petition in juvenile court alleging Alianna was within the meaning of § 43-247(3)(a) and lacked proper parental care due to the fault or habits of both Julianna and Jeffrey. The State alleged that Alianna was at risk for harm because her parents had a prior child (Bently) in the Department's custody due to his exposure to methamphetamine and had failed to comply with services to achieve reunification, as well as an older child in a private guardianship (Jaxon) for whom they were not providing care; that Julianna failed to comply with services to achieve reunification with her older child (Neveah) who was then in the Department's custody, and that she also had another older child (Brooklyn) who was in a private guardianship; that both parents had a long history of methamphetamine use and that Julianna had admitted to use during her pregnancy; and that both parents had a history of domestic violence. The State also filed a motion for ex parte temporary custody, seeking Alianna's removal from her parents' care, which was granted by the court.

On February 7, 2019, Julianna filed a motion to dismiss Alianna's case, representing that Alianna did not lack proper parental care because Julianna had placed Alianna in a temporary guardianship with Julianna's mother. Julianna appeared at a hearing on February 13, and the juvenile court explained her rights and the possible dispositions and consequences of the case, including the possible filing of a motion to terminate Julianna's parental rights. Julianna acknowledged her understanding of the court's advisements; she also filed a written denial of the allegations and an acknowledgment of her rights in Alianna's case. The court subsequently denied Julianna's motion to dismiss.

Julianna did not appear at a review and permanency hearing held on March 11, 2019, in Bently's case, but she was represented by counsel at that hearing. The case plan received at that hearing indicated that the permanency objective with respect to Bently remained reunification with a concurrent plan of adoption; it also identified a plan of reunification with respect to Alianna. Thecase plan goals and strategies remained the same as those of the previous case plan. During the hearing, the State indicated that it was "looking at filing a termination of parental rights" in Bently's case due to the lack of progress. The guardian ad litem agreed that "it's looking like termination is going to be in the best interests for Bently" due to the parents' lack of progress in addressing their substance abuse issues. He also expressed support for a permanency plan of adoption by Bently's foster parents. The juvenile court's journal entry and order following the March 11 hearing reflected that the permanency goal had been reunification/adoption and ordered the continuation of those goals.

On March 20, 2019, the State filed motions for termination of parental rights with respect to both parents in both cases. In Bently's case, the State alleged grounds for termination of Julianna's parental rights under § 42-292(2), (4), (6), and (7) and that termination of her parental rights was in Bently's best interests. In Alianna's case, the State alleged grounds for termination of Julianna's parental rights under § 42-292(2), (4),...