State v. Justin L. (In re Interest of Justin L.)

IN RE INTEREST OF JUSTIN L., JR.,

AND JORDAN L., CHILDREN UNDER 18 YEARS OF AGE.

STATE OF NEBRASKA, APPELLEE, v. JUSTIN L., SR., APPELLANT, AND MEAGHAN L., APPELLEE.

No. A-19-927.

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 Hall County: JOHN P. RADEMACHER, Judge. Affirmed.

Mitchell C. Stehlik, of Stehlik Law Firm, P.C., L.L.O., for appellant.

Katherine J. Doering and Katharine J. Collins, Deputy Hall County Attorneys, for appellee State of Nebraska.

James H. Truell, of Truell, Murray & Associates, for appellee Meaghan L.

Grady C. Erickson, guardian ad litem.

PIRTLE, BISHOP, and ARTERBURN, Judges.

BISHOP, Judge.

I. INTRODUCTION

Justin L., Sr. (Justin), appeals and Meaghan L. attempts to cross-appeal from the decision of the county court for Hall County, sitting as a juvenile court, terminating their parental rights to their children, Justin L., Jr., also known as Jake (Jake), and Jordan L. We affirm.

II. BACKGROUND

1. PROCEDURAL BACKGROUND

Justin and Meaghan are married and are the biological parents of Jake (born 2012) and Jordan (born 2015). Justin and Meaghan are also the biological parents of Jeremiah (born 2018). Jeremiah was not the subject of these juvenile proceedings below, nor is he the subject of this appeal, therefore Jeremiah will only be discussed as necessary. However, we note that it appears Jeremiah was the subject of a separate juvenile court case.

On February 24, 2017, Jake (4 years old) and Jordan (almost 2 years old) were removed from parental care due to concerns of physical abuse, domestic violence between Meaghan and Justin, and concerns regarding Meaghan's mental health and Justin's alcohol use. The State filed a juvenile petition alleging that Jake and Jordan were children within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016). The State alleged that the children lacked proper parental care due to the faults or habits of their parents; the parents neglected or refused to provide proper or necessary subsistence, education or other care necessary for the health, morals, or well-being of the children; and the children were in a situation dangerous to life or limb or injurious to the health or morals of the children. In each of the previous claims, the State also alleged that the parents agreed to a voluntary safety plan but both parents failed to abide by the terms of the plan; the parents routinely engaged in domestic violence; most recently, the parents were involved in a physical altercation on February 20, 2017; Justin's use of alcohol was harmful and neglectful to the children; and recently, one of the children indicated his mother had "knocked him out." The juvenile court granted the State's motion for temporary custody of Jake and Jordan, and other than briefly being placed with Meaghan for approximately 4 months (September 14, 2018, to January 11, 2019), the boys have remained out-of-home ever since. The children were initially placed with their paternal grandmother from February to August 2017, but were then placed in an agency-supported foster home.

On July 21, 2017, Jake and Jordan were adjudicated to be within the meaning of § 43-247(3)(a) based on Justin and Meaghan's no contest pleas to the allegation in the petition that the children were in a situation dangerous to life or limb or injurious to the health or morals of the children.

In its disposition order filed on August 23, 2017, the juvenile court adopted the provisions of the Nebraska Department of Health and Human Services' (DHHS) case plan dated August 16 and directed all parties to comply with its terms. Reasonable visitation was to be determined by DHHS. The case plan set forth goals for Meaghan and Justin, along with strategies to help them realize their goals. The first goal was for Meaghan to address her mental health to ensure she was able to adequately take care of her children. In order to do that, Meaghan was to complete a psychological evaluation and follow the recommendations and take any prescribed medications and attend medication management appointments. The second goal was for Meaghan to have age appropriate interactions with the boys, including appropriate supervision and discipline. In order to do that, Meaghan was to attend all parenting times, work with family support, demonstrate that she could utilize the skills taught during visits, and complete a parenting assessment and follow the recommendations. The third goal was for Meaghan and Justin to refrain from having altercations that were dangerous to the children when present. In order to do that, Meaghan and Justin were to participate in couples' counseling to work on their relationship and to not have any physical altercations. The fourth goal was for Justin to work on his drinking and how it affected his parenting. In order to do that, Justin was to complete a drug and alcohol evaluation and follow the recommendations, complete random alcohol screens, and refrain from having involvement with law enforcement. The fifth goal was for Meaghan and Justin to provide for all of the boys' basic needs. In order to do that, Meaghan and Justin were to provide the boys with suitable and stable housing, ensure that their educational and medical needs were being met, provide financially for the family, and provide food, clothing, and other necessary items for the children.

After a review and permanency hearing in November 2017, the juvenile court adopted the provisions of the DHHS case plan dated November 2 and directed all parties to comply with its terms. This case plan was largely the same as the August plan, with the addition that Meaghan was to work with a Specialized Outpatient Service therapist in the home with the boys and follow recommendations. After subsequent review and permanency hearings, the goals and strategies for Meaghan and Justin remained largely unchanged.

Jake and Jordan were placed with Meaghan on September 14, 2018. And Justin, who had been incarcerated since December 2017, returned to the family home when he was released on September 20, 2018.

After a review and permanency planning hearing in November 2018, Meaghan was ordered to attend individual therapy and follow the recommendations of her therapist, Meaghan and Justin were to participate in individual and joint intensive family reunification services, and Justin was to follow the requirements of his postrelease supervision.

On January 11, 2019, the State filed a motion for an emergency change of placement alleging: DHHS had received intakes alleging emotional and physical abuse toward the children; and Meaghan and Justin were not following the safety plan that required Justin's contact with the children to be supervised. The juvenile court granted the motion that same day.

On February 11, 2019, the children's guardian ad litem (GAL) filed a motion to terminate Justin and Meaghan's parental rights to Jake and Jordan pursuant to § 43-292(2), (4), (6), and (7) (Reissue 2016). The GAL alleged that the parents substantially and continuously or repeatedly neglected and refused to give the children, or a sibling, necessary care and protection; the parents were unfit by reason of debauchery, habitual use of intoxicating liquor or narcotic drugs, or repeated lewd and lascivious behavior, which conduct was seriously detrimental to the health, morals, or well-being of the children; reasonable efforts to preserve and reunify the family had failed to correct the conditions leading to the adjudication of the children under § 43-247(3)(a); Jake and Jordan had been in an out-of-home placement for 15 or more of the most recent 22 months; and termination was in the children's best interests.

In a journal entry and order filed on May 9, 2019, the juvenile court terminated all visitation between the children and Justin and Meaghan except for supervised visitation in the presence of the children's primary therapist, Christina Peard. Subsequently, in a journal entry and order filed on July 2, the court granted the GAL's motion to suspend visitation and ordered that visitation be suspended pending the termination of parental rights proceedings.

2. TERMINATION HEARING

The hearing on the motion to terminate parental rights was held on July 29 and 30, 2019. The GAL called several witnesses to testify, and numerous exhibits were received into evidence. Justin did not testify, although he called his mother to testify on his behalf. Meaghan testified. A summary of the relevant evidence follows.

Jennifer Whitney, a child and family service specialist with DHHS, was this family's caseworker from February 2017 to January 2019. Whitney testified that DHHS became involved because there were allegations that Meaghan physically abused Jake and Jordan, DHHS "had continual concerns" of relationship struggles between Meaghan and Justin that resulted in physical altercations, and there were concerns about Meaghan's mental health and Justin's mental health and alcohol use. According to a DHHS court report, the children were found to be safe to stay with Justin with a safety plan in place wherein Justin was to supervise all contact between Meaghan and the boys, but Justin was not in agreement with the plan and agreed to send the children to his mother's home. After a couple of weeks, Justin and Meaghan agreed to a safety plan to have the children return to their home. Under the safety plan, Justin was not to allow Meaghan to be unsupervised around the children, an agency would do random drop-ins to ensure that the safety plan was being followed, and Justin would limit his alcohol intake to ensure the safety of the children. A DHHS report notes that during the month of February 2017, there continued to be concerns about Justin and Meaghan following the safety plan. Whitney testified...