State v. Krystal R. (In re Ivy R.)

1

In re Interest of Ivy R. et al., children under 18 years of age

State of Nebraska, appellee, v. Krystal R., appellant.

No. A-23-079

Court of Appeals of Nebraska

August 22, 2023

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: CANDICE J. NOVAK, Judge. Affirmed.

Thomas C. Riley, Douglas County Public Defender, and Hilary A Burrows for appellant.

Alexis Homme, Deputy Douglas County Attorney for appellee.

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

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

MOORE Judge.

INTRODUCTION

Krystal R. appeals from the order of the separate juvenile court of Douglas County, which adjudicated her minor children under Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016). She argues that the juvenile court erred in its findings with respect to the State's reasonable efforts to prevent removal of the children from her home and the determination that the children were within the meaning of § 43-247(3)(a). For the reasons set forth herein, we affirm.

STATEMENT OF FACTS

Krystal R. is the mother of Ivy R., born in 2010, Amaya S., born in 2015, and Lucas S., born in 2017. The children's father is not involved in this appeal and will not be mentioned further.

On September 15, 2022, the State filed a petition in the juvenile court, alleging that the children were within the meaning of § 43-247(3)(a). Specifically, the State alleged that the children lacked proper parental care due to Krystal's fault or habits and were at risk for harm because: (A) on or about September 14, 2022, law enforcement officials observed the family home in a filthy, unwholesome condition, (B) Krystal had failed to provide proper parental care, support, supervision, and/or protection to the children, and (C) Krystal had failed to provide the children with safe, stable, and/or appropriate housing.

Also on September 15, the State filed an ex parte motion for immediate custody and an accompanying affidavit asking the court to award the Nebraska Department of Health and Human Services (the Department) temporary custody of the children with placement to exclude Krystal's residence. The motion also alleged that the children were "seriously endangered in their surroundings," that their continuation in the home would be contrary to their health safety, or welfare, and that immediate removal appeared necessary for their protection. Finally, the motion alleged that "reasonable efforts were made to prevent removal or exigent circumstances existed which precluded such efforts," with the reasonable efforts made being set forth in the accompanying affidavit. The affidavit outlined the officers' observations of the extremely cluttered filthy, and unsanitary condition of the residence, Krystal's report that the water had been turned off the day before, her lack of a timeline as to when utilities would be turned back on at the residence, and lack of definite plans or an address of the friend with whom she reportedly planned to stay. The affidavit noted that the children were placed at Project Harmony by the officers due to the living conditions of the home.

The juvenile court granted the State's ex parte motion for immediate custody and placed the children in the temporary custody of the Department with placement to exclude Krystal's home. The preprinted portion of the court's ex parte order included a statement that "reasonable efforts were made to prevent removal or exigent circumstances precluded reasonable efforts being made" and that "[t]hose reasonable efforts included, but were not limited to, the facts set out in [the State's affidavit] and/or those set forth below." On the blank lines below this statement, the court wrote, "Exigent circumstances exist based on the contents of the affidavit."

A first appearance and detention/protective custody hearing was held before the juvenile court on September 21. Krystal appeared and entered a denial to the allegations of the petition, which was accepted by the court. The court found it in the children's best interests to remain in the Department's temporary custody with placement to exclude Krystal's home. In its written order following the hearing, the court found that "reasonable efforts have been made to eliminate or prevent removal of the minor children from the parental home to include, but not be limited to an initial risk assessment" and that "due to exigent circumstances, it would be contrary to the health and safety of the minor children to be returned home at this time." The court also ordered that Krystal was to be offered the following voluntary services: (1) family support services, (2) agency supervised visitation in a neutral location, (3) a co-occurring evaluation, and (4) drug testing.

Upon Krystal's motion, the juvenile court continued the adjudication hearing originally set for December 7, 2022, to January 5, 2023. At the January 5, adjudication hearing, the State's first witness was Officer Tyler Hansen of the Omaha Police Department. On September 13, 2022, Hansen and Officer Aaron Kruger responded to a radio call to the children's elementary school to check on their well-being. After contacting the children, the school principal, and the maternal grandmother (who reported the concern) at the school, the officers transported the children to their residence. According to Hansen, when they contacted the children at school, they appeared "happy" and "clean."

At the residence, Hansen made contact with Krystal and explained the reason for the police visit. In response, Krystal told Hansen that her residence "was probably not as clean as it should be" and that she was "dealing with other issues with utilities," including the water having been turned off for the past few days. Upon entering the living room of the residence, Hansen observed "dirt and grime" covering the walls and trash "all over the floor and the furniture." Hansen elaborated that there were old food boxes and crumbs "all over the floor and furniture," and he described the home as "very cluttered." According to Hansen, the kitchen was also cluttered with trash and old food boxes. He testified, "You couldn't actually go into the kitchen, you could only go into the very front of it." Hansen observed that "there was no countertop space," and he testified that the kitchen did not appear to be usable. Hansen testified that there was "a little path from the front door to the kitchen to the hallway in between all the trash" where a person could walk, and he described the bedrooms as being similarly dirty and cluttered, similar to the living room and the kitchen. Hansen believed, based on the condition of the residence, that it "wasn't safe" and "wasn't hygienic or sanitary" for the children to live there. He concluded that the minor children were at risk of harm based on his observation of their living conditions and Krystal's report that she had no immediate plan to get the water turned back on. During Hansen's testimony, the juvenile court received into evidence various photographs depicting the cluttered and dirty living conditions in the residence.

Hansen agreed that Krystal cooperated with the officers. He noted her report that she planned to stay at a friend's house that evening, although she did not have an address for the friend's residence at that time. Hansen agreed that Krystal was proactively trying to address the living conditions in her residence, noting her report of contacting "at least a few" community resources to try to get the water turned back on and for other assistance. According to Hansen, he offered shelter options to Krystal, but that she declined and indicated her preference to stay with her friend as planned. Hansen confirmed that Krystal had shown the officers cases of bottled water she had at the residence and that there was food available for the children to eat. Hansen did not observe any bags being packed in preparation for leaving the residence, and he did not recall whether Krystal reported having packed any bags.

Kruger's testimony about the police contact at the school and transport of the children to the residence was consistent with Hansen's. Kruger testified that at the residence, the officers learned that Krystal was not employed, that the water had been shut off, and that the family did not have trash services at that time. Kruger's testimony about the condition of the home was also consistent with Hansen's. Kruger described the living room as "extremely cluttered and disarrayed." Kruger could not see any clear counter space in the kitchen, and he described the children's bedrooms being similarly cluttered as the living room. In the younger children's room, Kruger noted "fruit flies" and a bunk bed without much bedding. He thought they had a sheet that was "unkept, not clean." He also observed "unidentifiable" stains on the walls. According to Kruger, he had to "step on or over things" to gain entry to the older child's room, where he also observed fruit flies. After that, Kruger focused on entertaining the children in the living room while Hansen questioned Krystal further. Kruger concluded that the children were at risk of harm in Krystal's care based on his observations as to the condition of the residence and Krystal's report of not having water or trash services. During Kruger's testimony, the State offered additional photographs depicting the cluttered and dirty state of the children's rooms, which were received into evidence by the juvenile court.

Following Kruger's testimony, the State rested. Krystal did not offer any evidence.

The juvenile court announced its ruling from the bench, finding the...