State v. LeRoy H. (In re Carson H.)

1

In re Interest of Carson H. et al., children under 18 years of age.

State of Nebraska, appellee, v. LeRoy H., appellant.

Nos. A-21-378, A-21-380, A-21-382

Court of Appeals of Nebraska

December 7, 2021

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 Valley County: Kale B Burdick, Judge. Affirmed.

Michael S. Borders, of Borders Law Office, for appellant.

Kayla C. Haberstick, Special Valley County Attorney, for appellee.

Gary G. Peterson, guardian ad litem.

Moore Bishop, and Arterburn, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Moore, Judge.

INTRODUCTION

LeRoy H. appeals the termination of his parental rights to his minor children. LeRoy contends that the county court for Valley County, sitting as a juvenile court, erred in admitting certain evidence in violation of his due process rights and finding that he was unfit to parent his children and that termination of his parental rights was in the children's best interests. For the reasons set forth herein, we affirm.

STATEMENT OF FACTS

LeRoy and Tonya H. are the parents of four minor children born in 2005, 2006, 2009, and 2011 (collectively the children), who are the children in the present case to whom LeRoy's parental rights were terminated. LeRoy is also the parent of an older child, who is no longer a minor and not part of the present case. LeRoy and Tonya have an extensive history of working with the Nebraska Department of Health and Human Services (the Department). Between January 2006 and June 2017, they had 12 intakes to the Child Abuse and Neglect Hotline. Of those 12 intakes, 9 were unfounded, 2 were court substantiated, and 1 was agency substantiated. Concerns alleged in those previous intakes included unsanitary living conditions, the family living with a registered sex offender not providing for the children's basic needs, domestic violence, substance use, and failure to protect the children from harm caused by their older half sibling. The family worked ongoing services with the Department on two prior occasions: first, from June through November 2012; and second, from March through July 2014. On both of those occasions, the four children involved in the present case were removed from LeRoy and Tonya's care and placed outside of the home for a period. LeRoy and Tonya also worked with the Department in a case involving LeRoy's oldest child from July 2009 until November 2014 when that child aged out of the juvenile court system. LeRoy's oldest child was removed from LeRoy's care and adjudicated due to inappropriate sexual behaviors involving the oldest of the four younger children; LeRoy's oldest child was also sexually inappropriate with another one of the younger children while at a visit with family.

Following a welfare check on March 28, 2019, due to allegations of unsanitary living conditions, the children were removed from LeRoy and Tonya's care in the present case. While those allegations were being investigated, the younger children made disclosures that the oldest of the four children had been having sex with the youngest child. There were also allegations that the oldest child had been sexually inappropriate with the other two younger children, that LeRoy had been sexually inappropriate with the youngest child, and that Tonya was aware of these issues but did not act to protect the children. Criminal charges were filed and both parents spent time in jail as a result of the allegations in this case. Tonya is not involved in the present appeal (she was continuing to work toward reunification with the children at the time of the hearing on the motion to terminate LeRoy's parental rights); we have referenced her further only as necessary to the resolution of LeRoy's appeal.

On March 29, 2019, the State filed petitions alleging the children were juveniles within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016) due to the fault or habits of their parents. On that same date, the juvenile court entered orders placing the children in the temporary custody of the Department. The children have not returned to the care of either LeRoy or Tonya since their removal in March.

On September 13, 2019, Tonya entered no contest admissions to the allegations of the petitions in each case and the children were adjudicated as juveniles within the meaning of § 43-247(3)(a). Following a dispositional hearing in October, the court ordered the parties to comply with the terms of the case plan prepared by the Department, but specified that the plan was applicable only to Tonya as there had been no adjudication of the children as to LeRoy. The court ordered Tonya to complete chemical dependency and psychological evaluations and authorized therapeutic visits to begin between Tonya and the children when approved by the children's respective therapists.

On February 26, 2020, LeRoy entered no contest admissions to the allegations of the petitions in each case, and the juvenile court again adjudicated the children as juveniles within the meaning of § 43-27(3)(a).

The Department subsequently prepared a case plan and court report dated April 3, 2020, pertaining to LeRoy. The case plan included two goals. First, LeRoy was to "ensure the safety and well-being of his children . . . by providing a safe and secure home environment." Strategies relating to the first goal were that LeRoy would obtain and maintain employment and appropriate housing and refrain from associating with individuals that may cause physical and emotional harm to the children. Under the second goal, LeRoy was to "ensure the safety and well-being of his children . . . by making sure that the children are not sexually exploited in any way." Strategies for achieving the second goal were to ensure that the children were not inappropriately touching their siblings, that LeRoy would refrain from inappropriately touching the children, that he would work with therapeutic services to address the children's mental health needs, and again that he would refrain from associating with individuals that may cause the children physical and emotional harm. The progress notes for the second goal in the April 2020 case plan stated, "It has been recommended by [C.H.'s] therapist that [LeRoy] complete a psychological evaluation, participate in an anger management program, and attend individual therapy."

On May 6, 2020, LeRoy filed an objection to the April 2020 case plan and court report. Specifically, LeRoy objected to being required to complete a psychological evaluation, participate in anger management, and attend individual therapy. He generally agreed with the other recommendations of the case plan.

The record on appeal does not include a bill of exceptions for any hearings relating to LeRoy occurring in May 2020 or any resulting orders or journal entries, but the juvenile court's order terminating LeRoy's parental rights indicates that a dispositional hearing was held on May 27, 2020, and that LeRoy's objections to the April 2020 case plan and court report were heard at that time. The termination order indicates that following the dispositional hearing, the court modified the case plan to require LeRoy to submit to a psychological evaluation only; it did not require him to participate in an anger management program or individual counseling until a psychological evaluation was completed. According to the termination order, the court approved and adopted the case plan and court report as modified, ordered the parties to comply with the modified case plan and court report, specifically ordered LeRoy to submit to a psychological evaluation, and advised LeRoy that he was to have no contact with the children until a psychological evaluation was completed. The termination order also indicates that there were court-ordered restrictions in place prohibiting LeRoy's contact with the children in the criminal case against him, but the details of any such restrictions in the criminal case are not included in our record.

On August 26, 2020, a review and exception hearing was held with regard to LeRoy. The juvenile court approved and adopted the Department's case plan and court report dated August 5, overruled LeRoy's objections to that case plan, and ordered him to comply with its provisions. The goals and strategies of the August 2020 case plan for LeRoy were unchanged from those of the previous case plan. The court found that an exception to the filing of a petition to terminate LeRoy's parental rights based on the children's placement outside the home for more than 16 months existed under Neb. Rev. Stat. § 43-292.02(3)(c) (Cum. Supp. 2020) (family of juvenile has not had reasonable opportunity to avail themselves of services deemed necessary in case or permanency plan approved by court). The court advised LeRoy, however, that the finding of an exception was temporary and that he must progress in compliance with the case plan or an exception would no longer exist. The court reiterated its previous order for LeRoy to submit to a psychological evaluation and advised him that "failure to submit to such court-ordered evaluation will have negative consequences."

Another review and exception hearing was held on November 25, 2020. At that time, the juvenile court approved and adopted the Department's case plan and court report dated November 4 2020, in which the case plan goals and strategies remained the same as those in previous case plans pertaining to LeRoy. During the hearing, LeRoy again objected to the case plan requirement that he complete a psychological evaluation. In overruling LeRoy's objection, the juvenile court noted that in May, it had modified the case plan to remove...