State v. Marquee N. (In re Interest of Marquee N.)

30 Neb.App. 862

974 N.W.2d 26

IN RE Interest of MARQUEE N., a child under 18 years of age.

State of Nebraska, appellee,

v.Marquee N., appellant.

No. A-21-687.

Court of Appeals of Nebraska.

Filed April 19, 2022.

Claire K. Bazata, of Berreckman & Bazata, P.C., L.L.O., for appellant.

Kortnei Smith, Deputy Lincoln County Attorney, for appellee.

Pirtle, Chief Judge, and Riedmann and Welch, Judges.

Riedmann, Judge.

INTRODUCTION

Marquee N., Sr. (Marquee Sr.), appeals the order of the county court for Lincoln County, sitting as a juvenile court, which continued placement of his minor child outside the home, declining to place the child with Marquee Sr., and ordered Marquee Sr. to participate in drug testing. Upon our de novo review of the record, we vacate the court's order declining placement with Marquee Sr. and remand the cause with directions for further proceedings. We further vacate the portion of the order requiring participation in drug testing at this time.

BACKGROUND

Marquee Sr. is the biological father of Marquee N., Jr. (Marquee Jr.), born in August 2015. On June 16, 2021, the State filed a petition seeking to adjudicate Marquee Jr. as a child under Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016). The petition alleged that on or about May 17 through June 16, Marquee Jr. was in a situation or engaged in an occupation dangerous to life or limb or injurious to his health or morals. That same day, the State filed an ex parte motion for temporary custody. The corresponding affidavit indicated that on May 17, the Nebraska Department of Health and Human Services (DHHS) received a report regarding the welfare of Marquee Jr. and his two siblings as it relates to their mother, Elizabeth C. The affidavit stated that a welfare check was conducted at Elizabeth's home on May 4 after law enforcement was contacted by Marquee Sr. who advised that he had been on a video visit with Marquee Jr. and observed marijuana on Elizabeth's kitchen table. Law enforcement responded to Elizabeth's home and found marijuana located on the kitchen table, where the children could access it. On June 7, Elizabeth took her children for hair follicle testing, and Marquee Jr.’s hair tested positive for methamphetamine and marijuana.

As to Marquee Sr., the affidavit alleged:

[Marquee] Sr. has a lengthy criminal history which includes convictions for 3^rd Degree Domestic Assault (1^st and 2^nd Offense), Violation of Protection Order, and 3rd Degree Assault.

Both domestic assaults involved [Elizabeth] as the victim. During the first assault, [Elizabeth] was pregnant with Marquee Jr. During the second assault, which occurred on July 6, 2016, [Marquee] Sr. punched [Elizabeth] repeatedly in the face while she was holding Marquee Jr. During the second assault, [Marquee] Sr. also slapped 4 year old [Marquee Jr.’s half sibling] in the face numerous times.

The juvenile court granted the ex parte motion, placing temporary custody of Marquee Jr. with DHHS. The order for temporary custody also ordered Marquee Sr. to submit to wearing a drug patch to be monitored by DHHS. A hearing was set for June 29, 2021.

At the hearing, the court advised Marquee Sr. of his rights, and he entered a denial to the allegations in the petition. He also requested a hearing on the continued detention and placement of Marquee Jr. A hearing was initially scheduled for July 9, but Marquee Sr. filed a motion to continue it because he needed additional time to obtain necessary evidence for the hearing. The matter was continued to August 4.

At the outset of the August 4, 2021, hearing, the parties clarified that the matter would proceed as a contested detention hearing with Marquee Sr. requesting that Marquee Jr. be placed in his home. The court received into evidence at the hearing an order dated June 28, 2021, from the district court for Lincoln County in a paternity case involving Marquee Sr. and Elizabeth. The district court's order sets forth the relevant procedural history, relating that in April 2017, the court entered a judgment of paternity, adjudicating Marquee Sr. as the biological father of Marquee Jr., awarded custody to Elizabeth subject to reasonable visitation of Marquee Sr., and ordered Marquee Sr. to pay child support. The June 28 order was entered in response to Elizabeth's motion to identify specific parenting time for Marquee Sr., which the district court granted, awarding him the first and third weekends of every month from Friday evening until Sunday evening and extended summer parenting time. The district court recognized, however, that between the time of trial on Elizabeth's motion in its case and entry of its order, the juvenile court had become involved with the family; therefore, it stayed its order specifying parenting time pending the conclusion of the juvenile court action.

The DHHS initial assessment worker testified at the detention hearing that after Marquee Jr. was removed from Elizabeth's care, he inquired into placing him with Marquee Sr. At that time, however, there was an active protection order barring Marquee Sr. from the address he provided as his residence, and the alternative address he provided was a homeless shelter. The initial assessment worker explained that consequently, he was initially unable to place Marquee Jr. with Marquee Sr. The court received into evidence at the detention hearing a certified copy of a July 15, 2021, order from the district court for Lancaster County dismissing the protection order that had been issued against Marquee Sr. on February 5. Thus, at the time of the detention hearing on August 4, there was not an active protection order against Marquee Sr.

The initial assessment worker also explained that his background check on Marquee Sr. revealed two prior DHHS intakes involving domestic violence and a third intake that was not investigated. The first intake occurred in 2011 and was agency substantiated. The second intake involved the incident reported in the affidavit alleging that Marquee Sr. assaulted Elizabeth while she was holding Marquee Jr. The initial assessment worker acknowledged, however, that this intake, which occurred in 2016, was determined to be unfounded, meaning there was not enough evidence to support a finding by a preponderance of the evidence that the allegations were true.

As far as Marquee Sr.’s criminal history, the initial assessment worker testified that "there was domestic violence on his criminal history" and confirmed that Marquee Sr. has had convictions for domestic violence in the past. The initial assessment worker also found that three prior protection orders had been acquired against Marquee Sr.

The current DHHS caseworker, who took over the case from the initial assessment worker in July 2021, testified that Marquee Sr. has "multiple charges related to drugs and alcohol or possession" on his record, but that the most recent charge was in 2009 for possession of marijuana and open alcohol container. She was asked whether that 12-year-old charge was concerning enough to require that Marquee Sr. wear a drug patch. She responded that Marquee Sr. was notified he could complete an "urgent needs assessment" and that to her knowledge, he had not done so, and without an urgent needs assessment to provide updated information, she affirmed that "it would be concerning at this time to me, yes." She acknowledged that she had no recent allegations or information about current drug use by Marquee Sr. The initial assessment worker likewise testified that he had not asked Marquee Sr. about any drug or alcohol use and confirmed that the allegations in the petition were solely against Elizabeth and did not relate to Marquee Sr. When the initial assessment worker was asked about requiring drug patch testing for Marquee Sr., he explained that "[w]hen children are removed due to drugs in the home, all parents [are] put on patch testing."

After Marquee Jr. was removed from Elizabeth's care, he was placed with his two half siblings in the home of his maternal grandmother. The initial assessment worker acknowledged that since the time of removal, he had not visited Marquee Sr.’s home, had not sent any other workers to visit the home, and had not made contact with Marquee Sr.’s live-in fiance. He also had not completed a safety assessment on Marquee Sr. because the allegations in the case related solely to Elizabeth.

The current caseworker also admitted that she had not talked to Marquee Sr. in person or on the phone, had not spoken to his fiance, had not asked a courtesy worker to visit him or interview him, had not spoken to anyone in his family, and was unaware whether he was employed. Nevertheless, she opined that she would not even recommend allowing Marquee Sr. in-person visits with Marquee Jr. until she could speak with Marquee Sr. "and discuss his case as far as his family strengths and needs assessment, which would help build [the] case plan." In addition, both she and the initial assessment worker opined that placing Marquee Jr. with Marquee Sr. was not in the child's best interests at that time.

In an order filed that same day, the juvenile court found that Marquee Jr.’s care, custody, and control should continue with DHHS for out-of-home placement. The court ordered Marquee Sr. to begin drug patch testing and to complete an urgent needs assessment. Marquee Sr. was awarded supervised visitation with Marquee Jr. In an order dated August 10, 2021, the court found that reasonable efforts had been made to return Marquee Jr. to his home and that it would be in his best interests that he be placed in the care, custody, and control of DHHS, and it ordered that he remain in his current foster placement. Marquee Sr. appeals.

During the pendency of the appeal, the State filed a motion to dismiss the appeal as moot because Marquee Jr. had been placed with Elizabeth, over Marquee Sr.’s objection. We denied the motion to dismiss. Counsel for Marquee Sr. confirmed at oral argument that Marquee Jr. was currently placed with...