State v. Nathan H. (In re Anthony H.)

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In re Interest of Anthony H., a child under 18 years of age.

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

No. A-22-001

Court of Appeals of Nebraska

September 6, 2022

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 Scotts Bluff County: James M Worden, Judge.

William E. Madelung, of Madelung Law Office, P.C., L.L.O for appellant.

Travis R. Rodak, Deputy Scotts Bluff County Attorney, for appellee.

Moore Riedmann, and Welch, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL (MEMORANDUM WEB OPINION)

Moore, Judge.

INTRODUCTION

Nathan H. appeals from an order of Scotts Bluff County Court sitting as a juvenile court, terminating his parental rights to his son, Anthony H. Upon our de novo review of the record, we affirm the juvenile court's order.

STATEMENT OF FACTS

Procedural Background.

Nathan is the biological father of Anthony, born in March of 2020. Nathan is also the father of another child, born in October 2021, who is not at issue in this case. Both children share a biological mother, Rosa G.C. As discussed further below Rosa's parental rights to Anthony remain intact, and we discuss her only as necessary to the resolution of the current appeal by Nathan.

Anthony was removed from the home on June 9, 2021, due to concerns of domestic violence. The same day, a petition was filed with the Scotts Bluff County Court, sitting as a juvenile court, to adjudicate Anthony pursuant to Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016) based on Nathan and Rosa becoming involved in physical domestic violence, placing Anthony at risk of harm. The petition also alleged that another child welfare case addressing the same issues had recently closed, and that the family had not "made sustained changes." Anthony was adjudicated in July 2021 and has remained out of the home since his removal.

At a pretrial conference on July 7, 2021, Rosa pled no contest to the petition, the court found a factual basis for the allegations, and adjudicated Anthony under § 43-247(3)(a). Nathan entered a denial to the petition's allegations. The State noted that a prior child welfare case had been closed in May, and due to the short period between the two cases, stated that "if we have a contested adjudication, I am going to file for termination." Nathan's counsel then asked the juvenile court to continue Nathan's pretrial conference to August so that he may consult with Nathan and the court agreed. The court ordered the Nebraska Department of Health and Human Services (the Department) to prepare a case plan for both Rosa and Nathan.

On July 30, 2021, the State filed a motion for termination of Nathan's and Rosa's parental rights to Anthony, alleging statutory grounds to terminate existed pursuant to Neb. Rev. Stat. § 43-292(2) (Reissue 2016), and alleging that termination was in Anthony's best interests.

The juvenile court entered an order of disposition on August 17, 2021, adopting the case plan presented by the Department. Nathan's case plan goals included providing a safe, suitable, and stable living environment; no law enforcement reports of domestic disturbances; and no injuries to Anthony caused by fighting in the home. The court also adopted a concurrent plan of reunification with adoption.

Termination Trial.

The contested adjudication and termination trial was held on November 16, 2021. Numerous witnesses testified and several exhibits were received into evidence. A summary of the evidence relevant to Nathan follows.

Officer Tyler Fliam testified that he was dispatched to a domestic disturbance involving Nathan and Rosa on September 24, 2020. Fliam made contact with Nathan and noticed various injuries on him, including scratches on his neck, blood coming from his nose, and a bite wound on his thigh. Nathan informed Fliam that Rosa had caused his injuries. Fliam testified that Anthony, then 6 months old, was in the home while this assault took place. Rosa was cited with domestic assault.

Kortni Zeiler was the Department supervisor for both the initial assessment worker and the ongoing caseworker in Nathan's and Rosa's prior child welfare case. Zeiler testified that the family's prior intake was made on October 5, 2020, due to concerns of domestic violence in the home. Anthony was not removed from the home, and the Department created a safety plan and set up intensive family preservation for Nathan and Rosa.

Zeiler testified that the Department's greatest concern throughout the prior case was the family's history of domestic violence. The October 5 intake reported that there had been four previous incidents where law enforcement had been called to the home to respond to domestic violence. The intake alleged that Rosa had been holding Anthony during the latest altercation, the same incident that Fliam had responded to. The records check included in the Department's August 6, 2021, case plan reflects that Rosa was also charged with domestic assault in 2018 and 2019.

On November 3, 2020, Nathan tested positive for cocaine. Zeiler testified that the Department added drug testing requirements to Nathan's prior case plan, and that Nathan did not again test positive for any drug during the remainder of the prior case. The records check included in the Department's August 6, 2021, case plan reflects that from September 2018 to August 2020 Nathan was found guilty of 10 drug related charges, including possession of a controlled substance and possession of drug paraphernalia.

Neither Nathan nor Rosa graduated from the intensive family preservation program, instead deciding in December 2020 to end their romantic relationship. Zeiler noted that Nathan and Rosa had gone to mediation to create a parenting plan. At the end of the family's prior case, Nathan and Rosa were co-parenting well together and the case was closed on May 14, 2021.

Zeiler testified that upon the closure of the prior case, the Department's "biggest fear" was that Nathan and Rosa would engage in domestic violence should they resume their romantic relationship, as intensive family preservation had been unsuccessful.

On June 7, 2021, Sergeant Philip Eckerberg responded to a domestic disturbance between Nathan and Rose. When Eckerberg arrived at the scene, one of Rosa's sons, whom she does not share with Nathan, was crying and indicated to Eckerberg that Nathan had hit him in the head. Eckerberg observed a "noticeable" bump on the left side of the boy's forehead. Nathan could not recall whether he had hit the boy during his confrontation with Rosa. Eckerberg later arrested Nathan for child abuse. Pleadings entered into evidence show that, at the time of trial, Nathan had pending charges in Scottsbluff County Court for child abuse and domestic assault.

Eckerberg also noticed several bite marks on Nathan, including on his back, forearm, and the heel of his foot. Nathan reported that Rosa had made those bite marks during the disturbance, and Rosa was later arrested for domestic assault.

Owen Courtney was the Department caseworker assigned to Nathan's case on July 13, 2021. Courtney testified that his main concern regarding the case was the incident on June 7 precipitating the intake, as it involved domestic violence between Nathan and Rose which resulted in Rosa's son being injured. Courtney found this concerning because a child had been injured and because the family's previous child welfare case had also been focused on addressing domestic violence.

Courtney stated that he asked Nathan to participate in an updated substance use evaluation and recommended that Nathan enroll in anger management classes and therapy, so that Nathan would be able to appreciate the impact domestic violence has on Anthony. Courtney also recommended that Nathan take a co-parenting class. At the time of trial, Nathan had not pursued any of Courtney's recommendations. Courtney described Nathan's follow through as "minimal," but did note that Nathan consistently attended parenting time and appeared to have a good relationship with Anthony. The Department's August 6, 2021, case plan also stated that Nathan does well during his parenting time and is "very attentive" to Anthony's needs.

Because of past incidences of domestic violence, Courtney was concerned that Nathan's and Rosa's cycle of violence would continue, placing Anthony at risk of harm. Additionally, because Nathan had not demonstrated sustainable changes, which would enable him to enter into safe and healthy relationships, Courtney believed Nathan's pattern of violence would continue regardless of his partner. Therefore, the Department was in favor of terminating Nathan's parental rights.

Courtney also provided testimony regarding Nathan's housing and employment. Nathan lived in his father's home, along with his sister. Courtney was unsure of the size of the residence, but estimated the home had three or four bedrooms with enough room to accommodate Anthony. Courtney described Nathan as "currently employed," as Nathan was in the process of buying a lawn mowing business from a friend. When Courtney last spoke with Nathan on October 27, 2021, Nathan was applying for a business loan to purchase mowing equipment.

Trooper Josh Dillinger testified that he pulled Nathan over for speeding on July 25, 2021. Rosa and another individual were passengers in Nathan's car. Dillinger later conducted a probable cause search for drugs and found marijuana products, ecstasy, and psilocybin mushrooms inside the car.

State Patrol dispatch also informed Dillinger that Rosa had a domestic violence protection order against Nathan, and so Dillinger arrested Nathan for violating the order. Dillinger could not...