State v. Noemi J.M. (In re Interest Antonio J.), A-18-722.

IN RE INTEREST OF ANTONIO J. ET AL., CHILDREN UNDER 18 YEARS OF AGE.

STATE OF NEBRASKA, APPELLEE, v. NOEMI J.M., APPELLANT.

No. A-18-722.

NEBRASKA COURT OF APPEALS

June 4, 2019

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 Separate Juvenile Court of Douglas County: ELIZABETH G. CRNKOVICH, Judge. Affirmed.

Kate E. Placzek, of Law Office of Kate E. Placzek, for appellant.

Donald W. Kleine, Douglas County Attorney, and Natalie Killion for appellee.

PIRTLE, ARTERBURN, and WELCH, Judges.

WELCH, Judge.

I. INTRODUCTION

Noemi J.M. appeals the order of the Douglas County Separate Juvenile Court terminating her parental rights to Antonio J., Graciela J., Zayda M., Arturo M., and Fernando M. She contends that the court erred in determining that certain statutory bases for termination under Neb. Rev. Stat. § 43-292 (Reissue 2016) were met, that termination of her parental rights was in the children's best interests, and that she was afforded due process despite not being allowed to testify. For the reasons discussed below, we affirm.

II. STATEMENT OF FACTS

Although Noemi is the mother of seven children, only five of her children are involved in this appeal; her two oldest children are not part of this appeal and this opinion will not refer to them even though one or both may have been referred to by the juvenile court in its orders. The children involved in this appeal are Graciela, born in February 2002; Antonio, born in May 2004; Zayda, born in January 2013; Arturo, born in August 2015; and Fernando, born in February 2017. The fathers of the minor children are not part of this appeal and will only be referenced as necessary for the purposes of this opinion.

1. REMOVAL AND ADJUDICATION

In July 2015, the State filed a juvenile court petition alleging that Graciela, Antonio, and Zayda fell within the jurisdiction of the juvenile court due to Noemi's fault or habits because Noemi failed to provide proper parental care, support and/or supervision for the minor children and did not provide them with safe, stable, and/or appropriate housing. See Neb. Rev. Stat. § 43-247(3)(a) (Cum. Supp. 2014). The court granted the State's motion to remove Graciela, Antonio, and Zayda from Noemi's care that same day with placement to exclude Noemi's home. Graciela, Antonio, and Zayda were removed from the family home on July 23, 2015, and remained in foster care placements throughout the pendency of this case.

In August 2015, Noemi gave birth to Arturo. Arturo was immediately removed from Noemi's custody and placed in the custody of the Nebraska Department of Health and Human Services (DHHS). He has remained in foster care placement throughout the pendency of this case. The State amended the adjudication petition to add Arturo and also added the allegation that Noemi either knew or should have known that the father of one of the juveniles "had subjected a minor juvenile to inappropriate sexual contact."

In February 2016, Noemi admitted the counts of the amended adjudication petition alleging that she had failed to provide proper parental care, support and/or supervision and that, as a result, her children were at a risk for harm. The court determined that Graciela, Antonio, Zayda, and Arturo were children within the meaning of § 43-247(3)(a).

In July 2016, the court recommended that Noemi undergo a psychological evaluation. Because the State was appealing a ruling in the adjudication order, the court did not order a rehabilitation plan until December. The rehabilitation plan ordered by the court required Noemi to maintain employment and a legal source of income; maintain safe, stable, and suitable housing; participate in family therapy as deemed appropriate by the children's therapists until successfully discharged; participate in parenting training and/or classes; participate in individual therapy until successfully discharged; and participate in supervised visitation.

In February 2017, Noemi gave birth to Fernando who was immediately removed from her care. He has remained in foster care placement throughout the pendency of this case. The State filed a second supplemental adjudication petition adding Fernando and amending the allegations regarding Noemi to allege that Noemi's children lacked proper parental care by reason of her fault or habits because (1) the children had been removed from her custody and remained wards of the State; (2) Noemi was ordered to participate in numerous services to facilitate reunification with her children and her compliance and progress with said services prevented her from reunifyingwith her children; (3) she failed to provide her children with proper parental care, support, and/or supervision; (4) she failed to provide her children with safe, stable, and appropriate housing; and (5) due to these allegations, the children were at risk for harm. In May, the juvenile court found that Fernando was a child within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016).

2. TERMINATION OF PARENTAL RIGHTS

In November 2017, the State filed a motion to terminate Noemi's parental rights to Graciela, Antonio, Zayda, Arturo, and Fernando pursuant to § 43-292(2) and (6); sought termination of Noemi's parental rights to Antonio, Graciela, Zayda, and Arturo pursuant to § 43-292(7); and alleged that termination was in the minor children's best interests. The termination hearing was held over two days in March and April 2018. At trial, exhibits admitted into evidence included several DHHS case plans and court reports; a transcript of prior orders and filings in this case; and documentation of Noemi's conviction and sentencing for harboring two of her children. The State adduced evidence from three witnesses: Nicholas Chadwell, a family permanency specialist; Mary Ellen Christ-Anderson, Zayda's therapist; and Dr. Ryan Sewell, Fernando's otolaryngologist, or ear, nose and throat doctor (ENT). Noemi declined the court's offer to put on any evidence. The guardian ad litem (GAL) then called two witnesses: Dr. Jeremy Toffle, pediatrician, and Amanda Staley, the children's foster mother.

(a) State's Evidence

(i) Nicholas Chadwell

Since August 2016, Chadwell has been assigned as the case worker for Noemi and the children. As a family permanency specialist, he helps families address the reasons that their children were removed and helps them achieve reunification by setting up services, conducting followthrough for services, and building case plans. Chadwell testified:

My understanding of why the case came in is that the family had been participating in noncourt services since approximately 2012. They had a number of previous [Child Protective Services] investigations since 2011; most, if not all, substantiated agencywise -- or agency side. Progress with noncourt services was being met with resistance. There was a lack of follow-through. The home continued to remain dirty and unsanitary and unsafe. There were concerns with supervision. Two of the teenagers in the home were currently on probation and were delinquent at that time.

According to Chadwell, the court became involved in this case in July 2015. Chadwell testified that Noemi was ordered by the court to participate in the following services: maintain safe and stable housing, maintain a legal source of income, participate in individual and family therapy, participate in visits as arranged, and attend all medical appointments for her children.

According to Chadwell, Noemi participated in the following services: a parenting evaluation, completing a parenting class, completing an initial diagnostic interview, providing appropriate housing, attending family team meetings, maintaining employment, participating in visits, and participating in family therapy. Chadwell stated that Noemi's house was generally clean and he had only occasional concerns. These concerns occurred in mid-2017: one time he saw micein Noemi's home and one time he found beer bottles in the room of Noemi's oldest child who was over 18 and who was reported to be underage for drinking.

Chadwell testified that, although Noemi participated in family therapy, she was unsuccessfully discharged from individual therapy after less than two months. Noemi told Chadwell that she stopped individual therapy because she did not feel comfortable with the therapist and she felt the relationship or rapport between them was "very confrontational." Chadwell testified that the therapist was pursuing topics that Noemi did not want to address. Chadwell testified that he did not receive any documentation from the therapist indicating that Noemi had worked on the specific issues that brought her before the court and that this concerned him "[b]ecause the patterns of behavior that led to this issue being brought before the Court today cannot be adequately assessed as to whether they've been remedied or addressed in regards to the safety of the children returning home." Noemi began counseling with another therapist on a limited time basis while DHHS attempted to identify another appropriate therapist that fulfilled Noemi's request that she be provided with a bilingual therapist. This took time due to the limited number of bilingual therapists in Omaha.

Chadwell testified that Noemi reported that she had changed jobs in late summer or early fall 2017 which resulted in her hours becoming less flexible. Noemi reported that she would be reporting to work earlier in the morning, but would be able to get off work earlier and that "[s]he was changing her position so that she would be able to spend more time with her children and be available in the afternoons for any type of appointments or meetings." For the first few months of Noemi's new job, her lack of flexibility during the probationary period resulted in her being unable to attend appointments. However, after a few months,...