State v. Patricia B. (In re Interest of LeVanta S.,)

295 Neb. 151

887 N.W.2d 502

In re Interest of LeVanta S., a child under 18 years of age.

State of Nebraska, appellee and cross-appellee,

v.Patricia B., appellant, and Calvin S., appellee and cross-appellant.

In re Interest of LeRonn S., a child under 18 years of age.

State of Nebraska, appellee and cross-appellee,

v.Patricia B., appellant, and Calvin S., appellee and cross-appellant.

Nos. S-15-909

S-15-910.

Supreme Court of Nebraska.

Filed December 2, 2016

Regina T. Makaitis for appellant.

Karen C. Hicks, of Hicks Law, P.C., L.L.O., for appellee Calvin S.

Donald W. Kleine, Douglas County Attorney, and Jennifer C. Clark for appellee State of Nebraska.

Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

I. NATURE OF CASE

Wright, J.

In 2013, the separate juvenile court of Douglas County adjudicated twin brothers LeVanta S. and LeRonn S. under Neb. Rev. Stat. § 43–247(3)(c) (Reissue 2008) as “mentally ill and dangerous.” Both brothers were eventually placed in out-of-home care. In September 2015, the juvenile court entered an order changing the brothers' permanency objective from family reunification to guardianship. The mother (appellant, Patricia B.) and the father (cross-appellant, Calvin S.) separately appeal from this order in each brother's case. The appeals from the two cases have been consolidated.

II. FACTS

1. FAMILY BACKGROUND

At a very young age, LeVanta and LeRonn were adopted by Patricia and Calvin, their parents. The twin brothers have developmental disabilities due to fetal alcohol syndrome. Both have IQ's in the “Extremely Low Range” and meet the criteria for “Mild Mental Retardation.” They were 15 years old when their cases began in January 2013, and are now 18 years old.

The parents were separated before January 2013 and have since divorced. After the parents' separation, one brother lived with each parent. From the time the children were 5 years old. the parents have sought professional help in dealing with the brothers' behaviors.

2. PETITION AND FIRST HEARING

In January 2013, the brothers were brought before the juvenile court for criminal delinquency charges of trespass and truancy. These charges were dropped when it was determined that they were not mentally competent to be tried. The county attorney then filed petitions alleging the brothers were “mentally ill and dangerous” within § 43–247(3)(c). The State moved for temporary custody with the Department of Health and Human Services (DHHS), with placement to include the parental homes.

3. ADJUDICATION AND DISPOSITION

An adjudication hearing was held April 3, 2013, and the brothers and the mother and father were present. Each brother had appointed counsel, but the parents were not represented by counsel. The family permanency specialist and the mother both testified. Examples of the brothers' poor judgment, fighting, anger problems, and other violent behavior were offered. Testimony was also offered that LeRonn would at times refuse to take his medications. The court found by clear and convincing evidence that the brothers were within the definition of § 43–247(3)(c). Temporary custody was placed with DHHS. The parents did not appeal the adjudication.

A disposition hearing was held May 21, 2013, but the parents were not present and were not represented by counsel. At the beginning of the hearing, there was some discussion whether the parents had been informed of the hearing date and time. The court ordered that the brothers stay at home with their parents, but that applications for out-of-home placements should be made. The court ordered in-home developmental disability services to be provided, with both parents to participate. All visits by the parents were to be supervised, and they were to participate in therapy and complete a psychiatric evaluation.

The court found that reasonable efforts—including evaluations, family support, and case management—had been made to return each brother to the parents' custody, but that it was in their best interests to remain in the temporary custody of DHHS.

4. ADDITIONAL HEARINGS

The juvenile court continued to have additional review hearings. The family permanency objective was stated as “family preservation” or “reunification,” but applications for out-of-home placements were to be made.

In July 2013, LeRonn threw a mailbox through the front window of his father's house. He was moved from his father's house to an “extended family home” for individuals with developmental disabilities. Later that month, the court appointed counsel to represent the parents.

In June 2014, when LeVanta's behavior regressed, the court ordered that he be placed in out-of-home care. In July, he was placed in a group home. The court sustained an ex parte motion requiring supervision of all visits between the parents and the boys, because the mother reportedly took the brothers on a visit together, in violation of a court order, and the father and LeRonn had gotten into an argument.

At a December 18, 2014, review hearing, the judge questioned whether an adjudication under § 43–247(3)(c) was the right procedure in this case or whether subsection (3)(a) was more appropriate. The court said:

Without a doubt, [these boys] have their own set of challenges. There is no question about that. That does not make them delinquent, and it does not make them mentally ill and dangerous.

They have a mother and a father who are good, kind people ... who love these boys dearly. But I'm—I find at every hearing that what is at the heart of these challenges is an inability to parent these boys based on their unique needs.

No new petition was filed alleging the parents' “inability to parent these boys based on their unique needs.”

Upon the recommendation of DHHS, the court ordered that LeVanta be placed in the same foster home as LeRonn so they could work on building their relationship and interacting appropriately without fighting. The orders following the hearing stated that the permanency objective was “reunification,” with temporary custody remaining with DHHS. The parents were ordered to “participate with the family support worker until successful discharge” in order to learn to better teach the brothers healthy coping skills and ways to interact with each other.

At another review hearing on March 19, 2015, it was reported that the brothers were doing well in their placements and in school. The court ordered the parents to participate in family support services to work on parenting the brothers and to participate in individual and family therapy.

Because a finding of a lack of reasonable efforts “can impact families by shutting off funding for services” and because many of the previous problems had been corrected, the court declined to find a lack of reasonable efforts on the part of DHHS. The court found reasonable efforts had been made by DHHS.

5. CHANGE OF PERMANENCY OBJECTIVE

At the review hearing on September 10, 2015, DHHS recommended continuing to work on the permanency plan of reunification, while making concurrent permanency plans of a guardianship. The parents opposed the recommendation of a guardianship, and the mother's request for a continuance and an evidentiary hearing on the issue was denied. The attorneys for the brothers requested the court to close the case based on the adjudication under § 43–247(3)(c), because the brothers were doing very well.

The court denied the requests to close the case and adopted the permanency objective of guardianship, stating:

So indeed, young man and your brother, too, you are doing superbly. I could not be more proud. And I wish that I could grant your request today. But it is not because of your behavior that I cannot.

At the same time, [the parents]—I think I've said this before—are loving people, are good people, are kind people, and they love their sons and their sons love them. But it has been clear at every hearing that they are unable to place themselves in a position of parenting these children. And that was clear even when early on the specific services to the kids were confusing.

I'm not letting [DHHS] off the hook. I disagree with—that someone has a mindset that the only solution is a guardianship. I believe the evidence supports that the possibility of reunification, given the almost three years that we have been before the Court, is not likely to happen in the minority of these children before their 19th birthday. And it is those combination of things in the evidence that leads me to conclude that we—a guardianship is the most appropriate permanency plan for these two young men. But I want to know for sure that they will stay in their present placement.

That is the order of the Court. We are adjourned. Thank you.

The written order stated that the “the primary permanency objective is a guardianship.” It did not state that this permanency objective was concurrent with an objective of reunification.

The parents were ordered to continue in individual and family therapy. For the first time, the father was ordered to participate in urinalysis testing and to complete a chemical dependency evaluation. The mother was ordered to allow the family permanency specialist to conduct drop-in, walk-through inspections of her home in order to have visits there.

Both parents separately appealed from these orders.

III. ASSIGNMENTS OF ERROR

The mother and father raise the following issues: whether the juvenile court erred by issuing an order changing the permanency objective to guardianship when the juveniles had been adjudicated only under § 43–247(3)(c) and whether the juvenile court violated the parents' constitutional right to due process. The mother claims the court erred in denying her request for an evidentiary hearing on the issue of changing the permanency objective to guardianship.

IV. STANDARD OF REVIEW

A jurisdictional issue that does not involve a factual dispute presents a question of law.¹ An appellate court reviews juvenile cases de novo on the record and reaches its conclusions independently of ...