State v. Richard E. (In re Kaydence E.)

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In re Interest of Kaydence E., a child under 18 years of age.

State of Nebraska, appellee, v. Richard E., appellant, and Makala F., appellee.

No. A-22-117

Court of Appeals of Nebraska

September 13, 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. Affirmed.

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

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

Moore Riedmann, and Welch, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL (MEMORANDUM WEB OPINION)

RIEDMANN, JUDGE

INTRODUCTION

Richard E. appeals the order of the county court for Scotts Bluff County, sitting as a juvenile court, which terminated his parental rights to his minor child. Upon our de novo review of the record, we find sufficient evidence establishing statutory grounds for termination and that termination is in the best interests of the child. We therefore affirm the juvenile court's order.

BACKGROUND

Richard is the father of Kaydence E., born in October 2017. The family came to the attention of the Nebraska Department of Health and Human Services (DHHS) in October 2020 upon a report of domestic violence between Richard and Kaydence's mother while Kaydence was present, concerns that Richard was using methamphetamine in the home while Kaydence was present, and Richard having a significant history with DHHS and criminal court. More specifically, the report indicated that Richard punched Kaydence's mother in the face, causing a black eye. An investigation also revealed that Kaydence had a split lip and missing tooth at the time, and DHHS determined that the explanation given did not match the injuries.

Kaydence was removed from the home on October 1, 2020, and placed in foster care. That day, the State filed a petition alleging that she was a child within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016) and an ex parte motion for temporary custody, which the juvenile court granted. Shortly thereafter, the State filed an amended petition alleging that Kaydence was at risk of harm because Richard uses controlled substances, assaults Kaydence's mother, and fails to place Kaydence's needs ahead of his own wants. The amended petition further alleged that Kaydence was at risk of harm because her mother, through no fault of her own, is habitually assaulted by Richard. Kaydence's mother entered an admission to the allegations at the adjudication hearing in November, and Kaydence was adjudicated under § 43-247(3)(a).

On October 6, 2020, Richard was sentenced in the district court on charges of possession of a firearm by a prohibited person and resisting arrest. He received a mandatory minimum sentence of 3 years' imprisonment up to a maximum of 3 years. Therefore, Richard was incarcerated throughout the duration of the case and was not part of the juvenile case, and thus, DHHS did not develop a case plan for him or offer him any services. Because he was incarcerated, he was unable to have visits with Kaydence, and the correctional facility where he was housed would not allow video calls. Although a DHHS worker intended to visit Richard on a monthly basis, due to scheduling concerns or issues at the correctional center, no visits actually occurred and it does not appear that DHHS ever made contact with Richard other than sending him one letter.

Early in the case, Richard would call Kaydence's mother when she had visitation with Kaydence so he could talk to Kaydence on the phone. After it appeared that Kaydence's behaviors were negatively affected by talking to Richard, however, DHHS recommended that he no longer call, and thus, he last had any contact with Kaydence in June 2021.

In September 2021, the State filed a motion to terminate Richard's parental rights to Kaydence. The motion alleged that termination was appropriate pursuant to Neb. Rev. Stat. § 43-292(1) and (2) (Reissue 2016) and that termination was in Kaydence's best interests. The State was also seeking to terminate the parental rights of Kaydence's mother, and the majority of the evidence presented at the termination hearing related to her. Because she is not at issue in this appeal, we summarize any evidence as to her only as it relates to Richard.

At the time Kaydence was removed from the home, she was developmentally delayed and behind on her speech, and she exhibited concerning behaviors, notably self-harming behaviors. In January 2021, she began receiving speech therapy and special education services. She worked on skills such as counting, colors, shapes, identifying feelings, and calming herself down when she was upset. Since she began receiving these services, she has "definitely" shown improvement in the sense that she is much more verbal, she can name her feelings and talk with an adult if something is bothering her, and her cognitive skills have significantly improved as well.

To address the behavioral concerns, Kaydence also began attending counseling with a licensed independent mental health provider. At that time, she was exhibiting extreme behaviors including self-harming such as bending her fingers backwards, twisting her feet around, and banging her head on the wall. Kaydence also showed signs that she had not established secure attachment with caregivers, had unmet needs for nurturing, came from an environment with no limits given to her, and had experienced trauma. Therefore, the therapist recommended that she participate in child-parent psychotherapy (CPP), which looks at the experience of a relationship, attachment, and connection as opposed to assessing whether the child has a bond with a particular caregiver. The goal of CPP is to treat the relationship that a child has with caregivers and to help address ruptures in relationships based on histories of trauma. And it provides a way for the child and caregiver to work through the trauma the child has experienced, which usually helps decrease the child's behaviors. Kaydence participated in CPP with her foster mother because she was Kaydence's most stable caregiver at the time.

The therapist explained at the termination hearing that there are three phases to CPP, and Kaydence had just begun the second phase. Kaydence has made progress in stabilizing her behaviors as well as in reacting to separation from a caregiver, organizing her play, responding to moments of nurturing, and gaining an awareness of rules in her foster home. The therapist also observed improvements in Kaydence's cognitive abilities, such as completing a simple shape puzzle, and in her speech. She opined, however, that Kaydence likely needs another 9 to 12 months to get to the final stage of CPP, along with some individual counseling which will be more appropriate as Kaydence gets older.

Richard attended the termination hearing via video from the correctional center, and he testified on his own behalf. He explained that his release date is in June 2023 and acknowledged that that is the earliest date he could potentially reunite with Kaydence. He completed a 6-month substance abuse program while he has been incarcerated and was going to begin a parenting class.

Richard testified that DHHS attempted to set up a visit with him, but the request was denied because of an error in the paperwork. Other than receiving one letter, he had no contact with DHHS throughout the case. And he had no way of personally making contact with Kaydence, particularly after DHHS asked him to stop calling Kaydence's mother during her visitation with Kaydence.

After the conclusion of the termination hearing, the juvenile court entered an order terminating Richard's parental rights to Kaydence. The court determined that clear and convincing evidence supported termination under both of the statutory grounds alleged in the motion. The court also found clear and convincing evidence that termination was in Kaydence's best interests. Richard timely appeals.

ASSIGNMENTS OF ERROR

Richard assigns that the juvenile court erred in finding (1) sufficient evidence to prove statutory grounds for termination and (2) that terminating his parental rights was in the child's best interests.

STANDARD OF REVIEW

Juvenile cases are reviewed de novo on the record, and an appellate court is required to reach a conclusion independent of the juvenile court's findings. In re Interest of Taeson D., 305 Neb. 279, 939 N.W.2d 832 (2020).

ANALYSIS

Statutory Grounds for Termination.

In Nebraska, the grounds for terminating parental rights are codified in § 43-292. That statute contains 11 separate subsections, any one of which can serve as a basis for termination when coupled with evidence that termination is in the best interests of the child. See, § 43-292; In re Interest of Mateo L. et al., 309 Neb. 565, 961 N.W.2d 516 (2021). It is the State's burden to show by clear and convincing evidence both that one of the statutory bases enumerated in § 43-292 exists and that termination is in the child's best interests. In re Interest of Mateo L. et al., supra.

In its order terminating Richard's parental rights to Kaydence the juvenile court found that a basis for termination existed under § 43-292(1) and (2). Section 43-292(2) provides for termination when the parents have substantially and continuously or repeatedly neglected and refused to give the juvenile or a sibling of the juvenile necessary parental care and protection.

Richard argues that although he was incarcerated throughout the entirety of the case, he was essentially ignored by DHHS and that no services were ever provided to him nor was he granted any contact with Kaydence. We...