State v. Robert P. (In re Interest Brittney P.)

IN RE INTEREST OF BRITTNEY SUE P., A CHILD UNDER 18 YEARS OF AGE.

STATE OF NEBRASKA, APPELLEE, v. ROBERT P., APPELLANT.

No. A-18-816

No. A-18-982.

NEBRASKA COURT OF APPEALS

May 28, 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).

Appeals from the County Court for Garden County: RANDIN R. ROLAND, Judge. Appeal in No. A-18-816 dismissed. Judgment in No. A-18-982 affirmed.

Robert S. Harvoy for appellant.

Philip E. Pierce, Garden County Attorney, for appellee.

MOORE, Chief Judge, and PIRTLE and BISHOP, Judges.

MOORE, Chief Judge.

INTRODUCTION

These consolidated appeals arise from the decisions of the county court for Garden County, sitting as a juvenile court, regarding Robert P.'s access to his daughter, Brittney Sue P. In case No. A-18-816, Robert appeals from the juvenile court's order directing that Brittney Sue be placed out of Robert's home. We dismiss this appeal for lack of jurisdiction. In case No. A-18-982, Robert appeals from the juvenile court's order denying Robert's motion to lift the suspension of his visitation and granting the State's motion for relief from providing reasonable efforts. We affirm that order.

BACKGROUND

Brittney Sue was born in December 2017 to Robert and Veronica M., who is developmentally disabled. Veronica is not a party to these appeals and we discuss her involvement only as necessary to address Robert's assigned errors. In 2016, Brittney Sue's four siblings were removed from Robert and Veronica's care due to "chronic neglect." Because of the ongoing case with her siblings, a juvenile petition was filed shortly after Brittney Sue's birth, and she was removed from Robert and Veronica's care. Brittney Sue remained in out-of-home care until she was adjudicated in January, at which time she was returned to Robert and Veronica's home.

On February 1, 2018, the juvenile court held a permanency and review hearing. The court ordered Brittney Sue to remain in Robert and Veronica's home, supervised by the Nebraska Department of Health and Human Services (Department). The court's permanency goal was set as reunification by June 1, 2018, with an alternate plan of adoption. The court ordered that Brittney Sue become current on all immunizations and directed Robert and Veronica to sign releases for all medical records regarding a medical exam on January 31.

On July 17, 2018, the juvenile court entered an order for ex parte change of placement upon the request of the county attorney. The court found that continuation of Brittney Sue in her home would be contrary to her welfare, that reasonable efforts had been made before placement to prevent or eliminate the need for removal, and that it was in Brittney Sue's best interests to be placed out of home. Although the motion is not in the record, Robert filed a motion for a hearing on the out-of-home placement the same day.

The State filed a motion to terminate Robert and Veronica's parental rights; however, we do not have the State's motion, or any evidence of the allegations it contained, in our record.

On August 1, 2018, the juvenile court held a hearing on Robert's motion objecting to the change of placement and removal of Brittney Sue. Several witnesses testified at the hearing and various exhibits were received including photographs of the family home and of Robert's van, Brittney Sue's immunization schedule, and reports from a reunification specialist and visitation workers.

Dennis O'Brien testified that he and Chantelle Reicks are Brittney Sue's caseworkers with the Department. He has been involved in Brittney Sue's case since her birth. When the Department became involved in Brittney Sue's siblings' case, they were "filthy." They had matted hair and serious upper respiratory infections. As a condition for Brittney Sue's return to her parents' home, the Department scheduled medical appointments for her twice each week. Further, unannounced visits from the Department and other providers were put in place to ensure Brittney Sue's safety. Whenever O'Brien tried to enter Robert and Veronica's home for a safety check, Robert would initially deny access to the home. Eventually, Robert would allow O'Brien inside. O'Brien admitted that he and Robert do not get along well. The previous caseworkers for Robert and Veronica's children have had difficulty with Robert, and two of them took out protection orders against Robert. Similarly, CASA volunteers struggled in their interactions with Robert.

Robert and Veronica received family support and participated in an intensive family reunification program that provides workers to enter the family home and address causes of removal. At the time of the hearing, Robert and Veronica had completed 6 weeks of the reunification program. Robert and Veronica declined to have Brittney Sue developmentallyevaluated through the public school system because they were already receiving services. Brittney Sue had not had all of her court-ordered immunizations when she was removed from Robert and Veronica's care in July. Robert and Veronica did not follow through with the service providers' suggestions. However, since Brittney Sue's birth, Robert and Veronica had not missed visits with their other children.

Robert and Veronica left their children in a van unattended on three separate occasions. On the first occasion, a family skill builder observed Veronica leave Brittney Sue and her sister in the van while the outside temperature was 97 degrees. The next day, family support workers witnessed Veronica leave Brittney Sue sleeping in the van. The day after that, CASA workers saw Brittney Sue's two brothers unattended in the van while the keys were in the ignition. The boys were running the windows up and down and playing with the music. Neither Robert nor Veronica seemed to understand why it would be a problem to leave an infant in a hot vehicle.

Robert and Veronica's property contained multiple, inoperable vehicles. The children constantly played in these vehicles while unattended. The children had access to various farm animals, and rattlesnakes had been sighted on the property. O'Brien and Reicks discovered two guns in one of the vehicles in full reach of the children. They also discovered a long rifle in a case in the house. That rifle had a round in the chamber and the safety was not on. The property also contained unlocked, unsafe appliances and exposed wires that could injure the children. Robert allowed the children, three at a time, to ride his tractor while the sickle bar mower was attached. The children were unrestrained on the mower and could have fallen off and become injured by the mower.

The basement of Robert and Veronica's house had a leaking pipe. As a result, the basement contained slime, mold, and mildew. The slime caused the basement to be slippery, and nothing prevented the children from entering the basement. The basement's mold posed possible health complications for the children as each of them had tested positive for mold allergies. In the winter, the family burned their trash in a wood-burning stove in the basement, which was a health hazard. The children's drawers contained shredded materials and mice feces, which could cause an infant to become seriously ill if ingested.

Considering Robert and Veronica's lack of cooperation and the living conditions they provided, the Department requested Brittney Sue be removed from Robert and Veronica's care. When Brittney Sue was taken into the Department's custody in July 2018, her clothes were soaked with urine and she had a serious yeast rash.

Reicks testified that she became involved in Brittney Sue's case in May 2018. She investigated Robert and Veronica's house in June 2018. Although the house was generally organized, it had a "musty" or "mildewy" odor, and there was a layer of dust on most items inside it. Reicks and O'Brien had spoken with Robert and Veronica multiple times about the safety changes that needed to be made in their home. Robert and Veronica were not receptive to concerns raised during meetings about Brittney Sue. Robert would become angry and make accusations against the Department or O'Brien. As a result of Robert's behavior, the team meetings sometimes ended early. When Reicks spoke with Brittney Sue's medical provider, she learned Brittney Sue had received only 1 of her 25 scheduled immunizations. Brittney Sue received one other vaccination before she was removed from Robert and Veronica's home.

Breanna Carman, a therapist with Saint Francis Community Services, testified that she met with Robert and Veronica once or twice a week as part of the reunification program. The program set seven detailed goals for Robert and Veronica's family. Weekly reports were made regarding the parents' progress.

Robert and Veronica's progress during the first 3 weeks was slower than expected. Robert did not sign the paperwork required for the program until the program's third week. During that week, Carman recognized safety concerns about the children playing on an unanchored swing set and with a rototiller. She was also concerned about a pile of wooden shingles with staples in them that remained on the property. The program's skill builder began working with Robert and Veronica during the third week. The fourth week proceeded without significant progress. In the fifth week, Robert stated that he did not agree with the program's parenting techniques, but he would "try."

The sixth week was the last week that Robert and Veronica participated in the program. During that week, support workers discovered the children unattended in a van. Robert and Veronica met with Carman at Robert's attorney's office. Because the other children were sick, only Brittney Sue accompanied Robert and Veronica. Brittney Sue cried throughout Carman's visit because of a wet diaper. Although Carman pointed out the diaper to Robert...