State v. Robert P. (In re Interest of Sue 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-20-369.

NEBRASKA COURT OF APPEALS

November 17, 2020

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 County Court for Garden County: RANDIN R. ROLAND, Judge. Affirmed.

Gregory A. Rosen for appellant.

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

Steven E. Elmshaeuser, guardian ad litem.

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

MOORE, Judge.

INTRODUCTION

Robert P. appeals from the decision of the county court of Garden County, sitting as a juvenile court, terminating his parental rights to Brittney Sue P. For the following reasons, we affirm.

BACKGROUND

This is the second appeal by Robert in connection with the juvenile case involving Brittney Sue. We previously addressed Robert's appeals from orders placing Brittney Sue out of the parents' home and denying Robert's motion to lift suspension of his visitation and granting the State's motion for relief from providing reasonable efforts. See In re Interest of Brittney Sue P., Nos. A-18-816, A-18-982, 2019 WL 2265203 (Neb. App. May 28, 2019) (selected for posting to court website). The following background is taken, in part, from that opinion.

Brittney Sue was born in December 2017 to Robert and Veronica M., who is developmentally disabled. Veronica is not a party to this appeal 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 2018, 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 (DHHS). 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 an ex parte change of placement, finding that continuation in the parents' home was contrary to Brittney Sue's 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 the home. The court continued visitations with the parents with no modification of the permanency plan. On the same day, Robert filed an objection to the change in placement and removal, requesting a hearing on the matter.

On July 31, 2018, the State filed a motion to terminate the parental rights of Robert and Veronica to Brittney Sue and her older siblings. The State alleged that termination was proper under Neb. Rev. Stat. § 43-292(2), (3), (5), and (6) (Reissue 2016) and that termination would be in Brittney Sue's best interests. The record does not show that Robert was appointed a guardian ad litem at this time.

On August 1, 2018, the court held a hearing on Robert's objection to the change in placement and removal of Brittney Sue. Evidence was adduced as to the numerous concerns regarding the care of Brittney Sue by her parents, including their failure to attend to her health and development needs, leaving Brittney Sue and her siblings in a van unattended on at least two occasions, safety concerns in and around the home, and Robert's failure to make progress on the plan for reunification. This evidence is fully detailed in our previous opinion noted above.

On August 1, 2018, the court entered an order denying Robert's objection to the change in placement. The court found a need for Brittney Sue's removal from the home and ordered visitation to continue as scheduled under the ex parte order. Robert appealed this order, which we dismissed for lack of jurisdiction. See In re Interest of Brittney Sue P, supra.

The juvenile court terminated the parental rights of both parents to Brittney Sue's siblings on August 31, 2018, finding that statutory grounds to terminate Robert's and Veronica's parental rights existed pursuant to § 43-292(2), (3), (5), (6), and (7) and that termination was in the children's best interests. Termination of parental rights regarding Brittney Sue was not pursued at this time due to the pendency of Robert's appeal in Brittney Sue's case noted above. This court affirmed the termination of parental rights to the siblings. See In re Interest of Becka P. et al., 27Neb. App. 489, 933 N.W.2d 873 (2019). This opinion provides further details regarding the history of this family and the deficiencies in Robert's and Veronica's parenting abilities.

Following the termination of parental rights to the siblings, the State filed a motion requesting that the parents' visits with Brittney Sue be suspended. The court suspended Robert's visitation, but allowed Veronica's visitation to continue. Robert moved to lift the suspension of his visitation. The State also filed a motion to relieve the Department from providing reasonable efforts to reunify. A hearing was held on these motions on September 28, 2019, and the court the same day entered an order denying Robert's motion to lift suspension of his visitation and granting the State's motion to relieve the Department of reasonable efforts. We affirmed the juvenile court. See In Re Interest Brittney Sue P., supra.

On September 23, 2019, the State filed a motion to terminate Robert and Veronica's parental rights to Brittney Sue under § 43-292(2), (5), (6), and (7) and alleging that termination was in her best interests. Veronica voluntarily relinquished her parental rights to Brittney Sue on December 5. On January 7, 2020, the State filed an amended motion for the termination of Robert's parental rights to Brittney Sue omitting § 43-292(5). A guardian ad litem was appointed for Robert on January 10, 2020.

On March 10, 2020, the court held a hearing on the State's motion in limine, which sought to preclude Robert from introducing evidence related to the blood lead levels in Brittney Sue's older siblings. The State argued that this evidence was not relevant because the State was not alleging that there was an issue with Brittney Sue's lead levels. Further, counsel for DHHS argued that "none of the kids had a level that was anywhere that needed to be treated" and that "the only person we're addressing is Brittney Sue, and there is no issue with the lead." Robert made an offer of proof that the evidence would show that high blood lead levels in children could result in speech delays, hearing problems, cognitive disabilities, aggression, defiance, screaming, yelling, hitting, and chewing on strange things; behaviors that the State alleged were caused by Robert's neglect. Robert did not include in his offer of proof any evidence showing Brittney Sue had elevated blood lead levels. The juvenile court sustained the motion in limine, disallowing Robert from introducing lead evidence at trial, finding it was not relevant to the termination of Robert's parental rights to Brittney Sue.

Trial was held regarding termination of Robert's parental rights to Brittney Sue on April 20, 2020. The following evidence was presented at trial.

Joan Schwan, the executive clinical director for Saint Francis Ministries, testified that Robert participated in an Intensive Family Preservation (IFP) program, but had not progressed enough to allow Brittney Sue to return to the home. Schwan testified that Robert had actually regressed in the program, due to Brittney Sue's removal, safety threats, Robert's inability to meet Brittney Sue's basic needs, and an incident where Robert became agitated at one of the therapists. Schwan testified that she was concerned with Robert's ability to parent Brittney Sue based on his mental health diagnoses and lack of progress in IFP.

Breanna Carmen, a therapist at Saint Francis, started working with Brittney Sue's family in June 2018. Carmen testified that Robert was unable to accomplish goals in IFP and that there were continued safety concerns with leaving Brittney Sue in Robert's care. Carmen further testified that during her three years working at Saint Francis, she had never had a case with as many safety concerns as in Robert's case. Carmen noted specific safety concerns includingchildren being left in hot cars, Robert's anger toward the children and family support workers, abandoned vehicles in the yard, failure to provide medical care, and burning trash inside the family residence. Carmen testified that she would not feel comfortable placing a child back in Robert's care.

Callie Schilz, a family support worker at Saint Francis Ministries, testified that she was the initial reporter to Child Protective Services after finding Brittney Sue and one of her siblings left in a car while it was hot outside. Schilz also testified that when she talked with Robert about safety concerns, such as abandoned vehicles on the property, burning trash, and having a loaded gun on the premises, Robert told her that he did not see a safety concern.

Brittney Sue's foster parent, testified that Brittney Sue has not left her care since July 2018. At the time of trial, Brittney Sue had been in her care for 19 out of the most recent 22 months.

Garden County Sheriff Michelle Quinn testified that she conducted a search of Robert's residence on June 27, 2018, and that during the search she found two...