State v. Tiffany G. (In re Interest of Jeremy U.)

304 Neb. 734

936 N.W.2d 733

IN RE Interest of JEREMY U. et al., children under 18 years of age.

State of Nebraska, appellant and cross-appellee,

v.Tiffany G., appellee and cross-appellant,andBrandon M., appellee.

No. S-19-215.

Supreme Court of Nebraska.

Filed January 3, 2020

Donald W. Kleine, Douglas County Attorney, Anthony M. Hernandez, and Alexander T. Kelly, Senior Certified Law Student, for appellant.

Reginald Young, of Young & Young, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Cassel, J.

I. INTRODUCTION

After a newborn reportedly tested positive for methamphetamine, the State sought to adjudicate the newborn—who had been in a hospital with his mother—and his two siblings—who lived with and received appropriate care from their grandmother—solely on the basis that the children "lack[ed] proper parental care."¹ The juvenile court declined to adjudicate them, finding that the State failed to prove they were at risk of harm. On appeal, our decision regarding the older siblings is driven by the plain meaning of the statute on the State’s chosen ground, its choice not to allege any other ground, and its failure to establish that the mother exposed or threatened to expose them to her drug usage. We affirm the juvenile court’s decision as to them. But because the evidence demonstrated that the newborn lacked proper parental care due to his mother’s fault or habits, we reverse the court’s decision as to him and remand the cause for further proceedings.

II. BACKGROUND

1. ADJUDICATION PETITIONS

Tiffany G. is the biological mother of Savannah M., born in March 2015; Ashton M., born in April 2016; and Jeremy U., born in October 2018. Brandon M. is the biological father of Savannah. The fathers of Ashton and Jeremy are not involved in these proceedings.

Four days after Jeremy’s birth, the State filed a juvenile petition seeking to adjudicate the children under § 43-247(3)(a) on only one ground: due to a lack of proper parental care by reason of Tiffany’s fault or habits. Within the scope of that ground, the petition alleged that the children were at risk for harm due to Tiffany’s use of alcohol or controlled substances, her failure to provide proper parental care, and her failure to provide stable housing.

On the same day, the State filed two motions concerning custody. One was an ex parte motion for immediate custody of Jeremy. The other was a motion for protective custody of Savannah and Ashton. Both motions sought an order placing the temporary care and custody of the children with the Nebraska Department of Health and Human Services (DHHS) with placement to exclude Tiffany’s home. The court granted the State’s motion with respect to Jeremy, stating that Jeremy’s urine drug screen was positive for methamphetamine and that Tiffany admitted recent use of the drug. The court later ordered that Savannah and Ashton be placed in the temporary custody of DHHS, with placement to exclude Tiffany’s home.

In January 2019, the State filed a supplemental petition. It alleged that Savannah lacked proper care by reason of the fault or habits of Brandon. Specifically, it alleged that Brandon failed to provide proper parental care and safe housing, which put Savannah at risk for harm. The court granted the State’s motion for an ex parte order for immediate temporary custody of Savannah.

2. ADJUDICATION HEARING

The court heard testimony from two witnesses during an adjudication hearing. Neither parent testified.

Kelci Christensen, a child and family services specialist with DHHS until November 2018, conducted an initial assessment for the family. The intake that she received informed her that Tiffany was in the hospital for Jeremy’s birth and that there were allegations Tiffany tested positive for methamphetamine. When Christensen met with Tiffany, Tiffany reported she was "couch surfing at the time, didn't have a stable place to live."

Christensen testified that Tiffany admitted using methamphetamine almost daily for the past 13 years. She also used marijuana "pretty often," but not as frequently as methamphetamine. According to Christensen, Tiffany said she used methamphetamine within the week of Jeremy’s birth and she believed Jeremy would test positive for the drug. Tiffany had sought treatment, but had not successfully completed it.

Christensen testified that the effects of methamphetamine make it more difficult for an individual to properly "parent" his or her children. Parents under the influence of methamphetamine often have difficulty making appropriate decisions. Christensen would categorize children under age 3—which these children were—as vulnerable children in their parent’s custody if the parent was under the influence of methamphetamine. She testified that a child in the presence of a parent who was under the influence of methamphetamine would be unsafe.

When Christensen conducted her investigation, Tiffany had legal custody of the children, but not physical custody. Savannah and Ashton were residing with Tiffany’s mother, Tina G. Christensen testified that Savannah and Ashton had appropriate clothing, had a bedroom to sleep in at Tina’s house, and appeared to be in good health. Jeremy was initially placed with Carolina O., a friend of the family, but he was eventually placed with Tina.

While at the hospital, Christensen drafted a safety plan. As part of the safety plan, Tiffany agreed to participate in domestic violence classes and to comply with any recommendations of a drug and alcohol evaluation. Tiffany arranged to have someone else care for her children. According to the plan, Tina would care for Savannah and Ashton and Jeremy would stay with Carolina. Tiffany, Tina, and Carolina all signed the safety plan. Christensen observed Tiffany sign a temporary delegation of parental authority form as to Savannah and Ashton and one regarding Jeremy. According to Christensen, a parent’s signing a temporary delegation of parental authority form shows that the parent is "willing to at least try to keep that child safe and out of risk of harm." Neither the safety plan nor the delegation forms are in our record.

Despite the execution of those forms, the children were removed and placed in the temporary care and custody of DHHS. Christensen did not agree with the removal of the children, because DHHS’ policy is to first offer a parent a safety plan and provide an opportunity to appropriately care for a child without court involvement. Specifically, she did not agree with Jeremy’s removal because Tiffany was not given a chance to enact any of the measures agreed upon in the safety plan.

According to Christensen, DHHS determined that the allegations of the petition were unfounded. She explained that it was not child abuse or neglect for Tiffany to realize that she "could not care for her children physically because of her drug use and plac[e] them with appropriate parents who could make sure that ... her children received everything that they needed in order to be happy and healthy." And due to the safety plan, Christensen did not believe the children were at risk for immediate harm. Christensen acknowledged that the temporary delegation of parental powers could be revoked by a parent at any time. But she testified that as long as a parent who is constantly under the influence of methamphetamine has continued to leave the child with an appropriate caregiver, that is not a risk for harm.

Maranda Buckley, an employee of PromiseShip, provided testimony relevant to Brandon. Her duties with PromiseShip included meeting with families, assessing ongoing safety risks, and "looking out for the best interests of the children and their well-being." Buckley opined that Savannah would be at risk for harm in Brandon’s custody due to his not having a house or income and his inability to meet Savannah’s needs. Brandon was in jail when Buckley met with him on January 7, 2019, but he was released on January 16. Buckley had not spoken with Brandon since his release, testifying that he "ha[d] not been engaging" and would not return her telephone calls or respond to her text messages. According to Buckley, Brandon had not attempted to visit or call Savannah.

3. JUVENILE COURT'S ORDER

The court found that the State proved some of the allegations of the petition and supplemental petition. It found to be true that Tiffany failed to provide the juveniles with proper parental care, support, supervision, and/or protection and that she failed to provide them with safe, stable housing. According to the order, the evidence showed that at the time of removal, Savannah and Ashton had not been living with Tiffany and that Tiffany "had not seen them for at least two years." With respect to Brandon, the court found that the State proved he failed to provide Savannah with proper parental care and safe housing.

The court dismissed the petition due to insufficient evidence that the juveniles were at risk for harm due to Tiffany’s use of controlled substances, failure to provide proper parental care, and failure to provide stable housing. The court likewise dismissed the allegation of the supplemental petition that Brandon’s failures put Savannah at risk for harm.

The court found that In re Interest of Justine J. et al.² was "controlling." It determined that the State had not shown any risk of harm to Savannah and Ashton, noting that Christensen did not believe the children were at risk of harm. With regard to Jeremy, the court stated that Christensen’s testimony "showed that there was not a risk of harm ... because [Tiffany] had made a rational decision to find a suitable care taker due to her continued methamphetamine addiction." According to the court, Tiffany "had exhibited this rational thinking on at least three occasions, coinciding with her three children." The court recognized that Christensen testified the children would be at a risk of harm if in Tiffany’s physical custody, but not at a risk in her legal custody. Due to...