State v. Tiffany S. (In re Interest of Aly T.)

26 Neb.App. 612

921 N.W.2d 856

IN RE Interest of ALY T. and Kazlynn T., Children Under 18 Years of Age.

State of Nebraska, Appellee,

v.Tiffany S., Appellant.

No. A-17-1237

Court of Appeals of Nebraska.

Filed November 27, 2018.

Charles M. Bressman, Jr., and Megan E. Lutz-Priefert, of Anderson, Bressman, Hoffman & Jacobs, P.C., L.L.O., Omaha, for appellant.

Donald W. Kleine, Douglas County Attorney, Sarah Schaerrer, and Laura Elise Lemoine, Senior Certified Law Student, for appellee.

Pirtle, Riedmann, and Welch, Judges.

Pirtle, Judge.

INTRODUCTION

Tiffany S. appeals the order of the separate juvenile court of Douglas County terminating her parental rights to her two children Aly T. and Kazlynn T. She contends that she was not given a sufficient amount of time to rehabilitate herself and comply with the case plan, the caseworker was not qualified to give an expert opinion as to the children’s best interests, and the court erred in finding that terminating her parental rights was in the children’s best interests. Following our de novo review of the record, we affirm.

BACKGROUND

Aly, born in January 2010, and Kazlynn, born in June 2008, were initially brought to the attention of the Nebraska Department of Health and Human Services (Department) in October 2016 after being involved in a car accident in which their father was driving while under the influence of alcohol. As a result of the car accident, Aly suffered a traumatic brain injury, from which she has significantly recovered but requires ongoing monitoring. Kazlynn suffered more severe injuries and remains in a vegetative state at a long-term care facility. Aly and Kazlynn were in the custody of their father at the time of the accident. His parental rights have since been terminated. See In re Interest of Jade H. et al. , 25 Neb. App. 678, 911 N.W.2d 276 (2018).

On October 25, 2016, the State filed a petition alleging Aly and Kazlynn were within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016), because they lacked proper parental care by reason of the fault or habits of Tiffany in that Tiffany’s whereabouts were unknown; she failed to provide the juveniles with safe, stable, and/or appropriate housing; she failed to provide proper parental care, support, supervision and/ or protection for the juveniles; and the juveniles were at risk for harm.

On November 18, 2016, the State filed a second supplemental petition alleging Aly and Kazlynn were within the meaning of § 43-247(3)(a), because they lacked proper parental care by reason of the fault or habits of Tiffany in that Tiffany’s use of alcohol and/or controlled substances places the juveniles at risk for harm; she tested positive for methamphetamine on November 17; she failed to provide the juveniles with safe, stable, and/or appropriate housing; she failed to provide the juveniles with proper parental care, support, and/or supervision; and the juveniles were at risk for harm.

An adjudication hearing was held on April 19, 2017, and with the exception of the use of alcohol and/or controlled substances allegation, the court found the allegations in the second supplemental petition were true by a preponderance of the evidence. The court found that Aly and Kazlynn came within the meaning of § 43-247(3)(a) as far as Tiffany was concerned.

A disposition hearing was held on June 6, 2017, at which time the court ordered Tiffany to participate in intensive outpatient treatment, undergo a psychiatric evaluation, participate in medication management, submit to frequent and random drug testing to include testing for alcohol, abstain from the use of all "mood altering chemicals" and illegal drugs, and be allowed reasonable rights of supervised visitation with Aly and Kazlynn.

On August 2, 2017, the State filed a motion to terminate Tiffany’s parental rights. The State alleged that termination of her parental rights was warranted pursuant to Neb. Rev. Stat. § 43-292(2) (Reissue 2016), because she has substantially and continuously or repeatedly neglected and refused to give her children necessary parental care and protection, and pursuant to § 43-292(6), because reasonable efforts to preserve and reunify the family failed to correct the conditions that led to the determination that the children were within the meaning of § 43-247(3)(a). The motion specifically alleged that Tiffany had failed to participate in outpatient treatment, failed to undergo a psychiatric evaluation, failed to submit to urinalysis (UA) testing as requested, and failed to consistently or regularly participate in visitation with Aly and Kazlynn. In addition, the State alleged that termination of Tiffany’s parental rights was in the best interests of the children.

Trial was held on the motion to terminate on October 31, 2017. Tiffany did not appear for the trial, and her attorney had no explanation as to why she was not present.

The State’s first witness was Wendy Stevenson, a child and family permanency specialist with the Department. She had been Aly and Kazlynn’s case manager since October 2016.

Stevenson testified that she had a bachelor’s degree in education, had been a child and family permanency specialist for 7 years, received training on when it is appropriate to recommend termination of parental rights, and received ongoing training from the Department. Stevenson testified that in determining whether termination of parental rights is in a child’s best interests, she considers the following:

[t]he amount of participation a parent is putting forth in a case, whether they’re trying to meet any of the goals that are set forth in the case plan, if they’re seeing their child on a regular basis, the type of interactions they have with their child, what’s in the best interest of the child, and how the child is reacting to what is occurring during visitation....

Stevenson testified about what the court had ordered Tiffany to do to work toward reuniting with her children and about Tiffany’s compliance with those orders. She testified that Tiffany had been ordered to undergo a chemical evaluation and follow through with the recommendations of that evaluation. Tiffany underwent a chemical evaluation in February 2017, but had not followed through with the recommendations which included a psychiatric evaluation and outpatient treatment. In June, the court also ordered her to undergo a psychiatric evaluation and to participate in outpatient treatment. In regard to the psychiatric evaluation, Stevenson stated she set up a "Letter of Agreement" with a behavioral health services agency, which agreement was in effect from March to May, but Tiffany did not contact the agency to set up an appointment. Stevenson also testified that to her knowledge Tiffany had not attended any outpatient sessions. She testified that she sent Tiffany text messages and called her, trying to get her to comply with the psychiatric evaluation and the outpatient treatment, but she did not comply.

Stevenson testified that since November 2016, Tiffany has been ordered to participate in UA testing. Stevenson testified that the first agency doing the testing discharged Tiffany in June 2017 because she was not complying. Tiffany did not complete any UA testing between February 22 and June 6, resulting in 28 missed tests. An exhibit was entered into evidence showing that a total of 77 tests were requested with the first agency and 42 of those were unsuccessful.

In June 2017, Stevenson referred Tiffany to another agency for UA testing. Stevenson testified that the second agency would go to Tiffany’s house to do the UA testing, but that Tiffany never would answer her door. On two occasions, Stevenson had the agency locate Tiffany during her visitation time with Kazlynn. Tiffany "caused [a] scene" both times and refused to do the UA testing on both occasions. Tiffany has indicated to Stevenson that she does not want to do the UA testing and is not going to do it.

As for Tiffany’s visitation with Aly and Kazlynn, Stevenson testified that initially after the car accident, Tiffany could come to see the children in the hospital unsupervised. In mid-November 2016, the visits were changed to supervised visits based on a statement Tiffany made to Stevenson. Visitation has remained supervised since that time.

When the first visitation schedule was established, Tiffany was offered two or three visits per week with Aly and two or three separate visits per week with Kazlynn. Stevenson testified that in August 2017, the number of Tiffany’s visits was reduced because Tiffany was not regularly attending visits. At the time of trial, Tiffany was allowed only one visit per week with each child—a 2-hour visit with Aly and a 1-hour visit with Kazlynn. Beginning in March or April 2017, Tiffany was also required to call and confirm each visit because she was not showing up for visits, which Stevenson stated was "devastat[ing]" for Aly.

Stevenson testified that at a family team meeting on August 29, 2017, she talked with Tiffany about her noncompliance with the court orders and asked what the Department could do to help her. She said that Tiffany would not talk to her about why she had not complied with the court orders.

Stevenson also testified that at the time of the team meeting, Tiffany’s chemical evaluation was "out of date," so she told Tiffany how to contact a behavioral health agency for another chemical evaluation. Tiffany called the agency, but when she reached an answering machine, she became aggravated, said she was not going to leave a message, and hung up. Stevenson testified that after the day of the family team meeting, she sent Tiffany text messages several times asking if she had made contact with the agency about her chemical evaluation. Tiffany responded on one occasion, indicating that she called the agency, but reached the answering machine and did not leave a message.

Stevenson testified that she has attempted to meet with Tiffany on a monthly basis and to have a family team meeting on a monthly basis as...