State v. Treko M. (In re Interest Tiedyn M.)

IN RE INTEREST OF TIEDYN M., A CHILD UNDER 18 YEARS OF AGE.

STATE OF NEBRASKA, APPELLEE, v. TREKO M., APPELLANT.

No. A-18-808.

NEBRASKA COURT OF APPEALS

March 19, 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).

Appeal from the Separate Juvenile Court of Douglas County: ELIZABETH G. CRNKOVICH, Judge. Affirmed.

Michael Matthews for appellant.

Donald W. Kleine, Douglas County Attorney, Emily Peklo, and David Ceraso, Senior Certified Law Student, for appellee.

PIRTLE, ARTERBURN, and WELCH, Judges.

WELCH, Judge.

I. INTRODUCTION

Treko M. appeals the Douglas County Separate Juvenile Court order terminating his parental rights to his son, Tiedyn M. He contends that the court erred in finding that statutory bases under Neb. Rev. Stat. § 43-292(1), (2), (6), (7), and (9) (Reissue 2016) exist and that termination was in Tiedyn's best interests. For the foregoing reasons, we affirm.

II. STATEMENT OF FACTS

1. BACKGROUND

Tiedyn was born in January 2015. Tiedyn was removed from his mother's care on August 28, 2016, due to allegations of lack of safe and stable housing and use of drugs and/or alcohol which created a risk of harm to Tiedyn. Since Tiedyn's removal from his mother's care, he has continuously been in out-of-home placement. Tiedyn has been diagnosed as developmentally delayed with speech, language, and expressive impairment.

Treko appeared at the mother's first appearance and protective custody hearing held on September 12, 2016. Counsel was appointed to represent Treko, who claimed to be Tiedyn's father. Tiedyn's mother relinquished her parental rights to Tiedyn in June 2018 and is mentioned only as is relevant for purposes of this appeal.

Treko filed a motion for genetic testing to determine Tiedyn's paternity which motion was granted by the court. On December 7, 2016, genetic testing results established that Treko is Tiedyn's biological father. On January 4, 2017, the State filed a supplemental petition alleging that Tiedyn was a child within the meaning of § 43-247(3)(a) (Reissue 2016) due to Treko's fault or habits in that Treko had failed to provide safe and stable housing, had failed to provide appropriate care, support, and supervision, and due to these allegations, Tiedyn was at risk of harm. That same day, the juvenile court issued an ex parte order providing that placement of Tiedyn was to exclude Treko's home.

In early February 2017, the juvenile court allowed the Choctaw Nation of Oklahoma to intervene in this case based on the Tribe's motion alleging that Tiedyn was a member of, or eligible for, membership in the Choctaw Nation. Thereafter, the State filed an amended supplemental petition adding allegations that Tiedyn was enrolled and/or was eligible for enrollment in the Choctaw Nation; that active efforts had been made to provide remedial services and rehabilitative programs designed to prevent the break-up of the family but said efforts had been unsuccessful; and that, continued custody of Tiedyn by Treko was likely to result in serious emotional or physical damage to Tiedyn. Following an adjudication hearing, on April 25, the court found that the allegations contained in the amended supplemental petition were true and found, by clear and convincing evidence, that Tiedyn was a child within the meaning of § 43-247(3)(a).

Following a dispositional hearing held in May 2017, the court ordered Treko to comply with a rehabilitation plan which required Treko to complete an individual diagnostic interview and follow any and all recommendations; complete a chemical dependency test and follow any and all recommendations; refrain from alcohol and nonprescription drugs; submit to random drug testing; participate in supervised visitation with Tiedyn; and provide proof of a legal source of income and housing. Following an October 2017 review hearing, the court added the additional requirements that Treko was to complete relinquishment counseling and maintain monthly contact with the family permanency specialist. Following a February 2018 review hearing, the juvenile court found that "no more reasonable efforts were required for Treko."

The following month, on March 28, 2018, the State moved to terminate Treko's parental rights alleging abandonment under § 43-292(1); substantial and continuous or repeated neglect under § 43-292(2); that active efforts had failed to reunite the family under § 43-292(6); that Tiedyn had been in out of home placement for at least 15 of the last 22 months under § 43-292(7); and that Tiedyn was subjected to aggravated circumstances, specifically abandonment, under § 43-292(9). The motion also alleged that termination was in the best interests of Tiedyn, as well as other allegations necessary for termination under the Nebraska Indian Child Welfare Act (NICWA). The motion further alleged that reasonable efforts were not required because Treko had subjected Tiedyn "to aggravated circumstances including, but not limited to, abandonment, torture, chronic abuse, or sexual abuse."

2. TERMINATION HEARING

The termination hearing was held in July 2018. The State called witnesses including Alisha Lohman, the family permanency specialist; Cynthia Smith, Tiedyn's foster mother; and Shannon Suggs, a social worker with the Choctaw Nation. Treko testified on his own behalf.

(a) State's Witnesses and Evidence

(i) Alisha Lohman

Lohman testified that she took over the case as family permanency specialist on November 28, 2016. After genetic tests proved Treko was Tiedyn's biological father, Lohman attempted to contact Treko both directly and with the Choctaw Nation's assistance. Lohman attempted to contact Treko on December 12, 19, 27, and 30. She further received information that the Indian Child Welfare Act (ICWA) specialist for the Choctaw Nation had spoken with Treko and that Treko had stated he would contact Lohman by the end of the day on December 27, but he failed to do so.

After all of these attempts to contact Treko proved unsuccessful, on January 4, 2017, Lohman authored an affidavit setting forth that Tiedyn was "at risk for harm" in Treko's care and requested that a juvenile court petition be filed on Treko and that placement of Tiedyn exclude Treko's home. Lohman testified that when she finally contacted Treko in January 2017 and was able to schedule a home visit, about an hour later, Treko reported to her that the sheriff had served him with Lohman's January 4 affidavit. Lohman reported that Treko was upset, angry, and expressed that he felt like he could not trust Lohman.

In early January 2017, Lohman referred Treko for supervised visitation. Initially, Treko's visits were "going very well" and there were no safety concerns. The visits took place in the community; Treko provided food and diapers during the visits; Tiedyn was happy to see Treko; and Treko and Tiedyn "seemed to get along very well." Lohman testified that Treko's last visit with Tiedyn occurred on May 13, 2017. After that time, the company in charge of visitations was unable to contact Treko and discharged him due to lack of participation.

Lohman testified that she attempted to maintain monthly contact with Treko by sending multiple letters, sending text messages, leaving voicemail messages, sending a Facebook message, and contacting the Choctaw Nation and Treko's sister to ask if there was any other contact information available for him. She also testified that she made sure that Treko was not incarcerated by checking the Douglas County website. Lohman testified that she made at least one attempt per month to contact Treko, and there were months when she made more than one attempt to contact Treko. Lohman maintained monthly contact with the Choctaw Nation.

Lohman further testified that active efforts were provided to reunify Treko and Tiedyn including distributing the genetic test results quickly; offering services to Treko; providing services to Tiedyn including transportation and daycare; providing a cultural plan in which the foster family is actively trying to teach Tiedyn about his Native American heritage; placing Tiedyn in foster care with a sibling; and when Treko would not engage, she used the telephone, letters, and texts to try to reach him.

Lohman also testified that Treko did not complete the court-ordered initial diagnostic interview; did not complete the relinquishment counseling; did not complete the chemical dependency evaluation; did not obtain and maintain a legal source of income; did not demonstrate that he had obtained and maintained safe, stable, or appropriate housing; and did not maintain monthly contact with her.

Lohman testified that, in her opinion, Treko's parental rights should be terminated due to his: lack of communication with her; failure to attend Tiedyn's doctor's appointments, and/or speech and occupational therapy sessions; failure to make any decisions regarding Tiedyn's education; refusal to engage with the Early Development Network; failure to participate in supervised visits with Tiedyn for a period greater than 1 year; failure to participate in services; and failure to demonstrate the ability to meet Tiedyn's educational, physical, emotional, or medical needs. Additionally, even though he was provided the time and date, Treko failed to attend a surgery performed on Tiedyn in January 2017. Lohman opined that termination of Treko's parental rights was in Tiedyn's best interests.

(ii) Cynthia Smith

Smith testified that she has been Tiedyn's foster mother since August 30, 2016, and he has resided with her continuously since that time. She testified that the last time that a visitation was scheduled was in April 2017, but the visit was canceled by Treko. Smith stated that Tiedyn has not asked about visits with Treko. Smith also testified that Treko has never called to speak with Tiedyn and has never sent gifts, money, or letters to...