In re Interest of Grace H. ( 2015 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
IN RE INTEREST OF GRACE H.
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).
IN RE INTEREST OF GRACE H., A CHILD UNDER 18 YEARS OF AGE.
STATE OF NEBRASKA, APPELLEE,
V.
DEBI B., APPELLANT.
Filed December 1, 2015. No. A-15-349.
Appeal from the Separate Juvenile Court of Lancaster County: REGGIE L. RYDER, Judge.
Reversed and remanded with directions.
Mark T. Bestul, of Legal Aid of Nebraska, for appellant.
Joe Kelly, Lancaster County Attorney, and Maureen Lamski for appellee.
PIRTLE, RIEDMANN, and BISHOP, Judges.
BISHOP, Judge.
Debi B. appeals from the order of the separate juvenile court for Lancaster County
adjudicating her minor child, Grace H., pursuant to Neb. Rev. Stat. § 43-247(3)(a) (Cum. Supp.
2014). Upon our de novo review, we find that the State did not prove the allegations against Debi
by a preponderance of the evidence. We therefore reverse and remand with directions.
BACKGROUND
Debi is the biological mother of Grace, born in December 2014. Zachary H. is Grace’s
biological father. Grace was removed from Debi’s care at the hospital near the time of her birth.
Debi has three older children: Xavier B., born in July 2003; Alijah B., born in October
2008; and Messiah S., born in September 2012. These children have different fathers. Debi is a
party to a separate case in the juvenile court involving her older children, case No. JV12-1242,
-1-
which is not the subject of this current appeal. In that case, her children have been removed from
her care since October 2012. The proceedings in case No. JV12-1242 formed the basis for Grace’s
removal in the instant case.
Proceedings in Case No. JV12-1242.
In October 2012, Xavier, Alijah, and Messiah were removed from Debi’s care and placed
in the legal custody of the Nebraska Department of Health and Human Services (DHHS). The
State filed a petition alleging that the children were within the meaning of § 43-247(3)(a) by reason
of the faults or habits of Debi. The State alleged that Debi and Messiah’s father engaged in
domestic violence in the presence of the children; Debi had not taken appropriate action to protect
the children from exposure to the assaultive behavior; Debi failed to consistently provide the
children with a safe and stable home and/or the proper or necessary care, supervision, and
protection; and due to the actions of Debi or the situation, the children were at risk of harm. Neither
Debi nor Messiah’s father would cooperate with DHHS or the Lincoln Police Department when
custody of Messiah was changed to DHHS; the three were found at a hotel and forceful entry had
to be used in order to obtain physical custody of Messiah, who was one month old at the time.
When police entered the hotel room, Messiah was being held by his father who retreated into the
hotel bathroom and further resisted turning over Messiah. While police tried to get Messiah away
from his father, Debi remained seated on the bed in the hotel room. The allegations against Debi
were amended to include that knowing there was an order for protective custody, she failed to
allow and/or prevented the Lincoln Police Department or DHHS from gaining custody of Messiah;
and that a hair follicle test of Messiah in October tested positive for THC (at the time of Messiah’s
birth in September, his father had admitted to smoking marijuana daily).
In June 2013, the State filed a motion to terminate Debi’s parental rights to Messiah only.
The State also filed a motion to terminate the parental rights of Messiah’s father.
In July 2013, Xavier, Alijah, and Messiah were adjudicated under § 43-247(3)(a), due to
the faults or habits of Debi; Debi pled no contest to the allegations against her. The court continued
the legal custody of Xavier and Messiah with DHHS for placement, treatment, and care in
out-of-home placements; it appears that Messiah was in a non-relative foster placement, and the
record reflects that at some point, Xavier was placed with his maternal grandmother, Joan D. The
court found that Alijah was then currently in the physical custody of her father, that she should
remain in his physical custody, and that he should have legal custody of Alijah as well.
In August 2013, the juvenile court terminated its jurisdiction over Alijah because she was
in the legal and physical custody of her father (via a district court order in a custody proceeding
between him and Debi); the State had no objection.
In October 2013, the juvenile court terminated the parental rights of Messiah’s father; in a
memorandum opinion, In re Interest of Messiah S., No. A-13-1012, 2014 WL 4087887 (Neb. App.
August 19, 2014) (selected for posting to court Web site), this court subsequently affirmed the
termination of the father’s parental rights. However, the juvenile court did not terminate Debi’s
parental rights to Messiah. The court stated that she had “lots of work to do before she could be
safely trusted to parent her children independently,” and that “[b]y her own admission, she has
never dated a man who did not subject her to domestic violence.” The court noted that there were
very few concerns reported during her visits, and the vast majority of the visitation notes were
-2-
positive and showed a good bond between her and her children and a beneficial relationship. The
court noted the DHHS worker’s testimony that she had no concerns with Debi’s parenting skills
and that Debi had been compliant with the many court restrictions. The court was puzzled by
DHHS’s recommendation that the permanency plan for Xavier was reunification with Debi, but
that DHHS recommended Debi’s parental rights to Messiah be terminated. The court found that
the State did not prove the allegations against Debi by clear and convincing evidence, and thus
overruled the motion to terminate Debi’s parental rights to Messiah.
In November 2013, the juvenile court issued a disposition order, stating that the primary
permanency plan was reunification with an alternative plan for adoption. Xavier and Messiah were
to remain in the temporary legal custody of DHHS, and were to remain in an out-of-home
placement. The juvenile court ordered Debi to attend supervised parenting time, participate and
successfully complete a co-dependency group, and attend individual therapy.
An “order of review of disposition” was issued in February 2014, noting that poor progress
had been made to alleviate the causes for out-of-home placement. The court stated that the primary
permanency plan was reunification with an alternative plan for guardianship. Xavier and Messiah
were to remain in the temporary legal custody of DHHS, and were to remain in an out-of-home
placement. Debi’s court-ordered requirements remained the same as set forth in the November
2013 disposition order.
Another “order of review of disposition” was issued in April 2014, noting that fair progress
had been made to alleviate the causes for out-of-home placement. The court stated that the primary
permanency plan was reunification. Xavier and Messiah were to remain in the temporary legal
custody of DHHS, and were to remain in an out-of-home placement. In addition to the previous
court requirements, Debi was also ordered to follow the rules and regulations of her probation
(there is nothing in our record as to why she was on probation or for how long).
In September 2014, the State once again filed a motion to terminate Debi’s parental rights
to Messiah only. A formal hearing on the contested motion was subsequently set for February
2015.
Another “order of review of disposition” was issued in December 2014, one week before
Grace’s birth. (We note that despite the pending motion to terminate Debi’s parental rights to
Messiah, the December 2014 “order of review of disposition” did not distinguish between Xavier
and Messiah and seemed to apply to both children.) In the order of review, the juvenile court noted
that good progress had been made to alleviate the causes for out-of-home placement. The court
stated that the primary permanency plan was reunification, with an alternative plan of adoption.
Xavier and Messiah were to remain in the temporary legal custody of DHHS, and were to remain
in an out-of-home placement. Debi’s court-ordered requirements remained the same as set forth in
the April order.
Debi has always had supervised parenting time in case No. JV12-1242, and had not made
sufficient progress to have Xavier or Messiah placed in her care--we do not know the status of
Debi’s relationship with Alijah as Alijah was no longer under the juvenile court’s jurisdiction. In
the November 2013 disposition order and the April and December 2014 review orders, the juvenile
court found that out-of-home placement should continue as return to the home would “likely result
in serious emotional or physical harm.”
-3-
Proceedings in Current Case.
On December 18, 2014, in a separately docketed juvenile case, case No. JV 14-1040, the
State filed a petition alleging that Grace was a person as defined by § 43-247(3)(a) “by reason of
the following facts”:
[Grace] lacks proper parental care by reason of the fault or habits of her mother,
Debi B[.], said juvenile is in a situation dangerous to life or limb or injurious to her health
or morals, in that:
A. On or about October 30, 2012, an order placing the temporary legal and physical
custody of Messiah S[.], Alijah B[.], and Xavier B[.], siblings of [Grace], was entered in
the above case. However, Debi B[.] failed to cooperate with the order as to Messiah S[.]
and on or about November 5, 2014 [sic], a warrant to take physical custody and to authorize
the Lincoln Police Department to use forceful entry at any time to obtain physical custody
of Messiah was signed. Even though Debi B[.] failed to cooperate with said warrant, the
Lincoln Police Department was able to take physical custody of said child, Messiah. On or
about July 9, 2013, Messiah S[.] and Xavier B[.], siblings of [Grace], were determined to
be a juvenile [sic] as described by Neb. Rev. Stat. § 43-247(3)(a) by reason of the faults or
habits of their mother, Debi B[.], in the case filed at Juv. Doc. 12 Page 1242 and the
juvenile’s [sic] legal custody remained with [DHHS];
B. At the dispositional hearing for Juv. Doc. 12 Page 1242 held on November 7,
2013, the Court continued the temporary legal and physical custody of Messiah S[.] and
Xavier B[.] with [DHHS]. Plans to correct the conditions have been adjudicated and were
adopted by the court on November 7, 2013; however, at the time of this filing those
conditions have not been found to have been corrected;
C. The actions of Debi B[.] and/or the situation places Grace at risk of harm.
(Emphases in original.) On December 19, 2014, the State filed a motion for ex parte temporary
custody of Grace, which was granted by the juvenile court.
On December 23, 2014, Joan D., Grace’s biological grandmother, filed a motion for leave
to intervene; Joan had physical placement of Grace. All parties subsequently stipulated to Joan
being given leave to intervene, the court accepted the stipulation, and Joan was given leave to
intervene.
On December 31, 2014, a hearing, the proceedings of which do not appear in our record,
was held as to the issue of Grace’s temporary custody. On January 7, 2015, the court entered an
order continuing Grace’s temporary legal and physical custody with DHHS. The court ordered that
Debi was to have reasonable rights of supervised visitation with Grace as arranged by DHHS;
there is nothing in our record to indicate the frequency or duration of the visits that occurred.
A contested adjudication hearing was held on March 23 and 24, 2015. At the beginning of
the adjudication hearing, the court noted that the State wished to file a supplemental petition which
had “some allegations” directed towards Grace’s father. A hard copy was provided to all parties,
and all parties indicated that they were willing to waive formal service. The court stated that the
supplemental petition would be filed and set for a docket call/adjudication hearing at a later time.
-4-
Neither the supplemental petition, nor any indication of the allegations to be made against Grace’s
father appear in our record.
As to the adjudication hearing on the original petition, a DHHS caseworker, Debi, and
Debi’s therapist testified. Additionally, exhibit 15, a CD containing the certified transcript of the
pleadings and orders in case No. JV12-1242, was offered and received into evidence. The contents
of such transcript were set forth previously in this opinion.
Laura Cronkhite, a DHHS caseworker, testified that she was assigned to work with Debi
and her children in June, July, or August 2014, in case No. JV12-1242, and remained the family’s
caseworker at the time of the current hearing.
On direct examination, Cronkhite testified that when the State filed its petition regarding
Grace in December 2014, Debi was participating in individual therapy, attending group therapy
with Voices of Hope, working with family support, and having supervised visits with Xavier and
Messiah pursuant to case No. JV12-1242. At the time of Grace’s birth, Cronkhite was concerned
because Debi was still at the supervised visitation level with Xavier and Messiah, and up until
Cronkhite took over as the caseworker in summer 2014, Debi had not made any progress towards
reunification or correcting the adjudicated issues in their case. DHHS was also concerned about
Debi’s “dishonesty in the past”; Cronkhite recalled that the most recent incident of dishonesty was
prior to her involvement in the case. Cronkhite acknowledged that at the time of filing in Grace’s
case, Debi was “looking at a jail sentence” of 90 days, which would make her unavailable to parent
and provide a safe placement for Grace (there is nothing in our record to show why Debi was
“looking at a jail sentence”). Cronkhite testified that DHHS did not believe it was in Grace’s best
interest to place her in Debi’s home because the issues leading to adjudication in case No.
JV12-1242 had not been corrected.
On cross-examination, Cronkhite testified that since she took over the case in summer
2014, Debi had made progress in case No. JV12-1242; Debi had consistently gone to individual
therapy and shown appropriate parenting skills when around her children. Cronkite testified that
according to Debi’s therapist, Debi was doing well and nothing was reported by the therapist that
gave Cronkhite concern. No incidents during Debi’s parenting time with any of her children had
been reported to Cronkhite. And Cronkhite testified that she had “not seen any negative parenting
skills or any concerns.” Cronkhite testified that since the 2012 incident at the hotel, there had not
been any further incidents involving Debi and Messiah’s father.
Cronkhite testified that in December 2014, she had not received any concerns in the
visitation notes in case No. JV12-1242 that would suggest Debi would not be able to appropriately
provide for Grace. Cronkhite testified that she believed Debi had the ability to make appropriate
decisions, but that DHHS felt that due to a lack of progress in case No. JV12-1242, Debi still had
things to work on in order to ensure that she could provide safety for her children.
Cronkhite testified that at the time of filing on December 18, 2014, she did not believe
Grace would have been safe remaining in Debi’s care; she believed Grace was at risk of harm due
to Debi’s past decision making and her lack of progress in individual therapy until “a couple
months ago.” Cronkhite then testified that Debi started making progress in therapy between
February and April 2014. When asked how much time making progress was needed to make
Cronkhite feel comfortable that children would be safe with their parents, Cronkhite responded
“consistent positive visitation notes that we’ve been getting. Consistent, positive notes from the
-5-
therapist and just consistent honesty from [Debi] which the Department I guess does not believe
that has happened.” Cronkhite then acknowledged that she had not ever read any visitation notes
that had been concerning in the past two years. She further acknowledged that there had been
positive reports from Debi’s therapist since around February 2014. And with regards to honesty,
Cronkhite said that the most recent issue occurred before she took over the case. When asked what
harm she felt would happen to Grace if she remained in Debi’s care in December 2014, Cronkhite
said “I don’t think the Department knows specifically what kind of harm would have came [sic]
to the child. We were just ensuring that harm itself did not come to the child.”
Cronkhite testified that Debi had a history of domestic violence with Xavier’s father,
Alijah’s father (Debi was the perpetrator in that relationship), and Messiah’s father. Cronkhite
testified that prior to her involvement in the case, Debi showed up to court once with a black eye
and said she fell; however DHHS believed that Debi had been in an altercation with Grace’s father.
Cronkhite did not know if DHHS investigated the incident, but said no charges were filed.
Cronkhite testified that in December 2014, Debi was not at risk of domestic violence by Grace’s
father.
Debi testified that in December 2014, she had the skills to prevent the events that led to the
2012 hotel incident involving Messiah. Debi testified that she had worked with a therapist on
boundary setting, dealing with her anger in an appropriate way, and making sure she had
appropriate relationships. Debi testified she no longer had co-dependency or anger issues. Debi
testified that at the time of the hearing she had been incarcerated for almost one month and was
scheduled to be released in one more month (there is nothing in the record to show why Debi was
incarcerated). Debi testified that if she had not been incarcerated she would still be in therapy.
Debi testified that if the juvenile court dismissed the allegations against her in Grace’s case, Grace
could stay with Debi’s mother until Debi’s release.
Kera Frederick, a licensed independent mental health practitioner, had been working with
Debi weekly from December 2013 until Debi was incarcerated in February 2015. Frederick
testified that Debi was initially defensive in therapy, but her defensiveness gradually decreased
and Debi began to accept her issues and make necessary changes. Frederick authored two letters
updating DHHS on Debi’s progress; both letters were received into evidence. In her September
2014 letter, Frederick stated that Debi was making “significant progress” in her therapeutic goals
including anger management, mood stability, and identification of healthy versus unhealthy
relationships. The letter stated that they were working on a safety plan for when Messiah’s father
was released from prison. In her November 2014 letter, Frederick stated that Debi had been “very
actively involved in her sessions” and had been “diligently working on creating a safe environment
for herself and her children.” Frederick stated that Debi had “worked hard on building and
following a safety plan related to [Messiah’s father’s] release and the potential threat of further
negative behavior towards her and her children.” At the hearing, Cronkhite testified that Messiah’s
father had been released from prison; appropriate safety measures were put in place; and Debi
actively participated in those safety measures and was able to express insight into what she needed
to do regarding safety. Frederick testified that at the time of Grace’s birth, she believed that Debi
had adequately resolved the issues of domestic violence in her life.
Frederick testified that she and Debi continued to address Debi’s mood and stability--there
had been “lots of anxiety and depression over Grace not being placed with her,” and “a great deal
-6-
of anxiety over relinquishment of -- of her son”--but that she was responding to those stresses in
an appropriate manner. (We note that this is the only reference of relinquishment in our record.
Both Xavier and Messiah had been adjudicated. And there had been a motion to terminate Debi’s
parental rights to Messiah.) Frederick testified that Debi still needs individual therapy and has
things to work on, but Frederick had no concerns about Debi’s ability to parent.
In its 20-page order filed on March 25, 2015, the juvenile court spent 13 pages quoting its
findings from its October 2013 order in case No. JV12-1242 terminating the parental rights of
Messiah’s father, but overruling the motion to terminate Debi’s parental rights to Messiah. The
juvenile court then said:
It is acknowledged that [Debi] has made progress in the case found at JV12-1242
since that time. However, even as of the most recent review hearing, which was held only
days before giving birth to Grace H[.], all of her three older children were still placed
outside of her home. In addition, her visitation with those children was still at the fully
supervised level. In fact, at no time during the years that the JV12-1242 case has been
pending has [Debi] had any of her children returned to her care nor has her level of
visitation ever been less restrictive than fully supervised. She has not corrected the
conditions adjudicated in that case. “A juvenile court need not wait until disaster has
befallen a minor child before the court may acquire jurisdiction; if it is reasonable to
assume that injury will occur absent action by the court, then the court may assume
jurisdiction and act accordingly.” In re Interest of Joshua M., 251 Neb. 614, 558 N[.]W[.]2d
548 (1997). Just as the older children are at risk of harm, so is baby Grace.
The juvenile court found that the allegations in the petition had been proven by a preponderance
of the evidence and adjudicated Grace to be within the meaning of § 43-247(3)(a). The court found
that Grace should remain in the custody of DHHS.
Debi now appeals.
ASSIGNMENT OF ERROR
Debi assigns that the juvenile court erred in determining that Grace was a juvenile within
the meaning of § 43-247(3)(a) and entering an order taking jurisdiction of Grace because the State
did not meet its burden of proof.
STANDARD OF REVIEW
An appellate court reviews juvenile cases de novo on the record and reaches its conclusions
independently of the juvenile court’s findings. In re Interest of Octavio B. et al., 290 Neb. 589,
861 N.W.2d 415 (2015). When the evidence is in conflict, however, an appellate court may give
weight to the fact that the lower court observed the witnesses and accepted one version of the facts
over the other. Id.
ANALYSIS
Under the juvenile code, the juvenile court may take jurisdiction of:
Any juvenile . . . who lacks proper parental care by reason of the fault or habits of
his or her parent, guardian, or custodian; . . . or who is in a situation or engages in an
-7-
occupation, including prostitution, dangerous to life or limb or injurious to the health or
morals of such juvenile . . .
§ 43-247(3)(a). The purpose of the adjudication phase is to protect the interests of the child. In re
Interest of Cornelius K., 280 Neb. 291, 785 N.W.2d 849 (2010). At the adjudication stage, in order
for a juvenile court to assume jurisdiction of a minor child under § 43-247(3)(a), the State must
prove the allegations of the petition by a preponderance of the evidence, and the court’s only
concern is whether the conditions in which the juvenile presently finds himself or herself fit within
the asserted subsection of § 43-247. In re Interest of Cornelius K., supra. While the State need not
prove that the juvenile has actually suffered physical harm, at a minimum, the State must establish
that without intervention, there is a definite risk of future harm. In re Interest of Taeven Z., 19 Neb.
App. 831, 812 N.W.2d 313 (2012).
In its petition, the State’s allegations that Grace was within the meaning of § 43-247(3)(a)
and at risk of harm were all related to case No. JV12-1242: Debi’s failure to cooperate with
DHHS’s efforts to take physical custody of Messiah; the adjudication of Xavier and Messiah by
the reason of the faults or habits of Debi; and Debi’s progress, or lack thereof, in correcting the
conditions leading to the adjudication of Xavier and Messiah. Additionally, in Cronkhite’s
December 2014 affidavit in support of temporary custody of Grace, she recounted the reason for
the October 2012 removal of Debi’s older children, the allegations that they were exposed to
domestic violence, and that Messiah had to be forcefully removed from Debi and his father.
Cronkhite then stated:
[Debi’s] other two children, Messiah and Xavier, remain in the legal custody of
[DHHS] and are at the fully supervised level of visitation and have been since the beginning
of this case. The children have been in out-of-home placements since at least October of
2012 and are doing well.
At this time, [DHHS] is concerned with [Debi’s] ability to make safe choices for
Grace H[.] It would not be in Xavier B[.]’s or Messiah B[.]’s best interest to be returned to
their mother’s home at this point due to [Debi’s] inability to provide safety and appropriate
parenting. Therefore, it would not be in Grace H[.]’s best interest, at this point, to remain
in the custody of [Debi]; [DHHS] cannot maintain safety with the child in the home.
Thus, it is clear the events that occurred in case No. JV12-1242 were the State’s sole basis for
seeking an adjudication of Grace.
The juvenile court therefore relied on case No. JV12-1242 as the basis for concluding that
Grace was at risk of harm. In its order adjudicating Grace and taking jurisdiction, the juvenile court
filled 13 pages quoting its findings from its October 2013 order in case No. JV12-1242. In that
order, the juvenile court terminated the parental rights of Messiah’s father, but overruled the
motion to terminate Debi’s parental rights to Messiah. The court noted that Debi had made progress
in case No. JV12-1242 since that time. However, the court also said that even as of the most recent
review hearing, held only days before Grace’s birth, all of Debi’s older children were still placed
outside of her home, her visits with them remained fully supervised, and Debi had not corrected
the conditions adjudicated in that case. The juvenile court said, “Just as the older children are at
risk of harm, so is baby Grace.” However, on our de novo review, we find that the evidence at the
-8-
adjudication hearing in the current case showed that despite the ongoing proceedings in case No.
JV12-1242, there was no evidence to show that Grace was at risk of harm.
It is true that Debi has been involved in serious domestic violence situations that resulted
in the removal of her three older children in case No. JV12-1242. In the July 2013 adjudication
order in that case, Debi pled no contest to the allegations against her, including that she and
Messiah’s father engaged in domestic violence in the presence of the children; she had not taken
appropriate action to protect the children from exposure to the assaultive behavior; she failed to
consistently provide the children with a safe and stable home and/or the proper or necessary care,
supervision, and protection; and knowing there was an order for protective custody, she failed to
allow and/or prevented the Lincoln Police Department or DHHS from gaining custody of Messiah.
The record reveals that in addition to a history of domestic violence with Messiah’s father,
Debi also had a history of domestic violence with Xavier’s father and Alijah’s father (Debi was
the perpetrator in that relationship). And in the juvenile court’s October 2013 order in case No.
JV12-1242, wherein the court did not terminate Debi’s parental rights to Messiah, the court said
“[b]y her own admission, [Debi] has never dated a man who did not subject her to domestic
violence.”
However, despite Debi’s history of domestic violence in these past relationships, there was
no evidence of any recent or ongoing domestic violence issues affecting Debi at the time Grace
was born. There was no evidence of any recent or ongoing domestic violence issues between Debi
and Xavier’s father. In case No. JV12-1242, Xavier’s father pled no contest to allegations that he
had known for over 7 years that Xavier was his child, and that he had failed to maintain consistent
contact with Xavier, failed to provide for Xavier’s needs, and/or failed to put himself in a position
to assume custody of Xavier. As of the December 2014 order of review, Xavier’s father was still
having supervised visitation with him. There is nothing in our record to show that there was a
pending motion to terminate the parental rights of Xavier’s father. And based on our de novo
review of the record, there was no evidence of any recent or ongoing domestic violence issues
between Xavier’s father and Debi at the time of Grace’s birth in December 2014.
As to Debi’s relationship with Alijah’s father, the record reflects that prior to any juvenile
court filings in case No. JV12-1242, Alijah’s father and Debi were parties to a custody case in
district court. In March 2012, the district court for Lancaster County adopted the parties’
stipulation for joint legal and physical custody of Alijah. In August 2013, the juvenile court
terminated its jurisdiction over Alijah in case No. JV12-1242 because her father had temporarily
been awarded sole legal and physical custody over Alijah in district court; Debi was to have
supervised parenting time as arranged and agreed to by the parties. Accordingly, based on our de
novo review of the record, there were clearly no recent or ongoing domestic violence issues
between Alijah’s father and Debi at the time of Grace’s birth in December 2014.
With regard to Messiah’s father, the juvenile court terminated his parental rights in October
2013, and this court affirmed that decision. The testimony at the adjudication in Grace’s case was
that there had been no incidents between Debi and Messiah’s father since 2012, although he had
been incarcerated for much of the time since 2012. In her November 2014 letter, Debi’s therapist
stated that Debi had been “diligently working on creating a safe environment for herself and her
children.” The therapist stated that Debi had “worked hard on building and following a safety plan
related to [Messiah’s father’s] release and the potential threat of further negative behavior towards
-9-
her and her children.” At the hearing Cronkhite testified that Messiah’s father had been released
from prison; appropriate safety measures were put in place; and Debi actively participated in those
safety measures and was able to express insight into what she needed to do regarding safety. By
all accounts, Debi has put an appropriate safety plan in place. Accordingly, the record reflects that
the domestic violence issues with Messiah’s father have been addressed.
Finally, there was no evidence of any recent or ongoing domestic violence issues between
Grace’s father and Debi. Cronkhite did testify that prior to her involvement in the case, Debi
showed up to court once with a black eye and said she fell (no specific date was given for when
this occurred); DHHS believed that Debi had been in an altercation with Grace’s father. Cronkhite
did not know if DHHS investigated the incident, but said no charges were filed. Significantly,
Cronkhite testified that in December 2014, Debi was not at risk of domestic violence by Grace’s
father. Based on our de novo review of the record, other than some speculation about a black eye
on one occasion at an unspecified point in time, there was no evidence of any domestic violence
issues between Grace’s father and Debi.
To summarize, other than some speculation about Grace’s father giving Debi a black eye
at an unspecified point in time, the most recent incident of domestic violence involving Debi was
the November 2012 hotel incident with Messiah’s father. Accordingly, the record is clear that there
was no evidence of any recent or ongoing domestic violence issues affecting Debi at the time
Grace was born in December 2014.
The State, DHHS, and the juvenile court all believe that Grace should be adjudicated
because Debi had failed to correct the conditions leading to the adjudication of her children in
cases No. JV12-1242, those children remain at a fully supervised level of visitation, and because
one week prior to Grace’s birth, the court found that returning Xavier and Messiah to Debi’s home
“would likely result in serious emotional or physical harm.” However, in its December 2014 order
of review in case No. JV12-1242, the juvenile court did not elaborate as to why returning Xavier
and Messiah would likely result in harm; and any thoughts on the court’s reasoning would be mere
speculation on our part.
The evidence presented at the adjudication hearing in Grace’s case established that Debi
had made progress in addressing the domestic violence issues which formed the basis for
adjudication in case No. JV12-1242. As stated previously, there were no recent or ongoing issues
of domestic violence between Debi and the fathers of Xavier or Alijah. And the domestic violence
issues with Messiah’s father, which were at the center of case No. JV12-1242, have been
addressed. As stated previously, Debi has put an appropriate safety plan into place. Furthermore,
Messiah is not living with Debi, and his father’s parental rights have been terminated. Accordingly,
upon our de novo review of the record, we fail to see how issues regarding Messiah’s father place
Grace at risk of harm. Of significance in this case is that Debi’s therapist testified that at the time
of Grace’s birth, she believed Debi had adequately resolved the issues of domestic violence in her
life. And even Cronkhite testified that Debi was not at risk of domestic violence by Grace’s father.
Having addressed concerns related to domestic violence as a basis for the juvenile court to
find that Grace was at risk of harm, we move on to the other concerns raised at the adjudication
hearing in Grace’s case. At the time of Grace’s birth, Cronkhite was concerned because Debi was
still at the supervised visitation level with Xavier and Messiah, and up until Cronkhite took over
as the caseworker in summer 2014, Debi had not made any progress towards reunification or
- 10 -
correcting the adjudicated issues in their case. However, by all accounts, at the time of Grace’s
birth in December 2014, Debi had been making progress in case No. JV12-1242. She regularly
attended individual therapy and the therapist testified that Debi was making “significant progress”
in her therapeutic goals. Cronkite testified that nothing was reported by the therapist that gave
Cronkhite concern, and she had received positive reports from Debi’s therapist since February
2014. No incidents during Debi’s parenting time with any of her children had been reported to
Cronkhite. And Cronkhite testified that she had “not seen any negative parenting skills or any
concerns.” Cronkhite also said that she had not received any concerns in the visitation notes in
case No. JV12-1242 that would suggest Debi would not be able to appropriately provide for Grace.
Cronkhite further testified that she believed Debi had the ability to make appropriate decisions.
And the therapist had no concerns about Debi’s ability to parent. Furthermore, as noted by Debi’s
counsel at oral argument, Debi cannot appeal the ongoing supervised visitation level in case No.
JV12-1242; so even if the record does not support what DHHS and the court are doing in that case,
Debi cannot do anything about it at this time. See In re Interest of Tayla R., 17 Neb. Ct. App. 595, 767
N.W.2d 127 (2009) (in juvenile cases, where an order from a juvenile court is already in place and
a subsequent order merely extends the time for which the previous order is applicable, the
subsequent order by itself does not affect a substantial right and does not extend the time in which
the original order may be appealed; thus, a dispositional order which merely continues a previous
determination is not an appealable order).
We note that Cronkhite acknowledged that at the time of filing in Grace’s case, Debi was
“looking at a jail sentence” of 90 days, which would make her unavailable to parent and provide a
safe placement for Grace (there is nothing in our record to show why Debi was “looking at a jail
sentence”). Debi testified that at the time of the hearing she had been incarcerated for almost one
month and was scheduled to be released in one more month (again there is nothing in the record
to show why Debi was incarcerated). Debi testified that if the juvenile court dismissed the
allegations against her in Grace’s case, Grace could stay with Debi’s mother (who already had
placement of Grace via DHHS) until Debi’s release. The State failed to put on evidence as to why
Debi was in jail. The State also failed to show that Debi’s jail term would pose a “definite risk of
harm” to Grace, especially considering that Debi had found an appropriate caregiver for Grace
until her release. Given the evidence before us, or rather the lack of evidence, we fail to see how
Debi’s brief jail term supports the adjudication of Grace.
As we have stated previously, it is clear the events that occurred in case No. JV12-1242
were the State’s sole basis for seeking an adjudication of Grace. In its brief, the State cites to In re
Interest of Andrew S., 14 Neb. Ct. App. 739, 749, 714 N.W.2d 762, 769-70 (2006), wherein we held
that “one’s history as a parent is a permanent record and may serve as a basis for adjudication
depending on the circumstances.” In Andrew S., the parents voluntarily relinquished their parental
rights to their two daughters to get a “clean slate” with their unborn son. Prior to the parental
relinquishments, the daughters had been in DHHS’s custody for more than two years and the
parents had not corrected the conditions leading to adjudication because they had failed and/or
refused to complete court ordered requirements. We rejected the notion of a “clean slate” and said
to ignore the fact that the parents chose to relinquish their rights as to their first two children “would
be folly on our part” and would unnecessarily expose the son, who was born a mere three months
later, to a risk of harm. Id. at 749, 714 N.W.2d at 770. We agree that a prior adjudication of older
- 11 -
siblings may be considered, however, this case is distinguishable from our concerns in In re
Interest of Andrew S., supra. In the present matter, Debi has fully participated in her court-ordered
requirements in case No. JV12-1242, and there is no evidence that Grace is at risk of harm.
This case is more akin to In re Interest of Justine J. et al., 286 Neb. 250, 835 N.W.2d 674
(2013). In Justine J., Shawna was the biological mother of four children, two girls and two boys.
The girls lived with Shawna and her husband. The boys lived with their grandparents. The juvenile
court adjudicated all four children after the girls had been exposed to Shawna’s and her husband’s
drug use and domestic violence. Shawna did not appeal the adjudication of the girls, but did appeal
the adjudication of the boys. The Nebraska Supreme Court found that there was no evidence that
the boys were present for Shawna’s and her husband’s drug use or domestic violence and held that,
although there was sufficient evidence to adjudicate the girls, “the State failed to prove by a
preponderance of the evidence an evidentiary nexus between the neglect suffered by [the girls]
and any definite risk of future harm to [the boys].” In re Interest of Justine J. et al., 286 Neb. at
255, 835 N.W.2d at 679. The Nebraska Supreme Court reversed the adjudication order concerning
the boys and remanded the cause with directions to dismiss the petition as to them. In our case, not
only was Grace not present during the domestic violence at issue in case No. JV12-1242, she was
not yet born. And similar to Justine J., the State in our case failed to prove by a preponderance of
the evidence an evidentiary nexus between the neglect suffered by Debi’s older children in case
No. JV12-1242 and any definite risk of future harm to Grace.
The record establishes that Debi had attended individual therapy on a weekly basis since
December 2013. Debi testified that she had worked with a therapist on boundary setting, dealing
with her anger in an appropriate way, and making sure she had appropriate relationships. Debi
testified she no longer had co-dependency or anger issues. Debi’s therapist believed that Debi had
adequately resolved the issues of domestic violence in her life. And Cronkhite testified that Debi
was not at risk of domestic violence by Grace’s father. Cronkhite testified that she believed Debi
had the ability to make appropriate decisions. And the therapist had no concerns about Debi’s
ability to parent. When Cronkhite was asked what harm she felt would happen to Grace if she
remained in Debi’s care, Cronkhite testified that she did not know. Upon our de novo review, we
cannot say that Grace was at a definite risk of harm or that she lacked proper parental care due to
Debi’s fault or habits. We find that the State did not prove the allegations against Debi by a
preponderance of the evidence. Accordingly, we reverse the juvenile court’s adjudication of Grace.
CONCLUSION
For the reasons stated above, we reverse the juvenile court’s adjudication of Grace. We
therefore remand the matter with directions to dismiss the petition.
REVERSED AND REMANDED WITH DIRECTIONS.
- 12 -