In re Interest of Joshua C. & Brenden C. ( 2013 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
IN RE INTEREST OF JOSHUA C. & BRENDEN C.
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 JOSHUA C. AND BRENDEN C., CHILDREN UNDER 18 YEARS OF AGE.
STATE OF NEBRASKA, APPELLEE,
V.
AMBER C., APPELLANT, AND BARBARA C. AND RAY C., INTERVENORS-APPELLEES.
Filed November 5, 2013. No. A-13-296.
Appeal from the Separate Juvenile Court of Douglas County: DOUGLAS F. JOHNSON,
Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, and Joy M. Suder for appellant.
Donald W. Kleine, Douglas County Attorney, Amy Schuchman, Jennifer C. Clark, and
Mary C. Stiles, Senior Certified Law Student, for appellee.
Lynnette Z. Boyle, of Tietjen, Simon & Boyle, guardian ad litem.
MOORE, PIRTLE, and BISHOP, Judges.
MOORE, Judge.
Amber C. appeals from an order of the Douglas County Separate Juvenile Court changing
the permanency plan objective for her two children from reunification to adoption and
determining that no further reasonable efforts toward reunification are necessary. For the reasons
that follow, we conclude that the juvenile court did not err when concluding that reasonable
efforts toward reunification had been made and that further reasonable efforts were no longer
necessary. We also conclude that the juvenile court did not err when it changed the permanency
objective from reunification to adoption. We affirm.
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FACTUAL BACKGROUND
Amber is the mother of Brenden C., born in February 2005, and Joshua C., born in
December 2006. On April 26, 2010, Brenden and Joshua were removed from Amber’s care after
she tested positive for methamphetamines and benzodiazepines. On April 27, the State filed a
petition alleging that Brenden and Joshua lacked proper parental care due to Amber’s faults and
habits and were children within the purview of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2008).
The State asserted that Amber’s drug use exposed the boys to harm. The State also filed a motion
for temporary custody of Brenden and Joshua. On the same day, the juvenile court entered an
order for immediate custody, placing the children with the Nebraska Department of Health and
Human Services (DHHS).
Since their removal from Amber’s care, Brenden and Joshua have been continuously
placed with their paternal grandparents, Barbara C. and Ray C., who intervened in the matter. At
the July 30, 2010, adjudication hearing, the juvenile court found that Brenden and Joshua were
children within the meaning of § 43-247(3)(a). Following the hearing, the boys remained in
foster care with their grandparents.
The State filed supplemental petitions relating to Brenden and Joshua’s father, Bryan C.,
and the children were adjudicated on these petitions. We have not included further information
about Bryan as he is not a party to this appeal, except as it relates to Amber.
Following the adjudication hearing, the juvenile court held a number of review and
permanency planning hearings. After the initial disposition and permanency planning hearings,
the court adopted a permanency plan of reunification with a concurrent plan of adoption. The
court noted that these initial permanency plans were due to Amber’s lack of initial participation
in services. When Amber began to utilize the services, the court maintained reunification as the
sole permanency plan. After a May 10, 2012, hearing, the reunification plan was altered to
include a concurrent plan of adoption along with the reunification goal.
Amber has been offered a variety of services during the pendency of this case. These
services have included supervised visitation, transportation, psychological and psychiatric
evaluations, child care, medical and dental care, family support, individual therapy, a chemical
dependency evaluation, chemical dependency treatment, drug screening, and bus passes. Initial
case reports indicated that Amber had been making progress with these services and regularly
attended visits with her children. Because of this progress, Amber’s visits with Brenden and
Joshua became semisupervised.
On November 6, 2012, Brenden and Joshua’s guardian ad litem filed a motion asking for
the rescheduling of a review and permanency planning hearing as an evidentiary hearing. The
evidentiary hearing was held on November 8, 2012, and on January 14, February 15, and March
14, 2013. During the March 14 hearing, Jacquelyn Thirlkel, the current case manager, testified to
her experiences working with Amber and Bryan. Thirlkel has worked with Amber and Bryan on
two separate occasions--in 2011 and again beginning on December 1, 2012.
During her testimony, Thirlkel expressed her concerns about the status of the case. After
she resumed control of the case, she was concerned about whether services were being provided
to the family due to a lack of documentation in the case file. Thirlkel attempted to schedule a
home visit with Amber and Bryan, but they were unwilling to schedule a visit. Amber and Bryan
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also canceled a scheduled home visit just before it was to occur. In general, Thirlkel reported that
she has great difficulty contacting Amber. Thirlkel also testified to substantial difficulties in
obtaining drug tests and signed releases for medical records from Amber, which we discuss in
more detail below.
Thirlkel testified to her personal meetings with Brenden and Joshua. The boys reported
that Amber allowed Bryan to be present at her visits despite having been ordered to have
separate visits. These violations caused Thirlkel to recommend that Amber’s visitation revert
back to supervised visits. The boys also informed her that Amber and Bryan would argue with
each other and use vulgar language during the visits. Brenden also reported that Amber had hit
him on the back during the semisupervised visits when she became angry with him. Thirlkel
testified that in February 2013, Amber became increasingly inconsistent in attending these visits.
On the final date of the hearing, March 14, 2013, Thirlkel reported that Amber had
revealed that she had relapsed to drug use on three occasions. However, Amber would not reveal
which substances she had taken. Thirlkel also testified that Amber was no longer attending
Alcoholics Anonymous or Narcotics Anonymous meetings, that Amber and Bryan were not
attending couples counseling, and that Amber and Bryan were in the process of moving from
their apartment without any definite subsequent housing. Thirlkel’s case plan and court report
were admitted as evidence. The case plan recommended reunification as the permanency
objective and set goals for Amber.
Following the hearing, the juvenile court entered an order on March 15, 2013. The court
determined that reasonable efforts toward reunification had been made and that further
reasonable efforts were not appropriate because of the length of time the case had been pending
and the children’s need for permanency. The court also changed the permanency objective from
reunification to adoption and ordered that Amber and Bryan be offered relinquishment
counseling. Amber appeals from this order.
ASSIGNMENTS OF ERROR
Amber assigns that the juvenile court erred by finding (1) that the State had made
reasonable efforts to reunify her with Brenden and Joshua, and further reasonable efforts were no
longer necessary, and (2) that it was in the children’s best interests to change the permanency
objective from reunification to adoption.
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 Aaliyah M. et al., 21
Neb. App. 63, 837 N.W.2d 98 (2013).
ANALYSIS
Jurisdiction.
Amber appeals the juvenile court’s order which changed the permanency plan for
Brenden and Joshua from reunification to adoption. This appeal raises a question regarding this
court’s jurisdiction.
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In a juvenile case, as in any other appeal, before reaching the legal issues presented for
review, it is the duty of the appellate court to determine whether it has jurisdiction over the
matter before it. In re Interest of Diana M. et al., 20 Neb. App. 472, 825 N.W.2d 811 (2013). For
an appellate court to acquire jurisdiction of an appeal, there must be a final order entered by a
tribunal from which the appeal is taken. Id.The three types of final orders which may be reviewed on appeal are (1) an order which
affects a substantial right and which determines the action and prevents a judgment, (2) an order
affecting a substantial right made during a special proceeding, and (3) an order affecting a
substantial right made on summary application in an action after judgment is rendered. In re
Interest of Karlie D., 283 Neb. 581, 811 N.W.2d 214 (2012). Juvenile court proceedings are
considered special proceedings. Id. Thus, we must decide whether the juvenile court’s order
changing the permanency plan to adoption affected one of Amber’s substantial rights.
A substantial right is an essential legal right, not a mere technical right. Id. Whether a
substantial right of a parent has been affected by an order in juvenile court litigation is dependent
upon both the object of the order and the length of time over which the parent’s relationship with
the juvenile may reasonably be expected to be disturbed. In re Interest of Diana M. et al., supra.
However, 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. In re Interest of Tayla R., 17 Neb. App. 595, 767
N.W.2d 127 (2009). In other words, an order which merely continues a previous determination
of the juvenile court is not an appealable order. See In re Interest of Diana M. et al., supra.
Whether an order merely continues a previous juvenile court determination is not always
clear. This includes cases where the permanency objective is changed from reunification to
adoption. For example, in In re Interest of Tayla R., supra, this court found that a juvenile court
order which changed the permanency plan from reunification to adoption was not appealable
because it did not affect the substantial rights of the mother. The new order implemented a
rehabilitation plan that contained the same services as the previous order, did not change the
mother’s visitation or status, and implicitly provided the mother an opportunity for reunification
by complying with the terms of the rehabilitation plan. Id.However, in In re Interest of Diana M. et al., supra, we found the juvenile court’s
modification of a permanency goal from reunification to guardianship/adoption to be appealable.
We noted that this order was distinguishable from In re Interest of Tayla R., supra, because the
order also ceased all reasonable efforts, affecting the mother’s right to reunification with her
children. In re Interest of Diana M. et al., 20 Neb. App. 472, 825 N.W.2d 811 (2013).
In the present case, the State and the children’s guardian ad litem argue that the juvenile
court’s March 15, 2013, order is a continuation of previous orders. They also argue that the order
leaves an opportunity for Amber to reunite with her children. We disagree. The juvenile court’s
order specifically changes the permanency objective to adoption. Although adoption was
previously a concurrent plan with reunification, the new order eliminates reunification as a plan
and, as such, is not merely a continuation of previous orders. See id. The order further finds that
all reasonable efforts for reunification should cease and that there is no compelling reason to give
further time for rehabilitation. The court also ordered relinquishment counseling for Amber.
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These changes clearly affect Amber’s substantial rights as a parent and do not allow for an
opportunity for reunification. See In re Interest of Tabatha R., 255 Neb. 818, 587 N.W.2d 109(1998) (initial dispositional order which does not include rehabilitation plan for parents deprived
them of opportunity for reunification and affected substantial right). Therefore, we determine
that the March 13, 2013, order is a final, appealable order and proceed to address Amber’s
assignments of error.
Reasonable Efforts at Reunification.
Amber argues that the juvenile court erred in finding that reasonable efforts had been
made to reunify her with Brenden and Joshua. Amber claims that she has not received sufficient
assistance from the State despite having been “willing and eager” to take advantage of services.
Brief for appellant at 13. Amber further argues that the juvenile court erred in finding that no
further efforts toward reunification are necessary.
Neb. Rev. Stat. § 43-283.01(2) (Cum. Supp. 2012) requires the State to make reasonable
efforts to preserve and reunify the family. When determining whether reasonable efforts have
been made to preserve and reunify the family and in making such reasonable efforts, the child’s
health and safety are the paramount concern. § 43-283.01(1).
Despite Amber’s claims to the contrary, we find that the State has made substantial
efforts aimed at reunification throughout the case. These efforts have included visitation,
transportation, psychological and psychiatric evaluations, individual therapy, parenting classes,
chemical dependency treatments, drug screening, bus passes, transitional housing, and a referral
for couple therapy. The problem in this case is that Amber has not adequately utilized the offered
services.
Amber has attended the majority of the scheduled visits with her children and clearly
cares for her children, but she has not made consistent efforts in other areas. Amber has been
reluctant to allow the case manager to conduct a home visit, has stopped attending Alcoholics
Anonymous and Narcotics Anonymous meetings, and has been discharged from family therapy
due to lack of attendance and failure to follow the therapists’ advice. Drug testing is also a major
concern in this case. At the evidentiary hearing, Thirlkel testified to the difficulties drug test
administrators have experienced in attempting to administer Amber’s drug tests. Oftentimes,
Amber would not respond to telephone calls attempting to schedule tests and has even declined
to submit to a test when an administrator met her at the courthouse. Amber also admitted to
Thirlkel that she had relapsed, but refused to disclose what substance she had taken and would
not submit to a drug test. Amber’s inconsistency in submitting to these tests has led the agency to
discontinue its efforts in this case.
After our review of the record, we find sufficient evidence to support the juvenile court’s
finding that reasonable efforts have been provided to Amber during this case. Further, the fact
that Amber has been inconsistently participating in these services after the 3-year lifespan of this
case justifies the juvenile court’s decision to cease reasonable efforts. This assigned error is
without merit.
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Change of Permanency Objective From
Reunification to Adoption.
In her second assignment of error, Amber alleges that the juvenile court erred when it
determined that the children’s best interests required changing the permanency objective from
reunification to adoption. Amber claims that there was insufficient evidence in the record to
support this change. She contends that she continues to progress toward reunification.
The foremost purpose and objective of the Nebraska Juvenile Code is to promote and
protect the juvenile’s best interests, and the code must be construed to assure the rights of all
juveniles to care and protection. In re Interest of Diana M. et al., 20 Neb. App. 472, 825 N.W.2d
811 (2013).
As noted above, this case has been pending for approximately 3 years. During this time,
Brenden and Joshua have been placed outside the home with their grandparents and have had
only supervised or semisupervised visitation with Amber. These visits have recently become
inconsistent. Additionally, Amber has admitted to recently relapsing to drug use on three
occasions, but she would not disclose what substances she had used. Finally, Amber has not been
able to obtain stable housing during the pendency of this case. As of the final day of the
evidentiary hearing, Thirlkel testified that Amber had informed her that she and Bryan were in
the process of moving but did not have a specific destination.
The record in this case reveals a lack of progress toward reunification. Brenden and
Joshua need stability in their lives after 3 years in foster care with their grandparents. Children
should not be suspended in foster care or be made to await uncertain parental maturity. See In re
Interest of Emerald C. et al., 19 Neb. App. 608, 810 N.W.2d 750 (2012). Upon our de novo
review, we find that the juvenile court correctly determined that the permanency objective should
be changed from reunification to adoption.
CONCLUSION
The juvenile court did not err when it determined that reasonable efforts toward
reunification had been made and that further efforts were not necessary. Further, the court did
not err when it changed the permanency objective from reunification to adoption.
AFFIRMED.
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