In re Interest of Maddison S. & Matthew S. ( 2021 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
IN RE INTEREST OF MADDISON S. & MATTHEW S.
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 MADDISON S. AND MATTHEW S., CHILDREN UNDER 18 YEARS OF AGE.
STATE OF NEBRASKA, APPELLEE,
V.
HEATHER S., APPELLANT.
Filed December 21, 2021. No. A-21-391.
Appeal from the Separate Juvenile Court of Lancaster County: SHELLIE D. SABATA, Judge.
Affirmed.
Lisa F. Lozano for appellant.
Patrick F. Condon, Lancaster County Attorney, and Haley N. Messerschmidt for appellee.
PIRTLE, Chief Judge, and RIEDMANN and WELCH, Judges.
WELCH, Judge.
INTRODUCTION
Heather S. appeals the order of the Lancaster County Separate Juvenile Court awarding
temporary legal and physical custody of her minor children with the Nebraska Department of
Health and Human Services (DHHS) for placement outside of Heather’s care.
STATEMENT OF FACTS
Heather is the biological mother of twins Maddison S. and Matthew S., born in January
2018.
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On Sunday, March 21, 2021, an unidentified party or parties contacted the child abuse
hotline and law enforcement expressing concern about the care and well-being of Maddison and
Matthew. When law enforcement arrived at Heather’s home shortly after 4:38 p.m., there were
four individuals present along with the two minor children. Officers questioned all four individuals
present at the home: Alexis C., Heather’s 16-year-old niece who was left in charge of the minor
children; Arlene S., Alexis’ 15-year-old female friend; and two teenage boys. Each of the teens
admitted to drinking alcohol and smoking marijuana. Alexis told officers that she had been
watching the children for days at a time since they were born and that Heather disappeared for
extended periods of time to unknown locations. Alexis also told officers that she had been
babysitting the children since approximately 5 p.m. on Friday, and that approximately 1 week
earlier, she had watched the children for 4 days. Alexis reported that Heather would compensate
her for watching the children by providing her with alcohol and marijuana. Alexis also stated that
she was nervous about the children’s care because she “regularly sees bruises on the children” and
that “she feared for [the children’s] safety because [she had observed] Heather [smoke]
methamphetamine in front of the children.” Alexis’ friend, Arlene, initially told officers that they
were babysitting to help out, but later admitted that the teens agreed to go to the home because
they were allowed to drink alcohol and smoke marijuana. Arlene stated that she was afraid to tell
the truth because she was scared of Heather because Heather had guns and that there were guns in
the home.
After interviewing the teens, officers contacted Heather to request her to return to her home.
Upon Heather’s arrival at the home, she was “extremely confrontational” and “did not appear to
be concerned for her children.” Heather’s main concern was that narcotic paraphernalia had been
located inside her apartment and she repetitively denied ownership stating “[t]he narcotics and the
narcotic paraphernalia is not mine.” Heather also denied that guns were in the home, stating “no,
the guns are in my car.” Heather explained the children’s bruising stating that “[the children] hit
each other all the time.” Heather’s demeanor did not change after she was informed that the minor
children were being removed nor did she ask to see her children.
Officers obtained a search warrant for Heather’s home and, pursuant to their search,
discovered rounds of 9-millimeter ammunition, 10.1 grams of methamphetamine, and narcotic
paraphernalia including a few pipes and bongs. Locations where the evidence was found included
Heather’s bedroom closet, her dresser drawers, and a locked safe in her bedroom. Paraphernalia
was located inside bags belonging to Heather along with Heather’s other possessions, indicating
that the items belonged to Heather, not the teenagers. Some of the items were within reach of the
minor children.
Officers determined that the children were unsafe and at risk of harm requiring removal
due to the children being in possession of, and having access to, dangerous items including
methamphetamine, narcotics, and paraphernalia, which had been found in the home; the fact that
the teenagers who were caring for the children admitted to smoking marijuana and drinking while
providing care for the children; and bruising present on the children.
When the on-call caseworker, Alycia Carlston, arrived at the home, law enforcement
informed her that they had already decided to remove the children. Carlston testified that, because
law enforcement already determined that removal was necessary, she followed law enforcement’s
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lead regarding removal pursuant to DHHS policy and began to contact family supports for kinship
placement and obtain information to complete a safety assessment. While gathering information,
Carlston noticed that the children had observable “small bruising on [their] arms and legs” and
that there was a “small bruise on Matthew’s face.” When asked about the bruising, Matthew stated
that “he got hit,” but did not identify who had hit him. An officer similarly observed that “[b]oth
children were covered in bruises, head to toe.” Carlston also became concerned with the children’s
access to dangerous items: Maddison brought Carlston “what appeared to be a glass water pipe
that is commonly used for smoking marijuana, among other substances” and Matthew was playing
with a “square piece of metal” and, at one time, was also holding a partially empty alcohol bottle.
Carlston testified that she
was concerned with the water pipe, especially, because Maddison was trying to drink out
of it. And I was not sure what had been contained . . . in the water pipe, so I placed it out
of her reach . . . and told her that it was not something that we play with. And, as for the
metal object, it had sharp corners on it and I was concerned about that, so I placed that out
of Matthew’s reach as well.
The minor children were removed from Heather’s care that day and placed with relatives.
On March 23, 2021, the State filed an adjudication petition alleging that the minor children
were children within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016). Specifically,
the adjudication petition alleged that the minor children lacked proper parental care by reason of
Heather’s fault or habits and/or Heather neglected and refused to provide proper or necessary
subsistence, education, or other care necessary for the health, morals, or well-being of the children,
and/or the minor children were in a situation dangerous to life or limb or injurious to their health
or morals based upon the following facts: (1) that on or about March 21, controlled substances,
drug paraphernalia and/or alcohol were located within the residence where Heather and the minor
children reside and/or were within reach of the minor children; (2) that on or about March 21,
Heather appeared to be under the influence of drugs and/or alcohol; (3) that on one or more
occasions from January 1 to March 21, Heather left the minor children with inappropriate
caretakers and/or caretakers who were unable to adequately care for them; and (4) that Heather’s
actions placed the minor children at risk of harm.
A protective custody hearing regarding the removal of the children was held over 3 days
in March and April 2021. Evidence adduced at the protective custody hearing included facts as
previously set forth above. Additionally, Carlston, a DHHS child and family services specialist,
testified that the day after the minor children were removed, she completed a safety assessment. A
safety assessment is to be completed within 24 hours of DHHS’ contact with a family and is used
to determine if the children are considered to be safe, unsafe, or conditionally safe in their
environment and the situation that had occurred. In completing the safety assessment in this case,
Carlston relied upon law enforcement’s decision to remove the children, her observations while in
the home, and her conversations with the minor children and Heather’s mother.
Carlston testified that the services DHHS would offer to the family included supervised
visitation, transportation, family support, an initial diagnostic interview with a substance use
component and any recommended services, random drug testing, trauma assessments for the minor
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children, educational decision maker referrals for the minor children, hair follicle tests for the
minor children, transportation, and a parenting assessment and any recommended services.
However, after receiving information regarding a district court order prohibiting contact between
Heather and the children, supervised visitation was no longer permitted.
Carlston testified that, in her opinion, it was in the children’s best interests to remain in
DHHS custody and in their current placement due to Heather’s lack of cooperation which had
prevented DHHS from setting up or beginning any services. Although Heather was permitted to
participate in supervised visitation, the district court implemented a no-contact order with the
children as a result of the criminal charges Heather received for issues related to the same reasons
the children were removed. Additionally, Carlston also mentioned that there was a possibility of a
“broadcast” issued for Heather which meant that if Heather was pulled over while driving or had
any other contact with law enforcement, officers could take Heather into custody leaving the
children without a caregiver.
Heather’s mother, testifying on Heather’s behalf, stated that, during the time that she had
witnessed Heather parent, she did not see narcotics, firearms, or see Heather engage in violence
towards the children, although she did acknowledge that Heather had previously used substances.
Heather’s mother testified that Maddison and Matthew previously lived with her for a few months
in 2019 when Heather was homeless and that the last time she was aware that Heather had used
any substances was during the time that Heather was homeless. Similarly, Heather’s boyfriend,
Brian Baker, testified that Heather did not use violence to discipline her children, nor did he know
her to use substances or possess firearms in her home, however he did admit that he was
represented by an attorney in a separate pending matter for possession of methamphetamine and
that he had previous charges relating to possession of methamphetamine. Baker further testified
that, during the weekend prior to the children’s removal, he witnessed Heather pay Alexis $250 to
care for the children.
On March 21, 2021, the children were removed in accordance with Neb. Rev. Stat.
§ 43-248(2) (Cum. Supp. 2020). The following day the court held an ex parte hearing on the State’s
motion for emergency temporary custody, and subsequently entered a temporary order placing the
minor children in the custody of DHHS. The court then held a full hearing for continued detention
pending adjudication pursuant to Neb. Rev. Stat. § 43-254 (Cum. Supp. 2020) over 3 days in March
and April 2021. Following the hearings, the juvenile court continued temporary legal and physical
custody of the minor children with DHHS and placed the children in a kinship foster home under
the jurisdiction of DHHS. Specifically, the court found that continuation of the minor children in
their home would be contrary to their welfare and that, prior to placement, reasonable efforts were
made to prevent or eliminate the need for removal and to make it possible for the minor children
to safely return home including: relative family placement, supervised parenting time, family
support services, random drug and/or alcohol testing, substance use evaluation, SDM assessments,
transportation assistance, Nebraska Early Childhood Development Network referrals, trauma
assessments, hair follicle testing and ongoing case management. Heather has timely appealed to
this court.
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ASSIGNMENTS OF ERROR
Heather contends that the juvenile court erred in continuing the children’s temporary legal
and physical custody with DHHS and finding that DHHS had made reasonable efforts to prevent
removal.
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 Giavonni P., 304 Neb. 580, 935
N.W.2d 631 (2019). 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. In re Interest of Leyton C. & Landyn C., 307 Neb. 529, 949 N.W.2d 773 (2020).
ANALYSIS
CONTINUED REMOVAL
We first address Heather’s claim that, following the protective custody hearing, the
juvenile court erred in finding that temporary legal and physical custody of the children should
remain with DHHS. Heather claims that “[in] the instant matter, a chain of misinformation was
perpetuated to the point that led [her] children to be removed from her care.” Brief for appellant at
12. She further contends that “had [DHHS] done a modicum of investigation, or reviewed the
information in their possession, they would have concluded that the allegations were based on false
information and the children should not have been removed from [Heather’s] care.” Brief for
appellant at 13.
Section 43-254 provides, in pertinent part:
If a juvenile has been removed from his or her parent, guardian, or custodian
pursuant to subdivision (2) of section 43-248, the court may enter an order continuing
detention or placement upon a written determination that continuation of the juvenile in his
or her home would be contrary to the health, safety, or welfare of such juvenile and that
reasonable efforts were made to preserve and reunify the family if required under section
43-283.01.
In interpreting § 43-254, the Nebraska Supreme Court has held that, although the State may
obtain short-term temporary custody without a warrant or court order when necessary to protect a
juvenile who is seriously endangered in his or her surroundings, continued detention pending
adjudication is not permitted under the Nebraska Juvenile Code unless the State can establish by a
preponderance of the evidence at an adversarial hearing that such detention is necessary for the
welfare of the juvenile. In re Interest of Anthony G., 255 Neb. 442, 586 N.W.2d 427 (1998). See
§ 43-254.
In accordance with that authority and Heather’s first specific error assignment, we have
performed a de novo review to determine whether the evidence supported the juvenile court’s
finding that continued detention was necessary for the welfare of the children. We find that it does.
In considering whether continued detention was necessary for the welfare of a child, the
Nebraska Supreme Court in In re Interest of R.G., 238 Neb. 405, 427-28, 470 N.W.2d 780, 795
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(1991), disapproved on other grounds, O’Connor v. Kaufman, 255 Neb. 120, 582 N.W.2d 350(1998), found that continued placement was necessary where
[t]he evidence of the mother’s demonstrated unabashed proclivity to leave her other
children in their own care under the supervision of a not-quite-9-year-old, coupled with the
evidence of her recent drug use, preponderates in favor of a conclusion that the infant is
neglected such as to come within the purview of § 43-247(3)(a). The State need not wait
to intervene until the infant suffers injury because she was left in the immature care of her
oldest sibling.
Similarly, the evidence presented at the detention hearing in the instant case established
that Heather frequently left the minor children in Alexis’ care for extended periods of time, that
the children were under the care of teenagers who admitted to drinking alcohol and smoking
marijuana when officers arrived at the home, and that Alexis reported that Heather compensated
her with alcohol and marijuana for watching the children. Alexis told officers that she worried for
the children’s safety when Heather was present because the children were covered in bruises and
Heather smoked methamphetamine in front of the children. During their observations and safety
assessment, law enforcement and Carlston observed that the children were covered in bruises and
Matthew admitted that he been hit. Additionally, while Carlston and law enforcement were present
in the home, Maddison was in possession of, and attempted to drink out of, a glass bong commonly
used for smoking marijuana; Matthew was in possession of a partially empty open bottle of
alcohol; and Matthew was playing with a “square piece of metal” that appeared dangerous for him
to handle. Further, following a search conducted pursuant to a search warrant, officers located 10.1
grams of methamphetamine and live firearm ammunition inside the home. Finally, after being
informed that her children were being removed, Heather expressed concern about the narcotics
found at her home and did not ask to see her children or express concern about their welfare.
Based on our de novo review, we agree with the juvenile court that the evidence was
sufficient to establish, by a preponderance of the evidence, that continued detention outside
Heather’s home pending adjudication was necessary for the health, safety, and welfare of
Maddison and Matthew. This assigned error fails.
REASONABLE EFFORTS
Heather next argues that the juvenile court erred in finding that DHHS had made reasonable
efforts to prevent removal of her minor children.
As previously indicated, § 43-254 provides that in order to continue detention pending
adjudication, in addition to finding that detention is necessary for the welfare of the juvenile, the
court must find that reasonable efforts were made to reunite the family if required under Neb. Rev.
Stat. § 43-283.01 (Cum. Supp. 2020).
Section 43-283.01, which governs the requirements for reasonable efforts, provides in
relevant part:
(1) In determining whether reasonable efforts have been made to preserve and
reunify the family and in making such reasonable efforts, the juvenile’s health and safety
are the paramount concern.
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(2) Except as provided in subsections (4) and (5) of this section, reasonable efforts
shall be made to preserve and reunify families prior to the placement of a juvenile in foster
care to prevent or eliminate the need for removing the juvenile from the juvenile’s home
and to make it possible for a juvenile to safely return to the juvenile’s home.
Here, the juvenile court found that reasonable efforts had been made to prevent or eliminate
the need for removal and to make it possible for the minor children to return to Heather’s home.
The court’s order stated:
[DHHS] has made reasonable efforts to make it possible for the juvenile to safely return to
the juvenile’s home, including: Relative Family Placement, Supervised Parenting Time,
Family Support Services, Random Drug/Alcohol Testing, Substance Use Evaluation,
[Structured Decision Making] Assessments, Transportation Assistance, Nebraska Early
Childhood Development Network Referrals, Trauma Assessments, Hair Follicle Testing,
[and] Ongoing Case Management.
Based on our de novo review, we find that there was sufficient evidence in the record to
find that reasonable efforts had been made to reunify the family prior to the court entering the
continuing custody order and placing the juveniles in a foster home. Prior to removal, law
enforcement and DHHS conducted an investigation; DHHS assessed the safety of the children in
the home; interviews were conducted of all of the teenagers in the home, Heather, and Heather’s
mother; law enforcement executed a search warrant to remove any dangerous substances or items
from the home; and DHHS contacted family members for placement and the children were
ultimately placed with family. Additionally, the evidence established that Heather refused to
cooperate with DHHS in order to set up services for reunification and supervised visitation was
later prohibited as a result of her criminal charges in relation to the removal of the children. After
the minor children were removed from her care, Heather then had the opportunity to utilize services
to participate in a safety plan to reunite with her children but failed to cooperate with DHHS or
law enforcement. Heather did not provide any evidence showing why she was unable to participate
or engage with DHHS or other services.
Although Heather contends that DHHS did not conduct an investigation which would have
shown that the allegations provided to law enforcement were false, the record refutes this claim.
Carlston, in conducting her investigation, relied on the officers’ reports and observations; her own
observations and reports; her training and experience in child abuse and neglect cases; information
obtained from interviews and/or statements of the minor children, teenagers, and Heather’s
mother; and the physical evidence obtained from the home. Carlston used this information to
complete a safety risk assessment to determine whether the children would be safe in the home.
Her assessment provided that the children were unsafe and that the children were at risk of harm.
Heather’s argument that DHHS did not conduct its own investigation fails as it is not supported
by the evidence.
In sum, based on the evidence adduced during the removal hearings, reasonable efforts
were provided to prevent removal and to promote reunification, but Heather refused to cooperate.
Therefore, we find no error in the juvenile court’s findings regarding reasonable efforts.
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CONCLUSION
For the above stated reasons, we find under our de novo review the juvenile court did not
err when it determined that continued placement outside of Heather’s home was necessary for the
safety and welfare of the children and that reasonable efforts were made to attempt to prevent
removal and promote reunification. Therefore, we affirm the juvenile court’s order.
AFFIRMED.
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