In re Interest of Sicily M. ( 2016 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
IN RE INTEREST OF SICILY M. ET AL.
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 SICILY M. ET AL., CHILDREN UNDER 18 YEARS OF AGE.
STATE OF NEBRASKA, APPELLEE,
V.
AUTUMN M., APPELLEE, AND BRANDON R., SR., APPELLANT.
Filed June 28, 2016. No. A-15-1229.
Appeal from the Separate Juvenile Court for Douglas County: ELIZABETH CRNKOVICH,
Judge. Affirmed.
Joe Bradley for appellant.
Donald W. Kleine, Douglas County Attorney, and Jennifer C. Clark for appellee State of
Nebraska.
INBODY, PIRTLE, and BISHOP, Judges.
PIRTLE, Judge.
INTRODUCTION
Brandon R., Sr., appeals the order of the Separate Juvenile Court for Douglas County which
terminated his parental rights as to the minor children, Sicily M., Rayln M., and Brandon R., Jr.
He asserts the court erred in finding that termination of his parental rights was in the children’s
best interests. For the reasons that follow, we affirm.
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BACKGROUND
On January 15, 2014, the State filed a petition alleging Sicily, Rayln, and Brandon Jr. came
within the meaning of Neb. Rev. Stat. § 43-247(3)(a) due to the faults or habits of their biological
mother, Autumn M. A motion for temporary custody was filed on the same day. The juvenile court
determined the children came within the meaning of § 43-247(3)(a) due to the faults or habits of
Autumn on January 15 and filed an order for immediate custody.
On August 27, 2014 the court appointed an attorney for Brandon, the putative father of
Rayln and Brandon Jr. Brandon filed a complaint for leave to intervene on November 25, 2014.
DNA test results from the DNA Diagnostics Center in Omaha were provided to support his
complaint. The results stated there was a 99.999 percent probability that Brandon was the
biological father of all three children.
A supplemental petition was filed on December 8, 2014 alleging the children came within
the meaning of § 43-247(3)(a) due to the faults or habits of Brandon. The petition alleged that (A)
Brandon failed to take timely steps in order to reunify with the children; (B) Brandon’s use of
alcohol and/or controlled substances placed the children at risk for harm; (C) Brandon’s
whereabouts were unknown; (D) Brandon failed to provide the children with safe, stable, and/or
appropriate housing; and (E) Brandon failed to provide proper parental care, support, and/or
supervision. The State also filed an ex parte order for immediate temporary custody to exclude
Brandon’s home. On March 4, 2015, the State filed a motion to dismiss the supplemental petition
without prejudice. The motion was granted on March 5.
Brandon was given leave to intervene and was made a party to the proceedings on March
12, 2015. The court found that the permanency objective for the children was reunification, with
a concurrent plan of adoption. The court also found that reasonable efforts had been made to return
the minor children to the parental home. Services provided included a chemical dependency
evaluation, family team meetings, case management, hair follicle testing, and placement. The
juvenile court ordered the children to remain in the temporary custody of the Nebraska Department
of Health and Human Services (DHHS) and that no further reasonable efforts were required for
Autumn.
On June 8, 2015 the family support worker for the children received notice that the
Interstate Compact for Placement of Children (ICPC) request was approved for the children to be
placed with a relative in Kansas. On June 16, the children were officially placed with Linda R.,
their maternal great-aunt, in Wichita, Kansas. On July 30, the State filed an ex parte order for
immediate temporary custody, requesting that DHHS retain custody of the children, and that
Brandon’s home be excluded as an option for placement. The State also filed a motion for
termination of Autumn’s parental rights.
On August 13, 2015, the State filed a second supplemental petition and motion for
termination of Brandon’s parental rights. The petition alleged the children came within the
meaning of § 43-247 and § 43-292 because Brandon was aware the children were in foster care
and failed to make efforts to reunify with them, failed to consistently visit, and failed to maintain
contact with caseworkers. It alleged that due to these allegations, the children were at risk for harm.
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The petition also alleged grounds for termination existed under § 43-292(2) and (7), and that
termination of Brandon’s parental rights was in the children’s best interests.
In August 2015, after a hearing regarding the second supplemental petition, the court found
that due to exigent circumstances, it would be contrary to the health, safety or welfare of the minor
children to be returned home. The court found that reasonable efforts had been made to prevent or
eliminate the need for removal, and that it was in the best interests of the children to remain in the
temporary custody of DHHS for appropriate care, education, and maintenance outside of
Brandon’s home. The order provided that Brandon “shall have reasonable rights of visitation” as
arranged and supervised by DHHS.
An adjudication hearing was held on October 30, 2015 and the matter was continued to
November 20 to allow for the presentation of additional evidence. The court ordered that the
motion for termination of parental rights would be heard on November 20.
Cynthia Lee is a family permanency specialist for Nebraska Families Collaborative, and
she testified regarding her role as an advocate for the best interests of children and families, and
her involvement with the children in this case. She testified that she sets up therapy and visitation
appointments, and meets with parents and providers to ensure that everyone’s needs are being met.
Lee testified that she was assigned to this case from January 2014 to May 2014. At that
time, Autumn was the only parent involved in the case. At the inception of this case, there were
no efforts made to locate the father or fathers of the children because Autumn did not provide Lee
with enough information to do so. Rachelle Lauritsen was the caseworker from May 2014 to
December 2014, and then Lee was reassigned to the case in December 2014 or January 2015.
When the case was transferred back to Lee, Lauritsen informed her that she had located
Brandon in Kansas. Lauritsen said that Brandon had attended a few visits with Autumn, although
he was not authorized to do so. Brandon provided a urinalysis sample at one of the visits and tested
positive for marijuana. Lee made contact with Brandon by telephone and he said that he wanted
placement of the children. He told Lee that the children had been in Autumn’s custody because of
his incarceration, but that the children resided with him prior to that time. Lee did not ask how
long he was incarcerated, and testified that when she first spoke to him, he had already been
released.
In March and April 2015, Brandon had supervised visits with the children when he came
to Omaha, and he had “a couple” phone calls with the older two children while they were in a
foster home. Lee testified that Brandon would call and let her know when he planned to travel
from Kansas to Omaha for visits with the children, and she would put in a request for a worker to
supervise the visit. Lee testified that because Brandon was coming from out of state, the workers
were instructed to call to verify that he was in Omaha before transporting the children for visits. If
he could not be reached, the children were not transported for a visit, even if one had been
scheduled to occur. Lee testified that it was difficult to reach Brandon by telephone. Lee’s affidavit
in support of placement outside of the parental home states that on numerous occasions Brandon
could not be reached because his voice mailbox was full or his phone was not accepting incoming
calls. On one occasion Brandon’s girlfriend called to inform her that Brandon was detained by the
police and he would not be able to attend the scheduled visit. On other occasions, Lee was not
made aware of why Brandon could not be reached, or why he did not return her calls.
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When Brandon expressed an interest in having placement, Lee asked if Brandon wanted
her to start an ICPC request to assess his home in Kansas and he said “yes.” Brandon told Lee that
he had housing and was employed, and Lee initiated an ICPC request in March or April 2015. Lee
testified that she sent Brandon paperwork to fill out for placement of the children, but he did not
sign and return it. When the ICPC request was returned from Kansas, it had been denied. Lee said
that part of the reason for the denial was Brandon’s failure to contact the Kansas DHHS. He signed
for a packet from Kansas DHHS, but did not return it as directed, and he did not return a phone
call to the Kansas DHHS regarding the ICPC. Lee said when she asked Brandon why he did not
follow through with the ICPC, he told her it “slipped his mind.” Lee said he requested that she “do
another ICPC.” Lee responded that she would discuss it with her supervisor. Lee’s supervisor felt
that an additional ICPC request would not be needed “because if someone wants their children
back, you don’t let something like that slip your mind.”
Lee said at that point, it was determined that it was best to place the children with Linda,
the children’s maternal great-aunt, in Kansas. Linda and Brandon resided in the same city,
approximately 20 minutes apart. Lee testified that she informed Brandon of the children’s
placement with Linda, and he was “fine” with that decision.
Lee testified that in June 2015, Brandon told her that he wanted the children placed with
him and that he would do whatever was necessary to achieve that goal. Lee told Brandon that he
would have to engage in supervised visits, maintain employment, and maintain contact with Lee
and the children. Lee testified that she received a telephone call from Kansas DHHS alerting her
to the fact that Brandon had an open CPS case that he had not told her about. Lee said that when
asked about the CPS case, Brandon told her that he did not think it was important for her to know
this information. Lee testified that the only thing Brandon needed to do to demonstrate that he
should have placement of the minor children was to complete his orders for Kansas, but he did not
do so.
Lee testified that the interactions between Brandon and the children were appropriate and
affectionate. Brandon had visits with the children on two or three occasions after the children were
placed with Linda in June 2015. Linda told Lee that Brandon attended church services with them
a couple of times in June, and attended Brandon Jr.’s birthday party in July. Lee asked Brandon
why he was not having more frequent visits, and he told her that he was not able to get into contact
with Linda. Lee testified that she immediately contacted Linda, who stated that Brandon had not
called her or left messages requesting to see the children.
Lee testified that Brandon had no visits with the children after July 2015, even though he
lived in close proximity to Linda. Brandon had permission to speak to the children by telephone,
but Lee was not aware of any phone contact while they were in Linda’s home. Lee expressed
concern that Brandon had not made consistent attempts to visit the children when they lived so
close geographically. Lee testified that in her professional opinion, the children were no closer to
returning to either parent’s home than at the beginning of the out-of-home placement. She testified
that she believed that termination of Brandon’s parental rights was in the children’s best interests.
She based this opinion on Brandon’s lack of participation in services in Kansas and his lack of
contact with the children.
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Brandon testified that he was informed that the children were removed from Autumn’s
home in January or February 2014. He was incarcerated at the time, and was not released until
April 2014. Upon his release, Brandon contacted Lauritsen regarding intervening in this case.
Lauritsen informed him that he needed to establish paternity of the children, and he completed
DNA testing in September 2014. The DNA results became available in November 2014.
Brandon testified that visits were “hit and miss.” He stated that when he scheduled visits,
he was sometimes informed that the visit needed to be rescheduled because Nebraska Families
Collaborative was not able to provide supervision. He testified this happened several times when
the children were placed in Omaha, which was a five hour drive from Wichita. He had seven visits
with the children while they were placed in Omaha. Brandon testified that once the children were
placed with Linda, he was only allowed three visits with the children. He said Linda did not
consistently answer the telephone, and when he did reach her, she gave him reasons why he was
not allowed to talk to or see the children at that time.
Brandon testified that Lee told him he would need a three-bedroom apartment to get
placement of the children. Brandon acknowledged Lee’s testimony that she had trouble reaching
Brandon because he moved multiple times, but stated that he moved in an attempt to obtain
appropriate housing so the children could be placed with him. At the time of the hearing Brandon
lived in a three-bedroom, two bathroom house in Wichita, and was employed full-time as a
construction worker. Brandon testified that his most recent visit with the children occurred on
Rayln’s birthday in August 2015.
On November 25, 2015, the juvenile court entered an order terminating Brandon’s parental
rights. The order found that the children were within the meaning of § 43-247(3)(a), grounds for
termination existed under § 43-292(2) and (7), and that termination was in the children’s best
interests. Brandon timely appealed.
ASSIGNMENTS OF ERROR
Brandon asserts the juvenile court erred in finding that there was clear and convincing
evidence that termination of his parental rights was in the children’s best interests.
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 Jahon S., 291 Neb. 97, 864 N.W.2d
228 (2015). Where credible evidence is in conflict, an appellate court considers and may give
weight to the fact that the trial court observed the witnesses and accepted one version of facts
rather than another. In re Interest of Joseph S., 291 Neb. 953, 870 N.W.2d 141 (2015).
ANALYSIS
Under § 43-292, in order to terminate parental rights, the State must prove, by clear and
convincing evidence, that one or more of the statutory grounds listed in this section have been
satisfied and that termination is in the children’s best interests. The State sought termination of
Brandon’s rights under § 43-292(2) and (7).
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Brandon does not dispute the court’s finding that statutory grounds for termination existed.
However, for the sake of completeness, we note there is clear and convincing evidence that at least
one of the enumerated grounds for termination existed under the statute. Section 43-292(7)
authorizes termination when the children have been in an out-of-home placement for fifteen or
more of the most recent twenty-two months. The children were removed from their mother’s care
in January 2014 and remained in out-of-home placement at the time the second supplemental
petition was filed in August 2015. Section § 43-292(7) does not require that the child’s
out-of-home placement be the result of any intentional act on the part of the parent. In re Interest
of Kindra S., 14 Neb. Ct. App. 202, 705 N.W.2d 792 (2005). The Nebraska Supreme Court has held
that this section operates mechanically and, unlike the other subsections of the statute, does not
require the State to adduce evidence of any specific fault on the part of the parent. Id.
Brandon’s sole assignment of error is that the juvenile court erred in finding that
termination of his parental rights was in the children’s best interests. In proceedings to terminate
parental rights, the law does not require perfection of a parent; instead, courts should look for the
parent’s continued improvement in parenting skills and a beneficial relationship between parent
and child. In re Interest of Joseph S., supra.
The record shows that when the children were removed from their mother’s home, Brandon
was incarcerated. Upon his release, he contacted the family permanency specialist working with
the family and indicated that he wanted the children to be placed with him.
Brandon argues that he has demonstrated a loving relationship with the children, and has
shown improvement in his parenting skills. He argues that he participated in genetic testing, and
made efforts to have regular visits with the children.
After establishing paternity of the children, Brandon was allowed to have supervised visits
with the children. By all accounts, visits did not occur frequently, but there is conflicting evidence
as to why certain visits did not occur. Brandon argues that visits in Omaha were “stymied because
the supervising agency became unavailable at the last moment.” Lee testified that Brandon would
call a few days prior to the visit to let her know that he would be traveling from Wichita to Omaha.
Lee said that when Brandon notified her that he wanted to visit, she requested a worker to provide
supervision. She said sometimes Brandon did not show up for the visit, or she was not able to reach
him to confirm that he would attend, so the children were not transported.
In June 2015, the children moved from a foster care placement in Omaha to a family
placement in Wichita, Kansas. Linda and Brandon lived in the same town, approximately 20
minutes apart, yet he had few visits from the time of the move to the time of the termination
hearing. Brandon argues that the visits with the children in Wichita were infrequent due to
communication difficulties with Linda. He testified that Linda did not answer his calls, and when
he was able to reach her, she gave a reason why the children were not available to see or speak to
him at that time. Lee testified that when Brandon reported this problem to her, she immediately
contacted Linda, who stated that Brandon had not called her or left messages requesting to see the
children.
The record shows that when Brandon scheduled and attended supervised visits, his
behavior was appropriate and he was affectionate toward the children. However there is little
additional evidence in the record regarding the nature and quality of the relationship he had with
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the children or regarding any improvement in Brandon’s parenting skills. When the children
resided in Nebraska, Brandon expressed his desire to obtain placement of the children, but he did
not follow through with the necessary steps to complete the first step, the ICPC request.
Specifically, he did not respond to requests for information from the Kansas DHHS, or return
phone calls, and he did not sign and return the paperwork Lee requested. The ICPC request was
denied and he indicated to Lee that this step “slipped his mind.” Lee testified that a second ICPC
was not completed because her supervisor indicated that if a person wanted their children back,
they would not let important steps toward that goal “slip [their] mind.”
Lee testified that in June 2015, Brandon told her that he wanted the children placed with
him and that he would do whatever was necessary to achieve that goal. Lee told Brandon that he
would have to engage in supervised visits, maintain employment, and maintain contact with Lee
and the children. Kansas DHHS contacted Lee to alert her to the fact that Brandon had an open
CPS case in Kansas, and when she asked him about it, he said he did not believe that it was
important for her to know this information. The CPS case impacted Brandon’s eligibility to have
placement of the children involved in this case. Lee testified that the only thing Brandon needed
to do to demonstrate that he should have placement of the minor children was to complete his
orders for Kansas, but he did not do so.
Lee testified that based upon her training and experience, it was her opinion that
termination of Brandon’s parental rights was in the children’s best interests.
Where credible evidence is in conflict, an appellate court considers and may give weight
to the fact that the trial court observed the witnesses and accepted one version of facts rather than
another. In re Interest of Joseph S., 291 Neb. 953, 870 N.W.2d 141 (2015).
It appears that Brandon had the best of intentions with regard to his children, but he failed
to take the initiative to establish and maintain a relationship with the children. There were long
periods of time without visits or calls, and Brandon did not take the necessary steps to demonstrate
his desire to parent the children. The appellate courts of Nebraska have repeatedly cautioned that
children cannot, and should not, be allowed to linger in foster care while waiting to see if the parent
will mature. In re Interest of Chloe C., 20 Neb. Ct. App. 787, 835 N.W.2d 758 (2013). Based upon
our de novo review of the record, we find the State established by clear and convincing evidence
that it was in the best interests of the minor children that Brandon’s parental rights be terminated.
CONCLUSION
For the reasons stated above, we affirm the juvenile court’s order.
AFFIRMED.
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