In re Interest of Maykala P. ( 2014 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
IN RE INTEREST OF MAYKALA P.
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 MAYKALA P., A CHILD UNDER 18 YEARS OF AGE.
STATE OF NEBRASKA, APPELLEE,
V.
PAUL P., APPELLANT.
Filed November 10, 2014. No. A-14-264.
Appeal from the Separate Juvenile Court of Douglas County: DOUGLAS F. JOHNSON,
Judge. Affirmed.
D.A. Drouillard, of Drouillard Law, P.C., for appellant.
Donald W. Kleine, Douglas County Attorney, and Erin Hurley for appellee.
Mallory N. Hughes, of Dornan, Lustgarten & Troia, P.C., L.L.O., guardian ad litem.
IRWIN, INBODY, and PIRTLE, Judges.
PIRTLE, Judge.
INTRODUCTION
Paul P. appeals from two orders of the separate juvenile court of Douglas County. The
first order denied Paul’s request to have his daughter, Maykala P., placed in his care and held
that she was to remain in the temporary custody of the Nebraska Department of Health and
Human Services (Department). The second order continued Maykala’s detention with the
Department pending adjudication. Paul contends that the juvenile court erred in its application of
the parental preference doctrine, thereby denying placement of Maykala with him, and in
continuing detention of Maykala pending adjudication. Based on the reasons that follow, we
affirm.
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BACKGROUND
On July 24, 2013, the State filed a petition alleging that Maykala came within the
meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2008) due to the faults and habits of her
mother. Maykala was removed from her mother’s care and placed in the custody of the
Department. On November 19, Paul filed a complaint to intervene as the biological father of
Maykala. In the complaint, he sought placement of Maykala in his home during the pendency of
the case. A hearing was held and there was no objection to the complaint to intervene, but
Maykala’s mother and her guardian ad litem (GAL) objected to Maykala’s being placed with
Paul. Paul’s counsel clarified that he was not asking that Maykala be placed with Paul that day,
but, rather, he was asking the court to order a plan to transition Maykala from her current
placement into Paul’s home.
On January 24, 2014, following the hearing, the juvenile court granted Paul leave to
intervene. The court noted in its order that Maykala’s mother and GAL objected to placement of
Maykala with Paul, but said nothing further about placement.
On February 19, 2014, the Department filed a notice for change of placement for
Maykala to place her in the same foster home as her younger half sister. On February 21, Paul
filed an objection to the change of placement and a motion to stay, requesting that Maykala be
placed in his home and not in a new foster placement as proposed by the Department.
A hearing was held on March 10, 2014, on Paul’s objection to the change of placement
and motion to stay. Paul argued at the hearing that he was seeking placement of Maykala with
him. The State, the GAL, and Maykala’s mother all objected to having Maykala placed with
Paul.
Megan Kenealy, a family permanency specialist with Nebraska Families Collaborative
(NFC) and Maykala’s caseworker since August 2013, was called to testify by the State. She
testified that she met Paul for the first time in July 2013, but her contact with him since that time
had been very limited. Kenealy testified that she arranged for visitation between Maykala and
Paul, which initially occurred three times per week and was supervised. Kenealy testified that
prior to her setting up the visits, Paul had not had contact with Maykala for a least 1 year.
Kenealy stated that 2 months prior to the March 10, 2014, hearing, Paul’s supervised visits were
reduced to two times per week in part because of concerns Maykala expressed about the visits to
Kenealy and her therapist, Amanda Gurock. Kenealy stated that Maykala’s concerns were also
documented in the visitation reports. The concerns regarding visitation included the following:
Paul’s arguing with Maykala at visits, which required redirection by the visitation worker on
multiple occasions; Paul’s using profanity or cursing during visits; and Paul’s failing to attend all
visits and arriving late to visits. One of the issues Paul argued with Maykala about is whether she
was going to live with him in the future, and on at least one occasion, Maykala told Paul she did
not want to live with him and Paul continued to argue with her about her placement. Kenealy
testified that Maykala has told her that she does not want to live with Paul and that she had
negative memories of him being abusive to her mother. She specifically recalled that at her third
birthday party, there was an altercation between Paul and her mother during which Paul spit in
her mother’s face and was verbally aggressive toward her mother. Maykala did not report any
other specific instances of domestic abuse to Kenealy.
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Kenealy testified that she received a letter from Gurock recommending that Paul’s visits
with Maykala be changed from supervised to therapeutic based on concerns expressed by
Maykala during therapy, which included feeling uncomfortable during visits with Paul and not
wanting to live with Paul.
Kenealy testified that Paul was living with his parents so NFC ran a background check on
them, which revealed that Paul’s mother was on the “central registry” based on several intakes in
the past for child abuse and neglect. Kenealy testified that NFC has a policy that it does not
recommend placement in a home where someone who lives there is listed on the central registry.
Kenealy testified that since Maykala could not be placed in Paul’s current home, she offered Paul
assistance in finding alternate housing. However, Paul refused her offer to work with a
subsidized housing program through the State and indicated he wanted to continue living with
his parents. Paul was also provided access to a program to assist with finding employment, as
well as a family support worker to assist with housing, both of which he declined.
Kenealy testified that she believed there was a lack of bond between Maykala and Paul.
She expressed this concern to Paul, and he denied needing any outside help. Kenealy also
specifically recommended family therapy to Paul so he could work on his relationship with
Maykala, but Paul did not agree to it at that time and said he would think about it.
Kenealy testified that other than attending supervised visits, Paul had not shown any
initiative to utilize services recommended and made available to him. Kenealy testified that in
her opinion Maykala would be at risk for harm if she were placed with Paul.
In an order dated March 11, 2014, the juvenile court denied Paul’s objection to change of
placement and his motion to stay. The court found that Maykala would remain in the temporary
custody of the Department with placement to exclude Paul’s home because it would be contrary
to Maykala’s best interests to be placed in Paul’s home.
On March 11, 2014, the State filed a third supplemental petition alleging that Maykala
came within the meaning of § 43-247(3)(a) due to the faults or habits of Paul. The State also
filed a motion for immediate temporary custody for the Department to maintain custody of
Maykala for appropriate placement to exclude Paul’s home, which the court granted.
A protective custody hearing in regard to the third supplemental petition was held on
March 13, 2014. The State offered and the court received into evidence an affidavit of Kenealy
and an affidavit of Gurock. The court also took judicial notice of the court’s March 11 order
denying Paul’s objection to the change of placement and motion to stay.
Following the protective custody hearing, the court entered an order on March 14, 2014,
finding that there was probable cause that Maykala came within the meaning of § 43-247(3)(a) in
regard to Paul. It further found that reasonable efforts were provided to Paul on a voluntary basis
to finalize permanency and/or return Maykala to the parental home, but it would be contrary to
Maykala’s health and safety to be returned to Paul’s home, and that it is in the best interests of
Maykala to remain in the temporary custody of the Department with placement to exclude Paul’s
home.
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ASSIGNMENTS OF ERROR
Paul assigns that the juvenile court erred in (1) its application of the parental preference
doctrine, thereby denying placement of Maykala with him during the pendency of this case, and
(2) continuing detention of Maykala pending adjudication.
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 Nicole M., 287 Neb.
685, 844 N.W.2d 65 (2014). 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
Paul first assigns that the juvenile court erred in its application of the parental preference
doctrine to the facts of this case and, consequently, in denying placement of Maykala with him
during the pendency of this case. He specifically contends that the evidence presented at the
March 10, 2014, hearing on his objection to the change of placement and motion to stay was
insufficient to prove that Paul is an unfit parent.
The parental preference principle establishes a rebuttable presumption that the best
interests of a child are served by reuniting the child with his or her parent. In re Guardianship of
Elizabeth H., 17 Neb. Ct. App. 752, 771 N.W.2d 185 (2009). The principle provides that a parent
has a natural right to the custody of his or her child which trumps the interest of strangers to the
parent-child relationship and the preferences of the child. Id. Courts may not properly deprive a
parent of the custody of a minor child unless it is affirmatively shown that such parent is unfit to
perform the duties imposed by the relationship or has forfeited that right. In re Interest of Lakota
Z. & Jacob H., 282 Neb. 584, 804 N.W.2d 174 (2011). Parental unfitness means a personal
deficiency or incapacity which has prevented, or will probably prevent, performance of a
reasonable parental obligation in child rearing and which has caused, or probably will result in,
detriment to a child’s well-being. Id.
We conclude that the evidence presented at the March 10, 2014, hearing was sufficient to
overcome the presumption that it was in Maykala’s best interests to be placed with Paul. Kenealy
testified that she initially met Paul in July 2013, after Maykala was removed from her mother’s
care. After Kenealy’s initial meeting with Paul, her contact with him was very limited. In July,
Kenealy helped Paul establish visits with Maykala. Prior to those visits being set up, Paul had not
seen Maykala for at least 1 year. The visits that Kenealy helped arrange were supervised due to
the lack of contact between Paul and Maykala in the past, and occurred three times per week.
Kenealy testified that about 2 months before the hearing at issue, Paul’s visits were decreased to
two visits per week based on concerns noted in visitation reports and concerns expressed by
Maykala to both Kenealy and Gurock. The concerns included Paul’s arguing with Maykala,
which required redirection by the visitation worker, as well as Paul’s using profanity or cursing
during visits. Paul argued with Maykala about whether she would live with him. On at least one
occasion, Maykala told Paul that she did not want to live with him and he continued to argue
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with Maykala about her placement. Paul also arrived late to several visits and failed to attend
some visits.
Maykala also remembers at least one altercation between Paul and her mother, which
occurred at her third birthday party. She recalled that Paul spat in her mother’s face and was
verbally aggressive toward her mother.
Based on the concerns revealed by Maykala in therapy, Gurock wrote a letter to Kenealy
requesting that visits between Paul and Maykala become therapeutic, rather than supervised.
There was also evidence that Maykala could not be placed with Paul at the time because
he was living with his parents and his mother was on the central registry due to past intakes of
child abuse and neglect. Kenealy testified that she offered Paul assistance in finding alternate
housing. However, Paul refused to work with a subsidized housing program through the State.
Paul was also offered access to a program to assist with finding employment, as well as a family
support worker to assist with housing, both of which he declined. The evidence at the hearing
further showed that Paul did not accept services offered by Kenealy to help establish a bond with
Maykala, as he did not believe he needed any help. Kenealy testified that based on the above
concerns, Maykala would be at risk for harm if she were placed with Paul.
Paul’s actions and inactions as discussed above are relevant to his fitness as a parent and
whether or not it would be in Maykala’s best interests to be placed with him. Based on our de
novo review and considering the totality of the evidence presented, there was sufficient evidence
to rebut the presumption under the parental preference doctrine that Paul was a fit and proper
parent at the time. The juvenile court properly concluded following the March 10, 2014, hearing
that placing Maykala with Paul would be contrary to her best interests, and it did not err in
failing to place Maykala with Paul.
Paul next assigns that the juvenile court erred in continuing detention of Maykala outside
of his home pending adjudication. This assignment of error is based on the court’s March 14,
2014, order entered after the protective custody hearing. The court found that reasonable efforts
were provided to Paul on a voluntary basis to finalize permanency and/or return Maykala to the
parental home and that it would be contrary to Maykala’s health and safety to be returned to the
parental home. The court further found that it was in Maykala’s best interests to remain in the
temporary custody of the Department with placement to exclude Paul’s home.
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). At a detention hearing, the State must prove by a
preponderance of the evidence that the custody of a juvenile should remain in the Department
pending adjudication. In re Interest of Cherita W., 4 Neb. Ct. App. 287, 541 N.W.2d 677 (1996);
Neb. Rev. Stat. § 43-254 (Supp. 2013). The State is not required to establish a specific harm or
risk to the juvenile; it is enough if the evidence establishes by a preponderance of the evidence
that the conduct or circumstances of the parent or custodian are such that it is contrary to the
juvenile’s welfare to remain in, or return to, the parental or custodial home. In re Interest of
Joshua M. et al., 251 Neb. 614, 558 N.W.2d 548 (1997). Pursuant to § 43-254, if a juvenile has
been removed pursuant to Neb. Rev. Stat. § 43-248(2) (Supp. 2013), the juvenile court may enter
an order continuing detention or placement upon a written determination that continuation of the
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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 Neb.
Rev. Stat. § 43-283.01(1) through (4) (Cum. Supp. 2012).
In regard to reasonable efforts, the juvenile court found that such efforts included family
time, therapy for Maykala, a background check on Paul’s residence, an NFC investigation and
interviews, assistance with income and housing, parenting classes, a bonding assessment, and
family therapy. The evidence presented at the protective custody hearing supports the court’s
finding that these reasonable efforts were made to reunify Paul and Maykala. Kenealy stated in
her affidavit that she offered to help Paul find alternate housing after she informed him that
Maykala could not be placed in the same home as his mother, whom Paul was living with.
Despite knowing that placement would not occur if he lived in the same home as his mother,
Paul indicated to Kenealy that he wanted to continue living with his parents and did not intend
on moving. Kenealy’s affidavit also states that she offered Paul the services of a family support
worker to assist him with finding employment and housing, but Paul refused to work with a
family support worker. Kenealy’s affidavit also states that she recommended parenting classes,
which Paul said he did not need. Kenealy stated that Gurock had recommended a bonding
assessment, which Paul did not feel was necessary. Kenealy also offered to get Paul involved in
family therapy and told him it was recommended by NFC and Gurock. He initially refused, and
then stated he would consider it; however, as of March 7, 2014, he had not agreed to take part in
family therapy. The evidence presented at the protective custody hearing was sufficient to
demonstrate that reasonable efforts were made to preserve and reunify the family.
Paul also argues that the evidence at the protective custody hearing does not support the
juvenile court’s finding that placement of Maykala with him would be contrary to her health and
safety. Based on our de novo review, we find that the evidence at the protective custody hearing
was sufficient to support this finding. Most notably, the evidence showed that Paul does not have
appropriate housing for Maykala. As previously discussed, Paul lives with his parents and his
mother is not approved to live in the same house with Maykala. In addition, Paul had a limited
relationship, if any, with Maykala before this case was initiated. Kenealy’s affidavit states that
according to Maykala’s mother, Paul did not see Maykala between March 2010 and October
2012. Maykala was only 6 years old at the time of the protective custody hearing.
Further, the affidavits of Kenealy and Gurock set out the concerns at visits, including
Paul’s arguing with Maykala and swearing or making inappropriate statements. The evidence
also showed that Maykala has memories of Paul’s abusing her mother.
The evidence showed by a preponderance of the evidence that continued detention of
Maykala was necessary for her health, safety, and welfare, and that reasonable efforts had been
made by the State to reunify and preserve the family as required by § 43-283.01. The juvenile
court did not err in continuing Maykala’s detention with the Department pending adjudication.
CONCLUSION
We conclude that the juvenile court did not err in applying the parental preference
doctrine, thereby denying placement of Maykala with Paul in its March 11, 2014, order. We
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further conclude that the juvenile court did not err in continuing Maykala’s detention with the
Department pending adjudication in its March 14, 2014, order.
AFFIRMED.
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