In re Interest of Joezia P. & Joesive P. ( 2021 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
IN RE INTEREST OF JOEZIA P. & JOESIVE 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 JOEZIA P. AND JOESIVE P.,
CHILDREN UNDER 18 YEARS OF AGE.
STATE OF NEBRASKA, APPELLEE,
V.
JACARA P., APPELLANT.
Filed January 19, 2021. No. A-20-468.
Appeal from the Separate Juvenile Court of Lancaster County: ROGER J. HEIDEMAN, Judge.
Affirmed.
Joy Shiffermiller, of Shiffermiller Law Office, P.C., L.L.O., for appellant.
Patrick F. Condon, Lancaster County Attorney, and Maureen E. Lamski for appellee.
PIRTLE, Chief Judge, and MOORE and ARTERBURN, Judges.
PIRTLE, Chief Judge.
INTRODUCTION
Jacara P. appeals from the order of the Separate Juvenile Court of Lancaster County which
adjudicated her son, Joesive P., to be a child within the meaning of Neb. Rev. Stat. § 43-247(3)(a)
(Reissue 2016). For the reasons that follow, we affirm the juvenile court’s order.
BACKGROUND
Jacara is the mother of Joezia P., born in August 2017, and Joesive, born in April 2020.
After filing her appeal in this case, Jacara voluntarily relinquished her parental rights to Joezia,
and we discuss him only to provide context. Neither Joezia’s nor Joesive’s fathers are involved in
this appeal.
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On April 3, 2020, the State filed a petition alleging that Joesive was a juvenile within the
meaning of § 43-247(3)(a). The petition alleged that Jacara’s parental rights to her older children
had been involuntarily terminated in 2014; that Joesive’s older half-brother, Joezia, had been
adjudicated as a juvenile within the meaning of § 43-247(3)(a) and had not been returned to
Jacara’s care; that Jacara had a long history of substance abuse and was in need of residential
treatment prior to being able to safely take care of an infant; and that Jacara’s actions put Joesive
at a risk of harm.
A hearing on the State’s petition was held on June 16 and 23, 2020.
The State first presented the testimony of Julie Ernst, a child and family services specialist
with the Nebraska Department of Health and Human Services (the Department). Ernst testified
that she had been assigned to Jacara’s case in March 2019. At that time, Joesive had not yet been
born, but the State had filed a petition alleging that Joezia was a child within the meaning of
§ 43-247(3)(a). Ernst attempted to help Jacara complete a co-occurring substance abuse and mental
health evaluation, which she testified Jacara did not complete. Ernst testified that the Department
had concerns about Jacara’s substance abuse, her ability to maintain a safe and stable home, to
maintain steady income, and about her willingness to complete and follow up with the substance
abuse evaluation.
In September 2019, Jacara received a sentence of 365 days’ jail time following a conviction
for attempted possession of a controlled substance. Ernst testified that it was only after she was
incarcerated that Jacara completed the co-occurring evaluation. The evaluation recommended that
Jacara participate in long-term residential treatment to address her substance abuse issues. Ernst
testified that during her incarceration, Jacara participated in individual therapy and medication
management. Jacara was unable to complete other tasks ordered by the Department, such as
participating in long-term residential treatment, attending domestic violence programming,
completing a Child Dyadic Assessment, and maintaining a legal means of income and stable
housing. Ernst testified that in March 2020, she was removed from Jacara’s case. At the time Ernst
was taken off of the case, Jacara had not yet completed the rehabilitative plan created by the
Department.
On cross-examination, Ernst agreed that Jacara had completed programming during her
incarceration, including a job readiness life skills class and a trauma healing class. Ernst admitted
that at the time she was first assigned to the case, Joezia was still living with Jacara. She testified
that Joezia was only placed in the Department’s custody in September 2019, due to Jacara’s
incarceration. Ernst admitted that during the months Joezia was living with Jacara, she did not see
evidence that Jacara was abusing substances. However, Ernst stated that she later learned Jacara
had not been truthful with her and that Jacara had, in fact, used methamphetamine while Joezia
was in her care and while she was pregnant with Joesive.
Karissa Dunkin, a child a family services specialist with the Department, testified. Dunkin
was assigned as Jacara’s caseworker after Ernst left the case. She testified that when she first met
Jacara, she was still incarcerated, and that Joesive had not yet been born. Dunkin testified that
Joesive was born in April 2020, 3 days after Jacara was released from jail. At the time of the
hearing, the Department had not set up services for Jacara and Joesive, but Dunkin testified that
she recommended Jacara comply with regular drug testing. Dunkin testified that to her knowledge,
Jacara had not completed any drug testing since her release from jail. She testified that she did not
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have any reports proving or disproving that Jacara had used controlled substances since her jail
intake in September 2019. On cross-examination, Dunkin admitted that Joesive had tested negative
for controlled substances at birth.
Nicole Lemke, a child and family services specialist with the Department, testified at the
hearing. Lemke testified that she was a supervisor with the Lancaster County Family Treatment
Drug Court Program, which took on cases where substance abuse was the sole or primary reason
for adjudication. Lemke testified that although this case began in 2017, Jacara did not cooperate
with the Department until she was incarcerated in 2019.
Lemke testified that even after a parent successfully completes a substance abuse treatment
program, there is a concern that the parent might relapse. She testified that if a parent abuses
substances, there are risks to any children who live in the home. She testified that there were risks
because people who abuse substances often associate with other drug users, which could lead to a
high volume of traffic in and out of the home. She testified there was also a risk that controlled
substances might be present in the home. Lemke testified that a parent who abuses substances may
be erratic and short tempered, may sleep for long periods of time, and may not be able to tend to
the needs of a child. She further testified that homelessness is often a factor in cases where a parent
abuses substances.
On cross-examination, Lemke admitted that both Joesive and Jacara had tested negative
for controlled substances at the time of Joesive’s birth. She agreed that after her release from jail,
Jacara had completed short-term residential treatment for substance abuse, and that at the time of
the hearing, Jacara was enrolled in long-term residential treatment. Lemke testified that the
treatment facility permitted minor children to live with their mothers on a case-by-case basis.
The State next called Sarah Worley, a licensed drug and alcohol counselor, to testify.
Worley completed a mental health and substance abuse evaluation of Jacara in October 2019.
Worley testified that Jacara last used methamphetamine the day before she was incarcerated. At
the time of the evaluation, Jacara was 16 weeks pregnant with Joesive. Jacara told Worley that she
had been unaware she was pregnant until she arrived at the jail. Ultimately, Worley recommended
that Jacara complete long-term residential treatment. Worley’s recommendation was based on the
fact that Jacara had unsuccessfully attempted short-term residential treatment in 2017 and because
Jacara had continued to use methamphetamine up until the date of her incarceration. Worley
testified that even if Jacara could successfully complete long-term residential treatment, she would
still recommend that the Department monitor Jacara via drug testing in order to ensure sobriety.
Worley testified that the risks associated with parenting a child while using methamphetamine
included erratic and impulsive behaviors which could place a child in danger.
After the conclusion of Worley’s testimony, the State rested its presentation of evidence.
Jacara testified that her parental rights to her older children had been terminated in 2014,
at which time she had been in prison. Jacara testified that she had come to the Department’s
attention again in 2017 because Joezia had tested positive for controlled substances at birth. Jacara
denied that she had ever used methamphetamine around Joezia. She stated that when she used
drugs, she had left Joezia at home with her mother. However, she admitted that she had lied to her
caseworkers, including Ernst, about her drug abuse.
Jacara testified that she learned she was pregnant with Joesive when she completed intake
at the jail in September 2019. Jacara testified that at the time of the hearing, she was living at a
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long-term residential treatment facility with family support, and that the program would potentially
allow Joesive to be placed with her while she completed treatment.
Jacara next called Coral Frazell to testify. Frazell testified that she was the clinical director
at Jacara’s treatment program. She testified that the program lasted 6 months and allowed mothers
and children to live together during treatment. Frazell testified that staff were present at the facility
24 hours a day and that the residents were drug tested at least weekly. She testified that because
Jacara had been admitted to the program only a week before the hearing, it was too early to assess
whether Jacara had made any progress.
On cross-examination, Frazell agreed that it is important to monitor parents who are in
substance abuse treatment and for a period of time after their release from treatment. She testified
that when a child’s parent abuses substances such as methamphetamine, there is a potential for the
child to develop cognitive issues, problems in school, and difficulties in handling emotions. Frazell
testified that although children could potentially be placed with their mothers in Jacara’s treatment
facility, the availability of that option would depend upon the mother’s individual progress. She
testified that in Jacara’s case, it might be several months before Joesive could be placed with
Jacara.
Following Frazell’s testimony, Jacara rested her presentation of evidence.
On May 28, 2020, the juvenile court entered an order adjudicating Joesive as a juvenile
within the meaning of § 43-247(3)(a). The court found the that State had proven that the allegations
in the petition were true by a preponderance of the evidence. Specifically, the court found that
Jacara’s parental rights to two older children had been terminated; that the conditions that had led
to Joezia’s removal and adjudication had yet to be corrected; that Jacara had a long history of
substance abuse and that she had used methamphetamine while pregnant with Joesive; that Jacara
was in need of residential substance abuse treatment; and that Joesive was at risk of harm as a
result of Jacara’s actions.
Jacara timely appealed the order of the juvenile court.
ASSIGNMENTS OF ERROR
Jacara assigns, restated, that the juvenile court erred in finding sufficient evidence to
adjudicate Joesive under § 43-247(3)(a).
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 Jordan B., 300 Neb. 355, 913 N.W.2d 477 (2018).
ANALYSIS
Jacara assigns that the juvenile court erred in adjudicating Joesive under § 43-247(3)(a)
because the State did not to prove by a preponderance of the evidence that Jacara had failed to
provide proper parental care, support, and supervision, and that Joesive was at a risk for harm
because of Jacara’s actions.
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Section 43-247(3)(a) provides that the juvenile court has jurisdiction of any juvenile who
is abandoned by his or her parent, guardian, or custodian; who lacks proper parental care by reason
of the fault or habits of his or her parent, guardian, or custodian; and whose parent, guardian, or
custodian neglects or refuses to provide proper or necessary subsistence, education, or other care
necessary for the health, morals, or well-being of such juvenile. To obtain jurisdiction over a
juvenile at the adjudication stage, 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 Justine J. et al., 286 Neb. 250, 835 N.W.2d 674 (2013).
The purpose of the adjudication phase is to protect the interests of the child. Id. The
Nebraska Juvenile Code does not require the separate juvenile court to wait until disaster has
befallen a minor child before the court may acquire jurisdiction. Id. While the State need not prove
that the child has actually suffered physical harm, Nebraska case law is clear that at a minimum,
the State must establish that without intervention, there is a definite risk of future harm. Id. The
State must prove such allegations by a preponderance of the evidence. Id. A preponderance of the
evidence requires proof which leads the trier of fact to find that the existence of the contested fact
is more probable than its nonexistence. State v. Taylor, 286 Neb. 966, 840 N.W.2d 526 (2013).
On appeal, Jacara does not dispute the testimony surrounding her history of substance
abuse, nor the fact that her older children (including Joezia) were all adjudicated as the result of
her conduct. Rather, Jacara argues that the State “has failed to prove that an evidentiary nexus
between Jacara’s conduct and a definite risk of harm to Joesive exists.” Brief for appellant at 14.
She argues that because the State’s evidence of her substance abuse relates to her actions prior to
the time she learned she was pregnant with Joesive, it is insufficient to show that he was at a risk
of harm. She alleges that at the time of the adjudication hearing, she had been sober for nearly a
year, was currently enrolled in residential treatment, and had never used controlled substances in
Joesive’s presence. Jacara further highlights “the fact that [she] is no longer incarcerated and is, as
a result, able to care for Joesive.” Brief for appellant at 18. We conclude that these arguments are
not persuasive.
Evidence at the adjudication hearing showed that Jacara had long standing substance abuse
problems which had led to the adjudication of Joezia as well as four older children. Jacara’s
parental rights to two of her children were terminated in 2014, and two other children had been
placed with their biological fathers. Joezia was placed in the Department’s custody in September
2019 and had not been returned to Jacara’s care. The substance abuse evaluation conducted by
Worley recommended that Jacara complete long-term residential treatment to address her
addiction issues; at the time of the hearing, Jacara had only been enrolled in a residential treatment
program for a week. Testimony from the program’s director showed that although Joesive could
potentially be placed with Jacara in the treatment facility, it would be several months before such
a placement would be an option. Even if Jacara successfully completed long-term treatment, Jacara
was still at risk of relapse, and the Department recommended continued monitoring to ensure her
sobriety and Joesive’s safety.
This court has 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 re Interest of Andrew S., 14 Neb.
App. 739, 749, 714 N.W.2d 762, 769-70 (2006). In In re Interest of Andrew S., supra, the parents
voluntarily relinquished their parental rights to their two daughters in order to get a “clean slate”
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with their unborn son. Id. at 748, 714 N.W.2d at 769. We rejected the concept of a “clean slate”
and said that to ignore the fact that the parents chose to relinquish their rights as to their older
children rather than correct the conditions that led to adjudication “would be folly on our part” and
would unnecessarily expose the parents’ son, who was born a mere 3 months later, to a risk of
harm. Id. at 749, 714 N.W.2d at 770.
In this case, as in the case of In re Interest of Andrew S., Jacara has not yet corrected the
conditions that led to the adjudication of her five older children, i.e., her substance abuse. Prior to
her incarceration, Jacara did not cooperate with the Department’s case plan, and she lied to social
workers about her drug use. Although Jacara had been sober for nearly a year prior to the
adjudication hearing, this sobriety was the result of her incarceration, and it was too soon for there
to be evidence showing that she could maintain sobriety while living in the community. At the
time of the hearing, Jacara had only just begun residential treatment. Testimony showed that it
would be at least several months before Jacara might be in a position to parent Joesive.
The evidence further showed that until Jacara’s substance abuse issues were addressed and
treated, Jacara’s conduct placed Joesive at a definite risk for future harm. The State presented
testimony showing that children whose parents abuse controlled substances may have cognitive
issues, problems in school, and difficulties handling emotions. Parents who use methamphetamine
may display impulsive and erratic behaviors which may place a child in danger. Parents may also
be short tempered, and may sleep for long periods, during which time they cannot tend to the needs
of a child. These risks are still present even if the parent does not abuse controlled substances in
their child’s presence.
Although there was no evidence showing that Jacara had abused controlled substances
while Joesive was in her care, there was evidence that she had used methamphetamine both while
Joezia was in her care and while she was pregnant with Joesive. A juvenile court need not wait for
disaster to befall a minor child before taking action. See In re Interest of Justine J. et al., 286 Neb.
250, 835 N.W.2d 674 (2013). Here, the evidence showed that Jacara’s actions deprived Joesive of
proper parental care, support, and/or supervision, and that Jacara’s actions posed a definite risk of
future harm to Joesive.
Upon our de novo review, we find that the State met its burden in proving the allegations
of the petition by a preponderance of the evidence.
CONCLUSION
For the reasons stated above, we find there was sufficient evidence to prove the allegations
of the petition and to adjudicate Joesive pursuant to § 43-247(3)(a). The order of the juvenile court
is affirmed.
AFFIRMED.
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