In re Interest of Lukah C. ( 2023 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
IN RE INTEREST OF LUKAH C. 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 LUKAH C. ET AL., CHILDREN UNDER 18 YEARS OF AGE.
STATE OF NEBRASKA, APPELLEE,
V.
CYNTHIA C., APPELLANT, AND JUAN B. ET AL., APPELLEES.
Filed December 12, 2023. No. A-23-300.
Appeal from the Separate Juvenile Court of Douglas County: MATTHEW R. KAHLER,
Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, and Nicole J. Tegtmeier for appellant.
Jackson Stokes, Deputy Douglas County Attorney, for appellee.
PIRTLE, Chief Judge, and MOORE and ARTERBURN, Judges.
PIRTLE, Chief Judge.
INTRODUCTION
Cynthia C. appeals the order of the separate juvenile court of Douglas County that
continued temporary protective custody of her son, Kaivian C., with the Nebraska Department of
Health and Human Services (DHHS), and excluded placement with her. She challenges the court’s
finding that there was sufficient evidence to show that removing Kaivian from her home was
necessary and that reasonable efforts were made to preserve the family prior to his removal. For
the reasons that follow, we affirm.
BACKGROUND
Cynthia is the biological mother of Kaivian, a minor child born in December 2021. Cynthia
has four other children who were all in the custody of DHHS when Kaivian was born.
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Given Cynthia’s prior issues with her other children and history of substance abuse, upon
Kaivian’s birth, the State filed its fourth supplemental petition in the juvenile court alleging that
Kaivian lacked proper parental care by reason of the fault or habits of Cynthia and was within the
meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016). Specifically, the State alleged:
[Kaivian] lacks proper parental care by reason of the fault or habits of [Cynthia], mother
of said juvenile, to wit:
(a) [Cynthia] is under the jurisdiction of the Douglas County Juvenile Court under
docket JV 19-1352.
(b) [Cynthia] has a history of substance abuse issues.
(c) [Cynthia] is currently participating in inpatient substance abuse treatment at
Family Works.
(d) [Cynthia] has not alleviated the issues for which she is under the jurisdiction of
the Douglas County Juvenile Court.
(e) Due to the above allegations, said juvenile is at risk for harm.
The State also filed an ex parte motion for immediate temporary custody asking the court to place
Kaivian in the custody of DHHS, with placement to exclude Cynthia’s home, but to allow Kaivian
to live with Cynthia in a treatment center. The juvenile court granted the motion.
On December 21, 2021, a first appearance and protective custody hearing was held and
Cynthia entered a plea of denial to the allegations in the fourth supplemental petition. Kaivian
remained in the custody of DHHS and was placed with Cynthia at a treatment center.
On March 22, 2022, the court entered an order for change of placement allowing Cynthia
to be discharged from the treatment center and to transition into her own housing. The court further
ordered that Kaivian would be allowed to transition with Cynthia into her own housing.
On August 4, 2022, the State filed an amended fourth supplemental petition which added
an allegation that Cynthia engaged in domestic violence in Kaivian’s presence. The State also filed
an ex parte motion for immediate custody asking that DHHS take temporary custody of Kaivian
and that his placement exclude Cynthia’s home. The juvenile court granted the motion and Kaivian
was removed from Cynthia’s care.
The additional allegation asserting that Cynthia engaged in domestic violence in Kaivian’s
presence concerned Cynthia’s ongoing relationship with Mandy W. Cynthia and Mandy had been
involved in an on-and-off romantic relationship for 3 years. Despite their longstanding affiliation,
DHHS did not become aware of their relationship until July 2022. Likewise, DHHS was unaware
that Mandy was living in Cynthia’s home. This presented an issue because Mandy was not
approved by DHHS to reside with Kaivian.
Upon discovering that Mandy was living with Cynthia and Kaivian, DHHS conducted a
background check on her. The background check revealed that Mandy had a significant criminal
history and history of substance abuse. Her criminal history included five DUIs, with at least one
in the last 5 years, along with convictions for possession of illegal substances and multiple assaults.
Additionally, it was discovered that Mandy had been involved with DHHS regarding her own
children. Most significantly, the background check revealed that Mandy had been incarcerated for
destruction of Cynthia’s property in July 2022. It was the discovery of this recent incident that
prompted the State to file the amended fourth supplemental petition on August 4, 2022.
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Police reports of the incident indicated that on July 31, 2022, with Kaivian present, Cynthia
and Mandy had an argument that involved physical pushing. After Mandy attempted to get into
Cynthia’s apartment by breaking a window, Cynthia called law enforcement to remove her. It was
reported that after the altercation, Mandy had two bruises and scratches on her arms. As a result
of this incident, Mandy was arrested and ordered to have no contact with Cynthia. Notably, this
was the second time an incident like this had occurred between Cynthia and Mandy. Although it
is not clear when the first incident happened, it involved Mandy breaking a window during some
sort of dispute.
When DHHS asked Cynthia about the July 31, 2022, incident, she denied that any physical
altercation occurred. Instead, she told DHHS that Mandy accidentally broke a window with her
foot when trying to get her attention from outside. She later told a different story of how she did
not know who broke the window and that is why she called the police. More so, several days later,
Cynthia told her case manager that she did not know about the no-contact order and that Mandy
was watching Kaivian while she attended her therapy session. The July 31 incident, along with
Cynthia’s continued contact with Mandy, concerned DHHS.
In August 2022, the juvenile court held a first appearance and protective custody hearing
on the amended fourth supplemental petition. Cynthia entered a plea of denial to the allegations.
The court subsequently entered an order finding that it was in Kaivian’s best interest to remain in
the temporary custody of DHHS, to exclude Cynthia’s home, and ordered that she participate in
supervised visitation.
Several weeks later, DHHS became aware of another incident between Cynthia and Mandy
that had occurred on August 23, 2022. While the record is not entirely clear as to what happened,
there seems to have been a car accident involving Cynthia and Mandy. Cynthia initially stated that
Mandy was driving her car at the time of the accident, but later stated she was the one who was
driving. The accident caused some sort of altercation between them which escalated throughout
the night. Eventually, police were called and Mandy was arrested for domestic abuse. Cynthia
cooperated with the prosecution and expressed that she was willing to testify if necessary.
Mandy remained in jail on the domestic abuse charge until October 24, 2022. While Mandy
was incarcerated, DHHS workers informed Cynthia that they were concerned about her continued
contact with Mandy and emphasized the importance of her being honest with them. Despite this,
Cynthia and Mandy spoke on the phone 20 to 30 times while Mandy was in jail. After Cynthia
was informed that DHHS would access the jail phone logs, the calls ceased. However, it was
revealed that Cynthia maintained contact with Mandy in jail through Mandy’s family.
Once Mandy was released from jail, Cynthia continued contact with her. Cynthia informed
DHHS in November 2022, and again in December, that she was still in contact with Mandy. As a
result, on December 20, 2022, the juvenile court issued an order barring Mandy from having
contact with Cynthia’s children, which included Kaivian. In January 2023, Mandy posted a picture
to Facebook that appeared to show her in Cynthia’s kitchen. Then in February, a family support
worker reported that Mandy visited Cynthia’s apartment. Notably, Cynthia did not have custody
of Kaivian at this time and there was not a court order barring Cynthia and Mandy from having
contact. But as their relationship continued, so did DHHS’ concerns.
On February 6, 2023, the State dismissed the amended fourth supplemental petition and
filed a fifth supplemental petition, later amended by interlineation to a sixth supplemental petition.
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This petition added an allegation that Cynthia continued to have ongoing contact with Mandy.
Specifically, the sixth supplemental petition alleged:
[Kaivian] lacks proper parental care by reason of the fault or habits of [Cynthia], mother
of said juvenile, to wit:
(a) [Cynthia] is under the jurisdiction of the Douglas County Juvenile Court under
docket JV 19-1352.
(b) [Cynthia] has a history of substance abuse issues.
(c) [Cynthia] has not alleviated the issues for which she is under the jurisdiction of
the Douglas County Juvenile Court.
(d) [Cynthia] engaged in domestic violence in the presence of said juvenile.
(e) [Cynthia] continues to have ongoing contact with Mandy [W.], and
(f) [D]ue to the above allegations, said juvenile is at risk for harm.
On the same day, the State filed an ex parte motion for immediate custody of Kaivian with
placement to exclude Cynthia’s home and the court entered an ex parte order for immediate
temporary custody.
A first appearance and protective custody hearing was held on February 14 and 24, 2023.
The State called two witnesses: Allyson Hoover and Ashley Starostka. Prior to Kaivian’s birth,
Hoover was the case supervisor for Cynthia and her other children from August 2019 through
December 2020. Beginning in August 2021, she was Cynthia’s secondary case manager until June
2022. Notably, she was in this position when Kaivian was born in December 2021. She then served
as Cynthia’s case manager during July and August 2022. Starostka became Cynthia’s case
manager in September 2022.
In describing why Cynthia’s continued contact with Mandy was concerning, Starostka
stated:
It’s a concern because it’s an active safety threat, and it’s been a concern since the
beginning of this case. After reviewing the case in its entirety, for the most part, and
reviewing past information, Cynthia has not demonstrated or does not have insight
regarding how having those relationships could put her children in unsafe situations.
In addition, Hoover explained there were also concerns that Cynthia’s relationship with
Mandy would trigger her substance abuse problems. Cynthia tested positive for alcohol in August
2022 and had been reportedly drinking when the July 31 and August 23 domestic violence
incidents occurred. Starostka later explained that a portion of these concerns also stemmed from
Cynthia’s relationships with Mandy’s mother and sister who also have substantial histories of
substance abuse. While Mandy was no longer barred from contacting Cynthia and DHHS had
never told Cynthia she could not contact Mandy’s family, given Cynthia’s history of addiction,
Starostka felt that Kaivian’s safety was at risk if Cynthia maintained these relationships.
Starostka was also particularly worried about Cynthia’s lack of progress in developing
healthy relationships and the long-term impacts of domestic violence on Kaivian. Specifically, she
stated: “[Cynthia] has engaged in all of these services, yet we are still at the same place and having
the same conversations and essentially the same concerns regarding those relationships and setting
up informal supports and understanding the difference between a healthy relationship and an
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unhealthy relationship.” Most notably, Starostka was concerned that despite successfully
completing multiple domestic violence classes, Cynthia was still in contact with Mandy.
Starostka also outlined other problems that Cynthia was experiencing. On December 22,
2022, Cynthia was discharged from therapy due to lack of progress, missed therapy sessions, and
consistent tardiness. Then on December 27, the visitation agency working with Cynthia and her
five children discharged her as a client due to lack of progress and lack of follow-through with
disciplining the children during visits. Visitation workers reported the children physically
assaulted each other and the workers with minimal redirection by Cynthia. Starostka attempted to
secure visitation services from another agency, but the 36 visitation agencies in Nebraska declined
their services due to safety concerns.
Starostka felt that the combination of all these problems posed risks to Kaivian’s safety.
When asked to outline the exact safety threats posed by Cynthia’s conduct, Starostka listed
numerous problems that made her question Cynthia’s suitability to care for Kaivian. These
problems included the risk of domestic violence, the lack of follow-through in parenting skills, the
lack of follow-through in disciplining the children when they are physically aggressive with one
another and visitations workers, and the inability to provide structure and routine for Kaivian. The
list continued with Starostka citing Cynthia’s problems with resource management and being able
to support herself without outside influence or support. She was also concerned about Cynthia’s
ability to raise five children without that additional support and her ability to maintain sobriety
given the people she was surrounding herself with.
Starostka also spoke about the difficulties in managing Cynthia’s case. She reported that
Cynthia is routinely inconsistent with her and other DHHS workers. She tells different things to
different people so there is constant chaos in orchestrating her case plan. Cynthia told Starostka
that she signed certain medical release forms so the caseworker could contact the medical provider
about Cynthia’s prescription for amphetamines. However, the provider said that the releases were
never signed. Similar problems with retrieving information arose with Cynthia’s domestic violence
classes, therapy, and narcotics anonymous courses. Starostka described managing Cynthia’s case
as “never-ending chaos.”
On March 17, 2023, the juvenile court issued its order. The court found Starostka and
Hoover’s testimony to be credible and stated that the court “heard extensive testimony regarding
the nature of the mother’s ongoing relationship with Mandy [W.], including domestic violence and
dishonesty from [Cynthia].” The court went on to find the State demonstrated that Kaivian’s best
interests were not served by having him reside with Cynthia. Instead, it was in his best interests to
remain in the temporary custody of DHHS and that the state met its “burden with respect to [its]
protective custody request.” Cynthia now appeals this order.
ASSIGNMENTS OF ERROR
Restated and reordered, Cynthia assigns the juvenile court erred by (1) finding that
continued protective custody of Kaivian in an out-of-home placement was necessary; (2) failing
to include in its order a specific finding as to whether reasonable efforts had been made prior to
Kaivian’s removal; and (3) finding that reasonable efforts to preserve the family had been made
prior to his removal.
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STANDARD OF REVIEW
An appellate court reviews juvenile cases de novo on the record and reaches a conclusion
independently of the juvenile court’s findings. In re Interest of Lilly S. & Vincent S., 298 Neb. 306,
903 N.W.2d 651 (2017).
ANALYSIS
CONTINUING TEMPORARY PLACEMENT WITH DHHS
Cynthia assigns the juvenile court erred in finding that Kaivian’s continued placement out
of the home pending adjudication was necessary. She argues there was insufficient evidence to
find that Kaivian was at risk of harm in Cynthia’s care.
Neb. Rev. Stat. § 43-254 (Cum. Supp. 2020) sets forth the requirements for continuing to
withhold a juvenile from his or her parent pending adjudication, and it provides, in part, as follows:
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.
The State must prove the requirements of § 43-254 by a preponderance of the evidence. In re
Interest of Tayla R., 17 Neb. App. 595, 767 N.W.2d 127 (2009).
Upon our de novo review, we conclude that the State proved by a preponderance of the
evidence that placement with Cynthia would be contrary to Kaivian’s health, safety, or welfare.
Specifically, we find that Cynthia’s failure to alleviate the issues that brought her under the
jurisdiction of the juvenile court, her engaging in domestic violence in Kaivian’s presence and her
continued relationship with Mandy collectively present risks to Kaivian’s safety and welfare.
Cynthia’s lack of progress in implementing changes in her life poses risks to Kaivian.
Cynthia has participated in a series of services including three domestic violence courses, therapy,
and supervised visitation. While she completed the domestic violence courses, she was discharged
from therapy due to excessive absenteeism and tardiness. Further, the visitation agency that was
providing visitation services for her parenting time with her five children stopped providing
services due to safety concerns. Specifically, Cynthia was not following through with safety
precautions and did not redirect her children’s behavior when they were aggressive with each other
and visitation workers. Starostka described managing her case as “complete chaos” and cited a
number of continuing issues. Most notably, despite her completion of the domestic violence
courses, Cynthia continued to have contact with Mandy. These issues illustrate her lack of progress
in implementing lessons gained from these services and signify that Cynthia does not comprehend
the safety risks involved in maintaining unhealthy relationships. While these issues alone may not
present sufficient risks to Kaivian’s health, safety, or welfare to warrant continued protective
custody, they provide a foundation for more precarious behavior; most notably, the threat posed
by Cynthia’s continued relationship with Mandy.
Beyond serving as an example of Cynthia’s lack of progress in implementing changes in
her life, her relationship with Mandy poses a definite risk to herself and to Kaivian. The Nebraska
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Supreme Court has stated, “[I]f a child observed the subsequent results of domestic violence or
was otherwise made aware of the domestic violence, this could constitute a risk for harm to the
child.” In re Interest of Lilly S. & Vincent S., 298 Neb. 306, 316, 903 N.W.2d 651, 660-61 (2017).
While it is not clear whether Kaivian was present during the August 23, 2022, incident involving
the car accident, he was present for the July 31 incident where Mandy broke a window to enter
Cynthia’s home. This incident obviously posed certain risks to Kaivian at the time it was carried
out, but it is the ongoing risk of future incidents, given Cynthia’s continued relationship with
Mandy, that presents risks to Kaivian’s safety and welfare. Despite being involved in two domestic
violence incidents that required law enforcement intervention, Cynthia continues to have contact
with Mandy. She maintained contact with Mandy after Kaivian was removed from her home, while
Mandy was in jail, and after she was released. She even continued contact and allowed Mandy to
watch Kaivian alone while there was a no-contact order in place after the July 31 incident.
Cynthia’s continued relationship with Mandy presents obvious risks to herself and to Kaivian that
raises valid questions as to Kaivian’s future safety and welfare. As such, we find the State met its
burden to demonstrate, by a preponderance of the evidence, that placement with Cynthia would be
contrary to Kaivian’s health, safety, or welfare.
REASONABLE EFFORTS
Cynthia assigns the juvenile court erred when it did not make a specific finding that
reasonable efforts had been made to preserve the family prior to Kaivian’s removal from the home
and by finding that the State met its burden to show that reasonable efforts were made.
In the juvenile court’s March 17, 2023, order, it did not specifically mention whether
reasonable efforts were made prior to Kaivian’s removal. Instead, the order broadly found “that
the [S]tate [met its] burden with respect to [its] protective custody request.” We find the court’s
broad language sufficiently encompassed a written determination that reasonable efforts were
made to preserve and reunify the family in accordance with § 43-254.
We also find the State presented adequate evidence that reasonable efforts were made. Prior
to removing a child from their parental home, Neb. Rev. Stat. § 43-283.01 (Cum. Supp. 2022)
requires that “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.” Meanwhile, § 43-283.01(1) provides that “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.”
The State’s evidence demonstrated that reasonable efforts had been made to prevent
Kaivian’s removal. Since Kaivian’s birth, Cynthia has been offered a multitude of services and
resources. These included time at a treatment center, case management services, foster care
placement, domestic violence courses, therapeutic treatment, and supervised visitation. As such,
on five prior occasions, the juvenile court found that reasonable efforts were being made in regard
to reunification. With many of these services still offered to Cynthia when Kaivian was removed
from her home, we conclude that reasonable efforts were made prior to Kaivian’s removal.
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CONCLUSION
We find the State met its burden to demonstrate, by a preponderance of the evidence, that
placement with Cynthia would be contrary to Kaivian’s health, safety, or welfare and that
reasonable efforts were made prior to his removal.
AFFIRMED.
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