In re Keziah S., 011921 NECA, A-20-381

Docket Nº:A-20-381
Opinion Judge:PIRTLE, CHIEF JUDGE
Party Name:In re Interest of Keziah S., a child under 18 years of age. v. Jessie S., appellant, State of Nebraska, appellee, and William S., appellee.
Attorney:Leonard G. Tabor for appellant. No appearance for appellees.
Judge Panel:Pirtle, Chief Judge, and Moore and Arterburn, Judges.
Case Date:January 19, 2021
Court:Court of Appeals of Nebraska

In re Interest of Keziah S., a child under 18 years of age.

State of Nebraska, appellee,

v.

Jessie S., appellant,

and

William S., appellee.

No. A-20-381

Court of Appeals of Nebraska

January 19, 2021

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).

Appeal from the County Court for Scotts Bluff County: Kris D. Mickey, Judge.

Leonard G. Tabor for appellant.

No appearance for appellees.

Pirtle, Chief Judge, and Moore and Arterburn, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

PIRTLE, CHIEF JUDGE

INTRODUCTION

Jessie S. appeals the order of the Scotts Bluff County Court, sitting as a juvenile court, terminating her parental rights to Keziah S. pursuant to Neb. Rev. Stat. § 43-292(2) and (4) (Reissue 2016) and finding that termination was in the minor child's best interests. The court also found, as required by the Nebraska Indian Child Welfare Act (NICWA), Neb. Rev. Stat. §§ 43-1501 to 43-1517 (Reissue 2016), that active efforts had been made to prevent the breakup of the Indian family, which proved unsuccessful, and that the continued custody of Keziah by Jessie was likely to result in serious emotional or physical damage to Keziah. Based upon our de novo review of the record, we affirm.

BACKGROUND

Jessie and William S. are the biological parents of Keziah, born July 2019. On July 31, 2019, the Nebraska Department of Health and Human Services (DHHS) received an intake report alleging physical neglect of Keziah. In August, Jessie and William agreed to participate in a non-court case and started voluntary services at that time.

On December 19, 2019, the State filed a petition alleging that Keziah was a child within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016). Specifically, the petition alleged that the child was a juvenile who lacked proper parental care by reason of the fault or habits of her parents in that her parents' use of drugs placed her at risk of harm and/or deprived her of necessary parental care, and her parents had their rights to another child terminated and the parents had not completed any steps to remedy the situation leading to the termination, placing Keziah at risk of harm and/or depriving her of necessary parental care or protection. Jessie and William's parental rights to their child, Billy S., born September 2017, were terminated in January 2019.

The petition further alleged simultaneous termination of Jessie and William's parental rights pursuant to § 43-292(2), (4), and (9); that termination was in Keziah's best interests; and that the State had made active efforts to provide remedial services and rehabilitative programs, although unsuccessfully, to prevent the breakup of the Indian family. Because Keziah is of Native American Heritage, NICWA applies to this case.

Keziah was removed from Jessie's care the same day the petition was filed and placed in the care and custody of DHHS.

A hearing on the petition was held on March 16, 2020. The evidence showed that Jessie and William had been in a relationship for 6 years and have a history of domestic violence between them. Kristin Massie, a Gering Police Officer, testified that she had interaction with Jessie and William a "handful of times" based on reports of disturbances. The most recent call was on January 8, 2020. Jessie reported that William either pushed over the chair she was sitting in or pushed her into a chair. Jessie was pregnant at the time. Massie testified that Jessie was mostly concerned that William had taken her phone. William was arrested on January 8 and charged with domestic assault on a pregnant woman.

Matthew McKeon, a probation officer, testified that Jessie was on probation at the time of the hearing and he had been her supervising officer since October 2018. She had been arrested in April for several charges, including driving under the influence. McKeon stated that Jessie has "struggled" in complying with the terms of her probation. He testified random drug tests are a term of her probation, which results in getting called to test two to three times per week, and Jessie had only submitted to less than five drug tests. She was sanctioned in January 2020 for missing drug tests, failing to report to McKeon, and failing to attend group meetings. McKeon testified that since being sanctioned in January, she had not submitted to a single random drug test. He testified that she had completed a mental health evaluation in June 2019, but just started working on the recommendations from the evaluation 2 weeks before the hearing. The recommendations included intensive outpatient programming (IOP), which focuses on substance abuse issues, and trauma-based counseling. He testified he believed Jessie had recently signed up for IOP and was supposed to start soon.

Edward Gama testified that he was Keziah's caseworker during the noncourt case. He explained that a noncourt case is a way to implement services for parents without the court being involved. He was Keziah's caseworker until December 2019, when the State filed its petition. Gama testified that during his involvement the main concerns for Jessie were her history of methamphetamine use and her mental health. He testified that Jessie claimed she was seeing a therapist but had not signed a release so he was unable to verify that she was seeing a mental health provider. Gama stated that he asked for a release every time he visited her, which was eight or nine times. He testified that without a release, the services he could provide were limited.

The services he was able to offer included Healthy Families of America, which works in the home with the parents on such things as child development and attachment, activities to do with a child, and parenting skills. Jessie participated initially, but then ended the service after a physical and developmental health assessment of Keziah was performed and it was determined she was developmentally on track. Jessie indicated that all she needed to hear was that Keziah was doing well developmentally.

Gama also made a referral for intensive family preservation (IFP), which started December 9, 2019. He testified that Jessie did cooperate, but there was difficulty contacting her for initial intake and issues in scheduling sessions.

In regard to Jessie's methamphetamine use, Gama testified that Jessie relapsed twice during the time he was the caseworker. The first time was sometime between late October and mid-November 2019, and the second time was at the end of November. At the time of the second relapse, she admitted herself to the behavioral health unit at the hospital.

Gama also testified that Jessie described her relationship with William as "very toxic," and when she was asked what she meant by that, she said that she and William would get into arguments that would become very physical.

Kylie Wilson was assigned as the caseworker to Keziah's case in December 2019. She also worked with Jessie in the prior juvenile case that resulted in the termination of her parental rights to Billy. That case began because Jessie tested positive for illegal substances at the hospital when Billy was born. Jessie was provided multiple services in Billy's case, including case management services, family team meetings, supervised parenting time, transportation, a psychological evaluation, pretreatment assessments, and family support. Jessie also went to a residential treatment facility during Billy's case, but was discharged without finishing the program.

Wilson testified that Jessie's mental health, her substance use, and domestic abuse were ongoing concerns in Billy's case and continue to be concerns in the present case. She explained that there continues to be a need for Jessie to participate in services to help manage her mental health, such as outpatient services or medication management.

In regard to domestic abuse, William was arrested in January 2020 for a domestic violence charge against Jessie and went to jail. During the time William was incarcerated, there was a no-contact order in place between him and Jessie. Jessie told Wilson that she did not want any contact with William nor did she have any contact with William in jail. However, Wilson discovered that jail records showed a call between them on February 29. During this same time period, Jessie told Wilson that her relationship with William was not a good relationship to be in and that she was participating in services to help her get out of the relationship.

Wilson testified about the services that have been offered in the present case, which included supervised visitation, family support, family team meetings, and referrals for Healthy Families of America, Circle of Security, and women's trauma classes. Wilson testified that co-occurring IOP was still being recommended, as it first was in the June 2019 evaluation. Jessie had only attended 13 out of 35 supervised visitations with Keziah. Wilson testified that many visits were missed because Jessie would not answer the door when family support came to the house with Keziah.

Wilson testified that DHHS was recommending termination of Jessie's parental rights so Keziah can have stability and permanency in a home that is willing to meet her needs on a...

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