In re Rebecca B.

• Decision Date: 22 December 2000
• Docket Number: No. S-99-1262 to S-99-1265.
• Citation: 260 Neb. 922,621 N.W.2d 289
• Parties: In re GUARDIANSHIP OF REBECCA B. et al., children under 18 years of age. Rebecca B. et al., Appellees, v. Sandra B., Appellant. In re Interest of Rebecca B. et al., children under 18 years of age. State of Nebraska, Appellee, v. Sandra B., Appellant.
• Court: Nebraska Supreme Court

621 N.W.2d 289

260 Neb. 922

In re GUARDIANSHIP OF REBECCA B. et al., children under 18 years of age.

Rebecca B. et al., Appellees, v. Sandra B., Appellant.

In re Interest of Rebecca B. et al., children under 18 years of age.

State of Nebraska, Appellee, v. Sandra B., Appellant.

Nos. S-99-1262 to S-99-1265.

Supreme Court of Nebraska.

December 22, 2000.

Michael E. Piccolo, of Clough, Dawson, Piccolo & Jones, North Platte, for appellant.

Patrick B. Hays, guardian ad litem for appellees Rebecca B. et al.

HENDRY, C.J., and WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

CONNOLLY, J.

These consolidated appeals by Sandra B. arise from the Lincoln County Court's decisions in four separate cases involving her three children: Rebecca B., Elizabeth B., and Jessica B.

Case No. S-99-1265 is an appeal from a review hearing wherein the county court, sitting as a juvenile court, adopted the Department of Health and Human Services' (DHHS) case plan that recommended all three children be placed with their maternal grandparents. The plan also recommended that the maternal grandparents have permanent guardianship and that Sandra have reasonable visitation with the children. In this case, we dismiss the appeal because the September 24, 1999, review order merely continued or extended the terms of the November 18, 1998, disposition order and, thus, did not affect a substantial right and was not a final, appealable order.

Cases Nos. S0-99-1262, S-99-1263, and S-99-1264 are appeals from the county court's orders appointing the grandparents as coguardians for each child under Neb. Rev.Stat. § 30-2608 (Cum.Supp.2000). In these cases, we vacate the county court's orders granting guardianship under § 30-2608 because the juvenile court had already assumed jurisdiction, and we dismiss the appeals.

BACKGROUND

In March 1998, at the initiation of the grandparents, the State filed a petition in Lincoln County Court, alleging that Rebecca, born January 12, 1983; Elizabeth, born May 15, 1985; and Jessica, born February 5, 1988, were minors within the meaning of Neb.Rev.Stat. § 43-247(3)(a) (Supp.1997). At an April hearing, the children were placed in the temporary custody of the grandparents, and an adjudication hearing was set for June.

ADJUDICATION HEARING

At the adjudication hearing, evidence was adduced showing that Sandra and James B. were divorced in 1993 and that James was not permitted visitation because of his convictions for sexual abuse of the children. The marriage was marked by James' physical abuse of Sandra as well. After separating from James in 1990 when she discovered the sexual abuse, Sandra was hospitalized at what was then the Richard H. Young Memorial Hospital in Kearney, Nebraska, for depression and suicidal thoughts. Upon release, she began counseling with Lynda Perry, a mental health practitioner, until 1993.

The record reflects that sometime in 1993, Sandra locked herself in a bedroom with a gun while her children were present in the home. She called Perry for help and was admitted to the hospital. She was diagnosed with major depression and a personality disorder, which Perry stated was difficult, if not impossible, to treat. The hospital assessment also found Sandra was a suicidal and a homicidal risk at that time, and Sandra told Perry she felt she had the potential to harm her children.

In 1995, Sandra began counseling with Karen L. Mueller. Mueller testified that Sandra's mental health issues and parenting skills had improved. Mueller stated she was not concerned for the safety of Sandra's children because Sandra had always asked for help with her depression when needed and had never formed any actual homicidal plans. Mueller admitted, however, that on three separate occasions in October 1995, March 1996, and February 1997, she had hospitalized Sandra when she was concerned for Sandra's safety or for the safety of the children. She admitted that Sandra had stated in March 1996 that she had experienced thoughts of killing her daughters as well as herself and that in 1997, Sandra had made specific plans for killing herself.

In 1996, Sandra voluntarily asked for help from DHHS, and she was provided in-home family support therapy and services until 1997. These service providers testified that they never saw or heard of a reason to refer the family to DHHS. DHHS had knowledge of Sandra's disability due to mental illnesses and her hospitalizations, but did not recommend out-of-home placement for the children.

Other evidence showed that Sandra's depression had affected her ability to parent. Perry testified that Sandra would frequently report her concerns about her children's behavior and that after a while, Perry came to the conclusion Sandra was determined to keep her children traumatized by exaggerating their problems. There was also testimony by Sandra's sister that Sandra was determined to find mental health professionals who would place Rebecca and Jessica into long-term-care facilities. Rebecca and Jessica were hospitalized in 1998, but mental health professionals testified that they had recommended the placements. Two of those recommendations, concerning Jessica, were based on a belief that Sandra was not capable of emotionally or physically providing a safe and structured environment for Jessica to deal with her problems. One counselor also recommended out-of-home placements for Rebecca in 1995 and 1996 because of disruptions she was causing at home.

Sandra had also allegedly stated she thought she could get Rebecca into the Youth Rehabilitation and Treatment Center in Geneva, Nebraska, by making Rebecca angry enough to hit Sandra and then calling the sheriff. Sandra's mother testified that Jessica had stated she did not wish to return home because no one took care of them and they had to get their own food because Sandra was always in her room.

The county court determined that each child was within the definition of § 43-247(3)(a) and placed the children in the temporary custody of DHHS, with physical placement to continue with the grandparents. The court also ordered DHHS to prepare a case plan for a disposition hearing in November.

DISPOSITION HEARING

At the disposition hearing on November 18, 1998, the State offered evidence of the family evaluation performed by Karen Sharer-Mohatt, a clinical psychologist. The report suggested that either a type of maltreatment referred to as "Factitious Disorder by Proxy" (FDP) or a type referred to as "Munchausen by Proxy" (MBP), wherein the perpetrator deliberately induces or exaggerates a physical or psychological problem in the victim for personal gratification, may have been a factor in Sandra's relationships with Rebecca and Jessica. Sandra asked for an evidentiary hearing on this issue, which the court said would be granted.

The court then adopted the first case plan calling for guardianship with the grandparents by May 1999, with reasonable visitation, but no reunification goal for Sandra. In its disposition order, the court found that reasonable efforts had been made to eliminate the need for removal from the parental home and that it was not in the best interests of the children to return home. The court placed the children in the custody of DHHS. On June 18, Sandra filed a motion for an evidentiary hearing to contest the FDP or MBP suggestion in Sharer Mohatt's report. On June 30, the guardian ad litem petitioned the county court under § 30-2608 to appoint the children's grandparents as coguardians on the ground that Sandra's parental rights to custody had been terminated or suspended.

REVIEW HEARING

At the requested review hearing on September 24, 1999, Sharer-Mohatt testified that she felt the State's case plan should have set out a plan for confirming or ruling out the FDP or MBP maltreatment and if the FDP or MBP were ruled out, to set reunification goals. She was also concerned that the children and grandparents were not receiving counseling, a condition for her acquiescence in the State's recommendation that the children be placed with the grandparents. Sandra's expert on MBP, Louisa J. Lasher, testified that she found no behavior pattern that would indicate MBP.

Sandra attempted to elicit evidence from the DHHS caseworker demonstrating that DHHS had known of Sandra's mental health history in January 1998, yet had found allegations of abuse and neglect to be unfounded. The court specifically overruled this line of questioning as irrelevant because Sandra had not appealed from the June 1998 adjudication determination. The caseworker stated reunification had not been attempted because of Sandra's past mental illnesses and the children's desire not to return to Sandra's home.

The court found that even ruling out FDP or MBP, Sandra had persistent mental disorders. The court also found that reasonable efforts had been made to prevent removal from the parental home and approved the second case plan, which was essentially identical to the first case plan, with the exception of extending the time goal for the grandparents' becoming coguardians to August 1999.

GUARDIANSHIP HEARING UNDER § 30-2608

Four days later, a guardianship proceeding was held in the county court with the same judge who presided over the juvenile proceeding. At that hearing, the court took judicial notice of the entire juvenile file. However, transcriptions of the prior hearings were not offered at that time, nor did the judge specify what facts he was judicially noticing. The parties simply agreed that the transcriptions would be marked as exhibits after the hearing. Sandra asked the court to take the matter under advisement until all the evidence was received but did not object to the judicially noticed material. The record does not indicate if the transcripts were received into evidence.

Sandra, the caseworker, and the grandmother were the only witnesses to testify at the guardianship hearing. The caseworker testified as to DHHS'...