State v. Barton C. (In re Jonathan C.)
| Docket Number | A-23-410 |
| Decision Date | 16 January 2024 |
| Parties | In re Interest of Jonathan C. and Zachary C., children under 18 years of age. v. Barton C., appellant. State of Nebraska, appellee, |
| Court | Nebraska Court of Appeals |
Appeal from the County Court for Cass County: David J. Partsch Judge.
Michael Ziskey, of Fankhauser, Nelsen, Werts, Ziskey & Merwin, P.C., L.L.O., for appellant.
Sarah M. Sutter, Chief Deputy Cass County Attorney, for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
Barton C. appeals from the order of the Cass County Court, sitting in its capacity as a juvenile court, terminating his parental rights to Jonathan C. and Zachary C. Barton argues that the court erred in finding that the State's evidence was sufficient to support termination of his parental rights. For the reasons stated herein, we affirm.
Barton and Tabatha F. are the biological parents of Jonathan, born in 2006, and Zachary, born in 2010.
On December 1, 2019, the State filed a petition alleging that Jonathan and Zachary were children within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016) due to the faults or habits of Tabatha. Although the initial adjudication petition related to Tabatha, Tabatha has relinquished her parental rights, is not part of this appeal, and will only be referenced as needed for context.
On December 10, 2019, Jonathan was removed from Tabatha's home by law enforcement and was placed in the temporary legal custody of the Department of Health and Human Services (DHHS) where he remained at the time of the May 13, 2020, adjudication by the court. Zachary was removed from Tabatha's home on January 27, 2021. Both children have remained in out-of-home placement during the pendency of this case.
At the time that the children became involved with DHHS, Barton had been absent from their lives for 7 years in part due to his incarceration in Colorado. After Barton was incarcerated, Tabatha and the children relocated to Nebraska. Barton alleged that he became aware of the ongoing DHHS case in September 2020. After speaking with the Guardian ad Litem (GAL) on October 28, Barton, pro se, filed a request to intervene and a request for counsel. He subsequently traveled from Colorado to Nebraska but remained a resident of Colorado and was in the process of moving to Oklahoma due to his employer moving its operations to that state. When Barton arrived in Nebraska, Zachary remained in Tabatha's care and Jonathan had been placed in a therapeutic group home as a result of his behaviors. Without DHHS' knowledge, Tabatha and Barton arranged for an unsupervised visit to occur between Zachary and Barton.
On January 6, 2021, in considering Barton's motion to intervene, the court ordered therapeutic visits with Jonathan and unsupervised visits with Zachary unless the court received an objection. The GAL filed an objection indicating that Barton had an unsupervised visit with Zachary over the holidays; that the school counselor indicated that she was concerned about the effect on Zachary meeting Barton because Barton had not been a part of Zachary's life for several years; and that Zachary's therapist recommended supervised visitation between Barton and Zachary and that Barton cooperate and work with the therapist to facilitate successful interactions. Following the GAL's objection to unsupervised visits, Barton's visits with Zachary were ordered to be supervised and Barton was offered voluntary family support services.
Following comments by Barton about wanting to take the children to Oklahoma, the State filed a supplemental petition on February 3, 2021, as amended on April 21, which alleged that:
In April 2021, Barton admitted to the allegations contained in the amended supplemental petition and the matter proceeded to immediate disposition. Barton was ordered to participate in supervised visitation with Zachary, to cooperate with a family support worker and therapy as directed, maintain a suitable residence, obtain and maintain gainful employment, maintain reasonable contact with the case manager and providers, and abstain from the use of alcohol and all controlled substances not prescribed. The court also ordered that Barton and the children participate in individual and family therapy arranged and approved by DHHS.
On July 26, 2022, the State filed a motion to terminate Barton's parental rights on the grounds that: Barton had substantially and continuously or repeatedly neglected and refused to give Zachary and Jonathan necessary parental care and protection under Neb. Rev. Stat. § 43-292(2) (Reissue 2016); reasonable efforts to preserve and reunify the family failed to correct the conditions leading to their adjudication under § 43-292(6); and Jonathan and Zachary had been in out-of-home care for 15 or more months of the most recent 22 months under § 43-292(7). The State also alleged that Barton was an unfit parent and that termination of Barton's parental rights was in Jonathan and Zachary's best interests.
The termination hearing was held on January 5, 2023. Testimony was adduced from Lori Larson, DHHS caseworker; Joyce Hicks, therapist; and Barton. The court received multiple exhibits including DHHS court reports and case plans, Barton's psychological evaluation, and the Interstate Compact on the Placement of Children (ICPC) report completed by the Oklahoma Department of Human Services (OKDHS).
In April 2021, Larson was assigned as the caseworker for Barton Jonathan, and Zachary. She testified that after the children were placed in the legal custody of DHHS, as part of DHHS' regular practice, letters were sent to Barton's possible addresses in an attempt to notify Barton of the ongoing case involving Jonathan and Zachary.
During the trial, Barton acknowledged that he had received one of DHHS' letters and immediately contacted the GAL. At that time, Jonathan had already been in out-of-home placement for 10 months, but Zachary was still placed with Tabatha. In September 2020, Barton traveled to Nebraska but did not obtain employment or establish residency. Barton testified that during the time that he was in Nebraska, he lived in hotels, motels, or in his vehicle. Larson testified that Barton expressed uncertainty to her about establishing residency in Nebraska.
After requesting to intervene and being offered voluntary services, Barton began participating in family support services and supervised visitation with Zachary. Larson testified that Barton regularly kept in contact with her during the pendency of the case. During one meeting with Barton, Larson asked Barton why he had been absent in the children's lives the past 7 years and Barton indicated that during his incarceration, Tabatha left Colorado with the children. Barton told her that after he was released in January 2014, he did not know where Tabatha and the children were living and he could not leave Colorado due to parole restrictions. Although Barton eventually learned that Tabatha and the children had moved to Plattsmouth, Nebraska, he did not become involved in his children's lives until DHHS became involved in the case.
Larson testified that during the case she set case plan goals for Barton in order to help him progress through the case and reunify with his children. Barton's case plan goals included completing an initial diagnostic interview (IDI) to determine any mental health diagnoses and treatment plans. Larson testified that she also became concerned regarding Barton's possible substance use. On January 21, 2021, Barton was arrested in Nebraska for driving under the influence (DUI) which resulted in the cancellation of one of his visits with Zachary. In May 2021, following the adjudication and disposition, Barton returned to Colorado to voluntarily complete an IDI and a psychological evaluation.
The psychologist also provided that Barton was "a concrete thinker," that he was a high risk for relapsing with alcohol abuse, and that it was unlikely he would benefit from any additional inpatient or outpatient substance abuse disorder (SUD) treatment, but the psychologist strongly encouraged Barton to participate regularly in AA meetings to help maintain his current reported sobriety.
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