State v. Dymond C. (In re Ahana C.), A-22-146

CourtCourt of Appeals of Nebraska
Writing for the CourtBISHOP, JUDGE
PartiesIn re Interest of Ahana C., a child under 18 years of age. v. Dymond C., appellant. State of Nebraska, appellee,
Docket NumberA-22-146
Decision Date13 September 2022

In re Interest of Ahana C., a child under 18 years of age.

State of Nebraska, appellee,
v.

Dymond C., appellant.

No. A-22-146

Court of Appeals of Nebraska

September 13, 2022


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 Separate Juvenile Court of Lancaster County: Elise M.W. White, Judge. Affirmed.

Stephanie Flynn, of Stephanie Flynn Law Office, P.C., L.L.O., for appellant.

John T. Schmidt, Deputy Lancaster County Attorney, for appellee.

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

MEMORANDUM OPINION AND JUDGMENT ON APPEAL (MEMORANDUM WEB OPINION)

BISHOP, JUDGE

INTRODUCTION

Dymond C. appeals from the decision of the separate juvenile court of Lancaster County terminating her parental rights to her daughter, Ahana C. We affirm.

BACKGROUND

Procedural Background

Dymond is the biological mother of Ahana, born in 2012. Trenton O. is Ahana's biological father. The State sought to terminate Trenton's parental rights to Ahana in these same juvenile proceedings below, but he ultimately relinquished his parental rights to her, and he is not involved in this appeal.

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On the evening of May 14, 2020, Dymond and Trenton were residing at a hotel in Lincoln, Nebraska, with Ahana when they were arrested for drug and other offenses. Ahana was taken into the emergency temporary custody of the Nebraska Department of Health and Human Services (DHHS) and placed with her maternal grandmother.

On May 18, 2020, the State filed a petition in the juvenile court alleging that Ahana was a child within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016). In count I of the petition, the State alleged that Ahana lacked proper parental care by reason of the fault or habits of Dymond, and/or that she was in a situation injurious to her health or morals in that:

1) On or about May 14, 2020, investigators with the Lincoln/Lancaster County Narcotics Task Force arrested Trenton . . . and Dymond . . . outside [a hotel], and executed a search warrant for rooms #102, #104 and #106, which were joined together and rented by Trenton . . and/or Dymond
2) [Ahana was] in the rooms, and there was food waste and dog feces throughout the rooms, with no clean area for [her] to sleep[;]
3) Investigators located marijuana, drug paraphernalia, a methamphetamine pipe with residue that pre-tested positive for amphetamines/methamphetamine, and a firearm in the rooms. All of these items were accessible to [Ahana];
4) The actions of Dymond . . . and/or the above situation places [Ahana] at risk of harm; and
5) All events occurred in Lancaster County, Nebraska.

(Emphasis in original.)

After a contested adjudication hearing on August 7, 2020, the juvenile court "[s]ustained" the allegations in the petition and adjudicated Ahana accordingly. Additionally, the court ordered Dymond to: "cooperate" with an "IDI" and substance abuse evaluation; not use or possess any mind or mood altering substances that were not prescribed by her treating physician; and comply with drug testing. Disposition was set for September 23, but was ultimately continued because Dymond timely appealed the adjudication. This court subsequently affirmed the adjudication of Ahana. See In re Interest of Ahana C., No. A-20-641, 2021 WL 684250 (Neb.App. Feb. 23, 2021). The juvenile court entered judgment on this court's mandate on April 5, 2021. The disposition hearing was set for April 26.

Following a disposition hearing on April 26, 2021, the juvenile court entered its order on April 29. The court ordered Dymond to: not use or possess alcohol, controlled substances, or other mind or mood altering substances that were not prescribed by her treating physician; submit to random drug and alcohol testing; maintain a safe and stable living environment for herself and Ahana; maintain employment or other legal means of support for herself and Ahana; maintain regular contact with her case manager; cooperate with family support to assist her in complying with court ordered services and requirements of DHHS; and have supervised parenting time with Ahana.

Following a review and permanency planning hearing in June 2021, the juvenile court ordered Dymond to cooperate with outpatient therapy as recommended in her evaluation. The remainder of the court-ordered requirements were the same as they were in the April order.

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Following a review and permanency planning hearing in September, the court-ordered requirements were the same as they were in the June order.

On September 29, 2021, the State filed a motion to terminate Dymond's parental rights to Ahana pursuant to Neb. Rev. Stat. § 43-292(6) and (7) (Reissue 2016). The motion alleged that active efforts to reunify the family had failed to correct the conditions leading to the adjudication of the child under § 43-247(3)(a), Ahana had been in an out-of-home placement for 15 or more months of the most recent 22 months, and termination of Dymond's parental rights was in the best interests of Ahana.

Termination Hearing

A hearing on the motion to terminate Dymond's parental rights was held on January 5 and 25, 2022. The State called one witness to testify, and several exhibits were received into evidence. Dymond testified in her own behalf, and her mother also testified. A summary of the relevant evidence follows.

According to DHHS court reports and case plans received into evidence, on the evening of May 14, 2020, Dymond and Trenton were residing at a hotel in Lincoln with Ahana when they were arrested for drug and other offenses. Ahana was taken into the emergency temporary custody of DHHS and placed with her maternal grandmother. A sample of Ahana's hair was collected on May 26, and it tested positive for amphetamines, methamphetamines, and THC. As a result of the May 14 incident, Dymond was charged with "[p]ossess controlled substance," a Class 4 felony; "[c]ommit child abuse negligently/no injury," a Class 1 misdemeanor; and "[o]bstruct government operations," a Class 1 misdemeanor.

Megan Snodgrass, a child and family services specialist with DHHS, testified that Ahana was removed from Dymond in May 2020. Snodgrass has been this family's case manager since the beginning of March 2021. When Snodgrass was assigned to this case, she reviewed the case file. The appeal process for the adjudication was just finishing up, and the matter was set for disposition shortly thereafter.

Snodgrass stated that at the April 2021 disposition, Dymond was ordered to participate in supervised parenting time, a co-occurring evaluation, drug testing, and family support. When asked if Dymond had successfully participated in and completed any of the court-ordered services, Snodgrass stated that Dymond had been participating in ongoing supervised visits; she completed her evaluation, but did not participate in the aftercare recommendations; and she briefly participated in family support and accomplished the employment goal but did not accomplish any of the other goals and was unsuccessfully discharged.

Snodgrass testified that Dymond participated in supervised parenting time with Ahana twice per week for a total of about 8 hours per week; for a while it was three times per week, but Snodgrass said the documentation was not clear as to why it moved back to twice per week. Approximately half of the time that Dymond had visitation it was supervised by a family member. Parenting time occurred "pretty consistently." Based on the information reported to Snodgrass, no safety concerns were noted during visits, and Dymond appeared to have a loving relationship with Ahana.

Dymond testified that she had agency-supervised visits with Ahana on Wednesdays for 2 1/2 hours and Fridays for 3 hours, and then on another day her mother supervised her visits for

3

about 7 hours. Dymond described her visits as "[g]reat, sad when I leave, happy." Dymond "[a]lways" enjoyed visits with Ahana. Dymond said she lost visitation hours, and when asked if that was due to her work schedule, she said, "yeah, that and they, I guess, didn't have much [sic] workers."

Mickey C., Dymond's mother and Ahana's grandmother, testified that Ahana had been residing with her since "all this started." Mickey had been supervising some of the visits between Dymond and Ahana for "a few months now," and did not have any concerns during the visits. Mickey described the interactions between Dymond and Ahana as "very good," they are "very . . . connected" and have a good bond, and "Ahana just loves it when her mom comes and visits and they have a good time." On days that Ahana did not have visits with Dymond, she asked about her mother, was sad, and wanted to see her.

According to Snodgrass, Dymond completed the co-occurring evaluation in April 2021, and it recommended participation in outpatient therapy and the rehabilitative reunification plan. Outpatient therapy was subsequently ordered by the juvenile court. Snodgrass sent referrals for outpatient therapy and completed a letter of agreement to pay for the service, but Dymond did not participate in outpatient therapy. Although Snodgrass did not identify any barriers to Dymond's participation in therapy, Dymond communicated that she did not believe she needed therapy and then when she started working, Dymond identified work as a barrier. Snodgrass told Dymond to speak to the therapist (the same one that did her evaluation) to see if the therapist still believed Dymond needed or would benefit from therapy; Dymond corresponded with the therapist via email a couple of times, but the therapist never told Snodgrass that her recommendation changed.

When asked how Dymond's failure to participate in therapy impacted her opinion of Dymond's fitness as a parent, Snodgrass responded, "I...

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