State v. Isaiah W. (In re Interest of Lyndel W.)
| Decision Date | 06 October 2020 |
| Docket Number | No. A-19-1130.,A-19-1130. |
| Parties | IN RE INTEREST OF LYNDEL W., A CHILD UNDER 18 YEARS OF AGE. STATE OF NEBRASKA, APPELLEE AND CROSS-APPELLEE, v. ISAIAH W., APPELLANT, AND VERSI W., APPELLEE AND CROSS - APPELLANT. |
| Court | Nebraska Court of Appeals |
(Memorandum Web Opinion)
Appeal from the Separate Juvenile Court of Douglas County: CHRISTOPHER E. KELLY, Judge. Affirmed.
Darren J. Pekny, of Johnson & Pekny, L.L.C., for appellant.
Anthony M. Hernandez, Deputy Douglas County Attorney, and Mark T. Shimizu and Alexander T. Kelly, Senior Certified Law Students, for appellee State of Nebraska.
Paul Muia, of Law Offices of Paul Muia, Esq., for appellee Versi W.
Isaiah W. appeals and Versi W. cross-appeals from the decision of the separate juvenile court of Douglas County terminating their parental rights to their son, Lyndel W. For the following reasons, we affirm.
On June 30, 2019, Versi brought her 9-month old son, Lyndel, to the emergency room (ER) at Children's Hospital in Omaha. Doctors at the emergency room discovered that Lyndel was experiencing a stellate skull fracture, bruising on his back, edema, and vomiting. The emergency room doctors believed that the skull fracture was consistent with impact and blunt force trauma, which is indicative of abusive head trauma. Versi told doctors that Lyndel was having an allergic reaction to fruit and did not have a plausible reason for Lyndel's head trauma. Police officers were called to the emergency room and met with Versi and her husband, Isaiah. Upon questioning, Versi told officers that Lyndel hit his head on an end table the day prior. Isaiah told officers that Lyndel had fallen into the wall and hit his head on the crib rail the day prior.
On July 1, 2019, the State filed a petition alleging Lyndel was a minor child within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016) because he lacked proper parental care by reason of the fault or habits of Versi. The petition alleged that on June 30, Lyndel presented to the hospital ER and was subsequently diagnosed with injuries indicative of nonaccidental trauma; that Versi admitted to having care, custody and control of Lyndel the day he went to the emeregency room; that Versi did not provide a satisfactory explanation for the injuries; that Versi has failed to provide proper care, support and/or supervision of Lyndel; and that due to these allegations, Lyndel is at risk for harm. A supplemental petition was also filed on July 1, containing the same allegations with respect to Isaiah. The State also filed ex parte motions for immediate custody of Lyndel, with placement to exclude the home of Versi and Isaiah. In support of the ex parte motions, the State attached an affidavit which summarized the above events. The court ordered that Lyndel be placed in the temporary custody of the Nebraska Department of Health and Human Services (DHHS).
On July 9, 2019, a protective custody detention hearing was held and the juvenile court ordered agency-supervised visitation in a neutral location, only after an existing police hold is ended. On August 15, the State filed an amended petition and termination of parental rights, containing the same allegations as in the original petition, as well as alleging that Lyndel came within the meaning of Neb. Rev. Stat. § 43-292(2), (9), and 10(d) (Reissue 2016) and that it was in Lyndel's best interests to terminate the parental rights of both Versi and Isaiah. Within the supplemental petition, the State also alleged that reasonable efforts were not required under Neb. Rev. Stat. § 43-283.01 (Cum. Supp. 2018) because Versi and Isaiah committed felony assault that resulted in serious bodily injury to Lyndel or another child, or has subjected Lyndel to aggravated circumstances.
On October 24, 2019, trial was held and the following evidence was heard.
The State first called Dr. Suzanne Haney, who is employed at Children's Hospital as a child abuse pediatrician. Dr. Haney testified that she saw Lyndel on July 1 and 19, 2019. At the time she first attended to Lyndel, she was told he was brought to the ER due to swelling of the head and allergy concerns. Dr. Haney performed an assessment of Lyndel during a physicalexamination, where she noted that there was significant swelling and bruising on the left side of his head, and a U-shaped bruise on the middle of his back, right below the neck. Dr. Haney estimated that Lyndel's injuries occurred recently. Dr. Haney also reviewed a CT scan of Lyndel's head, a skeletal survey, lab tests, and an eye exam. She concluded that Lyndel was suffering from a stellate skull fracture on the left side of his head, with bruising, swelling, and extra-axial bleeding. Dr. Haney further explained that blood on the brain is most commonly caused by trauma, and the type of fracture on Lyndel's skull is a type of fracture only seen after high force impacts. Dr. Haney testified that typically, children who fall from furniture suffer from a single line fracture, rather than a stellate fracture like Lyndel's.
Dr. Haney testified that she used a differential diagnosis process to work through the possible causes of Lyndel's injuries by ruling out causes based on her assessment. In this case, Dr. Haney testified that the CT scan ruled out the parents' explanation of an allergic reaction and that there was no history of significant trauma or falls, and thus the only possibility was abuse.
Abigail Villegas-Hernandez is Isaiah's ex-girlfriend and the mother of Isaiah's daughter. Abigail testified that her daughter had unexplained injuries after Isaiah was watching her the night before. Abigail testified that Isaiah told her to tell the doctors that her daughter fell if anything was wrong with her. Abigail and Isaiah's daughter was admitted to the hospital and diagnosed with multiple injuries, including breaks in both of her legs.
Abigail also testified that domestic violence occurred during her relationship with Isaiah, including mental, verbal, physical, and sexual abuse. Abigail filed a petition and affidavit to obtain a domestic abuse protection order, which was offered into evidence. Isaiah's parental rights to his daughter were terminated in September 2018. Isaiah had also been incarcerated for over a year in the criminal case involving sexual assault of Abigail.
Makayla Stiles is a detective in the child victim sexual assault unit for the Omaha Police Department. On June 30, 2019, Detective Stiles began an investigation regarding Lyndel's injuries after he was brought into the ER. Detective Stiles spoke to the doctors who attended to Lyndel, a police officer who was at the hospital, and Versi in conducting her investigation. She also looked for past Child Protective Services information on both Versi and Isaiah to serve as a factor in determining whether Lyndel would be at a risk for harm if left in his parents' care.
Detective Stiles testified that Versi's mannerisms were extremely emotionless, that she was "unphased," and she would not accept that the injury was unlikely to be caused by allergies. Detective Stiles determined that Lyndel would be at risk for harm if left in his parents' care, and thus was placed in protective care. When Detective Stiles informed Versi and Isaiah that she was placing Lyndel in protective custody, neither parent was willing to separate from the other spouse to protect Lyndel.
Trae'a Bowden, an assessment worker for DHHS, testified that she received an emergency intake for Lyndel on June 30, 2019, requiring her to meet with the child within 24 hours. Bowdenwent to the ER to meet with the medical staff, but did not meet with Versi or Isaiah. Bowden was able to talk with Versi and Isaiah over the phone 2 days later. Bowden testified she was unable to opine whether the child was at risk for harm, but the cause of her concern was Lyndel's skull fracture.
Megan Miller, a family permanency specialist at PromiseShip, was assigned to Lyndel's case in July 2019. Miller opined that Lyndel would be at risk for harm if left in Versi and Isaiah's care, and it was in Lyndel's best interests to terminate both Versi and Isaiah's parental rights. Miller stated that this opinion was based on Lyndel's severe, unexplained injuries and his parents' unwillingness to address the safety concerns.
Versi called her father, Gary Conyers, to testify. Gary testified that based on his observations from living with Versi, he did not believe that Versi would hurt Lyndel. He also testified that he did not believe Isaiah caused Lyndel's injuries. However, Gary also testified that he had never talked to Versi or Isaiah about what happened to Lyndel to cause his injuries.
Versi also called her mother, Robin Conyers, who testified that Versi and Isaiah had properly cared for Lyndel since his birth. Further, Robin testified that she had never seen Isaiah lose his temper with Lyndel. Robin described the relationship between Lyndel and his parents as very loving.
After the termination hearing, the juvenile court issued an order terminating the rights of both Versi and Isaiah to Lyndel. In its order, the juvenile court found that Lyndel was admitted to the hospital with significant injuries which were diagnosed as the result of child abuse because the parents could not give viable reasons for the injuries, and specifically that Versi did not seem concerned about Lyndel's injuries. It also found that Isaiah was involved in a prior case with "remarkable similarities" in which a child was seriously injured...
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