State v. Stephen P. (In re Karizma P.), 091421 NECA, A-21-171

CourtCourt of Appeals of Nebraska
JudgeRiedmann, Bishop, and Arterburn, Judges.
Writing for the CourtARTERBURN, JUDGE.
PartiesIn re Interest of Karizma P. and Zyaziah P., children under 18 years of age. v. Stephen P., appellant. State of Nebraska, appellee,
Docket NumberA-21-171

In re Interest of Karizma P. and Zyaziah P., children under 18 years of age.

State of Nebraska, appellee,

v.

Stephen P., appellant.

No. A-21-171

Court of Appeals of Nebraska

September 14, 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 Separate Juvenile Court of Lancaster County: Elise M.W. White, Judge.

Jonathan M. Braaten, of Anderson, Creager & Wittstruck, P.C., L.L.O., for appellant.

Patrick F. Condon, Lancaster County Attorney, and Maureen E. Lamski for appellee.

Riedmann, Bishop, and Arterburn, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

ARTERBURN, JUDGE.

INTRODUCTION

Stephen P. appeals from the order of the separate juvenile court of Lancaster County which terminated his parental rights to his two children, Karizma P. and Zyaziah P. Based on the reasons that follow, we affirm.

BACKGROUND

Procedural Background

Karizma, born in September 2011, and Zyaziah, born in October 2012, are the biological children of Stephen and Audrea C. Stephen and Audrea were never married, and Audrea was the girls' custodial parent. Immediately prior to these juvenile court proceedings being initiated in July 2019, Audrea was fatally shot during a home invasion. Due to Audrea's death, Karizma, Zyaziah, and their three half siblings were placed in the custody of the Department of Health and Human Services (the Department). All of the children were present in the home when Audrea was shot and killed.

While the juvenile court proceedings below involved all five of Audrea's children and the father of Karizma's and Zyaziah's half siblings, this appeal focuses only on Stephen's relationship with Karizma and Zyaziah.

The current proceedings are not the first time that Stephen, Karizma, and Zyaziah have been involved with the juvenile court. In June 2013, the children were adjudicated as being within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016) due to the faults or habits of Stephen and Audrea. The adjudication was based upon the court finding that Stephen and Audrea had a history of engaging in domestic violence with each other in front of the children. Despite Audrea suffering from physical injuries as a result of this violence, she declined to identify Stephen as being responsible for her injuries and, thus, declined to protect her children from Stephen. As a result of the adjudication, Stephen was ordered to comply with a rehabilitation plan. As a part of that plan, Stephen was to attend and successfully complete a domestic violence batterer's program; participate in both individual and family therapy; not engage in any physical altercations with Audrea; and not have any contact with Audrea, including visiting her residence.

The prior proceedings concluded in July 2016 when the juvenile court terminated its jurisdiction over Karizma and Zyaziah. The court found that Audrea had successfully corrected the conditions adjudicated and the children's physical and legal custody were returned to her. However, the juvenile court also found: "[Stephen] has not corrected the conditions [] adjudicated nor participated beneficially in any court ordered services. [Stephen] continues to be a risk to the minor children."

In the current proceedings, on July 26, 2019, the State filed a petition alleging that Karizma and Zyaziah were within the meaning of § 43-247(3)(a) due to the faults or habits of Stephen. Specifically, the petition alleged that Stephen, who was now the children's only living biological parent, had failed to comply with the tenets of the rehabilitative plan ordered by the juvenile court during the 2013 proceedings and, as a result, was found to continue to pose a risk of harm to his daughters in July 2016, when that case was closed. The petition went on to allege that since the prior juvenile court proceedings were closed, Stephen has continued to engage in unsafe and illegal behaviors, including possessing drugs, and that Stephen currently did not have safe and stable housing. The State later filed an amended petition which included specifics regarding Stephen's criminal convictions since the close of the 2013 proceedings. Such convictions included possession of marijuana (three times), trespassing, and attempt of a Class IV felony (two times). At the time the petition was filed, the children were living in a foster home, having been removed from their home immediately after Audrea's death.

On July 31, 2019, a detention hearing was held in order to address continuing the placement of Karizma and Zyaziah in foster care. After the hearing, the court entered an order continuing the children's placement in foster care, finding that Stephen's "unalleviated history of substance abuse and interpersonal violence wo[u]ld place the children at risk of harm if placed with him at this time." The court ordered that Stephen should have reasonable rights of supervised visitation with the children as long as the children expressed comfort with such weekly visitation time. Subsequently, on August 9, the juvenile court entered an order requesting that Karizma's and Zyaziah's therapist consult with the children regarding their willingness to attend visitations with their father. The court changed the prior visitation order to allow only therapeutic visitation between Stephen and the children as long as "all parties are in agreement." On August 28, a third order was entered regarding contact between Stephen, Karizma, and Zyaziah. In that order, the court found that Stephen's contact with the children should be limited to written communication, which would be shared with the children during therapy. This level of contact was maintained throughout the remainder of the juvenile court proceedings.

On September 20, 2019, Stephen appeared before the juvenile court and entered a plea of no contest to the allegations contained in the amended petition. As a result of Stephen's plea, Karizma and Zyaziah were adjudicated as children within the meaning of § 43-247(3)(a).

Beginning in December 2019 and continuing through October 2020, the juvenile court entered four dispositional orders, each of which ordered Stephen to comply with the same rehabilitation plan. The tenets of that plan included that Stephen would participate in and successfully complete a 36-week men's domestic violence batterer's education program, attend weekly individual therapy sessions, not use or possess alcohol or controlled substances, submit to random drug and alcohol testing, not engage in threatening or assaultive behavior, and provide written forms of communication to Karizma and Zyaziah. In the court's July 2020 order, it changed the permanency plan for the children from reunification with Stephen to adoption.

On October 27, 2020, the State filed a motion to terminate Stephen's parental rights to Karizma and Zyaziah. In the motion, the State alleged that termination was appropriate pursuant to Neb. Rev. Stat. § 43-292(2), (6), and (7) (Reissue 2016). The State also alleged that termination of Stephen's parental rights was in the children's best interests.

Evidence Presented at Termination Trial

A trial on the State's motion to terminate Stephen's parental rights was held in early February 2021. At the trial, the State called three witnesses to testify: Carolyn Simon, the family's caseworker from August 2019 through September 2020; Alycia Carlston, the family's caseworker from September 2020 through the time of the termination trial; and Stephen. Additionally, Stephen testified in his own behalf. We summarize the testimony provided by each witness below.

Simon, the caseworker assigned to work with the family for the majority of the juvenile court proceedings, generally testified that from July 2019, when the case began, through September 2020 when she turned the case over to Carlston, Stephen did not make any progress toward complying with the court's orders or toward reunification with his children.

Prior to September 2019, when Stephen pled no contest to the allegations in the amended petition and the children were adjudicated as children within the meaning of § 43-247(3)(a), the Department provided Stephen the opportunity to voluntarily participate in such services as family support and a mental health evaluation. In addition, given the substance of the 2013 juvenile court proceedings involving Stephen, the Department also offered him a referral to begin the domestic violence batterer's program. Simon testified that initially, Stephen did participate in family support. He also submitted to a substance use assessment and initial diagnostic interview. However, although Stephen scheduled four different intake interviews with the domestic violence batterer's program, he never actually attended such interview.

After the September 2019 adjudication, the Department provided services to Stephen in conjunction with the juvenile court's ordered rehabilitation plan. Such services included a referral for the domestic violence batterer's program, family support, drug and alcohol testing, and individual therapy.

Simon testified that during her tenure as the family's caseworker, Stephen never enrolled in or started participating in the domestic violence batterer's program. In fact, Simon testified that in her conversations with Stephen, he continued to deny that he engaged in domestic violence during his relationship with Audrea. When he was confronted about serious injuries suffered by Audrea during their relationship, he claimed the injuries were simply accidental in nature. Simon also testified that despite Stephen participating in an initial diagnostic interview in September 2019, he did not participate in any...

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