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In re Damien S.

Court of Appeals of Nebraska

October 22, 2013

In re Interest of Damien S., a child under 18 years of age.
v.
Jerry S., appellant. State of Nebraska, appellee,

NOT DESIGNATED FOR PERMANENT PUBLICATION

Appeal from the Separate Juvenile Court of Douglas County: Elizabeth Crnkovich, Judge.

Susanne M. Dempsey Cook, of Dempsey-Cook Law, for appellant.

Donald W. Kleine, Douglas County Attorney, Jennifer C. Clark, and Emily H. Anderson, Senior Certified Law Student, for appellee.

Inbody, Chief Judge, and Irwin and Riedmann, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Riedmann, Judge.

INTRODUCTION

Jerry S. appeals from the decision of the separate juvenile court of Douglas County terminating his parental rights to his son, Damien S. We reverse the termination of Jerry's parental rights because we do not find clear and convincing evidence that termination is in Damien's best interests.

BACKGROUND

Jerry had three children with his ex-wife Jessica S. Jerry and Jessica had their parental rights to their two older children involuntarily terminated by the juvenile court in December 2010. At the time, Jessica was pregnant with Damien. This appeal involves only Jerry's parental rights to Damien.

In March 2011, Jerry assaulted Jessica and was arrested, charged with domestic violence, and subsequently incarcerated. Two months later, while Jerry was still incarcerated, Jessica gave birth to Damien. At that time, Jessica disclosed to the hospital that her rights had been terminated to her two older children. Jessica confided to an employee of the Department of Health and Human Services (DHHS) that at the time her rights to her two older children were terminated, she had been struggling. See In re Interest of Damien S., 19 Neb.App. 917, 815 N.W.2d 648 (2012). She stated that she suffered from bipolar disorder, did not take medication, used marijuana regularly, and maintained a relationship with Jerry that involved extreme domestic violence. See id. The hospital responded to her disclosure by contacting DHHS, which then became involved in the case.

DHHS initially placed Damien with Jessica, but a few months later, the State filed a petition requesting that the juvenile court find Damien to be within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2008) and remove him from her care. Specifically, the State alleged that Damien was within the meaning of § 43-247(3)(a), because Jessica and her current boyfriend had engaged in domestic violence in his presence, Jerry engaged in domestic violence with Jessica while she was pregnant with Damien, and Jerry's rights to his two older children had been terminated. See In re Interest of Damien S., supra. The trial court held a detention hearing and determined that Damien should remain in the care of DHHS. Id. We affirmed that determination on appeal. Id. At some point, the State moved to terminate Jerry's parental rights, but the record does not contain the State's petition.

Jerry apparently had visitation at some point between the removal and February 2012, but the visitation was terminated when caseworkers realized it should not have been occurring due to a protection order issued against Jerry. The record does not contain a copy of the protection order nor does it provide details about it. The record also does not disclose any further details about the initial visitation. The record does show that Jerry contacted DHHS in July 2012 and that visitation resumed.

DHHS offered Jerry supervised visitation with Damien twice a week at Jerry's apartment. To qualify for this visitation, Jerry had to move from his original residence, because ...


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