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In re Nicole M.

Supreme Court of Nebraska

March 21, 2014

IN RE INTEREST OF NICOLE M., A CHILD UNDER 18 YEARS OF AGE. STATE OF NEBRASKA, APPELLEE AND CROSS-APPELLEE,
v.
BRANDY S., APPELLANT, AND THOMAS M., APPELLEE AND CROSS-APPELLANT. IN RE INTEREST OF SANDRA M., A CHILD UNDER 18 YEARS OF AGE

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[Copyrighted Material Omitted]

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Appeals from the County Court for Buffalo County: GRATEN D. BEAVERS, Judge.

Stephen G. Lowe for appellant.

Mandi J. Amy, Deputy Buffalo County Attorney, for appellee State of Nebraska.

John M. Jensen, of Yeagley, Swanson & Murray, L.L.C., for appellee Thomas M.

Michele J. Romero, of Stamm, Romero & Associates, P.C., L.L.O., guardian ad litem for children.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.

OPINION

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[287 Neb. 686] Heavican, C.J.

I. INTRODUCTION

The county court for Buffalo County, sitting as a juvenile court, terminated the parental rights of Thomas M. (Tom) and Brandy S. to their children Nicole M. and Sandra M. Brandy appeals, and Tom cross-appeals. We affirm in part, and in part reverse.

II. FACTUAL BACKGROUND

Tom and Brandy are the biological parents of Nicole, born in October 2004, and Sandra, born in January 2006. Tom [287 Neb. 687] is employed as a maintenance worker at a trailer court in Kearney, Nebraska, where he, Brandy, and the children live. Brandy is sporadically employed and has recently worked as a hotel housekeeper and in the fast-food industry. Tom and Brandy are not married.

1. Events Leading to Adjudication

On March 28, 2011, Nicole and Sandra were removed from the family home due to its unsanitary condition. As early as July 2008, law enforcement had investigated the family due to similar allegations, as well as to injuries sustained by Nicole. Voluntary services had been provided to the family prior to the children's removal.

A petition to adjudicate was filed on March 29, 2011, and the children were adjudicated on April 6. The children were moved to a foster placement.

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2. Adjustment to Foster Home and Reports of Prior Abuse

Upon entering the foster home, the children reportedly suffered from nightmares, bed-wetting, recurrent head lice, and poor hygiene practices.

Initially, the children's foster parents encouraged an open relationship with Tom and Brandy. But that openness ended when Brandy began having trouble with boundaries. Even after being instructed to stop contacting the foster mother, Brandy continued to do so.

While in the foster home, further details of Nicole's and Sandra's lives were revealed. First, Nicole told her foster mother that her home was unsafe and that Tom and Brandy fought a lot. Nicole also told her foster mother that Brandy made verbal threats against them. Most notably, according to Nicole, Brandy had threatened to stab the children while they slept. The children's foster mother also testified that the children told her Brandy physically abused them. Information from the foster mother states that in May 2012, Nicole told her that " 'Mommy is nice if people are around but when she gets us alone she is mean.'"

In addition, the children told their foster mother that they had both been sexually assaulted by a friend of Brandy's. [287 Neb. 688] Brandy informed the children's therapist, Pamela Trantham, of this abuse. Upon further investigation, the person accused admitted the allegations and has since been convicted of third degree sexual assault of a child. It was also suggested that Tom and Brandy were aware of the assaults but did not report them to law enforcement because they did not wish the children to have to testify against the perpetrator.

In addition to Brandy's being aware of the allegations, there is some evidence in the record to suggest that Brandy took the children to the jail to visit the perpetrator after becoming aware of the abuse.

3. Visitation

For most of the children's time in out-of-home placement, there has been supervised visitation with Tom and Brandy. There was a brief period of semisupervised or unsupervised visitation in the summer of 2011. There were reports that during that period of time, each of the children experienced issues with hygiene, including dirty clothes, face, and hair, and not having a toothbrush or brushing their teeth for an entire weekend visitation.

More significantly, Nicole reported that during this unsupervised visitation, Brandy physically abused the children. Nicole further reported that Brandy told her not to tell anyone about the abuse or the children would not get to go home. According to Trantham, Nicole indicated that Tom and Brandy would get into fights during visitation. This allegation was confirmed in at least one instance by the family support worker.

Tom and Brandy denied that abuse was occurring at visitation. Tom testified that he did not see any fear on the part of the children during unsupervised visitation and that the children appeared to not want to leave visitation.

The children's foster mother testified that she noticed a high level of anxiety and fighting between the children around the time of visitation with Tom and Brandy and that it took a few days to get the children back into a routine after a visit.

Notwithstanding the abuse allegations, the children were generally happy to see Tom and Brandy during visitation and the visits were largely harmonious. However, there were issues. [287 Neb. 689] For example, the family support worker reported that Brandy left dirty dishes in the sink with the

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expectation that Nicole and Sandra would wash them during their visit. There was also evidence that Brandy was not always interested in parenting during her visitation with the children. One family support worker testified that Brandy " often put her other friends and relatives ahead of her visits" with the children.

4. Nicole's Counseling

After the children's removal, both began counseling with Trantham. Nicole had been diagnosed with posttraumatic stress disorder and adjustment disorder. Initially, Nicole made progress with her counseling. But in March 2012, Brandy, who had been transporting the children to their therapy appointments, began pressuring Nicole to ask for resumption of unsupervised visitation. This caused Nicole to disassociate, including experiencing problems sleeping, impaired concentration, and auditory hallucinations telling her to harm her foster mother.

During Nicole's therapy, she also expressed fear over being alone with Brandy and was generally an anxious child. Nicole did have some issues with lying, although Trantham indicated that she was not concerned with this issue, given Nicole's age. Nicole was eventually medicated to help control her anxiety and other symptoms.

Trantham testified that Nicole was very intelligent, presented much older than her age, and exhibited much responsibility for Sandra. Trantham reported that Nicole understood how the foster care and court processes worked, including the roles of the various individuals involved.

According to Trantham, Nicole reported during her therapy sessions that Brandy had physically abused her when she and Sandra lived at home as well as during visitation. Nicole reported that, generally, when the abuse occurred, Tom would tell Brandy to stop. There is at least some evidence in the record that Nicole also reported Tom would pull her hair, though details of this allegation are not clear.

The record includes a letter written by Nicole to her guardian ad litem requesting that she not be made to see Brandy [287 Neb. 690] in an unsupervised setting. But while Nicole did not wish to see Brandy in an unsupervised setting, Trantham reported that Nicole suffered from guilt as a result of her reporting the visitation abuse, because Nicole loved Tom and Brandy and wanted to see them.

Trantham also testified about Nicole's fear of Brandy and of returning home. According to Trantham and others, Nicole feared that Brandy would sneak into her bedroom at her foster home and hurt her. This issue was alleviated when her foster father placed " 'special tape'" over the window, which he explained would keep her safe.

5. Sandra's Therapy

Sandra also engaged in therapy. She was diagnosed with an adjustment disorder, and according to Trantham, she might also have " reactive attachment" disorder. Sandra did not progress in therapy as well as Nicole did.

Trantham testified that Sandra had anger issues, as well as trust issues, with adults. This seemed to be reflected in her relationship with her foster mother, who often seemed to bear the brunt of Sandra's anger. But on other occasions, Sandra seemed to make strides in her relationship with her foster mother and with Trantham. Toward the end of one of her counseling sessions, Sandra asked her foster mother what she, Sandra, had done wrong to prevent her from going home. According to Trantham's notes, during that session, Sandra was reassured that it was not her fault and Sandra " was able to identify that her 'mom and dad never came back,'"

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presumably referring to the fact that Tom and Brandy had not done what was necessary to reunify the family.

6. Recommendations Regarding Family Therapy and Reunification

Trantham indicated that she would not recommend family therapy for Tom, Brandy, and the children, because

when you have a situation where you have a victim and a perpetrator of any type of abuse, you do not put those two together until the perpetrator has experienced some sort of treatment. And that should generally mean that [he or [287 Neb. 691] she can] accept responsibility for [his or her] role and that [the perpetrator] can demonstrate some remorse.
Now, if you do that before those goals have been met, then the bulk of the responsibility shifts right back to the victim. And you run the risk of further marginalizing and victimizing that child or battered woman or whoever the case may be.

Trantham believed, based upon her interactions with Tom and Brandy at team meetings, and based upon conversations with Brandy's former therapist, that neither Tom nor Brandy had taken responsibility sufficient to proceed to family therapy.

Brandy's initial therapist, Amy Eigenberg, also testified that as of the time that Brandy stopped seeing her, Eigenberg would not yet have recommended family therapy. One of the main reasons for this lack of recommendation was Brandy's failure to take responsibility for hitting Nicole during unsupervised visitation.

But Kathleen White, Brandy's most recent therapist, testified that she believed family therapy should be attempted and that one should determine why the children were not ready and " attempt to make them ready." White indicated that she would support family therapy even if the children's fear was initially caused by the parent. White acknowledged, however, that she had not communicated with Trantham regarding the children's therapy. When asked, White also admitted that she would not perform couples' therapy with a domestic violence victim where the abuser had not taken responsibility for the abuse.

Trantham testified that reunification, up to that point, had not been possible; that she felt it was in the children's best interests not to return to Tom and Brandy's home; and that instead, Tom's and Brandy's parental rights should be terminated. Trantham did testify, however, she felt that even ...


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