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In re Jordana H.

Court of Appeals of Nebraska

May 27, 2014

IN RE INTEREST OF JORDANA H. ET AL., CHILDREN UNDER 18 YEARS OF AGE.
v.
CARLOS H., APPELLANT, AND JENNIFER H., APPELLEE STATE OF NEBRASKA, APPELLEE,

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Appeal from the County Court for Scotts Bluff County: JAMES M. WORDEN, Judge.

David S. MacDonald, Deputy Scotts Bluff County Public Defender, for appellant.

Tiffany Wasserburger, Deputy Scotts Bluff County Attorney, for appellee State of Nebraska.

Jeremy C. Jorgenson for appellee Jennifer H.

Audrey M. Elliott, of Kovarik, Ellison & Mathis, P.C., guardian ad litem.

INBODY, Chief Judge, and PIRTLE and RIEDMANN, Judges.

OPINION

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[22 Neb.App. 21] Riedmann, Judge.

I. INTRODUCTION

Carlos H. appeals from the order of the county court for Scotts Bluff County, sitting as a juvenile court, terminating his parental rights to his four minor children. The cases have been consolidated for consideration on appeal. We note that the children's mother, Jennifer H., also filed a notice of appeal, but failed to file a brief. Thus, we grant her no affirmative relief. We find no merit to Carlos' assignments of error and therefore affirm the decision of the juvenile court.

II. BACKGROUND

Carlos and his wife, Jennifer, are the parents of three daughters: Skylar H., born in October 2004; Taylor H., born in February 2009; and Jordana H., born in

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December 2011. They also have one son, Ashton H., born in November 2005. When the juvenile court terminated Carlos' parental rights to the minor children, it also terminated Jennifer's parental rights. Jennifer filed a notice of appeal after Carlos perfected his appeal, and thus, pursuant to Neb. Ct. R. App. P. § 2-101(C) (rev. 2010), Jennifer is considered an appellee. In order to seek affirmative relief, Jennifer was required to file an appellee's brief containing a cross-appeal, but she failed to file a brief. Therefore, we cannot grant her any affirmative relief, and we will limit our discussion of her involvement to information necessary to address Carlos' arguments.

1. Events Leading to Removal in 2011

In October 2011, the Nebraska Department of Health and Human Services (DHHS) received several telephone calls regarding Ashton's welfare. The caller expressed concerns about Ashton's small size, multiple bruises on his body, obsession with food, and absences from school. Based on the telephone calls, Nichole Kihlthau, a child and family services specialist with DHHS, attempted to locate Ashton to do a welfare check. She contacted Ashton's school on October 10 and learned that Carlos had informed the school that Ashton [22 Neb.App. 22] was home sick because he had had an allergic reaction to a flu shot.

On October 12, 2011, Kihlthau learned that Ashton had never received a flu shot. Because Ashton had not yet returned to school, Kihlthau and a Scottsbluff police officer went to Carlos and Jennifer's house around 11 a.m. to look for him. Jennifer told them Ashton had gone on a trip with Carlos and would return in a few days. After checking on Taylor, who was asleep upstairs in the home, Kihlthau and the officer left. They went back to Carlos and Jennifer's home around 3 or 4 p.m. to gather more information about Ashton's whereabouts from Jennifer. They then left the home again and returned a third time, that evening, with two additional police officers.

While the officers searched the home for Ashton, Kihlthau went upstairs to talk to Skylar and Taylor. She observed two bedrooms upstairs at the house. One was Carlos and Jennifer's bedroom. The other bedroom was pink and contained only one bed and solely girls' clothes and toys. Kihlthau asked Skylar and Taylor where Ashton's things were, and they both said " downstairs." Skylar said Ashton's clothes were dirty because the girls were allowed to " spit and poop" on them. Kihlthau did not see any indication that a boy lived in Skylar's bedroom. When Kihlthau went to the basement of the home, she observed a rack and a laundry basket containing boys' clothes.

Finally, around 7:30 or 8 p.m., Jennifer admitted that Ashton had a large scrape across his face and that Carlos had taken him so that it did not look like Carlos and she had abused him. She said Ashton was with Carlos at Carlos' parents' house. Ashton was located there a short while later.

Subsequently, Investigator Joe Rohrer, one of the police officers who was involved in the search for Ashton, received a telephone call from Carlos. Carlos agreed to meet Rohrer at the police station. Carlos initially told Rohrer the same story that Jennifer had told: that he had taken Ashton on a trip. But when confronted with the truth, Carlos admitted that he got scared because Ashton's injuries " looked really bad" and he was afraid DHHS would take his children away. He claimed [22 Neb.App. 23] that Ashton's injuries were the result of a fall down the stairs into the basement of Carlos and Jennifer's house.

Photographs taken of Ashton that night depict a large red mark on the right side

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of his face, a bump on his forehead, a black eye, a rash all over his skin, and a distended abdomen. The large mark on Ashton's face and a mark on his shoulder contained a similar, linear pattern. Kihlthau, Rohrer, and a Scottsbluff police captain observed that the imprint on Ashton's face was consistent with a shoe print. Police confiscated several pairs of " flip-flop" sandals from Carlos and Jennifer's house. Subsequent forensic testing concluded that one of the " flip-flops" could have caused the injuries to Ashton's face and shoulder, but the testing did not rule out other potential items as the cause.

Ashton was taken to the hospital the night of October 12, 2011, for examination. The nurse who examined him said that if he had not already been in DHHS' custody when he was brought in, she would have reported his condition because she suspected his injuries were caused by abuse. Her suspicions were raised because of the extent of the bruises and scratches on his body and his overall condition. She also noticed that his size was very small for a 5-year-old, his abdomen was distended, and his arms and legs were very skinny. Skylar, Ashton, and Taylor were removed from Carlos and Jennifer's custody that night and placed in foster care. Jordana had not yet been born, but upon her birth in December 2011, DHHS immediately removed her from Carlos and Jennifer.

2. Prior Concerns of Abuse and Removal of Children

The 2011 incident was not the first time the children had been removed from Carlos and Jennifer; nor was it the first time Carlos and Jennifer had been suspected of child abuse. In 1998, Carlos pled no contest to felony child abuse from an incident involving the 6-month-old child of his former wife. In December 2004, when Carlos and Jennifer lived in Kansas, 2-month-old Skylar was taken to a hospital by ambulance because she was unconscious and not breathing. Carlos and Jennifer provided conflicting stories about what [22 Neb.App. 24] happened to her. The physician at the hospital suspected child abuse but could not substantiate it because of a lack of visible injuries.

A year later, in December 2005, Carlos and Jennifer took 2-month-old Ashton to the hospital, where it was discovered that he had a broken femur. He was also found to have older injuries that were in the process of healing, including a fractured rib and fractured elbow. Carlos and Jennifer explained that they had pulled Ashton out of the bathtub, causing his leg injury, but three physicians involved in Ashton's care agreed that the injuries were likely caused by abuse. As a result of Ashton's injuries, Skylar and Ashton were removed from Carlos and Jennifer's care and adjudicated through the Kansas juvenile court. Carlos moved out of the home for several months while he and Jennifer completed services as part of their case plan. Eventually, the children and Carlos were reintegrated into the home, and the case was closed in November 2007. The family moved back to Nebraska shortly thereafter.

In May 2009, Carlos took Ashton to a hospital emergency room with a laceration on the back of his head that required staples. The nurse who examined Ashton also noticed several areas of bruising on Ashton, including large bruises on his back and bruises in various stages of healing all over his body. The extent of the injuries was concerning to the nurse, so she reported it to the hospital's social worker. She was also concerned about Carlos' demeanor, because he was sitting 3 feet away from Ashton while Ashton was holding a dressing on his own head and because Carlos was on his cell phone throughout the entire examination. Carlos told the nurse that one of Ashton's sisters had caused the

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bruises on Ashton, but Ashton told the social worker that Carlos was the cause. Carlos also said to the nurse, " 'I know you're suspecting abuse and you're not going to find anything.'"

Concerns about Ashton's welfare were also reported in January 2010. Scottsbluff police received a report that although Ashton was 4 years old, he could speak only a few words, appeared very skinny for his age, and had bruising on his [22 Neb.App. 25] back, collarbone, and shoulders. An officer went to Carlos and Jennifer's home and observed bruises on Ashton's back and noted that he looked skinny and sickly with sunken eyes. However, Ashton was allowed to remain in his parents' care at that time.

3. Current Juvenile Court Proceedings

On October 14, 2011, the State filed petitions alleging that Skylar, Ashton, and Taylor came within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2008). On December 14, the State filed motions to terminate the parental rights of Carlos and Jennifer to Skylar, Ashton, Taylor, and Jordana. Amended petitions were filed on May 8, 2012. The termination hearing was held in August 2012 and took place over the course of 7 days.

(a) School Personnel's Testimony

Several personnel from Ashton's school testified at the hearing. A school social worker testified that she made two reports to DHHS voicing her concerns that Ashton was being abused or neglected. Her concerns were based on numerous marks on Ashton's body, the fact that he was often hungry and seemed preoccupied with food, and his frequent absences from school. In the first 2 months of kindergarten, Ashton missed 10 days of school. Several teachers at the school also testified that Ashton would often miss school and come to school with scratches, bumps, and bruises on his body.

The school personnel also noticed Ashton's fixation with food. One teacher observed that Ashton always seemed hungry and would eat all of his food and ask for more. If he dropped any of it on the floor, he would pick it up and eat it off the floor. Another teacher testified that Ashton had been found going through other students' backpacks looking for food and trying to catch food that other children were dumping in the garbage. Carlos and Jennifer told the school that Ashton had to be on a special, limited diet because he had numerous, severe food allergies. But when the school asked them to sign [22 Neb.App. 26] a release of information so the school could verify Ashton's allergies with a doctor, they refused.

(b) Skylar's Testimony

Skylar testified at the termination hearing. She described Carlos and Jennifer as " mean" because they would spank Ashton. She testified that Jennifer spanked Ashton with a belt on the back, arms, legs, and head. She said that he would cry when Jennifer hit him with the belt and that that made Skylar sad. Skylar also testified that she saw Jennifer spank Ashton with a " flip-flop" on his arms, legs, belly, and head and that the large mark on the right side of Ashton's face that was visible when the children were removed from the home was caused by Jennifer's hitting him with a " flip-flop." Skylar said that she also saw Carlos spank Ashton on the back, arms, and legs with a belt and a boot.

Skylar testified that she did not like how Carlos and Jennifer treated her either. According to Skylar, they spanked her with a belt on her back, arms, and legs and it hurt. Skylar said they also used their hands to hit Taylor.

Skylar explained that she slept upstairs in her bedroom and Taylor slept upstairs with Carlos and Jennifer, but that Ashton slept in a dog kennel in the ...


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