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In re Ethan M.

Court of Appleals of Nebraska

February 24, 2015

IN RE INTEREST OF ETHAN M., A CHILD UNDER 18 YEARS OF AGE. STATE OF NEBRASKA, APPELLEE,
v.
DANIEL M., APPELLANT

Appeal from the Separate Juvenile Court of Lancaster County: Toni G. Thorson, Judge.

Joy Shiffermiller, of Shiffermiller Law Office, P.C., L.L.O., for appellant.

Ashley Bohnet, Deputy Lancaster County Attorney, and Jordan Talsma, Senior Certified Law Student, for appellee.

IRWIN, INBODY, and PIRTLE, Judges.

OPINION

Page 443

[22 Neb.App. 781] Irwin, Judge.

I. INTRODUCTION

Daniel M. appeals an order of the separate juvenile court of Lancaster County, Nebraska, terminating its jurisdiction over Daniel's son, Ethan M. This case has previously been on appeal to this court on a number of occasions. See, In re Interest of Ethan M., 15 Neb.App. 148, 723 N.W.2d 363 (2006) ( Ethan M. I ); In re Interest of Ethan M., 18 Neb.App. 63, 774 N.W.2d 766 (2009) ( Ethan M. II ); In re Interest of Ethan M., 19 Neb.App. 259, 809 N.W.2d 804 (2011) ( Ethan M. III ); In re Interest of Ethan M., No. A-13-058, 2013 WL 4036465 (Neb.App. Aug. 6, 2013) (selected for posting to court Web site) ( Ethan M. IV ).

In the present appeal, Daniel has assigned numerous errors, including the juvenile court's finding that jurisdiction should be terminated. Because we find no error with the court's termination of its jurisdiction, we affirm.

Page 444

II. BACKGROUND

This case has appeared before this court on at least six prior occasions, resulting in three prior published opinions, as noted above. In Ethan M. III, 19 Neb.App. at 260-61, 809 N.W.2d at 806-07, this court recounted the prior history, including the results of the first two published opinions:

Ethan . . ., born in January 2000, is the child of Daniel and Theresa S. Following the dissolution of Daniel and [22 Neb.App. 782] Theresa's marriage in 2002, a California court awarded Daniel custody of Ethan. In January 2005, [the Department of Health and Human Services (DHHS)] removed Ethan from Daniel's home in Nebraska and placed him into foster care. The county court for Sherman County, Nebraska, subsequently adjudicated Ethan as a result of allegations that other children residing within the home had suffered injuries. In January 2006, the court approved an immediate change of Ethan's placement from the home of his paternal grandparents to the home of [his biological mother] Theresa in California. Daniel appealed, and in [ Ethan M. I ], we found that the State must make reasonable efforts to reunify Ethan and Daniel. We recognized that under the California divorce decree, Daniel was Ethan's custodial parent. We concluded that Ethan should not be placed in California with Theresa and that he should be placed in a situation in Nebraska that was conducive to reunification with Daniel. We observed that Daniel had complied with all tasks required by the case plan.
DHHS did not return Ethan's custody to Daniel. Rather, Ethan's physical custody remained with Theresa, who moved to Nebraska. In June 2007, Daniel began having weekly supervised visitation with Ethan. But in August, the visitation was changed to therapeutic visitation supervised by a mental health professional. In September, visitation ceased due to the unavailability of a mental health professional to supervise the visitation. DHHS arranged for telephone calls between Ethan and Daniel on Tuesdays and Thursdays, but Ethan often ended the calls quickly or refused to speak [to Daniel]. In February 2009, the county court for Sherman County adopted DHHS' case plan which continued telephonic visitation only, found that reasonable efforts to reunify Ethan and Daniel were not necessary, placed custody of Ethan with Theresa, and dismissed the juvenile case. Upon Daniel's appeal, we found plain error in the court's order. In [ Ethan M. II, 18 Neb.App. at 72, 774 N.W.2d at 773], we held that " where the only issue placed in front of the [22 Neb.App. 783] county court is whether a case plan is in the child's best interests, permanent child custody cannot be modified merely through the adoption of the case plan." We stated, however, that " a case plan could be used to place a child with a noncustodial parent as a dispositional order under the continuing supervision of the juvenile court." Id. We reversed the county court's order and remanded the cause for further proceedings.

In Ethan M. IV, we recounted the history of the case following Ethan M. II. We noted that a series of review hearings were held in 2010 and that the court had entered an order of review which approved a Department of Health and Human Services (DHHS) case plan containing no rehabilitative goals or tasks for Daniel. We noted that the court had continued legal custody with DHHS and physical custody with Theresa S., had found that reasonable efforts had been made to prevent or eliminate the need for removal of Ethan from his home, and had ordered that the primary permanency plan was family preservation

Page 445

with an alternative plan of reunification.

In Ethan M. III, we observed that the order at issue was no longer one finding that reasonable efforts were excused, but was one finding that reasonable efforts had been made to prevent or eliminate the need for Ethan's removal from his home. We noted, however, that Ethan had been removed from Daniel's home and not Theresa's home and that the adopted case plan had no goals or services related to correcting, eliminating, or ameliorating the situation that led to that removal and, instead, had essentially attempted to redefine Ethan's home as Theresa's home, even though he had been removed from Daniel's home. We ...


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