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In re Danajah G.

Court of Appeals of Nebraska

September 15, 2015

IN RE INTEREST OF DANAJAH G. ET AL., CHILDREN UNDER 18 YEARS OF AGE. STATE OF NEBRASKA, APPELLEE,
v.
ROBYN G., APPELLEE, AND DARNEIL K., INTERVENOR-APPELLANT

Page 433

Appeal from the Separate Juvenile Court of Douglas County: Douglas F. Johnson, Judge.

Barbara J. Prince for intervenor-appellant.

Elizabeth McClelland, Deputy Douglas County Attorney, for appellee State of Nebraska.

Kate E. Placzek, of Law Office of Kate E. Placzek, for appellee Robyn G.

Irwin, Riedmann, and Bishop, Judges.

OPINION

Page 434

[23 Neb.App. 245] Bishop, Judge.

Darneil K., the father of Danajah G. and an intervenor in these juvenile court proceedings, appeals from an order of the juvenile court which granted a motion to change Danajah's physical placement from Darneil's home to the home of Danajah's mother, Robyn G. We remand the matter back to the juvenile court with directions.

BACKGROUND

Robyn and Darneil are the parents of Danajah, born in December 2006. On May 2, 2007, Darneil entered a plea of guilty to first degree sexual assault, a Class II felony; Robyn was the child victim (Robyn was 14 or 15 years of age at the time of the offense and Darneil was 21 or 22 years of age). The record suggests that Danajah was conceived as a result of the " statutory rape" of Robyn by Darneil.

[23 Neb.App. 246] Robyn is also the mother of Nadiah G., born in March 2010; Jade G., born in December 2011; and Kaziah G., born in December 2013. Darneil is not the father of Robyn's other children. Because these other children are not affected by this appeal, they will be discussed only as necessary.

On July 18, 2007, the State filed a petition alleging that Danajah was a child within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Cum. Supp. 2006), through no fault of Robyn, in that (1) Robyn was placed into protective custody by law enforcement on July 17, (2) Robyn was placed outside of the parental home, (3) Robyn was " unable to provide proper care and support for [Danajah] with assistance," and (4) due to the above allegations, Danajah was at risk for harm. On November 8, Robyn pled no contest to the allegations in the petition, and, as noted in the court's order filed on November 13, Danajah was adjudicated accordingly.

In its disposition order filed on November 28 or 29, 2007 (the date on the file stamp is difficult to read), the court stated that the permanency objective was family preservation. However, in its order filed on January 20, 2009, the court stated that

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the permanency objective was reunification with a concurrent plan of adoption. And in its order filed on June 18, the court struck reunification and adopted a permanency plan of adoption; the court noted that Danajah had been in foster care since July 18, 2007. Although Robyn appealed the June 18, 2009, order to the juvenile review panel, the review panel affirmed the order of the juvenile court.

Also in the June 18, 2009, order, the juvenile court noted that putative father Darneil appeared and requested DNA testing, which the court ordered. After obtaining DNA testing, Darneil filed a complaint on December 8 to intervene. In an order filed on January 14, 2010, the court granted Darneil's complaint to intervene. Also on January 14, the court placed Danajah with Robyn, who was at " Family Works" for residential drug treatment. The court stated that the permanency objective was adoption with a concurrent plan of [23 Neb.App. 247] reunification, provided that Robyn successfully completed treatment at Family Works and maintained consistent therapeutic progress.

In an order filed on September 15, 2010, the court found that the permanency objective was ongoing family preservation and struck the alternative plan of adoption. The court relieved the Nebraska Department of Health and Human Services (DHHS) of all responsibility in the matter. The court retained jurisdiction as to the custody issue between Robyn and Darneil.

On December 22, 2011, the State filed a supplemental petition alleging that Danajah and her two sisters, Nadiah and Jade, were children within the meaning of § 43-247(3)(a) (Reissue 2008) because Robyn and newborn Jade tested positive for PCP. Also on December 22, the State filed a motion for immediate custody of all three children, which motion was granted by the juvenile court; thus, all three children were placed in the temporary custody of DHHS.

On February 16, 2012, Darneil filed a motion for placement of Danajah, which was granted on March 9 over the objection of Robyn and the guardian ad litem.

In its order filed on March 23, 2012, the court noted that the adjudication and disposition hearing was held on March 22; however, those proceedings do not appear in our record. As noted in the order, Robyn pled no contest to the portion of the supplemental petition alleging that her use of alcohol or controlled substances placed her children at risk for harm; and the court adjudicated Danajah and her sisters accordingly. In a separate order of that same date, the court noted it was reported to the court that Danajah said Darneil whips her and that when " questioned further," Danajah would " shut down" and give only one-word answers. The court ordered that Danajah was to be immediately removed from Darneil's home to undergo a forensic interview.

On May 17, 2012, Darneil filed a " Motion for Detention Review and Early Review" due to Danajah's continuing [23 Neb.App. 248] out-of-home placement without any filing by the State against Darneil. Also on May 17, the guardian ad litem filed an ex parte motion to change visitation, requesting that Robyn's visitation change from unsupervised to supervised due to her having tested positive for PCP; the court granted the guardian ad litem's motion that same day. On May 24, the court ordered that Danajah be returned to Darneil " within 48 hours unless there are further filings or charges" (emphasis omitted). No filings or charges were made against Darneil, and Danajah was subsequently placed with Darneil.

On July 27, 2012, Robyn filed a motion for placement requesting that Danajah be

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placed with her and Danajah's siblings at Family Works. In an order filed on August 1, the court ordered that Danajah was to remain in the custody of DHHS, but placed with Darneil. The court also changed the permanency plan for Danajah to family preservation with Darneil. Darneil was ordered to undergo a " Nebraska Safe Start Assessment" and participate in child-parent psychotherapy. Robyn was ordered to successfully complete residential inpatient treatment; undergo random drug testing a minimum of twice per week; not possess or ingest alcohol or controlled substances unless prescribed by a licensed, practicing physician; participate in family therapy with Danajah; participate in unsupervised and overnight visitation when sufficient therapeutic progress had been made and upon the recommendation of Danajah's therapist; undergo a Nebraska Safe Start Assessment; and participate in child-parent psychotherapy. The court further ordered that Robyn and Darneil " shall address placement and custody of . . . Danajah . . . through alternative dispute resolution" (emphasis omitted).

In its review and permanency planning order filed on December 21, 2012, the court stated that the permanency plan for Danajah was ongoing family preservation with Darneil. Robyn was ordered to continue to participate in her substance abuse treatment, undergo random drug testing a minimum of once per week, not possess or ingest alcohol or controlled [23 Neb.App. 249] substances unless prescribed by a doctor, participate in family therapy with Danajah, and participate in unsupervised and overnight visitation with Danajah.

In its review and permanency planning order filed on June 12, 2013, the court stated that the permanency objective was ongoing family preservation. The court ordered Robyn and Darneil to participate in alternative dispute resolution regarding custody issues and a parenting plan. In a status check order filed on August 9, the court noted that Robyn attended the scheduled alternative dispute resolution, but that Darneil did not. The court again ordered both parents to attend and participate in alternative dispute resolution.

In its review and permanency planning order filed on November 22, 2013, the court stated that the permanency objective was ongoing family preservation. The court ordered Robyn and Darneil to undergo " random, frequent, observed drug testing" upon the request of DHHS or Nebraska Families Collaborative (NFC). We note that the review and permanency hearing was held on November 21, but that the order was not filed until November 22. Darneil was drug tested on November 21 and tested positive for marijuana. Robyn was also tested on November 21, and her test came back negative for all substances.

On February 19, 2014, Janaye P., Darneil's live-in girlfriend, physically assaulted Robyn in the presence of all of Robyn's children. The assault took place in front of Darneil's home, and Darneil was present during the assault.

On March 13, 2014, Robyn filed a motion to show cause against DHHS and NFC. She also filed a motion for change of placement of Danajah from Darneil's home to Robyn's home. The court ordered the parties, and the parties agreed, to obtain testimony by deposition and submit written arguments.

We now summarize the deposition testimony. Jamise Williams is a family permanency specialist with NFC and was assigned to this case in early 2012. In her deposition, she testified that Danajah had been placed with Darneil since [23 Neb.App. 250] May 26, 2012. Williams ran a full background check on Darneil prior to placement and was aware that he was a registered sex

Page 437

offender and aware of his criminal history regarding drugs (including " intent to deliver crack cocaine" ). Williams stated that Darneil lived with his girlfriend Janaye and that the two " frequently ...


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