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In re Adrian W.

Court of Appeals of Nebraska

October 6, 2015

IN RE INTEREST OF ADRIAN W., A CHILD UNDER 18 YEARS OF AGE. STATE OF NEBRASKA, APPELLEE MAXIMILIANO L., JR., APPELLANT.

NOT DESIGNATED FOR PERMANENT PUBLICATION

Appeal from the County Court for Cheyenne County: Randin Roland, Judge.

Donald J.B. Miller, of Miller Law Office, for appellant.

Jonathon Stellar, Deputy Cheyenne County Attorney, for appellee.

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

Moore, Chief Judge, and Pirtle and Bishop, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

PIRTLE, JUDGE.

INTRODUCTION

Maximiliano L., Jr. appeals from an order of the Cheyenne County Court, sitting as a juvenile court, denying his motion requesting that his minor son, Adrian W., be placed in his physical custody and care. For the reasons that follow, we reverse and remand with directions.

BACKGROUND

Adrian is the child of Maximiliano and Alecia G. On November 19, 2014, the State filed a petition alleging that Adrian, who was 7 years old, was a child within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2008) due to the faults or habits of Alecia, Adrian's custodial parent. Specifically, Alecia had given birth to a child, Aliyah, on November 4 and the child tested positive for methamphetamine. The juvenile court entered an ex parte order the same day, removing Adrian from Alecia's home and placing him in the temporary custody of the Department for out of home placement. Alecia's other two children, Aliyah (newborn) and Anthony (2 years old), were also removed from the home. Adrian and Aliyah were placed with a maternal aunt. Anthony was placed with a different maternal aunt.

On December 8, 2014, Maximiliano filed a motion for change of placement in the juvenile court proceeding, asking that Adrian be placed in his physical custody and care. At the hearing on the motion, the evidence showed that prior to the juvenile court proceedings, Maximiliano had filed a motion for a change of custody of Adrian in a separate district court proceeding. Trial of his modification of custody motion was scheduled for December 19. The hearing on Maximiliano's motion for change of placement was held in the juvenile court on December 12.

During the summer of 2014, Maximiliano had custody of Adrian based on an agreement between Maximiliano and Alecia. This was the first time that Adrian had spent a significant amount of time with Maximiliano. During the summer months, Maximiliano coached Adrian's t-ball team, and worked with Adrian on showing his mother respect, picking up after himself, and using his manners.

Maximiliano was held in contempt of court in Box Butte County for refusing to return Adrian to Alecia in August 2014, which he testified was based on his safety concerns for Adrian due to Alecia's drug use. The Department did not consider the contempt in ...


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