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In re Miah T.

Court of Appeals of Nebraska

February 2, 2016

IN RE INTEREST OF MIAH T. AND DEKANDYCE H., CHILDREN UNDER 18 YEARS OF AGE. STATE OF NEBRASKA, APPELLEE,
v.
DEKARLOS H., APPELLANT

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[Copyrighted Material Omitted]

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Appeal from the Separate Juvenile Court of Lancaster County: ROGER J. HEIDEMAN, Judge.

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

Joe Kelly, Lancaster County Attorney, and Christopher M. Reid for appellee.

MOORE, Chief Judge, and IRWIN and INBODY, Judges.

OPINION

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[23 Neb.App. 593] Irwin, Judge.

I. INTRODUCTION

DeKarlos H. appeals from two separate orders entered by the separate juvenile court of Lancaster County. In case No. A-15-417, [23 Neb.App. 594] DeKarlos appeals from the juvenile court's order which requires him to

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attend both a domestic violence batterers' intervention course and a victims' impact group prior to the court's considering DeKarlos as a viable placement for his daughter, DeKandyce H. In case No. A-15-694, DeKarlos appeals from the juvenile court's order which continued DeKandyce's placement in a foster home, rather than placing her with DeKarlos. The two appeals were consolidated for briefing in this court, and we consolidate them for opinion as well.

Upon our de novo review of the record, we affirm the orders of the juvenile court in their entirety.

II. BACKGROUND

This appeal involves DeKarlos and his daughter, DeKandyce, born in October 2007. The juvenile court proceedings below also involve DeKandyce's mother, Everlyn B., and DeKandyce's half sister, Miah T. However, Everlyn and Miah are not involved in this appeal and their involvement in the juvenile court proceedings will only be discussed to the extent necessary to provide context for the circumstances giving rise to this appeal.

On July 14, 2014, the State filed a petition alleging that DeKandyce, who was then 6 years old, was a child within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Supp. 2013) due to the faults or habits of Everlyn, DeKandyce's custodial parent. Specifically, the petition alleged that on or about July 11, Everlyn was under the influence of alcohol and threatened to strike or stab Miah, who was then 11 years old. Although DeKandyce was not the target of Everlyn's violent behavior, she was present during this incident. Ultimately, DeKandyce and Miah were removed from Everlyn's home and placed in the temporary custody of the Department of Health and Human Services (Department) for out-of-home placement.

A few days after the petition was filed, on July 16, 2014, the juvenile court appointed DeKarlos with an attorney to represent his interests in the proceedings. DeKarlos was permitted to have unsupervised visitations with DeKandyce, subject to " random drop-ins" by Department workers.

On September 22, 2014, Everlyn pled no contest to the allegations in the petition. As a result of Everlyn's plea, [23 Neb.App. 595] DeKandyce was adjudicated to be a child within the meaning of § 43-247(3)(a). Subsequently, on January 21, 2015, the juvenile court entered a dispositional order requiring Everlyn to comply with a rehabilitation plan which was designed to remedy the circumstances which resulted in DeKandyce's adjudication. In addition, in the January 21 order, the juvenile court required DeKarlos to participate in " domestic violence education" if he wanted to be considered for placement of DeKandyce.

On April 1, 2015, a review hearing was held. DeKarlos did not appear at this hearing. During this hearing, the family's Department case manager testified that since the January 2015 dispositional hearing, DeKarlos had not completed a domestic violence education program. Although he had enrolled in such a program, DeKarlos was discharged unsuccessfully for failing to regularly attend the classes and for lying to the instructor. DeKarlos indicated to the Department that he did not plan on reenrolling in a domestic violence education program. However, the case manager testified that the Department continued to recommend that DeKarlos attend such a program prior to being considered as a placement for DeKandyce. In addition, the court report authored by the case manager and offered, without objection, by the State at the review hearing reveals that the Department's recommendation

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that DeKarlos attend domestic violence education stemmed from DeKarlos' criminal history. DeKarlos had been arrested for incidents of domestic violence on multiple occasions, including in August 2014, after the current juvenile court proceedings had been initiated. The victim in the August 2014 incident was Everlyn.

After the April 1, 2015, review hearing, the juvenile court entered an order. As a part of that order, the court required DeKarlos to attend and successfully complete both a domestic violence batterers' intervention course and a victims' impact group if he wished to be considered as a placement for DeKandyce. In addition, immediately after the review hearing, [23 Neb.App. 596] on April 2, the State filed a supplemental petition alleging that DeKandyce was a child within the meaning of ยง 43-247(3)(a) (Cum. Supp. 2014) due to the faults or habits of DeKarlos. Specifically, the petition alleged that although DeKarlos knew that DeKandyce had been removed from Everlyn's home and placed in foster care, DeKarlos had " failed to fully participate in ...


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