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In re Alec S.

Court of Appeals of Nebraska

March 15, 2016

IN RE INTEREST OF ALEC S., A CHILD UNDER 18 YEARS OF AGE.
v.
BRENDA G., APPELLANT STATE OF NEBRASKA, APPELLEE,

Page 396

[Copyrighted Material Omitted]

Page 397

Appeal from the Separate Juvenile Court of Douglas County: CHRISTOPHER KELLY, Judge.

Matthew R. Kahler, of Finley & Kahler Law Firm, P.C., L.L.O., for appellant.

Donald W. Kleine, Douglas County Attorney, Anthony Hernandez, and Jocelyn Brasher, Senior Certified Law Student, for appellee.

IRWIN, PIRTLE and RIEDMANN, Judges.

OPINION

Page 398

[23 Neb.App. 793] Riedmann, Judge.

INTRODUCTION

Brenda G. appeals from the order of the separate juvenile court of Douglas County which terminated her parental rights to her minor child, Alec S. We conclude that the State failed to adduce clear and convincing evidence that terminating Brenda's parental rights is in Alec's best interests. We therefore reverse, and remand for further proceedings.

BACKGROUND

The State filed a petition on September 13, 2013, alleging that Alec, who was 8 years old at the time, was a child within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2008) [23 Neb.App. 794] due to the faults or habits of Brenda. The petition asserted that Brenda had been diagnosed with posttraumatic stress disorder, depression, and anxiety and that her medical providers recommended inpatient treatment. As of September 13, Brenda had failed to check herself into " the in-patient program recommended by Dr. Patera." The petition alleged that Brenda was unable to provide proper parental care, support, or supervision for Alec and that he was at risk for harm. An amended petition filed 4 days later added a claim that Brenda's use of alcohol and/or controlled substances placed Alec at risk for harm. Alec was removed from Brenda's care and placed in the temporary custody of the Nebraska Department of Health and Human Services. He was adjudicated pursuant to § 43-247(3)(a) in January 2014.

In a disposition and permanency plan order dated March 18, 2014, Brenda was ordered to participate in a " Level 1 outpatient chemical dependency therapy program," submit to random drug and alcohol testing, participate in " programs at Community Alliance," attend family therapy with Alec, attend individual therapy, participate in psychiatric care, and attend supervised visitation. A September 16 review order continued the same requirements for Brenda, except she was no longer ordered to participate in a chemical dependency therapy program. The requirements contained in an order dated January 20, 2015, mirrored those in the September 2014 order.

On February 6, 2015, the State filed a motion to terminate Brenda's parental rights to Alec. The State sought termination under Neb. Rev. Stat. § 43-292(2), (6), and (7) (Cum. Supp. 2014). The State also alleged that termination of Brenda's parental rights was in the best interests of Alec. A termination hearing was held on June 12.

The State presented the testimony of four witnesses. Randy LaGrone is a clinical psychologist who Brenda began seeing for outpatient treatment in January 2013, before this case was initiated. She attended six sessions over the following year, but missed or canceled numerous other sessions due to " ongoing [23 Neb.App. 795] major stressors in her life that disrupted compliance." LaGrone

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diagnosed Brenda with posttraumatic stress disorder, a panic disorder, and depression. He testified that she had experienced significant trauma in her life, including the death of her husband, his business partner, and her mother, as well as the assault of her mentally ill adult son. LaGrone testified that Brenda's conditions were very treatable and conditions with which people can make substantial progress. The biggest goal for Brenda was to establish consistency in treatment because structure and routine are important for those who have experienced trauma.

The State also presented the testimony of two mental health therapists, Mary Atwood and Jennifer Ratliff. Atwood saw Alec in September 2013, and he was diagnosed with adjustment disorder with mixed emotions. A treatment plan was developed for " working with [Alec's] emotions," but he said that he had already had trauma therapy and did not feel that he needed additional therapy. Alec only had one more individual session with Atwood, but Alec and Brenda saw Atwood for three sessions of family therapy beginning in March 2014. The goal was to enhance communication between Alec and Brenda because he did not feel that he could speak honestly with her. However, Brenda spent the session time " fussing" over Alec, asking him questions such as whether he had eaten and how his foster parents were treating him, so no progress was made during the sessions.

Ratliff began providing individual therapy to Alec in January 2015. She likewise diagnosed him with adjustment disorder, unspecified, and also identified features of attention deficit disorder. The goals for Alec's therapy were to identify coping skills, conflict resolution skills, and anger management skills; identify and express emotions; ...


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