IN RE INTEREST OF GIAVONNA G., A CHILD UNDER 18 YEARS OF AGE.
MARIO G., APPELLANT STATE OF NEBRASKA, APPELLEE,
Appeal from the Separate Juvenile Court of Douglas County: VERNON DANIELS, Judge.
Anne E. Troia, P.C., L.L.O., for appellant.
Donald W. Kleine, Douglas County Attorney, Jennifer C. Clark, and Jocelyn Brasher, Senior Certified Law Student, for appellee.
PIRTLE, RIEDMANN, and BISHOP, Judges.
[23 Neb.App. 854] Pirtle, Judge.
Mario G. appeals the order of the separate juvenile court of Douglas County wherein the court found by clear and convincing evidence that it is in the best interests, safety, and welfare of the minor child, Giavonna G., to terminate Mario's parental rights. For the reasons that follow, we reverse, and remand for further proceedings.
Heather F. is the mother of Tobias K., Ciela W., and Giavonna. This case began as an educational neglect case involving Tobias, Heather, and Tobias' father. A second amended petition was filed on February 14, 2013, adding allegations related to Giavonna. The petition alleged Giavonna came within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2008) because a caseworker had observed the family home " to be in a filthy, unwholesome manner, in that the basement was littered with cat feces, placing the children at risk for harm." Giavonna's father, Mario, did not live in the same residence as the children when they were removed. The caseworker's affidavit in support of removal reported that Mario had been charged with physically abusing Tobias on March 27, 2012.
On April 26, 2013, the juvenile court filed an order for immediate custody, finding that placement and detention was a matter of immediate and urgent necessity for the protection of the children. The order stated that placement shall exclude the homes of Heather, Ciela's father, and Mario. On the same [23 Neb.App. 855] day, the State of Nebraska filed a third amended petition alleging Giavonna came within the meaning of § 43-247(3)(a) due to lack of proper parental care by reason of the faults or habits of her father, Mario. The petition alleged that Mario failed to provide safe, stable, and/or appropriate housing; that Mario failed to provide proper parental care, support, and supervision; and that Giavonna was at risk for harm.
Both Heather and Mario denied the allegations in the petition. On May 13, 2013, the court found that it was in Giavonna's best interests to remain in the care, custody, and control of the Nebraska Department of Health and Human Services (DHHS), to exclude the home of Mario. The court ordered that Mario have reasonable rights of supervised visitation and ordered him to provide certain medical history and information to DHHS, pay child support, and make reasonable efforts on his own to bring about rehabilitation.
On July 11, 2013, a fourth amended petition was filed alleging that Giavonna came within the meaning of § 43-247(3)(a) due to lack of proper parental care by reason of the faults or habits of Mario in that Mario failed to provide safe, stable, and/or appropriate housing for the child; that Mario failed to provide proper parental care, support, and supervision; and that due to the above allegations, Giavonna was at risk for harm.
In July 2013, an adjudication hearing with respect to the fourth amended petition was held. As of June 25, Mario was in arrears on his child support obligation for Giavonna in the amount of $1,327.92. The court ordered Mario to obtain safe, stable, and adequate housing; obtain a legal, stable source of income; have reasonable rights of supervised visitation as arranged by DHHS; and notify the court of any services he deemed necessary to assist with the return of Giavonna to the parental home.
At a hearing on September 10, 2013, Tara Kirkland, a family permanency specialist at Nebraska Families Collaborative
(NFC), testified that Mario participated in visits, maintained [23 Neb.App. 856] housing and employment, and expressed a desire to have placement of Giavonna. She also testified that Mario did not want to participate in chemical dependency evaluations or urinalysis. The court ordered Mario to continue working on the objectives previously ordered in July and ordered him to complete a psychological evaluation as arranged by DHHS. The stated permanency objective for Giavonna was reunification with either parent.
A disposition hearing was held on November 5, 2013, and Mario's psychological evaluation was offered into evidence. The evaluation noted no significant concerns were present regarding Mario's parenting or parent-child interactions, but that he may benefit from interventions designed to assist him with developing skills to effectively cope with challenges and stressors presented in life. The evaluator also noted Mario was defensive throughout the evaluation process, and it was suggested that he may benefit from participating in parenting classes to strengthen his skills and prevent daily stressors from impacting his ability to successfully parent. The court's order noted the permanency objective for Giavonna was reunification with either parent, and Mario was ordered to participate in therapy and submit to baseline urinalysis. If the baseline was positive, he was ordered to submit to random urinalysis and undergo a chemical dependency evaluation by December 1. The court also ordered that if Mario fell asleep during visitation, then the visit would be terminated.
A review and permanency planning hearing was scheduled for, and took place on, May 5, 2014. Kirkland recommended that urinalysis be completed by Mario within 4 hours of the hearing, because testing was previously ordered, but not completed. She stated that NFC had " tried with three different agencies to get that service completed." The court ordered that the primary permanency objective for Giavonna be reunification with Mario, with a concurrent plan of adoption.
On August 4, 2014, the State filed a second motion for termination of parental rights alleging that Giavonna came [23 Neb.App. 857] within the meaning of Neb. Rev. Stat. § 43-292(2), (6), and (7) (Cum. Supp. 2014) and that termination of Mario's parental rights was in Giavonna's best interests. The petition specifically alleged Mario failed to consistently visit Giavonna; obtain and maintain safe, stable, and appropriate housing; consistently attend individual therapy; consistently submit to urinalysis testing, as requested by DHHS, in a timely manner; and utilize the services offered by NFC or DHHS in order to reunify with Giavonna.
On November 4, 2014, a review and permanency planning hearing was held. Kirkland informed the court that Mario was unsuccessfully discharged from family support, individual therapy, and urinalysis testing and had not completed a chemical dependency evaluation. She also stated that his attendance and visitation was less than 100 percent each ...