In re Interest of Darius A., a child under 18 years of age. State of Nebraska, appellee and cross-appellee,
Stephani e H., appellant, and Gregory A., appellee and cross-appellant.
Juvenile Courts: Evidence: Appeal and Error.
Juvenile cases are reviewed de novo on the record, and an
appellate court is required to reach a conclusion independent
of the juvenile court's findings. However, when the
evidence is in conflict, an appellate court may consider and
give weight to the fact that the trial court observed the
witnesses and accepted one version of the facts over the
Juvenile Courts: Jurisdiction. The purpose
of an adjudication phase of a neglect petition is to protect
the interests of the child.
Juvenile Courts: Jurisdiction: Proof. At the
adjudication stage, in order for a juvenile court to assume
jurisdiction of a minor child under Neb. Rev. Stat. §
43-247(3)(a) (Cum. Supp. 2014), the State must prove the
allegations of the petition by a preponderance of the
evidence, and the court's only concern is whether the
conditions in which the juvenile presently finds himself or
herself fit within the asserted subsection of § 43-247.
from the Separate Juvenile Court of Lancaster County: Reggie
L. Ryder, Judge.
M. Gonzalez, of Gonzalez Law Office, L.L.C., for appellant.
Kelly, Lancaster County Attorney, and Ashley J. Bohnet for
appellee State of Nebraska.
Neb.App. 179] Susan L. Kirchmann, of Wertz & Associates,
for appellee Gregory A.
and Bishop, Judges.
H. appeals and Gregory A. cross-appeals from the order of the
separate juvenile court of Lancaster County adjudicating the
minor child, Darius A., as a child within the meaning of Neb.
Rev. Stat. § 43-247(3)(a) (Cum. Supp. 2014). For the
reasons that follow, we affirm.
and Gregory are the parents of Darius. They were married from
December 2004 until February 2015. Darius was born in
November 2001 and has significant neurological problems that
stem from prematurity. Darius was born with periventricular
leukomalacia, central apnea, severe seizure disorder, and
cerebral palsy. He is intellectually challenged, has some
behavioral problems, and has been diagnosed as a child on the
reports were made to the abuse hotline regarding Darius, but
they were screened out by the Nebraska Department of Health
and Human Services (DHHS) and not accepted. There were also
numerous reports made in the past related to Darius'
medical condition, all of which were determined to be
unfounded. A case was accepted by DHHS regarding Darius due
to concerns raised by Dawes Middle School (Dawes) in Lincoln,
Nebraska, and Dr. George Wolcott, Darius' pediatric
neurologist. The concerns were that Stephanie was not able to
meet Darius' medical, mental, educational, or physical
health needs. The case was assigned as a "dependent
child intake" case, rather than a case with allegations
of abuse or neglect at the fault of the parent.
February 28, 2015, the State filed a petition alleging that
Darius was within the meaning of § 43-247(3)(a) due [24
Neb.App. 180] to the fault or habits of Stephanie and
Gregory. The petition alleged that Stephanie and Gregory
failed to provide for Darius' educational needs, as
Darius had missed numerous days of school during the 2014-15
school year. The absences were marked "parent
acknowledged, medically documented or illness, " and
only the medically documented absences were marked excused.
The petition also alleged that Stephanie failed to administer
Darius' medication as prescribed and/or recommended by
Darius' treating neurologist and that she failed to
follow up with medical appointments or treatment as
recommended by Darius' treating physician.
formal adjudication hearing was held on May 19, June 15, and
July 16 and 20, 2015. Toward the end of the formal hearing,
the State was given leave to amend the petition to conform to
the facts presented at the hearing.
23, 2015, the separate juvenile court of Lancaster County
issued an order adjudicating Darius as a child within the
meaning of § 43-247(3)(a). The court found that Darius
lacked proper parental care by reason of the fault or habits
of his parents. The court found Stephanie and Gregory
neglected or refused to provide the necessary education or
other care necessary for the health, morals, or well-being of
Darius in that Darius missed almost 60 days of school in the
2014-15 school year. The court also found Stephanie failed to
administer his medication as prescribed or recommended by
Darius' treating neurologist and failed to follow up with
medical appointments or treatments as recommended.
testified that several of Darius' medical conditions fall
under the "umbrella [of] Lennox Gastaut" syndrome.
Darius' medical conditions affect his intellect,
behavior, and ability to complete physical tasks. Stephanie
testified that Wolcott was Darius' neurologist from 2000
to 2005 and that he then retired. Wolcott began practicing
again and resumed treating Darius. Karee Shonerd is a
registered nurse and the [24 Neb.App. 181] coordinator of
specialty clinics at a Lincoln hospital. When Wolcott is not
in the office, Shonerd calls him with urgent concerns from
parents or takes messages on his behalf.
has been prescribed a number of medications consistently
including Klonopin and Banzel. Darius started on Lamictal in
2005. By 2014, Wolcott became concerned with the use of
Lamictal due to toxicity and prescribed a medication called
Onfi instead. Wolcott prescribed a decrease in the Lamictal
dose and prescribed an initial dose of 10 milligrams of Onfi
twice per day, to be increased to 20 milligrams twice per day
after 1 week. Onfi was to be given in the morning and the
evening, when Darius was at home, and his parents were
responsible for the proper administration of the medication.
7, 2014, Stephanie called Wolcott's office to discuss
Darius' medication, as he started taking Onfi. Stephanie
was given specific instructions for the dosage of Onfi. On
July 21, Gregory reported to Wolcott's office that
Stephanie misread the dosage instructions for Onfi and
administered the drug at 10 milligrams twice per day for 2
weeks instead of 1 week.
31, 2014, Stephanie called Wolcott's office with concerns
about discontinuing Lamictal. Shonerd discussed the correct
dosages with Stephanie; the prescribed dosage of Onfi at that
time was to be 10 milligrams in the morning and 20 milligrams
at bedtime. Stephanie reported to Shonerd that she was
administering 15 milligrams, instead of 10 milligrams, of
Onfi in the morning and 20 milligrams, as directed, at
bedtime. Shonerd's notes indicate that Stephanie said she
increased the dose of Onfi in the morning because she felt
Darius needed an extra 5 milligrams of Onfi to compensate for
the decrease in Lamictal.
became concerned with Darius' behavior while taking Onfi,
as she observed that he would not speak, eat, walk, or feed
himself and that he would merely stare at the wall. She
communicated her concerns with Wolcott 1 week after Darius
started taking Onfi, and Darius was brought in for a followup
[24 Neb.App. 182] appointment on August 12, 2014. Stephanie
indicated in a call to Wolcott's office on September 5
that she wanted to take Darius off of his medications because
of the effect they were having on him.
was admitted to the emergency room on September 8, 2014, and
it was reported that he had a series of fairly significant
seizures accompanied by significant respiratory issues. At
that time, Wolcott became aware that Darius' medication
was not being given as prescribed. Wolcott learned that
Stephanie had initiated a "drastic taper" from the
Onfi medication prior to Darius' hospitalization; she
reported that she had been administering 5 milligrams of Onfi
twice per day instead of the prescribed 20 milligrams twice
per day. Wolcott determined there was a correlation between
the seizures and the decreased dosages of Onfi, and testified
that he believed the seizures were withdrawal seizures. He
testified that with almost every patient, decreasing
medications like Onfi too quickly can cause significant
withdrawal symptoms including agitation, seizures, and death.
developed a plan to wean Darius off of Onfi gradually over
the course of 54 days. Starting on September 9, 2014,
Stephanie was to administer 15 milligrams of Onfi for 3 days,
then drop to 5 milligrams twice a day for 2 weeks, and then
drop down to 5 milligrams for 30 days. This plan was provided
to Stephanie when Darius was discharged, and she signed the
form acknowledging her receipt.
testified that she understood the plan was to decrease the
dosage of Onfi slowly and that she "did the best [she]
could with the knowledge [Wolcott] gave [her]." She was
aware that decreasing Onfi drastically could cause a seizure
that Darius may not recover from, and he had several seizures
while he was being weaned off of Onfi.
called Wolcott's office on September 23, 2014, to report
that she decreased the Onfi dosage to 2.5 milligrams for 5
days and planned Darius' last dose of Onfi to be given on
September 26. Shonerd's call logs indicate that she
relayed this [24 Neb.App. 183] information to Wolcott.
Wolcott told Shonerd that Stephanie's dosage schedule
meant Darius would be weaned from Onfi a month earlier than
planned and that this was not as directed. Wolcott told
Shonerd that he wanted to see Darius in October if he was
coming off of Onfi so rapidly. The office notes indicate
Darius' next appointment was moved from November to
October. Wolcott testified that he had hoped that Darius
would be weaned off of Onfi ...