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In re Darius A.

Court of Appeals of Nebraska

July 19, 2016

In re Interest of Darius A., a child under 18 years of age. State of Nebraska, appellee and cross-appellee,
v.
Stephani e H., appellant, and Gregory A., appellee and cross-appellant.

         1. 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 other.

         2. Juvenile Courts: Jurisdiction. The purpose of an adjudication phase of a neglect petition is to protect the interests of the child.

         3. 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.

         Appeal from the Separate Juvenile Court of Lancaster County: Reggie L. Ryder, Judge.

          Lisa M. Gonzalez, of Gonzalez Law Office, L.L.C., for appellant.

          Joe Kelly, Lancaster County Attorney, and Ashley J. Bohnet for appellee State of Nebraska.

         [24 Neb.App. 179] Susan L. Kirchmann, of Wertz & Associates, for appellee Gregory A.

          Pirtle and Bishop, Judges.

          Pirtle, Judge.

         I. INTRODUCTION

         Stephanie 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.

         II. BACKGROUND

         Stephanie 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 autism spectrum.

         Multiple 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.

         On 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.

         A 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.

         On July 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.

         1. Medical History

         Wolcott 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.

         Darius 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.

         On July 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.

         On July 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.

         Stephanie 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.

         Darius 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.

         Wolcott 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.

         Stephanie 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.

         Stephanie 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 ...


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