Opinion
No. A-19-927.
04-21-2020
IN RE INTEREST OF JUSTIN L., JR., AND JORDAN L., CHILDREN UNDER 18 YEARS OF AGE. STATE OF NEBRASKA, APPELLEE, v. JUSTIN L., SR., APPELLANT, AND MEAGHAN L., APPELLEE.
Mitchell C. Stehlik, of Stehlik Law Firm, P.C., L.L.O., for appellant. Katherine J. Doering and Katharine J. Collins, Deputy Hall County Attorneys, for appellee State of Nebraska. James H. Truell, of Truell, Murray & Associates, for appellee Meaghan L. Grady C. Erickson, guardian ad litem.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion) NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E). Appeal from the County Court for Hall County: JOHN P. RADEMACHER, Judge. Affirmed. Mitchell C. Stehlik, of Stehlik Law Firm, P.C., L.L.O., for appellant. Katherine J. Doering and Katharine J. Collins, Deputy Hall County Attorneys, for appellee State of Nebraska. James H. Truell, of Truell, Murray & Associates, for appellee Meaghan L. Grady C. Erickson, guardian ad litem. PIRTLE, BISHOP, and ARTERBURN, Judges. BISHOP, Judge.
I. INTRODUCTION
Justin L., Sr. (Justin), appeals and Meaghan L. attempts to cross-appeal from the decision of the county court for Hall County, sitting as a juvenile court, terminating their parental rights to their children, Justin L., Jr., also known as Jake (Jake), and Jordan L. We affirm.
II. BACKGROUND
1. PROCEDURAL BACKGROUND
Justin and Meaghan are married and are the biological parents of Jake (born 2012) and Jordan (born 2015). Justin and Meaghan are also the biological parents of Jeremiah (born 2018). Jeremiah was not the subject of these juvenile proceedings below, nor is he the subject of this appeal, therefore Jeremiah will only be discussed as necessary. However, we note that it appears Jeremiah was the subject of a separate juvenile court case.
On February 24, 2017, Jake (4 years old) and Jordan (almost 2 years old) were removed from parental care due to concerns of physical abuse, domestic violence between Meaghan and Justin, and concerns regarding Meaghan's mental health and Justin's alcohol use. The State filed a juvenile petition alleging that Jake and Jordan were children within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016). The State alleged that the children lacked proper parental care due to the faults or habits of their parents; the parents neglected or refused to provide proper or necessary subsistence, education or other care necessary for the health, morals, or well-being of the children; and the children were in a situation dangerous to life or limb or injurious to the health or morals of the children. In each of the previous claims, the State also alleged that the parents agreed to a voluntary safety plan but both parents failed to abide by the terms of the plan; the parents routinely engaged in domestic violence; most recently, the parents were involved in a physical altercation on February 20, 2017; Justin's use of alcohol was harmful and neglectful to the children; and recently, one of the children indicated his mother had "knocked him out." The juvenile court granted the State's motion for temporary custody of Jake and Jordan, and other than briefly being placed with Meaghan for approximately 4 months (September 14, 2018, to January 11, 2019), the boys have remained out-of-home ever since. The children were initially placed with their paternal grandmother from February to August 2017, but were then placed in an agency-supported foster home.
On July 21, 2017, Jake and Jordan were adjudicated to be within the meaning of § 43-247(3)(a) based on Justin and Meaghan's no contest pleas to the allegation in the petition that the children were in a situation dangerous to life or limb or injurious to the health or morals of the children.
In its disposition order filed on August 23, 2017, the juvenile court adopted the provisions of the Nebraska Department of Health and Human Services' (DHHS) case plan dated August 16 and directed all parties to comply with its terms. Reasonable visitation was to be determined by DHHS. The case plan set forth goals for Meaghan and Justin, along with strategies to help them realize their goals. The first goal was for Meaghan to address her mental health to ensure she was able to adequately take care of her children. In order to do that, Meaghan was to complete a psychological evaluation and follow the recommendations and take any prescribed medications and attend medication management appointments. The second goal was for Meaghan to have age appropriate interactions with the boys, including appropriate supervision and discipline. In order to do that, Meaghan was to attend all parenting times, work with family support, demonstrate that she could utilize the skills taught during visits, and complete a parenting assessment and follow the recommendations. The third goal was for Meaghan and Justin to refrain from having altercations that were dangerous to the children when present. In order to do that, Meaghan and Justin were to participate in couples' counseling to work on their relationship and to not have any physical altercations. The fourth goal was for Justin to work on his drinking and how it affected his parenting. In order to do that, Justin was to complete a drug and alcohol evaluation and follow the recommendations, complete random alcohol screens, and refrain from having involvement with law enforcement. The fifth goal was for Meaghan and Justin to provide for all of the boys' basic needs. In order to do that, Meaghan and Justin were to provide the boys with suitable and stable housing, ensure that their educational and medical needs were being met, provide financially for the family, and provide food, clothing, and other necessary items for the children.
After a review and permanency hearing in November 2017, the juvenile court adopted the provisions of the DHHS case plan dated November 2 and directed all parties to comply with its terms. This case plan was largely the same as the August plan, with the addition that Meaghan was to work with a Specialized Outpatient Service therapist in the home with the boys and follow recommendations. After subsequent review and permanency hearings, the goals and strategies for Meaghan and Justin remained largely unchanged.
Jake and Jordan were placed with Meaghan on September 14, 2018. And Justin, who had been incarcerated since December 2017, returned to the family home when he was released on September 20, 2018.
After a review and permanency planning hearing in November 2018, Meaghan was ordered to attend individual therapy and follow the recommendations of her therapist, Meaghan and Justin were to participate in individual and joint intensive family reunification services, and Justin was to follow the requirements of his postrelease supervision.
On January 11, 2019, the State filed a motion for an emergency change of placement alleging: DHHS had received intakes alleging emotional and physical abuse toward the children; and Meaghan and Justin were not following the safety plan that required Justin's contact with the children to be supervised. The juvenile court granted the motion that same day.
On February 11, 2019, the children's guardian ad litem (GAL) filed a motion to terminate Justin and Meaghan's parental rights to Jake and Jordan pursuant to § 43-292(2), (4), (6), and (7) (Reissue 2016). The GAL alleged that the parents substantially and continuously or repeatedly neglected and refused to give the children, or a sibling, necessary care and protection; the parents were unfit by reason of debauchery, habitual use of intoxicating liquor or narcotic drugs, or repeated lewd and lascivious behavior, which conduct was seriously detrimental to the health, morals, or well-being of the children; reasonable efforts to preserve and reunify the family had failed to correct the conditions leading to the adjudication of the children under § 43-247(3)(a); Jake and Jordan had been in an out-of-home placement for 15 or more of the most recent 22 months; and termination was in the children's best interests.
In a journal entry and order filed on May 9, 2019, the juvenile court terminated all visitation between the children and Justin and Meaghan except for supervised visitation in the presence of the children's primary therapist, Christina Peard. Subsequently, in a journal entry and order filed on July 2, the court granted the GAL's motion to suspend visitation and ordered that visitation be suspended pending the termination of parental rights proceedings.
2. TERMINATION HEARING
The hearing on the motion to terminate parental rights was held on July 29 and 30, 2019. The GAL called several witnesses to testify, and numerous exhibits were received into evidence. Justin did not testify, although he called his mother to testify on his behalf. Meaghan testified. A summary of the relevant evidence follows.
Jennifer Whitney, a child and family service specialist with DHHS, was this family's caseworker from February 2017 to January 2019. Whitney testified that DHHS became involved because there were allegations that Meaghan physically abused Jake and Jordan, DHHS "had continual concerns" of relationship struggles between Meaghan and Justin that resulted in physical altercations, and there were concerns about Meaghan's mental health and Justin's mental health and alcohol use. According to a DHHS court report, the children were found to be safe to stay with Justin with a safety plan in place wherein Justin was to supervise all contact between Meaghan and the boys, but Justin was not in agreement with the plan and agreed to send the children to his mother's home. After a couple of weeks, Justin and Meaghan agreed to a safety plan to have the children return to their home. Under the safety plan, Justin was not to allow Meaghan to be unsupervised around the children, an agency would do random drop-ins to ensure that the safety plan was being followed, and Justin would limit his alcohol intake to ensure the safety of the children. A DHHS report notes that during the month of February 2017, there continued to be concerns about Justin and Meaghan following the safety plan. Whitney testified that at the end of February, law enforcement was called to the home because of a physical altercation between Meaghan and Justin (who had a high alcohol level), and Jake and Jordan were removed from the home at that time. The children were placed with their paternal grandmother until August, at which time they were placed in a licensed foster home.
Whitney testified that the parents initially had joint visitations, but visitation had to be separated due to a physical altercation and a no-contact order between the parents in May 2017; neither parent wanted to do any visits without the other parent, so there was a lapse in parenting time. When Meaghan did have individual visits, she would become "extremely emotional," "struggle with parenting," "talk about not wanting to continue with visitations or the case in general," and even talked about relinquishing her parental rights. Also in May, Justin got a "DUI and some other charges due to being under the influence of alcohol while driving."
Whitney testified that Justin was to address his alcohol use by having a drug and alcohol evaluation completed and following all recommendations. Meaghan was to follow recommendations of a psychological evaluation and parenting assessment. Justin and Meaghan were to work on adequate parenting, work on their relationship dynamics, and refrain from physical altercations.
According to Whitney, Justin completed a drug and alcohol evaluation at St. Francis in the summer of 2017, but they were unable to provide any recommendations because Justin was not being truthful. Sue Hieb, a licensed alcohol and drug counselor at CHI St. Francis Alcohol and Drug Treatment Center, conducted a chemical dependency evaluation of Justin in May 2017. She stated that Justin was dishonest during the evaluation (e.g., he denied cocaine use despite being confronted with a previous evaluation where he stated he had used cocaine in the past). In the recommendation section of her report it states, "At this time, due to the fact that [Justin] is so dishonest, there is no recommendation for any treatment." She testified, "I can't recommend it if he's not amenable to treatment. And if he doesn't get honest, that means he's not amenable to any kind of treatment or recommendation." Whitney testified that Justin had another evaluation done in the fall of 2017 with a different provider, and the recommendation was for Justin to do intensive outpatient therapy. Justin enrolled in the St. Francis intensive outpatient therapy program. However, according to Hieb, Justin was unsuccessfully discharged in November.
Whitney testified that both parents did a psychological evaluation with Dr. John Meidlinger, a clinical psychologist, in the summer of 2017. Dr. Meidlinger testified that according to the referral information, Meaghan had physically abused Jake, had been previously diagnosed bipolar, and had very unusual and problematic behavior during visits with her children (i.e., she would cry and say she could not handle it, she withdrew from the boys, and seemed unable to interact). Dr. Meidlinger felt that during the interview, Meaghan was "providing . . . information either for its shock value or to make herself more dramatic" in terms of giving her family history. Dr. Meidlinger stated that Meaghan told him that she was sexually abused by her stepfather in the presence of her mother who allowed it; she got pregnant in high school by a man who was in prison for selling heroin and she lost custody of that child; she was kicked out of alcohol and drug treatment for fraternizing with males in treatment; she spent a year being homeless in Florida; and while in Florida, she met Justin while she was attempting to escape a man who was selling her into sexual bondage. Dr. Meidlinger opined that Meaghan "was less interested in providing an accurate picture of her life than in painting a picture that she wanted to project," "[a]nd that picture would have been of a person who's been a victim throughout her life, and who has been subject to terrible and painful experiences." Dr. Meidlinger did not see Meaghan's delusions as being evidence of bipolar disorder or schizophrenia, rather, he saw it as part of her personality disorder.
In his report, Dr. Meidlinger diagnosed Meaghan with intermittent explosive disorder, delusional disorder, mood disorder (not otherwise specified), and personality disorder with narcissistic and histrionic features. Dr. Meidlinger testified, "If you have an extreme personality disorder, and extreme problems with attachment, you don't care whether you establish a relationship and telling the truth becomes irrelevant. What takes the place of that is a desire to get attention for yourself for the outlandishness of the stories that you tell or the emotional presentation that you have." He said it is "very difficult" for someone with a personality disorder with narcissistic and histrionic features to overcome that. When asked how that diagnosis would impact the person's children, Dr. Meidlinger said, "Rather than being people who are being guided, protected, and shaped by their mother, they become just characters in their mother's movie." Dr. Meidlinger recommended outpatient counseling for Meaghan. Whitney testified that in the beginning, Meaghan was not open to getting a therapist, so it was a while before therapy sessions started.
Dr. Meidlinger testified that Justin said he drank "once in a blue moon," but also reported having been cited three times for driving under the influence of alcohol. Justin reported facing two charges for domestic violence against Meaghan, whom Justin described as "an emotionally intense woman who tended to see life as a catastrophe and who tended to focus a lot of anxious energy on things going wrong, and that she had been emotionally unstable in her relationship with him." Dr. Meidlinger described Justin as "naïve and self-centered and prone towards denying problems." Other risk factors that could play a role in Justin's ability to adequately parent were his personal and financial instabilities and alcohol abuse. Dr. Meidlinger recommended three kinds of therapy for Justin: individual therapy, marital counseling with Meaghan, and family therapy with his children.
Whitney testified that towards the end of 2017, Meaghan and Justin were doing well and "[w]e had progressed to reducing supervision of the visitations." However, Justin was incarcerated in December 2017 as a result of his May DUI. And when Justin was incarcerated, the family was evicted from their home, which resulted in Meaghan going to Hope Harbor, a homeless transitional shelter.
Jody Veeder was Meaghan's case manager at Hope Harbor from December 2017 until May 10, 2018. During that time, Veeder worked with Meaghan on employment goals, maintaining employment, budgeting, and parenting. According to Veeder, Meaghan actively participated in parenting classes, "but struggled with implementing it." Veeder stated that Jake, Jordan, and Jeremiah (born in February 2018) would visit Meaghan at Hope Harbor; staff reported concerns about Meaghan's interactions with the children which included yelling, grabbing, derogatory statements, and physical altercations. On May 10, Veeder was notified by another client that "recorded through the wall" that Meaghan was angry that one of the children had spilled and she told the child "that he makes her life hell and miserable and to clean it up"; Veeder stated "he didn't clean it up fast enough, and there's a slap on the [audio] recording" and then the child was heard crying. Meaghan then left the children in her room to get a vacuum, and leaving the children unsupervised was against facility rules. Veeder contacted Whitney, the police were called, and Meaghan was terminated from services at Hope Harbor.
Whitney testified that when Meaghan went to Hope Harbor in December 2017, she was paired up with Celeste Heaivilin for individual therapy, and Cynthia Kissack worked with Meaghan and the boys.
Heaivilin is a licensed mental health practitioner and addiction interventionist. Heaivilin began therapeutic sessions with Meaghan in February 2018 after receiving a counseling referral from Hope Harbor. Heaivilin tentatively diagnosed Meaghan with post-traumatic stress disorder, attention deficit disorder, and a mild dissociative disorder. They met almost weekly and worked on reducing anxiety and on codependency goals. Meaghan would make frequent crisis intervention calls to Heaivilin's practice during stressful situations; Meaghan would call when she was frustrated and upset and children would be crying in the background. Heaivilin thought Meaghan "was really trying and having quite a bit of success." And Heaivilin thought Meaghan felt confident parenting her children until at one point Meaghan was considering giving up her parental rights (date not specified). Meaghan testified that her sessions with Heaivilin helped her with her anxiety and with understanding the children.
Kissack is a licensed mental health practitioner. In November 2017, she received a referral for Jake to work on behaviors that he was physically aggressive toward Meaghan, would not listen to her, and had some out-of-control behaviors. Kissack also worked with Meaghan beginning that December on anxiety, feeling overwhelmed, and parenting issues. As to parenting issues, Kissack observed Meaghan yell at the children, and the children would often run away, not listen, be on furniture, and be physically aggressive. Kissack tried to provide some structure, routine, rules, and discipline techniques to help the children's behavior to be more manageable. Meaghan tried to implement some of the suggestions. Meaghan terminated therapy with Kissack in June 2018. Kissack stated, "I think [Meaghan] blamed me for some of the things that were happening in the case" and she did not like some of the suggestions given to her. During the 6 months they worked together, Meaghan made two or three crisis calls, stating that she felt overwhelmed, could not do it, and needed help. Kissack would listen to her and give her suggestions for parenting. Twice during the 6 months, including once in late April/early May and once in June, Meaghan said she wanted to give up parenting her children. And Kissack stated that in April, Meaghan reported that Justin wanted to give up parental rights so he could drink.
Whitney testified that after Meaghan left Hope Harbor in May 2018 she stayed at a hotel for approximately 1 month and continued to have visits with Jake and Jordan. Meaghan then obtained housing in an apartment. While incarcerated, Justin had limited parenting time with the boys, although he did have some visits while he was on work release (e.g., when Meaghan would transport Justin from the jail to work, he was able to spend time with the boys during transport, and Meaghan and the boys would visit Justin during his work breaks). DHHS still had concerns about the dynamics between Meaghan and Justin during those visits because DHHS would get reports that there was some yelling and controlling behavior. Jake and Jordan were placed with Meagan on September 14 because she was showing "really good progress." Justin was released from jail on September 20 and returned to the family home.
Jody Johnson is an independent mental health practitioner. Johnson started seeing Jordan in July 2018. Initially, she did an intake for child-parent psychotherapy (CPP), and assessed Jordan with Meaghan; Justin was incarcerated at the time and therefore did not participate. Johnson's initial impression of Jordan was that there was "an insecure attachment [to Meaghan] and there had been several traumatic experiences that he had endured." Therapy occurred twice a week. Meaghan was actively engaged and was attending sessions; there were times when she was willing to learn, and other times when she presented an unwillingness to learn and stated that the suggested strategies were not helpful. Johnson stated that Meaghan became "very dysregulated" in the sessions at times and Jordan reacted "with a lot of hyper-arousal and impulsivity," often becoming aggressive. Johnson also stated that "Jeremiah, his younger brother, was often present," and "there would be a lot of aggression that would go on between the two of them when Meaghan would become dysregulated."
Johnson stated that after Justin was released from jail in September 2018, there were concerns about his substance abuse treatment recommendations and she asked the he start to follow those recommendations prior to starting CPP. Also starting in September, Meaghan began making reports of sexualized behaviors by Jordan that were of concern; Johnson did not observe the behaviors until January 2019, and on one occasion, Jordan reported that he had seen his parents engage in sexual behavior.
According to Johnson, there were discussions about discontinuing CPP in October 2018 because Meaghan was becoming more defensive and dysregulated during sessions, Meaghan was seeing Johnson as a threat, and Meaghan stated that she was getting contradictory information from Johnson and the intensive family reunification therapist. Meaghan also started having some cancellations and no-shows for sessions. CPP was ultimately discontinued in January 2019. At that point, Johnson started individual sessions with Jordan. In May, Meaghan and Justin were both evaluated during the assessment phase of CPP to begin actual sessions again, but the assessment indicated that there was really no change in the parents (i.e., Meaghan's behaviors had not changed and Justin did not follow through with scheduling of the sessions for the assessment phase) and it was determined that CPP would not be appropriate. Johnson stated that in order for Meaghan and Justin to be able to participate in CPP, their individual therapists would need to recommend that they were at a place in their own treatment that they would have the ability to continue CPP.
Johnson stated that "at this point in time," Jordan has an "insecure attachment" to Meaghan and Justin. Johnson explained that "an insecure attachment typically results in dysregulation and . . . hyper-arousal"; "the parent is not seen as a secure base that is needed for him to continue on his normal developmental trajectory." According to Johnson, Meaghan and Justin have not displayed the ability to adequately manage Jordan's therapeutic needs. She said that consistency and routine are "very important" for Jordan.
Christina Peard is a provisionally licensed mental health practitioner; Johnson is her clinical director and supervisor. Peard began as Jake's therapist in July 2018. Peard testified that when Jake was referred, he exhibited a lot of aggressive behaviors, physical and verbal. Peard worked with Jake on understanding his behaviors, being mindful of his emotions, his communication, and how to cope. Justin was incarcerated at the time, and therefore did not participate in Jake's therapy. However, Peard worked with Meaghan to help her respond appropriately to meet Jake's needs. Meaghan was active in sessions and showed a willingness to implement learned skills. However, Jake would often trigger Meaghan "in ways that were not related to Jake, but due to her past domestic violence"; Jake would call Meaghan names or tell her to shut up, and that triggered her. Meaghan reached out for help, which was appropriate. However, Meaghan indicated that she felt overwhelmed with parenting Jake and his siblings. Peard stated that when she and Jake were working on healthy behaviors, he got confused because he felt like the safety rules should apply to everyone; he then shared that Jordan hits and that Justin called Meaghan names and was physical with her.
Peard testified that "Jake often sees himself as the person who's supposed to protect in the family." She continued:
[Jake's] often been placed in that role. He has been not kept safe, so he's been left to rely on himself. He has seen vulnerable people in his family not kept safe, so it has also forced him to rely on himself. And oftentimes, [Meaghan] projects her needs onto Jake requesting him to protect her or stand up for what she needs.One of the biggest obstacles that Peard and Jake were working on was his goal to be a child, because "it's hard for him to be in a child role when he does not see adults as safe," "[i]t's against his basic need."
Peard testified that after Justin got out of jail in September 2018, Jake reported that Justin threw him against a table. Peard said that later, "Jake shared that he was defending his brother who [Justin] had hurt." Peard stated, "[A]fter [Jake] punch[ed] his dad, his dad then retaliated and threw [Jake] over a coffee table, which led to the bruising on his body."
Whitney testified that Justin was released from jail on September 20, 2018. On September 25, DHHS received an intake that Justin had physically hurt Jake. When Whitney investigated, Jake talked about his parents getting angry and yelling at each other, and he said that his dad pushed him and he (Jake) hit a coffee table. When Whitney talked to Justin and Meaghan, they admitted they had an argument, but said that it had not gotten physical. They said Jake got in the middle and was hitting Justin, and that Justin was not successful in redirecting Jake, and when Justin went to move Jake aside, Jake tripped over a toy and hit the coffee table. DHHS determined a safety plan was needed. The parents helped create the plan, which consisted of the parents refraining from having any verbal discussions that could result in raised voices; the parents agreed to have those conversations via text message or when the children had gone to bed, and if neither was possible, one of them would leave the home so that the children were not present for those conversations.
Peard testified that at team meetings she invited Justin and Meaghan to continue to come to therapy, but explained that in order to attend, they must acknowledge the experiences that Jake had, something there were not willing to do. Peard said she explained to Justin and Meaghan that the intention of the sessions was "not to determine whether or not these incidents were true, but that Jake's reports were to be viewed as the truth," "[a]nd I needed them to validate it in order to participate in session." By not validating Jake's experiences, "it would . . . lead [Jake] to have to choose whether or not to believe his own truth," and he would question his own inner judgment. When asked about the parents' reactions to Jake's therapy, Peard stated, "Oftentimes when reports were given, Meaghan would either minimize the issue or try to analyze it and come up with her own understanding as to why Jake would either share this or where this could have come from"; "Justin would continue to deny it happened."
Peard agreed that after September 20, 2018, Jake's consistency in therapy declined, both in attendance and progress. When asked if she knew what contributed to the decline, Peard stated that it was "multiple factors."
[P]art of it was there was a lot of inconsistency in the home. They were placed back in Meaghan and Justin's care, so they had been removed again from their foster placement back home. Justin then returned home, so the family dynamics have changed. . . . And the therapeutic needs were no longer being met because they weren't regularly attending, as well as the multiple reports that continued to come in as far as [Meaghan] being overwhelmed, the children seeing and hearing things, things happening to the kids so they were witnessing and experiencing abuse at that time.According to Peard, Jake witnessed Justin and Meaghan having sex often, which contributed to sexualized behaviors. Jake also witnessed abuse and talked about seeing Justin hurting Meaghan and hearing crying and screaming at night.
Peard stated that in December 2018, Jake reported that Justin got mad and threw Jeremiah across the room and Jeremiah hit the couch and bounced, then Jake got mad and punched Justin, who then shoved Jake. Heaivilin testified that she asked Meaghan about a child abuse report against Justin in December 2018. Meaghan said she had gone to the kitchen and Justin was holding Jeremiah who was crying. When she came back, Jeremiah was on the couch and Jake was upset and said that Justin hurt Jeremiah. Meaghan told Heaivilin that she did not see any abuse, but also said that Justin drank 42 beers that day. According to Heaivilin, Meaghan also recalled an incident when Justin was yelling at Jordan while trying to potty train him and Justin said that Jordan was a "'"fucking mistake"'"; however, during her testimony, Meaghan denied telling Heaivilin that Justin said that, but she did tell Heaivilin that the State received a report of Justin saying that from someone else.
Whitney testified that on December 10, 2018, she received a call from Meaghan stating that Justin had been drinking, that she and Justin had been arguing throughout the day (the children were present), and she felt threatened by Justin so she left with the children. When Whitney spoke with Justin, he admitted to drinking. According to Whitney, arguing in front of the children was in violation of the September safety plan. Meagan reported to Whitney that they had not been following the safety plan and that there had continually been arguments in front of the children. A week later, DHHS got a report that during the December 10 incident, Justin had physically thrown Jeremiah while Justin was angry and drinking. After the December 10 incident, another safety plan was put in place wherein the children would reside with Meaghan and all contact between the children and Justin would be fully supervised by a provider; Justin had to find alternate housing. Both parents agreed to the safety plan, but did not successfully honor the plan. Whitney stated that during a home visit in January 2019, Jake informed her that they had been going and staying with Justin or that Justin was coming to their home. DHHS had family support check in on the family that evening, and the support worker observed Justin walking in the vicinity of Meaghan's apartment; he told the worker he had just gotten done with a visit despite the fact that the visit had been done for over an hour. Johnson testified that in January, Meaghan indicated that she and Justin were secretly meeting up; and this was during a time when there was supposed to be no contact between the two of them. Because DHHS determined that Meaghan was not adequately providing safety for the children, the children were removed and placed out-of-home on January 11.
Peard testified that from January 1, 2019, to May 2019, Meaghan did not participate in therapy sessions with Jake. Justin participated in two sessions with Jake in May during which Justin told Peard that he did not recall the incident in December 2018 because he was intoxicated, but that he would not argue with Jake's recollection. Also in May 2019, Jake was asked to share his report in court, and when Peard met with Jake he shared that prior to court, Justin asked him to lie and say that Justin set Jeremiah down gently. Family therapy was discontinued in June because "[t]he parents both exhibited interfering behaviors with therapy." Peard said that Meaghan would project her own needs above Jake's, and Meaghan tried to promote Justin's relationship with Jake; Justin spent his time trying to convince Peard of his own growth and development rather than bonding with Jake. According to Peard, it is "very important" for children Jake's age to have consistency in their daily life. Peard did not believe that Justin and Meaghan could attend to Jake's therapeutic needs.
Peard testified that Jake has an "unhealthy attachment" to Justin. Peard explained that Jake "has a change in behavior when [Justin] is around that's . . . often perceived as respect for his father, but from an attachment perspective, it is fear-based." Peard further testified that Jake has an "unhealthy attachment" to Meaghan, explaining that "he's been left in the role to protect his mother." According to Peard, Jake is "constantly" worried about upsetting Justin and Meaghan.
Whitney stated that after Justin's release from jail, DHHS started a 90-day intense family reunification program with the family to help stabilize the family and help everyone adjust to being home together full time. According to Whitney, the program was "kind of difficult." Meaghan and Justin struggled to engage with the therapist who noted "a lot of different concerns" with the parents' level of involvement and struggles with Meaghan's mental health and her getting overwhelmed. They did complete the program and it was recommended that they continue individual therapy and address alcohol use. Whitney testified that Justin checked himself into Valley Hope for alcohol treatment in either January or February. Justin's mother testified that Justin began inpatient treatment at Valley Hope in January 2019, successfully completed the program in February, and he thereafter saw a therapist one or two times each week.
According to Whitney, at the time the motion to terminate parental rights was filed on February 11, 2019, Justin had not consistently participated in therapeutic visitation with Jake and Jordan; Meaghan made some progress in her parenting ability, but was unable to sustain that progress; and the parents had not adequately addressed domestic violence concerns. Whitney opined that termination of parental rights was in the children's best interests because Meaghan and Justin were not able to sustain the safety and well-being of the children. And it was Whitney's understanding that Justin and Meaghan were still together.
Justin's mother testified that she had observed Justin with Jake and Jordan and that Justin had a very close relationship with the children; she had never seen Justin "strike or hit" the boys and they never appeared to be afraid of Justin. Justin's mother said that Meaghan struggled with Jake and Jordan at times but agreed that the boys seemed to enjoy their mother. Justin's mother did not believe it was in the children's best interests to terminate their parents' rights.
3. JUVENILE COURT'S DECISION
In an order filed on September 5, 2019, the juvenile court terminated Justin and Meaghan's parental rights to Jake and Jordan after finding by clear and convincing evidence that statutory grounds for termination existed pursuant to § 43-292(2), (4), (6), and (7), and that termination of parental rights was in the children's best interests.
Justin appeals and Meaghan attempts to cross-appeal the juvenile court's order.
III. ASSIGNMENTS OF ERROR
Justin assigns that the juvenile court erred in terminating his parental rights.
Although Meaghan assigns error to the juvenile court's decision, she failed to comply with the rules regarding cross-appeals. See Neb. Ct. R. App. P. § 2-109(D)(4) (rev. 2014). Meaghan properly designated herself as an appellee, but did not designate on the cover of her brief that she was presenting a cross-appeal. Accordingly, we will review the proceedings terminating Meaghan's parental rights for plain error only. See, In re Interest of Justine J. & Sylissa J., 288 Neb. 607, 849 N.W.2d 509 (2014) (holding that where brief of party fails to comply with mandate of § 2-109(D), appellate court may proceed as though party failed to file brief or, alternatively, may examine proceedings for plain error); In re Interest of Steven S. et al., 27 Neb. App. 831, 936 N.W.2d 762 (2019) (whether cover of brief puts appellate court on notice that affirmative relief is being sought is critical to deciding whether brief sufficiently complies with appellate court rules in order for court to consider assigned errors or, alternatively, whether court should limit examination of record for plain error only or provide no review at all).
IV. STANDARD OF REVIEW
An appellate court reviews juvenile cases de novo on the record and reaches a conclusion independently of the juvenile court's findings. In re Interest of Isabel P. et al., 293 Neb. 62, 875 N.W.2d 848 (2016).
Plain error is error plainly evident from the record and of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process. In re Interest of Alan L., 294 Neb. 261, 882 N.W.2d 682 (2016).
V. ANALYSIS
1. STATUTORY GROUNDS FOR TERMINATION
In Nebraska statutes, the bases for termination of parental rights are codified in § 43-292. Section 43-292 provides 11 separate conditions, any one of which can serve as the basis for the termination of parental rights when coupled with evidence that termination is in the best interests of the child. In re Interest of Elizabeth S., 282 Neb. 1015, 809 N.W.2d 495 (2012).
In its order terminating Justin and Meaghan's parental rights to Jake and Jordan, the juvenile court found that statutory grounds existed pursuant to § 43-292(2) (substantial and continuous or repeated neglect); (4) (habitual use of intoxicating liquor and repeated lewd and lascivious behavior); (6) (having determined child was a juvenile as described in § 43-247(3)(a), reasonable efforts to preserve and reunify the family had failed to correct conditions leading to determination); and (7) (child out-of-home for 15 or more months of the most recent 22 months).
The parents do not contest that Jake and Jordan have been in an out-of-home placement for 15 or more of the most recent 22 months. The children were removed from the parental home on February 24, 2017, and other than briefly being placed with Meaghan for approximately 4 months (September 14, 2018, to January 11, 2019), the boys have remained out-of-home ever since. Thus, when the motion to terminate parental rights was filed on February 11, 2019, the children had been in an out-of-home placement for 19 out of the most recent 23 months. And at the time of the termination hearing on July 29, they had been in an out-of-home placement for 25 out of the most recent 29 months. Our de novo review of the record clearly and convincingly shows that grounds for termination of parental rights under § 43-292(7) were proven by sufficient evidence.
We need not consider whether termination of parental rights was proper pursuant to § 43-292(2), (4), or (6), since any one of the 11 grounds identified in § 43-292 can serve as the basis for the termination of parental rights when coupled with evidence that termination is in the best interests of the children. See In re Interest of Elizabeth S., supra. Thus, the next inquiry is whether termination was in the children's best interests.
2. BEST INTERESTS AND UNFITNESS
Under § 43-292, once the State shows that statutory grounds for termination of parental rights exist, the State must then show that termination is in the best interests of the child. In re Interest of Ryder J., 283 Neb. 318, 809 N.W.2d 255 (2012). But that is not all. A parent's right to raise his or her child is constitutionally protected; so before a court may terminate parental rights, the State must also show that the parent is unfit. In re Interest of Nicole M., 287 Neb. 685, 844 N.W.2d 65 (2014).
There is a rebuttable presumption that the best interests of a child are served by having a relationship with his or her parent. Id. Based on the idea that fit parents act in the best interests of their children, this presumption is overcome only when the State has proved that a parent is unfit. Id. The term "unfitness" is not expressly used in § 43-292, but the concept is generally encompassed by the fault and neglect subsections of that statute, and also through a determination of the children's best interests. In re Interest of Nicole M., supra. Parental unfitness means a personal deficiency or incapacity which has prevented, or will probably prevent, performance of a reasonable parental obligation in child rearing and which caused, or probably will result in, detriment to a child's well-being. Id. The best interests analysis and the parental fitness analysis are fact-intensive inquiries. Id. And while both are separate inquiries, each examines essentially the same underlying facts as the other. Id.
(a) Ruling Related to Justin
As stated previously, Jake and Jordan were removed from the parental home in February 2017 due to concerns of physical abuse, domestic violence between Meaghan and Justin, concerns regarding Meaghan's mental health and Justin's alcohol use, and the parents' failure to follow a safety plan. In May, Justin got a "DUI and some other charges due to being under the influence of alcohol while driving." He was incarcerated from December 2017 to September 20, 2018, at which time he rejoined the family. Five days later, on September 25, Justin and Meaghan were arguing and Jake was injured (Jake said Justin threw him over a coffee table; Justin and Meaghan said Jake tripped and hit the table). A safety plan was put into place wherein the parents were to refrain from arguing when the children were present. However, on December 10, Whitney received a call from Meaghan stating that Justin had been drinking, they had been arguing throughout the day, and she felt threatened and left with the boys. Meagan reported to Whitney that they had not been following the September safety plan and that there had continually been arguments in front of the children. Additionally on December 10, there were reports that Justin had physically thrown Jeremiah while Justin was angry and drinking (Justin later asked Jake to lie about the incident in court). Another safety plan was put into place wherein the children would reside with Meaghan and all contact between the children and Justin would be fully supervised by a provider; Justin had to find alternate housing. Both parents agreed to the safety plan, but did not successfully honor the plan. In January 2019, Jake told Whitney that they had been going and staying with Justin or that Justin was coming to their home; and Meaghan told Johnson that she and Justin were secretly meeting up. Because DHHS determined that Meaghan was not adequately providing safety for the children, Jake and Jordan were removed from the parental home on January 11.
In addition to the above, after Justin was released from jail in September 2018, both Jake and Jordan reported having witnessed Justin and Meaghan having sex often, and both boys were exhibiting sexualized behaviors. Jake also witnessed abuse and talked about seeing Justin hurting Meaghan and hearing crying and screaming at night.
At the time of the termination hearing, Jake and Jordan had been in an out-of-home placement for 25 out of the most recent 29 months. And the concerns that were present at the time of the initial removal in February 2017--physical abuse, domestic violence between Meaghan and Justin, Justin's alcohol use, and the parents' failure to follow a safety plan--were still at issue at the time of the termination hearing in July 2019. Whitney opined that termination of parental rights was in the children's best interests because Justin and Meaghan were not able to sustain the safety and well-being of the children. We agree. "Children cannot, and should not, be suspended in foster care or be made to await uncertain parental maturity." In re Interest of Walter W., 274 Neb. 859, 872, 744 N.W.2d 55, 65 (2008). Where a parent is unable or unwilling to rehabilitate himself or herself within a reasonable time, the best interests of the child require termination of the parental rights. In re Interest of Ryder J., supra. We find that the State has rebutted the presumption of parental fitness as to Justin. We further find that there is clear and convincing evidence that it is in the best interests of Jake and Jordan to terminate Justin's parental rights.
(b) Ruling Related to Meaghan
As stated previously, we review the proceedings terminating Meaghan's parental rights for plain error only. Although Meaghan made enough progress so that the children returned to her in September 2018, her fate is tied to Justin's. After he returned to the home, abuse and domestic violence issues once again arose and Meaghan and Justin failed to follow safety plans put in place to protect the children. Meaghan put her relationship with Justin ahead of the safety and protection of the children. We find no plain error in the juvenile court's decision to terminate her parental rights.
VI. CONCLUSION
For the reasons stated above, we affirm the order of the juvenile court terminating Justin and Meaghan's parental rights to Jake and Jordan.
AFFIRMED.
ARTERBURN, Judge, concurring.
I agree that sufficient evidence was adduced to support the juvenile court's decision to terminate the parental rights of Justin and Meaghan. I write separately with regard to Meaghan's failure to comply with § 2-109(D)(4). This case is yet another instance of a parent in a termination action, whose interests are not adverse to the appellant, failing to file a brief on cross-appeal that complies with the rule. For the reasons stated in my concurring opinion in In re Interest of Steven S. et al., 27 Neb. App. 831, 936 N.W.2d 762 (2019), and since Meaghan's brief does comply with all requirements of an appellant's brief under § 2-109(D)(1), I would waive the requirements of § 2-109(D)(4) and grant her a full review of the decision of the juvenile court. A full review however would not change the outcome of this case. I would still affirm the decision of the juvenile court. Therefore, I concur with the opinion of the court.