In re Interest of Grace H.

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In re Interest of Grace H.

Caselaw No.
No. A-15-349
Filed on
Tuesday, December 1, 2015


SUMMARY: Debi B. appeals from the order of the Juvenile Court in Lancaster County adjudicating her child, Grace H., to be within the meaning of Neb. Rev. Stat. § 43-247(3)(a). The Court of Appeals finds that the State did not prove the allegations by a preponderance of the evidence, and so reverses and remands with directions.
 
Debi is the biological mother of Grace, who was born in December 2014. Zachary H. is her biological father. Grace was removed from Debi’s care at the hospital after she was born.
 
Debi has three older children: Xavier B., Alijah B., and Messiah S. The children all have different fathers and were removed from Debi’s care in October 2012 and placed separately because of domestic violence between Debi and Messiah’s father, failure to protect the children, and improper supervision. Messiah also tested positive for THC. Those three children were adjudicated to be within the meaning of Neb. Rev. Stat. § 43-247(3)(a) in July 2013. The prior removals are the reason for the removal of Grace.
 
Jurisdiction over Alijah was terminated as she was placed with her non-respondent father. Curiously, the State wanted to have Xavier reunited with Debi, while at the same time filing to terminate her rights as to Messiah. The Court did terminate Messiah’s father’s rights, but did not terminate Debi’s because she was making progress in her case plan. The State filed another motion to terminate Debi’s rights to Messiah in September 2014.
 
At a review hearing held just one week before Grace’s birth, the Court noted that Debi had made good progress toward her goals. On December 18, 2014, the State filed a petition as to Grace and a petition for temporary custody the next day, which was granted. On December 23, 2014 Grace’s biological grandmother, Joan D., filed a motion for leave to intervene, which was granted as she has had physical placement of Grace.
 
On March 23 and 24, 2015, a contested adjudication hearing took place. The State said it would file a supplemental petition and a hard copy was provided to all parties, but it does not appear in the record. The hearing included testimony from the caseworker that the purpose of an adjudication as to Grace is that not all of Debi’s issues from the prior case have not been corrected. However, she did say that the mother had made good progress, although she admitted she had not read any of the visitation notes from the last two years (before she had the case) and that, “I don’t think the Department knows specifically what kind of harm would have came [sic] to the child. We were just ensuring that harm itself did not come to the child.” (page 6). She also testified that Debi was not currently at risk of domestic violence.
 
Debi testified that she had made progress through therapy. She said that she was currently incarcerated, but would be released in one month (there is nothing in the record as to why she is incarcerated) and that Grace could stay with her mother until her release.
Debi’s therapist testified that Debi was making significant progress and was very actively involved in her sessions.  She testified that she had no concerns about Debi’s ability to parent.
 
The Court adjudicated Grace to be within the meaning of Neb. Rev. Stat. § 43-247(3)(a). In its decision, the Court quoted from In re Interest of Joshua M., 251 Neb. 614 (1977), “A juvenile court need not wait until disaster has befallen a minor child before the court may acquire jurisdiction; if it is reasonable to assume that injury will occur absent action by the court, then the court may assume jurisdiction and act accordingly.”
 
The Court of Appeals reviews juvenile cases de novo on the record, however, when evidence is in conflict, it may give weight to the lower court’s ability to observe witnesses. In re Interest of Octavio B. et al., 290 Neb. 589 (2015).
 
The Court of Appeals notes that adjudication is meant to protect the interests of the child and that the State must prove that there is a definite risk of future harm. In re Interest of Taeven Z., 19 Neb. App. 831 (2012). Here, the Juvenile Court based its adjudication of Grace entirely on the previous case and there is nothing in the record that shows that Grace was at risk of harm. The Court of Appeals notes Debi’s work in therapy, that there is no current domestic violence, and the recent review hearings in the other case that do not explain why Messiah or Xavier would be at risk of harm. The Court of Appeals also addresses Grace’s incarceration. It explains that nothing in the record explains why she was in jail, but also finds that her brief time in jail would not constitute harm to Grace or support an adjudication.
 
A prior adjudication of siblings may be considered in an adjudication, but the Court of Appeals distinguishes this case because Debi has fully participated in her court-ordered requirements from the prior case. The State also did not prove that there was a nexus of harm to Grace from the prior domestic violence. See In re Interest of Justine J. et al., 286 Neb. 250 (2013).
 
Therefore, the Court of Appeals reverses and remands with direction to dismiss the petition.