SUMMARY: Termination of parental rights was proper where the child had multiple injuries over several years, where he was diagnosed with psycho-social dwarfism, where he was severely delayed in multiple areas but made quick improvements after being placed in foster care and where the parents failed to take any responsibility.
Skylar H., DOB 10/04, Ashton H., DOB 11/05, and Taylor H., DOB 2/09, were removed from the home of Carlos and Jennifer on October 12, 2011. Jordana was born in December 2011 and removed at that time. After several hotline calls to DHHS about injuries and bruises on Ashton, a caseworker and police officer went to the home multiple times on October 12th but were unable to locate Ashton. They could also not determine where he slept. Ashton was located later at his grandparents’ home with multiple marks and a distended abdomen. He was also extremely small for his age and has substantial cognitive and motor delays. There was a substantial medical history with Skylar and Ashton, which includes a 2004 hospital visit after Skylar was unconscious and not breathing, a 2005 visit with 2-month-old Ashton for a broken femur where the doctors also found a healing fractured rib and fractured elbow, a 2009 hospital visit with Ashton for a laceration on the back of his head which required staples, and a January 2010 report about Ashton’s welfare due to his delays and injuries. For the majority of these injuries, the medical professionals involved expressed concern about potential abuse. For the 2007 injuries, the children were removed by Kansas child welfare but eventually returned home. For the present case, a 3a petition was filed as to Skylar, Ashton, and Taylor on October 14th, and on December 14th, the State filed motions to terminate parental rights of the parents to all children including Jordana. Trial was held in August 2012. At trial, several experts testified as to Ashton’s injuries and delays. He has been diagnosed with psycho-social dwarfism, which is failure to grow due to repeated, long-term neglect. He was hoarding food and had significant delays, which had improved greatly since entering foster care but which required an ongoing nurturing setting. Skylar also had significant behaviors, including speaking in strange inflections about their home, being withdrawn and having little empathy. Skylar testified that Carlos and Jennifer had repeatedly physically abused Ashton, made him eat standing up at a separate table, and had him sleep in a dog kennel in the basement. The parents consistently denied the abuse but their explanations were often inconsistent with the injuries or problems. On October 11, 2012, the court terminated parental rights. Carlos appealed.
The Nebraska Court of Appeals affirmed the termination. As to Carlos’ claim that the court didn’t have jurisdiction of Jordana because the State didn’t file a 3a petition, the Court of Appeals noted that the court can acquire jurisdiction through the filing of a TPR motion and can proceed on the termination so long as due process of the parent is protected, which it found to be in this case. As to all of the children, the Court of Appeals found that it was not erroneous for the court to skip the 3a adjudication and grant the petitions to terminate parental rights. As to Carlos claim that a Daubert hearing wasn’t held, the Court of Appeals noted that the party opposing the expert must file a pretrial motion, which Carlos didn’t do, but that in any event strict rules of evidence don’t apply in TPR trials but rather due process standards. In this case, the Court of Appeals found that Carlos had notice of the hearing and witness, cross-examined the witness and knew what evidence was going to be presented and therefore found due process requirements were satisfied. As to the grounds for termination under 43-292(2) and (9), the Court of Appeals agreed there was clear and convincing evidence that Carlos substantially and repeatedly neglected and refused to give Ashton parental care and protection in that there were several instances between 2004 and 2011 where medical professionals expressed concern over Ashton’s injuries, where teachers at school were concerned with his condition, where three doctors diagnosed him with psycho-social dwarfism, where there were no reasonable alternative explanations for the injuries and where Skylar testified to the parents’ abuse. As to best interests, the Court of Appeals noted that several of the children’s providers warned of the dangers in placing the children back in the home, that the parents never accepted any responsibility and that the children made substantial progress in the brief period of time out of the home, and agreed that termination was in the children’s best interests. Finally, the Court of Appeals rejected Carlos’ claim that he was entitled to an expert at state expense even though he had a privately appointed attorney.