In re Interest of Miah T.

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In re Interest of Miah T.

Caselaw No.
A-15-417, A-15-694
Filed on
Monday, February 29, 2016


SUMMARY: DeKarlos H. appeals from two separate orders of the Lancaster Juvenile Court. In A-15-247 the Court ordered DeKarlos to attend domestic violence batterers’ intervention course and a victims’ impact group prior to becoming a viable placement for his daughter, DeKandyce. In A-16-694, the Court ordered DeKandyce’s placement in a foster home. The Court of Appeals affirms both orders in their entirety.

DeKandyce, born in 2007, is the daughter of DeKarlos and Everlyn B. Everlyn has another daughter, Miah T.  Miah and Everlyn are not involved in this appeal.

In July 2014, the State filed a petition against Everlyn alleging that DeKandyce was within the meaning of Neb. Rev. Stat. § 43-247(3)(a) because when she was under the influence of alcohol, she threatened to stab or strike Miah. DeKandyce was present for the incident. DeKandyce was removed and placed in relative foster care.

DeKarlos was appointed an attorney a few days after the petition was filed and permitted to have unsupervised visits subject to drop-ins by DHHS.

Everlyn pled no contest in January 2015 and at disposition was ordered to complete services. DeKarlos was ordered to participate in domestic violence education if he wanted to be considered as a placement for DeKandyce. At the first review hearing in April, DeKarlos did not attend, but the caseworker testified that he had not completed domestic violence education – he enrolled but was discharged for non-attendance and for lying to the instructor. In April, the Court added to the order that DeKarlos attend and complete batterers’ intervention and victims’ impact courses. The recommendation by DHHS for domestic violence services stemmed from DeKarlos’s criminal history as well as domestic violence he perpetrated on Everlyn. The next day, the State filed a supplemental 3(a) petition against DeKarlos because DeKarlos did not place himself in a position to have DeKandyce placed with him.

DeKarlos appeals the April 2015 order.

DeKandyce had to be removed from her relative foster placement because of harassment by Everlyn and DeKarlos. She was placed in nonrelative foster care and DHHS filed a motion for placement change. In June, there was a hearing on the placement change where testimony was taken about the harassment. The caseworker also testified that DHHS did not feel comfortable placing DeKandyce with her father because he had not completed his ordered services, and a long history on the child abuse and neglect registry as to seven children, he had prior incarcerations, and because this petition was still pending. The Court approved the placement in nonrelative foster care.

DeKarlos appeals from this order as well.

Juvenile cases are reviewed de novo on the record, but the Appellate Court makes an independent conclusion.

The Court first addresses A-15-417. Before addressing the order on its merits, the Court must determine if it is a final order and therefore appealable. If an order affects a person’s substantial right to raise his or her child, it is final and appealable. In re Interest of Octavio B. et al., 290 Neb. 589 (2015). An order entered after a child is adjudicated and requires the parent to do something is generally final and appealable. See In re Interest of Ty M. & Devon M., 265 Neb. 150 (2003). Therefore, the April 2015 order is final and appealable.

On the merits, the Court of Appeals upholds the April order. DeKarlos argues that is inappropriate because DeKandyce had only been adjudicated to be within the meaning of 3(a) at that time as to Everlyn. However, Neb. Rev. Stat. § 43-247(5) states that the juvenile court has jurisdiction over “[t]he parent, guardian, or custodian of any juvenile described in this section.” Therefore, the Court has jurisdiction over a parent whenever a child is found to be within the meaning of the section, even if that parent is not the respondent. The parent does not have to be the custodial parent after a statutory change that took place in 2008. The Court therefore had jurisdiction over DeKarlos and could order him to submit to domestic violence education. The Court of Appeals concludes that because there was evidence that indicated DeKarlos may not be a safe parent because of his domestic violence history, the order was related to the underlying issue that makes DeKarlos an improper placement for his daughter.

The Court then addresses the order in A-15-694 that placed DeKandyce in nonrelative foster care. The Court of Appeals affirms this order, also.

 

There is a preference to place children with their parents. In re Interest of Stephanie H. et al., 10 Neb. App. 908 (2002). This preference can be overcome if there is evidence that a parent is unfit. Because of DeKarlos’ failure to complete the services that he had been ordered to as well as his history of neglect, the Court agrees that he is currently unfit to provide a safe and stable home to his child and DeKandyce was appropriately placed in nonrelative foster care.