In Re Interest of B.B., et al

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In Re Interest of B.B., et al

Caselaw No.
29 Neb. App. 1
Filed on
Tuesday, October 13, 2020

Summary:

Amie B. appeals from an order of the juvenile court in an ongoing juvenile case that, in part, removed eight children from her home and also granted sibling visitation between three other children. In addition, she challenges the continuation of a placement hearing following an emergency placement order. She also raises subject matter jurisdiction as a matter of plain error. Court of Appeals affirms.

This case involves 11 children: B.B., born in 2004; N.B., born in 2005; Q.B., born in 2006; M.B., born in 2008; twins G.M. and Z.M., born in 2012; J.M., born in 2013; L.M., born in 2014; R.M., born in 2015; and twins C.M. and K.M., born in 2017. Amie is the adoptive mother of B.B., N.B., Q.B., and M.B.; Anthony B., None of the fathers (Gabriel and Anthony) are involved in this appeal.

On December 31, 2018, the State filed a motion for and was granted an ex parte order for the emergency temporary custody of N.B., based on allegations that he engaged in sexually assaultive behaviors toward some of his siblings within the family home. N.B. was placed in the temporary custody of the DHHS. Neither Amie, Gabriel nor Anthony objected to the Department of Health and Human (DHHS) having temporary legal and physical custody of N.B., N.B. has remained out of the home since this time, January 2019.  The State filed a petition on January 2, 2019 and filed amended petitions on January 14 and on April 29, alleging all the children were at risk for harm as defined by Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016).  The petitions were no fault against the parents.   As finally amended, the State specifically alleged that on one or more occasions since August 2018, N.B. engaged in sexually inappropriate behaviors with one or more of his siblings residing in the family home, and that despite safety planning, the family was unable to prevent continued incidents of inappropriate contact between the siblings.  The juvenile court adjudicated all 11 children as being within the meaning of § 43-247(3)(a), based on Amie’s and Gabriel’s no contest pleas.  At the disposition hearing the juvenile court found that the primary permanency plan for N.B. was reunification and that the primary permanency plan for the other 10 children was family preservation. At this time all the children were placed (or remained placed in the case of N.B.) in the DHHS temporary legal custody.  Physical custody of the 10 children remained with the parents.  The juvenile court ordered: 1) therapy for the children, 2) parents to cooperate with family therapy, 3) maintain legal means of income and housing and 4) no physical discipline of the children.  On August 29, 2019, the State filed a motion and was granted an emergency change in placement for all the children left in the home based on allegations of sexual contact between siblings, domestic violence in the home, inappropriate physical discipline, and neglect (i.e., not enough food for the children).  A hearing was set for September 4, but after a number of continuances, it was ultimately held on November 21. On November 12, 2019, N.B.’s guardian ad litem (GAL), on behalf of N.B., filed a motion asking the juvenile court for an order approving sibling visitation between N.B. and his brothers, B.B. and Q.B. A hearing on the visitation motion was also set for November 21. On November 21, 2019, the matter came on for a hearing for review of disposition, a placement hearing pursuant to the court’s August 29 order (the emergency placement order), and a hearing on the motion for sibling visitation.  The DHHS case manager testified to the following: it was difficult to schedule meetings with the family, two of the younger girls were showering together as relayed by a therapist letter, other allegations of a sexual nature were being shared in therapy by the children, information regarding physical discipline still happening in the home and information about lack of food in the home.  According to the case manager via her testimony the children were interviewed at a Child Advocacy Center and she, the case manager, was able to listen to the interviews.  Some of the children did not reveal any abuse and other children related various inappropriate actions of a sexual nature between certain children.  No specific timeframes were given by the children as to the occurrences except that it was after February 2019.  There was also inconsistent testimony on whether or not Amie refused to sign a safety plan.  Amie testified that she never received a current safety plan to sign.  According to the various court reports more concerns around sexual behaviors, education issues and safety were shared by the case manager, foster parents and guardian ad litem.  Intensive family reunification and a safety plan were recommended, and a slow transition plan home. Amie testified that she completed the services ordered and that there were no food issues in the home and that appropriate nonphysical discipline was used in the home.  She also relayed that with so many children it is hard to schedule meetings around the children’s activities.

Sibling visitation between N.B. and B.B. and Q.B. was also addressed at the hearing. The juvenile court had ordered visitation between the boys, due to the fact that only B.B. and Q.B. were allowed to be placed back with Amie, at the hearing Amie objected to both the visitation and the continued foster placement of the other children.

Amie’s appeal states that the juvenile court should have returned all the children (except N.B.) to her as she was the reporting party and immune to jurisdiction pursuant to  Neb. Rev. Stat. § 28-716 (Reissue 2016).  Amie also states in her appeal that continuing the contested removal hearing that had been originally set for October 8, 2019, deprived of her due process rights and that sibling visitation between B.B., Q.B. and N.B. was against B.B.’s and Q.B.’s best interests.

While Amie did not appeal the April 2019, adjudication of the children she still requests that the Appeals Court find plain error and vacate the juvenile court’s jurisdiction over the children, except for N.B.  Amie bases much of her argument on the immunity of reporters in § 28-716.  She also argues that she took proactive steps in meeting the needs of all the children and that the state’s evidence was not sufficient to support the adjudication under the petition.

The Appeals Court found that based on the factual basis presented at the adjudication and in light of Amie’s no contest plea to those allegations in the petition, the State proved the allegations in the amended petition by a preponderance of the evidence. Accordingly, the juvenile court properly acquired jurisdiction over all 11 children and their mother, Amie, when it found the conditions fit within § 43-247(3)(a) and adjudicated the children as juveniles within the meaning of § 43-247(3)(a). See, § 43-247(3)(a) and (5); In re Interest of Kane L. & Carter L., 299 Neb. 834, 910 N.W.2d 789 (2018).

Amie contends that despite being the one to report concerns that N.B. could not continue to reside in her home, a juvenile petition was filed against her which unjustifiably subjected her other minor children to the jurisdiction of the juvenile court in violation of the “mandate of immunity” set forth in § 28-716.

As to Amie’s immunity argument the Appeals Court reminds us that the foremost purpose and objective of the juvenile code is the protection of a juvenile’s best interests, with preservation of the juvenile’s familial relationship with his or her parents where the continuation of such parental relationship is proper under the law. In re Interest of Corey P. et al., 269 Neb. 925, 697 N.W.2d 647 (2005).  Since the goal of juvenile court is to protect children and promote their best interest not to punish parents, any potential consequences to parents are collateral to the main purpose of protecting children. Id. Accordingly, the Appeals Court concluded that the immunity provision set forth in § 28-716 which relates to mandatory reporting of suspected child abuse or neglect does not prohibit the juvenile court from acquiring jurisdiction of juveniles determined to be within the meaning of § 43-247(3)(a), even when such reporting is made by the parent of the subject juvenile(s).

In her brief Amie asked the Appeals Court to return her children, except for N.B., to her.  However, Amie did not appeal the original order of placement which was a final, appealable order.  The Appeals Court noted that even if she had properly appealed the original order the evidence submitted to the juvenile court was sufficient to remove the children.  Next Amie challenges the many continuances of a contested hearing regarding the removal of the children that the juvenile court allowed.  The continuances were for several reasons: on the court’s own motion to align with the next review hearing, a requested continuance by HHS attorney to which no one objected, a requested continuance by Amie, and another continuance request by HHS and State due to ongoing investigations.  Amie did object to last continuance but the juvenile court granted the continuance to allow time for the investigation to be completed.  To complicate the situation further the initial judge assigned to the case retired, the State alluded to possible new allegations and further filings coming out of the investigation and the case was reassigned to the new judge.  The new judge set a filing deadline, which the State did not meet and therefore the judge set aside the emergency placement order (August 2019). At this November 2019, hearing the juvenile court stated that the matter was before it on review of the prior disposition and “[p]lacement matters can always be addressed by the Court in the context of a review hearing as well.” The review hearing proceeded with testimony and evidence.  In the juvenile court’s amended order filed on November 25, 2019, the juvenile court vacated the August 29 order of emergency placement but kept 9 of the children (except B.B. and Q.B.) in out of home placement due to the evidence showing it would be contrary to their health, safety, and welfare to be returned to the family home.  The court found and ordered that there were no barriers or safety concerns that would prevent the return of B.B. and Q.B. to the home of Amie. All 11 children were to continue in the legal custody of DHHS.

Amie claims her due process rights were violated in that she was not allowed to parent her children for 85 days without being heard.  The Appeals court distinguished the cases that Amie cited in her brief from the present case due to the fact that those cases, cited by Amie, the parties were appealing from a final detention order following a hearing.  The Appeals Court pointed out that the procedural posture of the case at bar is much different in that the emergency order of August 29, 2019, was vacated—orally at the hearing on November 21 and in writing in the November 25 order. Thus, the issue of any delay of the contested placement hearing on October 8 is now moot.

Amie also argued against visitation between N.B. and B.B. and Q.B, stating it was not in their best interests and that if anything therapeutic visitation should have been ordered.  In light of the evidence received by the juvenile court from the case manager and the therapists for the children the Appeals Court found that the juvenile court did take into account the best interests of B.B. and Q.B., especially when considering the juvenile court’s amended order also provided that B.B. and Q.B. were to participate in individual therapy as arranged by DHHS and that the therapists were to be qualified to provide trauma therapy and therapy for child victims of sexual assault.

For the above stated reasons the amended November 25, 2019, juvenile court order is affirmed.