In Re Interest of Ky’Ari J.

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In Re Interest of Ky’Ari J.

Caselaw No.
29 Neb. App. 124 (2020)
Filed on
Tuesday, November 17, 2020

Summary:

Kwamayne J. appeals the juvenile court order terminating his parental rights to his daughter, Ky

‘Ari J., the Court of Appeals affirms the juvenile court decision.

 

Kwamayne J. and Ashley T. are the parents of Ky’Ari (born 2016), Ashly has two other children namely Brooklyn (born 2011) and Ky’Lynn (born 2019).  It is unclear from the record whether or not Kwamayne is Ky’Lynn’s father, he is not on the birth certificate nor does the record included any paternity testing.

This appeal only addresses Kwamayne’s parental rights to Ky’Ari.  Ashley is not part of this appeal.

 

In May 2019, Kwamayne and Ashley were not married or living together, but they were in a relationship. On May 29, Kwamayne was watching Ky’Ari, Brooklyn, and Ky’Lynn at Ashley’s apartment in Omaha, Nebraska, while Ashley was at work. During this time Ky’Lynn, the 3 month old, became unresponsive.  Ky’Lynn was taken by ambulance to UNMC where she was diagnosed with abusive head trauma.  All three children were removed from the home and placed in the temporary custody of the Nebraska Department of Health and Human Services (NDHHS).  On May 30, 2019 the State filed a supplemental petition alleging that Ky’Ari was a child within the meaning of § 43-247(3)(a) by reason of the fault or habits of Kwamayne. In this supplemental petition the State alleged that Ashley was the primary caregiver of Ky’Lynn.  However, on September 3, 2019, the State filed an amended supplemental petition and termination of parental rights.  The amended supplemental petition alleged that Ky’Ari was a child within the meaning of § 43-247(3)(a) by reason of the fault or habits of Kwamayne. The amended supplemental petition alleged that Kwamayne was a caregiver of Ky’Lynn.   The State also sought to terminate Kwamayne’s parental rights to Ky’Ari pursuant to Neb. Rev. Stat. § 43-292(2), (9), and (10) (Reissue 2016).  The allegations were as follows: Kwamayne substantially and continuously or repeatedly neglected and refused to give Ky’Ari, or a sibling of Ky’Ari, necessary care and protection; Kwamayne subjected Ky’Ari or another minor child to aggravated circumstances, including, but not limited to, abandonment, torture, chronic abuse, or sexual abuse; Kwamayne committed a felony assault that resulted in serious bodily injury to Ky’Ari or another minor child of the parent; and termination of Kwamayne’s parental rights was in Ky’Ari’s best interests. Finally, the State alleged that reasonable efforts were not required pursuant to Neb. Rev. Stat. § 43-283.01 (Cum. Supp. 2018).

The adjudication was set for two days, Kwamayne, who was incarcerated, declined to attend the first day of the trial but did attend the last day of trial.  Several witnesses testified and numerous exhibits were received into evidence. Kwamayne did not testify.  The expert medical opinion was that Ky’Lynn’s injuries could have only happened due to abuse.  Law enforcement testimony was also heard; the information from Kwamayne’s police interviews was not consistent with Ky’Lynn’s injuries per Dr. Haney, the doctor who treated Ky’Lynn.  There was also testimony of possible child abuse that happened over a year ago to one of the other children, though Kwamayne was never charged back then.  Kwamayne was arrested for felony child abuse in regards to Ky’Lynn and this incident.  Information related to domestic violence in the home in the presence of the children was also adduced at trial as well as Brooklyn’s therapist’s testimony and report that detailed violence in the home as related by Brooklyn to her therapist.  Ashley also told Brooklyn’s therapist about various incidents of domestic violence in the home that the children witnessed.  Ashley also told this therapist that she, Ashley, was scared of Kwamayne.  During this testimony at trial Kwamayne became disruptive in court and after repeated warnings Kwamayne was charged with contempt of court and taken out of the courtroom.

The trial court found that Ky’Ari J., was a child within the meaning of § 43-247(3)(a) because she lacked proper parental care by reason of the fault or habits of Kwamayne.  The trial court also found by clear and convincing evidence that reasonable efforts were not required and statutory grounds for termination existed pursuant to § 43-292(2), (9), and (10) and that termination of parental rights was in the child’s best interests.  Kwamayne appeals.

The Court of Appeals agreed with the trial court that based on the evidence Ky’Lynn suffered abusive head trauma while in Kwamayne’s care.  Further that the evidence at trial showed that the severe non-accidental injuries sustained by Ky’Ari’s 3-month-old sister while in Ky’Ari’s father’s care certainly puts Ky’Ari at risk for future harm. Nebraska case law is clear that at a minimum, the State must establish that without intervention, there is a definite risk of future harm. See In re Interest of Kane L. & Carter L., 299 Neb. 834, 910 N.W.2d 789 (2018).  Therefore, the conditions alleged fit within § 43-247(3)(a) due to the fault or habits of Kwamayne.

The juvenile court also terminated Kwamayne’s parental rights to Ky’Ari after finding by clear and convincing evidence that reasonable efforts were not required and statutory grounds for termination existed pursuant to § 43-292(2), (9), and (10) and that termination of parental rights was in the child’s best interests.  Here the Court of Appeals affirmed based on § 43-292(2), and (9), but not § 43-292(10).  Section 43-292(10) states, among other things, that the parent has committed felony assault resulting in serious bodily injury to the juvenile or another minor child of parent.  According to the Court of Appeals the record did not show that Kwamayne was Ky’Lynn’s legal father nor did the record show that Ky’Ari was seriously injured by Kwamayne.

As to § 43-292(9) which states that the parent of the juvenile has subjected the juvenile or another minor child to aggravated circumstances, including, but not limited to, abandonment, torture, chronic abuse, or sexual abuse; the Court of Appeals found that based on the evidence presented at trial, Ky’Lynn did not have a head injury when Ashley left for work. Kwamayne was the only person who provided care for Ky’Lynn during the timeframe she would have sustained the injury, and he did not offer any reasonable explanation for the injury. Additionally, there was other evidence in the record to show Kwamayne exhibited violent behavior in the past. According to Hillebrandt’s, Brooklyn’s therapist, report and testimony, Brooklyn made statements that Kwamayne had hit Ashley until she bled and that he stepped on Ashley’s face. Therefore the Court of Appeals concluded that there was clear and convincing evidence presented at the termination hearing to prove that Kwamayne subjected Ky’Lynn to “aggravated circumstances” pursuant to § 43-292(9). And accordingly, there was clear and convincing evidence to show that grounds for termination of Kwamayne’s parental rights to Ky’Ari under § 43-292(9) were proven by sufficient evidence.

The trial court also found § 43-292(2) to be true by clear and convincing evidence which the Court of Appeals did not address since you only need one of the grounds listed in § 43-292 to terminate parental rights.

Next the Court of Appeals discussed best interests of the child.  The best interests analysis and the parental fitness analysis are fact-intensive inquiries. And while both are separate inquiries, each examines essentially the same underlying facts as the other. In re Interest of Nicole M., 287 Neb. 685, 844 N.W.2d 65 (2014).  In addition to there being clear and convincing evidence that Kwamayne caused a severe, nonaccidental injury to Ky’Ari’s sister, there was also evidence that Kwamayne abused Ky’Ari’s mother in the record. Due to other evidence adduced (domestic violence against Ashley) in the record the Court of Appeals found that the State has rebutted the presumption of parental fitness as to Kwamayne and further that there was clear and convincing evidence that it was in the best interests of Ky’Ari to terminate Kwamayne’s parental rights.