In re Interest of Brendon J.

Summary: Placing the child in the custody of DHHS and for placement excluding the mother and father’s home was appropriate where the mother’s parental rights in three other children had previously been involuntarily, the father did not plan to separate from the mother and suffered from cognitive deficits, and reasonable efforts were being made to maintain a connection between the child and his father. On July 11, 2014 the State of Nebraska filed a petition alleging that Brendon J. Jr. (born July 2014) came within the meaning of § 43-247(3)(a) and lacked proper parental care due to the faults and habits of his mother, Ronnie J., and was therefore at risk of harm. The petition alleged that Ronnie J.’s parental rights to three other children had been involuntarily terminated in 2010, 2012, and 2013 due to continuous and substantial neglect despite being involved in rehabilitative services. Further, due to the previous terminations of parental rights, the State was not required by statute to provide reasonable efforts to preserve and reunify the parent and child. The State also filed an ex parte motion with an affidavit from a child and family services specialist for temporary custody with DHHS and placement to exclude the home of the mother. The court issued an ex parte order for immediate custody with DHHS and placement to exclude the home of the mother. A protective custody hearing was held on July 23, 2014, at which Ronnie J. denied the allegations. On July 24, 2014, the court issued an order finding that Brendon J. Jr. should remain in the custody of DHHS and in a placement to exclude the mother, considering the evidence presented by a child and family services specialist and the mother’s level of participation in previous cases and past inadequate parenting. The child and family services specialist testified that she believed the child would be at risk of harm if returned to the parental home because of prior unsuccessful rehabilitation efforts. On August 11, 2014, the State filed a petition alleging that Brendon J. Jr. came within § 43-247(3)(a) due to the fault or habits of his father, Brendon J. Sr. The petition alleged that Brendon J. Sr. lived with Ronnie J. and refused to leave her or separate from her, failed to understand why Ronnie J. was unable to parent and had cognitive deficits, and therefore Brendon J. Jr. was at risk of harm. An ex parte order was issued placing Brendon J. in custody of DHHS, for placement to exclude the home of his father. A protective custody hearing was held on August 14, 2014. The court ordered that the child remain in the department’s custody and placement should exclude the home of his father, finding that it would be contrary to the health, safety, and welfare of the child to return to the home of his father and that his mental health limits his ability to provide for his child’s safety. The Court of Appeals affirmed. Ronnie J. appealed, arguing the court erred in finding out-of-home placement was necessary pending adjudication, that the State was required to make reasonable efforts to prevent or eliminate the need for removal. Under § 43-283.01(4)(c) the State must only prove the child is at risk for harm when the court has determined that the parental rights of the parent to a sibling of the juvenile had been involuntarily terminated. The Court found that although Ronnie J. was correct that there was evidence of abuse or neglect in the present case, three prior involuntary terminations would not have occurred without cause. The evidence of previous failure to participate in rehabilitative services and maintain contact with a child further supports the lower court’s findings. Brendon J. Sr. argued there was insufficient evidence to find Brendon J. Jr. would be at risk for harm in his care. The Court found there was sufficient evidence, considering that Brendon Sr. continued to reside with Ronnie J. and suffered from cognitive deficits that inhibit his ability to parent. Second, Brendon J. Sr. argued the court erred in determining the State was not required to make reasonable efforts to maintain the child in the parental home. The Court finds that reasonable efforts to maintain would have been futile because he does not plan to separate from Ronnie J. and the child cannot be placed in her residence. Further, reasonable efforts are being made to maintain Brendon J. Sr.’s connection with his child through supervised visitation. The Court of Appeals finds the lower did not err in placing custody of Brendon J. Jr. with DHHS and excluding the residence of the mother and father for placement.