SUMMARY: The parents’ behaviors, which included failure to take feeding instructions seriously, to have adequate formula and to comply with the feeding schedule, created a definite risk of harm that the baby would not be properly fed as medically required, warranting adjudication. It is not necessary that the child actually fail to thrive before becoming adjudicated under 43-247(3)(a).
Chloe was born in January 2012 with medical issues that required a nasogastric feeding tube and 20-day NICU stay. Prior to being discharged, a 48-hour monitoring hold was put in place to ensure the parents, Susan and Joseph, could comply with the strict feeding orders. After a nurse reported to DHHS that the parents had to be woken twice in the 48 hours to feed Chloe, DHHS requested an emergency removal, which was granted by the court. At the Protective Custody Hearing on February 21, 2012, Susan challenged the continued removal but did not present evidence. The Court continued out-of-home placement. Susan filed a motion after the hearing to return custody of Chloe to her. Due to scheduling issues and commonality of the issues, the court scheduled the motion to be heard at the same time as the adjudication hearing in May 2012. At adjudication, witnesses testified that the parents had prior child welfare cases that ended in relinquishments after the parents were unable to care for the children, which had included failure to feed them properly. Susan had been diagnosed with adjustment disorder and Joseph with mood disorder and mild mental retardation that may prevent him from adequate parenting his children. Testimony from medical providers established that Susan and Joseph made comments minimizing Chloe’s need for a strict feeding schedule and that they appeared to lack understanding or willingness to maintain the regiment. Susan had declined WIC services prior to birth, had a registered sex offender living with her that she exposed to Chloe and only had a half can of formula in the house on the night Chloe was removed. After the hearing, the court found a definite risk of harm and adjudicated Chloe within the meaning of 43-247(3)(a). Susan and Joseph both appealed. Because Susan appealed first, Joseph was designated as cross-appellee; however he failed to file a brief that was properly designated as such.
The Nebraska Court of Appeals affirmed the court’s order. It first addressed Susan’s claim that her motion for custody should have had a separate hearing by noting that Susan had the opportunity to challenge custody at the Protective Custody Hearing and finding that it was proper and judicious to hold it at the same time as the Adjudication Hearing. As to adjudication, the Court of Appeals in considering whether there was a definite risk of harm noted that “[t]o have a definite risk, the possibility of loss or injury must be free from ambiguity.” 21 Neb. App. 456, 467. In this case, it found that it was clear Susan’s and Joseph’ actions definitively created a risk of harm. The Court of Appeals agreed with the trial court that the evidence as to the parents’ failure to have adequate formula, to accept assistance, to take medical feeding instructions seriously and their prior history of inadequate parenting established a definite risk that Chloe would not receive the nutrition that was medically required and would therefore fail to thrive. The Court of Appeals also noted that the substantial support put in place to ensure Chloe was properly fed was not sufficient to ensure she would be fed. The Court of Appeals noted that Chloe did not have to actually fail to thrive before being found within the meaning of 43-247(3)(a). Rather, the definite risk of it was sufficient. Finally, the Court of Appeals noted that Joseph, because he was designated as cross-appellee for filing second, should have designated his brief as such and not as “Brief of Appellee.”