In re Interest of Prince R.

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In re Interest of Prince R.

Caselaw No.
308 Neb. 415
Filed on
Friday, February 12, 2021

Summary:

The separate juvenile court of Lancaster County adjudicated Prince R. as a child who lacked proper parental care by reason of the fault or habits of his parents, Mohamed K. and Abak R. The juvenile court concluded that the parents failed to ensure that Prince received necessary medical care after he was diagnosed with a rare form of cancer. Mohamed appealed and Abak cross-appealed this determination, Supreme Court affirmed the juvenile court’s decision.

The State filed a petition and an ex parte custody motion in October 2019. The juvenile court granted the ex parte custody motion.  A trial on the petition was held over the course of four days in January and February 2020.  Testimony was given by the following: 1. Dr. Melissa Acquazzino, a cancer doctor at Children’s Hospital, 2. Vildana Parmer, a caseworker at DHHS, 3. Deanna Borg, an employee of People’s City Mission, 4. Patrick Wingfield, an officer with the Lincoln Police Department, 5. Luis Herrera, an investigator with the Lincoln Police Department, and 6. Mohamed, the father.  The mother, Abak, did not testify. 

The doctor testified as to the seriousness of Prince’s cancer and the fact that she discussed the treatment Prince should immediately begin with the parents. She testified as to time delays in the treatment plan caused by the parents missing appointments.  Dr. Acquazzino described several of her discussions with the parents regarding both parents thinking Prince was being given too much medicine and asking it be reduced and that the parents stated they wanted to get a second opinion.  The doctor testified to the fact that she impressed upon the parents how serious it was that Prince continue to receive treatment and that she was concerned with the missed appointments.  The caseworker gave testimony regarding her attempted contact with the parents, who do not live together, and her struggle in finding Abak and Prince after Prince stopped attending his treatment.  The caseworker, Ms. Palmer,  did leave her card at the People’s City Mission for Abak.  Ms. Borg, from the Mission, testified that she did give Abak the case worker’s card and told her to call Ms. Parmer.  The police officer, Wingfield, also described his attempts to locate the parents.  He did find Mohamed and requested that Mohamed have Abak contact him.  According to Officer Wingfield Mohamed stated that Abak had taken Prince to Arizona to get a second opinion for his medical treatment. Wingfield also stated that Mohamed told him that this was none of his concern and that Prince was safe.  Mr. Herrera, the investigator, also testified as to his attempts to locate Abak and Mohamed.  He finally reached Mohamed by telephone and was told by Mohamed that Abak and Prince were in Arizona to get a second opinion for Prince’s medical treatment. Herrera testified that Mohamed told him, based on his research, Prince was being given too much medication and that Mohamed said, if he disagreed with the medication being given, “he would step in and correct the doctor.”  Many other attempts were made by  Mr. Herrera, the investigator, to locate Abak and Prince including ‘pinging’ her cell phone.  Abak was finally located in Tennessee.  Mr. Herrera testified that Mohamed complained about the treatment Prince was receiving through Children’s and stated that Children’s had a “clandestine agenda.”  When Mr. Herrera finally spoke with Abak via telephone she told him she wouldn’t discuss Prince’s medical treatment with him and that she was not in Nebraska and would not be coming back to Nebraska.  Abak told Herrera that “if I even get another doctor, it’s not going to be in Nebraska.”  Mr. Herrera worked with law enforcement and child welfare services in Tennessee to ensure Prince was taken to a hospital as soon as he was found. 

No evidence was presented that Prince received any treatment or was seen by any medical professionals between October 2 and 26, 2019. No evidence was presented that Mohamed or Abak had arranged for another medical professional to provide a second opinion.

Mohamed also provided testimony at the trial.  He testified as to Prince’s experience with the treatment regimen at Children’s, Mohamed’s wish to lower the medications so Prince wouldn’t have side effects, and that it was Abak’s decision to take Prince out of Nebraska.  Mohamed denied ever telling anyone that the treatment would kill Prince not the cancer. He also denied ever saying that he intentionally did not bring Prince to treatments because he believed Prince was receiving too much medicine through chemotherapy. He testified that he wanted Prince to receive all of the treatment recommended by Children’s.

After adducing all the evidence the trial court found that Prince lacked proper parental care by reason of the fault or habits of both Mohamed and Abak.  Both Mohamed and Abak appealed, assigning as errors the finding that Prince lacked proper parental care by reason of their fault or habits and that their actions placed Prince at a definite risk of harm.

Juvenile cases are reviewed de novo on the record, and an appellate court is required to reach a conclusion independent of the juvenile court’s findings.  In re Interest of A.A. et al., 307 Neb. 817, 951 N.W.2d 144 (2020).

First the Supreme Court reminds us that purpose of the adjudication phase is to protect the interests of the child. In re Interest of Justine J., 286 Neb. 250, 835 N.W.2d 674 (2013).  They go on to cite several cases that lay out the grounds by which the court can take jurisdiction of a child and the risk of harm component, namely that the State is not required to prove that the child has actually suffered physical harm, but just that without intervention there is a definite risk of future harm.  The Court highlights the twostep inquiry they laid out in the case of  In re Interest of Jeremy U. et al., 304 Neb. 734, 936 N.W.2d 733 (2020).  The first step:  determine if the juvenile is lacking proper parental care, whether such care is being provided by a parent, a guardian, or a custodian. If a juvenile is not lacking that type of care (and . . . there is no definite risk of harm), adjudication under this provision of § 43-247(3)(a) is improper. If, on the other hand, the juvenile is lacking such care, the court should proceed to the second step: Does that condition result from the fault or habits of the juvenile’s parent, guardian, or custodian? If the answer to that question is also yes, then the juvenile court should take jurisdiction of the juvenile and proceed to a proper disposition. 304 Neb. at 748, 936 N.W.2d at 744-45

In analyzing the trial court’s evidence the Supreme Court agreed with the juvenile court that it is more likely than not that Abak did not leave Nebraska with Prince to obtain a second opinion, but to stop his treatment altogether for an indefinite period of time. The Supremes also agreed with the juvenile court that the decision to indefinitely stop treatment, which Dr. Acquazzino testified was essential to Prince’s survival, deprived Prince of proper parental care by reason of the faults or habits of Abak.  In her appeal Abak argued that the State did not show that Prince was harmed by not receiving treatment.  The Supremes again remind us that the Nebraska Juvenile Code does not require a juvenile court to wait until disaster has befallen a minor child before the court may acquire jurisdiction. In re Interest of Justine J., 286 Neb. 250, 835 N.W.2d 674 (2013).  Dr. Acquazzino’s testimony of Prince’s condition, need for treatment and the consequences for stopped treatment established that, without intervention, there was a definite risk of future harm to Prince. Therefore, under the two-step analysis set forth in In re Interest of Jeremy U. et al., 304 Neb. 734, 936 N.W.2d 733 (2020), the State established that Prince lacked proper parental care and faced a definite risk of future harm and that this resulted from the fault or habits of Abak.  Mohamed makes many of the same arguments made by Abak.  And what was true above is also true in Mohamed’s case: the State’s evidence proved lack of proper parental care and risk of harm due to Mohamed.  Mohamed does try to throw the blame onto Abak for any lack of parental care.  However, the Supremes agree with the trial court’s opinion that it was more likely than not that Mohamed supported and bears responsibility for the decision to remove Prince from treatment indefinitely regardless of whether a second opinion was sought. The juvenile court had the opportunity to observe Mohamed’s testimony firsthand, and given the evidence in the record, deference to the trial court’s assessment of the credibility of Mohamed’s claims is warranted.  Interest of Leyton C. & Landyn C., 307 Neb. 529, 949 N.W.2d 773 (2020). 

In light of the analysis above and using the twopart test from In re Interest of Jeremy U., the Supreme Court agreed with the trial court’s finding that Prince was a child that lacked proper parental care by reason of the fault or habits of both Mohamed and Abak.