In re Interest of Austin B.

In an adjudication proceeding, Austin B. was found to be a child under Neb. Rev. Stat. § 43-247(3)(b) (Cum. Supp. 2002), as a result of incidents that occurred at his elementary school. Kim P., Austin's mother, asserts that the county court for Holt County erred when it failed to place Austin in her custody and instead placed him in the custody of the Nebraska Department of Health and Human Services (DHHS). For the reasons set forth herein, we affirm.

STATEMENT OF FACTS
Kim left Nebraska temporarily to pursue employment, leaving Austin with his grandmother. During the time Austin was living with his grandmother, his behavior at school became uncontrollable. At the time, Austin was 10 years old and in the fifth grade.

On October 29, 2002, Austin threatened to cut off another student's head, said he was going to bring a bomb to school and blow up the entire building, threatened to burn down his grandmother's house, and said he was going to kill himself. The principal of his elementary school, unable to control Austin, contacted the police. The O'Neill Police Department placed Austin in emergency protective custody, and he was taken to Richard Young Hospital, where he stayed until November 1. Because Kim was homeless at the time of his release from the hospital, Austin was again placed with his grandmother. While Austin was in the hospital, a juvenile petition was filed in the county court for Holt County, alleging that Austin was a child under § 43-247(3)(b) in that he was a juvenile who "is uncontrolled by his or her parent, guardian, or custodian [or] who deports himself or herself so as to injure or endanger seriously the morals or health of himself, herself, or others."

Subsequent to Austin's release from the hospital and his return to his grandmother's house, Kim was able to find housing. She moved into a trailer home with her live-in boyfriend and her 12-year-old daughter. Austin continued to have behavioral problems at school. He was disruptive in class, threatened other students, refused to leave the classroom when asked, and threatened to harm himself. Austin's doctor changed Austin's medication on November 11, 2002, but Austin's behaviors did not change. Austin was again admitted to Richard Young Hospital on December 5, where he stayed until December 13. While in the hospital, Austin was diagnosed with bipolar disorder and oppositional defiant disorder, and the doctors became concerned with possible hallucinations Austin was having. When he was released from the hospital, Austin returned to the home of his grandmother.

On December 3, 2002, a hearing was held on the juvenile petition alleging that Austin was a child under § 43-247(3)(b). At the hearing, Austin admitted that on October 29, he was found by the police in a fetal position on the floor, that he was upset at the time, that he had gotten in an argument with another child and threatened to cut off the child's head, that he had told the principal he was going to blow up the school with a bomb, that he threatened to burn down his grandmother's house, and that he said he was going to shoot himself. The court found that there was a factual basis for the allegations in the petition and adjudged Austin to be a child under § 43-247(3)(b). The court then set the matter for disposition on January 14, 2003, and further found that returning Austin to Kim at that time "would be contrary to the welfare of [Austin]." Therefore, Austin's custody was continued with DHHS.

The dispositional hearing was held on January 14, 2003. At the hearing, Sally Davis appeared on behalf of DHHS; Davis was responsible for the case plan and court report. Davis testified that she had experienced difficulty in performing a home study of Kim's home because Kim's boyfriend, living with Kim at the time, would not sign a release allowing Davis to acquire background information about him. Davis further testified that the first time she had visited Kim's trailer home, it appeared nice and large enough for the family, but that on her second visit, additional people had moved in, resulting in eight people living in the trailer home. Davis recommended that Austin continue living with his grandmother for the near future, with Austin's legal custody remaining with DHHS. Davis' reasons for this recommendation included Austin's improved behavior, his need for a stable environment at that time, and the fact that Kim's boyfriend was unwilling to allow DHHS to complete the home study. Davis further testified that the State did want to place Austin in Kim's care again in the future, but that the State could not place Austin back in Kim's care until DHHS was able to complete the home study.

Kim also testified at the dispositional hearing. She testified that the other people would be moving out of her trailer home soon and that there would be room for Austin. She further testified that she was asking the court to send Austin home with her and that she had taken measures to try to manage Austin's behaviors. She testified that Austin had experienced behavioral problems for 4 years and that she had taken him to doctors in the past. She said that Austin was currently seeing a counselor and that she was also seeing a counselor. She also indicated that there was a discrepancy in the visitation plan, which was supposed to allow for visitation until 9 p.m. on Saturday and Sunday, but which listed 7 p.m. as the cutoff time; Davis later confirmed that 9 p.m. should have been listed as the correct time.

During closing arguments, the State noted that reunification was the ultimate goal, with a target date of summer 2003, but that reunification was impossible at the time due to the lack of a suitable living arrangement and the refusal of Kim's boyfriend to consent to a background check. Kim's attorney again requested immediate reunification. Austin's guardian ad litem stated that he agreed with the case plan and that living in a home with eight other people would not be in Austin's best interests. The guardian ad litem believed that reunification was ultimately in Austin's best interests.

After all the evidence and arguments were heard, the court found that "removal from the home was necessary because continuation therein would have been contrary to the welfare of [Austin] and [that] placement continues to be necessary due to a home study['s] not being completed on [Kim]'s home." The court further found that custody of Austin should remain with DHHS and that reasonable efforts had been made to preserve and reunify the family prior to Austin's out-of-home placement. The court adopted Davis' plan for reunification, which had a target date of July 14, 2003. The court set a review hearing for July 15 and notified Kim that for reunification, she needed to satisfy the conditions of the case plan, including the home study. Kim has timely appealed to this court.

ASSIGNMENTS OF ERROR
Kim asserts that the county court erred when it found that placing Austin's custody with DHHS was in Austin's best interests. She also alleges that it was error for the court to approve the case plan and court report of DHHS.

STANDARD OF REVIEW
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 Ty M. & Devon M., 265 Neb. 150, 655 N.W.2d 672 (2003); In re Interest of Phyllisa B., 265 Neb. 53, 654 N.W.2d 738 (2002). When the evidence is in conflict, however, an appellate court may give weight to the fact that the lower court observed the witnesses and accepted one version of the facts over the other. Id.

ANALYSIS
Austin's "Best Interests."

Kim alleges that it was not in Austin's best interests for the county court to continue Austin's custody with DHHS and the out-of-home placement of Austin in his grandmother's house. The Nebraska Supreme Court has said that the "'first and primary consideration in any case involving the custody of a child is the best interest of the child.'" In re Interest of Teela H., 4 Neb. App. 608, 618, 547 N.W.2d 512, 519 (1996).

The county court adjudged Austin to be a child under § 43-247, which provides:

The juvenile court in each county as herein provided shall have jurisdiction of

. . . .

(3) Any juvenile . . . (b) who, by reason of being wayward or habitually disobedient, is uncontrolled by his or her parent, guardian, or custodian [or] who deports himself or herself so as to injure or endanger seriously the morals or health of himself, herself, or others . . . .

At the dispositional hearing, the court ruled that DHHS would continue to have custody of Austin and that DHHS should provide "suitable placement"; DHHS continued to place Austin with his grandmother. The court held that Austin could not be placed with his mother due to the fact that a home study was not completed for Kim's home.

Kim alleges that Austin should not have been placed with his grandmother, because Austin was staying with his grandmother at the time of the incidents of behavioral problems in question. She also argues that she "was aware of and had been working on getting proper attention and treatment for Austin, but she was not contacted by the school or any authorities before Austin's removal." Brief for appellant at 4.

Kim also quotes In re Interest of D., 209 Neb. 529, 531, 308 N.W.2d 729, 730 (1981), claiming that "'courts may not properly deprive a parent of the custody of a minor child unless it is affirmatively shown that such parent is unfit to perform the duties imposed by the relationship or has forfeited that right.'" Neb. Rev. Stat. § 43-284 (Cum. Supp. 2002) provides:

When any juvenile is adjudged to be under subdivision (3), (4), or (9) of section 43-247, the court may permit such juvenile to remain in his or her own home subject to supervision or may make an order committing the juvenile to . . . (6) the care and custody of [DHHS].

Thus, the plain language of the statute appears to allow the county court to place Austin with DHHS. However, we recently noted that "the discretion found in § 43-284 is not without limitation." In re Interest of Stephanie H. et al., 10 Neb. App. 908, 924, 639 N.W.2d 668, 681 (2002).

In In re Interest of Stephanie H. et al., we noted that "'[r]easonable efforts shall be made to preserve and reunify families prior to the placement of a juvenile in foster care.'" 10 Neb. App. at 925, 639 N.W.2d at 682 (quoting Neb. Rev. Stat. § 43-283.01 (Reissue 1998)). We further noted that § 43-283.01 "reaffirms the Legislature's view that children should not be put in foster care unless it is necessary to separate child and parent for the welfare of the child." 10 Neb. App. at 925, 639 N.W.2d at 682. Therefore, it was the duty of the county court to not separate Austin and Kim unless it was necessary for Austin's welfare.

The county court found that it was not in Austin's best interests or welfare to place him back in Kim's home at the time of Austin's disposition. The court specifically held that "removal from the home was necessary because continuation therein would have been contrary to the welfare of [Austin] and [that] placement continues to be necessary due to a home study['s] not being completed on [Kim]'s home." The court also showed concern with Kim's living situation and strongly encouraged Kim either to get her boyfriend to consent to a background check or to no longer live with him.

Further, the court appropriately stressed the importance of family reunification as required by § 43-283.01. The court adopted the "permanency plan of reunification" submitted by DHHS and found that "[r]easonable efforts had been made to preserve and reunify the family prior to placement in out of home placement . . . ." The permanency plan for reunification indicated DHHS' desire to place Austin back in Kim's home on or before July 14, 2003. The court indicated to Kim that the only thing that stood in the way of reunification was completion of the home study, and that she could aid its completion, either by getting her boyfriend to consent to a background check or by finding another place to live. Based on our de novo review of the record, we find that the county court did not err when it determined it was in Austin's best interests for him to remain in the custody of DHHS and that the court made reasonable efforts to reunify Kim with Austin prior to continuing to place Austin's custody with DHHS.

Approval of Case Plan and Court Report.

Kim's second assignment of error alleges that the court erred by approving the case plan and court report of DHHS, because the rehabilitation plan is conditional on the completion of a background check on Kim's boyfriend. It is well settled in Nebraska that "[w]ith respect to the reunification plan . . . a juvenile court has broad discretion to formulate a postadjudication rehabilitation plan with a goal of reuniting the child with the parent." In re Interest of Clifford M. et al., 261 Neb. 862, 876, 626 N.W.2d 549, 561 (2001). Additionally, "[i]n order for a court to disapprove of a DHHS plan recommending a course of action with respect to a child in its custody, a party must prove by a preponderance of the evidence that the plan is not in the child's best interests." In re Interest of Dylan W., 8 Neb. App. 1039, 1044, 606 N.W.2d 847, 853 (2000).

Kim alleges that her boyfriend "has a concern about how [his] records will be used, specifically whether they will be used against him." Brief for appellant at 4. Kim alleges that the condition of the background check will "prevent reunification of a child with his natural parent." Id. The rehabilitation plan certainly does not prevent reunification with Kim; in fact, the plan is strongly in favor of reunifying Austin and Kim, with an expected reunification date on or before July 14, 2003. If the plan does in fact prevent reunification, Kim can blame no one but herself. The court specifically notified Kim: "[Y]ou need to consider whether your choice is I'm going to do what it takes to get my child back or I'm going to try to be friendly with [my boyfriend]." Later, the court told Kim that if her boyfriend "doesn't want to cooperate, he shouldn't be in the house." The court has a great deal of discretion when formulating a rehabilitation plan with an eye toward reuniting the family. Based on a de novo review of the record, the court was within its discretion when it accepted the court report and rehabilitation plan prepared by DHHS, and Kim did not prove by a preponderance of the evidence that the plan was not in Austin's best interests.

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Click the case caption above for the full text
of the Court's opinion.

Based on our de novo review of the record, we find that the court did not err when it continued Austin's custody with DHHS instead of returning Austin's custody to Kim, and we also find that the court did not abuse its discretion in accepting the court report and rehabilitation plan prepared by DHHS. Therefore, the decision of the county court is affirmed in favor of Defendent.

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Reported by L. Hargraves