In re Interest of Darius A. ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/19/2016 09:06 AM CDT
- 178 -
Nebraska Court of A ppeals A dvance Sheets
24 Nebraska A ppellate R eports
IN RE INTEREST OF DARIUS A.
Cite as 24 Neb. App. 178In re I nterest of Darius A., a child
under 18 years of age.
State of Nebraska, appellee and cross-appellee,
v. Stephanie H., appellant, and Gregory A.,
appellee and cross-appellant.
___ N.W.2d ___
Filed July 19, 2016. No. A-15-773.
1. Juvenile Courts: Evidence: Appeal and Error. 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.
However, when the evidence is in conflict, an appellate court may con-
sider and give weight to the fact that the trial court observed the wit-
nesses and accepted one version of the facts over the other.
2. Juvenile Courts: Jurisdiction. The purpose of an adjudication phase of
a neglect petition is to protect the interests of the child.
3. Juvenile Courts: Jurisdiction: Proof. At the adjudication stage, in
order for a juvenile court to assume jurisdiction of a minor child under
Neb. Rev. Stat. § 43-247(3)(a) (Cum. Supp. 2014), the State must prove
the allegations of the petition by a preponderance of the evidence, and
the court’s only concern is whether the conditions in which the juvenile
presently finds himself or herself fit within the asserted subsection of
§ 43-247.
Appeal from the Separate Juvenile Court of Lancaster
County: R eggie L. Ryder, Judge. Affirmed.
Lisa M. Gonzalez, of Gonzalez Law Office, L.L.C., for
appellant.
Joe Kelly, Lancaster County Attorney, and Ashley J. Bohnet
for appellee State of Nebraska.
- 179 -
Nebraska Court of A ppeals A dvance Sheets
24 Nebraska A ppellate R eports
IN RE INTEREST OF DARIUS A.
Cite as 24 Neb. App. 178Susan L. Kirchmann, of Wertz & Associates, for appellee
Gregory A.
Pirtle and Bishop, Judges.
Pirtle, Judge.
I. INTRODUCTION
Stephanie H. appeals and Gregory A. cross-appeals from
the order of the separate juvenile court of Lancaster County
adjudicating the minor child, Darius A., as a child within the
meaning of Neb. Rev. Stat. § 43-247(3)(a) (Cum. Supp. 2014).
For the reasons that follow, we affirm.
II. BACKGROUND
Stephanie and Gregory are the parents of Darius. They were
married from December 2004 until February 2015. Darius
was born in November 2001 and has significant neurological
problems that stem from prematurity. Darius was born with
periventricular leukomalacia, central apnea, severe seizure dis-
order, and cerebral palsy. He is intellectually challenged, has
some behavioral problems, and has been diagnosed as a child
on the autism spectrum.
Multiple reports were made to the abuse hotline regarding
Darius, but they were screened out by the Nebraska Department
of Health and Human Services (DHHS) and not accepted.
There were also numerous reports made in the past related to
Darius’ medical condition, all of which were determined to be
unfounded. A case was accepted by DHHS regarding Darius
due to concerns raised by Dawes Middle School (Dawes) in
Lincoln, Nebraska, and Dr. George Wolcott, Darius’ pediatric
neurologist. The concerns were that Stephanie was not able to
meet Darius’ medical, mental, educational, or physical health
needs. The case was assigned as a “dependent child intake”
case, rather than a case with allegations of abuse or neglect at
the fault of the parent.
On February 28, 2015, the State filed a petition alleging
that Darius was within the meaning of § 43-247(3)(a) due
- 180 -
Nebraska Court of A ppeals A dvance Sheets
24 Nebraska A ppellate R eports
IN RE INTEREST OF DARIUS A.
Cite as 24 Neb. App. 178to the fault or habits of Stephanie and Gregory. The peti-
tion alleged that Stephanie and Gregory failed to provide for
Darius’ educational needs, as Darius had missed numerous
days of school during the 2014-15 school year. The absences
were marked “parent acknowledged, medically documented
or illness,” and only the medically documented absences were
marked excused. The petition also alleged that Stephanie failed
to administer Darius’ medication as prescribed and/or recom-
mended by Darius’ treating neurologist and that she failed to
follow up with medical appointments or treatment as recom-
mended by Darius’ treating physician.
A formal adjudication hearing was held on May 19, June 15,
and July 16 and 20, 2015. Toward the end of the formal hear-
ing, the State was given leave to amend the petition to conform
to the facts presented at the hearing.
On July 23, 2015, the separate juvenile court of Lancaster
County issued an order adjudicating Darius as a child within
the meaning of § 43-247(3)(a). The court found that Darius
lacked proper parental care by reason of the fault or habits of
his parents. The court found Stephanie and Gregory neglected
or refused to provide the necessary education or other care
necessary for the health, morals, or well-being of Darius in that
Darius missed almost 60 days of school in the 2014-15 school
year. The court also found Stephanie failed to administer his
medication as prescribed or recommended by Darius’ treating
neurologist and failed to follow up with medical appointments
or treatments as recommended.
1. Medical History
Wolcott testified that several of Darius’ medical condi-
tions fall under the “umbrella [of] Lennox Gastaut” syndrome.
Darius’ medical conditions affect his intellect, behavior, and
ability to complete physical tasks. Stephanie testified that
Wolcott was Darius’ neurologist from 2000 to 2005 and that
he then retired. Wolcott began practicing again and resumed
treating Darius. Karee Shonerd is a registered nurse and the
- 181 -
Nebraska Court of A ppeals A dvance Sheets
24 Nebraska A ppellate R eports
IN RE INTEREST OF DARIUS A.
Cite as 24 Neb. App. 178coordinator of specialty clinics at a Lincoln hospital. When
Wolcott is not in the office, Shonerd calls him with urgent con-
cerns from parents or takes messages on his behalf.
Darius has been prescribed a number of medications con-
sistently including Klonopin and Banzel. Darius started on
Lamictal in 2005. By 2014, Wolcott became concerned with
the use of Lamictal due to toxicity and prescribed a medica-
tion called Onfi instead. Wolcott prescribed a decrease in
the Lamictal dose and prescribed an initial dose of 10 mil-
ligrams of Onfi twice per day, to be increased to 20 mil-
ligrams twice per day after 1 week. Onfi was to be given in
the morning and the evening, when Darius was at home, and
his parents were responsible for the proper administration of
the medication.
On July 7, 2014, Stephanie called Wolcott’s office to discuss
Darius’ medication, as he started taking Onfi. Stephanie was
given specific instructions for the dosage of Onfi. On July 21,
Gregory reported to Wolcott’s office that Stephanie misread the
dosage instructions for Onfi and administered the drug at 10
milligrams twice per day for 2 weeks instead of 1 week.
On July 31, 2014, Stephanie called Wolcott’s office with
concerns about discontinuing Lamictal. Shonerd discussed the
correct dosages with Stephanie; the prescribed dosage of Onfi
at that time was to be 10 milligrams in the morning and 20
milligrams at bedtime. Stephanie reported to Shonerd that she
was administering 15 milligrams, instead of 10 milligrams, of
Onfi in the morning and 20 milligrams, as directed, at bedtime.
Shonerd’s notes indicate that Stephanie said she increased the
dose of Onfi in the morning because she felt Darius needed
an extra 5 milligrams of Onfi to compensate for the decrease
in Lamictal.
Stephanie became concerned with Darius’ behavior while
taking Onfi, as she observed that he would not speak, eat, walk,
or feed himself and that he would merely stare at the wall. She
communicated her concerns with Wolcott 1 week after Darius
started taking Onfi, and Darius was brought in for a followup
- 182 -
Nebraska Court of A ppeals A dvance Sheets
24 Nebraska A ppellate R eports
IN RE INTEREST OF DARIUS A.
Cite as 24 Neb. App. 178appointment on August 12, 2014. Stephanie indicated in a call
to Wolcott’s office on September 5 that she wanted to take
Darius off of his medications because of the effect they were
having on him.
Darius was admitted to the emergency room on September
8, 2014, and it was reported that he had a series of fairly sig-
nificant seizures accompanied by significant respiratory issues.
At that time, Wolcott became aware that Darius’ medica-
tion was not being given as prescribed. Wolcott learned that
Stephanie had initiated a “drastic taper” from the Onfi medi-
cation prior to Darius’ hospitalization; she reported that she
had been administering 5 milligrams of Onfi twice per day
instead of the prescribed 20 milligrams twice per day. Wolcott
determined there was a correlation between the seizures and
the decreased dosages of Onfi, and testified that he believed
the seizures were withdrawal seizures. He testified that with
almost every patient, decreasing medications like Onfi too
quickly can cause significant withdrawal symptoms including
agitation, seizures, and death.
Wolcott developed a plan to wean Darius off of Onfi grad­
ually over the course of 54 days. Starting on September 9,
2014, Stephanie was to administer 15 milligrams of Onfi for 3
days, then drop to 5 milligrams twice a day for 2 weeks, and
then drop down to 5 milligrams for 30 days. This plan was
provided to Stephanie when Darius was discharged, and she
signed the form acknowledging her receipt.
Stephanie testified that she understood the plan was to
decrease the dosage of Onfi slowly and that she “did the best
[she] could with the knowledge [Wolcott] gave [her].” She was
aware that decreasing Onfi drastically could cause a seizure
that Darius may not recover from, and he had several seizures
while he was being weaned off of Onfi.
Stephanie called Wolcott’s office on September 23, 2014, to
report that she decreased the Onfi dosage to 2.5 milligrams for
5 days and planned Darius’ last dose of Onfi to be given on
September 26. Shonerd’s call logs indicate that she relayed this
- 183 -
Nebraska Court of A ppeals A dvance Sheets
24 Nebraska A ppellate R eports
IN RE INTEREST OF DARIUS A.
Cite as 24 Neb. App. 178information to Wolcott. Wolcott told Shonerd that Stephanie’s
dosage schedule meant Darius would be weaned from Onfi a
month earlier than planned and that this was not as directed.
Wolcott told Shonerd that he wanted to see Darius in October
if he was coming off of Onfi so rapidly. The office notes indi-
cate Darius’ next appointment was moved from November to
October. Wolcott testified that he had hoped that Darius would
be weaned off of Onfi slowly, but because Darius was already
on a lowered dose of Onfi, going back to the planned dosage
schedule at that point would “re-exasperate the symptoms” that
he had been concerned about.
A post on Stephanie’s “Facebook” page, dated September
21, 2014, stated “TODAY: Starts The (1st) Day Without That
*POISON*~~~“ONFI”! [reproduced as it appears],” which
indicated she may have stopped administering Onfi prior to
consulting Wolcott.
Wolcott testified that if changes to Darius’ medication are
made over the telephone, he immediately calls Shonerd to doc-
ument the changes. He said that he trusts Stephanie to know
what medication Darius is on and that she reports the medica-
tion Darius is taking at each appointment.
Shonerd testified that Stephanie is knowledgeable about
Darius’ diagnoses and symptoms and that the type of medica-
tion prescribed for Darius and the prescribed dosages changed
frequently. However, Shonerd also testified that Stephanie had
a history of not following Wolcott’s recommendations regard-
ing Darius’ medication. She stated that Stephanie had a tend­
ency to alter the medication dosage if she felt it was causing
Darius problems and that these changes were made without
the knowledge or consent of the treating doctor. Nevertheless,
Shonerd said that she did not feel the need to contact Child
Protective Services on Darius’ behalf because she did not
believe his life was in danger.
Stephanie told Shonerd on several occasions that she was
administering Darius’ prescriptions in amounts which were
different than prescribed. On October 3, 2014, Stephanie
- 184 -
Nebraska Court of A ppeals A dvance Sheets
24 Nebraska A ppellate R eports
IN RE INTEREST OF DARIUS A.
Cite as 24 Neb. App. 178increased Darius’ dosage of Klonopin without consulting
Wolcott, and on October 31, she decreased the dosage of
Dilantin. On November 21, Stephanie called to request that
Darius’ medication bottles be changed to reflect the way
she was giving it. Shonerd’s notes on November 25 indicate
Shonerd told Stephanie that she should not increase Darius’
medication on her own and that “Dr. Wolcott needs to be the
one to make adjustment[s].” The clinic notes on May 26, 2015,
indicate Darius’ Dilantin prescription was not administered
as directed.
Stephanie testified that she stopped attending Darius’
appointments so she could rest while Darius was with Gregory,
but that she had attended the most recent two appointments. She
said Darius has followup appointments when Wolcott requests,
or when the medication is not “going right.” Wolcott’s office
notes indicate Stephanie told Shonerd that she did not attend
the appointment on October 14, 2014, because she disagreed
with Wolcott’s treatment of Darius.
At the time of the adjudication hearing, Darius was pre-
scribed Dilantin, Banzel, and Klonopin. Stephanie said that this
medication regimen had been in place since October 2014 and
that Darius continued to have seizures every 7 to 14 days.
Michelle Nunemaker, a child and family services specialist
with DHHS, testified that she implemented drop-in visits in
March 2015 due to concerns raised by Wolcott that Stephanie
was administering Darius’ medication incorrectly. Nunemaker
reviewed the reports from drop-in workers and testified that
she had no concerns with the administration of medication.
A family support worker testified that he provided drop-in
services for Darius’ family. He testified that he checked the
prescription provided by the doctor, verified that the prescrip-
tion matched the medication bottle, verified that the correct
medication was given, and watched as it was administered.
At the time he provided services, Darius was taking three
medications and the family support worker did not have any
concern regarding the correct administration of medication.
- 185 -
Nebraska Court of A ppeals A dvance Sheets
24 Nebraska A ppellate R eports
IN RE INTEREST OF DARIUS A.
Cite as 24 Neb. App. 178He testified that he never witnessed the wrong medication or
dosage being given to Darius. The family support worker wit-
nessed one seizure during a visit and testified that the parents
reacted appropriately.
Another family support worker also provided drop-in serv­
ices. She testified that she did not observe either parent make
medication changes, unless verified by Darius’ doctor, and that
the administration of medication was consistent.
Darius had a primary care physician until approximately
6 weeks prior to the adjudication hearing. During his last
office visit, Darius hugged a woman without her permission.
Stephanie said she received a letter shortly after the appoint-
ment stating that the primary care physician’s office could no
longer treat Darius. Stephanie testified that she called four
physician groups, but she was unable to find one who would
accept Darius as a patient. She stated that if Darius were to
become ill, she would try to get him into Wolcott’s office or
take him to “Urgent Care.” Wolcott testified that he is not
capable of being Darius’ primary care physician.
2. Education
Darius was enrolled for the 2014-15 academic year at
Dawes. Before the school year began, Stephanie gave a pre-
sentation to approximately 70 school staff members includ-
ing paraeducators, the principal, and the vice principal. The
presentation included instructions for Darius’ wheelchair and
how to pick Darius up from the floor after a seizure. A week
prior to the start of the school year, Nancy Salsman, a special
education coordinator at Dawes, met with Stephanie to discuss
Darius’ medication and preseizure activity. They also discussed
the individualized education plan (IEP) and individualized
health plan (IHP) in place for Darius from the school Darius
attended during the previous academic year.
The school nurse at Dawes testified that she has spoken to
Stephanie on several occasions regarding Darius’ reaction to
certain medication, the appropriate dosages of each medication,
- 186 -
Nebraska Court of A ppeals A dvance Sheets
24 Nebraska A ppellate R eports
IN RE INTEREST OF DARIUS A.
Cite as 24 Neb. App. 178and his overall well-being. The school nurse is present in the
school 2 days per week. When she is not present, there is no
other registered nurse present, but there is a health techni-
cian who is tasked with providing first aid and administering
medication. The school nurse testified that Stephanie expressed
concern that there is no nurse present at school for 3 of the 5
school days. The school nurse said the concern was passed on
to her supervisor at the district office.
Nunemaker testified that Stephanie expressed concern that
school staff were not trained or capable of caring for Darius’
medical needs. Stephanie reported to her that she was con-
cerned that Darius was not properly monitored after having a
seizure at school.
During the 2014-15 school year, Darius had 11 seizures at
school. When this occurs, the school contacts Darius’ parents
to determine whether Darius should stay at school or go home.
Dickinson testified that if Darius goes home after a seizure,
his absence is marked “M.D. or excused,” which indicates
a medically documented absence. On a few other occasions,
Darius was sent home because his ambulation was unsteady,
causing a safety risk. These absences were also marked as
medically documented absences.
Salsman testified that a collaborative plan meeting is held
once a student is absent from school for 10 days. The goal
is to discuss the student’s needs and how those needs are
impacting attendance, so a plan can be made to improve
attendance. A collaborative plan meeting was held for Darius
on September 24, 2014, because he had missed 10 days of
school. Stephanie indicated that Darius was taking a medica-
tion called Onfi and that it was contributing to his instability
in school. Salsman stated that the school was aware of Darius’
health issues and that there was an understanding that he may
miss school. Salsman observed that at the beginning of the
school year, Darius was very unstable. She said Darius’ gait
was labored, he was nonverbal, and he was not able to do
tasks independently.
- 187 -
Nebraska Court of A ppeals A dvance Sheets
24 Nebraska A ppellate R eports
IN RE INTEREST OF DARIUS A.
Cite as 24 Neb. App. 178Darius was absent from school for almost all of the
month of October 2014. Stephanie testified that issues which
occurred at school on October 1 and 2 “set the course for
30 days of him missing school.” She felt Darius was being
isolated at school, which went against the conditions of the
IEP. The “Facebook” account in Stephanie’s name indicated
she removed Darius from school because he was put into
“Room #140” (Room 140). Darius’ activity log for the day
indicated he “went to Room 140 to sit in a safe seat” at vari-
ous times throughout the school day on October 1, because he
was extremely talkative and disruptive. Stephanie stated that
his behavior could have been preseizure activity and that she
was concerned that he was with a paraeducator and not with a
teacher. She said paraeducators would not be trained to handle
a seizure should one occur. Stephanie testified that she had
never seen or requested to see Room 140 and that she was
told the room is used for disruptive behavior.
Gregory testified that the decision to keep Darius out of
school was a joint decision between him and Stephanie. He
testified that he had not ever seen the inside of Room 140.
He said, “Just the description of what they were doing to him
was enough. Also because of his medical condition of the
Onfi, he was not capable of going to school.” Gregory testi-
fied that socialization provided in school is important and that
Darius is able to learn certain skills. He also testified that it
was his opinion that missing 60 days of school is not harmful
to Darius.
Nunemaker testified that she was not concerned by Darius’
extended absence from school, because of his medical condi-
tion. In addition, she noted that Onfi caused him to lose the
ability to function in the way that he needed to before he could
go back to school.
Salsman testified that Room 140 is a resource room. She
testified that when Darius is in a room with students who
function at the same level as him, he can be placed in a “safe
seat” and he can practice behaviors. She said that a safe seat is
- 188 -
Nebraska Court of A ppeals A dvance Sheets
24 Nebraska A ppellate R eports
IN RE INTEREST OF DARIUS A.
Cite as 24 Neb. App. 178a seat away from the rest of the class and is used to “redirect
. . . behaviors and get focused on the task at hand.” Students
in a safe seat are not left alone or physically restrained. In
larger classrooms, Darius worked with a paraeducator, and
when his behavior became disruptive, the safe seat did not
help because his volume would increase and his behavior
would disrupt everyone. Salsman said in that situation “we
felt like it would be best to move towards the resource room
and work on independent tasks there versus being in the large
classroom setting.”
A paraeducator who worked at Dawes testified that Room
140 can be used as a regular classroom. The room is a “Life
Skills” classroom, and Darius reported there each morning
and also had a few classes that were scheduled to meet in that
room. She said if Darius struggled in a different classroom, he
could be taken to Room 140 to calm down. She said the para-
educator would return with him to his regular classroom, if he
was able.
Mary Ells, the assistant director of special education for
Lincoln Public Schools, testified that she was made aware of
Stephanie’s concern that Room 140 was an “isolation place-
ment” for Darius. She said that Room 140 is a classroom that is
not used for seclusion, isolation, or punishment. She stated that
if a child is taken to Room 140 to sit in a safe seat, the child is
not left without a teacher or paraeducator present.
Ells and Salsman met with Stephanie in her home in late
October or early November 2014 to discuss the learning proc­
esses used in the school and the behavior interventions used.
They discussed how to work with the family to get Darius
back to school. They addressed Stephanie’s concerns that
Darius was being placed in Room 140 as an isolation place-
ment by telling her that is not what had happened and that
is not what the room is used for. At the meeting, a checklist
was made to clear up confusion related to the “communi-
cation book” that had been used to track Darius’ activity
at school. The checklist was to track seizure activity and
- 189 -
Nebraska Court of A ppeals A dvance Sheets
24 Nebraska A ppellate R eports
IN RE INTEREST OF DARIUS A.
Cite as 24 Neb. App. 178provide documentation for the school and the parents about
Darius’ health.
Ells said they also discussed Stephanie’s vehicle at the meet-
ing and how to respond to Darius’ needs when transportation
was or was not available. Salsman testified that Stephanie’s car
was not working at the time and that Stephanie did not want
to send Darius to school without a car at her house. Stephanie
was concerned that if Darius had a seizure at school, she would
not be able to transport him home from school or home from
the hospital, if necessary. Salsman stated that she worked with
Stephanie’s social worker to ensure that Darius’ Medicaid
would allow him to be transported from the hospital to the
home. Stephanie was not comfortable with this arrangement,
and she did not want him to return to school if she could not
provide transportation.
Stephanie testified that Darius was transported to school by
bus in the 2014-15 school year. She stated that she took him
to doctor appointments and to school on several occasions,
but also stated that she had not driven since 2001 and did not
have a current driver’s license. She did not have a vehicle at
the time of the hearing. She said Gregory provided transporta-
tion for Darius on the occasions that he did not travel to school
by bus. The school informed each busdriver regarding Darius’
medical condition and what his needs were, should a seizure
take place.
Salsman stated that it was her understanding that Darius was
no longer taking Onfi when he returned to school in November
2014. She stated that he was still somewhat unstable in his
gait and that he needed assistance with tasks, but he gradually
improved and became more independent and stable. She said
Darius improved through spring break and was able to perform
simple tasks independently. After spring break, Darius had an
increase in seizure activity, needed more assistance, and was
not as communicative.
A Life Skills teacher in special education who taught at
Dawes during the 2014-15 school year testified that Room
- 190 -
Nebraska Court of A ppeals A dvance Sheets
24 Nebraska A ppellate R eports
IN RE INTEREST OF DARIUS A.
Cite as 24 Neb. App. 178140 is a “work station area.” This classroom has five work
stations and a table set up for small group instruction. The
Life Skills teacher testified that Darius did not make progress
on the goals set forth in his IEP during the first part of the
academic year. His goals were revised and made easier, and
she stated that Darius made progress after his IEP meeting in
October. Darius’ IEP was reassessed in January 2015 when he
was attending school more consistently, and his goals were
made more difficult. She stated that Darius made progress at
school when he attended school regularly, because the rep-
etition of skills helped him to maintain and retain what he
had learned.
Salsman testified that consistent attendance at school is
important for students, particularly those with Darius’ needs
because missing school means he misses opportunities to make
academic progress and to work on his social skills. She testi-
fied that when Darius attended school consistently during
the second semester, he made “really great gains,” including
being social with his peers, being independent in his tasks,
and reading out loud. She said she did not see the same level
of progress during the first semester of 2014, because he was
absent so often. Salsman said Darius’ absences at the begin-
ning of the 2014-15 school year did not correspond with the
seizure patterns that were medically reported. After winter
break, his absences more closely corresponded to the seizures
that were reported.
III. ASSIGNMENTS OF ERROR
Stephanie asserts the juvenile court erred in adjudicat-
ing Darius as a child within the meaning of § 43-247(3)(a),
finding by a preponderance of the evidence that she neglected
or refused to provide the necessary health and educa-
tional care.
On cross-appeal, Gregory asserts he did not neglect his
child’s educational needs by consenting to Stephanie’s decision
to keep Darius out of school for medical reasons.
- 191 -
Nebraska Court of A ppeals A dvance Sheets
24 Nebraska A ppellate R eports
IN RE INTEREST OF DARIUS A.
Cite as 24 Neb. App. 178IV. STANDARD OF REVIEW
[1] Juvenile cases are reviewed de novo on the record,
and an appellate court is required to reach a conclusion inde-
pendent of the juvenile court’s findings. However, when the
evidence is in conflict, an appellate court may consider and
give weight to the fact that the trial court observed the wit-
nesses and accepted one version of the facts over the other.
In re Interest of Zanaya W. et al., 291 Neb. 20, 863 N.W.2d
803 (2015).
V. ANALYSIS
[2,3] The purpose of an adjudication phase of a neglect
petition is to protect the interests of the child. See In re
Interest of Laticia S., 21 Neb. App. 921, 844 N.W.2d 841(2014). At the adjudication stage, in order for a juvenile court
to assume jurisdiction of a minor child under § 43-247(3)(a),
the State must prove the allegations of the petition by a pre-
ponderance of the evidence, and the court’s only concern
is whether the conditions in which the juvenile presently
finds himself or herself fit within the asserted subsection
of § 43-247. In re Interest of Leticia S., supra. Section
43-247(3)(a) states the juvenile court shall have jurisdiction
of any juvenile who “lacks proper parental care by reason
of the fault or habits of his or her parent, guardian, or custo-
dian; whose parent, guardian, or custodian neglects or refuses
to provide proper or necessary subsistence, education, or
other care necessary for the health, morals, or well-being of
such juvenile.”
1. A djudication Based Upon
Acts of Stephanie
(a) Medication
Stephanie asserts the juvenile court erred by finding the
State proved by a preponderance of the evidence that Darius
lacked proper parental care because she failed to admin-
ister his medication as prescribed and failed to follow up
- 192 -
Nebraska Court of A ppeals A dvance Sheets
24 Nebraska A ppellate R eports
IN RE INTEREST OF DARIUS A.
Cite as 24 Neb. App. 178with medical appointments or treatment as recommended by
Darius’ treating physician. She asserts the State failed to prove
that she was not administering medication appropriately and
that she failed to take Darius to medical appointments. She
also asserts the State failed to prove that her actions placed
Darius at a definite risk for harm.
Stephanie argues that her testimony indicated that medica-
tion changes were frequently made over the telephone and
were not always documented, other than in her calendar. She
argues the testimony of Shonerd and Wolcott validates her
testimony that medication changes were frequent and not
always done when Wolcott was in the office. She testified
that she followed Wolcott’s dosage instructions to the best of
her ability.
The evidence shows that Darius was born with several
medical conditions requiring medication, as prescribed by a
neurologist. The evidence also shows that at times, Stephanie
made mistakes regarding the dosage of Darius’ medica-
tion, and that at times, she adjusted dosages against medical
advice. In July 2014, Darius was prescribed a specific dos-
age of Onfi. Shortly after starting the medication, Gregory
reported to Darius’ doctor that Stephanie made a mistake
in administering the correct dosage. Darius was admitted to
the emergency room in September, and Stephanie reported
that Darius was taking 5 milligrams of Onfi twice a day.
The prescribed dose at that time was 20 milligrams twice
a day.
Stephanie had concerns about Darius’ behavior and well-
being while taking Onfi, and Wolcott developed a plan to
wean Darius from the medication gradually over the course of
approximately 6 weeks. Stephanie signed a copy of Wolcott’s
plan to remove Onfi from Darius’ medication regimen upon
discharge from the hospital on September 9, 2014. Nonetheless,
Stephanie informed Wolcott on September 23 that September
26 would be Darius’ last day on Onfi. By September 23,
Darius was only receiving a quarter of the dose prescribed in
- 193 -
Nebraska Court of A ppeals A dvance Sheets
24 Nebraska A ppellate R eports
IN RE INTEREST OF DARIUS A.
Cite as 24 Neb. App. 178Wolcott’s plan to wean Darius from the medication. Wolcott
indicated that Stephanie was not giving the medication as
directed. He testified that the seizures that Darius suffered dur-
ing this time period could be correlated to withdrawal from the
medication. He testified that medications like Onfi should not
be decreased quickly because side effects can include agita-
tion, seizure, and death.
There is evidence that on several occasions, Stephanie did
not give some of Darius’ other medications as prescribed.
Darius is a child with serious medical needs that are regulated
with medication. It is imperative that his medication is given
as prescribed. Wolcott testified that Stephanie always informed
him at appointments what medication Darius was taking, but
there is evidence that she adjusted his medication dosage, at
times, prior to or without consulting Wolcott.
Stephanie asserts that medication compliance checks were
implemented by DHHS in March 2015 and that “it was
determined that medication was being properly adminis-
tered and [she] was not purposefully altering dosage instruc-
tions.” Brief for appellant at 22. While this may be true,
even an occasional mistake in the administration of Darius’
medication could have a serious effect on Darius’ health.
Further, Stephanie asserts the evidence shows that medication
changes were frequent and could occur over the telephone.
The evidence before us shows that there are at least a few
instances in which Wolcott’s records indicate Stephanie did
not give medication in accordance with the dosage noted in
Wolcott’s records.
When the evidence is in conflict, an appellate court may
consider and give weight to the fact that the trial court
observed the witnesses and accepted one version of the facts
over the other. In re Interest of Zanaya W. et al., 291 Neb.
20, 863 N.W.2d 803 (2015). Upon our review of the evi-
dence, the State proved, by a preponderance of the evi-
dence, that Stephanie’s actions with regard to his medical
care placed Darius at risk for harm. Thus, the court did not
- 194 -
Nebraska Court of A ppeals A dvance Sheets
24 Nebraska A ppellate R eports
IN RE INTEREST OF DARIUS A.
Cite as 24 Neb. App. 178err in adjudicating Darius as a child within the meaning of
§ 43-247(3)(a) due to the fault or habits of Stephanie.
(b) School Attendance
During the 2014-15 school year, Darius missed almost 60
days of school and had 388 periods of unexcused absences.
Stephanie concedes Darius missed an abnormal amount of
school in 2014-15, but argues that the school was not able
to safely and appropriately care for Darius’ medical needs
and that the absences did not place him at risk for harm
due to his diminished intellectual and learning capacity. She
argues that Dawes did not make the same effort to accom-
modate Darius that previous schools had and that the school
did not adequately document Darius’ seizure activity. She
asserts Dawes marked incidences when Darius left school
early as parent excused, when he was not medically able
to stay at school because of complications he had with tak-
ing Onfi.
The evidence shows Darius’ medical condition results in
periodic absences from school. Absences which are parent
acknowledged or due to illness are marked as unexcused
absences, while absences marked with “medical documenta-
tion” are excused. Stephanie testified that Darius attended
school on October 1 and 2, 2014, and that due to a perceived
issue with how staff handled Darius’ behavior and health, she
decided to keep him home from school for the remainder of
the month.
Stephanie testified that based on the information in the
“communication book,” she believed Darius was placed in
isolation in Room 140 and was being punished for behavior
that could have been characterized as “pre-seizure activity.”
Stephanie did not address her concern with the school or ask
to see the room.
School personnel testified that Room 140 is a room used
by the special education program. It is a calm and quiet
environment where students are allowed to refocus without
- 195 -
Nebraska Court of A ppeals A dvance Sheets
24 Nebraska A ppellate R eports
IN RE INTEREST OF DARIUS A.
Cite as 24 Neb. App. 178disrupting other students. Personnel testified that Darius
was never left alone and was always accompanied by a
paraeducator.
Stephanie was also concerned that Dawes could not ade-
quately handle Darius and his medical needs when seizures
occurred. The evidence shows the school had an IHP in place
which allowed school officials to evaluate Darius’ ability to
continue learning after a seizure. Wolcott testified that he
reviewed the school’s plan during the school year and that it
sounded “extremely reasonable and safe.” The plan included
monitoring during a seizure and evaluation to determine the
severity of the episode. Wolcott testified that if a seizure
did not last very long, it would not be necessary to send
Darius home. He said if Darius is medically stable after a
seizure, there is no advantage for Darius to be at home versus
at school.
Stephanie attributed Darius’ absence from school in October
2014, in part, to the number of seizures he was experiencing. As
previously addressed, Wolcott’s plan to wean Darius from Onfi
included a gradual decrease in dosage throughout September,
October, and part of November. Stephanie stopped adminis-
tering Onfi in September after sharply decreasing his dosage.
Wolcott testified that a rapid decrease in Onfi could cause
agitation, seizures, and death. As a result, Darius’ absences due
to Stephanie’s concern regarding increased seizures could very
well have been caused by her decision to administer medica-
tion other than as prescribed.
School administrators testified that Stephanie stated at a
meeting that she was not comfortable sending Darius to school
unless her vehicle was in working order. However, the evi-
dence shows Stephanie did not have a vehicle or a driver’s
license. Darius was transported to and from school by bus, and
Lincoln Public Schools was able to provide adequate transpor-
tation, if the need arose.
The evidence shows that Darius has lower intellectual
function than the average student, but that he is capable of
- 196 -
Nebraska Court of A ppeals A dvance Sheets
24 Nebraska A ppellate R eports
IN RE INTEREST OF DARIUS A.
Cite as 24 Neb. App. 178learning and practicing academic and social skills while at
school. His special education teachers and administrators
testified that Darius benefits from the repetition of skills
practiced at school and that consistent attendance is important
for Darius.
The evidence indicates that Darius had safe transportation
to and from school and that the school had plans in place to
support his educational and medical needs. The school rec-
ognized that Darius would miss school periodically because
of his medical condition. The evidence shows Darius was
not being punished or isolated for preseizure activity or for
behavioral issues which were beyond his control. Educators
and school officials testified that even with his limitations,
Darius benefited from regular attendance, and that his attend­
ance during the 2014-15 school year was not consistent and
his absences did not all correspond with documented seizure
activity or medical need. Upon our review of the evidence, we
find the State proved by a preponderance of the evidence that
Darius lacked proper parental care by reason of the fault or
habits of Stephanie in that she failed to adequately provide for
Darius’ educational needs.
2. A djudication Based Upon
Acts of Gregory
Gregory acknowledges that Darius missed a substantial
number of school periods, but asserts that he and Stephanie
chose to keep Darius out of school until he was healthy enough
to attend and the school was made safe enough for Darius
to attend. He refers to Neb. Rev. Stat. § 79-201(2) (Reissue
2014), which states that school attendance is required “except
when excused by school authorities or when illness or severe
weather conditions make attendance impossible or impracti-
cable.” He argues the court erred in failing to consider whether
Darius’ attendance at school was impracticable, whether Darius
was homebound, and whether the school met its obligation to
ensure Darius’ safe attendance.
- 197 -
Nebraska Court of A ppeals A dvance Sheets
24 Nebraska A ppellate R eports
IN RE INTEREST OF DARIUS A.
Cite as 24 Neb. App. 178As previously discussed, Darius benefits from consistent
attendance in school. Stephanie and Gregory are divorced, but
share the responsibility of parenting Darius. Gregory stated that
as a parent, he is responsible for helping to ensure that Darius
attends school. Stephanie testified that even though Gregory
does not live in the same home as Stephanie and Darius, he
is actively involved in coparenting. Gregory is responsible for
transporting Darius to appointments and takes him to school
when he is unable to take the bus because of seizure activity or
medical appointments.
Gregory testified that he agreed with Stephanie to keep
Darius home from school in October 2014 because of the
belief that Darius was isolated or punished for preseizure
behavior and his medical and intellectual issues. He testified
that he visited the school, but because another student was in
Room 140 at the time, he decided not to look inside out of
respect for that student’s privacy. Stephanie and Gregory were
both concerned about Room 140, but paraeducators, teachers,
and administrators testified that Room 140 was not used to
punish or isolate Darius and that the fears of Stephanie and
Gregory were unfounded.
Gregory asserts the court erred in not considering whether
attendance was impracticable or whether the school was a
safe place for Darius to be. This assertion is refuted by the
evidence. The evidence shows that the school was notified of
Darius’ needs prior to the school year and that school officials
met with his parents on multiple occasions to address these
needs. The protocol for addressing Darius’ medical and edu-
cational needs were adjusted throughout the year according
to the progress he made toward the goals stated in his IEP.
School officials, teachers, paraeducators, and staff were aware
of Darius’ medical needs, and individuals who came in contact
with him were given specific instructions for handling medi-
cal situations.
The evidence shows that the State proved by a prepon-
derance of the evidence that Darius lacked proper parental
- 198 -
Nebraska Court of A ppeals A dvance Sheets
24 Nebraska A ppellate R eports
IN RE INTEREST OF DARIUS A.
Cite as 24 Neb. App. 178care by reason of the fault or habits of Gregory as he failed
to ­adequately provide for Darius’ educational needs, allow-
ing him to miss almost 60 days of school in a single aca-
demic year.
VI. CONCLUSION
For the reasons stated above, we find the juvenile court
properly adjudicated Darius as a child within the meaning of
§ 43-247(3)(a) due to the fault or habits of both Stephanie
and Gregory.
A ffirmed.
R iedmann, Judge, participating on briefs.