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IN RE INTEREST OF DARIUS A.

Cite as 24 Neb. App. 178

In re Interest 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 consider and give weight to the fact that the trial court observed the witnesses 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: Reggie 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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

07/19/2016 09:06 AM CDT
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IN RE INTEREST OF DARIUS A.

Cite as 24 Neb. App. 178

Susan 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 disorder, 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 
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to the fault or habits of Stephanie and Gregory. The petition 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 recommended by Darius’ treating neurologist and that she failed to 

follow up with medical appointments or treatment as recommended 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 hearing, 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 conditions 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 
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coordinator of specialty clinics at a Lincoln hospital. When 

Wolcott is not in the office, Shonerd calls him with urgent concerns from parents or takes messages on his behalf.

Darius has been prescribed a number of medications consistently 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 medication called Onfi instead. Wolcott prescribed a decrease in 

the Lamictal dose and prescribed an initial dose of 10 milligrams of Onfi twice per day, to be increased to 20 milligrams 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 
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appointment 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 significant seizures accompanied by significant respiratory issues. 

At that time, Wolcott became aware that Darius’ medication was not being given as prescribed. Wolcott learned that 

Stephanie had initiated a “drastic taper” from the Onfi medication 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 gradually 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 
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information 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 indicate 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 document the changes. He said that he trusts Stephanie to know 

what medication Darius is on and that she reports the medication Darius is taking at each appointment.

Shonerd testified that Stephanie is knowledgeable about 

Darius’ diagnoses and symptoms and that the type of medication prescribed for Darius and the prescribed dosages changed 

frequently. However, Shonerd also testified that Stephanie had 

a history of not following Wolcott’s recommendations regarding Darius’ medication. She stated that Stephanie had a tendency 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 
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increased 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 prescribed 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 prescription 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. 
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He testified that he never witnessed the wrong medication or 

dosage being given to Darius. The family support worker witnessed one seizure during a visit and testified that the parents 

reacted appropriately.

Another family support worker also provided drop-in services. 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 appointment 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 presentation to approximately 70 school staff members including 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, 
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and 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 technician 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 concerned 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 medication 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.
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Darius 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 various 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 testified 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 condition. 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 
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a 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 paraeducator 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 placement” 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 processes 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 placement 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 “communication book” that had been used to track Darius’ activity 

at school. The checklist was to track seizure activity and 
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Cite as 24 Neb. App. 178

provide documentation for the school and the parents about 

Darius’ health.

Ells said they also discussed Stephanie’s vehicle at the meeting 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 transportation 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 
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140 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 repetition 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 testified 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 beginning 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 adjudicating 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 educational 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.
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IV. STANDARD OF REVIEW

[1] 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 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).

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 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. 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 custodian; 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. Adjudication 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 administer his medication as prescribed and failed to follow up 
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with 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 medication 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’ medication, and that at times, she adjusted dosages against medical 

advice. In July 2014, Darius was prescribed a specific dosage 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 wellbeing 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 
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Wolcott’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 during 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 agitation, 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 administered and [she] was not purposefully altering dosage instructions.” 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 evidence, the State proved, by a preponderance of the evidence, that Stephanie’s actions with regard to his medical 

care placed Darius at risk for harm. Thus, the court did not 
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err 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 accommodate 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 taking 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 documentation” 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 
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disrupting 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 adequately 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 administering 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 medication 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 evidence 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 transportation, if the need arose.

The evidence shows that Darius has lower intellectual 

function than the average student, but that he is capable of 
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learning 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 recognized 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 attendance 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. Adjudication 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 impracticable.” 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.
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As 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 educational 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 medical situations.

The evidence shows that the State proved by a preponderance of the evidence that Darius lacked proper parental 
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care by reason of the fault or habits of Gregory as he failed 

to adequately provide for Darius’ educational needs, allowing him to miss almost 60 days of school in a single academic 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.

Affirmed.

Riedmann, Judge, participating on briefs.