In re Interest of Jahon S. ( 2015 )

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Nebraska A dvance Sheets
291 Nebraska R eports
IN RE INTEREST OF JAHON S.
Cite as 291 Neb. 97
In re I nterest of Jahon S., a child
under 18 years of age.
State of Nebraska, appellee, v.
R eon W., appellant.
___ N.W.2d ___
Filed June 12, 2015. No. S-14-1049.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juve-
nile cases de novo on the record and reaches its conclusions indepen-
dently of the juvenile court’s findings.
2. Parental Rights: Proof. Under Neb. Rev. Stat. § 43-292 (Cum. Supp.
2014), in order to terminate parental rights, the State must prove, by
clear and convincing evidence, that one or more of the statutory grounds
listed in this section have been satisfied and that termination is in the
child’s best interests.
3. ____: ____. In addition to proving a statutory ground, the State must
show that termination is in the best interests of the child.
4. Constitutional Law: Parental Rights: Proof. A parent’s right to raise
his or her child is constitutionally protected; so before a court may ter-
minate parental rights, the State must also show that the parent is unfit.
5. Parental Rights: Presumptions: Proof. There is a rebuttable presump-
tion that the best interests of a child are served by having a relationship
with his or her parent. Based on the idea that fit parents act in the best
interests of their children, this presumption is overcome only when the
State has proved that the parent is unfit.
6. Parental Rights: Statutes: Words and Phrases. The term “unfitness”
is not expressly used in Neb. Rev. Stat. § 43-292 (Cum. Supp. 2014),
but the concept is generally encompassed by the fault and neglect sub-
sections of that statute, and also through a determination of the child’s
best interests.
7. Constitutional Law: Parental Rights: Words and Phrases. In the
context of the constitutionally protected relationship between a parent
and a child, parental unfitness means a personal deficiency or incapac-
ity which has prevented, or will probably prevent, performance of a
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IN RE INTEREST OF JAHON S.
Cite as 291 Neb. 97
reasonable parental obligation in child rearing and which caused, or
probably will result in, detriment to a child’s well-being.
8. Parental Rights. The best interests analysis and the parental fit-
ness analysis are fact-intensive inquiries. And while both are sepa-
rate ­inquiries, each examines essentially the same underlying facts as
the other.
9. ____. Although incarceration alone cannot be the sole basis for terminat-
ing parental rights, it is a factor to be considered.
10. Parental Rights: Abandonment. Although incarceration itself may be
involuntary as far as a parent is concerned, the criminal conduct causing
the incarceration is voluntary.
11. ____: ____. In a case involving termination of parental rights, it is
proper to consider a parent’s inability to perform his or her parental
obligations because of incarceration.
12. Parental Rights. Children cannot, and should not, be suspended in fos-
ter care or be made to await uncertain parental maturity.
Appeal from the Separate Juvenile Court of Douglas County:
Christopher K elly, Judge. Affirmed.
Joseph L. Howard, of Dornan, Lustgarten & Troia, P.C.,
L.L.O., for appellant.
Donald W. Kleine, Douglas County Attorney, Amy
Schuchman, and Jennifer Chrystal-Clark for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Stephan, J.
Reon W. and P’lar’e S. are the parents of Zanaya W.,
Mileaya S., Imareon S., and Jahon S. The separate juvenile
court of Douglas County terminated P’lare’s parental rights to
all four children and Reon’s parental rights to Zanaya, Mileaya,
and Imareon. Both parents filed timely appeals. We affirmed
the terminations in In re Interest of Zanaya W. et al.1 In a
separate proceeding, the same court terminated Reon’s paren-
tal rights to Jahon, the youngest of the four children. This is
Reon’s direct appeal from that order.
1
In re Interest of Zanaya W. et al., ante p. 20, ___ N.W.2d ___ (2015).
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291 Nebraska R eports
IN RE INTEREST OF JAHON S.
Cite as 291 Neb. 97
BACKGROUND
As noted in our opinion in In re Interest of Zanaya W. et al.,
the three older children were adjudicated as children within
the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2008)
and placed with their father, Reon, after they were removed
from the custody of their mother, P’lar’e. But in March 2013,
the children were removed from Reon’s custody when the
Department of Health and Human Services (DHHS) learned
that Reon was incarcerated on pending criminal charges. On
July 9, Reon pled guilty to a charge of possession of marijuana
with intent to deliver, a Class IIIA felony. On September 10, he
was sentenced to imprisonment for 3 to 5 years.
Jahon was born in November 2013, while Reon was serv-
ing his prison sentence. Two days after his birth, an ex parte
order for emergency temporary custody was entered and he
was placed in the custody of DHHS. When he was 4 days old,
Jahon was placed with the same foster parents who care for his
three older siblings, and he remained in that placement with
his siblings at the time of the termination hearing.
In September 2014, the State filed a supplemental petition
to terminate Reon’s rights to Jahon. As grounds, it asserted
he had substantially and continuously or repeatedly neglected
and refused to give necessary parental care and protection to
Jahon and his three older siblings. Reon personally appeared
in the juvenile court with counsel on October 28 and entered a
denial to the supplemental petition. A termination hearing was
held immediately thereafter. Although Reon was present with
counsel, he did not testify or offer any evidence.
The State called two witnesses. The first was the foster par-
ent with whom Jahon and his siblings had been placed. She
testified that Jahon was placed with her in December 2013 and
that his three siblings had been placed with her since April
2013. All four children were in her care at the time of the
hearing. She testified that while the children were in her care,
Reon had sent several letters to each of them, including Jahon,
but had not visited with them in person or by telephone. She
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IN RE INTEREST OF JAHON S.
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testified that Reon had been incarcerated during the entire time
that Jahon had been placed with her.
The second State witness was Janece Potter. She testified
that she had served as the family permanency specialist for
Jahon and his three siblings and had worked with them and
their parents from August 2012 through March 2014, when she
took a different position. Potter testified that after they became
state wards and were removed from the custody of their
mother, Zanaya and Mileaya were placed with Reon in March
2011 and that Imareon was placed with Reon in August 2012.
Potter testified that while the children were placed with Reon,
she checked on them one or two times each month and had
no concerns about their well-being other than an observation
that the house was “cluttered.” But in 2013, Potter learned that
Reon had been incarcerated in 2012 and that during his incar-
ceration, the children were cared for by Reon’s mother. Reon
had not reported this incarceration to Potter; she learned of it
from another source. On March 29, 2013, Reon was arrested
for possession of marijuana with intent to deliver and the
three children were removed and placed in foster care. While
incarcerated for this offense, Reon was charged with physically
assaulting another inmate.
Potter visited with Reon at the correctional facility where
he was incarcerated in April 2013. They discussed the fact that
drugs had been found in his home, and he reported that he had
been smoking an ounce of marijuana a day but denied selling
it. Potter stated that Reon was unable to participate in review
hearings or receive services during his incarceration.
In January 2014, Potter assumed case management respon-
sibilities for Jahon. She prepared a court report and case plan
for a review hearing held in March. The report noted that
Jahon’s needs for safety, health, and well-being were being
met in his foster home and that DHHS was working on an
alternative permanency plan of adoption. The report noted
that no serv­ices had been ordered for Reon, who was still
incarcerated. Potter stated that she had been unable to meet
with Reon since September 2013 because he had been placed
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IN RE INTEREST OF JAHON S.
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in isolation. At some point, she learned this was because he
had been charged with the assault of another inmate. In March
2014, Potter recommended that a motion to terminate parental
rights be filed with respect to all of the children, including
Jahon, because of the length of time that the cases had been
open and the lack of progress that Reon had made with Jahon
and his older siblings.
Potter testified that in her conversations with Reon, he never
accepted responsibility for his actions or for how they affected
his children. Reon told Potter that he had been employed at the
correctional facility but that he either had quit or was fired.
He also told her that when released, he planned to move to
Florida, where his mother lived. When she asked him if he
would be cooperative with DHHS upon his release, he replied
that he would participate in services but would not cooper-
ate and “would make it very difficult.” Potter testified that
she had determined Reon’s projected release date to be in
September 2015.
Potter testified that in her opinion, termination of Reon’s
parental rights was in the best interests of Jahon. She based
her opinion on the fact that Jahon had been in foster care for
“100 percent of his life” and was in need of care, which Reon
could not provide due to his incarceration. She stated that Reon
had not been able to make any progress toward reunification
with Jahon “[d]ue to being incarcerated” and would not make
any such progress during the additional year that she believed
his incarceration would continue. She further stated that Jahon
would be at risk of harm if returned to Reon and that Reon
was not in a position to care for a child because of his incar-
ceration. She also noted that Jahon’s siblings had been in foster
care for a significant amount of time.
On cross-examination, Potter acknowledged that she had
assisted Reon in gaining custody of the three older children
before his arrest. As late as February 2013, she believed that
placement of the children with Reon was appropriate, and she
wrote in a court report that Reon was able to meet the needs
of his children by utilizing informal supports and community
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resources while seeking full-time employment. At that time,
she recommended that the permanency objective for the chil-
dren should be family preservation with Reon. Potter further
acknowledged that at that point, Reon had been voluntarily
participating in services from the juvenile court, and she sup-
ported placing the children in his custody. In a case plan for
the three older children which was in effect from July 30 until
December 29, 2013, during the time that Reon was incarcer-
ated, Potter listed “[s]trategies” which included Reon’s obtain-
ing certain evaluations and programming while “in jail” and
participating “in supervised visitation when he is released
from jail.” She was asked how Reon could be expected to
work toward reunification or provide support when no services
were being provided to him, and she responded, “I’m not sure.
There’s not a lot you can do when you’re in jail.”
On redirect examination, Potter testified that she supported
Reon’s reunification with his three older children only while
she remained unaware of his daily marijuana use and the
criminal charges which resulted in his conviction and incar-
ceration. She stated that after learning that information, she no
longer thought that Reon could provide proper parental care
and support.
In an order entered on October 29, 2014, the separate juve-
nile court terminated Reon’s parental rights to Jahon. It found
that the ground for termination specified in Neb. Rev. Stat.
§ 43-292(2) (Cum. Supp. 2014) had been met and that it was
in the best interests and welfare of Jahon that Reon’s parental
rights be terminated. The court did not state its reasoning with
respect to the best interests finding.
On November 12, 2014, Reon’s counsel filed a motion to
reconsider, in which he noted that at the termination hear-
ing, there was evidence that Reon was incarcerated “and was
not going to be paroled for another year.” The motion recited
that Reon’s incarceration “was a material factor . . . in the
Court’s decision to terminate his parental rights” and urged
reconsideration, because “[o]n November 2, 2014, Reon . . .
was paroled and is no longer incarcerated.” At a hearing held
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IN RE INTEREST OF JAHON S.
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on November 18, Reon’s counsel advised the court that Reon
had been paroled, was living in a “halfway home,” and was
employed. No evidence was received. The juvenile court over-
ruled the motion, explaining that its decision was not based
solely on Reon’s projected release date of September 24, 2015.
Reon perfected this timely appeal.
ASSIGNMENTS OF ERROR
Reon assigns that the juvenile court erred in (1) finding his
parental rights should be terminated pursuant to § 43-292(2)
and (2) finding termination was in Jahon’s best interests. He
does not assign error with respect to the juvenile court’s ruling
on his motion to reconsider.
STANDARD OF REVIEW
[1] An appellate court reviews juvenile cases de novo on the
record and reaches its conclusions independently of the juve-
nile court’s findings.2
ANALYSIS
[2] Under § 43-292, in order to terminate parental rights,
the State must prove, by clear and convincing evidence, that
one or more of the statutory grounds listed in this section
have been satisfied and that termination is in the child’s best
interests.3 Reon first argues that the State failed to prove the
existence of a statutory ground for termination of his parental
rights to Jahon. As noted, the State sought termination under
§ 43-292(2), which authorizes termination when the parent
has substantially and continuously or repeatedly neglected
and refused to give the juvenile or a sibling of the juvenile
necessary parental care and protection. Because we affirmed
the juvenile court’s decision in case No. S-14-550 terminating
Reon’s parental rights to Zanaya, Mileaya, and Imareon on
2
In re Interest of Nedhal A., 289 Neb. 711, 856 N.W.2d 565 (2014); In re
Interest of Samantha C., 287 Neb. 644, 843 N.W.2d 665 (2014).
3
In re Interest of Nicole M., 287 Neb. 685, 844 N.W.2d 65 (2014); In re
Interest of Angelica L. & Daniel L., 277 Neb. 984, 767 N.W.2d 74 (2009).
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IN RE INTEREST OF JAHON S.
Cite as 291 Neb. 97
this same ground, which Reon did not contest in that case, the
juvenile court in this case correctly determined that the same
statutory ground for termination existed as to Jahon.4
[3-8] Reon also challenges the finding that termination of
his parental rights was in Jahon’s best interests. In addition to
proving a statutory ground, the State must show that termina-
tion is in the best interests of the child.5 A parent’s right to
raise his or her child is constitutionally protected; so before a
court may terminate parental rights, the State must also show
that the parent is unfit.6 There is a rebuttable presumption that
the best interests of a child are served by having a relationship
with his or her parent. Based on the idea that fit parents act in
the best interests of their children, this presumption is over-
come only when the State has proved that the parent is unfit.7
The term “unfitness” is not expressly used in § 43-292, but
the concept is generally encompassed by the fault and neglect
subsections of that statute, and also through a determination of
the child’s best interests.8 In the context of the constitutionally
protected relationship between a parent and a child, parental
unfitness means a personal deficiency or incapacity which has
prevented, or will probably prevent, performance of a reason-
able parental obligation in child rearing and which caused,
or probably will result in, detriment to a child’s well-being.9
4
See, In re Interest of Sir Messiah T. et al., 279 Neb. 900, 782 N.W.2d 320
(2010); In re Interest of Hope L. et al., 278 Neb. 869, 775 N.W.2d 384
(2009).
5
See In re Interest of Kendra M. et al., 283 Neb. 1014, 814 N.W.2d 747
(2012).
6
Id.; In re Interest of Ryder J., 283 Neb. 318, 809 N.W.2d 255 (2012).
7
Id. See, also, Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed.
2d 49 (2000).
8
In re Interest of Kendra M. et al., supra note 5; In re Interest of Hope L.
et al., supra note 4.
9
See, In re Interest of Nicole M., supra note 3; In re Interest of Kendra
M. et al., supra note 5; Uhing v. Uhing, 241 Neb. 368, 488 N.W.2d 366
(1992).
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IN RE INTEREST OF JAHON S.
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The best interests analysis and the parental fitness analy-
sis are fact-intensive inquiries. And while both are separate
­inquiries, each examines essentially the same underlying facts
as the other.10
In this case, there is evidence of Reon’s lack of parental
fitness in that he chose to use and sell marijuana during a
time when he was the sole custodial parent of Jahon’s three
older siblings, thereby placing the children at risk of harm.
As a result of this conduct, he was incarcerated at the time of
Jahon’s birth and for the first year of his life, making it impos-
sible for him to be present in Jahon’s life or provide him with
care and support. There is evidence that Reon was incarcerated
in December 2012, also at a time when he was the sole cus-
todial parent of Jahon’s three older siblings. Further, there is
evidence that Reon was charged with assaulting another inmate
during his 2013 incarceration.
[9-11] Although incarceration alone cannot be the sole basis
for terminating parental rights, it is a factor to be considered.11
And we have noted that although incarceration itself may be
involuntary as far as a parent is concerned, the criminal con-
duct causing the incarceration is voluntary.12 Thus, in a case
involving termination of parental rights, it is proper to consider
a parent’s inability to perform his or her parental obligations
because of incarceration.13
In In re Interest of DeWayne G. & Devon G.,14 we con-
cluded that termination of an incarcerated father’s rights was
in the best interests of his two sons when he had never cared
for them prior to his incarceration and when one son had been
in foster care for more than 4 years and the other for 2 years.
10
In re Interest of Nicole M., supra note 3; In re Interest of Kendra M. et al.,
supra note 5.
11
In re Interest of Ryder J., supra note 6; In re Interest of DeWayne G. &
Devon G., 263 Neb. 43, 638 N.W.2d 510 (2002).
12
In re Interest of Kalie W., 258 Neb. 46, 601 N.W.2d 753 (1999).
13
In re Interest of DeWayne G. & Devon G., supra note 11.
14
Id.
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IN RE INTEREST OF JAHON S.
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We reached this conclusion despite the father’s testimony that
he was scheduled for parole approximately 3 months after the
termination hearing.
Although it appears from the record that Reon may have
been paroled within a month following the termination hear-
ing, there is no basis for concluding that he is prepared to
be a parent to Jahon. His past criminal actions demonstrate
voluntary conduct that prevented him from functioning as a fit
parent. The only evidence as to his future ability to parent is
that he does not intend to cooperate with DHHS and “would
make it very difficult” for that agency to reunify him with his
children. Further, there is evidence that Reon refuses to accept
responsibility for his criminal actions and how they affected
his children.
[12] Children cannot, and should not, be suspended in fos-
ter care or be made to await uncertain parental maturity.15 As
a result of decisions made by Reon which adversely reflect
upon his parental fitness, Jahon has been in foster care for
his entire life, and there is no basis on this record to con-
clude that permanency could be achieved in the foreseeable
future if Reon’s parental rights remain intact. We therefore
conclude that the separate juvenile court did not err in find-
ing that termination of Reon’s parental rights was in Jahon’s
best interests.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
separate juvenile court terminating Reon’s parental rights
to Jahon.
A ffirmed.
15
In re Interest of Walter W., 274 Neb. 859, 744 N.W.2d 55 (2008).