In re Interest of Donald B. & Devin B. ( 2019 )

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www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court A dvance Sheets
304 Nebraska R eports
IN RE INTEREST OF DONALD B. & DEVIN B.
Cite as 304 Neb. 239
In re I nterest of Donald B. and Devin B.,
children under 18 years of age.
State of Nebraska, appellee,
v. Candice I., appellant.
___ N.W.2d ___
Filed October 11, 2019. No. S-18-675.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juve-
nile cases de novo on the record and reaches a conclusion independently
of the juvenile court’s findings.
2. Parental Rights: Proof. In order to terminate an individual’s parental
rights, the State must prove by clear and convincing evidence that one of
the statutory grounds enumerated in Neb. Rev. Stat. § 43-292 (Reissue
2016) exists and that termination is in the children’s best interests.
3. Parental Rights: Juvenile Courts: Pleadings. In a termination pro-
ceeding, pursuant to Neb. Rev. Stat. § 43-247(6) (Reissue 2016), a court
may accept an in-court admission from a parent as to all or part of the
allegations in the petition.
4. Pleas: Evidence: Waiver: Words and Phrases. A judicial admission is
a formal act done in the course of judicial proceedings which is a substi-
tute for evidence, thereby waiving or dispensing with the production of
evidence by conceding for the purpose of litigation that the proposition
of fact alleged by the opponent is true.
5. Parental Rights: Proof. When a parent admits to the State’s allegations
regarding the statutory ground for termination of parental rights and that
termination is in the children’s best interests, the State does not have to
prove those allegations by clear and convincing evidence.
6. Parental Rights: Juvenile Courts: Pleadings. Because the primary
consideration in determining whether to terminate parental rights is the
best interests of the child, a juvenile court should have at its disposal
the information necessary to make the determination regarding the
minor child’s best interests regardless of whether the information is
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IN RE INTEREST OF DONALD B. & DEVIN B.
Cite as 304 Neb. 239
in reference to a time period before or after the filing of the termina-
tion petition.
7. Evidence: Appeal and Error. In a review de novo on the record, an
appellate court reappraises the evidence as presented by the record and
reaches its own independent conclusions with respect to the matters at
issue.
8. Juvenile Courts: Jurisdiction: Statutes. As a statutorily created court
of limited and special jurisdiction, a juvenile court has only such author-
ity as has been conferred on it by statute.
Petition for further review from the Court of Appeals,
Moore, Chief Judge, and Pirtle and A rterburn, Judges, on
appeal thereto from the Separate Juvenile Court of Douglas
County, Chad M. Brown, Judge. Judgment of Court of Appeals
reversed, and cause remanded with directions.
John J. Ekeh, of Ekeh Law Office, for appellant.
Donald W. Kleine, Douglas County Attorney, Natalie Killion,
and Jennifer Chrystal-Clark for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
I. INTRODUCTION
Candice I. petitions for further review of the Nebraska
Court of Appeals’ decision affirming the termination of her
parental rights to one of her minor children based upon her
admissions and the State’s factual basis presented at the ter-
mination hearing. Upon a de novo review of the record, the
indistinguishable progress made by Candice with both children
does not support a sufficient factual basis that termination
of her parental rights was in only one child’s best interests.
Accordingly, we reverse, and remand with directions.
II. BACKGROUND
Candice is the natural mother of Donald B., born in 2003,
and Devin B., born in 2004. In 2015, the juvenile court
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IN RE INTEREST OF DONALD B. & DEVIN B.
Cite as 304 Neb. 239
adjudicated that both children shall be under the temporary
custody of the Department of Health and Human Services
(DHHS). Since the adjudication, the children have remained
in the custody of DHHS.
1. Hearing on Termination of
Parental R ights to Devin
In January 2018, the State filed its third motion to termi-
nate Candice’s parental rights to both Donald and Devin. Six
months later, the juvenile court held a hearing on the motion.
Pursuant to a “plea deal” announced at the hearing, Candice
admitted to count I (Devin was within the meaning of Neb. Rev.
Stat. § 43-247(3)(a) (Reissue 2016)), count II (Candice failed
to comply with several court-ordered rehabilitation plans),
count IV (Devin came within the meaning of Neb. Rev. Stat.
§ 43-292(1) (Reissue 2016)), count IX (terminating Candice’s
parental rights was in Devin’s best interests), and count X (rea-
sonable efforts under Neb. Rev. Stat. § 43-283.01 (Cum. Supp.
2018) were not required due to abandonment). And in return,
the State dismissed all the allegations as to Donald and the
remaining allegations as to Devin. As a condition of the “plea
deal,” the State represented that Candice’s admissions would
be treated as a “voluntary relinquishment.”
During the termination and permanency hearing, the court
recited the allegations contained in the third motion to ter-
minate parental rights. Before and after the recitation, the
court conducted a colloquy with Candice to advise her of the
rights that she would be waiving. Candice then admitted to
the allegations.
After Candice’s admissions, the State set forth a factual
basis for the plea, and we summarize its recitation. It stated
it would show that Devin was removed from his parental care
in 2015. As part of the removal, the court entered several
orders. Candice failed to comply with the orders to reunify
with Devin. Prior to filing the motion for termination, she
did not have contact with Devin for 2 years. And other case
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IN RE INTEREST OF DONALD B. & DEVIN B.
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professionals would testify to the lack of contact between
Candice and Devin. Devin’s caseworker would testify that she
made efforts to engage Candice in reunification. Based upon
the caseworker’s education, training, and experience with the
family, she would testify that it was in Devin’s best interests to
terminate Candice’s parental rights.
Based upon Candice’s admissions and the factual basis
recited by the State, the juvenile court made several findings.
Pursuant to count III, the court took judicial notice of its own
record and orders in the case. It found that (1) there was a
factual basis for the counts; (2) the admissions to the motion
were true by clear and convincing evidence; (3) the plea was
knowingly, intelligently, and understandingly made; and (4) it
was in Devin’s best interests to terminate Candice’s parental
rights. It terminated Candice’s parental rights and found that
“this is to be treated as a voluntary relinquishment to this Court
and it cannot be used for any further filings or proceedings by
the county attorney or any other party.” The hearing continued
with respect to Donald’s status, during which evidence was
considered. We will return to that evidence later.
2. Court of A ppeals’ Decision
Candice timely appealed and challenged the termination of
her parental rights.1 She assigned that the court lacked author-
ity to accept her admissions as a voluntary relinquishment.
Additionally, she assigned that the court erred in terminating
her parental rights to Devin.
The Court of Appeals reasoned that the juvenile court was
empowered to accept Candice’s admissions and to rely on
the admissions when terminating her parental rights. It disre-
garded the cases she discussed about relinquishment of paren-
tal rights, because, it said, those cases were concerned about a
juvenile court’s authority to order DHHS to accept a voluntary
relinquishment from a parent.
1
In re Interest of Donald B. & Devin B., 27 Neb. Ct. App. 126, 927 N.W.2d 67
(2019).
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IN RE INTEREST OF DONALD B. & DEVIN B.
Cite as 304 Neb. 239
It also reasoned that based on Candice’s admission that
termination was in Devin’s best interests, her acquiescence to
the factual basis, and her reunification efforts with Donald,
there was sufficient evidence to terminate her parental rights
to Devin. It emphasized that “[t]he record shows that although
Candice ceased having contact with Devin more than 2 years
prior to the State’s filing the third petition for termination of
parental rights, she was maintaining contact with Donald.”2 It
concluded that based on the record, it could find no basis to
set aside the parties’ agreement when the plea was entered into
knowingly, voluntarily, and intelligently. It affirmed the termi-
nation of Candice’s parental rights to Devin.
Candice timely petitioned for further review, which we
granted.3
III. ASSIGNMENTS OF ERROR
Candice assigns that the Court of Appeals (1) erred in fail-
ing to make a proper de novo review when “it disregarded
evidence that the [j]uvenile [c]ourt erred in terminating [her
parental] rights” and (2) erred in affirming the juvenile court’s
decision to accept her admissions as a voluntary relinquish-
ment of her parental rights to Devin.
IV. STANDARD OF REVIEW
[1] An appellate court reviews juvenile cases de novo on the
record and reaches a conclusion independently of the juvenile
court’s findings.4
V. ANALYSIS
1. Termination of Parental R ights
(a) Candice’s Arguments
In her petition for further review, Candice argues that if she
is a fit parent to strive for reunification with Donald, then the
2
Id. at 133-34, 927 N.W.2d at 73.
3
See Neb. Ct. R. App. P. § 2-102(F) (rev. 2015).
4
In re Interest of Michael N., 302 Neb. 652, 925 N.W.2d 51 (2019).
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IN RE INTEREST OF DONALD B. & DEVIN B.
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same must be true with Devin. She analogizes her case to In
re Interest of Xavier H.,5 where the facts were insufficient to
show that the mother was an unfit parent to her child in DHHS
custody, when she was a fit parent to the other children in her
care. Candice contends that the court should not have accepted
an agreement that makes a parent choose between her children.
She asserts that the “plea deal” was suggestive she prefers one
child over another and that thus, she “had to choose between
giving up her rights of one child over the other.”6
(b) Statutory Grounds
for Termination
[2,3] In order to terminate an individual’s parental rights, the
State must prove by clear and convincing evidence that one of
the statutory grounds enumerated in § 43-292 exists and that
termination is in the children’s best interests.7 In a termination
proceeding, pursuant to § 43-247(6), a court may accept an
in-court admission from a parent as to all or part of the allega-
tions in the petition.8 Here, the juvenile court had authority to
accept the in-court admissions during the termination proceed-
ing pursuant to § 43-247(6).
[4] When a parent, pursuant to § 43-279.01(3), admits to
allegations in a termination proceeding, we have characterized
it as a judicial admission.9 A judicial admission is a formal act
done in the course of judicial proceedings which is a substitute
for evidence, thereby waiving or dispensing with the produc-
tion of evidence by conceding for the purpose of litigation that
the proposition of fact alleged by the opponent is true.10
5
In re Interest of Xavier H., 274 Neb. 331, 740 N.W.2d 13 (2007).
6
Brief for appellant in support of petition for further review at 2.
7
In re Interest of Joseph S. et al., 291 Neb. 953, 870 N.W.2d 141 (2015).
8
See Neb. Rev. Stat. § 43-279.01 (Reissue 2016).
9
See In re Interest of L.B., A.B., and A.T., 235 Neb. 134, 454 N.W.2d 285
(1990).
10
Id. See, also, In re Interest of Zanaya W. et al., 291 Neb. 20, 863 N.W.2d
803 (2015).
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IN RE INTEREST OF DONALD B. & DEVIN B.
Cite as 304 Neb. 239
[5] When a parent admits to the State’s allegations regarding
the statutory ground for termination of parental rights and that
termination is in the children’s best interests, the State does
not have to prove those allegations by clear and convincing
evidence.11 Regarding a factual basis, § 43-279.01(3) requires
only that “[t]he court shall ascertain a factual basis for an
admission . . . .” “The statute does not specify precisely what
the factual basis must entail.”12
Because Candice admitted to the allegations in the motion
to terminate, the State did not have to prove them by clear
and convincing evidence. It was only required to set forth
a factual basis. We must examine whether the factual basis
was sufficient to support the admissions. Here, we have an
unusual series of events, where a factual basis, apparently suf-
ficient on its face, is undermined by evidence presented during
the hearing.
(c) Best Interests of Child
[6] We first address the factual basis to support Devin’s best
interests. Because the primary consideration in determining
whether to terminate parental rights is the best interests of the
child, a juvenile court should have at its disposal the informa-
tion necessary to make the determination regarding the minor
child’s best interests regardless of whether the information is
in reference to a time period before or after the filing of the
termination petition.13 While statutory grounds for termination
are based on past conduct, the best interests element focuses on
future well-being of the child and should not be seen through a
microscope, but a telescope.14
11
In re Interest of Brooklyn T. & Charlotte T., 26 Neb. Ct. App. 669, 922
N.W.2d 240 (2018).
12
In re Interest of Zanaya W. et al., supra note 10, 291 Neb. at 28, 863
N.W.2d at 810.
13
See Kenneth C. v. Lacie H., 286 Neb. 799, 839 N.W.2d 305 (2013).
14
See 4 Christine P. Costanakos, Nebraska Practice, Juvenile Court Law and
Practice § 5:14 (2018).
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IN RE INTEREST OF DONALD B. & DEVIN B.
Cite as 304 Neb. 239
(i) Additional Facts
[7] In a review de novo on the record, an appellate court
reappraises the evidence as presented by the record and reaches
its own independent conclusions with respect to the matters
at issue.15 We will consider all the evidence presented at the
hearing which is relevant to Devin’s best interests. Additional
evidence relevant to our analysis was presented during the sec-
ond half of the termination hearing, when the court conducted
a permanency hearing for Donald.
In the State’s factual basis, it specifically stated that Devin’s
caseworker would testify that “it was in the best interest due to
the length of time that [Candice and Devin] did not have con-
tact, as well as the lack of progress being made.”
During the permanency hearing, the State entered several
exhibits, including the DHHS court report signed 3 days before
the hearing. In an update from December 2017, the DHHS
court report stated that Candice had been meeting with the
caseworker and that Candice “[had] not started visiting with
the boys yet as there are concerns with her visiting them when
she has been out of the picture for 2 years now. Therapeutic
visits are looking into being set up.” In February 2018, Candice
began weekly therapy with Donald and therapy every other
week with Devin. Since that time, Candice had consistently
participated in therapy with the children.
In the DHHS court report, it recommended that the court
adopt the case plan and court report. DHHS stated that in
regard to Donald and Devin, “[f]air progress is being made
to alleviate the causes of out-of-home placement.” It further
stated that “[t]he primary permanency plan of Reunification is
being achieved by [December 2018].” It recommended that the
court adopt a permanency objective of reunification concurrent
with adoption for both Donald and Devin.
During the permanency hearing, the parties discussed the
improvements in Candice’s life. Candice was employed and
15
Hotz v. Hotz, 301 Neb. 102, 917 N.W.2d 467 (2018).
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IN RE INTEREST OF DONALD B. & DEVIN B.
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had a one-bedroom home. And all of her drug tests had come
back negative. Additionally, she purchased “shoes, clothes,
a phone, and [gave] the boys money . . . to assist with
their care.”
The court remarked that it was “impressed with where
[she was] today” and how she “kind of def[ied] odds here.”
The juvenile court ordered a permanency objective of reuni-
fication concurrent with guardianship for Donald. It further
ordered that Candice shall have supervised visitation with
Donald.
(ii) Case Law
In In re Interest of Zanaya W. et al.,16 the father admitted to
the statutory ground for termination and that termination was
in the children’s best interests. The juvenile court relied upon
the State’s factual basis. The father was convicted of posses-
sion with intent to distribute marijuana and sentenced to 3 to 5
years’ imprisonment. While incarcerated, he was convicted of
third degree assault and sentenced to an additional 120 days’
imprisonment. The father had admitted he used marijuana on
a daily basis when the children were in his care, custody, and
control. The caseworker would testify that termination was in
the children’s best interests, “because [the father] was not able
to provide permanency for them.”17
On appeal, the father asserted that the court relied exten-
sively on his incarceration and that thus, the factual basis was
insufficient. We discussed that the factual basis did not rely
solely on incarceration. We reasoned that the juvenile court
relied on the crimes committed, length of incarceration, prior
drug use, length of time the children were in DHHS custody,
and prospective testimony to find that the factual basis sup-
ported termination. We affirmed the termination of the father’s
parental rights.
16
In re Interest of Zanaya W. et al., supra note 10.
17
Id. at 30, 863 N.W.2d at 811.
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IN RE INTEREST OF DONALD B. & DEVIN B.
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In In re Interest of Brooklyn T. & Charlotte T.,18 the mother
challenged the sufficiency of the factual basis to support
her admissions for termination of her parental rights to both
children. The State’s factual basis stated that the older child
was removed from the mother’s home a year prior to the peti-
tion for termination, the mother failed to follow through with
court-ordered services, and she did not rectify her drug use
when her younger child was born. Also, the State recited that
the family permanency specialist would testify that termina-
tion would be in the children’s best interests because of the
mother’s history with DHHS and the services provided but not
utilized. The juvenile court terminated the mother’s parental
rights to both children.
The Court of Appeals there reasoned that the factual basis
was sufficient to support both the statutory ground for termi-
nation and the best interests of the children. In its best inter-
ests analysis, it examined the additional evidence presented
during the hearing. An exhibit contained an affidavit by the
family permanency specialist stating that the mother had over
16 intakes with DHHS, the mother relinquished her parental
rights to another child, and she used methamphetamine while
pregnant with her younger child. The mother made no efforts
to regain custody of the older child. She was discharged
unsuccessfully from family support services, and she did not
participate in court-ordered drug or psychological evaluations.
It reasoned that because of her history with DHHS and her
failure to address the initial concerns that led to the children’s
removal, there was a sufficient factual basis to support the
best interests admission. The Court of Appeals affirmed the
juvenile court’s judgment. But there, the Court of Appeals
was not presented with evidence contradicting the State’s fac-
tual basis.
18
In re Interest of Brooklyn T. & Charlotte T., supra note 11.
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IN RE INTEREST OF DONALD B. & DEVIN B.
Cite as 304 Neb. 239
(iii) Application
Although the State did not have to prove the admissions by
clear and convincing evidence, we must examine whether there
was a sufficient factual basis to support that it was in Devin’s
best interests to terminate Candice’s parental rights. After a
de novo review of the entire record, we conclude that there
was not.
The record shows that Donald and Devin were identical
in their relationship with Candice. In light of the record, the
Court of Appeals’ statement that Candice did not have con-
tact with Devin but did maintain contact with Donald was
not accurate. For 2 years prior to the motion to terminate,
both children did not have contact with Candice. In February
2018, both children began therapy with Candice and continued
regularly until the hearing. Candice provided the children with
money, clothing, and shoes for their care. In the DHHS case
report, it stated that “[f]air progress [was] being made” and
that reunification was supposed to be achieved by December
2018. Unlike In re Interest of Brooklyn T. & Charlotte T.,19 the
additional evidence presented did not support the factual basis.
The record failed to show a contrast in Candice’s relationship
with Donald and Devin to support that Devin’s best interests
favored termination while Donald’s did not.
Further, the record shows Candice’s progress toward reunifi-
cation with both children. In addition to the facts discussed ear-
lier, Candice successfully completed a substance abuse treat-
ment program, she was attending therapy by herself and with
each child, her drug tests were all negative, she had legal and
steady income, and she had suitable housing. We cannot ignore
the substantial progress made by Candice. And neither did the
juvenile court when it remarked on how she “kind of def[ied]
odds here.” Unlike In re Interest of Zanaya W. et al.,20 there
19
Id.
20
In re Interest of Zanaya W. et al., supra note 10.
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is little recent evidence to support a persistent lack of effort
toward reunification by the parent. Candice’s relationships
with both children had progressed enough that the DHHS court
report recommended reunification as the primary objective for
both children. The record does not support the recitation that
there was a “lack of progress being made” by Candice.
The children are so factually indistinguishable that the State
could have interchanged the children’s names and reached the
same result. There was no evidence presented, either before
or after the court terminated Candice’s parental rights, that
showed how or why the children differ in their relationship
with Candice. Nor was there any evidence presented as to why
Candice’s rights to Devin were terminated but as to Donald
they were not.
At oral argument, the State forthrightly explained that due to
Donald’s age, he would have to consent to an adoption, but that
Devin was below the age requiring such consent. This reason
was insufficient to establish that termination of parental rights
was in the younger child’s best interests. Although there are
cases where termination is in the best interests of one sibling
and not another,21 this is not one of them.
Based upon our de novo review of the entire record, we
conclude that the factual basis was insufficient to support that
it was in Devin’s best interests to terminate Candice’s parental
rights. Accordingly, the Court of Appeals erred in affirming
the termination of Candice’s parental rights to Devin.
2. Voluntary R elinquishment
Candice argues that the juvenile court erred in accepting
her admissions as a voluntary relinquishment. The “plea deal”
entered between the parties conditioned the termination of
parental rights to be treated as a voluntary relinquishment. At
oral argument, the State conceded that its representation of
21
See In re Interest of Justin H. et al., 18 Neb. Ct. App. 718, 791 N.W.2d 765
(2010).
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the proceeding as a “relinquishment” would not be binding
on the State in other counties. Nor, perhaps, might it bind a
future county attorney in the same county.
[8] We think that the mixing of terminology in this way is
fraught with danger. As a statutorily created court of limited
and special jurisdiction, a juvenile court has only such author-
ity as has been conferred on it by statute.22 Under the adoption
statutes, a voluntary relinquishment is effective when a parent
executes a written instrument and DHHS or an agency, in writ-
ing, accepts responsibility for the child.23 Under the Nebraska
Juvenile Code, termination of parental rights is determined by
judicial action.24 Although the practical result may be similar,
the mechanisms and effects of those procedures are different
and should be treated so. We discourage the practice of char-
acterizing termination and relinquishment interchangeably. The
juvenile court should be careful to follow the statutory author-
ity conferred upon it and not to confuse the proceedings by
inaccurate or incomplete descriptions.
VI. CONCLUSION
We conclude that the factual basis was insufficient to support
that termination of Candice’s parental rights was in Devin’s
best interests. We reverse the decision of the Court of Appeals
and remand the cause to that court with directions to reverse
the judgment of the juvenile court and remand the cause
to the juvenile court for further proceedings consistent with
this opinion.
R eversed and remanded with directions.
22
In re Interest of Gabriela H., 280 Neb. 284, 785 N.W.2d 843 (2010).
23
See Neb. Rev. Stat. §§ 43-104(2) and 43-106.01 (Reissue 2016).
24
See Neb. Rev. Stat. § 43-293 (Reissue 2016).