In re Interest of Zanaya W. ( 2015 )

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Nebraska A dvance Sheets
291 Nebraska R eports
IN RE INTEREST OF ZANAYA W. ET AL.
Cite as 291 Neb. 20
In re I nterest of
Zanaya W. et al.,
children under18 years of age.
State of Nebraska, appellee and cross-appellee, v.
P’lar’e S., appellee and cross-appellant,
and R eon W., intervenor-appellant.
In re Interest of Jahon S., a child
under 18 years of age.
State of Nebraska, appellee, v.
P’lar’e S., appellant.
___ N.W.2d ___
Filed June 5, 2015. Nos. S-14-550, S-14-564.
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. Parental Rights. Incarceration may be considered along with other
factors in determining whether parental rights can be terminated.
Specifically, it is proper to consider a parent’s inability to perform his or
her parental obligations because of incarceration.
3. Parental Rights: Abandonment. Although incarceration itself may be
involuntary as far as the parent is concerned, the criminal conduct caus-
ing the incarceration is voluntary.
4. Parental Rights. Where a parent is unable or unwilling to rehabilitate
himself or herself within a reasonable time, the best interests of the child
require termination of the parental rights.
5. Constitutional Law: Appeal and Error. Generally, a constitutional
issue not passed upon by the trial court is not appropriate for consider-
ation on appeal.
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6. Appeal and Error. When an issue is raised for the first time in an
appellate court, it will be disregarded inasmuch as a lower court cannot
commit error in resolving an issue never presented and submitted to it
for disposition.
Appeals 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 intervenor-appellant Reon W. in No. S-14-550.
Thomas C. Riley, Douglas County Public Defender, and Zoë
R. Wade for appellee P’lar’e S. in No. S-14-550 and appellant
P’lar’e S. in No. S-14-564.
Donald W. Kleine, Douglas County Attorney, Amy
Schuchman, and Jennifer Chrystal-Clark for appellee State.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Stephan, J.
Reon W. and P’lar’e S. are the biological parents of Zanaya
W., Mileaya S., and Imareon S. The separate juvenile court of
Douglas County terminated their parental rights to the children,
and both filed timely appeals. Reon’s appeal and P’lar’e’s
cross-appeal are before us as case No. S-14-550.
Reon and P’lar’e are also the parents of Jahon S. In sep-
arate proceedings, the juvenile court also terminated their
parental rights to Jahon. P’lar’e’s appeal is before us in case
No. S-14-564. Reon’s appeal is separately docketed as case
No. S-14-1049 and is not the subject of this opinion. We
granted P’lar’e’s petition to bypass and consolidated cases Nos.
S-14-550 and S-14-564 for disposition. We now affirm the
judgment of the juvenile court in each case.
BACKGROUND
General
In March 2011, the State filed a petition alleging Zanaya,
then 2 years old, and Mileaya, then approximately 1 year old,
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came within the meaning of Neb. Rev. Stat. § 43-247(3)(a)
(Reissue 2008) due to the fault or habits of P’lar’e. The chil-
dren were removed from P’lar’e’s custody and placed with
Reon. In July, Reon was allowed to intervene in the juvenile
proceedings as an interested party. Imareon was born in May
2012, and the petition was subsequently amended to include
him as a child within the meaning of § 43-247(3)(a) due to the
fault or habits of P’lar’e. Zanaya, Mileaya, and Imareon were
adjudicated in July 2012 after P’lar’e admitted she had failed
to provide them with safe and stable housing and had failed
to participate in necessary mental health treatment for herself.
Imareon was also placed with Reon.
The original disposition was in September 2012. At that
time, the permanency objective was family preservation with
Reon and a concurrent objective of reunification with P’lar’e.
P’lar’e was ordered to work with her psychiatrist for medi-
cation management and take all medications prescribed, to
submit to random drug and alcohol testing a minimum of
two times per week, to continue to participate in individual
therapy, to participate in an outpatient substance abuse pro-
gram and mental health therapy, and to cooperate with family
support workers and the Department of Health and Human
Services (DHHS). P’lar’e was allowed supervised visitation
with the children.
P’lar’e completed 5 of 10 scheduled visits with the children
in September 2012 and 1 of 6 scheduled visits in October.
Her caseworker reported that during visits, P’lar’e struggled
to engage appropriately with the children, but did show them
verbal and physical affection. P’lar’e missed scheduled drug
tests in May, June, and August. She also missed four sched-
uled appointments with a psychiatrist between March and
September. P’lar’e stopped visitation in November, when she
moved to Detroit, Michigan. At that time, she understood
Reon was going to be given custody of the children and she
was comfortable with that. She testified that she was capable
of parenting at that time but was tired of the process and
decided to just let the children be with Reon. P’lar’e and Reon
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agreed she could have visits with the children, supervised by
him. After P’lar’e moved to Detroit, the permanency objective
changed to family preservation with Reon and DHHS stopped
making efforts to reunify P’lar’e and the children.
In March 2013, Reon was arrested for possessing marijuana
with intent to distribute. In April, a supplemental petition was
filed alleging Zanaya, Mileaya, and Imareon came within
§ 43-247(3)(a) due to the fault or habits of Reon. As relevant to
this case, it was alleged that Reon used and/or possessed con-
trolled substances in the home and that Reon failed to provide
safe housing for the children. Reon admitted these allegations,
and the children were adjudicated and placed in the care and
custody of DHHS.
Meanwhile, P’lar’e returned to Nebraska in February 2013.
In an April 2013 review order, the court allowed her to resume
DHHS-supervised visitation with the children. It also ordered
her to submit to random drug and alcohol testing.
Termination of R eon’s
Parental R ights
On January 21, 2014, the State petitioned to terminate
Reon’s parental rights to Zanaya, Mileaya, and Imareon based
on an allegation that he substantially and continuously or
repeatedly neglected and refused to give them necessary paren-
tal care and protection.1 The petition also alleged that the chil-
dren had been in an out-of-home placement for 15 or more of
the most recent 22 months.2 The petition further alleged that
terminating Reon’s parental rights was in the best interests of
the children.
Reon initially denied the allegations in the petition. At a
May 19, 2014, hearing, however, he informed the court he
wished to admit the allegations that (1) he substantially and
continuously or repeatedly neglected the children and refused
to give them parental care and protection and (2) termination
1
See Neb. Rev. Stat. § 43-292(2) (Cum. Supp. 2014).
2
See § 43-292(7).
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of his parental rights was in the children’s best interests. The
court advised Reon of the rights he would be waiving by mak-
ing the admissions and ascertained that his admissions were
freely and voluntarily given. The court then asked the State to
give a factual basis for the admissions, and it responded:
Your Honor, if called today, Janece Potter[, a family
permanency specialist,] would testify that [the chil-
dren] have been in foster care since April of 2013 when
they were removed from the care of their father due to
his incarceration. The evidence will also show that the
father was convicted of possession with intent to distrib-
ute marijuana.
And the State would offer Exhibit 54, a certified copy
of that conviction. Exhibit 54 would also show that the
father was sentenced to three to five years for his con-
viction of possession with intent to distribute. In addi-
tion, the State offers Exhibit 56, an additional conviction
of the father for an assault that occurred while he was
incarcerated in which he was sentenced an additional
120 days.
If called to the stand, Janece Potter would testify that
it’s in the children’s best interests that their father’s rights
be terminated due to incarceration and the fact that he’s
not able to provide permanency for the children currently,
nor will be — will he be enabled to provide permanency
for them in the upcoming — for at least a year.
The State later added:
[I]f Janece Potter were to testify, she would testify that
while the children were in the father’s care and cus-
tody, which occurred when they were initially removed
[in March 2011] up until April of 2013, the father had
admitted, once incarcerated, to using marijuana on a
daily basis while he had care, custody, and control of
his children.
The record shows that Janece Potter is a representative of the
Nebraska Families Collaborative and was the family perma-
nency specialist for DHHS in the juvenile proceedings.
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IN RE INTEREST OF ZANAYA W. ET AL.
Cite as 291 Neb. 20
The court accepted Reon’s admissions and found the allega-
tions in the petition pertaining to neglect under § 43-292(2)
and the best interests of the children had been proved by clear
and convincing evidence. It then stated on the record that “it is
the agreement of the parties that the Court will make a finding
that this is, in fact, a voluntary termination of parental rights
on the part of the father.” Reon agreed to this statement. The
court then terminated Reon’s parental rights.
Termination of P’lar’e’s
Parental R ights
The State also moved to terminate P’lar’e’s parental rights
to Zanaya, Mileaya, and Imareon on January 21, 2014. The
petition alleged three grounds under § 43-292: subsections (2)
(substantial neglect), (6) (failure to correct conditions lead-
ing to adjudication), and (7) (out-of-home placement for 15
of last 22 months). On February 25, the State also moved to
terminate P’lar’e’s parental rights to Jahon, born in November
2013. The petition alleged that termination of parental rights
as to Jahon was proper under § 43-292(2), because P’lar’e
had substantially and continuously or repeatedly neglected
or refused to give Jahon’s siblings (Zanaya, Mileaya, and
Imareon) necessary parental care and protection. The juvenile
court appointed a guardian ad litem for P’lar’e in the termina-
tion proceedings.
A trial on both petitions was held in May 2014. The State
introduced evidence that the three older children had been in
their current foster home since April 13, 2013, and that Jahon
had been in that home since shortly after his birth. The foster
mother testified that the three older children exhibited negative
changes in their behavior after visits with P’lar’e, including
becoming aggressive, having nightmares, and being “whiny”
and “clingy.”
Potter, the family permanency specialist, also testified. She
testified that in March 2013, P’lar’e reported that she had
“run out” of her psychiatric medication and was not taking
it. P’lar’e had stopped seeing her mental health therapist in
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IN RE INTEREST OF ZANAYA W. ET AL.
Cite as 291 Neb. 20
October 2012, before she moved to Detroit. She resumed
therapy again in June 2013, but refused to release her therapy
records to DHHS. She stopped therapy again in November and
then started with a new therapist in December. By the time of
trial in May 2014, she had been seeing a therapist and drug
counselor for 5 months and was not on psychiatric medica-
tion. She testified at trial that she was not on medication
because she had been pregnant twice while the proceedings
were ongoing.
Beginning in 2012, all of P’lar’e’s visits with the children
were supervised and she consistently demonstrated an inabil-
ity to appropriately interact with and discipline the children.
From September 2012 to February 2014, P’lar’e attended
approximately 75 percent of the scheduled supervised visits
and complied with about 50 percent of the family support serv­
ices offered to her. She also completed only about 50 percent
of the drug tests she was scheduled to take. During this time
period, P’lar’e also failed to maintain stable housing and she
drifted from various shelters to the homes of friends. P’lar’e
lived in Fremont, Lincoln, and Omaha, Nebraska, during this
time period. At the time of trial, she had obtained a voucher for
housing and believed she could provide housing for the chil-
dren. She did not have and never had suitable transportation
for herself or the children. P’lar’e testified that she knew Reon
was selling and using marijuana in the spring of 2013 while he
had custody of the children.
The State did not present any evidence that P’lar’e had
been diagnosed with a mental illness. However, during cross-­
examination of Potter, P’lar’e elicited testimony that she
receives Supplemental Security Income because of her mental
health issues. Additionally, P’lar’e testified that she has been
diagnosed with manic depressive disorder.
After trial, the court terminated P’lar’e’s rights to all the
children. It found clear and convincing evidence that Zanaya,
Mileaya, and Imareon were within the meaning of § 43-292(2),
(6), and (7) and that termination of P’lar’e’s parental rights
was in their best interests. It found clear and convincing
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evidence that Jahon came within the meaning of § 43-292(2)
and that termination of P’lar’e’s parental rights was also in his
best interests. P’lar’e filed timely appeals, and we consolidated
the cases for review.
ASSIGNMENTS OF ERROR
Reon assigns in case No. S-14-550 that the juvenile court
erred in (1) terminating his parental rights without first obtain-
ing a sufficient factual basis to support his admissions to the
allegations in the petition, (2) terminating his parental rights
under § 43-292(2), and (3) terminating his parental rights under
§ 43-292(7).
P’lar’e assigns in both cases Nos. S-14-550 and S-14-564
that she was deprived of a fundamentally fair proceeding
when the State was allowed to “proceed to termination under
§§ 43-292(2), (6), and (7), instead of § 43-292(5), when the
State was fully aware [she] was mentally ill and that her mental
illness affected her capacity to parent.”
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.3
ANALYSIS
R eon
Reon assigns that the juvenile court erred in terminating
his parental rights under § 43-292(7). That subsection allows
termination when the children have been in out-of-home
placement for 15 of the last 22 months, and Reon contends
in his brief that the facts do not support termination on
this ground.
3
In re Interest of Karlie D., 283 Neb. 581, 811 N.W.2d 214 (2012).
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IN RE INTEREST OF ZANAYA W. ET AL.
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But the juvenile court did not terminate Reon’s rights based
on § 43-292(7). It was alleged as a ground for termination
in the petition, but it was dismissed when Reon entered his
admission to the § 43-292(2) allegation. Because § 43-292(7)
was not a ground utilized by the juvenile court, we need not
address this argument on appeal.
Reon also assigns and argues that the State failed to prove
the § 43-292(2) allegation by clear and convincing evidence.
But he admitted this allegation in the petition. In In re Interest
of L.B., A.B., and A.T.,4 a mother admitted the allegations in
the termination petition. We characterized this as a judicial
admission, noting 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 production
of evidence by conceding for the purpose of litigation that the
proposition of fact alleged by the opponent is true.’”5
Because Reon admitted the § 43-292(2) allegation in the
petition to terminate, the State did not have to independently
prove it by clear and convincing evidence. But it was required
to put forth a factual basis for the allegations in the petition,
even though Reon admitted them.6 Reon contends the State
failed to do so, thus making his admissions invalid.
According to § 43-279.01(3), when termination of parental
rights is sought, a court may accept an in-court admission as
to all or any part of the allegations in the petition. Section
43-279.01(3) then specifically states that the “court shall ascer-
tain a factual basis for an admission.” The statute does not
specify precisely what the factual basis must entail.
Here, Reon admitted two allegations: (1) that he substan-
tially and continuously or repeatedly neglected and refused to
give the children necessary parental care and protection and
(2) that termination of his parental rights was in the children’s
4
In re Interest of L.B., A.B., and A.T., 235 Neb. 134, 454 N.W.2d 285
(1990).
5
Id. at 140, 454 N.W.2d at 289.
6
See Neb. Rev. Stat. § 43-279.01(3) (Cum. Supp. 2014).
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best interests. The factual bases to support the allegation
that Reon had substantially and continuously or repeatedly
neglected the children or refused to give them necessary
parental care and protection was that Reon was convicted
of possession with intent to distribute marijuana and that on
September 10, 2013, he was sentenced to 3 to 5 years’ incar-
ceration. Further, while incarcerated, Reon was convicted of
third degree assault and sentenced to an additional 120 days,
the sentence to run consecutively to the previous sentence. In
addition, the factual bases included that Reon had admitted
while he was incarcerated that he used marijuana on a daily
basis while the children were in his care, custody, and control.
The record shows that the children were in his care, custody,
and control from March 2011 to March or April 2013.
[2,3] Reon argues that these factual bases relied extensively
on the fact that he was incarcerated and were thus insufficient.
To support this argument, he emphasizes that we have held
that incarceration alone does not provide a ground for termina-
tion of parental rights.7 While this is true, we have also stated
that incarceration may be considered along with other factors
in determining whether parental rights can be terminated.8
Specifically, it is proper to consider a parent’s inability to per-
form his or her parental obligations because of incarceration.9
And although incarceration itself may be involuntary as far as
the parent is concerned, the criminal conduct causing the incar-
ceration is voluntary.10
Here, the incarceration alone was not the sole factual basis
offered in support of Reon’s admissions. Instead, the State
showed what crimes Reon was incarcerated for and for how
7
See, In re Interest of Ryder J., 283 Neb. 318, 809 N.W.2d 255 (2012); In
re Interest of Kalie W., 258 Neb. 46, 601 N.W.2d 753 (1999); In re Interest
of Josiah T., 17 Neb. Ct. App. 919, 773 N.W.2d 161 (2009).
8
See In re Interest of Kalie W., supra note 7; In re Interest of L.V., 240 Neb.
404, 482 N.W.2d 250 (1992).
9
In re Interest of Ryder J., supra note 7.
10
In re Interest of Kalie W., supra note 7.
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long he was incarcerated. It further showed that he commit-
ted an additional crime while incarcerated, thus extending his
sentence. It also showed that he used marijuana daily while the
children were in his custody. These factual bases were suffi-
cient to support Reon’s admission to the allegation that he had
substantially and continuously or repeatedly refused to give the
children proper parental care.
[4] With respect to the best interests allegation, the factual
basis provided by the State was that the caseworker would
testify that termination was in the children’s best interests
because Reon was not able to provide permanency for them.
This testimony was given on May 19, 2014, and on that date,
the State also informed the court that the children had been
in foster care since April 2013. There was also evidence that
Reon at the time was subject to one prison term of 3 to 5 years
and another prison term of 120 days. Where a parent is unable
or unwilling to rehabilitate himself or herself within a reason-
able time, the best interests of the child require termination
of the parental rights.11 This was a sufficient factual basis for
the admission that termination of Reon’s parental rights was
in the children’s best interests. For these reasons, we find no
error in the order terminating Reon’s parental rights to Zanaya,
Mileaya, and Imareon.
P’lar’e
P’lar’e’s sole assignment of error in both cases Nos.
S-14-550 and S-14-564 is that her due process rights were vio-
lated because the State was “allowed to proceed” to termina-
tion under a ground other than § 43-292(5) when it was aware
she had a mental illness that affected her ability to parent.
Section 43-292(5) allows termination of parental rights when
“[t]he parents are unable to discharge parental responsibilities
because of mental illness or mental deficiency and there are
reasonable grounds to believe that such condition will continue
for a prolonged indeterminate period.”
11
In re Interest of Ryder J., supra note 7.
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This court rejected a similar argument in In re Interest of
J.N.V.,12 a case in which the parental rights of a parent who had
been diagnosed with paranoid schizophrenia and required long-
term hospitalization were terminated on the ground of neglect
pursuant to § 43-292(2). In a divided opinion, the majority con-
cluded that “[w]hile it might have been kinder . . . for the State
to have proceeded under § 43-292(5), it was not required to do
so.”13 A dissenting opinion concluded that it was “fundamen-
tally unfair to tell a mother it is the neglect of her son which
is at issue and then try her for lacking the mental capacity to
carry out her parental responsibilities.”14
[5,6] P’lar’e argues on appeal that we should overrule In re
Interest of J.N.V. and adopt the reasoning of its dissent. But she
did not raise this due process argument to the juvenile court.
Generally, a constitutional issue not passed upon by the trial
court is not appropriate for consideration on appeal.15 When
an issue is raised for the first time in an appellate court, it
will be disregarded inasmuch as a lower court cannot commit
error in resolving an issue never presented and submitted to it
for disposition.16
P’lar’e argues that we can nevertheless reach the issue under
the reasoning of In re Interest of Mainor T. & Estela T.17 In
that case, we held that a parent’s failure to appeal from orders
which preceded the termination of parental rights did not pre-
clude our consideration of issues which could have been raised
in such appeals because there was plain error which permeated
the proceedings and denied fundamental fairness to the parent.
That is not the case here.
12
In re Interest of J.N.V., 224 Neb. 108, 395 N.W.2d 758 (1986).
13
Id. at 112, 395 N.W.2d at 761.
14
Id. at 114, 395 N.W.2d at 762 (Caporale, J., dissenting).
15
Lindner v. Kindig, 285 Neb. 386, 826 N.W.2d 868 (2013).
16
Maycock v. Hoody, 281 Neb. 767, 799 N.W.2d 322 (2011); Ways v.
Shively, 264 Neb. 250, 646 N.W.2d 621 (2002).
17
In re Interest of Mainor T. & Estela T., 267 Neb. 232, 674 N.W.2d 442
(2004).
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P’lar’e does not complain of any procedural irregularities
in the manner in which the termination proceedings were
conducted. She was represented by appointed counsel through-
out the case, and a guardian ad litem was appointed for her,
which is required only when termination is sought under
§ 42-292(5).18 Her sole complaint is that she was deprived of
a fair proceeding because the State was “allowed to proceed
to termination under § 43-292(2) . . . instead of § 43-292(5).”
Given that no one objected to the State’s proceeding under
§ 43-292(2) and that it was permitted to do so under the exist-
ing precedent of In re Interest of J.N.V., the fact the juvenile
court did not sua sponte direct the State to proceed under
§ 43-292(5) instead can hardly be characterized as plain error,
which we have defined as error plainly evident from the record
and of such a nature that to leave it uncorrected would result
in damage to the integrity, reputation, or fairness of the judi-
cial process.19
We therefore conclude that P’lar’e’s sole assigned error is
not preserved for our review.
CONCLUSION
There was a sufficient factual basis in the record to support
Reon’s admissions to the allegations in the petition to termi-
nate his parental rights to Zanaya, Mileaya, and Imareon. We
affirm the decision of the juvenile court as to Reon in case
No. S-14-550.
P’lar’e’s argument that the State violated her due process
rights in cases Nos. S-14-550 and S-14-564 by failing to base
termination on § 43-292(5) was not preserved for appeal. We
affirm the decisions of the juvenile court in both cases.
Affirmed.
18
See, Neb. Rev. Stat. § 43-292.01 (Reissue 2008); Wayne G. v. Jacqueline
W., 288 Neb. 262, 847 N.W.2d 85 (2014).
19
In re Interest of Jamyia M., 281 Neb. 964, 800 N.W.2d 259 (2011); In re
Interest of Markice M., 275 Neb. 908, 750 N.W.2d 345 (2008).