In re Interest of Joseph S. ( 2014 )

Nebraska Advance Sheets
IN RE INTEREST OF JOSEPH S. ET AL. 463
Cite as 288 Neb. 463on appeal are focused solely on the statute of limitations ques-
tion. Aside from asserting that the Workers’ Compensation
Court should not have considered Lenz’ petition, Central does
not challenge the benefits awarded. An alleged error must be
both specifically assigned and specifically argued in the brief
of the party asserting the error to be considered by an appellate
court. Jeremiah J. v. Dakota D., 287 Neb. 617, 843 N.W.2d 820(2014). Therefore, we do not examine the award of benefits
on appeal.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
Workers’ Compensation Court.
Affirmed.
In re I nterest of Joseph S. et al., children under
18 years of age.
State of Nebraska, appellant, v. K erri S., appellee.
___ N.W.2d ___
Filed July 3, 2014. No. S-13-339.
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. Constitutional Law: Due Process: Juvenile Courts: Parental Rights: Appeal
and Error. The determination of whether the procedures afforded an individual
comport with constitutional requirements for procedural due process presents a
question of law. In reviewing questions of law, an appellate court in termination
of parental rights proceedings reaches a conclusion independent of the lower
court’s ruling.
Petition for further review from the Court of Appeals, Irwin,
Pirtle, and Bishop, Judges, on appeal thereto from the Separate
Juvenile Court of Douglas County, Elizabeth Crnkovich,
Judge. Judgment of Court of Appeals reversed, and cause
remanded for further proceedings.
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464 288 NEBRASKA REPORTS
Donald W. Kleine, Douglas County Attorney, and Jennifer
Chrystal-Clark for appellant.
Thomas C. Riley, Douglas County Public Defender, Christine
D. Kellogg, and Zoё Wade for appellee.
Maureen K. Monahan, guardian ad litem.
Robert McEwen and Sarah Helvey, for amicus curiae
Nebraska Appleseed Center for Law in the Public Interest.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Heavican, C.J.
INTRODUCTION
The State of Nebraska appealed an order of the sepa-
rate juvenile court of Douglas County finding the State had
failed to present a prima facie case that the three minor chil-
dren of Kerri S. were within the meaning of Neb. Rev. Stat.
§ 43-292(2) (Cum. Supp. 2012) because Kerri had substantially
and continuously or repeatedly neglected and refused to give
necessary parental care and protection to the children, and
determining that it was not in the best interests of the children
to terminate Kerri’s parental rights. The Nebraska Court of
Appeals held that Kerri’s noncompliance with voluntary State-
offered services may not serve as a basis to terminate parental
rights.1 We granted the State’s petition for further review. Our
opinion discusses when procedural due process is triggered in
parental rights termination cases. Ultimately, we reverse the
decision of the Court of Appeals and remand the cause for
further proceedings.
BACKGROUND
Kerri is the biological mother of Joseph S., born in January
2000; William S., born in November 2005; and Steven S., born
in December 2006.
1
See In re Interest of Joseph S. et al., 21 Neb. App. 706, 842 N.W.2d 209(2014).
Nebraska Advance Sheets
IN RE INTEREST OF JOSEPH S. ET AL. 465
Cite as 288 Neb. 463In March 2009, Kerri and her children came to the attention
of the Department of Health and Human Services (DHHS) due
to concerns about Kerri’s drug use and improper supervision of
the children. Melissa Misegadis, a family permanency super-
visor with Nebraska Families Collaborative (NFC), testified
that she had been involved with the family since July 2010.
Misegadis testified that the children had been returned to
Kerri’s care in February 2010, but that they returned to foster
care shortly after Misegadis became involved in the case. The
children remained out of Kerri’s care for exactly 1 year. Kerri
received drug testing and mental health treatment, among other
services. In the fall of 2010, Kerri tested positive for cocaine.
Misegadis testified that Kerri did not always consistently par-
ticipate in services offered by DHHS, but that ultimately, Kerri
completed a court-ordered and court-monitored plan. The chil-
dren were returned to Kerri’s care, and that case was closed in
November 2011. The case had been open for approximately
32 months.
In January 2012, DHHS received reports that Kerri had left
the children with a relative and was unable to be reached. Calls
to the DHHS hotline again expressed concerns that Kerri was
not properly supervising the children and might be using drugs.
Kerri indicated a willingness to work with DHHS on a volun-
tary basis, and the case was transferred to NFC. Kerri began
voluntary services which included drug testing and temporary
placement of the children into foster care for a period of 180
days. During the 180-day period, Kerri was not consistent in
completing the requested drug testing, participating in weekly
visitation with the children, or attending therapy. Kerri tested
positive for amphetamines or methamphetamine three times
and admitted to using marijuana one time.
Another family permanency specialist with NFC testified
that she conducted a drop-in visit to Kerri’s home 9 days
before the children were to return home. The visit revealed the
home was in disarray, with graffiti on the walls, empty alcohol
bottles around the home, and numerous unmade beds without
sheets. During the visit, there were approximately five adults in
the home who appeared to be residing there, but whom Kerri
described as friends there to help her get the home ready for
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466 288 NEBRASKA REPORTS
the children’s return. NFC received information from relatives
of Kerri, as well as information from law enforcement, which
raised additional concerns about Kerri’s ability to care for the
children safely. NFC made the decision to request that DHHS
be granted temporary custody of the children.
On August 9, 2012, the State filed a motion for temporary
custody. The juvenile court granted DHHS temporary custody
of the children the same day. After August, Kerri became
increasingly difficult to locate and her participation in volun-
tary services was sporadic. Kerri began living with a friend and
was unable to attend regular visitation with the children.
In December 2012, the State filed an amended petition.
Counts I and II of the amended petition alleged that the chil-
dren were at risk of harm under Neb. Rev. Stat. § 43-247(3)
(Reissue 2008) due to Kerri’s drug use, failure to participate
in voluntary services, failure to provide safe housing, and fail-
ure to provide proper parental care. Counts III and IV alleged
that Kerri had substantially and continuously or repeatedly
neglected and refused to give the children necessary parental
care and protection and sought termination of Kerri’s parental
rights under § 43-292(2).
The juvenile court held a hearing on March 13, 2013. After
the State presented evidence, Kerri moved to dismiss. The
court denied the motion as to counts I and II, finding the State
had proved by a preponderance of the evidence that the chil-
dren were within the meaning of § 43-247(3) and therefore
within the jurisdiction of the court. However, the court granted
the motion to dismiss as to counts III and IV, finding the State
had failed to present a prima facie case that termination of
Kerri’s parental rights was appropriate under § 43-292(2). The
court ordered the children to remain in the temporary custody
of DHHS.
The State appealed, arguing it had proved by clear and
convincing evidence that Kerri’s parental rights should be
terminated pursuant to § 43-292(2) because Kerri had substan-
tially and continuously neglected and refused to provide neces-
sary parental care and that termination was in the children’s
best interests.
Nebraska Advance Sheets
IN RE INTEREST OF JOSEPH S. ET AL. 467
Cite as 288 Neb. 463On appeal, the Court of Appeals found that Kerri had been
denied due process of law and therefore held that Kerri’s
noncompliance during the voluntary phase of the case was
not acceptable evidence to be used to satisfy the require-
ments of § 43-292(2).2 We granted the State’s petition for
further review.
ASSIGNMENT OF ERROR
The State argues that the Court of Appeals erred in finding
that the State failed to present clear and convincing evidence
that termination of the parental rights of Kerri was appropriate
and in the best interests of her minor children.
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
[2] The determination of whether the procedures afforded an
individual comport with constitutional requirements for pro-
cedural due process presents a question of law. In reviewing
questions of law, an appellate court in termination of parental
rights proceedings reaches a conclusion independent of the
lower court’s ruling.4
ANALYSIS
In its petition for further review, the State maintains that
it presented sufficient evidence to the juvenile court to prove
by clear and convincing evidence that termination of Kerri’s
parental rights was appropriate and in the children’s best inter-
ests. The Court of Appeals determined that Kerri was denied
due process of law, and therefore held that evidence of Kerri’s
2
Id.
3
In re Interest of Karlie D., 283 Neb. 581, 811 N.W.2d 214 (2012).
4
In re Interest of Davonest D. et al., 19 Neb. App. 543, 809 N.W.2d 819(2012).
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468 288 NEBRASKA REPORTS
noncompliance with voluntary services could not be used to
satisfy the State’s burden of proof.
We have repeatedly held that “procedural due process is
applicable to a proceeding for termination of parental rights.”5
However, we have never stated precisely what due process is
required in a termination proceeding, instead noting that due
process is “necessarily and inherently flexible.”6
In In re Interest of L.V.,7 we held that due process in
a termination of parental rights proceeding requires, at a
minimum,
notice to the person whose right is affected by a proceed-
ing, that is, timely notice reasonably calculated to inform
the person concerning the subject and issues involved
in the proceeding; a reasonable opportunity to refute
or defend against a charge or accusation; a reasonable
opportunity to confront and cross-examine adverse wit-
nesses and present evidence on the charge or accusation;
representation by counsel, when such representation is
required by constitution or statute; and a hearing before
an impartial decisionmaker.
In In re Interest of Kantril P. & Chenelle P.,8 we noted
that the requirements set forth in In re Interest of L.V. were
not exclusive.
The record in this case shows that from the time the petition
to adjudicate the children was filed on August 9, 2012, Kerri
was afforded adequate procedural due process. The juvenile
court ordered the children placed in the temporary custody
of DHHS on August 9. The record shows that on August 22,
Kerri’s counsel appeared in juvenile court for a detention hear-
ing, which was continued. A guardian ad litem for the children
had also been appointed by this time. At a detention hearing
September 19, Kerri was informed of her rights pursuant to
Neb. Rev. Stat. § 43-279.01 (Reissue 2008). The State sought
5
In re Interest of L.V., 240 Neb. 404, 412, 482 N.W.2d 250, 256 (1992).
6
Id. at 413, 482 N.W.2d at 257.
7
Id. at 413-14, 482 N.W.2d at 257.
8
In re Interest of Kantril P. & Chenelle P., 257 Neb. 450, 598 N.W.2d 729(1999).
Nebraska Advance Sheets
IN RE INTEREST OF JOSEPH S. ET AL. 469
Cite as 288 Neb. 463continued custody of the children, and Kerri did not resist
the State’s request. A case settlement conference was held on
October 16. The juvenile court set a date for an adjudication
hearing and ordered mutual and reciprocal discovery.
The amended petition, seeking termination of Kerri’s paren-
tal rights, was filed on December 19, 2012. Kerri’s attorney
was served with the petition as well as a copy of the State’s
motion for service by publication. The court allowed service
by publication and indicated it would hear the amended peti-
tion on March 13, 2013. Kerri filed a motion to strike the
amended petition, alleging that it did not provide her with
adequate time to prepare defenses to the additional allega-
tions. After a hearing, the motion was denied. Kerri then filed
a motion to bifurcate, which was also denied. The denial of
these motions was not raised on appeal. Kerri was present,
with counsel, at the adjudication hearing. She was permitted
to cross-examine the State’s witnesses and present evidence.
Nothing in the record indicates that she was denied an impar-
tial decisionmaker.
The record demonstrates that Kerri was afforded all of the
due process requirements set forth in In re Interest of L.V.
However, the guardian ad litem and amicus curiae cite federal
case law and suggest that Kerri was entitled to additional pro-
cedural due process in January 2012, when the State initiated
Kerri’s participation in voluntary services. Although we agree
with Kerri that use of coercive tactics by the State could trigger
due process requirements prior to the formal filing of a petition
in court, we find no due process violation in this case.
In Croft v. Westmoreland County Children and Youth,9 the
Third Circuit found a violation of a father’s substantive and
procedural due process rights where a caseworker gave the
father an ultimatum: leave his home and daughter for the
duration of the county’s investigation into sexual abuse, or
the caseworker would take the child physically from the home
that night and place her in foster care. In finding that the ulti-
matum had violated the father’s rights, the court emphasized
9
Croft v. Westmoreland County Children and Youth, 103 F.3d 1123 (3d Cir.
1997).
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470 288 NEBRASKA REPORTS
that the caseworker lacked objectively reasonable grounds
for believing any abuse had occurred. Similarly, in Starkey
v. York County,10 a Third Circuit district court found a proce-
dural due process violation where, after bringing their son to
a hospital with a head injury, the parents were not informed of
their right to an attorney or a hearing when given an ultima-
tum: leave their home and not have unsupervised contact with
their children during an abuse investigation, or the county
would seek an emergency court order and take custody of
the children.
Croft and Starkey are distinguishable from the case at bar.
There is no evidence in the record that Kerri was given an
ultimatum when the State offered voluntary services in January
2012. In other words, the record does not show that the coer-
cive tactics used by state officials in Croft and Starkey are
present in this case. Kerri has not argued that her compliance
was not voluntary, and we will not make such an assumption.
Additionally, Kerri has never argued that the State lacked rea-
sonable grounds for believing she was unable to properly care
for the children in January 2012, and the record does not sup-
port such a finding.
In Starkey, the court rejected the holding of another case,
Dupuy v. Samuels,11 in which the Seventh Circuit found no due
process violation where the parents had their children removed
from the home without first being afforded a hearing. While
the Seventh Circuit acknowledged that there is some coercive
nature to any threat of formal removal proceedings, it found
this to be insufficient to invalidate the parents’ consent, noting
the situation was similar to a plaintiff’s threatening to proceed
to trial in order to induce a defendant to settle a case. The Sixth
Circuit explicitly adopted the reasoning of Dupuy in Smith v.
Williams-Ash.12 However, the Sixth Circuit distinguished that
case, involving parents who voluntarily consented to have
their children removed from their home due to unsanitary
10
Starkey v. York County, No. 1:11-cv-00981, 2012 WL 9509712 (M.D.
Penn. 2012) (memorandum opinion).
11
Dupuy v. Samuels, 465 F.3d 757 (7th Cir. 2006).
12
Smith v. Williams-Ash, 520 F.3d 596 (6th Cir. 2008).
Nebraska Advance Sheets
IN RE INTEREST OF JOSEPH S. ET AL. 471
Cite as 288 Neb. 463conditions, from Dupuy because the court found there were
material questions of fact involving whether the social worker
improperly threatened that the parents would go to jail if they
withdrew from the voluntary plan.13 We find Dupuy and Smith
persuasive and conclude that there is no evidence in this record
demonstrating that Kerri was coerced into accepting or con-
tinuing with voluntary services through NFC.
We have said that “‘there is no requirement that the juvenile
court must institute a plan for rehabilitation of a parent.’”14
There was no such plan here, and the State did not seek to
terminate Kerri’s parental rights based on her failure to com-
ply with a court-ordered plan. Instead, the State sought to
terminate based on evidence that Kerri had substantially and
continuously or repeatedly neglected and refused to give nec-
essary parental care and protection. Thus, evidence of Kerri’s
noncompliance with voluntary State-offered services, as well
as evidence from the prior case with DHHS, closed less than
3 months before DHHS again received concerning information
and Kerri began voluntary services with NFC, was relevant to
the State’s case.
We find that the State made at least a prima facie case that
the requirements of § 43-292(2) were met due to a 4-year his-
tory of drug use and improper supervision. On remand, the
juvenile court should consider all of the evidence presented
to determine whether the State has demonstrated by clear and
convincing evidence that termination of Kerri’s parental rights
is appropriate and in the best interests of the children.
CONCLUSION
For the foregoing reasons, the decision of the Court of
Appeals is reversed and this case is remanded to the juvenile
court for further proceedings consistent with this opinion.
R eversed and remanded for
further proceedings.
13
Id. (Gilman, J., dissenting).
14
In re Interest of Joshua M. et al., 251 Neb. 614, 632, 558 N.W.2d 548, 561
(1997) (quoting In re Interest of C.D.C., 235 Neb. 496, 455 N.W.2d 801(1990)).