In re Interest of Gabriella H. ( 2014 )

Nebraska Advance Sheets
IN RE INTEREST OF GABRIELLA H. 323
Cite as 289 Neb. 323
determining whether an evidentiary hearing is warranted,
which are set forth above. As we have noted, Wetherell has not
alleged facts sufficient to entitle her to an evidentiary hearing
on her postconviction claim and the records and files show that
she is entitled to no relief. Wetherell has raised no justiciable
issue of law or fact, and therefore, the district court did not
abuse its discretion when it did not appoint counsel.
CONCLUSION
The relief afforded in Miller and resulting resentencing
under § 28-105.02 apply to persons who were under the age of
18 at the time of their crimes and do not apply to Wetherell,
because she was 18 years old at the time of her offense. Upon
our de novo review, we determine that in her postconvic-
tion motion, Wetherell has failed to assert any facts which, if
proved, constitute an infringement of her constitutional rights,
and the records and files show she is entitled to no relief.
Therefore, the district court did not err when it denied her post-
conviction motion without an evidentiary hearing and without
appointing counsel.
Affirmed.
In re I nterest of
Gabriella H.,
18 years of age.
a child under
State of Nebraska, appellee, v. Ricardo R., appellant.
___ N.W.2d ___
Filed October 24, 2014. No. S-13-900.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases
de novo on the record and reaches its conclusions independently of the juvenile
court’s findings.
2. Parental Rights: Abandonment: Words and Phrases. For purposes of Neb.
Rev. Stat. § 43-292(1) (Cum. Supp. 2012), “abandonment” is a parent’s intention-
ally withholding from a child, without just cause or excuse, the parent’s presence,
care, love, protection, maintenance, and the opportunity for the display of paren-
tal affection for the child.
3. Parent and Child. “Just cause or excuse” for a parent’s failure to maintain a
relationship with a minor child has generally been confined to circumstances that
are, at least in part, beyond the control of the parent.
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4. Parental Rights: Abandonment: Intent: Proof. Whether a parent has aban-
doned a child within the meaning of Neb. Rev. Stat. § 43-292(1) (Cum. Supp.
2012) is a question of fact and depends upon parental intent, which may be deter-
mined by circumstantial evidence.
5. Parental Rights: Abandonment: Proof. To prove abandonment in determining
whether parental rights should be terminated, the evidence must clearly and con-
vincingly show that the parent has acted toward the child in a manner evidencing
a settled purpose to be rid of all parental obligations and to forgo all parental
rights, together with a complete repudiation of parenthood and an abandonment
of parental rights and responsibilities.
6. Parental Rights: Abandonment: Time. A parent’s abandonment of his or her
child for 6 months or more immediately prior to the filing of a petition to termi-
nate parental rights is a ground for termination of such rights.
7. ____: ____: ____. The 6-month statutory period for determining abandonment
need not be considered in a vacuum.
8. Parental Rights: Abandonment: Intent. One may consider the evidence of a
parent’s conduct, either before or after the statutory period, for this evidence is
relevant to a determination of whether the purpose and intent of that parent was
to abandon his or her child or children.
9. Parent and Child. Parental obligation requires a continuing interest in the child
and a genuine effort to maintain communication and association with that child.
10. Parental Rights. Incarceration does not insulate an inmate from the termination
of his or her parental rights if the record contains the clear and convincing evi-
dence that would support the termination of the rights of any other parent.
11. Parental Rights: Parent and Child. Incarceration does not excuse a parent’s
obligation to provide the child with a continuing relationship.
12. Parental Rights: Parent and Child: Abandonment. The parental obligation
requires continuing interest in the child and a genuine effort to maintain com-
munication and association with that child. Abandonment is not an ambulatory
thing the legal effects of which a parent may dissipate at will by token efforts at
reclaiming a discarded child.
13. Courts: Appeal and Error. Upon reversing a decision of the Nebraska Court
of Appeals, the Nebraska Supreme Court may consider, as it deems appropriate,
some or all of the assignments of error the Court of Appeals did not reach.
Petition for further review from the Court of Appeals, Irwin,
Riedmann, and Bishop, Judges, on appeal thereto from the
County Court for Colfax County, Patrick R. McDermott,
Judge. Judgment of Court of Appeals reversed, and cause
remanded with direction.
Jerod L. Trouba, of Knoepfle & Trouba, P.C., L.L.O., for
appellant.
Leslie J. Buhl, Deputy Colfax County Attorney, for
appellee.
Nebraska Advance Sheets
IN RE INTEREST OF GABRIELLA H. 325
Cite as 289 Neb. 323
Jacqueline M. Tessendorf, of Tessendorf & Tessendorf, P.C.,
guardian ad litem.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Cassel, J.
INTRODUCTION
The juvenile court terminated a father’s parental rights based
on abandonment of the child. The Nebraska Court of Appeals
reversed that decision due to the father’s lack of absolute cer-
tainty concerning paternity and his incarceration while await-
ing trial.1 We granted the State’s petition for further review.
Because the father was initially involved in the child’s life
but then demonstrated no interest in the child or in exercising
parental responsibilities, we conclude that clear and convinc-
ing evidence supports the finding of abandonment. We reverse
the decision of the Court of Appeals and remand the cause
with direction.
BACKGROUND
Birth and Custody of Gabriella H.
In November 2011, Dorothy G. gave birth to Gabriella H.
The birth certificate did not identify her father, and Ricardo
R. was not present for the birth. Gabriella was immediately
taken into custody by the Nebraska Department of Health
and Human Services (DHHS) due to Dorothy’s use of ille-
gal drugs.
Ricardo’s Initial Involvement
Dorothy identified Ricardo as Gabriella’s potential biologi-
cal father, and Gabriella’s caseworker approved Ricardo to be
present with Dorothy during visitation with Gabriella. Dorothy
referred to Ricardo as “the dad” when he attended visitation.
According to visitation notes, Ricardo was present during visits
on December 17, 2011, and January 12 and 13 and February
2, 2012.
1
See In re Interest of Gabriella H., 22 Neb. Ct. App. 70, 847 N.W.2d 103
(2014).
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Some of the visitation notes discuss Ricardo’s interaction
with Gabriella. The January 12, 2012, visitation note stated
that Ricardo attended the visit for an hour, during which time
he played with Gabriella and fed her. The January 13 visita-
tion note reflected that Ricardo was present for 45 minutes
and that he held Gabriella and fed her from a bottle. The
February 2 note stated in part: “A male stopped by toward the
last hour of the visit whom Dorothy identified as Gabriella’s
father, Ricardo. . . . Ricardo said Gabriella needed a diaper
change. Dorothy told him to change it, but he refused, so
she did it.”
P rocedural History
Shortly after Gabriella’s birth, the State filed a petition to
adjudicate her due to the fault or habits of Dorothy. The petition
listed Gabriella’s father as “[u]nknown.” During a December 6,
2011, prehearing conference, Dorothy identified Ricardo as a
possible father and the court ordered DHHS to determine pater-
nity. The court subsequently adjudicated Gabriella.
DNA test results issued on November 12, 2012, established
a 99.997-percent probability that Ricardo was Gabriella’s bio-
logical father. On November 20, the court recognized Ricardo
as Gabriella’s father and appointed counsel to represent him.
On May 3, 2013, the State filed a supplemental petition to
adjudicate Gabriella and to terminate Ricardo’s parental rights,
alleging that Ricardo had abandoned Gabriella and that termi-
nation was in Gabriella’s best interests. An amended supple-
mental petition made no changes to the allegations against
Ricardo but added allegations against Dorothy’s husband, who
was Gabriella’s legal father. Ricardo denied the allegations of
the amended supplemental petition.
Termination Hearing
On July 30, 2013, the juvenile court held a termination
hearing. Ricardo appeared, but he did not testify. Dorothy testi-
fied that when she discovered she was pregnant, she informed
Ricardo he was potentially the father and he responded that “he
would be there.” She testified that she also informed Ricardo
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Cite as 289 Neb. 323
there was a possibility he was not the father, but that she “was
always more sure he was the father.”
The caseworker testified that from the beginning of
Gabriella’s case until the time of genetic testing, she attempted
to call Ricardo on a monthly basis, using telephone num-
bers provided by Dorothy. The caseworker left messages for
Ricardo, but he never returned the calls. To the caseworker’s
knowledge, Ricardo last saw Gabriella in February 2012.
Ricardo was arrested on a criminal charge in late July 2012,
and he remained incarcerated while awaiting trial through-
out the pendency of this case. Upon receiving the results of
genetic testing, Gabriella’s caseworker sent a letter to Ricardo
at the detention facility informing him that he was Gabriella’s
biological father and that “if he wanted to make contact
with [the caseworker] he should.” She testified that Ricardo
did not try to communicate with her. Ricardo did not try to
arrange visitation, nor did his attorney or anyone else act-
ing on Ricardo’s behalf. He never sent money, mail, or gifts
for Gabriella. The caseworker testified that Ricardo never
inquired about Gabriella and that Gabriella “does not know
who Ricardo . . . is.”
Juvenile Court’s Decision
The juvenile court entered an order terminating Ricardo’s
parental rights to Gabriella. The court observed that even
after it appointed counsel for Ricardo, there was no evidence
that Ricardo, either directly or through his attorney, made any
request for visitation. The court reasoned:
[A] parent must do something more than just enter a
denial to a petition to terminate. This father knew where
the child was, knew he was the father, had counsel, and
knew how to reach [DHHS’] caseworkers clearly since
November 20, 2012. Even being incarcerated he could
have undertaken some action consistent with evidencing
his intent to be a part of his child’s life. He did nothing.
The court found clear and convincing evidence that Ricardo
abandoned Gabriella and that termination of Ricardo’s parental
rights was in her best interests. Ricardo appealed.
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Court of Appeals’ Decision
The Court of Appeals reversed the judgment of the juvenile
court. The Court of Appeals recognized that the record clearly
showed that Ricardo had no contact with Gabriella during the
statutory 6-month period and that there was “a complete aban-
donment of all parental rights and responsibilities.”2 But the
Court of Appeals concluded that the evidence was insufficient
as a matter of law to establish that Ricardo intentionally aban-
doned Gabriella, because he did not know he was her father
until November 2012. The Court of Appeals further found that
“even if Ricardo had known that he was Gabriella’s father for
the entire 6-month period, his incarceration was a circumstance
out of his control which impeded his ability to parent Gabriella
and, thus, precludes a finding of intentional abandonment.”3
We granted the State’s petition for further review.
ASSIGNMENT OF ERROR
The State assigns, restated, that the Court of Appeals erred
in reversing the juvenile court’s finding of abandonment.
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.4
ANALYSIS
Abandonment
[2-5] The law governing abandonment is well settled. For
purposes of Neb. Rev. Stat. § 43-292(1) (Cum. Supp. 2012),
“abandonment” is a parent’s intentionally withholding from a
child, without just cause or excuse, the parent’s presence, care,
love, protection, maintenance, and the opportunity for the dis-
play of parental affection for the child.5 “Just cause or excuse”
2
Id. at 77, 847 N.W.2d at 109.
3
Id. at 78, 847 N.W.2d at 110.
4
In re Interest of Justine J. & Sylissa J., 288 Neb. 607, 849 N.W.2d 509
(2014).
5
Id.
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for a parent’s failure to maintain a relationship with a minor
child has generally been confined to circumstances that are, at
least in part, beyond the control of the parent.6 Whether a par-
ent has abandoned a child within the meaning of § 43-292(1)
is a question of fact and depends upon parental intent, which
may be determined by circumstantial evidence.7 To prove
abandonment in determining whether parental rights should be
terminated, the evidence must clearly and convincingly show
that the parent has acted toward the child in a manner evidenc-
ing a settled purpose to be rid of all parental obligations and
to forgo all parental rights, together with a complete repu-
diation of parenthood and an abandonment of parental rights
and responsibilities.8
[6-8] A parent’s abandonment of his or her child for 6
months or more immediately prior to the filing of a peti-
tion to terminate parental rights is a ground for termination
of such rights.9 The relevant 6-month period in this case ran
from November 3, 2012, to May 3, 2013. In the context of
adoption, we have stated that the 6-month statutory period
for determining abandonment need not be considered in a
vac­uum.10 “‘One may consider the evidence of a parent’s con-
duct, either before or after the statutory period, for this evi-
dence is relevant to a determination of whether the purpose
and intent of that parent was to abandon his [or her] child or
children.’”11 We see no reason why the same rule should not
apply in a termination of parental rights case, and thus, we
take into consideration Ricardo’s conduct before and after the
statutory period.
The Court of Appeals determined that the State failed to
prove by clear and convincing evidence that Ricardo intended
to abandon Gabriella. The Court of Appeals based that
6
In re Interest of Chance J., 279 Neb. 81, 776 N.W.2d 519 (2009).
7
Kenneth C. v. Lacie H., 286 Neb. 799, 839 N.W.2d 305 (2013).
8
Id.
9
See § 43-292(1).
10
See In re Adoption of David C., 280 Neb. 719, 790 N.W.2d 205 (2010).
11
Id. at 726, 790 N.W.2d at 211.
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determination on uncertainty regarding Ricardo’s paternity
prior to receipt of the genetic testing results and on Ricardo’s
pretrial incarceration. We will address these reasons in turn.
The Court of Appeals focused on when Ricardo had abso-
lute certainty of his paternity. It reasoned that the evidence
did not establish that Ricardo intended to abandon Gabriella,
because the genetic testing results were not known until
November 2012. But there was no evidence that Ricardo
ever believed himself not to be the father. When Dorothy
told Ricardo that she was pregnant, he said he would “be
there.” Dorothy also told Ricardo of her involvement with
another man at the time Gabriella was conceived. But Ricardo
attended visitations with Gabriella, holding himself out as her
father. Such action is not consistent with a belief that he was
not the father.
[9] The evidence demonstrates that Ricardo abandoned
Gabriella after initially being involved in her life. Visitation
notes reflected that he attended visitations with Gabriella on
December 17, 2011, and January 12 and 13 and February 2,
2012. He played with Gabriella, held her, and fed her. But
then Ricardo ceased involvement in Gabriella’s life and never
did anything further to demonstrate an interest in his child.
Gabriella was 20 months old at the time of the termination
hearing, but Ricardo last visited with her when she was less
than 3 months old. He never sent money for her support, nor
had he sent her a card or a gift. Parental obligation requires a
continuing interest in the child and a genuine effort to main-
tain communication and association with that child.12 There
is no evidence that Ricardo ever called anyone to speak to or
inquire about Gabriella since last seeing her on February 2.
He denied the allegations of the petition seeking to terminate
his parental rights but otherwise has demonstrated no inter-
est in Gabriella. In Kenneth C. v. Lacie H.,13 the father’s only
direct contact with a child he did not dispute was his occurred
during the 2 months immediately after birth. We stated that
the father’s “sporadic, insubstantial efforts to establish a
12
Kenneth C. v. Lacie H., supra note 7.
13
Id.
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relationship with his son, coupled with his complete failure to
provide financial support, constitute clear and convincing evi-
dence of abandonment.”14 The evidence in this case supports
the same conclusion.
The lack of evidence as to any belief on Ricardo’s part that
he was not Gabriella’s father distinguishes this case from the
situations in In re Interest of Chance J.15 and In re Interest of
Dylan Z.16
In In re Interest of Chance J., we reversed the judgment of
the Court of Appeals, which found no abandonment based on
the husband’s lack of actual knowledge that he was the child’s
father. In that case, a married couple separated due in part to
the wife’s prostituting herself. Less than a year later, the wife
gave birth to a baby with white skin, blue eyes, and red hair.
Because the husband was African-American, he did not believe
he was the child’s father. The State later filed a petition to ter-
minate the husband’s parental rights based partly on abandon-
ment, and genetic testing subsequently established his paternity
of the child. The juvenile court terminated the husband’s paren-
tal rights due in part to abandonment, but the Court of Appeals
reversed. The Court of Appeals concluded that because the
husband did not have actual knowledge that the child was his
until genetic testing was completed, the father could not have
intentionally abandoned the child. But we reversed the judg-
ment of the Court of Appeals. We stated that “paternal uncer-
tainty based on physical appearance of a child or suspicions
of infidelity is not just cause or excuse for abandoning a child
born into wedlock, especially when there are ample means to
verify one’s paternity.”17
In In re Interest of Dylan Z.,18 the Court of Appeals
reversed a finding of abandonment based on the father’s lack
of knowledge that he was the child’s father. In that case,
14
Id. at 808, 839 N.W.2d at 312.
15
In re Interest of Chance J., supra note 6.
16
In re Interest of Dylan Z., 13 Neb. Ct. App. 586, 697 N.W.2d 707 (2005).
17
In re Interest of Chance J., supra note 6, 279 Neb. at 91, 776 N.W.2d at
527.
18
In re Interest of Dylan Z., supra note 16.
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Roy T. and the child’s mother were no longer together when
the child was born and Roy was aware that the mother was
involved with another man approximately 9 or 10 months
prior to the child’s birth. After learning of the birth from a
newspaper, Roy called a relative of the child’s mother and was
specifically told that he was not the child’s father. When Roy
was served with the supplemental petition to terminate his
parental rights, he immediately contacted the DHHS worker
and requested visitation. The juvenile court determined that
Roy abandoned the child, but the Court of Appeals reversed.
The Court of Appeals stated that Roy’s lack of contact with
the child was directly attributable to his lack of knowledge
that he was the child’s father and that his failure to connect
with the child during the relevant time period was due to just
cause and excuse.
In comparison to those cases, Ricardo has no justification
for his abandonment. There is no evidence of any significant
differences in physical characteristics between Gabriella and
Ricardo. Nor is there evidence that Ricardo was ever affirma-
tively told by anyone that he was not Gabriella’s father. And
unlike the circumstances in those cases, Ricardo initially inter-
acted with the child and held himself out as her father before
disappearing from her life.
Further, the Court of Appeals minimized Ricardo’s inac-
tion once his paternity was confirmed. He knew in November
2012 that genetic testing showed him to be Gabriella’s bio-
logical father. Yet, he did nothing to demonstrate an interest
in Gabriella other than to deny the allegations of the supple-
mental petition. And even though the juvenile court appointed
counsel for Ricardo in November, there has been no motion
filed with the court or communication with DHHS requesting
visitation or other contact with Gabriella. This inaction clearly
and convincingly demonstrates an intent to be rid of paren-
tal responsibilities.
The Court of Appeals also found that Ricardo’s incarcera-
tion was a circumstance out of his control and precluded a
finding of intentional abandonment. The Court of Appeals
cited two opinions from this court where we acknowledged
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that while the fact of incarceration is involuntary, the illegal
activities leading to incarceration are voluntary. But the Court
of Appeals distinguished those cases because the parents there
were incarcerated following a conviction, whereas Ricardo
was incarcerated awaiting trial. Because Ricardo had not been
found guilty of any crime, the Court of Appeals stated that
Ricardo was presumed innocent. We agree with the Court of
Appeals that our proposition of law regarding the voluntari-
ness of activities leading to incarceration does not apply to a
pretrial detainee.
[10,11] But incarceration does not insulate an inmate from
the termination of his or her parental rights if the record con-
tains the clear and convincing evidence that would support
the termination of the rights of any other parent.19 We believe
this proposition applies with equal force to pretrial detainees.
As mentioned, Ricardo has done nothing to demonstrate an
interest in his child while incarcerated. The Court of Appeals
rationalized that “[a]side from visitation, it would have been
very difficult, if not impossible, for Ricardo to develop a rela-
tionship with Gabriella while he was incarcerated, given that
she was too young to understand or participate in cards, letters,
or telephone calls.”20 We do not believe that Gabriella’s young
age excuses parental inaction. A letter or telephone call from
Ricardo would have at least been something to demonstrate
love for and interest in Gabriella. And there was no evidence to
establish whether visitation was possible at the detention facil-
ity. Simply put, incarceration does not excuse a parent’s obliga-
tion to provide the child with a continuing relationship.21 Here,
the termination of Ricardo’s rights was not based on his incar-
ceration, but, rather, on his failure to manifest any commitment
to parental responsibilities. Further, Ricardo’s incarceration
does not explain his inaction during the nearly 6-month period
19
In re Interest of L.V., 240 Neb. 404, 482 N.W.2d 250 (1992).
20
In re Interest of Gabriella H., supra note 1, 22 Neb. Ct. App. at 79, 847
N.W.2d at 110.
21
See In re M.J.H., 398 S.W.3d 550 (Mo. App. 2013).
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of time between his last visit with Gabriella until the time of
his incarceration.
[12] The evidence clearly and convincingly supports a find-
ing that Ricardo abandoned Gabriella. “The parental obligation
‘requires continuing interest in the child and a genuine effort
to maintain communication and association with that child.
Abandonment is not an ambulatory thing the legal effects of
which a parent may dissipate at will by token efforts at reclaim-
ing a discarded child.’”22 Here, Ricardo voluntarily discontin-
ued contact with Gabriella when she was not quite 3 months
old. Even after Ricardo’s paternity was definitively established,
he did not inquire about Gabriella’s welfare, attempt to arrange
visitation, or take any other action to build a relationship with
her. We reverse the Court of Appeals’ determination on the
issue of abandonment.
Best Interests
[13] Upon reversing a decision of the Court of Appeals,
we may consider, as we deem appropriate, some or all of the
assignments of error the Court of Appeals did not reach.23 Due
to its erroneous conclusion that the State failed to prove a
statutory ground for termination, the Court of Appeals did not
address whether termination of Ricardo’s parental rights was in
Gabriella’s best interests. We now turn to that issue.
The evidence clearly and convincingly established that ter-
mination of Ricardo’s parental rights was in Gabriella’s best
interests. Gabriella had never lived with Ricardo; rather, she
continuously lived in a foster home since she was approxi-
mately 3 days old. Gabriella, who was 20 months old at the
time of the termination hearing, last saw Ricardo when she was
less than 3 months old. He has not been involved in her life
since that time. The caseworker testified that she did not feel
permanency could be achieved with Ricardo, because Gabriella
“does not know who [he] is.” The caseworker testified that
Ricardo was in a detention facility “for an undetermined
22
In re Adoption of David C., supra note 10, 280 Neb. at 726, 790 N.W.2d
at 211.
23
Incontro v. Jacobs, 277 Neb. 275, 761 N.W.2d 551 (2009).
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amount of time,” that Gabriella deserved permanency sooner
rather than later, and that Gabriella “needs to get out of the
foster care system.” We conclude the juvenile court did not err
in finding that termination of Ricardo’s parental rights was in
Gabriella’s best interests.
CONCLUSION
Upon our de novo review, we conclude that the State
proved by clear and convincing evidence that Ricardo aban-
doned Gabriella and that termination of his parental rights
was in Gabriella’s best interests. We reverse the decision of
the Court of Appeals, and we remand the cause to the Court
of Appeals with direction to affirm the judgment of the juve-
nile court.
R eversed and remanded with direction.
State of Nebraska, appellee, v.
Ricky J. Sanders, appellant.
___ N.W.2d ___
Filed October 24, 2014. No. S-13-901.
1. Postconviction: Constitutional Law: Appeal and Error. In appeals from post-
conviction proceedings, an appellate court reviews de novo a determination that
the defendant failed to allege sufficient facts to demonstrate a violation of his or
her constitutional rights or that the record and files affirmatively show that the
defendant is entitled to no relief.
2. Postconviction: Constitutional Law: Proof. The Nebraska Postconviction Act,
Neb. Rev. Stat. § 29-3001 et seq. (Reissue 2008 & Cum. Supp. 2012), provides
that postconviction relief is available to a prisoner in custody under sentence
who seeks to be released on the ground that there was a denial or infringement
of his constitutional rights such that the judgment was void or voidable. Thus,
in a motion for postconviction relief, the defendant must allege facts which, if
proved, constitute a denial or violation of his or her rights under the U.S. or
Nebraska Constitution, causing the judgment against the defendant to be void
or voidable.
3. ____: ____: ____. A court must grant an evidentiary hearing to resolve the claims
in a postconviction motion when the motion contains factual allegations which, if
proved, constitute an infringement of the defendant’s rights under the Nebraska
or federal Constitution. If a postconviction motion alleges only conclusions of
fact or law, or if the records and files in the case affirmatively show that the