Wayne G. v. Jacqueline W. ( 2013 )

Decisions of the Nebraska Court of Appeals
WAYNE G. v. JACQUELINE W. 551
Cite as 21 Neb. App. 551Wayne G., appellant, v.
Jacqueline W., appellee.
___ N.W.2d ___
Filed December 17, 2013. No. A-12-1037.
1. Juvenile Courts: 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.
2. Evidence: Appeal and Error. 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. Parental Rights: Evidence: Proof. For a juvenile court to terminate parental
rights under Neb. Rev. Stat. § 43-292 (Cum. Supp. 2012), it must find that one
or more of the statutory grounds listed in that section have been satisfied and that
termination is in the child’s best interests.
4. Evidence: Words and Phrases. Clear and convincing evidence is that amount of
evidence which produces in the trier of fact a firm belief or conviction about the
existence of the fact to be proved.
5. Parental Rights: Evidence: Appeal and Error. If an appellate court determines
that the lower court correctly found that termination of parental rights is appropri-
ate under one of the statutory grounds set forth in Neb. Rev. Stat. § 43-292 (Cum.
Supp. 2012), the appellate court need not further address the sufficiency of the
evidence to support termination under any other statutory ground.
6. Parental Rights. One need not have physical possession of a child to demon-
strate the existence of the neglect contemplated by Neb. Rev. Stat. § 43-292(2)
(Cum. Supp. 2012).
7. Parental Rights: Proof. In addition to proving a statutory ground for termination
of parental rights, the State must show that termination is in the best interests of
the child.
8. Constitutional Law: Parental Rights: Proof. A parent’s right to raise his or
her child is constitutionally protected; so before a court may terminate parental
rights, the State must also show that the parent is unfit.
9. Parental Rights: Presumptions: Proof. There is a rebuttable presumption that
the best interests of a child are served by having a relationship with his or her
parent. Based on the idea that fit parents act in the best interests of their chil-
dren, this presumption is overcome only when the State has proved that the par-
ent is unfit.
10. Parental Rights: Words and Phrases. Although the term “unfitness” is not
expressly used in Neb. Rev. Stat. § 43-292 (Cum. Supp. 2012), the concept is
generally encompassed by the fault and neglect subsections of that statute and
through a determination of the child’s best interests.
11. ____: ____. Parental unfitness means a personal deficiency or incapacity which
has prevented, or will probably prevent, performance of a reasonable parental
obligation in child rearing and which has caused, or probably will result in, detri-
ment to a child’s well-being.
Decisions of the Nebraska Court of Appeals
552 21 NEBRASKA APPELLATE REPORTS
12. Parental Rights. The best interests analysis and the parental fitness analysis are
fact-intensive inquiries, and although they are separate inquiries, each examines
essentially the same underlying facts as the other.
13. ____. The best interests of a child require termination of parental rights when a
parent is unable or unwilling to rehabilitate himself or herself within a reason-
able time.
14. ____. Children cannot, and should not, be made to await uncertain paren-
tal maturity.
Appeal from the County Court for Seward County: Gerald
E. Rouse, Judge. Affirmed.
Jerrod P. Jaeger, of Jaeger Law Office, P.C., L.L.O., for
appellant.
Eric J. Williams for appellee.
Gregory C. Damman, of Blevens & Damman, guardian
ad litem.
Inbody, Chief Judge, and Irwin and Riedmann, Judges.
Inbody, Chief Judge.
INTRODUCTION
This case is different from the typical juvenile case we
review on appeal, insomuch as the petition to terminate paren-
tal rights was brought by the minor child’s mother, without
participation by the State. The biological father, Wayne G.,
appeals the order of the Seward County Court, sitting as a
juvenile court, terminating his parental rights to the minor
child, Jaidyn G. For the reasons that follow, we affirm the
order of the court.
STATEMENT OF FACTS
On September 27, 2011, Wayne filed a complaint in Seward
County District Court to acknowledge paternity and to estab-
lish custody and parenting time. The complaint alleges that
Wayne and Jacqueline W. were in a relationship while the two
lived in California, but never married, and that the relation-
ship resulted in the birth of Jaidyn in 2006, which occurred
while Jacqueline was married to another man. Jacqueline
filed an answer in which she alleged, among other things,
that Wayne was not a fit person to have custody and that
Decisions of the Nebraska Court of Appeals
WAYNE G. v. JACQUELINE W. 553
Cite as 21 Neb. App. 551he was barred from contact with Jaidyn as a result of a pro-
tection order that had been granted by the Seward County
District Court.
On February 27, 2012, Jacqueline filed an amended petition
in Seward County District Court to terminate Wayne’s parental
rights to Jaidyn pursuant to Neb. Rev. Stat. § 42-364(5) (Cum.
Supp. 2012). The amended petition alleged that Wayne and
Jacqueline are the biological parents of Jaidyn. The petition
alleged that grounds for termination of Wayne’s parental rights
existed pursuant to Neb. Rev. Stat. § 43-292 (Cum. Supp.
2012) and that termination was in Jaidyn’s best interests. In
April, the case was transferred to the county court for further
proceedings on Jacqueline’s amended petition to terminate
Wayne’s parental rights.
Trial was held on the amended petition to terminate Wayne’s
parental rights. Chantique H., Wayne’s biological daughter,
who at the time of trial was 24 years old, testified that she
has a younger sister who is also Wayne’s biological child.
Chantique testified that Wayne’s parental rights to her and
her sister were terminated in California 8 years prior to the
trial regarding Jaidyn, when Chantique was 16 years old.
Chantique testified that the issues involved in that termination
case involved multiple arrests, drug addiction, child abuse,
anger and violence, and neglect. Chantique testified that she
had witnessed Wayne and her mother smoking crack cocaine
in their home. Chantique testified that when she was younger,
on numerous occasions, she witnessed Wayne severely beat
her mother and that he was very violent in their home.
Chantique testified Wayne would hit, strangle, kick, and throw
her mother. Chantique testified that Wayne had admitted to
her that he suffered from a mental illness, and had showed her
medical records indicating that he had been diagnosed with
bipolar disorder and severe depression. Chantique testified
she believed that Wayne had never taken responsibility for
his actions in the termination of parental rights case regarding
her and her sister and that he had continually blamed every-
one else involved for his rights being terminated. Chantique
testified that it was “a very traumatizing experience” having
Wayne as a father.
Decisions of the Nebraska Court of Appeals
554 21 NEBRASKA APPELLATE REPORTS
Jacqueline testified that she had filed for the termination
of Wayne’s parental rights to Jaidyn. Jacqueline testified that
she had three children besides Jaidyn, from a previous mar-
riage. Jacqueline testified that around 2001 or 2002, she met
Wayne in California while she had been separated from her
first husband. Jacqueline was living at a motel when she met
Wayne, and thereafter their relationship progressed quickly.
After just a few months, Jacqueline and Wayne moved in
together and Jacqueline began to see that Wayne had prob-
lems with drugs. Jacqueline testified that Wayne used crack
cocaine in her apartment, where she was living with her three
children. Jacqueline attempted to confront Wayne, and he
told her that he needed the drugs to take care of his attention
deficit hyperactivity disorder. Jacqueline testified that during
the time she and Wayne lived together, she smoked marijuana,
but did not ever use crack cocaine. Jacqueline testified that
she and Wayne resided together for 31⁄2 years, during which
time Wayne attempted inpatient drug treatment and was incar-
cerated on several occasions. Jacqueline also testified that
domestic violence had occurred during their relationship and
that Wayne had been arrested for that violence. Jacqueline
testified that throughout their relationship, Wayne pushed
and shoved her, threatened her, and isolated her from outside
contact, in addition to physically and mentally abusing her
three children. Jacqueline testified that Wayne subjected her
sons to emotional and physical abuse, calling one of her sons
a “fat pig” and beating him with a paint stick and beating
her other son with a wooden cane. Wayne threatened to hunt
Jacqueline and her children down and harm them if she tried
to leave him.
In 2005, Jacqueline became pregnant with Jaidyn, but
Jacqueline testified that Wayne did not change his behavior
and continued to engage in physical abuse with her and the
children. The night Jacqueline came home from the hospital
after giving birth to Jaidyn, Wayne continually yelled at her
and forced her to clean the house. The next day, Wayne forced
Jacqueline to return to work. When Jaidyn was very young,
Wayne came home after taking drugs and did not see Jaidyn
on the bed and sat on her. Jacqueline testified that in 2006,
Decisions of the Nebraska Court of Appeals
WAYNE G. v. JACQUELINE W. 555
Cite as 21 Neb. App. 551shortly after Wayne had sat on Jaidyn, she left California
with Jaidyn and her other children, because she could no
longer handle Wayne’s drug use and she feared more abuse
and control of both her and her children. Jacqueline testified
that Wayne removed wires from the engine in her car to pre-
vent her from leaving. Wayne’s father helped Jacqueline get
a car to leave California, in addition to finding her a trailer
to load with a few items for the children and providing her
with money.
Jacqueline testified that she filed for a protection order
against Wayne in Nebraska, after he left messages on her voice
mail threatening her and the children. Jacqueline testified that
she tried to make a relationship between Wayne and Jaidyn
work by facilitating telephone calls and allowing him to come
to Nebraska for a visit during Easter in 2009. Jacqueline testi-
fied that she had originally wanted to move back to California,
but explained that she would move back only if Wayne could
remain sober and free from drugs, but that he had repeatedly
failed in his attempts to stop using drugs.
Jacqueline testified that she has remarried and that Jaidyn
refers to Jacqueline’s new husband as her “daddy.” He is
involved in Jaidyn’s life and would like to adopt Jaidyn if
Wayne’s parental rights are terminated.
Jacqueline’s sister testified that she first met Wayne in
2006, while he was incarcerated and while Jacqueline was
pregnant with Jaidyn. Jacqueline’s sister also stayed with
Jacqueline at other times during the relationship and observed
Wayne push and hit Jacqueline in the face on several occa-
sions, both while Jacqueline was pregnant and after Jaidyn
had been born. Jacqueline’s sister testified that Wayne was
“mean” and always angry, which made her feel threatened
when she would stay with Jacqueline. On several occasions,
Jacqueline asked her sister not to leave and Wayne would be
gone for days at a time. Jacqueline’s sister witnessed Wayne
sit on Jaidyn when she was young and also witnessed Wayne
forcing Jacqueline, just days after giving birth, to go outside
and work for him, even though she had been ordered to have
bed rest because her incisions from giving birth were not heal-
ing properly. Jacqueline’s sister explained that Wayne called
Decisions of the Nebraska Court of Appeals
556 21 NEBRASKA APPELLATE REPORTS
Jacqueline names and would not allow Jacqueline to nurse
Jaidyn because he felt she needed to be working instead.
Jacqueline’s sister also testified that Wayne had left her threat-
ening voice mails which indicated that he was going to “gut
me and hang me from my third floor balcony by my feet for
the world to see because I wouldn’t pick up my phone and tell
him where [Jacqueline] was.”
Jacqueline’s daughter from her first marriage testified that
she met Wayne in 2002, when she was 17 years old, before
Jacqueline knew him. The daughter testified that after she
had observed Wayne smoking crack cocaine on one occasion,
he instructed her to not tell Jacqueline, because he was just
going through a “quick relapse” and would not be smoking
crack cocaine anymore. Jacqueline’s daughter testified that
Wayne spent at least half of the duration of his relationship
with Jacqueline incarcerated for 6 to 8 months at a time. The
daughter testified that Wayne was very violent and was physi-
cally and emotionally abusive. She specifically testified that
she witnessed Wayne hit her brothers and Jacqueline with his
hands and other objects. She testified that on one occasion,
he grabbed her by the neck and pushed her against the wall.
Wayne would tell her that she was worthless and lazy and,
when she turned 18 years old, told her she was not welcome
in their home any longer. Jacqueline’s daughter also testified
that Wayne threatened to drug her with heroin, take her to
Mexico to use as a prostitute until he felt that she had “suffered
enough,” and then kill her himself.
Wayne testified that he was Jaidyn’s biological father and
that he was fit to be a father for Jaidyn. Wayne testified that
he was “getting [his] chemical situation straightened out” and
that he could be a positive influence upon Jaidyn’s life. Wayne
testified that when Jacqueline left California with Jaidyn, he
was in no condition to be around her or the children, and
that he did not blame her for moving to Nebraska, but that
in the past 3 years, he had turned his life around and had not
used cocaine in 2 years. However, later in Wayne’s testimony,
he indicated that earlier in 2012, he had been arrested and
charged in California with attempted possession of a con-
trolled substance. Wayne explained that he had been dropping
Decisions of the Nebraska Court of Appeals
WAYNE G. v. JACQUELINE W. 557
Cite as 21 Neb. App. 551off one of his employees, when police officers were executing
a “parole, probation sweep.” Wayne testified that he was taken
away by the police because he was a parolee in a gang/drug
neighborhood and had a prior possession conviction. Wayne
testified that he had been on probation in California and had it
revoked, which meant that he would most likely not be put on
probation for the pending charge. Wayne explained that he was
offered a deal with the State of California for a 7-year prison
sentence but was going to fight the charge.
Wayne testified that he had been prescribed psychotropic
drugs for attention deficit hyperactivity disorder and that
Narcotics Anonymous did not “apply to” him, because once
he was “properly medicated,” there was no need to self-­
medicate with cocaine to calm himself. Wayne testified that
he is under the care of a psychiatrist and a psychologist and
also takes legally prescribed medications for posttraumatic
stress disorder and depression. Wayne also indicated that his
business is now successful, he has a relationship with a “won-
derful woman,” and he has a home. Wayne testified that he
had not been battling a drug addiction for the past 25 years,
but really had been battling a “chemical issue” and that once
the chemical issue had been addressed, everything else had
been taken care of. Wayne testified that since 2006, he had
received substance abuse treatment on one occasion, in 2008,
after being released from prison for conspiracy to commit
burglary and robbery.
Wayne testified that he had never been able to successfully
raise a child and that he has had his parental rights terminated
as to two other children in California. He testified, however,
that one of those children was actually in a guardianship
because of her age and that he had not lost his parental rights
to her. Wayne testified that during those proceedings, he was
incarcerated for domestic violence. Wayne testified that he
had a criminal history which included, but was not limited
to, several convictions related to drug possession. Wayne
also testified that he had one felony conviction for domes-
tic violence and one misdemeanor for verbal domestic vio-
lence. Wayne testified that he had an anger problem, but was
never violent with children. Wayne explained that his ex-wife
Decisions of the Nebraska Court of Appeals
558 21 NEBRASKA APPELLATE REPORTS
had had a drug problem, that he had once grabbed her by the
hair and dragged her into their home, and that their relation-
ship had been volatile. Wayne also testified that he has been
involved in several types of protection or harassment order
proceedings which were filed against him and also a case
involving elder abuse.
Wayne testified that he had been unable to leave California
due to the terms of his parole and had seen Jaidyn only three
times since Jacqueline and Jaidyn moved to Nebraska in 2006.
Wayne testified that in 2009, he came to Nebraska for 3 or 4
days to see Jacqueline and Jaidyn because he wanted to rec-
oncile with Jacqueline. Wayne testified that since then, he has
sent letters to both Jacqueline and Jaidyn. Wayne also testified
to giving Jacqueline $300 in September 2009, but that may
have been money to pay Jacqueline back for financing his trip
to Nebraska earlier in the year. Wayne estimated that he had
given Jacqueline “maybe” $1,000 for Jaidyn since Jaidyn had
been born. Wayne testified that all he wanted was to be able to
communicate with Jaidyn, to be able to send her packages and
letters, and to be able to have one visit a year with her when
Jacqueline came to California.
Wayne’s girlfriend testified that she has been in a romantic
relationship with Wayne over the past year and that she cur-
rently lives with Wayne and her 19-year-old son in California.
She testified that she met Wayne while visiting a friend at a
recovery facility. She testified that she was familiar with his
history and mental issues, and that over the past year, Wayne
has consistently maintained his prescribed medications. She
testified that she had witnessed Wayne with minors and that
he acted appropriately and was helpful with children in her
family. She testified that Wayne had not used any illegal drugs
since she had known him, had not been in possession of ille-
gal drugs, and had not been physically or emotionally abusive
toward her or her family. She testified that Wayne spoke often
of Jaidyn and was always buying Jaidyn gifts. She also testi-
fied that Wayne was not an unfit parent.
On October 3, 2012, the trial court entered an order on
Jacqueline’s amended petition for termination of Wayne’s
parental rights. The court found that clear and convincing
Decisions of the Nebraska Court of Appeals
WAYNE G. v. JACQUELINE W. 559
Cite as 21 Neb. App. 551evidence had been presented that termination was proper pur-
suant to § 43-292(2), (4), (5), and (9), and also that termi-
nation was in Jaidyn’s best interests due to the “substantial
evidence including but not limited to the prior terminations
of [Wayne’s] parental rights to two prior biological children,
[Wayne’s] habitual use of crack cocaine, and the violent
actions of [Wayne] in the home.” It is from this order that
Wayne has now timely appealed to this court.
ASSIGNMENTS OF ERROR
Wayne assigns that the trial court erred in determining that
termination was warranted pursuant to § 43-292 and was also
in the best interests of Jaidyn.
STANDARD OF REVIEW
[1,2] Juvenile cases are reviewed de novo on the record,
and an appellate court is required to reach a conclusion inde-
pendent of the juvenile court’s findings. In re Interest of
Angelica L. & Daniel L., 277 Neb. 984, 767 N.W.2d 74 (2009).
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. Id.ANALYSIS
Statutory Grounds.
The juvenile court terminated Wayne’s parental rights
under § 43-292(2), (4), (5), and (9). In his brief, Wayne
admits that “[s]ubsections (2), (4), and (9) were supported
by significant evidence of drug use, domestic abuse, and
criminal behavior,” but that that evidence extended only until
2006, with none to support those allegations thereafter. Brief
for appellant at 21.
[3,4] For a juvenile court to terminate parental rights under
§ 43-292, it must find that one or more of the statutory
grounds listed in that section have been satisfied and that ter-
mination is in the child’s best interests. See In re Interest of
Jagger L., 270 Neb. 828, 708 N.W.2d 802 (2006). The State
must prove these facts by clear and convincing evidence. Id.Clear and convincing evidence is that amount of evidence
Decisions of the Nebraska Court of Appeals
560 21 NEBRASKA APPELLATE REPORTS
which produces in the trier of fact a firm belief or conviction
about the existence of the fact to be proved. Id.[5] If an appellate court determines that the lower court
correctly found that termination of parental rights is appropri-
ate under one of the statutory grounds set forth in § 43-292,
the appellate court need not further address the sufficiency of
the evidence to support termination under any other statutory
ground. In re Interest of Justin H. et al., 18 Neb. App. 718, 791
N.W.2d 765 (2010).
As mentioned previously, this case differs from those that
normally come on appeal before this court, because the petition
to terminate parental rights was filed pursuant to § 42-364(5)
by the other biological parent, not the State; nonetheless, we
conclude that Jacqueline proved by clear and convincing evi-
dence that termination was warranted.
Under § 43-292(2), grounds for termination exist when
the parent has “substantially and continuously or repeatedly
neglected and refused to give the juvenile or a sibling of the
juvenile necessary parental care and protection.” The record
in this case shows that Wayne has habitually abused narcotic
drugs for the past 25 years, which has resulted in repeated
arrests and convictions related to that drug abuse, the most
recent of which was in May 2012. Wayne repeatedly testified
that his involvement with illegal drugs was not his fault, but
instead the result of his “chemical problems” and mental ill-
nesses. The record indicates that Wayne has spent a significant
amount of time incarcerated and, since Jaidyn was born in
2006, has spent very little time with Jaidyn.
The record is replete with testimony regarding Wayne’s
significantly violent anger problem, which has resulted in an
alarming history of violent abuse in nearly all of his relation-
ships, from his numerous romantic relationships with women,
to elder abuse, and to violent abuse against children, both
his own and Jacqueline’s. Wayne’s first two biological chil-
dren realized the wrath of his violence and drug abuse which
resulted in the termination of his parental rights. The record
also reveals that Wayne has had numerous protection orders
filed against him by various women and that one of those
included Jacqueline and Jaidyn as a result of his repeated
Decisions of the Nebraska Court of Appeals
WAYNE G. v. JACQUELINE W. 561
Cite as 21 Neb. App. 551threats to end Jacqueline and her children’s lives. The record
reveals that Jacqueline fled California in fear of both her and
Jaidyn’s lives and moved to Nebraska, where the two have
remained. Even though Jacqueline was in such fear, she contin-
ued on various occasions to try to work things out with Wayne,
including paying for him to visit Nebraska in 2009, which visit
lasted only 3 or 4 days, with Wayne himself admitting that he
spent little time with Jaidyn.
[6] Wayne argues that Jacqueline proved only one instance
of neglect—when he sat on Jaidyn when she was very young—
and that that alone is not enough to show substantial and
continuous neglect. However, one need not have physical pos-
session of a child to demonstrate the existence of the neglect
contemplated by § 43-292(2). In re Interest of Kalie W., 258
Neb. 46, 601 N.W.2d 753 (1999). Most of Jaidyn’s life, Wayne
has been unable to visit her because of incarceration due to his
own actions and then conditions of his parole, including that
he not leave California—parole which was the direct result
of Wayne’s continued choice to engage in illegal and violent
criminal actions. As set forth above, Wayne’s most recent
criminal arrest was in May 2012, and although Wayne testified
that he was going to fight that charge, Wayne admitted that due
to his criminal history, if found guilty, he would most likely
again be incarcerated.
Wayne testified that he has attempted to send a few pack-
ages to Jaidyn and estimated that he had given Jacqueline
only around $1,000 over the course of Jaidyn’s life, some of
which was to actually repay Jacqueline for money he had bor-
rowed and not for Jaidyn’s support. Further, although Wayne
testified that he was fit to parent Jaidyn, he admitted that he
was not ready to parent and did not want more than to be able
to talk with Jaidyn on the telephone and to have one visit per
year with her.
Based upon our review of the record, there is sufficient evi-
dence in the record to support a finding that termination under
§ 43-292(2) was proper, and the juvenile court did not err in
making this finding. Because we have found that termination
was proper under § 43-292(2), we need not consider Wayne’s
arguments as to the remaining grounds for termination.
Decisions of the Nebraska Court of Appeals
562 21 NEBRASKA APPELLATE REPORTS
Best Interests.
Wayne argues that he has taken substantial steps to correct
the problems that existed when Jacqueline fled with Jaidyn to
Nebraska and that, as such, termination is not in Jaidyn’s best
interests. Specifically, Wayne relies on the testimony of his
girlfriend that he is appropriately medicating his mental disease
and now treats both adults and children appropriately.
[7-12] In addition to proving a statutory ground for termi-
nation of parental rights, the State must show that termina-
tion is in the best interests of the child. See, In re Interest of
Kendra M. et al., 283 Neb. 1014, 814 N.W.2d 747 (2012); In
re Interest of Ryder J., 283 Neb. 318, 809 N.W.2d 255 (2012).
A parent’s right to raise his or her child is constitutionally
protected; so before a court may terminate parental rights, the
State must also show that the parent is unfit. In re Interest of
Kendra M. et al., supra. There is a rebuttable presumption that
the best interests of a child are served by having a relation-
ship with his or her parent. Based on the idea that fit parents
act in the best interests of their children, this presumption is
overcome only when the State has proved that the parent is
unfit. Id. Although the term “unfitness” is not expressly used
in § 43-292, the concept is generally encompassed by the fault
and neglect subsections of that statute and through a determi-
nation of the child’s best interests. See In re Interest of Kendra
M. et al., supra. In the context of the constitutionally pro-
tected relationship between a parent and a child, the Nebraska
Supreme Court has stated, “‘“Parental unfitness means a
personal deficiency or incapacity which has prevented, or
will probably prevent, performance of a reasonable parental
obligation in child rearing and which has caused, or probably
will result in, detriment to a child’s well-being.”’” Id. at 1033-
34, 814 N.W.2d at 761, quoting Uhing v. Uhing, 241 Neb.
368, 488 N.W.2d 366 (1992). The best interests analysis and
the parental fitness analysis are fact-intensive inquiries, and
although they are separate inquiries, each examines essentially
the same underlying facts as the other. See In re Interest of
Kendra M. et al., supra.The record does indicate that, from the testimony of both
Wayne and his girlfriend, Wayne is attempting to change his
Decisions of the Nebraska Court of Appeals
WAYNE G. v. JACQUELINE W. 563
Cite as 21 Neb. App. 551past behaviors over the past year by regularly taking his medi-
cation and seeking help from a counselor. However, Wayne’s
testimony indicates that he has accepted little responsibility for
his past actions. He testified that he acted inappropriately, but
maintains that he does not have a drug problem and that he did
not abuse children or treat women poorly. Throughout his testi-
mony, he downplayed or entirely dismissed the testimony given
that he was very violent with women; with his own children,
to which his parental rights were terminated; with Jacqueline’s
other children; and also with an elderly woman whom he
claims he was caring for. Witnesses recounted Wayne’s severe
physical and mental abuse, which continued with Jacqueline
even after she moved to Nebraska, through numerous recorded
telephone messages where he very frequently threatened to kill
both her and her children. Furthermore, even though Wayne
testified that he has turned his criminal tendencies around, in
May 2012, he was arrested for attempted possession of a con-
trolled substance, which he testified was not his fault. Clearly,
based upon this record, it is not in Jaidyn’s best interests to
force her, after 6 years of little or no contact with Wayne, into
a relationship with a man who has shown extremely danger-
ous behavior and who continues to make choices that result in
incarceration which further prevents him from being available
to be in Jaidyn’s life.
[13,14] The best interests of a child require termination of
parental rights when a parent is unable or unwilling to reha-
bilitate himself or herself within a reasonable time. See In re
Interest of Emerald C. et al., 19 Neb. App. 608, 810 N.W.2d
750 (2012). Children cannot, and should not, be made to await
uncertain parental maturity. See In re Interest of Walter W.,
274 Neb. 859, 744 N.W.2d 55 (2008). To hold Jaidyn’s life at
a standstill for Wayne, with the hope that a positive relation-
ship might develop at an unknown time in the future, is not in
Jaidyn’s best interests. Furthermore, the record contains evi-
dence that Jaidyn has bonded with Jacqueline’s new husband,
who testified that he intends to adopt Jaidyn. Therefore, we
conclude that Wayne is an unfit parent and that termination of
Wayne’s parental rights is in Jaidyn’s best interests, and we
affirm the order of the juvenile court finding the same.
Decisions of the Nebraska Court of Appeals
564 21 NEBRASKA APPELLATE REPORTS
CONCLUSION
Upon our de novo review of the record, we find that the
evidence presented was sufficient to warrant termination of
Wayne’s parental rights to Jaidyn and that termination is in
Jaidyn’s best interests. Therefore, we affirm.
Affirmed.
State Farm Fire & Casualty Company, appellee, v.
Jerry Dantzler, appellant, and David Chuol,
individually and as father and next friend
to Chuol Geit, and Chuol Geit, appellees.
___ N.W.2d ___
Filed December 17, 2013. No. A-12-1042.
1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower
court’s grant of summary judgment if the pleadings and admitted evidence show
that there is no genuine issue as to any material facts or as to the ultimate infer-
ences that may be drawn from the facts and that the moving party is entitled to
judgment as a matter of law.
2. ____: ____. In reviewing a summary judgment, an appellate court views the
evidence in the light most favorable to the party against whom the judgment was
granted, and gives that party the benefit of all reasonable inferences deducible
from the evidence.
3. Contracts: Appeal and Error. The construction of a contract is a matter of law,
and an appellate court has an obligation to reach an independent, correct conclu-
sion irrespective of the determinations made by the court below.
4. Insurance: Contracts. A pollution exclusion is unambiguous when it bars
coverage for injuries caused by all pollutants, not just traditional environmen-
tal pollution.
Appeal from the District Court for Douglas County:
K imberly Miller Pankonin, Judge. Reversed and remanded
for further proceedings.
Michael A. Nelsen, of Marks, Clare & Richards, L.L.C.,
for appellant.
David J. Stubstad and Patrick S. Cooper, of Fraser Stryker,
P.C., L.L.O., for appellee State Farm Fire & Casualty
Company.