In re Interest of Isaiah S. & Noah F. ( 2016 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
IN RE INTEREST OF ISAIAH S. & NOAH F.
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
IN RE INTEREST OF ISAIAH S. AND NOAH F., CHILDREN UNDER 18 YEARS OF AGE.
STATE OF NEBRASKA, APPELLEE,
V.
MICHAEL F., APPELLANT.
Filed December 6, 2016. No. A-16-254.
Appeal from the Separate Juvenile Court of Douglas County: CHRISTOPHER KELLY, Judge.
Affirmed.
Thomas C. Riley, Douglas County Public Defender, and John J. Jedlicka for appellant.
Donald W. Kleine, Douglas County Attorney, and Jennifer C. Clark for appellee.
INBODY, RIEDMANN, and BISHOP, Judges.
BISHOP, Judge.
Michael F. appeals from the decision of the separate juvenile court of Douglas County
terminating his parental rights to his two sons, Isaiah S. and Noah F. We affirm.
BACKGROUND
Procedural Background.
Michael is the father of Isaiah, born in 2006, and Noah, born in 2009. Jennifer S. is the
biological mother of Isaiah and Noah; she is also the mother of Austin S., but Michael is not
Austin’s father. The State filed a motion to terminate Jennifer’s parental rights to her children, but
that motion was still pending at the time the juvenile court terminated Michael’s parental rights.
Because Jennifer and Austin are not part of this appeal, they will only be discussed as necessary.
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Due to domestic violence, drug use, and homelessness, the boys were removed from
parental care and custody in June 2014, and placed in the custody of the Nebraska Department of
Health and Human Services (DHHS); they were placed in foster care where they have remained.
In June 2014, the State filed a petition alleging that Isaiah and Noah were children as
defined by Neb. Rev. Stat. § 43-247(3)(a) (Supp. 2013) due to the faults or habits of Michael. The
State alleged that (1) Michael and Jennifer engaged in domestic violence in the presence of the
children; (2) Michael’s use of alcohol and/or controlled substances placed the children at risk of
harm; (3) Michael failed to provide the children with proper parental care, support, and
supervision; (4) Michael failed to provide the children with safe, stable housing; and (5) due to the
above allegations, the children were at risk of harm.
In September 2014, after a hearing on the matter, the juvenile court found that the
allegations in the petition were true by a preponderance of the evidence and adjudicated Isaiah and
Noah to be within the meaning of § 43-247(3)(a) due to the faults of habits of Michael. The boys
were ordered to remain in the care and custody of DHHS for appropriate care and placement.
Michael was ordered to undergo psychological and chemical dependency evaluations.
On September 26, 2014, Michael was arrested in Dodge County, Nebraska, and jailed in
the Saunders County jail.
After the disposition hearing in November 2014, the juvenile court ordered that the children
remain in the custody of DHHS, and that Michael undergo psychological and chemical
dependency evaluations. Michael was allowed to have “written-letter-only communication with
the minor children to be screened,” and as arranged by DHHS and Nebraska Families
Collaborative (NFC).
After a “dispositional evaluation check” hearing in January 2015, the juvenile court ordered
Michael to participate in a residential dual-diagnosis therapy program “if and when logistically
possible, given [his] ongoing incarceration.” Michael was also allowed to start having “two 10
minute phone calls (no video)” per month with his children, to be supervised by the children’s
therapist.
In March 2015, Michael filed a motion to allow supervised visitation with his children at
the Salvation Army, where he had begun treatment. The juvenile court sustained Michael’s motion
and ordered that he be allowed reasonable rights of therapeutic visitation at the Salvation Army as
recommended by the children’s therapist.
After a review and permanency planning hearing in May 2015, the juvenile court ordered
that any ongoing contact between Michael and the children would be determined and supervised
by the children’s therapist, and as arranged by DHHS/NFC. After a subsequent review and
permanency planning hearing in September, the juvenile court ordered that Michael’s contact with
the children would be “therapeutic only in nature,” as arranged by DHHS/NFC.
In October 2015, the State filed a “Third Motion for Termination of Parental Rights,”
seeking to terminate Michael’s parental rights to Noah pursuant to Neb. Rev. Stat. § 43-292(2),
(6), and (7) (Cum. Supp. 2014). The State alleged that: Michael substantially and continuously or
repeatedly neglected and refused to give Noah, or a sibling, necessary care and protection;
reasonable efforts to preserve and reunify the family had failed to correct the conditions leading to
the adjudication; Noah had been in out-of-home placement for 15 or more of the most recent 22
months; and termination was in the child’s best interest.
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In January 2016, the State filed an “Amended Third Motion for Termination of Parental
Rights,” seeking to terminate Michael’s parental rights to Isaiah and Noah pursuant to § 43-292(2),
(6), and (7). The State’s allegations were the same as in the October 2015 motion, but were
amended to also include Isaiah.
Termination Hearing.
The hearing on the motion for termination of Michael’s parental rights to Isaiah and Noah
was held February 26, 2016. The State called only one witness, Cindy Johnson, the family
permanency specialist assigned to this case. Michael testified in his own behalf, and also called
Heather McCue, the children’s therapist, to testify. A summary of the evidence follows.
Johnson was assigned as the family permanency specialist for this family in June 2014, and
was still assigned to the case at the time of the termination hearing. She was the first and only
family permanency specialist on this case. However, this family was involved in a previous
juvenile case with a different caseworker which was opened in March 2012 and closed in
December 2013. Regarding the current case, Johnson said that Isaiah and Noah were removed
from the home in June 2014 because of “domestic violence, drug use, and homelessness.”
Johnson met with Michael in July 2014 and gave him her contact information. At that
meeting, Johnson worked on establishing a rapport with Michael to get to know him and
understand what his needs were at that time and what she could do to help. Michael was living
with friends and looking for employment. He wanted to start visitation, but was not willing to work
on any other services. Johnson set up a referral for weekly supervised visitation. He attended one
supervised visit in July, but the visitation company discharged Michael in August after he failed
to call and confirm future visits. Johnson had phone contact with Michael sometime in August,
and told him that he would have to work with her to set up visits. Michael told her he was
“‘struggling’” and would get back to her, but Johnson did not hear from Michael again and could
not reach him at the phone number he provided. (Michael did not appear at the September 2014
adjudication hearing, after which he was ordered to undergo psychological and chemical
dependency evaluations.)
Johnson’s next contact with Michael was in October 2014 at the Wahoo jail in Saunders
County, Nebraska (she discovered his location via an internet search). She met with him to find
out why he was there and what services were available in the jail; she could not recall if Michael
provided her with a reason for being in jail. Johnson spoke to a lieutenant at the jail who told her
there was a therapist/medication management provider who came to the jail frequently to provide
support to the inmates. Johnson talked to Michael about the therapist at the Wahoo jail, but he was
not interested in the service. Johnson was able to refer Capstone Behavioral Health to go to the jail
to perform the court-ordered psychological and chemical dependency evaluations since the jail did
not provide such services. Those evaluations were completed in December. The Wahoo jail had
visitation restrictions, but did allow phone calls. According to her court report received into
evidence as exhibit 36, Isaiah and Noah were able to have two 10-minute phone calls with Michael
in February 2015. It was Johnson’s understanding that those visits went well. However, the visits
were “short-lived” because Michael had behavior issues and the jail ended his phone visits.
(Although Johnson did not have a specific date for when the visits ended, we presume the visits
ended in February because, as discussed next, that was when Michael was furloughed.)
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On February 12, 2015, Michael was furloughed to the Salvation Army treatment facility in
Omaha, Nebraska. The chemical dependency evaluation recommended treatment, and the
Salvation Army was the treatment facility that accepted Michael and other inmates. According to
Johnson, because Michael was incarcerated, NFC could not provide him external services. It was
the criminal court that gave Michael permission to go to the program, and Michael said that the
treatment was also part of his criminal requirements. Michael was at the Salvation Army program
for six weeks, and Johnson had two or three phone conversations with him during that time.
According to Johnson’s report, exhibit 36, Michael earned an overnight pass permitting him to
stay at his mother’s apartment on March 27. Michael was also able to have one supervised visit
with the children on March 29. After Michael had been in the Salvation Army program for six
weeks, the Dodge County Attorney informed Johnson that Michael was no longer at the Salvation
Army and had been returned to the Wahoo jail. Michael was not able to complete the treatment
program before leaving the Salvation Army.
Johnson testified that Michael was returned to the Wahoo jail because he violated the
conditions of his furlough. Johnson learned from Jennifer that Michael had come to her house and
threw rocks at the windows; one of the windows broke and a rock struck Jennifer’s father in the
face. Jennifer told Johnson she filed a police report regarding the domestic violence incident. When
Johnson spoke to Michael about the incident, Michael denied that it happened and he was “very,
very distraught” about returning to jail. Michael did not know what would happen and told Johnson
he would have to appear before the criminal court judge.
In May 2015, Michael was moved to the Diagnostic and Evaluation Center (D&E Center)
in Lincoln, Nebraska, and then moved to the State Penitentiary. Johnson testified that it is the
Penitentiary’s policy that NFC cannot provide services to inmates. The only thing NFC could offer
was relinquishment counseling and therapeutic phone visits with the children. The Penitentiary
offers substance abuse treatment, but Johnson had no control over whether Michael was admitted
into the programs. Johnson visited Michael monthly and he told her that he was on the waitlist for
treatment and thought he would be able to start at the “end of this week”; she had not been able to
confirm that with the Penitentiary.
Based on her own work with the family, collateral information, and the amount of time the
children had been in foster care, Johnson believed that terminating Michael’s parental rights was
in Isaiah and Noah’s best interests. This was her opinion despite the fact that visits had gone well.
She stated that the reasons the children were in foster care had not been addressed. The children
also needed safety, structure, and a sense of well-being; they needed to be able to move on
emotionally. Michael’s release date from prison is uncertain, and it is unknown when he will be
rehabilitated.
McCue is a licensed independent mental health practitioner and had been working with
Isaiah and Noah since October 5, 2014. (We note that Isaiah would have been 8 years old at that
time; Noah would have just turned 5.) She testified that she saw the boys weekly and worked with
them on transitioning from various foster care situations and understanding the reason they were
in foster care. She also worked with them on behavioral adjustments, “which would be . . . anger,
crying, sulking, becoming silent.”
McCue diagnosed Isaiah with depression and anxiety. He was the middle child (between
Austin and Noah) and had taken on a lot of the emotional responsibility for the family; he worried
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a lot. Isaiah does not have the same anxieties with Michael as he does with his mother because
Michael talked about general things (e.g. what he had for breakfast or books he was reading)
whereas Jennifer talked to Isaiah about her illnesses. It is important for Isaiah to have a caregiver
who is able to help him through his anxiety, to be there and to be able to implement coping
strategies. Isaiah had made progress, and McCue attributed that progress to consistent parenting,
stability, and not moving from place to place. If Isaiah did not have stability or consistency with
his caregiver, McCue would be concerned about a lack of adjustment and not being at the
appropriate developmental age (either being immature or more mature).
Noah’s diagnosis was adjustment disorder with anxiety. He was disruptive to his
environment because he was always on the go. Noah needs structure, predictability, consistency,
and stability over time, and the absence of those things could lead to conduct issues. McCue said
that Noah is doing well and has a lot of potential.
When McCue first started working with the boys, they did not have contact with Michael
because his whereabouts were unknown. Once Michael was located, McCue supervised all
contacts between him and his children from the beginning of 2015 until the termination hearing;
she could not recall how many contacts there had been. All visits were positive and she observed
and heard nothing inappropriate. Other than one face-to-face visit in early 2015 while Michael was
at the Salvation Army, all visits between Michael and the boys were phone visits. McCue could
not remember how many phone visits there were, but thought they began in the beginning of 2015
while Michael was at the Wahoo jail prior to going to the Salvation Army. The phone visits
resumed when Michael was incarcerated at the D&E Center and/or Penitentiary. When Michael
went to the Penitentiary in late spring 2015, phone visits occurred every other week, or twice a
month; Michael missed only two visits (he testified that he did not have enough money to make
the calls). Phone visits were still occurring at the time of the termination hearing.
According to McCue, when Isaiah and Noah first began having phone visits with Michael
they were enthusiastic. As time went on, the enthusiasm leveled off because it was “kind of a
routine.” During the face-to-face visit at the Salvation Army, the boys were very happy and excited
to see Michael, and they had a good time. Now that they had returned to phone visits, the boys still
enjoyed visiting with Michael and wanted contact with him.
McCue did not have enough background on Michael and the boys to know what kind of
bond was formed between them. However, she said it was important for Isaiah and Noah to have
continued phone contact with Michael because “he is their father, and I think that they can learn
from him and can benefit from that contact.” Michael has been helpful regarding the boys’
depression, anxiety, and behavior issues, and has continued to help them work in a positive
direction. When asked if it “would be more important at this point for Isaiah and Noah to have
continued contact in some form with Michael than to have no contact,” McCue said “Yes.”
Michael briefly testified at the hearing, and his January 2016 deposition testimony was
received into evidence as exhibit 73. We summarize his hearing and deposition testimony
collectively. During the summer of 2014, Isaiah and Noah lived with Michael until June. Michael
was behind on his rent, the water was shut off, and he was about to be evicted. He and Jennifer
argued, and Michael threw a can of beer, breaking a window in the house. Michael “placed” the
children in the home of his brother and sister-in-law; after a week, the sheriff removed the children
from Michael’s brother’s house and “took them into CPS custody.” About that same time, Michael
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was evicted, lost his job and his truck, and he was “homeless at the moment.” He also relapsed on
methamphetamines.
Michael was arrested “on a flight to avoid arrest, a theft, possession of meth, and habitual
criminal charges” in Dodge County and was incarcerated in the Saunders County jail on September
26, 2014 (because there were problems with the Dodge County jail). Michael’s mother tried to
contact DHHS to let them know where he was. Johnson came to see Michael in October. She did
not offer him any services, and told him to check into the services that the facility offered. Michael
looked into speaking with the counselor there, but the counselor was only interested in trying to
figure out whether or not Michael was suicidal. Capstone Behavioral Services did come to the
facility to do the mental health and chemical dependency evaluations. The recommendation from
the chemical dependency evaluation was intensive residential treatment for amphetamine use and
addiction to alcohol. The Saunders County jail did not have a drug treatment program; they only
offered a narcotics anonymous class once each month, which Michael attended.
Michael applied to several residential drug treatment facilities, and was accepted into the
Salvation Army Program. The Dodge County Court granted Michael a furlough to attend the
program, which he began on February 12, 2015. Michael said there were no professional
counselors at the program, and that is was basically “work therapy” during the day and then AA,
NA, or peer groups in the evening; there were also weekly meetings with a chaplain. According to
Michael, he was removed from the program on March 31 because he was “venting” to another
program participant and an employee perceived Michael’s comments as a threat to staff. Michael
was told that he could start the program again, and that he would just be placed on a 30-day
restriction; staff told him to check back in after his April 1 probation meeting. On April 1, Michael
met with his probation officer and was arrested for not being in the Salvation Army Program
(according to Michael, someone neglected to tell the probation office that he was supposed to go
back to the program after the meeting). Michael was returned to the Saunders County jail and
remained there until May 7.
In May 2015, Michael was sentenced to prison for 5 years 8 months to 10 years for his
“flight to avoid arrest, a theft, possession of meth, and habitual criminal charges” and was sent to
the Diagnostic and Evaluation Center in Lincoln, Nebraska, and was later moved to the State
Penitentiary. He is eligible for parole on December 13, 2016, and has a mandatory discharge date
of February 13, 2019. Michael is on the waiting list for drug treatment at the Penitentiary. He
would like to be considered for placement of his children after his release.
Juvenile Court’s Decision.
In an order filed on February 29, 2016, the juvenile court terminated Michael’s parental
rights to Isaiah and Noah pursuant to § 43-292(2), (6), and (7), and found that termination was in
the children’s best interests. Michael has timely appealed the juvenile court’s order.
ASSIGNMENTS OF ERROR
Michael assigns, restated, that the juvenile court erred in: (1) admitting into evidence
certain exhibits and testimony over counsel’s objections that the evidence violated the
confrontation clause; (2) finding grounds exist to terminate his parental rights under § 43-292(2)
and (6); and (3) finding it was in the children’s best interests to terminate his parental rights.
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STANDARD OF REVIEW
An appellate court reviews juvenile cases de novo on the record and reaches a conclusion
independently of the juvenile court’s findings. In re Interest of Isabel P. et al., 293 Neb. 62, 875
N.W.2d 848 (2016).
ANALYSIS
Admission of Certain Testimony and Exhibits.
Michael argues that “the juvenile court erred in admitting the exhibits of the case plan,
court report, and affidavit of removal into evidence as well as Cindy Johnson’s testimony of
alleged domestic violence, over counsel’s objections based on the confrontation clause.” Brief for
appellant at 16. Citing to In re Interest of J.S., A.C., and C.S., 227 Neb. 251, 417 N.W.2d 147
(1987), Michael asserts that “[w]ithout the test of cross-examination, a hearsay report is unreliable
evidence.” Brief for appellant at 17.
The Nebraska Evidence Rules do not apply in cases involving the termination of parental
rights. In re Interest of Destiny A. et al., 274 Neb. 713, 742 N.W.2d 758 (2007). Instead, due
process controls and requires that the State use fundamentally fair procedures before a court
terminates parental rights. Id. In determining whether admission or exclusion of particular
evidence would violate fundamental due process, the Nebraska Evidence Rules serve as a
guidepost. Id.
Further, because this is a juvenile proceeding and not a criminal case, the heightened
standards of the Confrontation Clause are not applicable. In re Interest of Brian B. et al., 268 Neb.
870, 689 N.W.2d 184 (2004). Instead, the proper analysis is whether Michael’s due process rights
were violated. See id. The concept of due process embodies the notion of fundamental fairness and
defies precise definition. Id. In deciding due process requirements in a particular case, we must
weigh the interest of the parent, the interest of the State, and the risk of erroneous decision given
the procedures in use. Id. Due process is flexible and calls for such procedural protections as the
particular situation demands. Id.
At the termination hearing, Michael objected to the admission into evidence of exhibits 2,
14, 19, 36, and 42, which were various case plans and court reports authored by Johnson between
August 2014 and September 2015. Those case plans and court reports included references to
previous intakes and a juvenile court case for this family, all of which occurred prior to Johnson’s
assignment to this case in June 2014; Johnson had familiarized herself with the family’s history
by reviewing N-FOCUS and speaking to the supervisor involved in the previous juvenile court
case. Michael’s objection to the admission of the above exhibits was “for the purpose of that
history of previous service interventions prior to this petition being filed [on June 20, 2014] as
with respect that I don’t have any ability to confront or cross-examine that part of the report as it
deals with this case”; he asked that only those specific points be excluded from evidence. The
juvenile court overruled his objection and received the exhibits in their entirety.
Michael also objected to the admission of exhibit 74, the certified copies of the petitions,
motions, and orders filed in the juvenile case. His specific objection was to pages 7 and 8 of the
exhibit, which was the June 2014 affidavit for removal; his objection was based on hearsay and
“due process of confrontation and cross-examination.”
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Finally, Michael objected to Johnson’s testimony regarding domestic violence charges
from March 2015, because such testimony was based on information she received from the
juveniles’ mother. Again, his objection was overruled.
The only case cited in Michael’s brief regarding the improper admission of evidence was
In re Interest of J.S., A.C., and C.S., 227 Neb. 251, 417 N.W.2d 147 (1987). In that case, a “Social
Services written report” was originally received into evidence at an adjudication hearing and
offered again by the State at the termination hearing. That report pertained to an 11-year period
and documented departmental contacts with the mother through unidentified personnel of Social
Services during that period, including the mother’s noncompliance with a plan departmentally
dictated by Social Services before the adjudication. The mother objected to the report based on
hearsay. Although the report was not admitted into evidence at the termination hearing, it was
nevertheless considered by the juvenile court when the court terminated the mother’s parental
rights under § 43-292(6) (failure to correct conditions which led to the adjudication). On appeal,
the Nebraska Supreme Court found that the report was offered to prove the truth of the matters
asserted in the reports, namely, a factual basis for the conclusion that the mother had willfully
failed to comply with the rehabilitative plan, and therefore the report constituted hearsay. The court
further found that
under the circumstances, the hearsay report effectively eliminated [the mother’s] right to
cross-examination regarding the contents of the departmental written report, which
included prejudicial information embodied in entries by unidentified persons and which
covered events outside the personal knowledge of any witness at the termination hearing.
. . . Without the test of cross-examination, the hearsay report was unreliable evidence for
termination of parental rights.
In re Interest of J.S., A.C., and C.S., 227 Neb. at 265-66, 417 N.W.2d at 157.
The State argues that in the instant case, Johnson, the author of the court reports, laid the
foundation for the admission of the reports, testified on behalf of the State, and was subject to
cross-examination. The State further argues that Johnson laid the appropriate foundation for the
admission of the reports pursuant to the hearsay exception for business records found in Neb. Rev.
Stat. § 27-803(5) (Cum. Supp. 2014). See In re Interest of Kassara M., 258 Neb. 90, 601 N.W.2d
917 (1999). We agree with the State that, like in Kassara, the reports were admissible over
Michael’s hearsay/confrontation clause objection. Johnson laid foundation for the admission of
the reports, testified, and was subject to cross-examination. She also laid the appropriate
foundation for the admission of the reports under the business records exception to hearsay. And
“taken together, these circumstances, provide sufficient guaranties of trustworthiness to make
consideration of the reports fundamentally fair.” In re Interest of Kassara M., 258 Neb. at 95, 601
N.W.2d at 923. Although references to referrals which occurred prior to the adjudication which
led to the instant case would generally be considered irrelevant, see In re Interest of Kassara M.,
supra, Michael did not make a relevancy objection at the termination hearing; but even if he had,
any improper admission of the evidence would not have been prejudicial because, as stated below,
we find that there was sufficient evidence to terminate Michael’s parental rights even without
considering the challenged evidence.
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With respect to the affidavit for removal (authored by Gloria LaCrosse) dated June 20,
2014, that was attached to the ex parte motion for temporary custody, the State asserts that
Michael’s counsel did not object to the affidavit at the protective custody/detention hearing on July
18, 2014. (We note that the proceedings of the July 18 hearing do not appear in our record. And
while the order from that hearing notes that “Exhibit No. 1” was offered and received into evidence
without objection, there is no indication in our record as to what that exhibit was.) The State further
asserts that the affidavit was admissible under Neb. Rev. Stat. § 27-902(4) (Reissue 2008), which
allows for self-authentication of official entries or reports.
The State did not specifically address the admissibility of Johnson’s hearsay testimony
regarding domestic violence charges from March 2015.
A determination of whether or not the challenged evidence (affidavit for removal and
Johnson’s testimony regarding the domestic violence charges from March 2015) is admissible is
not necessary to our analysis because, upon our de novo review, we find that there was sufficient
evidence to terminate Michael’s parental rights even without considering the challenged evidence.
See In re Interest of Jackson E., 293 Neb. 84, 875 N.W.2d 863 (2016) (an appellate court is not
obligated to engage in an analysis that is not necessary to adjudicate the case and controversy
before it.) See, also, In re Interest of J.S., A.C., and C.S., 227 Neb. at 266, 417 N.W.2d at 157 (“In
an appeal from a judgment or order terminating parental rights, [an appellate court], in a trial de
novo on the record and disregarding impermissible or improper evidence, determines whether
there is clear and convincing evidence to justify termination of parental rights under the Nebraska
Juvenile Code.”); In re Interest of Kelley D. & Heather D., 256 Neb. 465, 590 N.W.2d 392 (1999)
(Nebraska Supreme Court assumed affidavits were inadmissible and violated father’s right to
confrontation, but reviewed other evidence de novo on the record and found it sufficient to support
juvenile court’s order of adjudication). We now set forth our de novo review of the trial record,
without considering the challenged evidence, and our determination that there is clear and
convincing evidence to terminate Michael’s parental rights.
Grounds for Termination.
In Nebraska statutes, the bases for termination of parental rights are codified in § 43-292.
Section 43-292 provides 11 separate conditions, any one of which can serve as the basis for the
termination of parental rights when coupled with evidence that termination is in the best interests
of the child. In re Interest of Elizabeth S., 282 Neb. 1015, 809 N.W.2d 495 (2012).
In its order terminating Michael’s parental rights to Isaiah and Noah, the juvenile court
found that Michael substantially and continuously or repeatedly neglected and refused to give the
children, or a sibling, necessary care and protection (§ 43-292(2)); having determined that the
children were juveniles as described in § 43-247(3)(a), reasonable efforts to preserve and reunify
the family had failed to correct the conditions leading to the determination (§ 43-292(6)); and the
children had been in out-of-home placement for 15 or more months of the most recent 22 months
(§ 43-292(7)).
Isaiah and Noah have been in an out-of-home placement continuously since June 20, 2014.
At the time the amended third motion to terminate parental rights was filed on January 6, 2016,
the children had been in an out-of-home placement for 18½ months. At the time of the termination
hearing on February 26, Isaiah and Noah had been in an out-of-home placement for 20 months.
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Our de novo review of the record clearly and convincingly shows that grounds for termination of
Michael’s parental rights under § 43-292(7) were proven by sufficient evidence.
We need not consider whether termination of Michael’s parental rights was proper pursuant
to § 43-292(2) or (6) since any one ground of the 11 identified in § 43-292 can serve as the basis
for the termination of parental rights when coupled with evidence that termination is in the best
interests of the children. See In re Interest of Elizabeth S., supra. Thus, the next inquiry is whether
termination is in the children’s best interests.
Best Interests.
Under § 43-292, once the State shows that statutory grounds for termination of parental
rights exist, the State must then show that termination is in the best interests of the child. In re
Interest of Ryder J., 283 Neb. 318, 809 N.W.2d 255 (2012). But that is not all. 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 Nicole M., 287 Neb. 685, 844
N.W.2d 65 (2014).
There is a rebuttable presumption that the best interests of a child are served by having a
relationship with his or her parent. In re Interest of Nicole M., supra. 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 a parent is unfit. Id. The term “unfitness” is not expressly used in § 43-292, but the
concept is generally encompassed by the fault and neglect subsections of that statute, and also
through a determination of the children’s best interests. Id. 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 caused, or probably will result in,
detriment to a child’s wellbeing. Id. The best interest analysis and the parental fitness analysis are
fact-intensive inquiries. Id. And while both are separate inquiries, each examines essentially the
same underlying facts as the other. Id.
Johnson testified that Isaiah and Noah have been in foster care since June 2014. When
Johnson first met Michael in July, he wanted to start visitation, but was not willing to work on any
other services. After Johnson set up a referral for weekly supervised visitation, Michael attended
one visit in July and was subsequently discharged by the visitation company in August. When
Johnson called Michael to reestablish visitation, he told her he was “‘struggling’” and would get
back to her, but never did. Following the adjudication hearing in September 2014, which Michael
did not attend, Johnson eventually located Michael at the Wahoo jail in October; he had been
arrested on September 26 “on a flight to avoid arrest, a theft, possession of meth, and habitual
criminal charges.” When Johnson visited Michael at the jail, she talked to him about the therapist
at the Wahoo jail, but he was not interested in the service. Johnson was able to refer Capstone
Behavioral Health to go to the jail to perform the court-ordered psychological and chemical
dependency evaluations since the jail did not provide such services; Michael did complete these
evaluations. Because Michael was incarcerated, Johnson was unable to provide any other services
to Michael, except for visitation.
Over the course of 9 months, from the June 2014 removal to March 2015, Michael only
had two supervised face-to-face visits and two supervised phone visits with his children. Michael
had one supervised face-to-face visit with his children in July 2014, but the visitation company
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discharged Michael in August after he failed to call and confirm future visits. While Michael was
incarcerated at the Wahoo jail, he had two 10-minute phone visits with his children in February
2015, but then the jail ended the phone visits because of Michael’s behavior issues. Michael was
able to have one more supervised face-to-face visit his children on March 29, while he was on
furlough to the Salvation Army treatment program. Subsequently, from the time he was
incarcerated at the D&E Center and/or the Penitentiary in May 2015 until the termination hearing
in February 2016, Michael and his children had two 10-minute phone visits per month.
It is undisputed that Michael’s visits with the children were positive. McCue testified that
Isaiah and Noah were very happy and excited to see Michael for the face-to-face visit at the
Salvation Army, and once they returned to phone visits the boys still enjoyed visiting with Michael
and wanted contact with him. McCue felt that Michael was helpful regarding the boys’ depression,
anxiety, and behavior issues. She believed it was important for the boys to have continued contact
with their father. Despite the fact that visits went well, Johnson believed that terminating Michael’s
parental rights was in Isaiah and Noah’s best interests. She stated the boys need safety, structure,
and a sense of well-being; they need to be able to move on emotionally. Even McCue testified that
the boys need consistency and stability. Unfortunately, Michael has been unable to provide that
for his children. Michael was unable to maintain supervised visits with his children preceding his
incarceration; he was discharged by the visitation company after one visit and when Johnson
attempted to reestablish visitation, Michael said he was “‘struggling’” and never got back to her.
Michael was further unable to maintain phone contact at the Wahoo jail because of behavior issues,
and he was limited to one face-to-face visit with his children while on furlough for treatment;
according to Michael, he was removed from the treatment program because an employee perceived
Michael’s “venting” as a threat to staff. So although Michael has had positive visits with his
children, those opportunities have been limited by his own behaviors. Michael has not
demonstrated a commitment to providing the consistency and stability his children need.
At the time of the termination hearing, Michael was serving a prison sentence of 5 years 8
months to 10 years. He is eligible for parole in December 2016, but his mandatory discharge date
is not until February 2019. Although incarceration alone cannot be the sole basis for terminating
parental rights, it is a factor to be considered. In re Interest of Jahon S., 291 Neb. 97, 864 N.W.2d
228 (2015). And we have noted that although incarceration itself may be involuntary as far as a
parent is concerned, the criminal conduct causing the incarceration is voluntary. Id. Thus, in a case
involving termination of parental rights, it is proper to consider a parent’s inability to perform his
or her parental obligations because of incarceration. Id.
Isaiah and Noah have been in foster care since June 2014. Michael’s release date from
prison is uncertain, and due to his incarceration he is unable to perform his parental obligations.
Furthermore, it is unknown when Michael will be rehabilitated, as Johnson testified that the
reasons the children are in foster care have not been addressed. 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. In re Interest of Ryder J., 283 Neb. 318, 809 N.W.2d
255 (2012). We find that the State has rebutted the presumption of parental fitness. Further, without
considering the challenged evidence, we find that there is clear and convincing evidence that it is
in the best interests of Isaiah and Noah that Michael’s parental rights be terminated.
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We note that while the best interests of the children does require the termination of
Michael’s parental rights, such termination does not necessarily preclude continued contact
between Michael and his children. See In re Interest of Stacey D. & Shannon D., 12 Neb. Ct. App.
707, 718, 684 N.W.2d 594, 603 (2004) (“juvenile court retains continuing jurisdiction to enter
orders, following the termination of a parent’s parental rights, that are consistent with the best
interests of the children, which orders may include providing for continued contact with a natural
parent”).
CONCLUSION
For the reasons stated above, we affirm the order of the juvenile court terminating
Michael’s parental rights to Isaiah and Noah.
AFFIRMED.
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