In re Interest of Joseph S. ( 2014 )

Decisions of the Nebraska Court of Appeals
706 21 NEBRASKA APPELLATE REPORTS
In re I nterest of Joseph S. et al.,
a child under 18 years of age.
State of Nebraska, appellant, v.
K erri S., appellee.
___ N.W.2d ___
Filed January 21, 2014. No. A-13-339.
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. When the evidence is in conflict, however, an appellate court
may give weight to the fact that the lower court observed the witnesses and
accepted one version of the facts over the other.
2. Parental Rights. The right of parents to maintain custody of their child is a
natural right, subject only to the paramount interest which the public has in the
protection of the rights of the child.
3. Constitutional Law: Parental Rights: Due Process. The fundamental liberty
interest of natural parents in the care, custody, and management of their children
is afforded due process protection.
4. Parental Rights: Due Process. State intervention to terminate the parent-child
relationship must be accomplished by procedures meeting the requisites of the
Due Process Clause.
5. Parental Rights: Due Process: Final Orders: Appeal and Error. Due process
rights are of such importance that a parent’s failure to appeal from an adjudica-
tion order, dispositional order, or other final, appealable order leading to the
termination of parental rights will not preclude an appellate court from reviewing
the entire proceeding for a denial of due process in an appeal from a termina-
tion order.
6. Constitutional Law: Due Process. Procedural due process includes notice to
the person whose right is affected by the proceeding; reasonable opportunity
to refute or defend against the charge or accusation; reasonable opportunity
to confront and cross-examine adverse witnesses and present evidence on the
charge or accusation; representation by counsel, when such representation
is required by the Constitution or statutes; and a hearing before an impartial
decisionmaker.
Appeal from the Separate Juvenile Court of Douglas County:
Elizabeth Crnkovich, Judge. Affirmed.
Donald W. Kleine, Douglas County Attorney, and Jennifer
Chrystal-Clark for appellant.
Thomas C. Riley, Douglas County Public Defender, Christine
D. Kellogg, and Zoë Wade for appellee.
Maureen K. Monahan, guardian ad litem.
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF JOSEPH S. ET AL. 707
Cite as 21 Neb. App. 706Irwin, Pirtle, and Bishop, Judges.
Pirtle, Judge.
INTRODUCTION
The State of Nebraska appeals the order of the separate
juvenile court of Douglas County finding that the three minor
children of Kerri S. did not come within the meaning of Neb.
Rev. Stat. § 43-292(2) (Cum. Supp. 2012) and finding that it
was not in the children’s best interests to terminate Kerri’s
parental rights. This appeal presents us with an apparent issue
of first impression, that being whether a parent’s noncom-
pliance with State-offered services which are voluntary in
nature may serve as a basis to terminate the parent’s rights
under § 43-292(2). The juvenile court answered that question
in the negative. Because we agree with the juvenile court,
we affirm.
BACKGROUND
Kerri is the biological mother of Joseph S., born in January
2000; William S., born in November 2005; and Steven S., born
in December 2006.
Kerri and the children came to the attention of the Nebraska
Department of Health and Human Services (DHHS) on March
16, 2009. In that case, Kerri was found to have completed the
court-ordered and court-monitored plan. The children were
returned to her care, and the case was closed successfully in
November 2011.
Kerri’s family attracted the attention of DHHS a few months
later, and she cooperated with services on a voluntary basis.
Kerri had tested positive for cocaine, and she began volun-
tary urinalysis (UA) testing. The “voluntary” stage of DHHS’
involvement with Kerri lasted until August 2012, approxi-
mately 8 months.
On August 9, 2012, the State filed a petition alleging the chil-
dren were within the meaning of Neb. Rev. Stat. § 43-247(3)(a)
(Reissue 2008) by reason of the faults or habits of Kerri. The
State also filed a motion for temporary custody and an affi-
davit for removal of the minor children from the home. The
juvenile court ordered DHHS to take immediate custody of the
minor children.
Decisions of the Nebraska Court of Appeals
708 21 NEBRASKA APPELLATE REPORTS
The petition alleged the children came within the mean-
ing of § 43-247(3)(a) in that (1) Kerri’s use of alcohol and/or
controlled substances placed the children at risk for harm; (2)
Kerri had been offered voluntary services with DHHS and the
Nebraska Families Collaborative (NFC), but she failed to par-
ticipate or engage in services; (3) Kerri failed to put herself in
a position to appropriately parent the children; (4) Kerri failed
to provide safe, stable, and/or appropriate housing; (5) Kerri
failed to provide proper parental care and support for the chil-
dren; and (6) due to the above allegations, the children were at
risk for harm.
On December 19, 2012, the State filed an amended peti-
tion. Count III alleged the children were within the meaning
of § 43-292(2) because Kerri substantially and continuously
or repeatedly neglected and refused to give the children or a
sibling of the children necessary parental care and protection.
Count IV alleged termination of Kerri’s parental rights was in
the best interests of the children.
An adjudication hearing took place in this case on March
13, 2013.
Melissa Misegadis, a family permanency supervisor with
NFC, testified that she began working with Kerri in July 2010
as the family’s service coordinator. Misegadis testified that the
children were out of the home during the first case for 1 year,
between July 2010 and July 2011. Misegadis testified that the
family was offered supervised visitation; family support; peer-
to-peer mentoring; mental health services, including individual
and family therapy; random drug testing; and psychotropic
medication management.
Misegadis testified that during the pendency of the case,
Kerri was not consistently compliant with the services, but
that “Kerri would always end up doing as we had asked her
to do.” Misegadis said Kerri’s biggest issue was “follow-
through,” consistently attending every visit, completing all UA
testing, and participating in every appointment. Despite these
issues, Misegadis recommended that the children be returned
to Kerri’s home because Kerri had been demonstrating a sober
lifestyle and the ability to make appropriate decisions regard-
ing whom she would allow her children to be around. Kerri
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF JOSEPH S. ET AL. 709
Cite as 21 Neb. App. 706was visiting with the children consistently, was compliant with
her medication management, and had positive reports from
her therapist. Misegadis testified that Kerri completed “family
support,” as well as individual therapy and family therapy. She
also testified that Kerri had a positive UA test in September or
October 2010, but did not have another through the close of
that case on November 28, 2011.
At that time, Misegadis referred the family to aftercare
through NFC, because she was concerned about a possible
relapse. Misegadis had no further contact with the family until
an intake occurred on December 20, 2011. DHHS investigated
the intake and determined it was unfounded.
On January 12, 2012, DHHS received another intake with
allegations that the children were left with a relative and that
Kerri was unreachable. There was also concern that there was
a lack of supervision and that Kerri was using methamphet-
amine. Misegadis said that DHHS transferred the case to NFC
and that Kerri indicated she was willing to work with DHHS
on a voluntary basis. Misegadis testified a parent can ask that
his or her children be returned to the home at any time. She
stated that if a parent requests the return of the children to the
home and that there are safety concerns, there is a possibility
DHHS will file for removal in juvenile court.
Misegadis attended team meetings, and Kerri agreed to UA
testing to alleviate concerns about drug use. Kerri admitted to
using marijuana and indicated it was an isolated incident. Kerri
signed a voluntary placement agreement, placing the children
in foster care and making them wards of the State. Misegadis
testified that the timeframe for voluntary placement is 180 days
and that the parent can request that a child be returned to them
at any time during the 180-day timeframe. Misegadis testified
Kerri did not consistently take part in the requested UA test-
ing during the voluntary period. She testified that in August
2012, the NFC staff learned the voluntary placement was to
end, so it made the decision to file for removal due to safety
concerns which would arise if the children were to return to
Kerri’s home.
Anne Petzel, a family permanency specialist employed by
NFC, testified that she worked with Kerri and the children
Decisions of the Nebraska Court of Appeals
710 21 NEBRASKA APPELLATE REPORTS
between August 6 and 13, 2012. Petzel testified that she con-
ducted a drop-in visit to Kerri’s home on August 6 and found
that the home was in disarray. Petzel testified there were piles
of clothes around the home; beds “propped against the wall,
unmade”; and people in the home who did not belong there.
She testified that she saw a woman sleeping on one of the beds
with no sheets, graffiti on the walls, and empty alcohol bottles
around the home. Petzel said that there were approximately
five adults in the house and that Kerri described these adults
as friends who were there to help her paint and get the home
ready for the children to return.
Petzel said that Kerri stated she would remove the alcohol
bottles before the children returned to the home and that they
discussed safety guidelines and the expectation that the home
must be clean. Kerry told Petzel that the home would be ready
for the children to return on August 15, 2012. Petzel stated
that the kitchen was clean, although there was little food in the
refrigerator, and that there were no foul odors throughout the
residence. Petzel said that the case was then transferred to a
court-specific team; such teams are employed after a voluntary
case goes to court.
Brenda Alvarado, a drug test specialist, testified that Kerri
became her client in November 2011 and remained her client
at the time of the adjudication.
Alvarado testified that in January 2012, Kerri was tested
on a weekly basis, and that her frequency increased to eight
times per month in June 2012. Alvarado testified that Kerri
consistently submitted to UA testing four to five times per
month until July. Between January and July 2012, Kerri tested
positive for amphetamines during the first test; a mixture of
amphetamines, THC, and methamphetamine during the second
test; and methamphetamine during the third test.
There were a few tests between July and December 2012,
and the results were negative. During this time period, the UA
testing was voluntary. Alvarado testified that during that period,
she frequently had trouble contacting Kerri by telephone, and
that when that happened, she would either proceed to Kerri’s
home or notify Kerri’s family permanency supervisor.
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF JOSEPH S. ET AL. 711
Cite as 21 Neb. App. 706The frequency of the UA testing decreased to once a month
in March 2013. Alvarado stated that she received one UA test
from Kerri in 2013 and that she was unsuccessful two other
times because she did not have reliable contact information for
Kerri. The preliminary test in March 2013, which was taken
the Saturday before the hearing, was negative.
Tiffany Martin, a family permanency specialist employed
by NFC, testified that she began working with Kerri in August
2012 and was the family permanency supervisor at the time
of adjudication. Martin testified that she met with Kerri on
September 6 at NFC and that they discussed visitation and
Kerri’s mental health. At the time of the meeting, visits had
ceased because of lack of consistency. Martin testified that
by the next team meeting in November 2012, Kerri was liv-
ing with a friend and no longer had her own residence. Kerri
accepted family support services, but Martin said they were
not set up. Martin testified that UA testing was still in place
and that Kerri was attending Alcoholics Anonymous meet-
ings. Martin testified that she had difficulty making contact
with Kerri and that team meetings did not occur in October or
December 2012.
At a team meeting in January 2013, Kerri reported that
she started participating in an intensive outpatient program
through a family service organization and that she had a psy-
chiatric evaluation set up through a doctor. Martin testified
that she was later informed that Kerri was on the waiting list.
Martin testified that Kerri “was on her medication” and that
she “seemed to be in a very positive place.” After the team
meeting in January, Kerri attended one visit with the children,
and Martin testified Kerri did not make progress or engage in
services. Martin testified that there may have been more vis-
its, but that she had not talked with all of the individuals who
were approved for visits. Martin testified that Kerri’s parental
rights should be terminated because of her lack of progress
and the length of time the children had been in foster care.
Martin testified that Kerri was supposed to set up a psychiatric
evaluation, but Martin did not hear from Kerri about whether
the appointment was scheduled, and that she was not able to
Decisions of the Nebraska Court of Appeals
712 21 NEBRASKA APPELLATE REPORTS
contact Kerri “to follow up.” Martin testified she relied on
Kerri to set up her own services because it is important for
parents to make efforts in their own behalf.
The juvenile court found the children to be within the
jurisdiction of the court and found the children to be within
the meaning of § 43-247(3)(a) by a preponderance of the
evidence. The juvenile court found that the children did not
come within the meaning of § 43-292(2) and that it was not in
the best interests of the children to terminate Kerri’s parental
rights. The juvenile court dismissed counts III and IV of the
amended petition for failure to present a prima facie case. The
court ordered the children to remain in the temporary custody
of DHHS.
The State timely appeals.
ASSIGNMENTS OF ERROR
The State asserts that the juvenile court erred in not finding
clear and convincing evidence Kerri’s parental rights should be
terminated under § 43-292(2) and that termination of parental
rights was in the children’s best interests.
STANDARD OF REVIEW
[1] An appellate court reviews juvenile cases de novo on
the record and reaches its conclusions independently of the
juvenile court’s findings. When the evidence is in conflict,
however, an appellate court may give weight to the fact that the
lower court observed the witnesses and accepted one version of
the facts over the other. In re Interest of Kendra M. et al., 283
Neb. 1014, 814 N.W.2d 747 (2012).
ANALYSIS
[2,3] The right of parents to maintain custody of their child
is a natural right, subject only to the paramount interest which
the public has in the protection of the rights of the child. In re
Interest of Mainor T. & Estela T., 267 Neb. 232, 674 N.W.2d
442 (2004). The fundamental liberty interest of natural par-
ents in the care, custody, and management of their children is
afforded due process protection. Id.Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF JOSEPH S. ET AL. 713
Cite as 21 Neb. App. 706[4,5] State intervention to terminate the parent-child rela-
tionship must be accomplished by procedures meeting the req-
uisites of the Due Process Clause. In re Interest of Mainor T.
& Estela T., supra. Due process rights are of such importance
that a parent’s failure to appeal from an adjudication order, dis-
positional order, or other final, appealable order leading to the
termination of parental rights will not preclude this court from
reviewing the entire proceeding for a denial of due process in
an appeal from a termination order. See id.This is not an appeal of a termination order, but, rather, an
appeal of an order of the juvenile court which did not terminate
a mother’s parental rights for want of clear and convincing evi-
dence that the statutory provisions of § 43-292 were met and
that termination was in the children’s best interests.
The evidence shows that in January 2012, Joseph, William,
and Steven were not under the jurisdiction of the juvenile
court, but that they were removed from Kerri’s home because
she had agreed to cooperate with services of NFC on a volun-
tary basis. The voluntary basis period was to last for a term of
180 days. After the voluntary period, the State filed pleadings
to adjudicate the children, bringing them under the jurisdiction
of the juvenile court. Shortly after doing this, the State filed an
amended petition seeking termination of Kerri’s parental rights.
The facts supporting the termination consisted of evidence
from a previous juvenile case which had been satisfactorily
completed and closed, as well as evidence of Kerri’s actions
during the voluntary basis period.
As stated earlier, this is a case of first impression, because
this court and the Nebraska Supreme Court have not previously
considered any cases where the removal of children and the
eventual petition to terminate parental rights stem from a “vol-
untary basis” agreement. Though the nuances of a voluntary
basis agreement have not been considered by Nebraska courts,
the law with regard to due process is well established.
[6] Procedural due process includes notice to the person
whose right is affected by the proceeding; reasonable oppor-
tunity to refute or defend against the charge or accusation;
reasonable opportunity to confront and cross-examine adverse
Decisions of the Nebraska Court of Appeals
714 21 NEBRASKA APPELLATE REPORTS
witnesses and present evidence on the charge or accusation;
representation by counsel, when such representation is required
by the Constitution or statutes; and a hearing before an impar-
tial decisionmaker. In re Interest of Mainor T. & Estela T., 267
Neb. 232, 674 N.W.2d 442 (2004).
The Nebraska Juvenile Code provides for such due process
protections for both parents and children. The code specifically
cites that it is to “provide a judicial procedure through which
these purposes and goals are accomplished and enforced in
which the parties are assured a fair hearing and their constitu-
tional and other legal rights are recognized and enforced.” Neb.
Rev. Stat. § 43-246(7) (Cum. Supp. 2012).
Based upon our review of the record, there is little evidence
that Kerri or the children were afforded due process at the
beginning, or throughout the voluntary phase, of this case. The
voluntary placement agreement was not entered into evidence,
so we cannot determine whether Kerri was made aware that
concerns about her alleged drug use and alleged inability to
appropriately and safely provide for the children placed them
at risk for harm. There is no evidence that Kerri was advised to
consult with an attorney about voluntarily placing her children
in the care of the State, which effectively gave the State legal
custody of the children.
It is unclear whether Kerri was informed that she had the
right to request the return of the children to the home at any
time during the 180-day voluntary period or whether she was
aware that requesting the return of the children could trigger a
filing for removal in the juvenile court.
Also, there is no evidence that she was represented by an
attorney during the voluntary period, nor did she have a hear-
ing to address or refute the allegations before an impartial
decisionmaker. While it is likely that Kerri was aware of the
allegations of drug use, because she agreed to participate in
UA testing, the testing was voluntary and was not part of a
court-ordered plan. There is no evidence that she was advised
to consult with an attorney before voluntarily participating in
services. Further, there is no evidence Kerri was aware that
making such an agreement could result in evidence of her
level of compliance with the plan, which evidence could then
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF JOSEPH S. ET AL. 715
Cite as 21 Neb. App. 706be used against her when the children were adjudicated and a
petition was filed to terminate her parental rights.
Once a case is adjudicated under § 43-247(3)(a), the State is
charged with identifying a plan for the family and establishing
services to achieve the goals of the plan. DHHS has the duty
to file a report and a case plan within 30 days after a juvenile
has been placed in its custody and every 6 months thereafter.
Neb. Rev. Stat. § 43-285(3) (Cum. Supp. 2012). The prosecu-
tor, attorneys, and guardian ad litem all have the opportunity
to agree, disagree, or ask for additions to or deletions from the
plan, and the guardian ad litem submits a report. In addition,
unless the case comes under a specific exception, when chil-
dren are removed from the parental home, a court must make
a finding that the State has made reasonable efforts to preserve
and reunify the family under Neb. Rev. Stat. § 43-283.01(Cum. Supp. 2012).
The voluntary placement agreement in this case circum-
vented the established statutory processes for removal and
petitions for termination of parental rights, and we find Kerri
was denied due process of law. As a result, Kerri’s compliance
during the voluntary basis period is not acceptable evidence to
be used to satisfy the statutory requirements to terminate her
parental rights.
CONCLUSION
We find the evidence used to support the termination of
Kerri’s parental rights to her children was a violation of her
due process rights. We find the juvenile court did not err in
finding there was not clear and convincing evidence to support
the termination of Kerri’s parental rights under § 43-292(2).
Affirmed.