In re Interest of Athina M. ( 2014 )

Decisions of the Nebraska Court of Appeals
624 21 NEBRASKA APPELLATE REPORTS
upon the same grounds. As we previously concluded, the evi-
dence was sufficient to sustain Warrack’s convictions on both
counts. Because Warrack fails to allege how he was prejudiced
by this action, we reject this claim.
V. CONCLUSION
We conclude Warrack’s arrest was lawful, because he was
not arrested until he had willingly stepped from his porch onto
the sidewalk and he had no reasonable expectation of privacy
on the sidewalk. Therefore, the district court did not err in
denying his motion to suppress. In addition, the court prop-
erly overruled Warrack’s foundational objection to Kozian’s
testimony, because Kozian’s credibility was a matter solely
for the jury to determine. We also find that the State adduced
sufficient evidence to support Warrack’s convictions on both
counts. Finally, we reject all six of Warrack’s claims of inef-
fective assistance of counsel because he failed to allege how
he was prejudiced by trial counsel’s actions. Accordingly, we
affirm Warrack’s convictions for aiding and abetting deliv-
ery of methamphetamine within 1,000 feet of a school and
attempted delivery of methamphetamine.
Affirmed.
In re I nterest of
Athina M., a child
under18 years of age.
State of Nebraska, appellee, v.
Darwin M., appellant.
___ N.W.2d ___
Filed January 7, 2014. No. A-13-189.
1. Juvenile Courts: Evidence: Appeal and Error. Cases arising under the
Nebraska Juvenile Code are reviewed de novo on the record, and an appellate
court is required to reach a conclusion independent of the trial court’s findings.
However, when the evidence is in conflict, the appellate court will consider and
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: Proof. Neb. Rev. Stat. § 43-292 (Cum. Supp. 2012) provides
11 separate conditions, any one of which can serve as the basis for the termina-
tion of parental rights when coupled with evidence that termination is in the best
interests of the child.
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF ATHINA M. 625
Cite as 21 Neb. App. 6243. Parental Rights: Words and Phrases. A termination of parental rights is a
final and complete severance of the child from the parent and removes the entire
bundle of parental rights.
4. Parental Rights. Parental rights should be terminated only in the absence of any
reasonable alternative and as the last resort.
5. Parental Rights: Evidence: Proof. To terminate parental rights, the State must
prove by clear and convincing evidence that termination is in the child’s best
interests.
6. Parent and Child. The law does not require perfection of a parent; instead,
courts should look for the parent’s continued improvement in parenting skills and
a beneficial relationship between parent and child.
Appeal from the Separate Juvenile Court of Lancaster
County: R eggie L. Ryder, Judge. Reversed and remanded for
further proceedings.
Angelica W. McClure, of Kotik & McClure Law, for
appellant.
Joe Kelly, Lancaster County Attorney, and Maureen Lamski
for appellee.
Irwin, Pirtle, and Bishop, Judges.
Bishop, Judge.
Darwin M. appeals from the decision of the separate juve-
nile court of Lancaster County terminating his parental rights
to his daughter, Athina M. Upon our de novo review, we find
that the State failed to prove by clear and convincing evidence
that termination is in Athina’s best interests. We therefore
reverse, and remand for further proceedings.
BACKGROUND
Darwin is the biological father of Athina, born in September
2010. Although it was undisputed that Darwin was Athina’s
father, his paternity was confirmed via genetic testing in June
2011. Karla M. is the biological mother of Athina. Darwin and
Karla were not married when Athina was born, but were mar-
ried 3 days after her birth. Athina was removed from Karla’s
care 2 days after her birth because Karla had had two other
children removed from her care and had not corrected the con-
ditions leading to the adjudication of those two children. We
note that Darwin is not the biological father of Karla’s other
Decisions of the Nebraska Court of Appeals
626 21 NEBRASKA APPELLATE REPORTS
children. Darwin was interviewed following Athina’s birth, and
it was determined he did not have a stable residence for Athina.
Athina was placed in the temporary custody of the Nebraska
Department of Health and Human Services (DHHS), which
placed her in foster care.
Athina was adjudicated in November 2010, due to the faults
or habits of Karla. The court found that Athina should remain
in the custody of DHHS.
Athina’s case came before the juvenile court for numerous
review and permanency hearings throughout 2011 and 2012.
The parents were provided with numerous services. Karla did
not cooperate with services, and her visits with Athina were
not productive. Darwin, however, was cooperative with serv­
ices, including individual therapy, coparenting counseling,
parenting classes, and supervised visitation. During the spring
and summer of 2012, Darwin’s visitations progressed from
supervised to monitored to overnight. He made so much prog-
ress that Athina was placed in his physical custody on August
9, 2012.
On September 8, 2012, Darwin was arrested and jailed.
Athina was returned to the foster home in which she resided
prior to her brief placement with Darwin. Darwin eventually
pled no contest to making terroristic threats, a Class IV felony.
He remained in jail pending his sentencing, which was sched-
uled for February 26, 2013. Darwin did not have visitation with
Athina while he was in jail, because a glass barrier would have
separated Darwin and Athina during visits and DHHS did not
think it was in Athina’s best interests to have visits in this man-
ner due to her young age.
On November 13, 2012, the State filed a motion to terminate
Darwin’s parental rights to Athina pursuant to Neb. Rev. Stat.
§ 43-292(2), (6), and (7) (Cum. Supp. 2012). The State alleged
that Darwin had substantially and continuously or repeatedly
neglected and refused to give the child necessary parental
care and protection, that reasonable efforts had failed to cor-
rect the conditions leading to the adjudication, that the child
had been in an out-of-home placement for 15 or more of the
most recent 22 months, and that termination was in the child’s
best interests.
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF ATHINA M. 627
Cite as 21 Neb. App. 624The State also moved to terminate Karla’s parental rights
to Athina, which motion the juvenile court ultimately granted.
But because Karla has not appealed that decision, we will not
discuss any evidence presented as to her at the termination
hearing. We simply note that at the time of the termination
hearing, Darwin and Karla were separated and Darwin testified
that their final divorce hearing was scheduled for the follow-
ing month.
The termination hearing was held on February 11, 2013.
Katy Rawhouser, a children and family services specialist with
DHHS, was the only witness for the State. Rawhouser began
working with Darwin and Athina in May 2012. Rawhouser
testified that Darwin’s parental rights should be terminated
because he was incarcerated at that time and was unable to
provide care for Athina. Rawhouser stated that Athina was
able to be placed with Darwin for only approximately 30 days
“despite a good deal of effort made on the part of [DHHS]
to get her there” and that “at this time, [Athina is] in need
of permanency.”
On cross-examination, Rawhouser testified that Darwin had
done everything that he was asked to do; he completed indi-
vidual therapy, couple’s counseling, a parenting class, and
supervised and monitored visits. She stated that in May 2012,
Darwin had supervised visits with Athina two times each
week, and he progressed to having monitored visits and then
overnight visits. Rawhouser acknowledged that Darwin was
appropriate with Athina, that he had a bond with her, and that
there were no safety concerns. When asked the following by
Darwin’s counsel: “[I]f [Darwin] were to get released at the
end of this month, would that change your opinion in regards
to terminating his parental rights?” Rawhouser responded, “If
he was already released I think we’d be looking at possibly
re-evaluating, but given that he’s not currently released, no it
doesn’t change my position.”
The court then questioned Rawhouser as follows:
Q . . . at the time of the removal at Athina’s birth,
[Darwin] was interviewed, and at that time, he did not
have a stable residence or the ability to provide for her; is
that your understanding?
Decisions of the Nebraska Court of Appeals
628 21 NEBRASKA APPELLATE REPORTS
A Correct.
Q And it took over approximately two years from birth
until he was in a position where you could recommend
that — or [DHHS] could recommend Athina be placed in
his care?
A That’s correct. She was not quite two years old at
the time.
Q And do you know when the date of the offense is
for the terroristic threat that he is incarcerated for and
pending sentencing? Did that occur during the month that
Athina was with him?
A I believe so, yes.
....
Q And since he was arrested in September of 2012, has
he been incarcerated continuously since that time?
A Yes.
....
Q Does he have a criminal history?
A Yes.
Q Do you know what that is?
A It’s a lengthy criminal history. I don’t know exactly
what’s all —
Q Does that — does that include prison sentences; do
you know?
A I — I do believe he’s got a felony criminal history.
Q And if he were to be released on February 26th of
2013, first of all, nobody as part of this case, know if
that’s going to happen; is that fair to say?
A That’s true.
....
Q And even if the District Court Judge made a decision
to release [Darwin], you wouldn’t necessarily be asking
for Athina to be placed in his care upon his release from
incarceration; would that be fair to say?
A That’s true.
Q You’d want to do some further assessments in terms
of the entirety of [Darwin] and see where things are,
where he’s living, where he’s working, how’d he support
her, resuming visitation and contact; is that right?
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF ATHINA M. 629
Cite as 21 Neb. App. 624A Right.
Q And he hasn’t had any since he’s been arrested, any
contact or visitation?
A That’s true.
Q So you indicated there are no safety concerns regard-
ing [Darwin]. There could be one in terms of the terroris-
tic threat occurring while he was providing her care?
A There could be.
Darwin also testified at the termination hearing. He stated
that he was incarcerated in the Lancaster County jail and was
awaiting sentencing on a Class IV felony. Darwin indicated
that his criminal defense attorney did not think he would be
sentenced to more than a year, “which would be time served
because I’ve been in for six months.” Darwin testified that
this was his first felony and that his criminal history included
misdemeanors, mainly driving violations such as driving on
suspension, but did not include assaults or an “aggressive
criminal history.”
Darwin testified that Athina was with him when he was
arrested and when the act was committed. Darwin stated
that at the time, he and Athina were with a neighbor and her
children, and that when he was arrested, he left Athina with
his mother.
Darwin testified that when he is released from jail, he would
have housing and a job. He would return to his apartment; he
had prepaid several months’ rent, and his mother had moved
into the apartment temporarily to keep it occupied and to take
care of any additional rent. Darwin also testified that his friend
owned a tile company and would employ him when he is
released from jail.
In its order filed on February 11, 2013, the juvenile court
terminated Darwin’s parental rights to Athina pursuant to
§ 43-292(2), (6), and (7) and found that termination was in
Athina’s best interests. Darwin has timely appealed the juve-
nile court’s termination of his parental rights.
ASSIGNMENT OF ERROR
Darwin assigns that the juvenile court erred in finding that
terminating his parental rights was in Athina’s best interests.
Decisions of the Nebraska Court of Appeals
630 21 NEBRASKA APPELLATE REPORTS
STANDARD OF REVIEW
[1] Cases arising under the Nebraska Juvenile Code are
reviewed de novo on the record, and an appellate court is
required to reach a conclusion independent of the trial court’s
findings. However, when the evidence is in conflict, the appel-
late court will consider and 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 Rylee S., 285 Neb.
774, 829 N.W.2d 445 (2013).
ANALYSIS
Grounds for Termination.
[2] In the Nebraska statutes, the bases for termination of
parental rights are codified in § 43-292. Section 43-292 pro-
vides 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 Sir Messiah T. et al., 279 Neb. 900, 782 N.W.2d
320 (2010).
In its order terminating Darwin’s parental rights to Athina,
the juvenile court found that Darwin substantially and contin­
uously neglected to give the child necessary parental care and
protection (§ 43-292(2)), that reasonable efforts failed to cor-
rect the condition which led to the adjudication (§ 43-292(6)),
and that the child had been in an out-of-home placement for 15
or more months of the most recent 22 months (§ 43-292(7)).
Darwin does not contest the juvenile court’s finding that
grounds for terminating his parental rights exist. And having
reviewed the record, we find that grounds did exist. Section
43-292(7) provides for termination of parental rights when
“[t]he juvenile has been in an out-of-home placement for fif-
teen or more months of the most recent twenty-two months.”
Athina was removed from parental care in September 2010,
2 days after her birth. Other than being placed with Darwin
from August 9 to September 8, 2012, Athina has remained in
foster care. At the time the motion to terminate parental rights
was filed on November 13, Athina had been in an out-of-home
placement for nearly 25 out of 26 months. Our de novo review
of the record clearly and convincingly shows that grounds for
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF ATHINA M. 631
Cite as 21 Neb. App. 624termination of Darwin’s parental rights under § 43-292(7) were
proved by sufficient evidence. Once a statutory basis for termi-
nation has been proved, the next inquiry is whether termination
is in the child’s best interests.
Best Interests.
[3,4] Darwin argues that the juvenile court erred in find-
ing that terminating his parental rights was in Athina’s best
interests. Section 43-292 requires that parental rights can be
terminated only when the court finds that termination is in
the child’s best interests. A termination of parental rights is
a final and complete severance of the child from the parent
and removes the entire bundle of parental rights. In re Interest
of Crystal C., 12 Neb. App. 458, 676 N.W.2d 378 (2004).
Therefore, with such severe and final consequences, parental
rights should be terminated only “‘[i]n the absence of any
reasonable alternative and as the last resort . . . .’” See In re
Interest of Kantril P. & Chenelle P., 257 Neb. 450, 467, 598
N.W.2d 729, 741 (1999). However,
[w]here a parent is unable or unwilling to rehabilitate
himself or herself within a reasonable time, the best inter-
ests of the child require termination of the parental rights.
In re Interest of Andrew M. et al., 11 Neb. App. 80, 643
N.W.2d 401 (2002). Children cannot, and should not, be
suspended in foster care or be made to await uncertain
parental maturity. In re Interest of Phyllisa B., 265 Neb.
53, 654 N.W.2d 738 (2002).
In re Interest of Stacey D. & Shannon D., 12 Neb. App. 707,
717, 684 N.W.2d 594, 602 (2004).
Initially, we note that the bill of exceptions in this case is
composed of only 43 pages, of which 26 pages were testimony.
The State’s case for termination of Darwin’s parental rights
was based on Darwin’s incarceration and Athina’s need for
permanency. Regarding Darwin’s incarceration, Darwin pled
no contest to making terroristic threats. However, no details
about the crime or the context in which it occurred were set
forth in the juvenile court record. We know only that Darwin
and Athina were with a neighbor and her children at the time
of the incident.
Decisions of the Nebraska Court of Appeals
632 21 NEBRASKA APPELLATE REPORTS
Darwin was scheduled to be sentenced 2 weeks after the
termination hearing; however, no motion appears in the record
to continue the termination hearing until after Darwin’s sen-
tencing in the criminal case. Terroristic threats is a Class IV
felony, which is punishable by up to 5 years’ imprisonment.
See Neb. Rev. Stat. § 28-105 (Cum. Supp. 2012). Under the
sentencing guidelines, Darwin could be placed on probation.
Moreover, Darwin testified that his lawyer did not think he
would be sentenced to more than 1 year’s imprisonment,
which would mean he would be released for time served.
Rawhouser testified that if Darwin had already been released,
DHHS would possibly reevaluate terminating his parental
rights. Since Darwin was not released at the time of the ter-
mination hearing, Rawhouser recommended terminating his
parental rights.
The visitation reports that were received into evidence at
the termination hearing show that Darwin is a loving parent to
Athina and that there were no safety concerns. He did have a
3-month period of time in the summer and fall of 2011 when
he was incarcerated and was unable to see Athina (the underly-
ing reason for his incarceration does not appear in our record).
After his release in October 2011, Darwin resumed visitations
with Athina. Darwin was also cooperative with services pro-
vided to him. In fact, he made so much progress that Athina
was placed with him on a full-time basis in August 2012.
Rawhouser acknowledged that without Darwin’s September
2012 incarceration, there would be no other reason to remove
Athina from his care.
[5] The State must prove by clear and convincing evidence
that termination is in Athina’s best interests. See In re Interest
of Sir Messiah T. et al., 279 Neb. 900, 782 N.W.2d 320 (2010).
After our review of the record, we find the State failed to meet
its burden. The State’s only reasons for wanting to terminate
Darwin’s rights are that he was incarcerated at the time of
the termination hearing and that Athina needs permanency.
However, there was a possibility that Darwin would have
been released just 2 weeks later, which Rawhouser testified
would merit a possible reevaluation of termination. Darwin
has always been a loving parent to Athina, and by all accounts,
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF ATHINA M. 633
Cite as 21 Neb. App. 624they have a strong bond. Rawhouser testified that there were
no safety concerns regarding Darwin, and it was only upon the
court’s questioning that she stated that there “could be” safety
concerns in terms of the terroristic threat occurring while
Darwin was providing care for Athina. However, “could be”
does not rise to the level of clear and convincing evidence.
And we note again that no details about the crime or the con-
text in which it occurred were set forth in the juvenile court
record, except to say that Athina was present at the time of
the incident. The evidence put forth by the State in this case
does not meet the clear and convincing standard necessary to
prove that it is in Athina’s best interests to terminate Darwin’s
parental rights, particularly in light of Rawhouser’s equivo-
cal testimony.
We note that in its order terminating Darwin’s parental
rights, the juvenile court gave great weight to Athina’s time
in an out-of-home placement in this case, noting that Athina
had spent 28 of 29 months in an out-of-home placement. The
court also stated that Darwin faced a possible period of incar-
ceration of up to 5 years, that Darwin would need to establish
he can remain a law-abiding citizen, and that Darwin would
need to demonstrate he can maintain a suitable residence
and a legal means of support, all of which will take time
and result in Athina’s spending even more time in an out-of-
home placement.
“Regardless of the length of time a child is placed outside
the home, it is always the State’s burden to prove by clear and
convincing evidence that the parent is unfit and that the child’s
best interests are served by his or her continued removal from
parental custody.” In re Interest of Angelica L. & Daniel L.,
277 Neb. 984, 1006, 767 N.W.2d 74, 92 (2009). In cases that
address best interests based on the length of time the child has
been in an out-of-home placement, other factors, such as the
parent’s lack of involvement or inability to make progress, are
also present. See In re Interest of Jagger L., 270 Neb. 828,
708 N.W.2d 802 (2006) (termination of parental rights was in
child’s best interests when father knew child was in out-of-
home placement since October 2002 but had no face-to-face
contact with child until September 2004, 4 months after the
Decisions of the Nebraska Court of Appeals
634 21 NEBRASKA APPELLATE REPORTS
motion to terminate parental rights was filed and 24 months
after child was placed in foster care). See, also, In re Interest
of Destiny A. et al., 274 Neb. 713, 742 N.W.2d 758 (2007)
(termination of parental rights was in children’s best interests
because mother was unwilling or unable to rehabilitate her-
self; children were removed because of mother’s drug use;
and more than 3 years after removal, mother tested positive
for methamphetamine, missed three subsequent drug tests, and
failed to appear for her therapy sessions).
The instant case is distinguishable in that Darwin was a
loving and involved parent to Athina. Furthermore, Darwin
made significant progress in this case. Between May and
August 2012, he transitioned from having fully supervised
visits to having Athina placed in his home on a full-time
basis. This is not a case in which best interests can be based
solely on the length of time Athina has been in an out-of-
home placement.
[6] Darwin did plead no contest to making terroristic threats,
but we have already established that any potential prison time
is speculative and thus should not be a basis for terminating
Darwin’s parental rights. Although he faced a possible period
of incarceration of up to 5 years, he could have been sentenced
to probation or released on time served. And Darwin testified
that upon his release, he will be moving back into his previ-
ous residence and working for a friend. Thus, it appears that
Darwin already has a plan in place for getting his life back on
track. The law does not require perfection of a parent; instead,
courts should look for the parent’s continued improvement
in parenting skills and a beneficial relationship between par-
ent and child. In re Interest of Jacob H. et al., 20 Neb. App.
680, 831 N.W.2d 347 (2013). As stated previously, Darwin did
make significant progress in this case, and Rawhouser testified
that Darwin is a loving parent to Athina, that he is appropri-
ate with her, that he has a bond with her, and that there are
no safety concerns. It was only upon the court’s questioning
that Rawhouser stated that there “could be” safety concerns
in terms of the terroristic threat occurring while Darwin was
providing care for Athina. But, as we stated previously, the
circumstances surrounding the September 2012 incident are
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF ATHINA M. 635
Cite as 21 Neb. App. 624not set forth in our record. We do not know what impact, other
than temporary separation from Darwin, the incident had on
Athina. The evidence put forth by the State in this case does
not meet the clear and convincing standard necessary to prove
that it is in Athina’s best interests to terminate Darwin’s paren-
tal rights. Accordingly, we find that the juvenile court erred in
terminating Darwin’s parental rights to Athina.
CONCLUSION
For the reasons stated above, we reverse the order of the
juvenile court terminating Darwin’s parental rights to Athina
and remand the cause for further proceedings.
R eversed and remanded for
further proceedings.