In re Interest of Carmello W. & Zavion W. ( 2018 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
IN RE INTEREST OF CARMELLO W. & ZAVION W.
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 CARMELLO W. AND ZAVION W.,
CHILDREN UNDER 18 YEARS OF AGE.
STATE OF NEBRASKA, APPELLEE,
V.
DARNITA W., APPELLANT.
Filed October 23, 2018. No. A-18-189.
Appeal from the Separate Juvenile Court of Douglas County: DOUGLAS F. JOHNSON, Judge.
Affirmed.
Renee L. Mathias, of Schaefer Shapiro, L.L.P., for appellant.
Donald W. Kleine, Douglas County Attorney, and Anthony Hernandez for appellee.
PIRTLE, BISHOP, and ARTERBURN, Judges.
PIRTLE, Judge.
INTRODUCTION
Darnita W. appeals the order of the separate juvenile court of Douglas County terminating
her parental rights to her two children, Carmello W. and Zavion W. She challenges the statutory
grounds for termination as well as the court’s finding that terminating her parental rights was in
the children’s best interests. Following our de novo review of the record, we affirm.
BACKGROUND
Darnita is the natural mother of Carmello, born July 2007, and Zavion, born December
2009. On December 22, 2016, the State filed a petition alleging the minor children were within the
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meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016), because they lacked proper parental
care by reason of the fault or habits of Darnita in that (A) Darnita’s use of alcohol and/or controlled
substances places the juveniles at risk for harm; (B) Darnita suffers from mental health problems
and refuses to seek treatment or treat her mental health problems; (C) Darnita engages in domestic
violence in the presence of the children; (D) Darnita is unable to provide the juveniles with proper
parental care, support and/or supervision; (E) Darnita is unable to provide the juveniles with safe,
stable, and appropriate housing; and (F) due to the above allegations, the juveniles are at risk of
harm.
On the same day the petition was filed, the court entered an ex parte order for immediate
temporary custody, placing the children in the custody of the Department of Health and Human
Services for placement in foster care.
An adjudication and disposition hearing was held on March 14, 2017. Darnita admitted to
counts A, D, and F of the petition, and the court found the children to be within the meaning of
§ 43-247(3)(a). The remaining allegations in the petition were dismissed by the State. The court
ordered Darnita to (1) participate in and successfully complete Level II Intensive Outpatient Dual
Diagnosis treatment program; (2) participate in individual therapy; (3) not possess or ingest alcohol
and/or controlled substances unless prescribed by a physician; (4) undergo random, frequent,
observed drug testing; (5) participate in alcoholics anonymous (AA)/narcotics anonymous (NA);
(6) participate in supervised visitation with the children; (7) obtain and maintain a legal source of
income; (8) obtain and maintain safe and adequate housing; (9) undergo a psychiatric evaluation;
(10) take all medications as prescribed; and (11) cooperate with family support services.
A review and permanency hearing was held on July 11, 2017. The court continued the
orders from March 14, with a few changes. For instance, Darnita was ordered to participate and
successfully complete Level I Intensive Outpatient Program. She had completed Level II as
previously ordered. She was also ordered to undergo an updated co-occurring mental health and
substance abuse evaluation, and to participate in alternative dispute resolution of the permanency
issue and be provided with relinquishment counseling.
On August 22, 2017, the State filed a motion to terminate Darnita’s parental rights. The
State alleged that termination of her parental rights was warranted pursuant to Neb. Rev. Stat.
§ 43-292(2) (Reissue 2016), because she has substantially and continuously or repeatedly
neglected and refused to give her children necessary parental care and protection, and § 43-292(6),
because reasonable efforts to preserve and reunify the family failed to correct the conditions that
led to the determination that the children were within the meaning of § 43-247(3)(a). In regard to
§ 43-292(6), the motion alleged that Darnita had failed to consistently submit to urinalysis testing
as requested, failed to abstain from the use of illegal drugs, failed to maintain legal and stable
employment, failed to consistently participate with AA/NA, failed to successfully complete
necessary chemical dependency treatment, failed to consistently attend visitation with her children,
and failed to complete a psychiatric evaluation. In addition, the State alleged that termination of
Darnita’s parental rights was in the best interests of the children.
Trial was held on the motion to terminate on January 12, 2018. April Ramsey, a family
permanency specialist with Nebraska Families Collaborative, testified for the State. She stated that
her duties and responsibilities include creating a case plan with goals to attain family reunification,
and implementing strategies and services to alleviate barriers to reunification. Ramsey testified
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that she became the family’s case manager on April 1, 2017, and that when she became the case
manager she had a duty and responsibility to familiarize herself with Darnita’s case history.
Ramsey testified that the children have been removed three times from their mother’s care:
December 22, 2011, March 24, 2014, and December 22, 2016. At the time of the first removal,
Carmello was 5 years old and Zavion was 2 years old. The juvenile court terminated its jurisdiction
on September 12, 2013. The second removal from Darnita’s care, on March 24, 2014, was about
6 months after the juvenile court terminated its jurisdiction the first time. Carmello was 6 years
old, and Zavion was 4 years old. The court terminated its jurisdiction on April 28, 2016.
The most recent removal, on December 22, 2016, was initiated by Darnita’s phone call to
the Child Abuse and Neglect Hotline, in which she stated that she was unable to provide for her
children and that she wanted the Department of Health and Human Services to remove the children
from her home. Darnita advised that she was unable to provide food for the children and that she
had thoughts of harming herself and the children. Darnita’s call to the hotline was made just days
after the Department of Health and Human Services had terminated its services in the prior removal
case.
Ramsey testified that Darnita has not been able to maintain sobriety from drugs and alcohol
and that this has been a problem for a significant amount of time. She testified that Darnita’s
sobriety was a concern at the time of Carmello and Zavion’s first two removals. Darnita also had
two older children removed from her care in June 2003 due, at least in part, to her insobriety.
Ramsey testified that Darnita has indicated that she does not believe her drug use makes her a bad
parent.
Ramsey testified that Darnita has failed to complete most of her urinalysis tests and the
ones that she did complete tested positive for either drugs or alcohol. Darnita was also
unsuccessfully discharged from treatment. Ramsey testified that Darnita has indicated that she is
only able to maintain sobriety when she is in treatment. Darnita was at a residential treatment
facility at the time of trial, which she had entered on December 21, 2017. She has never provided
Ramsey with proof of any participation in AA or NA meetings.
Ramsey further testified that under all three dockets involving Carmello and Zavion,
Darnita has been offered the same or similar services in each case, which she found concerning
because it shows a repetition of Darnita receiving services and reuniting with her children, only to
repeat the same behavior resulting in the children being removed again.
Ramsey testified that Darnita’s attendance at visitations with Carmello and Zavion was
inconsistent. There was also a visit where Darnita and her boyfriend were having an argument and
Darnita was throwing items out of the house. This occurred in front of the children. Further, it
became necessary to have a male visitation worker supervise visits due to Darnita’s aggressive
behavior toward previous visitation workers.
Ramsey also testified regarding Darnita’s inability to maintain safe, stable, and appropriate
housing. She testified that Darnita was residing in a drug treatment facility at the time of trial and
she was unaware that Darnita had anywhere to live after treatment. Darnita told Ramsey she had
filled out an application with the Omaha Housing Authority and was on a waiting list. Ramsey
also testified that Darnita was without housing between August and December 2017, when she
entered residential treatment.
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Ramsey also testified that Darnita has never provided proof of stable income, although she
claimed at the time of trial that she was employed. Darnita had also not completed chemical
dependency treatment, as evidenced by her ongoing treatment at the time of trial.
Ramsey testified that Darnita is not very responsive when she tries to contact her, and when
Ramsey is able make contact with Darnita, she is not easy to get along with or talk to. Ramsey
stated that Darnita has called her names, cursed at her, and kicked her out of her mother’s house.
Darnita also gives Ramsey excuses for not participating in services, saying that she has already
had or completed the service, or that she will set up the service herself. Ramsey stated that she
does not make referrals for services when a parent is refusing to participate in services.
Ramsey testified that in her opinion, it was in the children’s best interests to terminate
Darnita’s parental rights. She stated that Darnita’s inability to maintain sobriety negatively impacts
the children because their needs are being neglected, there are safety concerns, and they have
repeatedly been removed from Darnita and placed in the State’s care, which is not in their best
interests. She testified that the children need permanency and normalcy. Ramsey further indicated
that Darnita’s treatment at the time of trial did not change her opinion about termination because
Darnita had been in numerous treatment programs in the past and has not maintained sobriety.
Ramsey was concerned that if the children were returned to Darnita, they would end up reentering
the system a fourth time.
Following trial, the court entered an order finding that grounds to terminate based on
§ 43-292(2) and (6) were proven by clear and convincing evidence and that termination of
Darnita’s parental rights was in the children’s best interests.
ASSIGNMENTS OF ERROR
Darnita assigns that the juvenile court erred in finding that statutory grounds existed to
terminate her parental rights based on § 43-292(2) and (6) and erred in finding that terminating her
rights was in the children’s best interests.
STANDARD OF REVIEW
An appellate court reviews juvenile cases de novo on the record and reaches its conclusions
independently of the juvenile court’s findings. In re Interest of LeVanta S., 295 Neb. 151, 887
N.W.2d 502 (2016). 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. Id.ANALYSIS
Statutory Grounds for Termination.
Darnita first assigns that the juvenile court erred in finding that statutory grounds existed
to terminate her parental rights based on § 43-292(2) and (6). The bases for termination of parental
rights in Nebraska 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 Sir Messiah T. et al.,
279 Neb. 900, 782 N.W.2d 320 (2010).
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The State must prove the facts by clear and convincing evidence when showing a factual
basis exists under any one of the eleven subsections of § 43-292. In re Interest of Aaron D., 269
Neb. 249, 691 N.W.2d 164 (2005). Clear and convincing evidence is the amount of evidence that
produces a firm belief or conviction about the existence of a fact to be proved. Id.In its order terminating Darnita’s parental rights to her children, the juvenile court found
that the State had presented clear and convincing evidence to satisfy § 43-292, which provides in
relevant part:
The court may terminate all parental rights . . . when the court finds such action to
be in the best interests of the juvenile and it appears by the evidence that one or more of
the following conditions exist:
....
(2) The parents have substantially and continuously or repeatedly neglected and
refused to give the juvenile or a sibling of the juvenile necessary parental care and
protection;
....
(6) Following a determination that the juvenile is one as described in subdivision
(3)(a) of section 43-247, reasonable efforts to preserve and reunify the family if required
under section 43-283.01, under the direction of the court, have failed to correct the
conditions leading to the determination.
In order to terminate parental rights under § 43-292(6), the State must prove by clear and
convincing evidence that (1) the parent has failed to comply, in whole or in part, with a reasonable
provision material to the rehabilitative objective of the plan and (2) in addition to the parent’s
noncompliance with the rehabilitative plan, termination of parental rights is in the best interests of
the child. In re Interest of Kassara M., 258 Neb. 90, 601 N.W.2d 917 (1999). The State is required
to prove that the parents have been provided with a reasonable opportunity to rehabilitate
themselves according to a court-ordered plan and have failed to do so. Id.The motion for termination specifically alleged, in regard to § 43-292(6), that Darnita had
failed to consistently submit to urinalysis testing as requested; failed to abstain from the use of
illegal drugs; failed to maintain legal and stable employment; failed to consistently participate with
AA/NA; failed to successfully complete necessary chemical dependency treatment; failed to
consistently attend visitation with her children; and failed to complete a psychiatric evaluation. In
regard to urinalysis testing and abstaining from illegal drugs, Ramsey testified Darnita has not
been able to maintain sobriety and that this has been demonstrated over a significant amount of
time. She testified that Darnita has failed to complete most of her urinalysis tests and the ones that
she did complete were positive for either drugs or alcohol. The court reports prepared by Ramsey
and entered into evidence showed that between July and October 2017, Darnita completed 10 out
of 35 random drug screens. Darnita tested presumptive positive for cocaine on June 19 and
admitted to using cocaine. She tested positive for alcohol on July 26 and August 2, and received
an abnormal creatinine result on her urinalysis tests on August 9 and 18. She tested positive for
cocaine and alcohol on September 20, tested positive for cocaine and phencyclidine (PCP) in
October, and tested positive for PCP and alcohol on November 1.
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Ramsey also testified that Darnita has never provided proof of stable income. She claimed
at the time of trial that she was employed, but this was not confirmed. Darnita had also not
completed chemical dependency treatment, as she was in a residential treatment facility at the time
of trial. She had previously been unsuccessfully discharged for non-attendance from the Level I
Intensive Outpatient Treatment Program she had been ordered to attend. Ramsey also testified that
Darnita has never provided proof of any participation in AA or NA meetings. The court reports
indicate that Darnita admitted that she does not attend AA or NA meetings.
In regard to Darnita’s visitations with her children, Ramsey testified that Darnita’s
attendance was inconsistent. Between July and October 2017, Darnita attended 16 out of 25 visits.
The motion to terminate also alleged that Darnita failed to complete a psychiatric evaluation. She
did complete this requirement in September, after the motion to terminate was filed.
We conclude that the evidence clearly and convincingly established that Darnita has failed
to comply, in whole or in part, with reasonable provisions material to the rehabilitation objective
of the plan. See In re Interest of Kassara M., supra. She was offered numerous services and
referrals were made for such services, but Darnita has failed to comply with the court’s orders. She
has made little effort to meet the conditions set by the court to reunify with her children. Therefore,
the statutory ground for termination of Darnita’s parental rights under § 43-292(6) is satisfied.
If an appellate court determines that a lower court correctly found that termination of
parental rights is appropriate 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 Chloe C., 20 Neb. App. 787, 835 N.W.2d 758 (2013).
Thus, we do not address the sufficiency of the evidence to support termination under § 43-292(2).
The next inquiry is whether termination of Darnita’s parental rights is in the children’s best
interests.
Best Interests and Parental Fitness.
Darnita next asserts the juvenile court erred in finding that there was clear and convincing
evidence to establish that termination of her parental rights was in the children’s best interests. In
addition to proving a statutory ground, the State must show that termination is in the best interests
of the child. In re Interest of Kendra M. et al., 283 Neb. 1014, 814 N.W.2d 747 (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. Id. 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 children, this presumption is overcome only
when the State has proved that the 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 child’s best interests. Id. In discussing the
constitutionally protected 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. The best interests’ analysis and the parental fitness analysis are fact-intensive
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inquiries. And while both are separate inquiries, each examines essentially the same underlying
facts as the other. In re Interest of Kendra M. et al., supra.
Darnita has a long history of alcohol and drug use. There is nothing in the record to indicate
that Darnita would be able to maintain sobriety if reunited with her children. She was in treatment
at the time of trial, but has indicated she can only stay sober when she is in treatment. Her failed
sobriety for a significant period of time indicates that she would not be able to parent the children
and maintain sobriety. She has indicated that she does not believe her drug use makes her a bad
parent, which indicates a complete lack of understanding that her sobriety is necessary for her to
safely parent her children.
This case involves the third time that Carmello and Zavion have been removed from
Darnita’s care. The children were removed in December 2011, adjudicated under § 43-292(3)(a),
and services were provided for 18 months. The court’s jurisdiction was terminated in September
2013. The children were removed the second time in March 2014. They were again adjudicated
and services were provided. The court terminated its jurisdiction in April 2016. The children were
then removed for the third time in December 2016. Numerous reasonable efforts were provided
during all three cases. In the previous two cases, Darnita appeared to have rehabilitated herself
such that the children were returned to her and the court terminated its jurisdiction. However, both
times the children were removed again. These children should not have to repeat this cycle again.
They deserve stability and permanency.
It is well established that when a parent is unable or unwilling to rehabilitate himself or
herself within a reasonable time, the best interests of the child require termination of parental
rights; children cannot, and should not, be suspended in foster care or be made to wait uncertain
parental maturity. In re Interest of Stacey D. & Shannon D., 12 Neb. App. 707, 684 N.W.2d 594(2004). There is no indication that Darnita is able or willing to rehabilitate herself to the point that
she can parent these children long term. She has had many services provided to her and several
chances to rehabilitate herself over a period of years and has failed to do so.
Based upon our de novo review of the record, we find clear and convincing evidence that
Darnita is unfit. We also find that it was shown by clear and convincing evidence that termination
of Darnita’s parental rights is in the children’s best interests.
CONCLUSION
Based on our de novo review, we conclude that the juvenile court did not err in terminating
Darnita’s parental rights to Carmello and Zavion. Accordingly, the court’s order is affirmed.
AFFIRMED.
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