In re Interest of Jahmir O. ( 2020 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
IN RE INTEREST OF JAHMIR O.
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 JAHMIR O., A CHILD UNDER 18 YEARS OF AGE.
STATE OF NEBRASKA, APPELLEE,
V.
JOSEPH J., APPELLANT.
Filed September 22, 2020. No. A-20-277.
Appeal from the Separate Juvenile Court of Douglas County: MATTHEW R. KAHLER,
Judge. Affirmed.
Kenneth Jacobs for appellant.
Natalie Killion, Deputy Douglas County Attorney, and Rachel Lowe, Senior Certified Law
Student, for appellee.
MOORE, Chief Judge, and BISHOP and WELCH, Judges.
WELCH, Judge.
I. INTRODUCTION
Joseph J. appeals the Douglas County Separate Juvenile Court’s order terminating his
parental rights to his son, Jahmir O. He contends the court erred in terminating his parental rights
pursuant to Neb. Rev. Stat. § 43-292(1), (2), and (7) (Reissue 2016); in denying his request for a
“negative reasonable efforts” finding; and in finding that termination was in Jahmir’s best interests.
For the reasons set forth herein, we affirm.
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II. STATEMENT OF FACTS
In March 2015, Jahmir was born with drugs in his system, which led to his placement in
out-of-home care a few days later. Jahmir has remained in foster care since that time. Jahmir’s
mother relinquished her parental rights in August 2017 and is not part of this appeal.
In September 2016, Joseph was informed that he might be Jahmir’s father and that Joseph
would need to complete paternity testing to establish his parental status if he wished to intervene
in the case involving Jahmir. Although Joseph indicated that he would set up paternity testing on
his own, Joseph did not complete paternity testing until nearly 2 years later in July 2018. In August
2018, paternity testing confirmed Joseph was Jahmir’s biological father, and that same month,
Joseph filed a motion to intervene in this case.
In January 2019, the State supplemented the adjudication petition to allege that Jahmir
came within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016) due to Joseph’s faults
or habits. More specifically, the State alleged Joseph failed to provide proper parental care and
support for Jahmir; failed to provide Jahmir with safe, stable housing; and these matters put Jahmir
at risk of harm.
In February 2019, the juvenile court entered an order finding that Jahmir came within the
meaning of § 43-247(3)(a) because Joseph failed to provide proper parental care and support for
Jahmir which put Jahmir at risk of harm, but dismissed the allegation that Joseph failed to provide
Jahmir with safe, stable housing due to insufficient evidence. The court also ordered that Joseph
was to have “reasonable rights of visitation” as arranged and supervised by DHHS.
1. TERMINATION PROCEEDINGS
In November 2019, the State filed a motion to terminate Joseph’s parental rights pursuant
to § 43-292(1), (2), (7), and (9) and alleged termination was in Jahmir’s best interests.
Subsequently, Joseph filed a motion for continuing contact with Jahmir if the court terminated
Joseph’s parental rights. Joseph also filed a request for “negative reasonable efforts” alleging that
after the February 2019 adjudication hearing, the court ordered him to have visitation and that he
made visitation requests in May, August, and October, but no referrals were made by DHHS; thus,
reasonable efforts to preserve and reunify his family were not made.
The termination hearing was held in February 2020. The court received into evidence an
affidavit from Amanda Gould, a family permanency specialist assigned to this case; testimony
from Darra Boetel, the case manager from October 2019 until the termination hearing; testimony
from Machaela Hackendahl, who served as both Jahmir’s clinical therapist and Jahmir and
Joseph’s family therapist; and testimony from Thomas Blankman, Jahmir’s foster parent.
(a) Amanda Gould’s Affidavit
Gould attested that Joseph was informed on September 6, 2016, that he could be Jahmir’s
father and of his right to complete paternity testing and intervene in the case to establish his
parental rights. Notwithstanding that notice, Joseph opted not to complete paternity testing for
nearly 2 full years prior to undertaking the exam and learning he was Jahmir’s biological father. It
was only after the 2-year delay that Joseph opted to intervene in the case.
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(b) Darra Boetel
Boetel testified that as a caseworker assigned to this case, she facilitated visitation between
Joseph and Jahmir. She also provided additional recommendations for Joseph, such as
participating in an initial diagnostic interview (IDI) evaluation and a chemical dependency
evaluation, to identify and address any needs he may have; however, Joseph did not complete those
evaluations.
Boetel acknowledged that Joseph requested visitation in May 2019, but a referral was not
made because following Joseph’s initial contact, the caseworker was unsuccessful in contacting
Joseph in June and July. Joseph made another request for visitation in August 2019 and a referral
was made in September 2019. Boetel testified that no visits between Joseph and Jahmir occurred
from November 2018 to September 2019 even though visitation referrals had been made to four
different agencies. Joseph was unsuccessfully discharged from each agency for lack of
engagement.
Boetel testified that to comply with the court’s order for visitation, DHHS arranged for
therapeutic visits between Joseph and Jahmir but acknowledged therapeutic visits were “over and
above” agency-supervised visits because therapeutic visits are arranged around a therapist’s
schedule and not Joseph’s schedule.
Boetel testified that she met with Joseph in November 2019 to explain that Joseph would
need to be punctual and consistently attend therapeutic visits in order to reunify with Jahmir.
During the meeting, Joseph declined Boetel’s offer to provide bus tickets to assist with any
transportation issues that might interfere with him attending therapeutic visits, and Joseph did not
inquire about Jahmir’s well-being. Boetel also testified that during the meeting, Joseph expressed
to her that he wanted to change the time for the therapeutic visits, and she learned that Joseph had
a history of congestive heart failure. Boetel advised Joseph to contact the therapist and Joseph did
so. Boetel testified that after the November 2019 meeting, she attempted to contact Joseph by
phone on a monthly basis, but he did not respond. Boetel was only able to speak with Joseph after
a court hearing in December 2019 and at a meeting in January 2020.
Boetel testified that based in part on her review of the case file, she was concerned by
Joseph’s lack of engagement which showed he did not have a relationship with Jahmir, and Joseph
lacked consistency in attending therapeutic visits which was necessary to establish a relationship
with Jahmir. Boetel further explained that despite having opportunities to interact with Jahmir,
Joseph’s behavior indicated he was not serious in establishing a relationship with Jahmir. Boetel
expressed concerns about Joseph’s ability to parent Jahmir due to their lack of a relationship and
Joseph being unsuccessfully discharged from four visitation agencies for lack of engagement.
Ultimately, Boetel testified that based on these circumstances, terminating Joseph’s parental rights
was in Jahmir’s best interests.
(c) Machaela Hackendahl
Hackendahl testified that, from May 2019 to January 2020, she met with Jahmir weekly
for individual therapy. Hackendahl also attempted to facilitate therapeutic visits between Joseph
and Jahmir with the goal of building a relationship for potential reunification. The first therapeutic
visit was held in November 2019. During this visit, Hackendahl did not observe any interactions
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between Joseph and Jahmir; instead, Hackendahl played with Jahmir while Joseph sat at a table.
Hackendahl expressed concern over Joseph’s behavior which she stated suggested that
considerable work would be needed to foster a relationship between Joseph and Jahmir. After this
first therapeutic visit, Joseph did not complete any of the three remaining visits due to lack of
transportation, illness, and tardiness despite Joseph’s awareness that if he arrived more than 15
minutes late to a visit, he would be asked to reschedule. Following three consecutive missed visits
and Joseph’s failure to reschedule the missed visits, Joseph was unsuccessfully discharged from
therapeutic visits pursuant to stated policy which had been explained to Joseph at the start of
therapy. Hackendahl testified termination of Joseph’s parental rights was in Jahmir’s best interests
because of Jahmir’s current attachment to his foster family and the work necessary to build a
positive attachment with Joseph would be “a lengthy process” potentially lasting years.
(d) Thomas Blankman
Blankman testified he has been Jahmir’s foster parent continuously since Jahmir was a few
days old. Blankman testified that in 11 months, Joseph has had two visits with Jahmir: a visit in
December 2018 and a therapeutic visit in November 2019. Blankman testified that although Joseph
sent Jahmir a Christmas present in 2018, Joseph has not sent anything else for Jahmir’s care or
called to check on Jahmir’s well-being and development.
2. JUVENILE COURT ORDER
In February 2020, the juvenile court issued an order terminating Joseph’s parental rights
pursuant to § 43-292(1), (2), and (7), and found that termination was in the best interests of Jahmir.
In its order, the court found the testimonies of Boetel, Hackendahl, and Blankman to be credible
and discussed Joseph’s lack of involvement regarding visitation. The court observed Joseph had
been unsuccessfully discharged from four separate visitation agencies for failure to participate in
visits with Jahmir and noted that from December 2018 until the termination hearing, the only
contact Joseph had with Jahmir was during the November 20, 2019, therapeutic visit. The juvenile
court dismissed the allegation of termination pursuant to § 43-292(9) due to insufficient evidence,
denied Joseph’s motion for continued contact, and denied Joseph’s request for a finding of negative
reasonable efforts. Joseph has timely appealed to this court.
III. ASSIGNMENTS OF ERROR
Joseph’s assignments of error, consolidated and restated, are that the juvenile court erred:
(1) in terminating his parental rights pursuant to § 43-292(1), (2), and (7); (2) in denying his request
for a “negative reasonable efforts” finding; and (3) by finding that termination was in Jahmir’s
best interests.
IV. 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 juvenile court observed the witnesses and accepted one version of facts over
another. Id.
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V. ANALYSIS
1. STATUTORY BASIS
Joseph first contends that the juvenile court erred in terminating his parental rights pursuant
to § 43-292(1), (2), and (7).
The State alleged Joseph’s parental rights should be terminated pursuant to § 43-292(1),
(2), (7), and (9). Ultimately, the juvenile court found termination was supported by three separate
statutory grounds: § 43-292(1) (parent has abandoned juvenile for 6 or more months immediately
prior to the filing of petition); § 43-292(2) (parent has substantially and continuously or repeatedly
neglected and refused to give juvenile necessary parental care and protection); and § 43-292(7)
(child out-of-home for 15 or more months of most recent 22 months).
In order to terminate parental rights, a court must find by clear and convincing evidence
that one of the statutory grounds enumerated in § 43-292 exists and that the termination is in the
child’s best interests. In re Interest of Alec S., 294 Neb. 784, 884 N.W.2d 701 (2016). We first
address Joseph’s claim that the juvenile court erred in terminating his parental rights pursuant to
§ 43-292(7).
Under § 43-292(7), a juvenile court may terminate parental rights when “[t]he juvenile has
been in an out-of-home placement for fifteen or more months of the most recent twenty-two
months.” Joseph argues that the 15-month time requirement should not commence to run until
January 2019 when the State supplemented the adjudication petition to include allegations against
him and the court signed an ex parte order for out-of-home placement regarding Joseph’s home.
Joseph argues that because only 13 months passed from the January 2019 ex parte order to the
February 2020 order terminating his parental rights, the court erred in finding the State met its
burden under § 43-292(7).
Joseph’s argument is contravened by the Nebraska’s Supreme Court’s holding in In re
Interest of Jagger L., 270 Neb. 828, 708 N.W.2d 802 (2006). In In re Interest of Jagger L., the
biological father, who was the noncustodial parent, appealed the decision to terminate his parental
rights pursuant to § 43-292(7), arguing the juvenile court erred in finding there was sufficient
evidence to terminate his rights. In re Interest of Jagger L., supra. The facts in that case established
that in October 2002, Jagger was removed from his mother’s care, placed in temporary custody of
DHHS, and remained in foster care through the duration of the proceedings. Id. Also in October
2002, Jagger’s father, who resided in Florida during the entirety of the proceedings, received a
copy of the petition to adjudicate Jagger as to his mother. Id. Subsequently, Jagger was adjudicated
and his mother’s parental rights were terminated. Id.
In May 2003, the father intervened in the pending juvenile case. Id. In May 2004, a second
supplemental petition and motion to terminate the father’s parental rights was filed pursuant to
§ 43-292(1), (2), and (7). In re Interest of Jagger L., supra. In January 2005, the juvenile court
adjudicated Jagger and terminated the father’s parental rights pursuant to § 43-292(1), (2), and (7),
also finding that termination was in Jagger’s best interests. In re Interest of Jagger L., supra. On
appeal, the Nebraska Supreme Court determined that termination pursuant to § 43-292(7) was
appropriate explaining that from October 2002 to the date of the termination filing in May 2004,
Jagger had been in a continuous out-of-home placement for more than 19 months, and from
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October 2002 to the date of the juvenile court’s termination order in January 2005, Jagger had been
in a continuous out-of-home placement for more than 27 months. In re Interest of Jagger L., supra.
In the present action, Joseph, who has never had custody of Jahmir, learned in 2016 that
there was a possibility that he was Jahmir’s father, but he delayed obtaining a paternity test and
intervening in the matter for 2 years, until August 2018. By that time, Jahmir, nearly 5 years old,
had never lived with his father, and the court entered an order in January 2019 excluding placement
of Jahmir with Joseph based upon its finding that placement with Joseph would be contrary to
Jahmir’s health, safety, or welfare. That is not to say there could never be a circumstance in which
a juvenile who has been out-of-home for 15 or more months of the most recent 22 months would
always satisfy the dictates of § 43-292(7). For instance, in In re Interest of Dylan Z., 13 Neb. Ct. App.
586, 599, 697 N.W.2d 707, 719 (2005), where the evidence supported that the noncustodial father
had only recently learned that he was the father of the juvenile, we held:
Our research has revealed no cases, and the State has cited us to none, where
§ 43-292(7) was used as a ground for termination of parental rights in a situation such as
the present one where the parent was unaware that the child at issue was his child. Although
we recognize that the plain language of § 43-292(7) provides for termination of parental
rights when the juvenile has been in an out-of-home placement for 15 or more of the most
recent 22 months, we are also cognizant that there is abundant Nebraska case law indicating
that proceedings to terminate parental rights must comport with fundamental fairness. See,
e.g., In re Interest of Mainor T. & Estela T., 267 Neb. 232, 674 N.W.2d 442 (2004); In re
Interest of Rebecka P., 266 Neb. 869, 669 N.W.2d 658 (2003).
Assuming without deciding there may be exceptions which militate against strict
application of § 43-292(7), this record does not present such a scenario. The record established
that at the time the State filed the motion to terminate Joseph’s parental rights in January 2019,
Jahmir had been in continuous out-of-home placement and care for over 45 months and, by the
time the juvenile court terminated Joseph’s parental rights in February 2020, Jahmir had been in
continuous out-of-home placement and care for over 59 months. Further, the record reflects that
Joseph was made aware that Jahmir might be his son as early as 2016 but Joseph waited until 2018
to obtain a paternity test and intervene in this case. Once Joseph did intervene, the court continued
out-of-home placement for Jahmir’s safety. Under these circumstances, we find the State met its
burden of showing Joseph’s rights should be terminated pursuant to § 43-292(7).
Because any one ground of the eleven 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 child, we need not consider whether termination of Joseph’s parental rights was proper
pursuant to the subsections (1) and (2) of § 43-292. See In re Interest of Elizabeth S., 282 Neb.
1015, 809 N.W.2d 495 (2012).
2. REASONABLE EFFORTS
Joseph next contends Neb. Rev. Stat. § 43-283.01(2) (Cum. Supp. 2018) requires the State
to provide a parent with reasonable efforts to preserve and reunify a family and that the evidence
in this case indicates he was not afforded reasonable efforts by DHHS.
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Here, the State alleged Joseph’s parental rights should be terminated pursuant to
§ 43-292(1), (2), (7), and (9). Ultimately, the juvenile court found termination was supported by
three separate statutory grounds: § 43-292(1), (2), and (7). Reasonable efforts to reunify the family
are required only when termination of parental rights is pursued under § 43-292(6). In re Interest
of Mya C. et al., 23 Neb. Ct. App. 383, 872 N.W.2d 56 (2015). Because the State did not pursue
termination under § 43-292(6), reasonable efforts were not required. This assignment of error fails.
3. BEST INTERESTS
Joseph’s final argument is that the juvenile court erred in finding termination was in
Jahmir’s best interests when a reasonable alternative existed--that is building a relationship
between Joseph and Jahmir.
Before specifically addressing Joseph’s assignment, we begin by setting forth the
underlying basis for the best interest analysis. In In re Interest of Becka P. et al., 27 Neb. Ct. App.
489, 508-09, 933 N.W.2d 873, 887-88 (2019), this court recently stated:
In addition to proving a statutory ground, the State must show that termination of parental
rights is in the best interests of the child. See In re Interest of Jahon S., 291 Neb. 97, 864
N.W.2d 228 (2015). A parent’s right to raise his or her child is constitutionally protected;
so before a court may terminate parental rights, the State must show that the parent is unfit.
Id. There is a rebuttable presumption that the best interests of the 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. In the context of the constitutionally protected relationship
between a parent and a child, 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 the
child’s well-being. Id.
The best interests analysis and the parental fitness analysis are fact-intensive
inquiries. And while both are separate inquiries, each examines essentially the same
underlying facts. Id. In proceedings to terminate parental rights, 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. In re Interest of
Joseph S. et al., 291 Neb. 953, 870 N.W.2d 141 (2015).
In cases where termination of parental rights is based on § 43-292(7), the Nebraska
Supreme Court has held that appellate courts must be particularly diligent in their de novo
review of whether termination of parental rights is in fact in the child’s best interests. See
In re Interest of Aaron D., 269 Neb. 249, 691 N.W.2d 164 (2005).
Further, the evidence adduced to prove termination on any statutory ground other than § 43-292(7)
is highly relevant to the best interests of the child or children, as it would show abandonment,
neglect, unfitness, or abuse. See In re Interest of Shelby L., 270 Neb. 150, 699 N.W.2d 392 (2005).
The record reveals that, despite being notified in September 2016, of his potential paternity
of Jahmir, the need for paternity testing, and the ability to intervene in this case once paternity was
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determined, Joseph did not complete paternity testing until July 2018. After paternity testing
confirmed Joseph was Jahmir’s father, Joseph intervened in August 2018 and the juvenile court
subsequently ordered supervised visitation, which led to family therapy between Joseph and
Jahmir. Despite the numerous opportunities provided for Joseph to develop a relationship with his
5-year-old child, Joseph only attended one of the four scheduled family therapy visits and
Hackendahl expressed concern that the lack of interaction between Joseph and Jahmir in that visit
suggested to her that considerable work would be needed to foster a relationship between Joseph
and Jahmir. Further, following Joseph’s cancellation of three consecutive visits, combined with
his failure to reschedule said visits, he was unsuccessfully discharged from therapeutic visits.
Finally, Hackendahl testified that termination of Joseph’s parental rights was in Jahmir’s best
interests because Jahmir was attached to his foster family and building a positive attachment with
Joseph would be “a lengthy process” potentially requiring years of work.
These concerns were echoed by Boetel who testified that Joseph’s lack of engagement was
worrisome because, despite having opportunities to interact with Jahmir, Joseph’s behavior
suggested he was not serious in establishing a relationship with Jahmir. Although Joseph requested
visitation, his repeated failure to communicate with his caseworkers prevented visits from
occurring. Further, Joseph failed to complete additional recommendations (such as an IDI and
chemical dependency evaluation) made by Boetel to address Joseph’s needs. Boetel had concerns
about Joseph’s ability to parent Jahmir due to his lack of relationship with his son and Joseph being
unsuccessfully discharged from four visitation agencies for lack of engagement. Ultimately, Boetel
testified that based on these circumstances, terminating Joseph’s parental rights would be in
Jahmir’s best interests.
This record presents a similar factual scenario to that found in In re Interest of Jagger L.,
270 Neb. 828, 708 N.W.2d 802 (2006). In In re Interest of Jagger L., the State filed a petition in
the juvenile court on October 1, 2002, alleging that Jagger was a child within the meaning of §
43-247(3)(a) due to the faults or habits of his mother. On the same day, the court entered an order
of temporary custody and Jagger was placed in foster care where he remained for the entirety of
the proceedings. The mother’s parental rights were eventually terminated in March 2005. The
record further demonstrated that the noncustodial father was served with notice of the proceedings
on October 22, 2002, but waited until May 2003 to move to have counsel appointed to represent
him in the proceedings. In May 2004, the State supplemented its petition to allege that Jagger also
lacked parental care by reason of the faults or habits of his father and further requested that the
father’s parental rights be terminated. The court eventually terminated the father’s parental rights
finding, inter alia, that Jagger’s father failed to establish a relationship with Jagger from the time
he was notified of the proceeding until June 2004. The father appealed alleging, among other
things, that termination was not in Jagger’s best interests. In upholding the juvenile court’s finding,
the Nebraska Supreme Court held:
[The father] also contends that the State did not prove by clear and convincing
evidence that termination of his parental rights was in Jagger’s best interests. The evidence
in this case establishes that at the time the termination hearing occurred, Jagger had been
in out-of-home placement for more than 70 percent of his life. [The father] knew Jagger
was in out-of-home placement since October 2002 but had no face-to-face contact with
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him until September 2004, 4 months after the motion to terminate parental rights was filed
and 24 months after Jagger was placed in foster care. There was evidence that adoption
and permanency with his foster family with whom he had bonded would provide Jagger
with a happy and healthy life. Given these circumstances and the entire record in this case,
which we have reviewed de novo, we conclude that there exists clear and convincing
evidence that terminating [the father’s] parental rights is in Jagger’s best interests. This
assigned error is without merit.
In re Interest of Jagger L., 270 Neb. at 836, 708 N.W.2d at 808-09.
The same can be said here. Joseph was notified of the possibility that he was Jahmir’s
father in September 2016 and of his corresponding right to intervene in the proceedings; however,
Joseph neglected to perform paternity testing or intervene for nearly 2 years. Once Joseph did
intervene and following an order stating it was not safe to place Jahmir with his father, Joseph
failed to participate in an IDI or chemical evaluation, failed to communicate with caseworkers to
establish visitation with Jahmir, failed to attend visitations despite referrals made to four different
agencies, and in relation to the few visits or therapy sessions Joseph did attend, he was late to
arrive and demonstrated a lack of interaction or desire to form a relationship with Jahmir which
actions eventually resulted in discharge.
Jahmir has been in foster care since March 2015 and Joseph has demonstrated that he is
either unable or unwilling to foster a relationship with his son. Nebraska courts have recognized
that children cannot, and should not, be suspended in foster care or be made to await uncertain
parental maturity. In re Interest of Octavio B. et al., 290 Neb. 589, 861 N.W.2d 415 (2015).
Accordingly, we find there was clear and convincing evidence to show that Joseph is unfit and that
terminating his parental rights was in Jahmir’s best interests.
VI. CONCLUSION
For the reasons stated above, we affirm the juvenile court’s order terminating Joseph’s
parental rights.
AFFIRMED.
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