In re Interest of Charlee W. ( 2023 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
IN RE INTEREST OF CHARLEE W. ET AL.
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 CHARLEE W. ET AL., CHILDREN UNDER 18 YEARS OF AGE.
STATE OF NEBRASKA, APPELLEE,
V.
CHARLES W., APPELLANT.
Filed June 27, 2023. No. A-22-862.
Appeal from the Separate Juvenile Court of Douglas County: CANDICE J. NOVAK, Judge.
Affirmed.
Thomas C. Riley, Douglas County Public Defender, and Katherine M. Tupper for
appellant.
Jackson Stokes, Deputy Douglas County Attorney, for appellee.
RIEDMANN, BISHOP, and WELCH, Judges.
WELCH, Judge.
I. INTRODUCTION
Charles W. appeals the termination of his parental rights to his three minor children. He
contends that the Douglas County Separate Juvenile Court erred in terminating his parental rights
pursuant to Neb. Rev. Stat. § 43-292(2), (6), and (7) (Reissue 2016) and in finding that termination
was in the minor children’s best interests. For the reasons set forth herein, we affirm.
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II. STATEMENT OF FACTS
1. BACKGROUND
Charles is the natural father of Charlee W., born in April 2013; Camryn W., born in January
2015; and Chevee W., born in October 2018. The minor children’s mother is not part of this appeal
and will only be referenced as necessary for context.
On July 28, 2020, the State removed the children from the parents’ home based upon
allegations of domestic violence and substance use by the parents. That same date, the State filed
an adjudication petition related to Charles. In September, Charles admitted to the allegations within
the adjudication petition which asserted that his use of alcohol and/or controlled substances placed
the minor children at risk for harm. All three children have remained in out-of-home placement
during the entirety of these proceedings.
During the pendency of this case, the court ordered Charles to maintain safe and stable
housing; maintain a stable and legal source of income and provide written verification to DHHS
on a monthly basis; participate in supervised visitation while maintaining appropriate interactions
and meeting the children’s basic needs; participate in family support services; undergo random,
frequent, observed drug testing; abstain from possessing or ingesting alcohol and/or controlled
substances unless prescribed by a licensed, practicing physician; complete a co-occurring
evaluation and comply with recommendations; complete a batterer’s intervention program; and
complete a parenting class.
Services offered to Charles included case management, family support services,
agency-supervised visitation, urinalysis testing, co-occurring evaluation, batterer’s intervention,
individual therapy, parenting classes, and residential treatment. Services offered to the children
included case management, kinship placement, Medicaid, kinship support, therapy, and agency
supervised visits.
On May 4, 2022, the State filed a motion for termination of Charles’ parental rights. The
State sought termination of Charles’ parental rights pursuant to § 43-292(2) (neglect); § 43-292(6)
(reasonable efforts have failed to correct conditions leading to adjudication); and § 43-292(7)
(out-of-home placement for 15 or more months of most recent 22 months); and alleged that
termination was in the minor children’s best interests.
2. TERMINATION HEARING
The termination hearing was held on October 20, 2022. At the time of the termination
hearing, the minor children had continuously been in out-of-home placement for nearly 27 months.
The State adduced testimony from Sarah Mingus, Charles’ probation officer; Miranda Kellner, a
child family service specialist with DHHS; and the minor children’s foster mother. Testimony
generally consisted of Charles’ conduct while on probation, his conduct in relation to the
court-ordered requirements, and evidence relating to the best interests of the children. We
summarize that evidence below.
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(a) Charles’ Conduct While on Probation
Mingus testified that she has been Charles’ probation officer since October 2021 and that
while on probation, Charles was required to, among other things: maintain full-time employment;
notify probation prior to any change in address or employment; not possess or consume alcohol or
illegal substances; complete a drug and alcohol evaluation and follow recommendations; submit
to chemical testing; attend two AA meetings per week; successfully complete a cognitive
behavioral program; and wear a continuous alcohol monitoring (CAM) bracelet.
According to Mingus, Charles was sanctioned by probation on three occasions. He was
first sanctioned in April 2022 for being unsuccessfully discharged from ARCH, which is a halfway
house that provides substance use programming and counseling. He was sanctioned twice in May
2022 for failing to report his employment change to probation within a reasonable time frame, for
failing to report for office visits, and for a CAM violation. Mingus explained that a CAM violation
occurs when there is confirmed alcohol use, tampering with the CAM monitor, or an obstruction
between the CAM bracelet and the skin. Sanctions imposed included completing a behavioral
intervention plan, completing a facilitated supervision group, a travel restriction, and completing
intensive outpatient treatment and outpatient treatment. Mingus stated that Charles successfully
completed both intensive outpatient treatment and outpatient treatment. Mingus also stated that,
although Charles had not been incarcerated on new charges since October 2021, he was jailed for
a brief period “for a time pay warrant.”
(b) Charles’ Conduct Regarding
Court-Ordered Requirements
A significant portion of the trial centered on Charles’ conduct in relation to the
court-ordered requirements during the pendency of the case.
(i) Safe and Stable Housing
Charles was ordered to maintain safe and stable housing. Kellner testified that there were
times when she was unable to reach Charles and had to contact other parties to learn of his
whereabouts. According to Kellner, in February 2021, Charles was temporarily living with a friend
until he was incarcerated in April 2021. Following his release from jail, he again began living with
another friend. Charles then resided at NOVA Treatment Community, a residential treatment
facility, until October 2021 when he was “kicked out.”
After NOVA, Charles resided at ARCH from October 2021 to March 2022. ARCH is a
halfway house that provided substance use programming and counseling. Charles was
unsuccessfully discharged from ARCH due to noncompliance with dormitory rules and lying to
staff members about his possession of a cell phone. From April to September 2022, Charles resided
at New Journeys, a transitional living program which provides substance abuse evaluation and
treatment. He was discharged from New Journeys after he did not return for curfew. Thereafter,
Charles stayed with his mother-in-law or friends, but did not obtain permanent housing.
In October 2022, approximately two weeks prior to the termination hearing, Charles first
requested financial assistance from DHHS to lease an apartment. The family support worker
attempted to help Charles obtain Section 8 housing or find other housing options, but because
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Charles was unable to find housing in a specific area of Omaha, he refused to look elsewhere.
Kellner ultimately concluded that Charles failed to comply with the court order to maintain safe
and stable housing.
Mingus separately described Charles’ compliance with the requirement to maintain
housing as “inconsistent” because he was unsuccessfully discharged from multiple programs both
before and after October 2021 and he had had not obtained permanent housing.
(ii) Employment
Charles was ordered to maintain a stable and legal source of income and provide written
verification on a monthly basis. Mingus testified that Charles had not maintained employment for
longer than “a couple months at a time” and acknowledged that, although Charles was able to
obtain employment “pretty quickly,” he struggled with maintaining employment.
More specifically, the evidence indicated that, in October 2021, Charles was employed at
a sandwich shop but left because “he wasn’t getting paid enough.” Charles was then employed at
“Spin Linen” from February to May or June 2022 after deciding that he “wanted to look for a
different type of work.” In September 2022, Charles was fired from an unidentified employer due
to tardiness.
(iii) Attendance at Visitation
Charles was ordered to participate in supervised visitation while maintaining appropriate
interactions and meeting the children’s needs.
During the entirety of this case, Charles’ visitation never progressed beyond supervised
visits. And during the six months prior to the termination hearing, approximately 5 to 10 of
Charles’ visits out of a total of 24 visits had been cancelled. Other visits were canceled because
Charles could not provide food for the minor children and at least one visit was canceled due to
safety concerns when the visitation worker suspected that Charles was under the influence of a
substance when he had difficulty keeping his balance, was squinting his eyes, was slurring his
words, and began to fall asleep at the visit. Since August 2022, Charles’ attendance, as well as his
ability to provide for the children on visits, was decreasing.
The children’s foster mother testified that when visits with Charles were cancelled,
three-year-old Chevee would be “upset” and would sometimes cry. Seven-year-old Camryn’s
reactions to missed visits included crying, not eating his dinner, having more outbursts, or just
being more agitated or upset. Sometimes those outbursts would be physical including “throwing
toys to hitting walls to hitting his sisters.” The evidence also established that Charlee began
bed-wetting after visitations.
(iv) Family Support Services
Charles was ordered to participate in family support services. Kellner testified that, despite
the fact that three different family support services providers had been engaged on Charles’ behalf
from as early as October 2020, Charles did not complete family support services with any of those
referrals. However, Kellner acknowledged that Charles’ current family support worker had
requested updated goals for Charles because “they had gone through all of his goals.”
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(v) Submit to Drug Testing and
Abstain From Drugs/Alcohol
Charles was also ordered to complete random drug testing and abstain from drugs and
alcohol. The evidence established that, in January 2021, Charles received his second charge of
driving under the influence. Also in 2021, Charles missed several tests, tested positive for
methamphetamine on two occasions, and missed two drug tests during the week of the termination
hearing. Charles also missed other drug tests throughout the pendency of the case. Missed drug
tests are considered to be presumptively positive. Mingus testified that, since October 2021,
Charles had one CAM violation due to an obstruction between the bracelet and his skin.
(vi) Evaluation and Recommended Treatment
Charles was ordered to complete a co-occurring evaluation and participate in recommended
treatment. Charles completed an evaluation which recommended that he attend a residential
treatment facility. Prior to the termination hearing, Charles was admitted to, and unsuccessfully
discharged from, three residential treatment programs: NOVA, ARCH, and New Journeys.
However, Mingus testified that Charles successfully completed intensive outpatient treatment in
May 2022 and also completed outpatient treatment.
(vii) Batterer’s Intervention Program
Charles was also ordered to complete a batterer’s intervention program. Kellner stated that
Charles began the program in January 2022, but had missed several classes and had not completed
the program.
(viii) Parenting Class
Charles was ordered to complete a parenting class and he complied with this requirement.
(c) Testimony Governing Best Interests
The foster mother testified that all three minor children were placed with her on July 23,
2021, but at the time of the termination hearing, only Charlee and Chevee remained in her care.
Camryn was moved to a different foster home in August 2022 due to safety concerns arising from
his behaviors including hitting and kicking his sisters.
According to the foster mother, 9-year-old Charlee had “a lot of anger during school, so
they have a seat in the back of the room for her to . . . calm down.” Three-year-old Chevee was
meeting her developmental milestones. Finally, the foster mother testified that, although Camryn
was in a different placement at the time of the termination hearing, when he was with her, he had
modifications at school due to behavior issues including having a place where he could go to calm
down. Chevee experiences night terrors.
Although all three children started therapy in August 2021, Charles never attended the
children’s medical or dental appointments and never requested information regarding the
children’s medical needs or their therapy. Further, the foster mother testified that Charles sent gifts
for the children but did not send money or clothes for them.
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Kellner testified that she has been the caseworker for the minor children from February
2021 until the termination hearing, except for an approximately two-month gap in May and June
2021. Unlike the foster mother’s testimony, Kellner testified that there was no bond between
Charles and his children “at this time.” She also testified that the factors she considers when
forming an opinion as to whether termination of parental rights is appropriate in any given case
includes the length of time the children have been in foster care, the parent’s efforts to mitigate the
risk that brought the children into the care of DHHS, if visits are liberalized or progressed to a
different level of visitation, the consistency of the parent’s visitation, the parent’s compliance with
court orders, the parent’s demonstrated consistency and stability, the parent’s elimination of any
safety threats, and the best interests of the child or children.
Kellner opined that Charles was not fit to parent the minor children due to the length of the
time that the children have been in foster care and his noncompliance with court orders including
lack of housing and stable income. She further testified that it was her opinion that termination of
Charles’ parental rights was in the minor children’s best interests due to the length of time that the
minor children have been in foster care, Charles’ lack of stability and consistency in complying
with court orders, his sporadic attendance at visitation, and the fact that his visitation has not been
increased or moved toward unsupervised visits.
3. COURT ORDER
In May 2022, the juvenile court found that the State had provided clear and convincing
evidence that the minor children were children within the meaning of § 43-292(2), (6), and (7) and
that termination was in the minor children’s best interests. Charles has timely appealed to this
court.
III. ASSIGNMENTS OF ERROR
Charles contends that the juvenile court erred in terminating his parental rights pursuant to
§ 43-292(2), (6), and (7) and in finding that termination was in the minor children’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 findings made by the juvenile court below. In re Interest of Mateo L. et al.,
309 Neb. 565, 961 N.W.2d 516 (2021). However, when the evidence is in conflict, an appellate
court may consider and give weight to the fact that the juvenile court observed the witnesses and
accepted one version of the facts over another. Id.V. ANALYSIS
1. STATUTORY BASIS FOR TERMINATION
Charles contends that the juvenile court erred in terminating his parental rights pursuant to
§ 43-292(2), (6), and (7).
For a juvenile court to terminate parental rights under § 43-292, it must find that one or
more of the statutory grounds listed in this section have been satisfied and that such termination is
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in the child’s best interests. In re Interest of Becka P. et al., 27 Neb. App. 489, 933 N.W.2d 873(2019). The State must prove these facts by clear and convincing evidence. Id.Section 43-292(7) grants termination of 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.” This
subsection operates mechanically and, unlike the other subsections of the statute, does not require
the State to adduce evidence of any specific fault on the part of a parent. In re Interest of Kenna
S., 17 Neb. App. 544, 766 N.W.2d 424 (2009). In a case of termination of parental rights based on
§ 43-292(7), the protection afforded the rights of the parent comes in the best interests step of the
analysis. In re Interest of Kenna S., supra.
Here, the minor children have been in out-of-home placement since July 28, 2020. At the
time of the May 4, 2022, filing of the motion for termination of Charles’ parental rights, the minor
children had been in out-of-home placement for 21 consecutive months. And on the date of the
October 20, termination hearing, the minor children had been in out-of-home placement for nearly
27 consecutive months.
Because we find that there was clear and convincing evidence that the minor children
remained in out-of-home care for 15 or more months out of the most recent 22 months, we need
not consider whether termination was proper based on the remaining statutory grounds. If an
appellate court determines that the 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 Becka P. et al., supra.
2. BEST INTERESTS
Charles next argues that the juvenile court erred in finding that termination of his parental
rights was in the minor children’s best interests.
In addition to providing a statutory ground, the State must show that termination of parental
rights is in the best interests of the child. In re Interest of Jahon S., 291 Neb. 97, 864 N.W.2d 228(2015); In re Interest of Becka P. et al., 27 Neb. App. 489, 933 N.W.2d 873 (2019). 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. In re Interest of Jahon S., supra. There is a
rebuttable presumption that the best interests of the child are served by having a relationship with
his or her parent. Id. 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 interest analysis and the parental fitness analysis are fact-intensive inquiries. Id.
And while both are separate inquiries, each examines essentially the same underlying facts. Id.
Here, the evidence established that, during the 27 months that the minor children were in
out-of-home placement, Charles has never obtained housing in his own name and was either
incarcerated, lived with friends or relatives, or resided in treatment facilities or halfway houses.
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Although Charles could find employment, he had difficulty maintaining employment and thus, did
not establish a reliable income to support his children. He tested positive, or missed, numerous
drug tests over the course of this case, and he failed to complete a batterer’s intervention program.
Further, although the foster mother testified that Charles shared a bond with the minor children,
during the pendency of this case, Charles missed visits which negatively affected the minor
children and he never progressed beyond supervised visits with the minor children.
Charles attempts to equate this case with In re Interest of Aaron D., 269 Neb. 249, 691
N.W.2d 164 (2005), while arguing that the State failed to adduce evidence focusing on the
children’s condition in the best interests analysis, as opposed to focusing solely on his conduct. In
In re Interest of Aaron D., the Nebraska Supreme Court reviewed a termination of parental rights
grounded in relation to termination grounded solely in § 43-292(7). In contrast, here, the juvenile
court determined that, in addition to § 43-292(7), termination was also proper pursuant to
subsections (2) and (6). And it was the evidence submitted in support of termination under
subsections (2) and (6) that informs our best interests analysis here.
Contrary to Charles’ assertions, the evidence adduced by the State demonstrated the
profound impact Charles’ conduct had on his children and established a clear and convincing case
of neglect and failure to provide for them. The evidence included, but was not limited to, Kellner’s
testimony of Charles’ current lack of a bond with his children due to Charles’ inconsistent
participation in their lives; Charles’ failure to attend or cancellation of multiple visits which,
according to the foster mother, resulted in a measurable negative impact on the children’s conduct
and well-being; and, most notably, Kellner described how Charles’ continuous neglect presented
a risk of harm to the children which neglect included his lack of stable income, lack of housing,
drug use, and his failure to place himself in a position to parent the children. We note that although
the minor children have not yet experienced physical harm, “a court need not await certain disaster
to come into fruition before taking protective steps in the interest of a minor child.” In re Interest
of Chloe L. and Ethan L., 14 Neb. App. 663, 674, 712 N.W.2d 289, 298 (2006). Stated simply,
despite Charles’ professed love for his children, during the nearly 27 months that his children have
been in out-of-home placement and the many services provided to him, he is no closer to being in
a position to parent them than he was at the start of this case.
Charles is currently an unfit parent and there is no indication that this will change in the
foreseeable future. Children cannot, and should not, be suspended in foster care or be made to
await uncertain parental maturity. See In re Interest of Mateo L. et al., 309 Neb. 565, 961 N.W.2d
516 (2021). Accordingly, we hold that the juvenile court did not err in finding that termination of
Charles’ parental rights was in the minor children’s best interests.
VI. CONCLUSION
Having found that the evidence was sufficient to support the statutory basis for termination
pursuant to § 43-292(7) and that termination was in the minor children’s best interests, we affirm
the juvenile court’s order terminating Charles’ parental rights.
AFFIRMED.
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