In re Interest of Isabel P.

Nebraska Supreme Court Online Library
www.nebraska.gov/courts/epub/
03/18/2016 09:18 AM CDT
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IN RE INTEREST OF ISABEL P. ET AL.
Cite as 293 Neb. 62
In re I nterest of Isabel
P. et al.,
18 years of age.
children under
State of Nebraska, appellant, and Bradley C. Easland,
guardian ad litem, appellee and cross-appellant,
v. Charles J., appellee and cross-appellee.
___ N.W.2d ___
Filed March 18, 2016. No. S-15-487.
1. Statutes: Appeal and Error. Statutory interpretation is a question of
law that an appellate court resolves independently of the trial court.
2. Juvenile Courts: Appeal and Error. An appellate court reviews juve-
nile cases de novo on the record and reaches a conclusion independently
of the juvenile court’s findings.
3. Jurisdiction: Appeal and Error. Before reaching the legal issues pre-
sented for review, it is the power and duty of an appellate court to deter-
mine whether it has jurisdiction over the matter before it, irrespective of
whether the issue is raised by the parties.
4. Jurisdiction: Final Orders: Appeal and Error. For an appellate court
to acquire jurisdiction of an appeal, there must be a final order entered
by the court from which the appeal is taken.
5. Final Orders: Appeal and Error. A substantial right is affected if an
order affects the subject matter of the litigation, such as diminishing a
claim or defense that was available to the appellant prior to the order
from which the appeal is taken.
6. Juvenile Courts: Parental Rights: Due Process. So long as a parent
was afforded due process of law, a defect during the adjudication phase
does not preclude consideration of termination of parental rights pursu-
ant to Neb. Rev. Stat. § 43-292(1) through (5) (Cum. Supp. 2014).
7. Parental Rights: Proof. In order to terminate parental rights, a court
must find by clear and convincing evidence that one of the statutory
grounds enumerated in Neb. Rev. Stat. § 43-292 (Cum. Supp. 2014)
exists and that the termination is in the child’s best interests.
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8. Parental Rights: Abandonment: Words and Phrases. For purposes
of Neb. Rev. Stat. § 43-292(1) (Cum. Supp. 2014), “abandonment” is
a parent’s intentionally withholding from a child, without just cause or
excuse, the parent’s presence, care, love, protection, maintenance, and
the opportunity for the display of parental affection for the child.
9. Parental Rights: Abandonment: Proof. To prove abandonment in
determining whether parental rights should be terminated, the evidence
must clearly and convincingly show that the parent has acted toward the
child in a manner evidencing a settled purpose to be rid of all paren-
tal obligations and to forgo all parental rights, together with a com-
plete repudiation of parenthood and an abandonment of parental rights
and responsibilities.
10. Parental Rights: Abandonment: Time: Intent. A court reviewing a
termination of parental rights case on the ground of abandonment need
not consider the 6-month period in a vacuum. Instead, the court may
consider evidence of a parent’s conduct, either before or after the statu-
tory period, in determining whether the purpose and intent of that parent
was to abandon his or her children.
11. Parental Rights: Abandonment. Abandonment is not an ambulatory
thing the legal effects of which a parent may dissipate at will by token
efforts at reclaiming a discarded child.
12. Parent and Child. Parental obligation requires a continuing interest in
the child and a genuine effort to maintain communication and associa-
tion with that child.
13. Parental Rights: Presumptions: Proof. A child’s best interests are pre-
sumed to be served by having a relationship with his or her parent. This
presumption is overcome only when the State has proved that the parent
is unfit.
14. Constitutional Law: Parental Rights: Words and Phrases. 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 reason-
able parental obligation in child rearing and which has caused, or prob-
ably will result in, detriment to a child’s well-being.
15. Parental Rights. The best interests analysis and the parental fitness
analysis are fact-intensive inquiries. And while both are separate inquir­
ies, each examines essentially the same underlying facts as the other.
Appeal from the County Court for Madison County: Ross
A. Stoffer, Judge. Reversed and remanded with directions.
Gail E. Collins, Deputy Madison County Attorney, for
appellant.
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IN RE INTEREST OF ISABEL P. ET AL.
Cite as 293 Neb. 62
Kathleen Koenig Rockey, of Copple, Rockey, McKeever &
Schlecht, P.C., L.L.O., for appellee Charles J.
Bradley C. Easland, of Morland, Easland & Lohrberg, P.C.,
guardian ad litem.
Wright, Connolly, Miller-Lerman, Cassel, and Stacy, JJ.
Wright, J.
I. NATURE OF CASE
The State appeals an order of the county court for Madison
County, Nebraska, sitting as a juvenile court, declining to ter-
minate Charles J.’s parental rights to his son, K.J., pursuant to
Neb. Rev. Stat. § 43-292 (Cum. Supp. 2014). The juvenile court
declined to terminate parental rights, because it had not pro-
vided counsel for Charles in the proceedings leading up to the
adjudication of K.J. pursuant to Neb. Rev. Stat. § 43-247(3)(a)
(Reissue 2008). The State appeals, and the guardian ad litem
(GAL) cross-appeals.
II. BACKGROUND
In 2012, K.J. and his three siblings were living with their
mother, Kristie P., in her mother’s apartment in Norfolk,
Nebraska. Kristie had recently been cited for child abuse
and was struggling with addiction. Her mother called the
Department of Health and Human Services (DHHS) out of
concern for her grandchildren. Several other calls were made
to DHHS as well. On October 18, DHHS removed the children
from the apartment. K.J. and one of his brothers were placed
in a foster home together and remained there at the time of
the hearing on the State’s petition to terminate Charles’ paren-
tal rights.
1. A djudication
On October 19, 2012, the State filed a petition pursuant to
§ 43-247(3)(a), which grants courts jurisdiction over any per-
son under the age of 18
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who lacks proper parental care by reason of the fault or
habits of his or her parent . . . ; whose parent . . . neglects
or refuses to provide proper or necessary subsistence,
education, or other care necessary for the health, morals,
or well-being of such juvenile; . . . or who is in a situation
. . . dangerous to life or limb or injurious to the health or
morals of such juvenile.
A child adjudicated to be within the meaning of
§ 43-247(3)(a), and thus under the court’s jurisdiction, is said
to be “adjudicated.”1
The State requested that the court adjudicate the four chil-
dren, including K.J., and enter orders of disposition in the best
interests of the children. The petition alleged, among other
things, that the mother of the children, Kristie, was physically
and/or verbally abusive to the juveniles, had failed to give K.J.
or his school officials his prescribed psychiatric medicines,
and was transient and left her children with others without
telling them how long she would be gone or where she could
be reached.
The first hearing for the adjudication petition took place on
November 1, 2012. Although there were no allegations against
him, Charles appeared at the hearing. The State indicated that
it was under the impression that Charles was not very involved
in K.J.’s life and suggested that a supplemental petition might
be filed to include allegations against Charles.
At the hearing, the court advised both Charles and Kristie of
the nature of the proceedings, the possible consequences, and
the parties’ rights, as required by Neb. Rev. Stat. § 43-279.01
(Reissue 2008). Those rights include the right of a parent to
have counsel appointed if the parent is unable to afford to hire
a lawyer. Kristie requested and was appointed an attorney. The
1
See, In re Interest of Joshua M. et al., 256 Neb. 596, 591 N.W.2d 557
(1999); In re Interest of Keisha G., 21 Neb. Ct. App. 472, 840 N.W.2d 562
(2013).
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court declined to appoint an attorney for Charles because there
were no allegations against him. It stated:
Once allegations are filed against you, or in other words,
once the State starts saying some things that you did that
also caused the children to be put in that position that I
talked about before where they were endangered or aban-
doned or abused or anything of that nature, then, at that
point, you would become entitled to have an attorney here
and I would address that with you at that time.
The State requested that the care, custody, and control of the
children remain with DHHS. Charles objected to the request,
explaining that he would like to have custody of K.J. At that
time, Kristie supported placement of K.J. with Charles. But
the State did not, and it presented evidence against Charles.
Because of the evidence adduced about Charles’ criminal his-
tory, his history of drug abuse, and his failure to provide
DHHS with information that would allow them to do a back-
ground check on Charles’ roommates, the court ordered care,
custody, and control to remain with DHHS.
Kristie eventually admitted most of the allegations within
the adjudication petition and relinquished her parental rights
to the children, including K.J.
2. Petition to Terminate Charles’
Parental R ights
Over 22 months after the adjudication, on August 27, 2014,
the State petitioned to terminate Charles’ parental rights.
Section 43-292 allows for termination of parental rights if
the termination is in the best interests of the child and at least
one of the enumerated grounds within the statute exists. The
State alleged that grounds (1) through (3), (6), and (7) existed.
Section 43-292 provides, in relevant part:
The court may terminate all parental rights between the
parents . . . and such juvenile when the court finds such
action to be in the best interests of the juvenile and it
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IN RE INTEREST OF ISABEL P. ET AL.
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appears by the evidence that one or more of the following
conditions exist:
(1) The parents have abandoned the juvenile for six
months or more immediately prior to the filing of the
petition;
(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 protec-
tion; [and]
(3) The parents, being financially able, have willfully
neglected to provide the juvenile with the necessary sub-
sistence, education, or other care necessary for his or
her health, morals, or welfare or have neglected to pay
for such subsistence, education, or other care when legal
custody of the juvenile is lodged with others and such
payment ordered by the court.
Charles was appointed counsel on October 15, 2014. On
October 28, at the first hearing on the petition to terminate,
the court again informed Charles of the nature of the proceed-
ings, the possible consequences, and his rights, as required by
§ 43-279.01.
3. Charles’ Objection
to Case Plan
On November 5, 2014, Charles filed an objection to the case
plan, which contained the goal of adoption for K.J. Charles
opposed that goal and also requested that the case plan set forth
a more specific schedule of visitation.
A hearing on Charles’ objection to the case plan was held on
January 29, 2015. The DHHS worker who created the case plan
testified that visitations were always the parents’ responsibil-
ity to schedule. Initially, Charles was able to schedule a visit
with K.J. for up to 15 hours per week, but was subsequently
limited to therapeutic visits, because he had missed a number
of scheduled visits and the visits were negatively affecting K.J.
The foster mother testified as to K.J.’s behavior before and
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after visits with Charles and stated that K.J. told her he did not
want visits with Charles.
The juvenile court overruled Charles’ objection to the case
plan and found it was in K.J.’s best interests that no visitation
take place at that time. The court’s order stated, “Clear and
convincing evidence [was] presented that during a period of
over 6 months beginning February 20, 2014, no contact took
place between [Charles] and [K.J.]”
4. Hearing on Motion to Terminate
Charles’ Parental R ights
The hearing on the motion to terminate Charles’ parental
rights was held on February 24 and 27 and March 27, 2015.
At the termination hearing, evidence was presented concern-
ing (a) Charles’ relationship with K.J. from birth to removal;
(b) DHHS’ consideration of placing K.J. with Charles after
removal; (c) K.J.’s experience in foster care; and (d) Charles’
relationship with K.J. while K.J. was in foster care, including
the frequency and length of Charles’ visits.
(a) Charles’ Relationship With K.J.
From Birth to Removal
When K.J. was conceived, Charles and Kristie were not
married and both testified that they were not in a romantic
relationship at the time K.J. was born. Charles testified that
during the first month of K.J.’s life, he was living with Kristie
and helped her with K.J. and her other children.
In 2005, when K.J. was 1-month old, Kristie and Charles
were involved in a domestic violence disturbance. An investi-
gator from the Norfolk Police Department, who had responded
to the call, testified that an eyewitness said Charles hit Kristie
in the face and body while she was holding K.J. Charles was
convicted of third degree assault and sentenced to 20 days
in jail. Kristie testified she did not have much contact with
Charles after that time.
After Charles served the sentence for that assault, he was
transferred to South Dakota to serve a 4-year sentence for
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possession with intent to distribute cocaine. Charles also served
time for tampering with a witness. He was granted parole
in 2006.
Kristie testified that while Charles was in jail, he did not
send any cards, letters, or gifts to K.J. Even when Charles
was not serving time, Kristie said that Charles did not send
cards or letters to K.J. and that he never came to K.J.’s birth-
days. However, Kristie testified that Charles did give K.J. a
few gifts.
When Kristie was in jail, Kristie’s mother had tempo-
rary guardianship of K.J. She allowed Charles, who was on
parole at the time, to see K.J. as much as he wanted, until
she received a call from DHHS inquiring about where K.J.
was living. According to Kristie’s mother, Charles had gone
to DHHS to get benefits for K.J. by saying K.J. lived with
him. Charles’ parole was revoked in 2007 after he was con-
victed of driving under the influence. He was released later
that year.
Kristie testified that when Charles was not in jail and before
K.J. was removed, Charles would visit about four times a year.
In 2009, when K.J. was 4 years old, Kristie and her children
lived in Burlington, Iowa. She agreed to meet Charles in Des
Moines, Iowa, so that he could take K.J. back to Norfolk for a
few days. After Kristie had driven 4 hours back to Burlington,
she received a call from the Norfolk Police Department notify-
ing her that they had found her 4-year-old son wandering the
street alone in the middle of the night. Kristie immediately
called her mother, who lived in Norfolk, and asked her to go to
the police station and get K.J.
In 2012, when K.J. was 7 years old, Kristie sent K.J. to stay
with Charles in Lincoln, Nebraska. Charles’ “neighbor,” Willie
M., who lived in the basement of the house Charles rented,
called Kristie and told her that Charles had left K.J. with him.
Willie is a convicted felon and admitted that he was charged
with strangulation and child abuse, which later was reduced
to a third degree assault. He also testified that he has been
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convicted of assault and delivery of an exceptionally hazardous
drug, a Class II felony.
Another time in 2012, Charles left K.J. in Lincoln for 6 to 7
days while Charles went to Texas to visit a girlfriend. Kristie
said Willie contacted her again, and she and her mother drove
to Lincoln to get K.J.
The testimony conflicted as to the length of time Charles
was in Texas and the extent of supervision K.J. received
while Charles was gone. Kristie’s mother testified that K.J.
was very upset when she and Kristie arrived and told her that
he was scared because he had awakened in the middle of the
night and that Charles was gone and the door to the basement
where Willie lived was locked. K.J.’s DHHS worker testified
that Charles told her that he had a neighbor “checking in”
on K.J.
Willie testified he was responsible for K.J. while Charles
was in Texas. Willie testified that K.J. stayed with him every
night and was with him all waking hours. He said this was
possible because he does not work on the weekends. When
confronted with evidence that Charles was gone for more than
a weekend, Willie said, “Well, I’m not — I don’t — I don’t
recall that, you know. But . . . you know, you got other people
there, too, you know what I mean.”
Charles also testified about the Texas incident. After being
confronted with prior testimony from the first adjudication
hearing, Charles admitted he was in Texas for 6 or 7 days.
He said he made arrangements for K.J. before he left. He
told Kristie, Willie, and another neighbor that he was going
to see his girlfriend and his cousin and would be gone for 2
or 3 days. Charles said he made sure that there was food, that
K.J. had clothes, and that the neighbors would help watch K.J.
His return was delayed because he was flying with a “buddy
pass,” which he explained only allowed him to fly standby. He
said that during the 2 or 3 extra days he was gone, the other
neighbor watched K.J. while Willie was at work. The other
neighbor was not at the hearing and did not testify.
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In contrast to Kristie’s testimony that Charles visited K.J.
only about four times per year, Charles testified that he saw
K.J. at least two times per week between 2007, when he was
released from prison, until 2010, when he went back to prison
for conspiracy to commit a Class II felony. Charles testified
that he spent holidays with K.J., but he could not specify which
holidays or which years. He then testified that he remembered
spending Thanksgiving of 2013 with K.J. His counsel promptly
reminded him that was not possible, because K.J. was removed
from his home in October 2012. Charles then said it must have
been the year before (2012). When his counsel suggested it was
2011, Charles agreed.
There was never a custody agreement or custody order
regarding K.J., but Charles was ordered to pay $50 per month
for K.J. At the time of the termination hearing, Charles was
$2,320 in arrears with regard to K.J. Charles has four other
children for whom he is obligated to pay child support, and he
was behind on all those obligations at the time of the termina-
tion hearing.
(b) Placement of K.J.
With Charles
A child protection safety worker from DHHS testified that
she was involved with the investigation and removal of K.J.
and his siblings from their home. After K.J. was removed,
she interviewed K.J. regarding his relationship with Charles.
She said it did not appear that Charles was very involved
with K.J.
The worker contacted Charles as a potential placement for
K.J., but several things caused her concern. Charles had a his-
tory of drug and alcohol use and had been convicted of several
drug-related crimes. Charles was convicted of attempted pos-
session of cocaine, driving while under the influence, and pos-
session of marijuana. The worker was also concerned because
K.J. told the worker that Charles had a lot of beer cans in
his apartment.
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Charles’ propensity for violence was another concern.
Kristie had told the worker that Charles had assaulted her just
after K.J. was born. And at the termination hearing, Charles
admitted that he had served 30 days for an assault of a differ-
ent woman.
The worker was also concerned about placing K.J. with
Charles because of the Texas incident. She noted that K.J.
expressed a fear of being left alone that was not isolated to
the Texas incident. She testified that regardless of these con-
cerns, she could not place K.J. with Charles, because DHHS
requires that background checks be performed on everyone
living in the house and Charles had failed to provide her with
information that would allow her to do background checks on
his roommates.
(c) K.J.’s Experience in
Foster Care
Instead of being placed with Charles after removal in 2012,
K.J. was placed in a foster home with one of his brothers.
His foster parents, Jenny A. and Kevin A., are licensed with
the State of Nebraska. At the termination hearing, Jenny
testified that K.J. had been living with them for 2 years and
had bonded with them. K.J. tells her he loves her, calls her
“mom,” and calls Kevin “dad.” She and Kevin were willing
to continue to provide a safe, stable, and secure environment
for them.
Jenny also testified that K.J. had made progress on behav-
ioral issues while in the foster home. When the boys first
arrived in 2012, they fought a lot, used “filthy” language,
would not listen, and had terrible “meltdowns” and tantrums
several times a day. K.J. would put himself in a fetal posi-
tion on the floor and not talk to her or Kevin. But at the time
of the termination hearing, K.J. was a “very good little boy”;
Jenny testified that K.J. was smart, loving, well behaved, and
healthy. She did not deny that K.J. still had some behavioral
problems, but testified that, for the most part, he was a very
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well mannered boy. K.J. has gone to therapy regularly, but that
the frequency has declined significantly.
(d) Charles’ Relationship With K.J.
While in Foster Care
Jenny also testified about K.J.’s interactions with Charles
during the time K.J. was in her care. Charles gave K.J. a few
gifts: pants and tennis shoes (which did not fit), Legos, a
candy bar, and a used Xbox. K.J. also received a birthday card
and a letter. Charles’ visits seemed to have a negative effect
on K.J. After visiting with Charles, K.J. became more inse-
cure and argumentative and he would act up, not wanting her
or Kevin to go anywhere without him. Jenny said that when
Charles failed to attend several visits, K.J. became angry, and
that Jenny and Kevin would have to “talk him up” for the
next visit, telling him that Charles loved him and wanted to
see him.
While K.J. was in foster care, Charles was initially given
a lot of flexibility regarding visitation. The visits were first
supervised by family support workers with a local counseling
center. But because of the infrequency and inconsistency in
Charles’ visits, starting January 8, 2014, Charles was eventu-
ally allowed only therapeutic visits. Those visits took place in
an office setting with K.J.’s therapist present.
Family support workers and K.J.’s therapist testified at the
termination hearing. One family support worker testified that
there were appropriate displays of affection during the vis-
its. Another worker testified that K.J. appeared to be happy
and smiling during a visit. But K.J.’s therapist testified that
Charles’ visits had a negative impact on K.J. She testified
that K.J. did not want to go to visits with Charles and that the
visits seemed to cause K.J. anxiety. She said that the incon­
sistency in Charles’ visits affected K.J.’s self-esteem and sense
of self-worth.
Their testimony established that during the 22-month period
from K.J.’s placement into foster care in October 2012 until
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the termination motion was filed on August 27, 2014, Charles
visited K.J. eight times for a total of 14 hours. In addition to
the eight visits Charles actually attended, six other visits were
scheduled, but Charles either canceled those visits or failed
to show.
February 19, 2014, was Charles’ last visit with K.J. before
the termination petition was filed 6 months later. According to
Charles, he was not more involved in visits with K.J. because
he believed Kristie was going to successfully reunify with
the children.
5. Juvenile Court’s Order
Following the termination hearing, the court found that it
should have appointed an attorney for Charles at the adjudica-
tion hearing, and for that reason, it denied the State’s petition
to terminate the parental rights of Charles. The court vacated
its January 29, 2015, order terminating Charles’ visitation
rights and reinstated its prior order, which stated that any visi-
tation between Charles and K.J. must take place in a therapeu-
tic setting. The court instructed Charles that the burden was on
him to set up visitation.
III. ASSIGNMENTS OF ERROR
The State assigns, restated, that the juvenile court erred in
declining to terminate Charles’ parental rights without consid-
ering grounds (1) through (3) as listed under § 43-292. The
GAL assigns the same error and also assigns that the juvenile
court erred in not terminating Charles’ parental rights to K.J.
IV. STANDARD OF REVIEW
[1] Statutory interpretation is a question of law that an
appellate court resolves independently of the trial court.2
2
State v. Mendoza-Bautista, 291 Neb. 876, 869 N.W.2d 339 (2015); State v.
Ramirez, 285 Neb. 203, 825 N.W.2d 801 (2013); State v. Dixon, 282 Neb.
274, 802 N.W.2d 866 (2011).
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[2] An appellate court reviews juvenile cases de novo on
the record and reaches a conclusion independently of the juve-
nile court’s findings.3
V. ANALYSIS
1. Jurisdiction
[3] Before reaching the legal issues presented for review,
it is the power and duty of an appellate court to determine
whether it has jurisdiction over the matter before it, irrespec-
tive of whether the issue is raised by the parties.4
[4] For an appellate court to acquire jurisdiction of an
appeal, there must be a final order entered by the court from
which the appeal is taken.5 Under Neb. Rev. Stat. § 25-1902
(Reissue 2008), the three types of final orders which may be
reviewed on appeal are (1) an order which affects a substantial
right in an action and which in effect determines the action and
prevents a judgment, (2) an order affecting a substantial right
made during a special proceeding, and (3) an order affecting
a substantial right made on summary application in an action
after a judgment is rendered.6
This case involves the second type of final order—an
order affecting a substantial right made during a special
proceeding. The terms “special proceeding” and “substantial
right” are not defined by statute, but have been interpreted
by case law. Our case law establishes that a proceeding
3
In re Interest of Enyce J. & Eternity M., 291 Neb. 965, 870 N.W.2d 413
(2015).
4
In re Estate of Rose, 273 Neb. 490, 730 N.W.2d 391 (2007).
5
See, Neb. Rev. Stat. § 43-2,106.01 (Cum. Supp. 2014); In re Interest of
Jassenia H., 291 Neb. 107, 864 N.W.2d 242 (2015).
6
Kilgore v. Nebraska Dept. of Health & Human Servs., 277 Neb. 456, 763
N.W.2d 77 (2009).
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before a juvenile court is a special proceeding for appel-
late purposes.7
[5] Therefore, the focus of our jurisdictional inquiry is on
whether the juvenile court’s order affected a substantial right.
We find that it does. We have explained that a substantial right
is affected if an order affects the subject matter of the litiga-
tion, such as diminishing a claim or defense that was avail-
able to the appellant prior to the order from which the appeal
is taken.8
The State has an interest in protecting the welfare of its resi-
dent children.9 Whether the order affects the substantial rights
of the parties necessarily depends on the substance of the order.
The juvenile court’s order stated that “the Court does not feel
it is in a position to terminate the parental rights of [Charles]
at this time.” Because the juvenile court made no reference to
taking the case under advisement, we interpret this statement to
be a denial of the State’s motion to terminate Charles’ parental
rights. The order affected the State’s right to protect the wel-
fare interests of its resident child, K.J., which was a substantial
right, and we therefore have jurisdiction.
2. Juvenile Court’s Failure to Consider
§ 43-292(1) Through (3)
We next consider whether the juvenile court erred when it
denied the State’s motion to terminate parental rights without
considering whether termination of parental rights was in the
child’s best interests or justified under grounds (1) through
7
In re Interest of Jassenia H., supra note 5; In re Interest of Meridian H.,
281 Neb. 465, 798 N.W.2d 96 (2011); In re Interest of Thomas M., 282
Neb. 316, 803 N.W.2d 46 (2011); In re Interest of Ty M. & Devon M., 265
Neb. 150, 655 N.W.2d 672 (2003); In re Interest of Anthony R. et al., 264
Neb. 699, 651 N.W.2d 231 (2002); In re Interest of Clifford M. et al., 258
Neb. 800, 606 N.W.2d 743 (2000).
8
Id.
9
In re Interest of Karlie D., 283 Neb. 581, 811 N.W.2d 214 (2012).
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(3) of § 43-292. The court did so because Charles was not
provided with counsel in the proceedings leading up to K.J.’s
adjudication. The State claims this was error, and we agree.
[6] We have previously held that so long as a parent was
afforded due process of law, a defect during the adjudica-
tion phase does not preclude consideration of termination of
parental rights pursuant to § 43-292(1) through (5).10 Thus, so
long as Charles was provided due process of law, the juvenile
court’s failure to provide Charles with counsel during the adju-
dication phase does not preclude consideration of termination
of parental rights pursuant to § 43-292(1) through (3).
Charles was afforded due process in the termination pro-
ceedings. At the first hearing on the State’s petition to ter-
minate, Charles was advised of the nature of the proceeding,
the potential consequences, and his rights, as required by
§ 43-279.01. All evidence necessary to decide the termination
issue was adduced at the termination hearing while Charles
was represented by counsel.
Charles argues that the denial of counsel misled him to
“believe that he did not need to be involved in the case” and
that had “he been appointed counsel from the very beginning,
he could have had the help of an attorney to navigate this
matter.”11 But one of the bases for termination of Charles’
parental rights was that Charles abandoned K.J. for at least
6 months immediately preceding the filing of the termina-
tion petition. With respect to that allegation, we cannot say
that Charles’ failure to visit K.J. was the court’s fault. Due
process in a termination proceeding does not require that the
parent be advised that he or she should be involved in the
child’s life.
Charles was afforded due process, and we conclude that the
juvenile court erred in denying the State’s motion to terminate
10
See In re Interest of Joshua M. et al., supra note 1.
11
Brief for appellee Charles at 29-30.
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parental rights without considering whether termination of
parental rights was in the child’s best interests or justified
under grounds (1) through (3) of § 43-292.
3. Termination of Charles’
Parental R ights
Because the juvenile court should have considered whether
Charles’ parental rights should be terminated pursuant to
§ 43-292(1) through (3), we make that determination upon our
de novo review.
[7] 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.12 The State has alleged that termination of
Charles’ parental rights is in K.J.’s best interests and that five
of the grounds listed within § 43-292 (grounds (1) through (3),
(6), and (7)) exist. However, the State and the GAL request
that we consider grounds (1) through (3). Those grounds are
as follows:
(1) The parents have abandoned the juvenile for six
months or more immediately prior to the filing of the
petition;
(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 protec-
tion; [and]
(3) The parents, being financially able, have willfully
neglected to provide the juvenile with the necessary sub-
sistence, education, or other care necessary for his or
her health, morals, or welfare or have neglected to pay
for such subsistence, education, or other care when legal
custody of the juvenile is lodged with others and such
payment ordered by the court.
12
See In re Interest of Kendra M. et al., 283 Neb. 1014, 814 N.W.2d 747
(2012).
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(a) § 43-292(1)
[8,9] For purposes of § 43-292(1), “abandonment” is a par-
ent’s intentionally withholding from a child, without just cause
or excuse, the parent’s presence, care, love, protection, mainte-
nance, and the opportunity for the display of parental affection
for the child.13 To prove abandonment in determining whether
parental rights should be terminated, the evidence must clearly
and convincingly show that the parent has acted toward the
child in a manner evidencing a settled purpose to be rid of all
parental obligations and to forgo all parental rights, together
with a complete repudiation of parenthood and an abandon-
ment of parental rights and responsibilities.14
[10] A parent’s abandonment of his or her child for 6
months or more immediately prior to the filing of a petition to
terminate parental rights is a ground for termination of such
rights under § 43-292(1). In this case, the petition to terminate
Charles’ parental rights was filed on August 27, 2014. Thus,
the relevant 6-month period is from February 27 to August
27, 2014.15 We have said that a court reviewing a termina-
tion of parental rights case on the ground of abandonment
need not consider the 6-month period in a vacuum.16 Instead,
the court may consider evidence of a parent’s conduct, either
before or after the statutory period, in determining whether
the purpose and intent of that parent was to abandon his or
her children.17
Clear and convincing evidence supports that Charles aban-
doned K.J. for at least 6 months prior to the filing of the
13
In re Interest of Gabriella H., 289 Neb. 323, 855 N.W.2d 368 (2014);
In re Interest of Justine J. & Sylissa J., 288 Neb. 607, 849 N.W.2d 509
(2014).
14
In re Interest of Gabriella H., supra note 13; Kenneth C. v. Lacie H., 286
Neb. 799, 839 N.W.2d 305 (2013).
15
See In re Interest of Gabriella H., supra note 13.
16
See id.
17
See id.
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termination petition. Not only does Charles admit that he did
not visit K.J. during the 6-month period before the petition
to terminate his parental rights was filed, but prior to that,
Charles had minimal contact with K.J. During the 22-month
period from when K.J. went into foster care in October 2012
until the petition was filed in August 2014, Charles visited K.J.
only eight times for a total of 14 hours. We also consider that
Charles either failed to show or canceled almost as many visits
as he attended during that time.
Further, there were significant gaps in time between Charles’
visits during that 22-month time period. In addition to the
6-month gap preceding the filing of the termination petition,
the evidence shows that there were two 3-month gaps and
one 5-month gap in which Charles did not visit K.J. We note
that 3 months is a long time for a parent to go without seeing
his or her child; it is perhaps perceived by a child as an even
longer period of time for the child to go without seeing his or
her parent.
We find no just cause or excuse for Charles’ failure to main-
tain a relationship with K.J. Charles claims he “was taking
a step back,” because he believed that Kristie was going to
successfully reunify with K.J.18 But K.J.’s reunification with
Kristie would not have precluded Charles from caring for K.J.
or being present in K.J.’s life.
[11,12] Abandonment is not an ambulatory thing the legal
effects of which a parent may dissipate at will by token
efforts at reclaiming a discarded child.19 Parental obliga-
tion requires a continuing interest in the child and a genuine
effort to maintain communication and association with that
child.20 We conclude that Charles’ sporadic, insubstantial
18
Brief for appellee Charles at 33.
19
Kenneth C. v. Lacie H., supra note 14; In re Adoption of David C., 280
Neb. 719, 790 N.W.2d 205 (2010); In re Interest of Sunshine A. et al., 258
Neb. 148, 602 N.W.2d 452 (1999).
20
Id.
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efforts to maintain a relationship with K.J., combined with
Charles’ failure to visit K.J. in the 6 months prior to the filing
of the termination petition, constitute clear and convincing
evidence that Charles abandoned K.J. within the meaning of
§ 43-292(1).
Because § 43-292 requires that the State prove only one of
the enumerated statutory grounds for termination of parental
rights, we need not review the other alleged bases for termina-
tion of those rights.21
We next consider whether there is sufficient evidence to
establish by clear and convincing evidence that it is in K.J.’s
best interests that Charles’ parental rights be terminated.
(b) Best Interests of K.J.
[13-15] A child’s best interests are presumed to be served by
having a relationship with his or her parent.22 This presumption
is overcome only when the State has proved that the parent is
unfit. In the context of the constitutionally protected relation-
ship 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 obliga-
tion in child rearing and which has caused, or probably will
result in, detriment to a child’s well-being.23 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 as the other.24
In considering Charles’ fitness as a parent and whether ter-
mination of Charles’ parental rights are in K.J.’s best interests,
21
See In re Interest of Joshua M. et al., supra note 1.
22
See, In re Interest of Jahon S., 291 Neb. 97, 864 N.W.2d 228 (2015);
Kenneth C. v. Lacie H., supra note 14; In re Interest of Kendra M. et al.,
supra note 12; In re Interest of Ryder J., 283 Neb. 318, 809 N.W.2d 255
(2012).
23
In re Interest of Jahon S., supra note 22.
24
Id.
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we cannot ignore Charles’ criminal history. The record shows
that Charles has been convicted of a number of drug charges
and other felony charges during K.J.’s lifetime, including a
violent crime against Kristie while she was holding K.J., who
was then an infant. Among other crimes, Charles was convicted
of possession with intent to distribute cocaine, possession of
marijuana, and attempted tampering with a witness in 2005. In
2010, Charles was charged with delivery of a controlled sub-
stance, which was reduced to attempted possession.
As a result of Charles’ criminal conduct, he has been incar-
cerated several times throughout K.J.’s life, making it impos-
sible for him to be consistently present in K.J.’s life or provide
him with proper care and support. The record shows that
Charles was in jail or prison, at least, from February 2005 to
January 2006; for 30 days in 2007; for 30 days in 2008; and
from December 2010 until June 2011.
Moreover, Charles does not appear able to act in K.J.’s
best interests. Although K.J. has struggled with anxiety, atten-
tion deficit hyperactivity disorder, and other behavioral prob-
lems, Charles testified that he did not agree with K.J.’s being
treated with medication or with K.J.’s seeing a psychiatrist
or counselor.
Additionally, Charles has a history of leaving K.J. unsu-
pervised. When K.J. was 4 years old and was supposed to be
in Charles’ care, the police found K.J. wandering the street in
the middle of the night. The week before K.J. was removed
from his home and placed into foster care, Charles left 7-year-
old K.J. in his apartment for 7 days. Charles claims that he
arranged for his two neighbors, one who was a convicted
felon charged with child abuse and another who did not tes-
tify, to watch K.J. We find Charles’ evidence about the extent
of his supervision unconvincing. Moreover, even if K.J. were
fully supervised, we question Charles’ choice of supervisors
and are concerned that Charles expresses no regret for that
choice. Although these incidents have not resulted in physical
harm to K.J., it is clear that it had a negative effect on K.J.’s
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sense of well-being; i.e., he has developed a fear of being
left alone.
To the extent that Charles was present in K.J.’s life, the
testimony of K.J.’s therapist and foster mother indicate that
Charles’ interactions affected K.J. negatively and that K.J. does
not want a relationship with Charles.
Considering all the evidence, we conclude there is clear
and convincing evidence that termination of Charles’ parental
rights is in K.J.’s best interests.
VI. CONCLUSION
Upon our de novo review, we conclude that the State proved
by clear and convincing evidence that Charles abandoned K.J.
and that the termination of his parental rights was in K.J.’s
best interests. We therefore reverse the decision of the juve-
nile court, and we remand the cause with directions to vacate
its order filed May 21, 2015, and enter an order terminating
Charles’ parental rights to K.J.
R eversed and remanded with directions.
Heavican, C.J., not participating.