In re Interest of Alec S.

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www.nebraska.gov/apps-courts-epub/
09/16/2016 09:08 AM CDT
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Nebraska Supreme Court A dvance Sheets
294 Nebraska R eports
IN RE INTEREST OF ALEC S.
Cite as 294 Neb. 784
In re I nterest of A lec S., a child
under 18 years of age.
State of Nebraska, appellee, v.
Brenda G., appellant.
___ N.W.2d ___
Filed September 16, 2016. No. S-15-658.
1. 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.
2. 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.
3. 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.
4. 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.
5. Parental Rights. The best interests analysis and the parental fitness
analysis are separate inquiries, but each examines essentially the same
underlying facts as the other.
6. ____. Last-minute attempts by parents to comply with the rehabilitation
plan do not prevent termination of parental rights.
7. ____. Children cannot, and should not, be suspended in foster care or be
made to await uncertain parental maturity.
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Nebraska Supreme Court A dvance Sheets
294 Nebraska R eports
IN RE INTEREST OF ALEC S.
Cite as 294 Neb. 784
Petition for further review from the Court of Appeals,
Irwin, Pirtle, and R iedmann, Judges, on appeal thereto from
the Separate Juvenile Court of Douglas County, Christopher
K elly, Judge. Judgment of Court of Appeals reversed, and
cause remanded with direction.
Matthew R. Kahler, of Finley & Kahler Law Firm, P.C.,
L.L.O., for appellant.
Donald W. Kleine, Douglas County Attorney, Anthony
Hernandez, and Jocelyn Brasher, Senior Certified Law Student,
for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Cassel, J.
INTRODUCTION
The juvenile court terminated a mother’s parental rights to
her child. Relying upon our decision in In re Interest of Aaron
D.,1 the Nebraska Court of Appeals reversed, concluding that
the State failed to prove termination was in the child’s best
interests.2 We granted the State’s petition for further review. In
comparison to the meager record in In re Interest of Aaron D.,
the record here abounds with clear and convincing evidence
supporting the termination. We reverse the Court of Appeals’
decision and remand the cause with direction.
BACKGROUND
Procedural Background
On September 13, 2013, the State moved for tempo-
rary custody of Alec S. According to an affidavit for Alec’s
removal from the home of his mother, Brenda G., a hotline
1
In re Interest of Aaron D., 269 Neb. 249, 691 N.W.2d 164 (2005).
2
In re Interest of Alec S., 23 Neb. Ct. App. 792, 876 N.W.2d 395 (2016).
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IN RE INTEREST OF ALEC S.
Cite as 294 Neb. 784
of the Department of Health and Human Services (DHHS)
received an intake on September 11, alleging that Brenda
was diagnosed with mental health issues to the point that she
needed to be admitted to a hospital for care. Brenda agreed
to a September 12 enrollment in an inpatient program rec-
ommended by a Dr. Patera. A DHHS employee learned from
Patera’s nurse that Patera believed that Brenda needed to be
in an inpatient program due to her mental health needs, that
Brenda was currently unable to provide care for Alec, and that
Brenda did not follow up on her health appointments with
health care professionals. The DHHS employee confirmed on
September 13 that Brenda had not checked herself into the
inpatient program.
The State filed a petition seeking to adjudicate Alec simul-
taneously with the filing of the motion for temporary custody.
The State alleged that Alec, who was “under eight years
of age,” was a child within the meaning of Neb. Rev. Stat.
§ 43-247(3)(a) (Reissue 2008) due to the faults or habits of
Brenda. The petition alleged that Brenda had been diagnosed
with posttraumatic stress disorder, depression, and anxiety;
that she was unable to provide proper care for Alec; that medi-
cal professionals had recommended inpatient care; and that
Brenda had failed to check herself into the inpatient program
as recommended by Patera. An amended petition added that
Brenda’s use of alcohol and/or controlled substances placed
Alec at risk for harm. The juvenile court adjudicated Alec in
January 2014.
On March 18, 2014, the juvenile court entered a dis-
position and permanency planning order. The permanency
objective was reunification with a concurrent objective of
adoption. The court ordered Brenda to participate in an out-
patient chemical dependency therapy program, to continue
submitting to random drug and alcohol testing, and to con-
tinue participation in programs at “Community Alliance.”
(According to testimony in the bill of exceptions, Community
Alliance provides outpatient chemical dependency treatment.)
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IN RE INTEREST OF ALEC S.
Cite as 294 Neb. 784
The court further ordered her to attend family and individual
therapy and to continue participating in psychiatric care.
Brenda was allowed supervised visitation with Alec. On
September 16, the court entered a review and permanency
planning order. It did not order Brenda to participate in a
chemical dependency therapy program, but otherwise ordered
her to participate in the same tasks as those in the March 18
order. Substantially the same requirements were contained in
a January 20, 2015, order.
On February 6, 2015, the State filed a motion to terminate
Brenda’s parental rights under Neb. Rev. Stat. § 43-292(2),
(6), and (7) (Cum. Supp. 2014).
Termination Hearing
In June 2015, the juvenile court conducted a termina-
tion hearing. Four witnesses—all called on behalf of the
State—testified.
Dr. Randy LaGrone, a clinical psychologist, testified about
Brenda’s participation in outpatient psychological care begin-
ning in January 2013. Her primary diagnosis was posttraumatic
stress disorder, and LaGrone began working with her to obtain
consistency in treatment and to increase her sense of safety. He
met with Brenda only six times—Brenda missed or canceled
19 sessions. Because Brenda’s difficulties were very treat-
able at that time and LaGrone wanted her to see someone, he
made referrals to other community agencies. But Brenda did
not act on those referrals. According to LaGrone, Brenda did
not make any progress toward her goals. He discharged her in
August 2014.
Mary Atwood, Alec’s mental health therapist, provided tes-
timony about therapy. Alec was diagnosed with “[a]djustment
disorder with mixed emotions,” and a treatment plan was
created to work with his emotions. Atwood had two sessions
of individual therapy with Alec. In March 2014, a case man-
ager requested that Atwood conduct family therapy with Alec
and Brenda. Despite scheduling weekly appointments, Atwood
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IN RE INTEREST OF ALEC S.
Cite as 294 Neb. 784
had conducted only three sessions of family therapy over 2
months. According to Atwood, Brenda did not demonstrate
any insight regarding the need for family therapy. The goal
was to start communication between Alec and Brenda, because
Alec did not feel like he could speak honestly with his mother.
Atwood testified that because Brenda spent the time “fussing”
over Alec and asking him questions, no progress was made
toward the goal. Atwood added that as a result of Brenda’s
questioning, Alec tended to “shut down.”
Jennifer Ratliff, a mental health therapist, testified about
her individual therapy with Alec. She diagnosed Alec with
adjustment disorder, unspecified, and also identified features
of attention deficit hyperactivity disorder. Due to those fea-
tures, Alec needed a moderately structured and stable envi-
ronment to help manage the symptoms that accompanied the
diagnosis. Ratliff elaborated:
[H]e needs an environment where his physical needs
are met consistently, as well as emotional needs, and
any ongoing mental health services or needs need to be
provided to him, including psychiatric care for medica-
tion management. Also he needs to be in an environ-
ment where . . . there are consistent rules and nonphysi-
cal discipline.
Alec made progress in two areas: identifying activities to
engage in to serve as coping skills and expressing emotions.
But due to becoming withdrawn, he did not make progress in
addressing past trauma.
Ratliff began conducting family therapy with Alec and
Brenda in March 2015. Its goals were to establish and improve
communication, especially identifying and expressing emo-
tions. Brenda attended four of the eight scheduled appoint-
ments: two in March and two in May. According to Ratliff, no
progress was made during the first couple of sessions, because
Brenda appeared to be preoccupied with Alec’s hygiene. And
Ratliff testified that Alec became withdrawn when Brenda
discussed her involvement with DHHS in Alec’s presence.
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Nebraska Supreme Court A dvance Sheets
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IN RE INTEREST OF ALEC S.
Cite as 294 Neb. 784
But the two sessions in May went well, with Brenda engag-
ing in therapeutic dialog with Alec. Ratliff testified that Alec
and Brenda were bonded and that it would be best for Alec
to maintain contact with Brenda, even if her parental rights
were terminated.
Finally, Alyssa Gill, a family permanency specialist with
DHHS, testified. Gill was officially assigned the family’s
case in February 2015. She then reviewed the prior casework-
ers’ documented interactions with Brenda. Gill testified about
Brenda’s lack of compliance with various aspects of court-
ordered services. There was no documentation that Brenda had
completed individual therapy. To Gill’s knowledge, Brenda
had not completed any chemical dependency treatment. Brenda
had not fully complied with urinalysis testing, and Gill testi-
fied that some of the tests in April and May 2015 were positive
for alcohol.
Visitation never progressed beyond being fully supervised.
Gill testified that generally, if visitation was still being super-
vised after a child had been in an out-of-home placement for
12 months, it meant that a safety threat was still present and
that “not a lot” of progress was being made to address it.
Brenda was given one visit per week, but she had missed a few
visits since March 2015.
Gill testified that Brenda’s mental health remained a pri-
mary concern. Gill communicated with Brenda’s psychiatrist
and obtained medical records from the time that Brenda was
admitted to a psychiatric ward in February 2015 to the time
of the termination hearing. Upon Gill’s inquiry, Brenda told
her that Alec’s foster parents “tricked her and made her go”
to inpatient treatment. But the documentation Gill received
revealed that Brenda had admitted to drinking a pint of vodka
and going to a police station. Alec’s foster parents were then
alerted because they had been “a support” to Brenda. Due to
concerns about Brenda’s safety after speaking with her, the
foster parents took her to the hospital. Brenda’s psychiatrist
recommended that Brenda remain in treatment, but she left
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IN RE INTEREST OF ALEC S.
Cite as 294 Neb. 784
after 4 days. Gill testified that against medical orders, Brenda
left because “[s]he just felt that she did not belong there
because she had been tricked to go there.”
Obtaining stable housing has been a struggle for Brenda.
As of November 2014, Brenda was homeless and staying at
various shelters. Gill learned that Brenda had also been staying
with a sister after being banned from some of the shelters as a
result of her alcohol use, her escalating anger, and her inabil-
ity to show stability and maintenance of her mental health.
At the time of the termination hearing, Brenda was living at
the “Salvation Army Mental Health and Community Support
Transitional Living.” Although this was appropriate housing
for Brenda, children were not allowed to reside there.
Gill recognized that in the few months prior to the hearing,
Brenda had made progress in certain areas. These included
improvements in housing, in supervised visits, and in fam-
ily therapy sessions. Gill confirmed that visitation workers
reported a bond between Alec and Brenda. But Gill feared that
Brenda would not maintain services if Alec were returned to
Brenda’s care. Gill testified that she took into consideration her
conversations with Alec in forming her opinion as to what was
in Alec’s best interests, and she recommended termination of
Brenda’s parental rights.
The court received a number of exhibits during the hearing.
Visitation notes for October 2013 stated that Brenda freely
provided Alec with affection throughout all of the visits and
that she was swift to appropriately redirect Alec’s behavior
using verbal warnings. However, Brenda was quick to get
angry and would yell during visits. She was also late to every
visit. Notes for April 2014 stated that Brenda was loving
toward Alec and that he was affectionate in return. In May, a
visitation specialist stated that Brenda seemed edgy and dis-
tracted. According to the document, the specialist had been
told that Brenda had tested positive for methamphetamine a
few weeks prior and that since the positive test, she had not
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Nebraska Supreme Court A dvance Sheets
294 Nebraska R eports
IN RE INTEREST OF ALEC S.
Cite as 294 Neb. 784
been submitting to testing. Notes for visitations in June stated
that Brenda had “made a clear effort this month to not only
show up to her visit but showing up on time too” and seemed
“to be in a better head space.” In July, the visitation specialist
recommended more visitation days.
Juvenile Court’s Decision
The juvenile court terminated Brenda’s parental rights. The
court found that Brenda’s participation in visitation with Alec
was sporadic and that she had not participated with therapeutic
services to the degree needed to move the case toward reuni-
fication. The court recognized that there was a bond between
Alec and Brenda and that Brenda’s “performance in certain
areas has improved somewhat over the past four months, fol-
lowing the filing of the Motion for Termination of Parental
Rights.” But the court noted that Alec had been in an out-of-
home placement for 21 months and stated that there was “no
realistic possibility of reunification . . . in the near, or even
relatively distant future, given [Brenda’s] ongoing issues with
respect to substance abuse, mental health considerations and
her failure to meaningfully and consistently participate with
services so as to achieve reunification.” The court found by
clear and convincing evidence that the State proved grounds
for termination under § 43-292(2), (6), and (7) and that termi-
nation was in Alec’s best interests.
Court of A ppeals’ Decision
Upon Brenda’s appeal, the Court of Appeals determined
that the record clearly and convincingly showed that a ground
for termination under § 43-292(7) existed. Thus, the court did
not review whether termination was proper under § 43-292(2)
or (6). The court found the evidence to be similar to that pre-
sented in In re Interest of Aaron D.3 Ultimately, the Court of
3
In re Interest of Aaron D., supra note 1.
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Nebraska Supreme Court A dvance Sheets
294 Nebraska R eports
IN RE INTEREST OF ALEC S.
Cite as 294 Neb. 784
Appeals determined that the State failed to adduce clear and
convincing evidence that terminating Brenda’s parental rights
was in Alec’s best interests.4
We granted the State’s petition for further review.
ASSIGNMENT OF ERROR
The State assigns that the Court of Appeals erred in deter-
mining that the State failed to adduce clear and convincing
evidence that termination of Brenda’s parental rights was in
Alec’s best interests.
STANDARD OF REVIEW
[1] An appellate court reviews juvenile cases de novo on
the record and reaches a conclusion independently of the juve-
nile court’s findings.5
ANALYSIS
[2] 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 termina-
tion is in the child’s best interests.6 The juvenile court found
the State established by clear and convincing evidence that
termination was in Alec’s best interests, but the Court of
Appeals disagreed.
The Court of Appeals found the evidence to be similar to
that in In re Interest of Aaron D. But we find that case to be
distinguishable in several respects.
First, in In re Interest of Aaron D., the State sought to ter-
minate the mother’s parental rights on the sole ground that the
child had been in out-of-home placement for 15 or more of the
most recent 22 months.7 With regard to termination in cases
based solely on § 43-292(7), we stated that termination
4
See In re Interest of Alec S., supra note 2.
5
In re Interest of Alan L., ante p. 261, 882 N.W.2d 682 (2016).
6
In re Interest of Isabel P. et al., 293 Neb. 62, 875 N.W.2d 848 (2016).
7
See § 43-292(7).
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IN RE INTEREST OF ALEC S.
Cite as 294 Neb. 784
may prove difficult . . . where the record is insufficient
to prove any of the other statutory grounds—i.e., where
the parent did not abandon the child, did not neglect to
protect or provide for a child, was not unfit or unable to
parent, did not fail to participate in necessary rehabilita-
tion, and was not abusive.8
That is not true here. In addition to the subsection (7) finding,
the juvenile court found sufficient evidence for termination on
the bases that Brenda substantially and continuously or repeat-
edly neglected and refused to give Alec necessary parental
care and protection and that reasonable efforts to preserve and
reunify the family had failed to correct the conditions leading
to the adjudication.9
Second, the record in In re Interest of Aaron D. did not
contain any dispositional orders setting forth the court-ordered
rehabilitation plans. We observed that “the State failed to
introduce that evidence in support of its contention that [the
mother] failed to meet the requirements of her rehabilita-
tive plan, and is relying on [the mother’s] alleged failure to
comply with requirements that are not fully evidenced by
the record.”10 And we elaborated on the consequence of
this failure:
[B]ecause no court-ordered plan is part of our record, the
reasonability of the requirements imposed on [the mother]
is uncertain. Under those circumstances, we cannot find
[the mother’s] alleged noncompliance with the require-
ments of her rehabilitation plan to be clear and convinc-
ing evidence that termination of her parental rights is in
[the child’s] best interests.11
8
In re Interest of Aaron D., supra note 1, 269 Neb. at 261, 691 N.W.2d at
173.
9
See § 43-292(2) and (6).
10
In re Interest of Aaron D., supra note 1, 269 Neb. at 264, 691 N.W.2d at
175.
11
Id. at 264, 691 N.W.2d at 176.
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IN RE INTEREST OF ALEC S.
Cite as 294 Neb. 784
Here, in contrast, the record contains numerous orders. These
include a disposition and permanency planning order from
March 18, 2014; a review and permanency planning order
from September 16; and a review, permanency planning, and
“LB-1041 Finding” order from January 20, 2015. These orders
directed Brenda to participate in such things as urinalysis
testing, programs at Community Alliance, individual and fam-
ily therapy, psychiatric care, and supervised visitation. The
requirements imposed on Brenda mesh with her faults as iden-
tified in the adjudication petition.
Third, the number of witnesses testifying on each party’s
behalf differs. In In re Interest of Aaron D., only one wit-
ness testified for the State, while at least three witnesses—the
mother, the child, and a family therapist—testified for the
mother. Here, the State presented the testimony of four wit-
nesses; no one testified on Brenda’s behalf.
In In re Interest of Aaron D., the lack of other witnesses
for the State was particularly problematic. It used a DHHS
caseworker “as a proxy for all of the other witnesses whose
expertise and testimony would have been helpful . . . in
determining what was in [the child’s] best interests.”12 The
caseworker’s testimony was largely based on her review
of records generated by those who directly observed the
mother and child. Thus, much of the caseworker’s testi-
mony was based on hearsay. And in some instances, that
hearsay evidence was contradicted by the testimony of the
mother’s witnesses.
The situation here differs in two respects. Although Gill
provided testimony based on her review of records and reports
generated by others, the record shows that she did more than
merely review documentation in the case file. She spoke with
Brenda in person and over the telephone, and she also commu-
nicated with various individuals providing services to Brenda.
12
Id. at 261, 691 N.W.2d at 174.
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IN RE INTEREST OF ALEC S.
Cite as 294 Neb. 784
And Gill’s testimony was generally uncontradicted. But more
importantly, the State adduced testimony from others who
directly worked with Alec and Brenda. This is in sharp con-
trast to In re Interest of Aaron D., where much of the State’s
evidence was based on hearsay. The court in that case observed
that the child’s therapists did not testify. Here, two of Alec’s
therapists testified.
Certainly, the State could have called more witnesses and
produced more evidence. In In re Interest of Aaron D., like
in this case, no testimony was adduced from the child’s fos-
ter parents, teachers, or visitation supervisors. The Court of
Appeals noted several deficiencies in the record: It contained
no evidence from Patera as to Brenda’s need for inpatient
treatment, no evidence “as to how Brenda’s mental health
diagnoses and treatment needs affected her ability to safely
parent Alec,”13 little evidence “regarding what is continually
and vaguely referred to as Brenda’s ‘mental health needs’ upon
which the removal and adjudication were primarily based,”14
and no evidence as to why Brenda was required to undergo
random testing for alcohol or drugs. However, the record con-
tains Brenda’s mental health diagnoses and refers to issues she
had with alcohol and controlled substances. While filling in
these gaps could have aided appellate review, the lack of all
the “gory details” does not mean the State failed to meet its
burden of proof.
[3-5] The overriding legal framework is well settled. A
child’s best interests are presumed to be served by having a
relationship with his or her parent. This presumption is over-
come only when the State has proved that the parent is unfit.15
In the context of the constitutionally protected relationship
13
In re Interest of Alec S., supra note 2, 23 Neb. Ct. App. at 801, 876 N.W.2d at
402.
14
Id.
15
In re Interest of Isabel P. et al., supra note 6.
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between a parent and a child, parental unfitness means a per-
sonal 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.16 The best interests
analysis and the parental fitness analysis are separate inquiries,
but each examines essentially the same underlying facts as
the other.17
[6] The evidence demonstrates that Brenda is unfit and that
termination of her parental rights is in Alec’s best interests.
There is no dispute that Brenda has mental health issues, but
she has failed to consistently attend treatment for the prob-
lem. Ratliff testified that structure was vital and necessary to
improve the symptoms of Alec’s attention deficit hyperactiv-
ity disorder, but there was no evidence that Brenda was capa-
ble of providing stability for Alec. Even more problematic is
that 17 months after the case began, Brenda still lacked an
understanding of why Alec was unsafe or why she needed to
engage in the services offered to show that she could provide
for Alec. She had sufficient opportunity to comply with the
reunification plan within the 15-month condition contained
in § 43-292(7), which “‘serves the purpose of providing a
reasonable timetable for parents to rehabilitate themselves.’”18
But she failed to do so. We recognize that Brenda had made
some progress toward her goals, but her actions appear to
have been prompted by the filing of the motion to terminate
her rights. Last-minute attempts by parents to comply with
the rehabilitation plan do not prevent termination of paren-
tal rights.19
16
Id.
17
See id.
18
In re Interest of Aaron D., supra note 1, 269 Neb. at 261, 691 N.W.2d at
173.
19
In re Interest of Kassara M., 258 Neb. 90, 601 N.W.2d 917 (1999).
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Two witnesses specifically testified as to Alec’s best inter-
ests. Gill opined that termination of Brenda’s parental rights
was in Alec’s best interests. She based her opinion on the
duration of the case, Alec’s remaining in an out-of-home
placement, the lack of liberalized visitation, Brenda’s erratic
behavior, and the lack of compliance with court orders. As
Gill summarized, “[W]e’re still very much where we were
at when this case first opened.” Ratliff, on the other hand,
testified:
Because there is an established bond and attachment
between Alec and [Brenda], my recommendation is that
the relationship continue. How that is to be done, I don’t
have a firm recommendation.
I have offered to the [foster parents] and to [Brenda]
that I would facilitate a family therapy session with
the adults only, and we could come up with a plan to
maintain that relationship. I believe that it would be
detrimental to Alec’s well-being if that relationship was
severed.
But Brenda’s having a bond with Alec does not make her
a fit person to provide parental care for him. And although
Ratliff testified that it was in Alec’s best interests to “main-
tain a relationship with” Brenda, there was no indication from
her testimony that the relationship needed to be a mother-
son relationship.
[7] Alec deserves permanency. Brenda’s failure to comply
with the court-ordered rehabilitation plan defeated his chance
to be reunified with her. At the time of the hearing, Alec
had been in the State’s care for 21 months. During that time,
Brenda had not even progressed to being allowed unsuper-
vised visitation with Alec. Because much progress must still
be made before Brenda would be trusted with Alec’s care and
custody, Alec would be left to languish in foster care for an
unknown amount of time with no guarantee of reunification.
Children cannot, and should not, be suspended in foster care
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or be made to await uncertain parental maturity.20 We con-
clude that the State showed by clear and convincing evidence
that termination of Brenda’s parental rights was in Alec’s
best interests.
CONCLUSION
Upon our de novo review of the record, we conclude that
the State adduced clear and convincing evidence that termina-
tion was in Alec’s best interests. We reverse the decision of the
Court of Appeals and remand the cause with direction to affirm
the judgment of the juvenile court.
R eversed and remanded with direction.
20
In re Interest of Nicole M., 287 Neb. 685, 844 N.W.2d 65 (2014).