In re Interest of Noah C.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/10/2020 08:07 AM CDT
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE INTEREST OF NOAH C.
Cite as 306 Neb. 359
In re Interest of Noah C., a child
under 18 years of age.
State of Nebraska, appellee, v.
Samantha H., appellant.
___ N.W.2d ___
Filed July 2, 2020. No. S-19-843.
1. Motions for Continuance: Appeal and Error. A court’s grant or
denial of a continuance is within the discretion of the trial court, whose
ruling will not be disturbed on appeal in the absence of an abuse of
discretion.
2. Juvenile Courts: Evidence: Appeal and Error. Juvenile cases are
reviewed de novo on the record, and an appellate court is required
to reach a conclusion independent of the juvenile court’s findings.
However, when the evidence is in conflict, an appellate court may con-
sider and give weight to the fact that the trial court observed the wit-
nesses and accepted one version of the facts over the other.
3. Parental Rights: Proof. Any one of the bases for termination of paren-
tal rights codified by Neb. Rev. Stat. § 43-292 (Reissue 2016) can serve
as the basis for the termination of parental rights when coupled with
evidence that termination is in the best interests of the child.
4. Constitutional Law: Parental Rights: Proof. A parent’s right to raise
his or her child is constitutionally protected; so before a court may ter-
minate parental rights, the State must also show that the parent is unfit.
5. Parental Rights: Presumptions: Proof. There is a rebuttable presump-
tion that the best interests of a child are served by having a relationship
with his or her parent. Based on the idea that fit parents act in the best
interests of their children, this presumption is overcome only when the
State has proved that the parent is unfit.
Appeal from the County Court for Cheyenne County: Kris
D. Mickey, Judge. Affirmed.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE INTEREST OF NOAH C.
Cite as 306 Neb. 359
Steven E. Elmshaeuser for appellant.
Jonathon T. Stellar, Cheyenne County Attorney, for appellee.
Audrey M. Elliott, guardian ad litem.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Miller-Lerman, J.
I. NATURE OF CASE
Following a hearing, the county court for Cheyenne County,
sitting as a juvenile court, found sufficient evidence to termi-
nate the parental rights of Samantha H. to her biological minor
child, Noah C. Samantha appeals, claiming that the juvenile
court erred when it (1) denied her motion to continue the ter-
mination hearing and (2) found that termination was in the best
interests of Noah. We affirm.
II. FACTS
Samantha is the biological mother of Noah, who was born
in 2013. Noah’s father, Donald M., is not part of this appeal.
Noah was removed from Samantha’s care because of safety
concerns, and he has been in out-of-home care since December
5, 2017.
The juvenile court adjudicated Noah as a child within the
meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016). The
adjudication decision was affirmed by the Nebraska Court of
Appeals in a memorandum opinion. See In re Interest of Noah
C., No. A-18-059, 2018 WL 4761053 (Neb. App. Oct. 2, 2018)
(selected for posting to court website).
On March 28, 2019, the State moved to terminate
Samantha’s parental rights. The complaint to terminate alleged
four grounds under Neb. Rev. Stat. § 43-292 (Reissue 2016),
which states:
The court may terminate all parental rights between
the parents or the mother of a juvenile born out of wed-
lock and such juvenile when the court finds such action
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE INTEREST OF NOAH C.
Cite as 306 Neb. 359
to be in the best interests of the juvenile and it appears
by the evidence that one or more of the following condi-
tions exist:
....
(2) The parents have substantially and continuously
or repeatedly neglected and refused to give the juve-
nile or a sibling of the juvenile necessary parental care
and protection;
(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;
....
(6) Following a determination that the juvenile is one
as described in subdivision (3)(a) of section 43-247,
reasonable efforts to preserve and reunify the family if
required under section 43-283.01, under the direction of
the court, have failed to correct the conditions leading to
the determination;
(7) The juvenile has been in an out-of-home placement
for fifteen or more months of the most recent twenty-two
months.
Trial on the complaint for termination was scheduled for
June 4, 2019.
Prior to trial, the juvenile court took up the motion to quash
filed by Joe Kozicki, who had been subpoenaed by Samantha.
The juvenile court quashed the subpoena, because it found the
witness was located over 100 miles away and objected to the
subpoena. See Neb. Rev. Stat. § 25-1227 (Reissue 2016).
Samantha, who was representing herself with standby coun-
sel present, moved to continue the termination hearing to pre-
pare her defense (1) because she had not received her complete
case file from her previous counsel until May 31, 2019, and
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE INTEREST OF NOAH C.
Cite as 306 Neb. 359
(2) because Kozicki, who she claimed was a material wit-
ness to her case, was unavailable. Samantha had apparently
terminated representation by her prior counsel in December
2018 and claimed that she had not had time to review all of the
exhibits and documents in her case file, because she had the
complete file for less than a week.
In support of the motion to continue, Samantha stated that
Kozicki was a material and necessary witness for presentation
of her case and that she wanted time to take a trial deposition.
The juvenile court overruled the motion to continue and
explained its reasoning to Samantha as follows:
What I’m told is and what I believe is that you
recently received some documentation from [prior coun-
sel’s] office. What I know from the court file is that [prior
counsel] was permitted to withdraw in December of 2018,
and you have previously represented in court in other
proceedings that you fired him. And so, for approximately
six months, [prior counsel], and perhaps a little more, has
not been a part of these proceedings. I also know from
the documents in evidence and from the argument and
testimony that the motion to terminate parental rights has
been of record since March 28th. A first appearance was
held, I believe in April of 2019, and the matter scheduled
then. So, all parties have known for quite some time that
this was going to take place here today.
. . . So — and I also believe, as an aside, that there is
some reasonable duty placed upon all litigants when you
are made aware of the filing of motions of character like
this, that is, a motion to terminate parental rights, that you
have a duty to timely request whatever documentation it
is that you wish to have as part of the evidence in such a
case. And under examination from this Court, [Samantha]
was unable to identify specifically when such a request
was made, whether it was timely or not, when the docu-
ments were first received that were part of most of her
file, or for that matter, anything that was recently received
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE INTEREST OF NOAH C.
Cite as 306 Neb. 359
that should affect the outcome. You have the documents.
You’ve had them, it sounds like, for most of a week.
Those documents, to the extent they pertain to the motion
to terminate parental rights are within your possession,
and can be made a part of your case if that’s what you
decide to do. That’s up to you and your lawyer.
I simply find that today there isn’t any meritorious
basis supporting . . . the motion to continue . . . .
At trial, the State called a neuropsychologist, who testi-
fied regarding her March 2017 and September 2018 evalu-
ations of Noah. In her 2018 report, she noted that “Noah
currently shows measurable improvement in his presentation,
test scores, and observer ratings from the foster home and the
school compared to observations in 2016 and 2017. These
improvements are shown to occur in the foster home place-
ment and in the context of the visits with [Samantha] currently
stopped.” She recommended that all visits between Samantha
and Noah should cease until Samantha undergoes a psycho-
logical evaluation. She diagnosed Noah with “an unspecified
Trauma and Stressor related disorder stemming from parent
extreme reactivity and dysregulated behaviors that have been
observed in multiple clinical and non-clinical settings.” Her
report opined that if Samantha could not demonstrate capac-
ity to improve, “any form of interaction with [Samantha] is
likely to continue to place Noah’s safety and well-being in
jeopardy.” She further testified at trial that her recommenda-
tions in the report from her evaluations were also in Noah’s
best interests.
The State next called a psychologist, who testified that
Samantha was referred to him for a psychological and parent-
ing evaluation. The psychologist was unable to complete the
evaluation, because Samantha refused to sign a consent form
to a parenting evaluation over several appointments.
Lt. Keith Andrew of the Sidney Police Department testi-
fied for the State and the guardian ad litem regarding an
intake of Noah on December 5, 2017. Lieutenant Andrew
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE INTEREST OF NOAH C.
Cite as 306 Neb. 359
contacted Samantha, at her residence, who agreed to partici-
pate in a respite plan where Noah would stay somewhere else
for a few days to give Samantha “a break.” Lieutenant Andrew
observed that Samantha was very agitated and frustrated and
that she was making comments indicating she might harm
Noah. Lieutenant Andrew concluded respite was not going to
work and removed Noah from Samantha’s physical custody.
Lieutenant Andrew also testified that he responded to two
separate incidents involving Samantha after Noah’s removal. In
one incident, Samantha threw things at a family support worker
and, at another, assaulted an officer.
Dawn Hatcher, a family services provider at a family support
organization, testified regarding her work with Samantha and
Noah. She testified that Samantha made about 85 percent of
the visits over a 4- to 5-month period. The missed visits were
canceled because Samantha was later than 15 minutes. She
testified that about five to eight visits were cut short because
Hatcher felt Samantha’s behavior was “too erratic to parent.”
For example, Samantha arrived for one visit “agitated and irri-
tated” and, as the visit progressed, “her behavior became more
angry and was visibly angry.” Eventually, Samantha became so
angry and argumentative that Hatcher concluded the visit and
asked Samantha to leave.
Hatcher also testified regarding the last supervised visit
in July 2018, at which she called law enforcement because
Samantha was upset and agitated about Noah’s vaccinations.
Samantha had apparently not been advised prior to Noah’s
being given vaccines. Samantha became increasingly upset.
Hatcher testified that Samantha was screaming and yelling,
slamming chairs, and calling Hatcher names, including “bitch”
and “cunt.” She also testified that Samantha threw a pillow
at her during this visit. Noah was present in the room when
this occurred and told Hatcher he was scared. The visits
ceased after this incident. Hatcher also testified that Samantha
refused to participate in out-of-home family support, because
Samantha felt it was not helping her.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE INTEREST OF NOAH C.
Cite as 306 Neb. 359
The chief operating officer for the same family support
organization also testified for the State. She testified that she
observed one or two full visits, which went well until Samantha
would get upset if she were told she could not do something
or was asked to sign a release. She testified that Samantha
could not deal with Noah when he became dysregulated. She
testified that Samantha had completed several courses but did
not complete the final requirement of meeting and reviewing
the program.
The State also called the Department of Health and
Human Services (DHHS) worker who received the intake
on December 5, 2017, to testify. She had been present with
Lieutenant Andrew during the visit to Samantha’s home.
Although the DHHS worker initially had respite set up,
Samantha’s behavior from the time they left to when they
arrived again later that day was concerning. Samantha even-
tually declined respite and did not want to work with DHHS.
The DHHS worker testified that team meetings did not go
well, because Samantha argued with everyone, refused to
work with some family support providers and certain work-
ers, and ultimately refused to work with any family support
providers because she refused to sign their contracts. The
last time Noah saw Samantha was at a therapeutic visit in
November 2018. The DHHS worker also testified that Noah
had been in out-of-home care continuously since December 5,
2017, 18 months at the time of trial.
Sarah Robinson, a child and family services specialist for
Noah, testified next. Once Noah was removed, Robinson
offered Samantha 18 hours of supervised visitation per week,
and Samantha attended about 85 percent of those visits. On
August 1, 2018, Samantha’s visits were suspended until October
10, when the juvenile court ordered therapeutic visits. The
therapist then recommended supervised visits. However, those
visits never occurred, because Samantha refused to sign the
intake paperwork to work with family support providers.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE INTEREST OF NOAH C.
Cite as 306 Neb. 359
Robinson testified that Samantha did not complete most of
her goals in the case plan and court report. With respect to
these goals, Robinson testified that Samantha (1) did not pro-
vide a safe and stable environment for Noah by learning and
demonstrating new parenting skills and understanding child
development; (2) did not provide a safe and stable environ-
ment for Noah by learning new coping skills and addressing
any mental health symptoms she was experiencing; (3) did not
provide a safe and stable environment for Noah by finding and
using informal supports; (4) did not provide a safe and stable
home for Noah by maintaining basic resources; and (5) did not
maintain basic needs for her and Noah, such as food, clothing,
utilities, and a home within the previous 6 months. Robinson
explained how Samantha had failed to learn and implement
various strategies listed for achieving the family support goals.
Robinson then testified that Noah was not able to return safely
to Samantha’s care, because Samantha had not been able to
demonstrate that she can safely and effectively parent Noah,
had completed very little of the case plan, had not completed
any goals, and would not allow Robinson into her home in the
last 6 months.
Samantha offered evidence, including a letter from her coun-
selor, recommending that Samantha and Noah move forward
with supervised visitation. Samantha’s counselor had seen
Samantha for five visits in late 2018 and noted that Samantha
“has done a good job here of being appropriate.”
Samantha also called as a witness a family advocate, who
testified that she has a background in criminal justice and
probation. She testified that she is familiar with how DHHS
handles cases, and she observed that Samantha’s case was han-
dled in an unusual way. The advocate testified that she did not
feel Samantha’s “voice [had] been heard” throughout the case
and that workers had “come in to tell [Samantha] what [she is]
going to do” instead of finding a way to work with Samantha.
The advocate testified that she did not feel Samantha would
hurt a child or neglect a child in her care.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE INTEREST OF NOAH C.
Cite as 306 Neb. 359
The juvenile court denied Samantha’s request to keep the
record open or allow the taking of trial depositions. After
receiving written closing arguments, the juvenile court took the
case under advisement. In a written order, the juvenile court
found that sufficient evidence was presented to demonstrate
clearly and convincingly that termination of parental rights
was appropriate and in the best interests of Noah. Samantha
appeals.
III. ASSIGNMENTS OF ERROR
Samantha claims, summarized and restated, that the juvenile
court erred when it (1) denied her motion to continue the ter-
mination hearing and (2) found a statutory basis to terminate
her parental rights to Noah after it found that termination was
in the child’s best interests.
IV. STANDARDS OF REVIEW
[1] A court’s grant or denial of a continuance is within the
discretion of the trial court, whose ruling will not be disturbed
on appeal in the absence of an abuse of discretion. See In re
Interest of C.G.C.S., 225 Neb. 605, 407 N.W.2d 196 (1987).
[2] Juvenile cases are reviewed de novo on the record, and
an appellate court is required to reach a conclusion indepen-
dent of the juvenile court’s findings. In re Interest of Taeson
D., 305 Neb. 279, 939 N.W.2d 832 (2020). However, when
the evidence is in conflict, an appellate court may consider
and give weight to the fact that the trial court observed the
witnesses and accepted one version of the facts over the other.
In re Interest of Zanaya W. et al., 291 Neb. 20, 863 N.W.2d
803 (2015).
V. ANALYSIS
1. Continuance
Samantha claims that the juvenile court erred when it denied
her request for a continuance of the termination hearing. She
contends that she was not prepared for the termination hearing
and that the testimony of an unavailable witness was necessary
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE INTEREST OF NOAH C.
Cite as 306 Neb. 359
and material to the presentation of her case. We reject this
assignment of error.
With respect to Samantha’s argument that she was unable
to prepare for the hearing, the record shows that Samantha
had over 2 months to prepare her case between the date
on which she received notice of the complaint to terminate
her parental rights and the date of the termination hearing.
In its written order, the juvenile court found that all parties
were given adequate and reasonable notice concerning the
scheduled hearing. The juvenile court specifically found that
Samantha
fail[ed] to adequately prepare, to timely accept the assist­
ance of counsel, to properly elicit the testimony of a
witness outside the boundaries of the subpoena power of
the court, or in some other manner fail[ed] to appreciate
the significance of the juvenile court process [and these
failures do] not justify delaying justice or making special
accommodations to one party over the other.
Although Samantha claims she did not have access to her
complete case file because she terminated representation by
her lawyer, our close review of the record and testimony at
the hearing on the continuance shows that the trial court rea-
sonably found she had access to and personal knowledge of
the relevant evidence. Samantha was unable to identify when
she requested the full case file, and in any event, she pos-
sessed the complete case file in the days prior to the termina-
tion hearing.
With respect to Samantha’s argument that a continuance was
necessary for her to depose Kozicki, Samantha did not make
a showing of Kozicki’s identity and his relevance to her case.
The juvenile court did not err when it concluded, based on the
information before it, that testimony of Kozicki was not nec­
essary and material.
The record supports the findings of the juvenile court, and
we determine that it did not abuse its discretion when it denied
Samantha’s motion for a continuance.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE INTEREST OF NOAH C.
Cite as 306 Neb. 359
2. Termination
Samantha contends generally that her parental rights should
not have been terminated. She specifically claims that the juve-
nile court erred when it found that termination was in Noah’s
best interests. Because Samantha concedes that the record
establishes grounds for termination under § 43-292(7) and
we find support in the record establishing that termination of
Samantha’s parental rights is in the best interests of Noah, we
reject this assignment of error.
(a) Statutory Grounds for Termination
[3] The juvenile court found that sufficient evidence existed
under § 43-292(2), (3), (6), and (7), set forth above, to sup-
port a termination of Samantha’s parental rights. We have held
that any one of the bases for termination of parental rights
codified by § 43-292 can serve as the basis for the termination
of parental rights when coupled with evidence that termination
is in the best interests of the child. In re Interest of Taeson D.,
305 Neb. 279, 939 N.W.2d 832 (2020).
Samantha does not dispute the fact that the evidence estab-
lishes that Noah had been in an out-of-home placement for 15
or more months of the most recent 22 months. See § 43-292(7).
Such evidence established a statutory basis for termination.
See id. Having determined the statutory ground enumerated in
§ 43-292(7) has been proved, we do not consider issues relat-
ing to the sufficiency of the evidence concerning the other
statutory provisions identified by the juvenile court as grounds
for termination. See In re Interest of Taeson D., supra.
(b) Best Interests of Noah
[4,5] In addition to proving a statutory ground, the State
must show that termination is in the best interests of the child.
§ 43-292. A parent’s right to raise his or her child is consti-
tutionally protected; so before a court may terminate parental
rights, the State must also show that the parent is unfit. In re
Interest of Jahon S., 291 Neb. 97, 864 N.W.2d 228 (2015).
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE INTEREST OF NOAH C.
Cite as 306 Neb. 359
There is a rebuttable presumption that the best interests of a
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. Although the term
“unfitness” is not expressly used in § 43-292, the concept
is generally encompassed by the fault and neglect subsec-
tions of that statute and is also embedded in a determination
of the child’s best interests, which is under consideration in
this appeal. See In re Interest of Jahon S., supra. We have
defined parental unfitness as “a personal deficiency or incapac-
ity 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 a child’s well-
being.” Id. at 104, 864 N.W.2d at 234. Analysis of the minor
child’s best interests and the parental fitness analysis are fact-
intensive inquiries. See In re Interest of Kendra M. et al., 283
Neb. 1014, 814 N.W.2d 747 (2012). And while both are sepa-
rate inquiries, each examines essentially the same underlying
facts as the other. Id.
At the onset of the State’s involvement in this case, the rela-
tionship between Samantha and Noah was unhealthy. Samantha
had called DHHS’ hotline for help and sought help for Noah’s
behaviors. The dysfunctional dynamic was observed by DHHS
and law enforcement witnesses, as well as a neuropsychologist,
who testified that in 2017, she noted a strained relationship
between Samantha and Noah.
After removal, Noah was progressing in school, engaging
in socially acceptable programs, and doing well. Testimony
from caseworkers shows that although Samantha had many
appropriate interactions with Noah during supervised visita-
tion, Samantha could not control her behaviors if she became
upset or if Noah became dysregulated. Because of this inabil-
ity to control her own behavior, Samantha’s visitations never
progressed to the point at which the personnel involved trusted
her to be alone with Noah. Witnesses verified Samantha’s
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE INTEREST OF NOAH C.
Cite as 306 Neb. 359
pattern of volatile, angry, and disruptive behavior during visits
with Noah or family team meetings throughout the pendency
of the case, which began in 2017.
After October 2018, Samantha did not maintain a rela-
tionship with Noah. Samantha prevented reunification by not
following the case plan, which included completing parent-
ing classes, obtaining a psychological evaluation, obtaining
a parenting assessment, maintaining a safe and stable home,
maintaining a job, and maintaining regular contact with Noah.
Overall, Samantha failed to make adequate improvement or
mature as a parent and was demonstrably unfit. The evidence
rebuts the presumption of fitness.
Based upon our de novo review of the record, we find clear
and convincing evidence that Samantha’s personal deficiencies
have prevented her from performing her reasonable parental
obligations to Noah in the past, that she is unable to give
Noah necessary care and protection, and that the record estab-
lishes there is no prospect of improvement in the future. We
find that it was shown by clear and convincing evidence that
termination of Samantha’s parental rights would be in Noah’s
best interests.
VI. CONCLUSION
The juvenile court did not abuse its discretion when it
denied Samantha’s motion for a continuance, and it did not err
when it determined that terminating Samantha’s parental rights
to Noah was appropriate under § 43-292(7) and was in the best
interests of Noah. Accordingly, we affirm.
Affirmed.