In re Interest of Ray'Cine L.

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
IN RE INTEREST OF RAY’CINE L.
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
IN RE INTEREST OF RAY’CINE L., A CHILD
UNDER 18 YEARS OF AGE.
STATE OF NEBRASKA, APPELLEE,
V.
SYLVESTER M., APPELLANT.
IN RE INTEREST OF DEJAN L., A CHILD
UNDER 18 YEARS OF AGE.
STATE OF NEBRASKA, APPELLEE,
V.
SYLVESTER M., APPELLANT.
Filed June 18, 2013. Nos. A-12-233, A-12-234.
Appeal from the Separate Juvenile Court of Douglas County: CHRISTOPHER KELLY,
Judge. Affirmed.
Matthew R. Kahler, of Finley & Kahler Law Firm, P.C., L.L.O., for appellant.
Donald W. Kleine, Douglas County Attorney, and Jennifer C. Clark for appellee.
IRWIN, PIRTLE, and RIEDMANN, Judges.
IRWIN, Judge.
I. INTRODUCTION
In 2010, the separate juvenile court of Douglas County, Nebraska, terminated the parental
rights of Sylvester M. concerning his two children, Ray’Cine L. and Dejan L. Sylvester
appealed, and in a memorandum opinion filed on April 26, 2010, in cases Nos. A-09-993 and
A-09-994, we reversed the juvenile court’s orders of termination, finding that the State had not
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sufficiently demonstrated a statutory basis for terminating his parental rights. In December 2011,
the State filed a second petition to terminate his parental rights, and in February 2012, the
juvenile court entered orders terminating his parental rights a second time.
Sylvester now appeals from those orders, asserting that the State failed to sufficiently
demonstrate (1) that statutory grounds existed for termination of his parental rights and (2) that
termination of his parental rights is in the best interests of the children. We have consolidated
these appeals. We find that the children have been in a continuous out-of-home placement for
well in excess of 15 or more of the last 22 months and that termination of Sylvester’s parental
rights is in the best interests of the children. As such, we affirm.
II. BACKGROUND
The two children at the heart of this case have been involved with the Nebraska
Department of Health and Human Services (DHHS) for essentially their entire lives. Because a
complete picture of their situation is vital to an understanding and appreciation for the resolution
of this case, we will recount the relevant factual and procedural background involving the
children, including some information previously set forth in our prior memorandum opinion.
Ray’Cine and Dejan were born into an unconventional situation. The children’s
biological mother, Deja L., was “raised” by Sylvester’s cousin, and when the cousin passed
away, in approximately 2005, Sylvester took Deja in because she had nowhere else to stay. Deja
was born in 1988 and would have been approximately 17 years of age in 2005; Sylvester was
born in 1949 and would have been approximately 56 years of age in 2005. Ray’Cine was born in
May 2007, and Dejan was born in January 2009.
Deja came to the attention of DHHS on June 1, 2007, immediately after Ray’Cine’s birth,
as a result of concerns about drug use and inappropriate parenting of Ray’Cine. At that time,
Sylvester was not identified as the biological father and DHHS was told that Sylvester was
Deja’s uncle, as Sylvester apparently feared that he would get into trouble for being
approximately 58 years of age and having sex with Deja when she was under 19 years of age.
The State filed a petition with the juvenile court in August 2007, seeking an adjudication
that Ray’Cine was within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Cum. Supp. 2006) by
reason of the faults or habits of Deja. Ray’Cine was placed in the custody of DHHS on
September 13, 2007. Deja relinquished her parental rights to Ray’Cine in December 2008.
Genetic test results in June 2008 revealed that Sylvester was Ray’Cine’s biological
father. As a result, in October 2008, the State filed a supplemental petition seeking adjudication
of Ray’Cine as related to Sylvester and seeking termination of Sylvester’s parental rights. In
June 2009, the juvenile court entered a dispositional order requiring Sylvester to take various
actions.
Dejan was born in January 2009. Within 1 week of his birth, the State filed a petition
with the juvenile court alleging that he came within the meaning of § 43-247(3)(a) (Reissue
2008) by reason of the faults or habits of Deja. The juvenile court entered an order placing Dejan
in the custody of DHHS on February 9. Dejan was temporarily placed with Deja from February
18 through March 24, but was returned to the custody of DHHS. Deja’s parental rights to Dejan
were terminated in September.
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In June 2009, the State filed a supplemental petition seeking adjudication of Dejan as
related to Sylvester and seeking termination of Sylvester’s parental rights.
In September 2009, the juvenile court held adjudication/termination hearings for both
Ray’Cine and Dejan, as related to Sylvester. Evidence was adduced concerning Sylvester’s
visitation with the children, participation and progress in family support services, and housing
and income situation. At that time, much of the concern with respect to Sylvester’s parenting the
children was focused on whether he could sufficiently protect them from being exposed to Deja’s
use of drugs, anger, and violence. The juvenile court entered orders adjudicating both Ray’Cine
and Dejan as being within the court’s jurisdiction as related to Sylvester and terminating his
parental rights to the children.
Sylvester appealed the first termination of his parental rights to Ray’Cine and Dejan. In a
memorandum opinion filed on April 26, 2010, we reversed the first termination of Sylvester’s
parental rights to Ray’Cine and Dejan, finding that the State had not sufficiently proven the
existence of any of the alleged statutory grounds to support termination of parental rights. We
specifically did not reach the issue of whether termination of Sylvester’s parental rights was in
the best interests of the children.
After this court’s reversal of the first termination of Sylvester’s parental rights, the
juvenile court conducted review hearings and entered dispositional orders in August 2010, April
2011, and October 2011. In all three orders, the court required Sylvester to participate in
scheduled visitation with Ray’Cine and Dejan, to cooperate with various support workers, and to
maintain adequate housing and consistent income. In the August and April orders, the court
required Sylvester to complete a pretreatment assessment and a parenting assessment, to release
medical and mental health records, and to complete a parenting class. In addition, Sylvester was
ordered to participate in family counseling with Ray’Cine and Dejan and to provide a list of
family and friends capable of providing an informal support system to help him parent the
children.
In the October 2010 review hearing, the State indicated that it was still awaiting
Sylvester’s release of medical and mental health records. The State indicated that its review of
the records was important to determining what services might be offered to Sylvester to facilitate
reunification and preservation of the family. The juvenile court stressed to Sylvester during the
hearing that he needed to comply with the court’s order to release his medical and mental health
records.
In the April 2011 review hearing, the State indicated that it had only recently received the
medical and mental health records that Sylvester had been ordered to release. The State indicated
that Sylvester did not sign the release forms until approximately March 2011. The State also
represented that it had been attempting to get the records from Sylvester for approximately 2
years. The State expressed concern about Sylvester’s ability to parent the children, noting that he
had been diagnosed as a paranoid schizophrenic, had missed approximately 35 scheduled
visitations since the prior November, and had not completed many of the requirements ordered
by the court. Sylvester’s attorney argued that he had shown an ability to parent, that he had a
large family that could assist him, and that his visitation should be increased.
In October 2011, the juvenile court conducted another review hearing. Sylvester did not
appear in his own behalf, and his attorney indicated a lack of knowledge about why Sylvester
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was not present. The State argued that there had not been progress in bonding between Sylvester
and the children, argued that Sylvester continued to not make progress despite being given a
second chance by this court’s reversal of the first termination of his parental rights, and noted
that Ray’Cine and Dejan had been in foster care for essentially their entire lives. Sylvester’s
guardian ad litem and his attorney argued that he had maintained stable housing and income, had
complied with most of the court’s requirements--except for completion of parenting and
pretreatment assessments--and that his visitation should be increased and changed to
unsupervised visitation.
In December 2011, the State filed a second petition for termination of Sylvester’s
parental rights to Ray’Cine and Dejan. The State alleged that statutory grounds for termination of
parental rights existed because Sylvester had substantially and continually neglected Ray’Cine
and Dejan within the meaning of Neb. Rev. Stat. § 43-292(2) (Cum. Supp. 2012), because
reasonable efforts to preserve and reunify the family had failed to correct the conditions leading
to adjudication of Ray’Cine and Dejan within the meaning of § 43-292(6), and because the
children had been in an out-of-home placement for 15 or more of the most recent 22 months
within the meaning of § 43-292(7). The State also alleged that termination of Sylvester’s parental
rights was in the best interests of Ray’Cine and Dejan.
In February 2012, the juvenile court conducted a hearing on the State’s second petition to
terminate Sylvester’s parental rights. The State adduced testimony from a mental health
practitioner and play therapist who had been assigned to this case, from a DHHS child and
family outcome monitor who had been assigned to this case, from a family permanency
specialist who had been assigned to this case, and from a family support and visitation specialist
who had overseen Sylvester’s visitations with Ray’Cine and Dejan. The foster parent in whose
home Ray’Cine and Dejan have lived throughout the entirety of the juvenile court proceedings
also testified. Sylvester did not testify in his own behalf.
Through the testimony of the various support workers who had been assigned to this case
and who had worked with Sylvester, Ray’Cine, and Dejan, the State presented evidence
concerning Sylvester’s progress toward being in a position to parent the children, as well as the
difficulties experienced in attempting to support and assist Sylvester. That testimony concerned
the statutory grounds for terminating his parental rights, as well as whether the children’s best
interests would be served by terminating his parental rights.
The evidence adduced demonstrated that Ray’Cine has been in an out-of-home placement
since October 2007, when she was 4 months old. Dejan has been in an out-of-home placement
since March 2009, when he was 6 weeks old. The foster parents had previously adopted an older
sibling of Ray’Cine and Dejan.
The evidence demonstrated that there is no dispute that Sylvester complied with some of
the court’s orders. For example, there is no dispute that Sylvester maintained appropriate and
safe housing and had stable income throughout the proceedings. Sylvester was on disability, but
had sufficient income to consistently pay child support in the amount of $400 per month. The
DHHS child and family outcome monitor testified that she had no concerns about the
appropriateness of Sylvester’s home or about his financial position. Sylvester himself, however,
did not believe his home was adequate for the children, and he expressed that he was “not
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comfortable” having them in the home and that he felt the home was too small to accommodate
them.
In addition, Sylvester did participate in visitation throughout the proceedings. There was
no court order to allow visitation during Sylvester’s appeal of the first termination of his parental
rights, so he did not have visitation during the pendency of that appeal. Once visitation was
reestablished, Sylvester expressed a desire to move slowly with visitation and establishing a
relationship with the children. Sylvester’s attendance at visitation was described in conflicting
ways by the witnesses, including being characterized as “not consistent” and as “fairly
consistent.” Although there were apparently some months where Sylvester’s attendance was
better than others and there were apparently some periods of time where he might not have
missed any scheduled visits for a couple of months, there were other times where he did miss
scheduled visits. The testimony at one of the review hearings indicated that between November
2010 and March 2011, for example, Sylvester attended approximately only 20 of 55 scheduled
visitations. Sylvester apparently would call if he was unable to attend a scheduled visitation, and
he usually attributed the inability to attend to illness or medical reasons. The support workers
testified that they had no reason to doubt Sylvester’s veracity in indicating that cancellations
were related to his medical issues.
Throughout the proceedings--and particularly, during the nearly 2 years between this
court’s reversal of the first termination of Sylvester’s parental rights and the hearing on the
second petition to terminate parental rights--Sylvester’s visitation with Ray’Cine and Dejan was
always supervised. Additionally, Sylvester’s visitation time was never significantly increased, at
least partially because he expressed a desire not to have additional time with Ray’Cine and
Dejan. The DHHS child and family outcome monitor testified that she spoke with Sylvester
about increasing his visitation time with the children and that Sylvester responded he did not
desire additional visitation time “because he had physical therapy and other stuff going on, and
he was comfortable with just the three” visitations per week, which lasted 2 or 3 hours at a time.
The family support and visitation specialist testified that Sylvester had made
improvements in his interactions with the children and that he was doing “a pretty good job” of
parenting the children during visitations. He acknowledged that his reports to the court had
indicated that Sylvester’s discipline with the children was “hit and miss,” that at times Sylvester
did not engage in structured activities, and that Ray’Cine had significant behavioral issues during
visitations.
Sylvester did complete a parenting class with the family support and visitation specialist.
The parenting class included instruction on “everything from discipline to how to show children
affection.” The specialist testified that he had witnessed Sylvester’s adopting “some” of the
principles covered during the parenting class in the way he handled Ray’Cine and Dejan during
visitations.
The evidence also demonstrated that Sylvester at least partially complied with some of
the court’s other orders. For example, in the August 2010 dispositional order, the juvenile court
ordered Sylvester to work with DHHS to develop an informal support system to assist him with
caring for the children. The DHHS child and family outcome monitor testified that she spoke
with Sylvester about family support and that Sylvester had difficulty providing a list of people
who could assist him. She testified that when Sylvester did come up with names of people who
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could assist, he did not provide her any contact information to enable her to actually contact any
of them. The record reflects that although Sylvester had an “older son” who attended at least one
support team meeting with Sylvester, Sylvester did not include his son in the list of contacts who
could assist him.
In the October 2011 dispositional order, the juvenile court ordered Sylvester to
participate in family therapy. The mental health practitioner and play therapist who was
providing family therapy testified that she began family therapy in September 2011 and that she
was still providing it as of the time of the termination hearing in February 2012. She testified that
she had wanted Sylvester to be involved and that his participation was important to developing
necessary skills for parenting the children at home. She testified that Ray’Cine had behavioral
issues that would not improve without therapy. After the court ordered Sylvester to participate,
the therapist attempted to contact Sylvester and she “called and left several messages,” as well as
wrote a letter to Sylvester to invite him to attend and participate in therapy. She received no
response from Sylvester.
In January 2012, Sylvester showed up at one family therapy session, without notifying
anyone ahead of time that he was going to attend. Ray’Cine reacted to Sylvester’s appearance at
the therapy session by clinging to the foster parent, crying, and “screeching” very loudly. After a
few minutes, Sylvester indicated that it looked “too hard” on Ray’Cine and he left. He never
returned for any other sessions. The therapist testified that she agreed with Sylvester that his
appearance, unannounced, had been too hard on Ray’Cine because there had been no opportunity
to prepare her for his involvement. She testified that she would have encouraged his participation
if he had expressed an interest in returning for any other sessions, but he never did.
The dispositional orders entered in August 2010, April 2011, and October 2011, all
included a requirement that Sylvester cooperate with the various support workers. The various
support workers who testified at the termination of parental rights hearing indicated that
communication with Sylvester was difficult and that he frequently did not respond to attempts to
communicate or to messages left for him. For example, the mental health practitioner and play
therapist testified that she left several messages for Sylvester beginning in September 2011
concerning his participation in family therapy and that she left her contact information for
Sylvester to get in touch with her. She left another message for Sylvester in October 2011.
Sylvester did not respond to these attempts at communication.
Similarly, the DHHS child and family outcome monitor testified that she attempted to
maintain contact with Sylvester, but that his contact with her was “sporadic.” She testified that
“sometimes it was harder to get ahold of him than others, but eventually [she] could usually get
ahold of him.” She described having “to leave messages for him a lot,” and although there were
times when Sylvester would respond promptly, there were also times when she “would have to
call several times and leave several messages before [she] got a return call.” She testified that
one of the difficulties experienced in attempting to provide services for Sylvester was that “he
would agree in meetings or with visits to do some of the services” but that after the meeting or
visit, “it was hard for any provider to get ahold of him to do these, and he wouldn’t follow
through.”
The family permanency specialist testified that she was assigned this case in October
2011 and that between that time and the termination of parental rights hearing in February 2012,
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she never had any contact with Sylvester. She testified that she made attempts to have contact
with Sylvester by telephone, as well as through the other support workers. She testified that she
made monthly calls to Sylvester and that she left voicemail messages for him, but did not receive
any return call. She testified that Sylvester was also sent a letter providing information that she
had been assigned to the case and her contact information. She testified that she was told by
other support workers that Sylvester had indicated that he did not want to have contact with her.
Because of Sylvester’s refusal to have contact with her, she was unable to set up and provide
services for him.
Finally, the evidence adduced also demonstrated that with respect to some of the items
ordered by the court and with respect to additional opportunities to be involved with the children,
Sylvester expressly indicated a lack of interest. Both the August 2010 and the April 2011
dispositional orders specifically directed Sylvester to complete a pretreatment assessment and a
parenting assessment. Sylvester never completed these requirements, although the support
workers made referrals to assist him in doing so. The DHHS child and family outcome monitor
testified that she spoke with Sylvester about the assessments when she met with him “each
month” and that she reminded him they were ordered by the court and the court wanted him to
complete them to work toward reunification with Ray’Cine and Dejan. Sylvester’s attorney and
guardian ad litem also spoke with him about the assessments. The evidence indicated that
Sylvester refused to complete the assessments because, in his opinion, they were not necessary
and “he didn’t feel he needed to do them.” The DHHS child and family outcome monitor
testified that although Sylvester had completed a parenting class, there were other parenting
concerns and without the assessments there was no way to determine what other services might
have benefited Sylvester or could have been offered to him.
The children’s foster parent testified that she had invited Sylvester to attend a variety of
activities that the children were involved in. She testified that she had invited Sylvester to attend
the children’s swim lessons, school open house, and kindergarten roundup. Sylvester never
accepted the invitations or attended any of these activities.
The children’s foster parent also testified that both Ray’Cine and Dejan had, at times,
referred to themselves using the names “Mackenzie” and “Cameron.” She testified that when the
juvenile court granted the first petition to terminate Sylvester’s parental rights, the foster parents
had intended to adopt both children and spoke with them about possibly changing their names.
She testified that the foster parents have attempted to stop Ray’Cine and Dejan from referring to
themselves by the alternative names.
During the course of the hearing on the second petition to terminate Sylvester’s parental
rights, both the mental health practitioner and play therapist and the family permanency
specialist gave opinions about whether termination of Sylvester’s parental rights was in the best
interests of Ray’Cine and Dejan. The mental health practitioner and play therapist opined that
termination of parental rights was in Ray’Cine’s best interests and indicated that she based her
opinion on the fact that Sylvester had “not responded at all to any . . . overtures to become
involved in Ray’Cine’s emotional and social well-being.” The family permanency specialist also
opined that termination of parental rights was in the children’s best interests. She testified that
she did not believe Sylvester can provide for the children, that he would have difficulty parenting
the children on a 24-hour-a-day and 7-day-a-week basis, and that she was concerned about
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Sylvester’s refusal to have contact with her or to complete the court-ordered assessments.
Relatedly, the DHHS child and family outcome monitor testified that Sylvester did not make
progress in his ability to have the children live with him, that he refused to participate in ordered
assessments, and that the children did not become more bonded with Sylvester through the
established visitation.
On February 16, 2012, the juvenile court entered orders terminating Sylvester’s parental
rights to Ray’Cine and Dejan. The court found that the State had demonstrated, by clear and
convincing evidence, both that statutory grounds for termination of parental rights existed and
that termination of Sylvester’s parental rights was in the best interests of Ray’Cine and Dejan.
These appeals followed.
III. ASSIGNMENTS OF ERROR
Sylvester assigns two errors. First, Sylvester asserts that the juvenile court erred in
finding that a statutory ground existed for termination of his parental rights. Second, Sylvester
asserts that the court erred in finding that termination of his parental rights would be in the best
interests of Ray’Cine and Dejan.
IV. ANALYSIS
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. In re Interest of Jagger L., 270
Neb. 828, 708 N.W.2d 802 (2006); In re Interest of Jacob H. et al., 20 Neb. Ct. App. 680, ___
N.W.2d ___ (2013). When the evidence is in conflict, however, an appellate court may give
weight to the fact that the lower court observed the witnesses and accepted one version of the
facts over the other. Id.
1. STATUTORY GROUNDS FOR TERMINATION
Sylvester first assigns as error that the juvenile court erred in finding that the State had
proven statutory grounds for termination of his parental rights. The State alleged statutory
grounds existed pursuant to § 43-292(2), (6), and (7). In its order terminating Sylvester’s parental
rights, the juvenile court found that all three statutory grounds had been proven. We find that
there is no dispute that the statutory time limits established by § 43-292(7) were proven, and,
accordingly, we do not further discuss the requirements of § 43-292(2) and (6). We find no merit
to this assignment of error.
For a juvenile court to terminate parental rights under § 43-292, it must find that one or
more of the statutory grounds listed in that section have been satisfied and that termination is in
the children’s best interests. In re Interest of Jacob H. et al., supra. See In re Interest of Jagger
L., supra. The State must prove these facts by clear and convincing evidence. Id. Clear and
convincing evidence is that amount of evidence which produces in the trier of fact a firm belief
or conviction about the existence of the fact to be proven. Id.
If an appellate court determines that the lower court correctly found that termination of
parental rights is appropriate under one of the statutory grounds set forth in § 43-292, the
appellate court need not further address the sufficiency of the evidence to support termination
under any other statutory ground. In re Interest of Jagger L., supra. Only one statutory ground
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for termination need be proven for parental rights to be terminated. See In re Interest of Kendra
M., 283 Neb. 1014, 814 N.W.2d 747 (2012).
Section 43-292(7) provides for termination of parental rights when “[t]he juvenile has
been in an out-of-home placement for fifteen or more months of the most recent twenty-two
months.” See, also, In re Interest of Aaron D., 269 Neb. 249, 691 N.W.2d 164 (2005). The
Nebraska Supreme Court has held that § 43-292(7) operates mechanically and, unlike other
subsections of the statute, does not require the State to adduce evidence of any specific fault on
the part of the parent. In re Interest of Aaron D., supra. As such, parental fitness is not a factor in
finding that termination of a person’s parental rights is warranted pursuant to § 43-292(7). In re
Interest of Aaron D., supra. Rather, when termination is based upon a finding that § 43-292(7)
applies, parental fitness is addressed in considering the children’s best interests. See In re
Interest of Aaron D., supra.
In the present case, we noted in our prior memorandum opinion that Ray’Cine was first
adjudicated to be within the meaning of § 43-247(3)(a) (Cum. Supp. 2006) in October 2007.
There is no dispute that Ray’Cine has been in an out-of-home placement continually since that
time. At the time the second petition for termination of Sylvester’s parental rights was filed,
Ray’Cine had been in an out-of-home placement continually for more than 48 months.
We also noted in our prior memorandum opinion that Dejan was placed in the temporary
custody of DHHS in February 2009 and was placed in an out-of-home placement in March 2009.
There is no dispute that Dejan has been in an out-of-home placement continually since that time.
At the time the second petition for termination of Sylvester’s parental rights was filed, Dejan had
been in an out-of-home placement continually for more than 32 months.
It is clear that a mechanical application of § 43-292(7) demonstrates that the State proved
by clear and convincing evidence that both Ray’Cine and Dejan had been in an out-of-home
placement for 15 or more of the most recent 22 months. On appeal, Sylvester has not argued that
the State failed to adduce clear and convincing evidence of this time. Rather, he argues that the
State failed to do enough to assist him, that there were periods of time where he was not afforded
sufficient services, and that the 1-year time period during which he was appealing the first
termination of his parental rights should not count against him.
We find no merit to Sylvester’s assertions that he was not afforded enough services and
opportunities and that, somehow, we should overlook the fact that Ray’Cine and Dejan have
essentially been wards of the State for their entire lives, well in excess of the statutory time
periods set forth in § 43-292(7). As discussed more fully below, the State did offer services to
Sylvester and did provide ample opportunity for him to provide an alternative to the children’s
out-of-home placement during the several years that these children have been involved in the
juvenile system. As discussed more fully below, he failed to take advantage of those services and
failed to make sufficient progress.
We find that there is no dispute that the State clearly and convincingly proved that the
children have been in an out-of-home placement for 15 or more of the most recent 22 months,
demonstrating that the statutory ground for termination of parental rights set forth in § 43-292(7)
exists. Sylvester’s first assignment of error is meritless.
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(2) BEST INTERESTS OF CHILDREN
Sylvester next assigns as error that the juvenile court erred in finding that the State had
proven that termination of his parental rights was in the best interests of Ray’Cine and Dejan.
We disagree. There was clear and convincing evidence to demonstrate that despite the passage of
several years, Sylvester has not made significant progress toward reunification and has not
demonstrated a desire to do so. The clear and convincing evidence supports the juvenile court’s
finding that termination of Sylvester’s parental rights was in the best interests of the children,
and we find no merit to his assertions to the contrary.
It is well established that the juveniles’ best interests are a primary consideration in
determining whether parental rights should be terminated. In re Interest of Aaron D., 269 Neb.
249, 691 N.W.2d 164 (2005). A parent’s interest in the accuracy and justice of the decision to
terminate his or her parental rights is a commanding one. Id.
Where termination of parental rights is upheld solely under § 43-292(7), an appellate
court must be particularly diligent in its de novo review of whether termination is, in fact, in the
children’s best interests. See, In re Interest of Aaron D., supra; In re Interest of Kenna S., 17
Neb. Ct. App. 544, 766 N.W.2d 424 (2009). Generally, when termination is upheld under other
subsections of § 43-292, the evidence adduced to prove the statutory grounds for termination will
also be highly relevant to the best interests of the juveniles, as it will show abandonment,
neglect, unfitness, or abuse. In re Interest of Aaron D., supra. Section 43-292(7) requires no such
proof; thus, it is in the context of analyzing the best interests of the juveniles that courts must
respect a parent’s “commanding” interest in the accuracy and justice of the decision to terminate
parental rights. In re Interest of Aaron D., supra.
The 15-month condition set forth in § 43-292(7) serves the purpose of providing a
reasonable timetable for parents to rehabilitate themselves, but termination based on the ground
that a child has been in an out-of-home placement for 15 or more of the most recent 22 months is
not in a child’s best interests when the record demonstrates that a parent is making efforts toward
reunification and has not been given a sufficient opportunity for compliance with a rehabilitation
plan. In re Interest of Aaron D., supra.
In this case, the mental health practitioner and play therapist testified that, in her opinion,
termination of Sylvester’s parental rights was in Ray’Cine’s best interests. She based her opinion
on Sylvester’s having not responded to overtures to become involved in Ray’Cine’s emotional
and social well-being. The family permanency specialist also testified that termination of
Sylvester’s parental rights was in the best interests of the children. She based her opinion on the
length of time the children had been in an out-of-home placement, Sylvester’s difficulties with
being able to parent the children, Sylvester’s refusal to have contact with her, and his failure to
complete court-ordered assessments that would have identified needed services to be provided to
assist him. She opined that Sylvester “gave up a while ago” concerning this case.
We recognize that the law does not require perfection of a parent; instead, we should look
for the parent’s continued improvement in parenting skills and a beneficial relationship between
parent and child. In re Interest of Aaron D., supra; In re Interest of Jacob H. et al., 20 Neb. Ct. App.
680, ___ N.W.2d ___ (2013). In the past, we have reversed the juvenile court’s termination of
parental rights when the evidence demonstrated that a parent was doing what he or she could to
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comply with court orders, was making progress, and had established a strong relationship with
the children.
For example, in In re Interest of Justin H. et al., 18 Neb. Ct. App. 718, 791 N.W.2d 765
(2010), we found that there had been insufficient evidence to demonstrate that termination of
parental rights was in the best interests of the children where the evidence demonstrated that the
mother whose rights had been terminated had complied with every court order, consistently
attended visitation with her children, and exhibited appropriate parenting techniques during the
visitations, and where the evidence demonstrated a beneficial relationship between the mother
and her children. The evidence in that case clearly and convincingly demonstrated that the
mother had done everything that was asked of her in the juvenile court’s orders, including
undergoing evaluations, participating in therapy, completing parenting classes, maintaining safe
and adequate housing and a legal source of income, and being involved in the children’s therapy.
There was evidence of a strong bond between the children and their mother, such that the
children’s therapist testified that the children would have been “devastated” if the mother’s
parental rights were terminated. Id.
In the present case, the evidence does not paint the same picture. Instead, Sylvester has
complied with only some of the juvenile court’s orders. Although he has maintained stable
housing and a legal source of income, and has participated in visitation, the uncontradicted
evidence demonstrates clearly and convincingly that he has chosen to comply only partially with
some court orders and has chosen to disregard others altogether.
In dispositional orders entered in August 2010, April 2011, and October 2011, Sylvester
was ordered to cooperate with the various support workers. The evidence adduced, however,
demonstrated that the support workers consistently had difficulty communicating with Sylvester
and had difficulty getting him to respond to their attempts to communicate with him, whether by
telephone or by letter. The testimony indicated that Sylvester frequently did not respond to
attempts made by support workers to communicate with him and that he often did not return
messages left for him.
There was testimony that he did not respond to messages about participation in
court-ordered family therapy and about other services the State attempted to provide to him. The
evidence adduced at trial indicated that Sylvester would sometimes agree during meetings with
support workers or visitations to participate in offered services, but that after the meeting or
visitation, the various providers were unable to get ahold of him and he would not follow
through.
The family permanency specialist assigned to the case in October 2011 testified that she
was never able to get Sylvester to communicate with her. She left numerous messages for
Sylvester, including her contact information, but he refused to return any of the messages or
communicate with her. She testified that she was told by other support workers that Sylvester
had indicated that he did not want to have contact with her.
The October 2011 dispositional order included a requirement that Sylvester participate in
family therapy. The family therapy sessions began in September 2011 and continued at the time
of the hearing on the second petition to terminate Sylvester’s parental rights. The therapist made
attempts to contact Sylvester about attending sessions, including several telephone calls and
messages and a letter sent to his house, but Sylvester did not respond to any of these contacts. In
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January 2012, he showed up, unannounced, at one session. Ray’Cine reacted poorly to his
unexpected appearance, and after a few minutes, he elected to leave and never return for any
other sessions. The therapist testified that she would have welcomed and encouraged Sylvester to
return for other sessions, especially with some notice so that Ray’Cine could be prepared for his
attendance, but Sylvester never expressed any interest in further compliance with the court’s
order or participation in therapy.
Both the August 2010 and the April 2011 dispositional orders included requirements that
Sylvester participate in a pretreatment assessment and a parenting assessment. Sylvester refused
to comply with these orders and never completed either assessment prior to the February 2012
hearing on the second petition to terminate his parental rights. The support workers assigned to
his case made referrals to assist him in completing the assessments, spoke with him about the
assessments on a regular basis, and explained to him that the assessments were items the court
was requiring in order for Sylvester to work toward reunification with the children. Despite this,
Sylvester refused to complete the assessments because, in his opinion, they were not necessary
and “he didn’t feel he needed to do them.” The uncontradicted evidence clearly and convincingly
demonstrated that Sylvester’s failure to complete these assessments prevented the support
workers from determining what additional services could be offered to assist him in working
toward reunification.
The evidence adduced in this case also did not demonstrate such a clearly beneficial
relationship between Sylvester and the children as did the evidence concerning the parent and
children in In re Interest of Justin H. et al., 18 Neb. Ct. App. 718, 791 N.W.2d 765 (2010). Here, the
evidence demonstrated that throughout the entirety of Ray’Cine’s and Dejan’s involvement with
the juvenile system, Sylvester never progressed beyond supervised visitation of a few hours per
week. There was evidence adduced to demonstrate that Ray’Cine had behavioral problems
during visitations that actually worsened over time.
Throughout these proceedings, Sylvester has exercised visitation with Ray’Cine and
Dejan. His visitation has not, however, been as consistent as it could have been. Once visitation
was reestablished after this court’s reversal of the first termination of Sylvester’s parental rights,
he expressed a desire to move slowly with visitation and establishing a relationship with the
children. From that point on, his exercise of visitation was described in conflicting ways by the
various witnesses, including being characterized as “not consistent” or “fairly consistent.”
Between November 2010 and March 2011, Sylvester attended approximately only 20 of 55
scheduled visitations. While there were apparently times where he might not have missed any
visitations for a couple of months, there were many times where he did miss scheduled
visitations.
The record indicates that Sylvester usually provided notice and indicated that his need to
miss the visitation was because of illness or medical reasons. The support workers testified that
they had no reason to doubt the veracity of Sylvester’s excuses for missing scheduled visitations,
but he did miss a number of scheduled visitations. There is some indication in the record that
Sylvester was involved in an automobile accident and suffered some physical and medical
consequences as a result, but the record does not include any detailed or meaningful explanation
to demonstrate that it reasonably excused his compliance with the court’s orders or his missed
visitations.
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In addition, although support workers spoke with Sylvester about increasing his time with
the children, he declined to take advantage of the offer and expressed a desire to maintain
visitation of only a few hours per week “because he had physical therapy and other stuff going
on, and he was comfortable with just” the three scheduled visitations per week.
Although there was evidence from the visitation worker that Sylvester had improved his
parenting during visitations and that the children had expressed affection for Sylvester, the
evidence demonstrated that his discipline remained “hit and miss,” he at times did not engage in
structured activities with the children, and he continued to have parenting issues that could not
sufficiently be addressed because of his refusal to complete the court-ordered parenting
assessment. A November 2011 report from the family support and visitation specialist indicated
that Sylvester continued to struggle to parent Ray’Cine and Dejan, that he became flustered and
discouraged when they behaved poorly, and that there continued to be a lack of a bond between
Sylvester and the children.
In addition, the children’s foster parent testified that she had invited Sylvester to attend a
variety of functions involving Ray’Cine and Dejan, outside of his normal scheduled visitation
time. Sylvester was invited to attend school events like an open house and kindergarten roundup,
and he was invited to attend athletic functions like swim lessons. He never accepted the
invitations or attended any of these events.
Although the law does not require “perfection” of parents, parents must take advantage of
the opportunities afforded to work toward reunification. The evidence adduced in this case paints
a picture of a parent who took it upon himself to determine which court orders he wanted to
comply with and which he did not feel were necessary, who did not take advantage of the efforts
being made to assist him in working toward reunification, and who did not take advantage of
other opportunities to develop a beneficial relationship with his children.
Where a parent is unable or unwilling to rehabilitate himself within a reasonable time, the
best interests of the children require termination of parental rights. In re Interest of Kenna S., 17
Neb. Ct. App. 544, 766 N.W.2d 424 (2009). The Nebraska Supreme Court has previously
recognized that children cannot, and should not, be suspended in foster care, nor made to await
uncertain parental maturity. Id.
In this case, Ray’Cine has been involved in the juvenile system for more than 4 years and
Dejan has been involved in the juvenile system for more than 3 years. During that time, Sylvester
has been subject to a variety of court orders that have included a variety of requirements
designed to assist him in working toward reunification. He has not consistently demonstrated a
desire to comply with them or to take the necessary steps to become a parent for Ray’Cine and
Dejan, and he has demonstrated something more akin to contentment with weekly visitation,
rather than a more permanent reunification.
Sylvester’s parental rights were previously terminated, and we reversed that termination.
Sylvester was given another opportunity to demonstrate his desire to be reunified with Ray’Cine
and Dejan and his intent to do what was necessary for that to happen. Since that second
opportunity was given to him, he has specifically disregarded court orders, exercised arguably
inconsistent visitation, refused to consistently communicate with the support workers who were
attempting to provide services to him, and refused to take advantage of other opportunities to
spend time with the children.
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Termination of parental rights is permissible in the absence of any reasonable alternative
and as the last resort to dispose of an action brought pursuant to the Nebraska Juvenile Code. In
re Interest of Aaron D., supra. A termination of parental rights is a final and complete severance
of the children from the parent and removes the entire bundle of parental rights; therefore,
parental rights should be terminated only in the absence of any reasonable alternative and as the
last resort. In re Interest of Jacob H. et al., 20 Neb. Ct. App. 680, ___ N.W.2d ___ (2013).
In this case, efforts have been made over a period of years to allow Sylvester to make
progress toward reunification. He has not done so. Based on the evidence adduced, there is no
reason to believe that his communication with support workers, willingness to comply with court
orders, or desire to take advantage of opportunities presented to him will change or improve
given more time. While we recognize that this is not an egregious case of a parent engaging in
particular misconduct or of being entirely uninvolved with his children, Ray’Cine and Dejan
have been in foster care for essentially their entire lives, while Sylvester has taken only minimal
steps to maintain his parental rights.
We also recognize that the record reflects that, at times, the State arguably could have
done even more to assist Sylvester. For example, we note that the family permanency specialist
assigned to the case in October 2011 testified that she never had contact with Sylvester. As noted
above, much of that lack of contact is attributable to Sylvester’s refusal to have contact with her
or return her messages. However, she also testified that she never attempted to go to Sylvester’s
home and that she was never able to adjust her own schedule to attend one of the visitations that
were held three times per week. She attributed not going to Sylvester’s home, in part, to concerns
for her safety--but the record does not reflect any concern by any of the other support workers
about Sylvester’s being violent or aggressive and there is no other evidence to suggest any safety
concern was merited.
Nonetheless, the evidence clearly demonstrates that each of the support workers made
efforts to communicate with Sylvester, to offer him services, to encourage him to comply with
the court’s orders, and to assist him in making progress toward reunification. The fact that even
more might arguably have been possible does not diminish that Sylvester failed to take
advantage of the opportunities presented and failed to demonstrate sufficient progress to indicate
that reunification would be possible.
We conclude that the State adduced sufficient evidence to clearly and convincingly
demonstrate that termination of Sylvester’s parental rights was in the best interests of Ray’Cine
and Dejan. The children have been out of the home for most of their lives--more than 4 years for
Ray’Cine and more than 3 years for Dejan. During that time, Sylvester has complied with some
court orders but refused to comply with others, indicating that he did not believe they were
necessary or important even though they would have helped to identify services that could be
provided to assist him in making progress toward reunification. During the entire time the
children have been out of the home, Sylvester has never progressed beyond supervised visitation
of a few hours per week and has expressly declined opportunities for more interaction with the
children. The record does not suggest that Sylvester will ever be in a position to be reunified with
the children and parent them. His assertion that there was not sufficient evidence to demonstrate
that termination of his parental rights is in their best interests is without merit.
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V. CONCLUSION
We find no merit to Sylvester’s assertions of error. There was sufficient evidence to
clearly and convincingly demonstrate both a statutory basis for terminating his parental rights
and that termination of his parental rights is in the best interests of the children. We affirm.
AFFIRMED.
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