In re Interest of Dante S.

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
IN RE INTEREST OF DANTE S.
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 DANTE S., A CHILD UNDER 18 YEARS OF AGE.
STATE OF NEBRASKA, APPELLEE,
V.
LORI S., APPELLANT.
Filed January 5, 2016. No. A-15-607.
Appeal from the Separate Juvenile Court of Lancaster County: REGGIE L. RYDER, Judge.
Affirmed.
Candice C. Wooster, of Brennan & Nielsen Law Offices, P.C., for appellant.
Joe Kelly, Lancaster County Attorney, and Shellie D. Sabata for appellee.
IRWIN, PIRTLE, and RIEDMANN, Judges.
PIRTLE, Judge.
INTRODUCTION
Lori S. appeals from an order of the separate juvenile court for Lancaster County finding
that reasonable efforts to reunify her with her minor child, Dante S., were not required because
Lori’s parental rights to a sibling of Dante’s had been terminated involuntarily. Based on the
reasons that follow, we affirm.
BACKGROUND
On March 12, 2008, Lori was found guilty of Use of a Child in a Sexual Performance, a
Class C felony, in the Circuit Court of Grundy County, Missouri. As a result of her conviction, she
was placed on the National Sex Offender Registry and voluntarily relinquished her parental rights
to the two children she had at that time. Since that incident and prior to Dante’s birth, Lori has
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given birth to two other children. She has lost custody of both of these children, which includes
having her parental rights to one of those children involuntarily terminated by the Juvenile Court
for Jasper County, Missouri in August 2013.
Lori gave birth to Dante in June 2014. The day after Dante was born he was removed from
Lori’s care and custody. On June 30, 2014, the State filed a petition to adjudicate Dante, alleging
that he lacked proper parental care due to the fault or habits of Lori. The State also filed a motion
for ex parte temporary legal and physical custody, which the juvenile court granted, thereby giving
the Nebraska Department of Health and Human Services temporary custody and placement of
Dante. A temporary custody hearing followed, at which time the juvenile court ordered that
temporary legal and physical custody of Dante would remain with the Department.
On April 27, 2015, after a hearing on the petition to adjudicate, the court found that Dante
was a juvenile as defined by Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2008). The court entered a
nunc pro tunc order on May 8, to correct an error in the statement of facts as set forth in the original
order. In June 2015, a disposition hearing was held. Following the hearing, the juvenile court
entered an order finding that based on Neb. Rev. Stat. § 43-283.01 (Reissue 2008), reasonable
efforts to preserve and reunify Dante with Lori were not required because Lori has had her parental
rights to a sibling of Dante’s involuntarily terminated.
ASSIGNMENT OF ERROR
Lori assigns that the juvenile court erred in excusing the Department from providing
reasonable efforts to reunify Lori and Dante.
STANDARD OF REVIEW
An appellate court reviews juvenile cases de novo on the record and reaches its decision
independently of the juvenile court’s findings. In re Interest of Thomas M., 282 Neb. 316, 803
N.W.2d 46 (2011).
To the extent an appeal calls for statutory interpretation or presents questions of law, an
appellate court must reach an independent conclusion irrespective of the determination made by
the court below. In re Interest of Thomas M., supra.
ANALYSIS
Lori argues that the juvenile court erred in finding that pursuant to § 43-283.01(4),
reasonable efforts to reunify Lori and Dante were not required by the Department. She contends
that such finding was in error because it was not in Dante’s best interests.
Section 43-283.01(4) provides: “Reasonable efforts to preserve and reunify the family are
not required if a court of competent jurisdiction has determined that . . . [t]he parental rights of the
parent to a sibling of the juvenile have been terminated involuntarily.”
Lori argues that § 43-283.01(4) is a two-part test. She contends that the court must first
find that the parent’s rights to a sibling of the juvenile have been terminated involuntarily, and
secondly, the court must find that excusing the Department from providing reasonable efforts is in
the best interests of the child. She contends that the juvenile court in this case only satisfied the
first part of the test and failed to determine whether not requiring the Department to provide
reasonable efforts was in Dante’s best interests.
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There was uncontroverted evidence at the hearing that Lori had her parental rights to a
sibling of Dante’s terminated involuntarily. Lori admits such fact in her brief and agrees that as a
result, reasonable efforts are not required. She asserts however, that although reasonable efforts
are not required, § 43-283.01(4) gives the juvenile court discretion to determine if reasonable
efforts by the Department would be in the child’s best interests.
Statutory language is to be given its plain and ordinary meaning, and an appellate court
will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct,
and unambiguous. Cargill Meat Solutions Corporation v. Colfax County Board of Equalization,
290 Neb. 726, 861 N.W.2d 718 (2015). The plain language of § 43-283.01(4) does not require that
a best interest analysis be made in addition to a finding that a statutory ground exists. Further,
Nebraska case law does not discuss best interests when addressing § 43-283.01(4). See, e.g., In re
Interest of Damien S., 19 Neb. App. 917, 815 N.W.2d 648 (2012); In re Interest of Hailey M., 15
Neb. App. 323, 726 N.W.2d 576 (2007); In re Interest of Jac’Quez, 266 Neb. 782, 669 N.W.2d
429 (2003). Accordingly, the State need only prove by clear and convincing evidence that one of
the situations under § 43-283.01(4) exists for the juvenile court to conclude that reasonable efforts
are not required. See In re Interest of Jac’Quez, supra.In the present case, the State met its burden. As previously stated, there was uncontroverted
evidence that Lori’s parental rights to a sibling of Dante’s were involuntarily terminated by the
Juvenile Court for Jasper County, Missouri in August 2013. As such, it is clear that reasonable
efforts to preserve and reunify Lori with Dante were not required pursuant to § 43-283.01(4).
CONCLUSION
We conclude that the juvenile court did not err in finding that reasonable efforts to preserve
and reunify Lori with Dante were not required because Lori had previously had her parental rights
to a sibling of Dante’s involuntarily terminated. Accordingly, the order of the juvenile court is
affirmed.
AFFIRMED.
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