In re Interest of Gavin B.

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
IN RE INTEREST OF GAVIN B.
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 GAVIN B., A CHILD UNDER 18 YEARS OF AGE.
STATE OF NEBRASKA, APPELLEE,
V.
CODY B., APPELLANT.
Filed February 14, 2023. No. A-22-569.
Appeal from the Separate Juvenile Court of Lancaster County: ROGER J. HEIDEMAN, Judge.
Affirmed.
Mona L. Burton, of Anderson, Creager & Wittstruck, P.C., L.L.O., for appellant.
Tara A. Parpart, Deputy Lancaster County Attorney, for appellee.
MOORE, BISHOP, and WELCH, Judges.
WELCH, Judge.
INTRODUCTION
Cody B. appeals from an order of the Lancaster County Separate Juvenile Court
terminating his parental rights to his child, Gavin B. He argues that the State failed to prove by
clear and convincing evidence that termination of his parental rights was in Gavin’s best interests.
For the reasons stated herein, we affirm.
STATEMENT OF FACTS
Cody is the biological father of Gavin, born in January 2017. Gavin’s mother relinquished
her parental rights and is not part of this appeal. Gavin was removed from Cody’s care following
a call to police on October 30, 2020. When officers arrived at Cody’s residence, they discovered
that Cody was exhibiting signs of a mental health crisis with officers describing him as hyper,
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scared, and paranoid. In the police report, officers noted that Cody suffered from schizophrenia,
bipolar disorder, post-traumatic stress disorder, borderline personality disorder, and
obsessive-compulsive disorder. Cody admitted to officers that he had not slept in a while and that
he had used cannabidiol to calm down. They further reported that Cody had claimed that there
were bugs in the Wi-Fi and that he was being set up to be murdered. The officers further observed
that the residence was cluttered with visible trash, there was grime throughout the residence and
cockroaches and other bugs in the shower, there was no reliable heat source and burn marks on a
blanket from a nearby space heater, and there was very little food in the refrigerator. The residence
was found to be unsanitary and unsafe. Cody was taken to the hospital for mental health treatment
and Gavin was placed in the temporary custody of his paternal grandmother.
On November 3, 2020, the State filed a petition, which was later amended, asserting that
Gavin came within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016) as Gavin lacked
proper parental care by reason of the faults or habits of Cody; Gavin was in a situation dangerous
to life or limb or injurious to his health or morals as a result of Cody’s October 30, 2020, mental
health crisis which occurred in Gavin’s presence; the residence was in an unsafe or unsanitary
condition; and that those conditions placed Gavin at risk for harm. An adjudication hearing was
held in December 2020, wherein Cody admitted to the allegations contained in the State’s petition
and the juvenile court found that Gavin came within the meaning of § 43-247(3)(a). Following a
dispositional hearing in January 2021, the court ordered Cody to participate in family support
services, complete a co-occurring evaluation and follow all the recommendations therein, maintain
a safe and stable residence, not possess or consume alcohol or controlled substances, submit to
random drug testing, cooperate with a medication assessment, maintain a legal means of support
for himself and Gavin, and participate in supervised parenting time.
In January 2021, Cody completed a co-occurring evaluation which recommended
residential mental health treatment due to Cody demonstrating serious difficulty functioning in
several dimensions. The Department of Health and Human Services (DHHS) received the
evaluation recommendations in early March and subsequently completed a referral for residential
mental health treatment.
During an April 2021 review hearing, the juvenile court found that “poor progress has been
made by [Cody] to alleviate the causes of the Court’s adjudication and [Gavin’s] out-of-home
placement.” The court also found that
reasonable efforts, including an initial diagnostic interview, a substance use evaluation,
substance abuse treatment, residential mental health treatment, random drug and alcohol
testing, family support services, relative placement of the juvenile, and an EDN [Early
Development Network] referral, have been made to eliminate out-of-home placement of
Gavin.
At the review hearings held on July and October 2021, and January 2022, the juvenile court
found that Cody had made poor progress or no progress in alleviating the causes for the court’s
adjudication and Gavin’s placement in out-of-home care.
On January 26, 2022, the State filed a petition to terminate Cody’s parental rights under
Neb. Rev. Stat. § 43-292 (Reissue 2016) for the reasons that (1) Cody had substantially and
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continuously or repeatedly neglected and refused to give said juvenile or a sibling of said juvenile
necessary parental care and protection under § 43-292(2); (2) that reasonable efforts to preserve
and reunify the family if required under section 43-283.01, under the direction of the court had
failed to correct the conditions leading to the adjudication under § 43-292(6); and/or (3) the
juvenile had been in an out-of-home placement for fifteen or more months of the most recent
twenty-two months under § 43-292(7). A hearing on the motion for termination of parental rights
was heard on June 27. Testimony was adduced from the DHHS caseworker. The State offered
multiple exhibits including the prior case plans and court reports.
Following the hearing, on June 28, 2022, the court entered its order terminating Cody’s
parental rights based upon its finding that clear and convincing evidence existed to support
termination under the statutory bases alleged and that termination was in Gavin’s best interests.
Cody now appeals from the order terminating his parental rights.
ASSIGNMENT OF ERROR
Cody’s sole assignment of error is that the State failed to prove by clear and convincing
evidence that termination of his parental rights was in Gavin’s best interests.
STANDARD OF REVIEW
An appellate court reviews juvenile cases de novo on the record and reaches a conclusion
independently of the juvenile court’s findings. In re Interest of Jordon B., 312 Neb. 827, 981
N.W.2d 242 (2022). However, when the evidence is in conflict, an appellate court may consider
and give weight to the fact that the juvenile court observed the witnesses and accepted one version
of the facts over another. In re Interest of Mateo L. et al, 309 Neb. 565, 961 N.W.2d 516 (2021).
ANALYSIS
Cody assigns only that the district court erred in finding that the State proved by clear and
convincing evidence that termination of his parental rights was in Gavin’s best interests.
In Nebraska, the grounds for terminating parental rights are codified in § 43-292. In re
Interest of Mateo L. et al, supra. That statute contains 11 separate subsections, any one of which
can serve as a basis for termination when coupled with evidence that termination is in the best
interests of the child. Id. It is the State’s burden to show by clear and convincing evidence both
that one of the statutory bases enumerated in § 43-292 exists and that termination is in the child’s
best interests. Id.
STATUTORY BASIS FOR TERMINATION
Although Cody does not assign or argue that the evidence was insufficient to support
termination under the statutory bases, for the sake of completeness, we review the findings of the
district court regarding the statutory basis for termination.
As relevant here, in its petition, the State sought to terminate Cody’s parental rights under
§ 43-292(2), (6), and (7). Subsection 7 provides for termination of parental rights if “[t]he juvenile
has been in an out-of-home placement for fifteen or more months of the most recent twenty-two
months[.]” It operates mechanically and, unlike the other subsections of the statute, does not
require the State to adduce evidence of any specific fault on the part of a parent. In re Interest of
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Brelynn E., 30 Neb. App. 723, 972 N.W.2d 442 (2022). In a case of termination of parental rights
based on § 43-292(7), the protection afforded the rights of the parent comes in the best interests
step of the analysis. Id.
Here, the evidence established that Gavin was removed from Cody’s care on October 30,
2020. At the time of the June 27, 2022, termination hearing, Gavin had been in out-of-home care
for 19 months of the most recent 22 months. Because Gavin had been in out-of-home care for more
than 15 months out of the most recent 22 months, we find no error in the district court’s findings
that termination under § 43-292(7) was proper. We need not consider the evidence in relation to
the additional statutory bases. See In re Interest of Andrew M. et al., 11 Neb. App. 80, 643 N.W.2d
401 (2002) (once appellate court determines the State has established by clear and convincing
evidence that termination of parental rights is appropriate pursuant to § 43-292(7), appellate court
need not consider issues relating to sufficiency of evidence concerning other statutory provisions
identified by trial court as grounds for termination).
BEST INTERESTS
Cody assigns that the State failed to prove that termination of his parental rights was in
Gavin’s best interests. He argues that the State failed to use reasonable efforts to address his mental
health. He contends that the biggest barrier to reunification with Gavin was his mental health and
that the State did not reasonably provide Cody with help obtaining services to address the concerns
and he was not given adequate time to do so.
In addition to proving a statutory ground, the State must show that termination of parental
rights is in the best interests of the child. In re Interest of Brelynn E., supra. A parent’s right to
raise his or her child is constitutionally protected; so before a court may terminate parental rights,
the State must show that the parent is unfit. Id.
A child’s best interests are presumed to be served by having a relationship with his or her
parent. In re Interest of Leyton C. & Landyn C., 307 Neb. 529, 949 N.W.2d 773 (2020). This
presumption is overcome only when the State has proved that the parent is unfit. Id. 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 reasonable parental obligation in child rearing and which has caused, or probably will result in,
detriment to a child’s well-being. Id. The best interests analysis and the parental fitness analysis
are separate inquiries, but each examines essentially the same underlying facts as the other. Id.When a parent is unable or unwilling to rehabilitate himself or herself within a reasonable
period of time, the child’s best interests require termination of parental rights. In re Interest of
Jay’Oni W. et al., 31 Neb. App. 302, 979 N.W.2d 290 (2022). The 15-month condition contained
in § 43-292(7) provides a reasonable timetable for parents to rehabilitate themselves. Id.
Furthermore, children cannot, and should not, be suspended in foster care or be made to await
uncertain parental maturity. Id.
Here, during the trial, Cody’s counsel argued that DHHS did not set up services for Cody
to attend inpatient treatment and that, during the time he was incarcerated, he was unable to
participate in mental health treatment. The record shows that Cody was incarcerated from June 2
to 24, 2021, and was again incarcerated at the time of the termination hearing. Notwithstanding
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his brief periods of incarceration, Cody had approximately 15 months to enter and complete
residential mental health treatment. Although he completed his co-occurring evaluation, he did not
follow the recommendations to attend and complete residential mental health treatment. The
caseworker testified that a referral had been completed for residential treatment, but that Cody
refused to engage in the mental health services. It is clear that the short amount of time that Cody
was incarcerated did not prevent him from entering treatment throughout the pendency of the case.
Court reports establish that, during discussions with case workers, Cody continuously refused to
enter inpatient treatment. Additionally, although Cody voluntarily checked himself into Integrated
Behavioral Health Services in December 2021, he left that same month without completing the
program. The report from the facility indicated that during his time there, Cody was resistant to
treatment and medication changes. Cody was also admitted to the Bryan West Psychiatric Ward
on at least two occasions from March 5 to 15, 2021, and from the second week of April until May
6, 2022. Although the facility recommended residential mental health treatment at that time, Cody
again refused this treatment.
Additional evidence established that Cody failed to complete other court orders to address
the reasons Gavin was removed from his care. Cody was unable to provide safe and stable housing
to support Gavin and, even when Cody obtained housing, he refused to allow caseworkers entry
due to the unsafe conditions in his home. The caseworker further testified that Cody did not
consistently stay in contact with her, provide her with updated contact information, or meet with
her.
The caseworker further testified that she believed that termination of Cody’s parent rights
was in Gavin’s best interests. She reported that Gavin was doing well in his grandmother’s home,
that Cody had failed to address his mental health concerns, and that Cody failed to engage in
court-ordered services as required. The caseworker testified that since being assigned to the case
in March 2022, she had only met with Cody once in person, which occurred in May at the Lancaster
County Jail. The caseworker acknowledged that while incarcerated, Cody was unable to participate
in mental health services.
Cody additionally did not participate in family support services and was unsuccessfully
discharged twice. Thereafter, he refused to participate in family support services altogether. He
further failed to consistently submit to random drug testing having only participated in one-third
of the tests offered to him. Of the tests Cody completed, some were diluted and others were positive
for marijuana and alcohol.
Throughout the pendency of the case, visitation services had been set up to occur twice per
week. In the January 2021 court report, the caseworker indicated that visitation had occurred in
Cody’s home but had to be moved to the agency due to Cody making “threatening and concerning
statements.” In the April 2021 court report, the caseworker indicated that visits were placed on
hold due to Cody having missed visits with Gavin. Cody reported to the caseworker that he wanted
to have visits with Gavin, but that he did not think it was in Cody’s best interests to have them at
this time. The caseworker reported that Cody had been offered 18 visits but had only participated
in six of those visits. In the July 2021 court report, supervised visitation was still on hold due to
missed visits and Cody being incarcerated. The July 2021 report indicated that Cody had been
offered five visits with Gavin but attended only three of them. The report included that Cody’s last
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visit occurred on June 1, 2021, where the visit was ended prematurely due to Cody talking about
feeling suicidal and concerns of alcohol use during the visits. After making comments to the
visitation worker about his home being unsafe for Gavin, making suicidal comments, and smelling
of alcohol, in July 2021, supervised visitation with Gavin was suspended. At the time of the
termination hearing, Cody’s visits remained suspended.
Under our de novo review, the underlying factor that weighs heavily in this best interests
analysis is Cody’s unwillingness to fully acknowledge and address the seriousness of his mental
health conditions and his need for inpatient treatment as recommended. His failure to address his
mental health needs has led to his inability to provide for Gavin’s needs. For example, Cody made
suicidal comments in the presence of Gavin during a visit and indicated that having visitation with
Gavin was not in his own best interests. Although he has received some treatment, the evidence
showed that he refused to participate fully or complete a mental health program, instead being
admitted into the psychiatric ward multiple times and being incarcerated at least twice during the
pendency of the case. Although he had checked himself into treatment, the provider reported that
Cody was resistant to treatment including medication changes. Cody’s refusal to fully and
consistently address his mental health concerns has led to very aggressive and concerning
behaviors such as sending threatening emails to the caseworkers and having to move or suspend
visits due to threatening or suicidal comments. Cody’s conditions directly impact his ability to
parent and provide for Gavin’s needs. Cody’s continued unwillingness to engage in mental health
and other services offered by the State demonstrates he is either unable or unwilling to rehabilitate
himself within a reasonable period of time and Gavin should not be suspended in foster care
awaiting certain parental maturity. Accordingly, we find that the juvenile court did not err in
finding that the State had satisfied their burden to prove that termination was in Gavin’s best
interests. This assignment fails.
CONCLUSION
For the reasons stated above, we find that the juvenile court did not err in finding that
sufficient evidence was established to prove that statutory bases existed to terminate Cody’s
parental rights and that termination of his parental rights was in Gavin’s best interests.
AFFIRMED.
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