In re Interest of Gabriella H. ( 2014 )

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Finally, Hernandez argues that his pleas were not voluntary
and intelligent, due to trial counsel’s ineffectiveness during
the plea bargaining process. Because we have found that trial
counsel was not ineffective in the plea bargaining process, this
argument is also without merit.
CONCLUSION
The district court did not err in finding that Hernandez was
not deprived of his right to effective assistance of counsel
in the plea bargaining process. Thus, we affirm the denial of
Hernandez’ motion for postconviction relief.
Affirmed.
In re I nterest of Gabriella H., a child
under 18 years of age.
State of Nebraska, appellee,
v. R icardo R., appellant.
___ N.W.2d ___
Filed June 3, 2014. No. A-13-900.
1. Juvenile Courts: 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.
2. Evidence: Appeal and Error. 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.
3. Parental Rights: Proof. For a juvenile court to terminate parental rights under
Neb. Rev. Stat. § 43-292 (Cum. Supp. 2012), it must find clear and convincing
evidence that one or more of the statutory grounds listed in that section have been
satisfied and that termination is in the child’s best interests.
4. Evidence: Words and Phrases. 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 proved.
5. Parental Rights: Time: Abandonment. Neb Rev. Stat. § 43-292(1) (Cum. Supp.
2012) provides grounds for termination of parental rights when a parent has
abandoned the juvenile for 6 months or more immediately prior to the filing of
the petition for termination.
6. ____: ____: ____. The crucial time period for purposes of determining whether
a parent has intentionally abandoned a child under Neb. Rev. Stat. § 43-292(1)
(Cum. Supp. 2012) is determined by counting back 6 months from the date the
petition was filed.
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7. Parental Rights: Abandonment: Words and Phrases. For purposes of Neb.
Rev. Stat. § 43-292(1) (Cum. Supp. 2012), “abandonment” is a parent’s inten-
tional withholding from a child, without just cause or excuse, the parent’s pres-
ence, care, love, protection, maintenance, and the opportunity for the display of
parental affection for the child.
8. ____: ____: ____. “Just cause or excuse” for a parent’s failure to maintain a
relationship with a minor child has generally been confined to circumstances that
are, at least in part, beyond the control of the parent.
9. Parental Rights: Abandonment: Proof. To prove abandonment in determining
whether parental rights should be terminated, the evidence must clearly and con-
vincingly show that the parent has acted toward the child in a manner evidencing
a settled purpose to be rid of all parental obligations and to forgo all parental
rights, together with a complete repudiation of parenthood and an abandonment
of parental rights and responsibilities.
10. Parental Rights: Abandonment: Intent: Proof. Whether a parent has aban-
doned a child within the meaning of Neb. Rev. Stat. § 43-292(1) (Cum. Supp.
2012) is a question of fact and depends upon parental intent, which may be deter-
mined by circumstantial evidence.
11. Parental Rights: Abandonment: Evidence: Intent. A finding of abandonment
must be based on evidence of the parent’s intent to withhold parental care and
maintenance, not on the parent’s actual failure to provide such care and mainte-
nance as a result of impediments which are not attributable to the parent.
12. Appeal and Error. An appellate court is not obligated to engage in an analysis
which is not necessary to adjudicate the case and controversy before it.
Appeal from the County Court for Colfax County: Patrick
R. McDermott, Judge. Reversed and remanded for further
proceedings.
Jerod L. Trouba, of Knoepfle & Trouba, P.C., for appellant.
Leslie J. Buhl, Deputy Colfax County Attorney, for appellee.
Jacqueline M. Tessendorf, of Tessendorf & Tessendorf, P.C.,
guardian ad litem.
Irwin, Riedmann, and Bishop, Judges.
Riedmann, Judge.
INTRODUCTION
Ricardo R. appeals the order of the Colfax County Court,
sitting as a juvenile court, terminating his parental rights to
his minor child, Gabriella H. Ricardo asserts the juvenile court
erred in finding that he intentionally abandoned Gabriella
under Neb. Rev. Stat. § 43-292(1) (Cum. Supp. 2012), that
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reasonable efforts at reunification were not required pursuant
to Neb. Rev. Stat. § 43-283.01(4)(a) (Cum. Supp. 2012), and
that termination was in Gabriella’s best interests. Upon our
de novo review of the record, we find that the juvenile court
erred in terminating Ricardo’s parental rights, because the State
failed to adduce clear and convincing evidence of abandon-
ment under § 43-292(1). Thus, we reverse, and remand for
further proceedings.
BACKGROUND
Gabriella, born in November 2011, is the biological child
of Dorothy G. Gabriella was immediately removed from
Dorothy’s care due to Dorothy’s substance abuse and placed in
the temporary custody of the Department of Health and Human
Services (DHHS).
On November 28, 2011, the State filed a petition seeking
to adjudicate Gabriella under Neb. Rev. Stat. § 43-247(3)(a)
(Reissue 2008), because she lacked proper parental care by
reason of the fault or habits of her mother, Dorothy. The peti-
tion listed the father of Gabriella as “[u]nknown.” An initial
hearing on the petition was held on December 6, during
which Dorothy advised the court that Ricardo was a potential
father of Gabriella. The court ordered DHHS to determine the
paternity of the child. Gabriella’s caseworker attempted to
contact Ricardo to conduct genetic testing, but was unable to
reach him.
On December 12, 2011, the State filed an amended petition
for adjudication, which again listed the father of Gabriella as
“[u]nknown.” An adjudication hearing was held on December
13 during which Dorothy admitted the allegations in the
amended petition. The court accepted Dorothy’s admission and
found that Gabriella was a child within § 43-247(3)(a). DHHS
continued its attempts to contact Ricardo on a monthly basis
from December 2011 until September 2012, via telephone
numbers provided by Dorothy. The caseworker left messages
for Ricardo, but he never returned her calls. However, Ricardo
does not speak English, and there is no evidence that he
received the caseworker’s messages.
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In July 2012, Ricardo was arrested on an unrelated criminal
charge, and he remained incarcerated awaiting trial throughout
the pendency of this case. The State filed a motion for pater-
nity testing, upon which a DNA sample was collected from
Ricardo. The DNA test results were issued on November 12,
establishing a 99.997-percent probability that Ricardo was
Gabriella’s biological father. On November 20, the court rec-
ognized Ricardo as Gabriella’s biological father and appointed
counsel to represent him.
Dorothy voluntarily relinquished her parental rights to
Gabriella on January 31, 2013, and an order was entered in
April terminating her parental rights. On May 3, the State filed
a supplemental petition for adjudication of Gabriella and termi-
nation of Ricardo’s parental rights. The supplemental petition
alleged that Ricardo had abandoned Gabriella for 6 months or
more immediately prior to the filing of the petition and that
termination of Ricardo’s parental rights was in Gabriella’s
best interests. The State filed an amended supplemental peti-
tion on June 18 which added allegations against Gabriella’s
legal father (Dorothy’s husband) but made no changes to the
allegations against Ricardo. Ricardo appeared at the hearing on
the amended supplemental petition and denied the allegations.
A termination hearing was held on July 30 during which evi-
dence was adduced regarding Ricardo’s alleged abandonment
of Gabriella.
Dorothy testified at the termination hearing on behalf of the
State. Dorothy discovered she was pregnant with Gabriella in
late February 2011. Although she was married to another man
at the time, they were separated and she was in a relationship
with Ricardo, as well as a third man. Dorothy told Ricardo
that she was pregnant and that she thought he was the child’s
father, although she could not be 100-percent sure. She told
Ricardo that there was one other man that could also be the
child’s father. According to Dorothy, Ricardo said he would
“be there.”
Ricardo was not present during Gabriella’s birth and is not
listed as the father on her birth certificate. However, he was
approved to be present during Dorothy’s supervised visits with
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Gabriella, because Dorothy had identified him as a potential
father for Gabriella. Ricardo attended four of Dorothy’s visits
with Gabriella in late 2011 and early 2012. Dorothy referred
to Ricardo as Gabriella’s “dad” during the visits. Ricardo did
not attend any further visits after February 2, 2012, and never
requested his own visitation with Gabriella.
Once paternity was established by DNA testing in November
2012, the caseworker sent a letter to Ricardo at the detention
center where he was incarcerated. The letter informed Ricardo
that he was Gabriella’s father and that he could contact
the caseworker regarding Gabriella. The caseworker did not
receive any contact from Ricardo or his attorney after send-
ing notification of his paternity. In fact, Ricardo has never
made contact with DHHS, the caseworker, or the foster par-
ents to inquire about Gabriella at any time during this case;
nor has he ever provided monetary support, cards, or gifts
for Gabriella.
The caseworker testified that she did not believe perma-
nency for Gabriella could be achieved with Ricardo, because
he is incarcerated for an undetermined amount of time and
Gabriella does not know him. Gabriella has been with her
foster parents since she was 3 days old, and they are willing
and able to provide permanency for her if Ricardo’s parental
rights are terminated. Gabriella is doing very well in the care
of her foster parents, and they are the only family she has ever
known. The caseworker testified that Gabriella is in need of
permanency and that termination of Ricardo’s parental rights
would be in Gabriella’s best interests.
The court found clear and convincing evidence that Ricardo
had abandoned Gabriella for 6 months or more immediately
prior to the filing of the petition to terminate and that reason-
able efforts at reunification were not required due to Ricardo’s
abandonment of Gabriella. The court further found that ter-
mination of Ricardo’s parental rights was in Gabriella’s best
interests. Ricardo timely appeals.
ASSIGNMENTS OF ERROR
Ricardo asserts the juvenile court erred in finding that (1)
Ricardo intentionally abandoned Gabriella for 6 months or
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more immediately prior to the filing of the petition to termi-
nate his parental rights, (2) reasonable efforts at reunification
were not required under § 43-283.01(4)(a) due to Ricardo’s
abandonment of Gabriella, and (3) termination of Ricardo’s
parental rights was in Gabriella’s best interests.
STANDARD OF REVIEW
[1,2] 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
Karlie D., 283 Neb. 581, 811 N.W.2d 214 (2012). 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 witnesses and accepted one version of the facts over the
other. Id.
ANALYSIS
Ricardo first asserts that the juvenile court erred in find-
ing that he intentionally abandoned Gabriella for 6 months or
more immediately prior to the filing of the petition to termi-
nate his parental rights. We agree.
[3,4] 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 child’s best interests. In re Interest of Jacob H. et al.,
20 Neb. Ct. App. 680, 831 N.W.2d 347 (2013). The State must
prove these facts by clear and convincing evidence. Id. Clear
and convincing evidence is that amount of evidence which pro-
duces in the trier of fact a firm belief or conviction about the
existence of the fact to be proved. Id.
Calculating Period
of Abandonment.
[5,6] Section 43-292(1) provides grounds for termination
of parental rights when a parent has “abandoned the juvenile
for six months or more immediately prior to the filing of the
petition.” The crucial time period for purposes of determining
whether a parent has intentionally abandoned a child under
§ 43-292(1) is determined by counting back 6 months from the
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date the petition was filed. In re Interest of Dylan Z., 13 Neb.
App. 586, 697 N.W.2d 707 (2005).
The State asserts that the crucial time period is the 6 months
prior to the filing of the amended supplemental petition on
June 18, 2013. We conclude, however, that the crucial time
period is the 6 months prior to the filing of the supplemental
petition on May 3, wherein the State first alleged that Ricardo
had abandoned Gabriella for 6 months or more. The amended
supplemental petition filed on June 18 merely added allega-
tions against Gabriella’s legal father and did not alter the alle-
gations against Ricardo. See id. (utilizing 6-month period for
abandonment from filing date of supplemental petition alleg-
ing abandonment, rather than filing date of amended supple-
mental petition which alleged additional statutory ground for
termination but did not change abandonment allegation). Thus,
the crucial time period for determining whether Ricardo has
intentionally abandoned Gabriella is November 3, 2012, to
May 3, 2013.
Defining Abandonment.
[7,8] For purposes of § 43-292(1), “abandonment” is a
parent’s intentionally withholding from a child, without just
cause or excuse, the parent’s presence, care, love, protection,
maintenance, and the opportunity for the display of parental
affection for the child. In re Interest of Chance J., 279 Neb.
81, 776 N.W.2d 519 (2009). “‘[J]ust cause or excuse’” for a
parent’s failure to maintain a relationship with a minor child
has generally been confined to circumstances that are, at least
in part, beyond the control of the parent. Id. at 91, 776 N.W.2d
at 527.
[9,10] To prove abandonment, the evidence must clearly
and convincingly show that the parent has acted toward the
child in a manner evidencing a settled purpose to be rid of all
parental obligations and to forgo all parental rights, together
with a complete repudiation of parenthood and an abandon-
ment of parental rights and responsibilities. Id. Whether a par-
ent has abandoned a child within the meaning of § 43-292(1)
is a question of fact and depends upon parental intent, which
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may be determined by circumstantial evidence. In re Interest
of Chance J., supra.
[11] The record before us clearly shows that Ricardo had
no contact with Gabriella during the relevant 6-month time
period from November 3, 2012, to May 3, 2013. There is no
dispute that Ricardo has never provided monetary support for
Gabriella, nor ever sent any cards, gifts, or letters to Gabriella.
In other words, the evidence shows a complete abandonment
of all parental rights and responsibilities. To sustain a finding
of abandonment, however, such a finding must be based on
evidence of the parent’s intent to withhold parental care and
maintenance, not on the parent’s actual failure to provide such
care and maintenance as a result of impediments which are
not attributable to the parent. See In re Interest of Dylan Z.,
supra. Ricardo argues that he did not have the requisite intent
to abandon Gabriella, due to his lack of knowledge that he was
Gabriella’s father.
We have previously held that in an out-of-wedlock situa-
tion, where a father’s lack of contact with his child is directly
attributable to his lack of knowledge that he is the child’s
father, the evidence is insufficient to establish that the aban-
donment was intentional. In re Interest of Dylan Z., 13 Neb.
App. 586, 697 N.W.2d 707 (2005). But see In re Interest of
Chance J., supra (holding that husband’s belief that he was
not father of his wife’s child, based upon child’s physical
appearance and husband’s suspicion of wife’s infidelity, was
not just cause or excuse for abandoning child that was born
into wedlock).
Here, although Ricardo knew there was a possibility that he
was Gabriella’s father, the DNA test results did not confirm
this until November 12, 2012, which was during the relevant
6-month time period. The evidence shows that Dorothy was
married to another man at the time of Gabriella’s conception
and birth and that Dorothy had three prior children with two
different men, all of which facts Ricardo knew at the time.
Although Dorothy told Ricardo that she thought he was the
child’s father, she told him she could not be 100-percent sure,
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as she was involved in a relationship with both Ricardo and
another man at the time Gabriella was conceived.
Ricardo was not present during Gabriella’s birth, and he is
not listed as the father on Gabriella’s birth certificate. While he
did attend four of Dorothy’s supervised visits with Gabriella
shortly after her birth, that alone is not enough to clearly and
convincingly establish that Ricardo knew or believed that
he was Gabriella’s father. Absent such knowledge or belief,
Ricardo could not possess the requisite intent to abandon
Gabriella under § 43-292(1). Thus, we conclude that the evi-
dence is insufficient as a matter of law to establish that Ricardo
intentionally abandoned Gabriella under § 43-292(1), because
he did not know he was Gabriella’s father until he was notified
of the DNA test results in late November 2012, which was dur-
ing the 6-month period immediately prior to the filing of the
supplemental petition.
Furthermore, we find that even if Ricardo had known that
he was Gabriella’s father for the entire 6-month period, his
incarceration was a circumstance out of his control which
impeded his ability to parent Gabriella and, thus, precludes a
finding of intentional abandonment. The Nebraska Supreme
Court has acknowledged that while the fact of incarceration is
involuntary, the illegal activities leading to incarceration are
voluntary. In re Interest of R.T. and R.T., 233 Neb. 483, 446
N.W.2d 12 (1989). See, also, In re Interest of L.V., 240 Neb.
404, 482 N.W.2d 250 (1992). However, in those cases, the
parent was incarcerated following a conviction. Ricardo was
incarcerated awaiting trial. Under our justice system, he was
presumed innocent at that time and had not been found guilty
of any crime.
The State argues that even after being notified that he was
Gabriella’s biological father, Ricardo did nothing to indicate
that he had any intention to parent Gabriella, thereby con-
firming his intent to abandon her. However, Ricardo’s incar-
ceration began on July 30, 2012, well before his paternity
was established, and he remained incarcerated throughout the
pendency of this case. The caseworker testified that she had
no personal contact with him during the pendency of the case.
The record does not disclose any showing by DHHS that it
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had given Ricardo any information which would have allowed
him to contact Gabriella. Although the caseworker testified
she “attempted to send” Ricardo a letter after she received the
paternity test results, the letter is not in evidence, and she tes-
tified it advised him that he was Gabriella’s biological father
and that “if he wanted to make contact with [the caseworker]
he should.” The monthly calls that she made to telephone
numbers provided by Dorothy were made before the 6-month
period prior to the filing of the supplemental petition and prior
to the establishment of paternity.
Furthermore, there is nothing in the record to show what
Ricardo could have done to parent Gabriella while he was
incarcerated. While it is true that Ricardo never requested
visitation with Gabriella, the State presented no evidence that
visitation would have been permitted at the detention center
where Ricardo was incarcerated. See In re Interest of Josiah
T., 17 Neb. Ct. App. 919, 773 N.W.2d 161 (2009). Aside from
visitation, it would have been very difficult, if not impos-
sible, for Ricardo to develop a relationship with Gabriella
while he was incarcerated, given that she was too young to
understand or participate in cards, letters, or telephone calls.
There is no evidence that Ricardo had the means to offer any
monetary support for Gabriella while he was incarcerated.
Based upon this record, we cannot find that Ricardo dem-
onstrated an intention to withhold parental care and mainte-
nance from Gabriella, particularly when there is no evidence
that his incarceration was attributable to any wrongdoing on
his part.
We are mindful that “‘“[i]ncarceration . . . does not insulate
an inmate from the termination of . . . parental rights if the
record contains the clear and convincing evidence that would
support the termination of the rights of any other parent.”’”
Id. at 925, 773 N.W.2d at 166. Here, however, the record lacks
clear and convincing evidence of Ricardo’s intent to abandon
Gabriella and, thus, does not support termination. Accordingly,
we conclude that the juvenile court erred in terminating
Ricardo’s parental rights under § 43-292(1) and in finding that
reasonable efforts at reunification were not required pursuant
to § 43-283.01(4)(a).
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80 22 NEBRASKA APPELLATE REPORTS
[12] Because we have found that the juvenile court erred
in terminating Ricardo’s parental rights, we do not address
whether termination was in Gabriella’s best interests. An
appellate court is not obligated to engage in an analysis which
is not necessary to adjudicate the case and controversy before
it. In re Interest of Josiah T., supra.
CONCLUSION
Upon our de novo review of the record, we conclude that the
juvenile court erred in terminating Ricardo’s parental rights to
Gabriella because the State failed to adduce clear and convinc-
ing evidence of abandonment under § 43-292(1). Accordingly,
we reverse, and remand for further proceedings.
R eversed and remanded for
further proceedings.