In re Interest of Joseph S. ( 2015 )

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Nebraska A dvance Sheets
291 Nebraska R eports
IN RE INTEREST OF JOSEPH S. ET AL.
Cite as 291 Neb. 953
In re I nterest of
Joseph S. et al.,
children under 18 years of age.
State of Nebraska, appellee, v.
K erri S., appellant.
___ N.W.2d ___
Filed October 9, 2015. No. S-14-1025.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juve-
nile cases de novo on the record and reaches its conclusions indepen-
dently of the juvenile court’s findings.
2. Evidence: Appeal and Error. When credible evidence is in conflict, an
appellate court considers and may give weight to the fact that the trial
court observed the witnesses and accepted one version of the facts rather
than another.
3. Parental Rights: Proof. In order to terminate an individual’s parental
rights, the State must prove by clear and convincing evidence that
one of the statutory grounds enumerated in Neb. Rev. Stat. § 43-292
(Cum. Supp. 2014) exists and that termination is in the children’s best
interests.
4. Parent and Child: Child Custody. A parent’s failure to provide an
environment to which his or her children can return can establish sub-
stantial, continual, and repeated neglect.
5. Parental Rights. Past neglect, along with facts relating to current family
circumstances which go to best interests, are all properly considered in a
parental rights termination case under Neb. Rev. Stat. § 43-292(2) (Cum.
Supp. 2014).
6. ____. One need not have physical possession of a child to demonstrate
the existence of neglect contemplated by Neb. Rev. Stat. § 43-292(2)
(Cum. Supp. 2014).
7. Parental Rights: Parent and Child. In proceedings to terminate paren-
tal rights, the law does not require perfection of a parent; instead, courts
should look for the parent’s continued improvement in parenting skills
and a beneficial relationship between parent and child.
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IN RE INTEREST OF JOSEPH S. ET AL.
Cite as 291 Neb. 953
Appeal from the Separate Juvenile Court of Douglas County:
Elizabeth Crnkovich, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, Zoë R.
Wade, and Lauren A. Walag for appellant.
Donald W. Kleine, Douglas County Attorney, Jennifer
Chrystal-Clark, and Amy Schuchman for appellee.
Maureen K. Monahan, guardian ad litem.
Heavican, C.J., Wright, Connolly, McCormack, Miller-
Lerman, and Cassel, JJ.
Wright, J.
NATURE OF CASE
This case involving termination of parental rights first came
before us in In re Interest of Joseph S. et al.1 The State
appealed to the Nebraska Court of Appeals the findings of the
separate juvenile court of Douglas County that the three minor
children of Kerri S. did not come within the meaning of Neb.
Rev. Stat. § 43-292(2) (Cum. Supp. 2014) and that it was not
in their best interests to terminate Kerri’s parental rights. As
a matter of first impression, the Court of Appeals held that
a parent’s noncompliance with a voluntary placement agree-
ment that did not comport with procedural due process could
not serve as a basis for termination of parental rights under
§ 43-292(2).
We granted further review, reversed the Court of Appeals’
decision, and remanded the cause for further proceedings. On
remand, the juvenile court concluded that the State had dem-
onstrated by clear and convincing evidence that termination of
Kerri’s parental rights was appropriate and in the best interests
of the children. We affirm.
1
In re Interest of Joseph S. et al., 288 Neb. 463, 849 N.W.2d 468 (2014).
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IN RE INTEREST OF JOSEPH S. ET AL.
Cite as 291 Neb. 953
FACTS
Kerri is the biological mother of the minor children: Joseph
S., William S., and Steven S. The family first came to the
attention of the Nebraska Department of Health and Human
Services (DHHS) on March 16, 2009. In that case, DHHS
became involved with the family due to concerns about Kerri’s
drug use and improper supervision of the children. The chil-
dren remained out of Kerri’s care for exactly 1 year. In the
fall of 2010, Kerri tested positive for cocaine. During the first
case, Kerri did not consistently participate in services offered
by DHHS, but ultimately completed a court-ordered and court-
monitored plan, and the children were returned to her care. The
case was closed in November 2011.
Shortly thereafter, in January 2012, DHHS received an
“intake” reporting that Kerri had left the children with a rela-
tive and was unable to be reached. Calls to DHHS expressed
concerns that Kerri was failing to properly supervise the chil-
dren and that she might be using drugs.
Following this intake, Kerri was contacted by DHHS. Kerri
agreed to a 180-day voluntary out-of-home placement of the
children. In a voluntary placement agreement, a parent vol-
untarily signs an agreement that his or her children be state
wards for 180 days, with either relatives or an agency, while
the parent participates in rehabilitative services. In the pres-
ent case, Kerri’s brother and his wife took physical custody
of the children during the 180-day placement period. At any
time during the 180-day placement period, a parent can request
his or her child to be returned, provided the parent has met
certain requirements. Upon entering into the voluntary place-
ment agreement, the case was referred to Nebraska Families
Collaborative (NFC) for management with the goal of return-
ing the children to the home. Kerri worked voluntarily with
NFC from January until August 2012, which encompassed the
duration of the placement agreement.
Melissa Misegadis, an employee with NFC, was the fam-
ily’s service coordinator in the first case and the family
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IN RE INTEREST OF JOSEPH S. ET AL.
Cite as 291 Neb. 953
permanency supervisor in the second case. Misegadis testi-
fied that in the first case, various services were offered to
the family, including supervised visitations; family support;
peer-to-peer mentoring; mental health services, including
individual and family therapy; random drug testing; and
psychotropic medication management. Misegadis again had
contact with the family after receiving an intake on January
12, 2012, less than 3 months after the first case closed.
Misegadis testified that as a supervisor, the family perma-
nency specialist (FPS) reported to her and it was Misegadis’
duty to determine whether a parent had complied with serv­
ices and to ensure the safety of the children. Misegadis
attended at least two family meetings with Kerri and her FPS.
At the first meeting, Kerri denied using drugs and agreed to
submit to drug testing.
Brenda Alvarado was the drug test specialist responsible for
testing Kerri. Beginning in January 2012, at the outset of the
placement period, Kerri was required to be drug tested weekly.
While Kerri was Alvarado’s client, Kerri had three “non-
negative” or “positive” drug testing results—one in January
for amphetamines; another in April for amphetamines, meth-
amphetamine, and marijuana; and a third in May for metham-
phetamine. Kerri was present each time Alvarado received the
preliminary drug testing results, and Alvarado discussed the
results with Kerri each time. Kerri admitted to smoking mari-
juana once, but denied having taken the other substances for
which she tested positive.
In June 2012, the testing was increased to eight times per
month and prior to any visits with her children. Beginning in
July, Alvarado had difficulty contacting Kerri for her sched-
uled drug testing due to problems with Kerri’s telephone.
When Alvarado was unable to contact Kerri, Alvarado would
either go to Kerri’s house or contact her FPS. Alvarado went
to Kerri’s house four to five times per month, but from July
through December, Alvarado was able to complete Kerri’s
required drug testing only one or two times. Most of the
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IN RE INTEREST OF JOSEPH S. ET AL.
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successful drug testing was obtained during either family vis-
its or “team meetings.”
Nine days before the voluntary placement period was set to
expire, Anne Petzel, the FPS assigned to the case conducted
an unannounced home visit at Kerri’s residence to check its
safety. The visit revealed the home was in disarray, with piles
of clothes, numerous beds without sheets, and graffiti on the
walls, some of which made drug references. Petzel observed
empty alcohol bottles around the home and approximately
five unknown adults in the home who appeared to be residing
there, including a woman sleeping on one of the mattresses.
Kerri described them as friends there to help her get the
home ready for the children’s return and to paint the home.
Several cans of paint were found, but not brushes, rollers, or
other supplies.
Shortly before the voluntary placement period was set to
expire, an affidavit for removal of the children was filed due
to information about Kerri that NFC had received from the
Omaha Police Department which concerned the safety of the
children. Additionally, NFC had received reports from Kerri’s
family members that her visits with her children and partici-
pation in therapy had been extremely inconsistent. NFC also
received information regarding Kerri’s lack of participation in
her regularly scheduled drug screening, leading to concerns of
ongoing drug use.
On August 9, 2012, the State filed a petition alleging the
minor children came within the meaning of Neb. Rev. Stat.
§ 43-247(3)(a) (Reissue 2008). On December 19, the State
amended its petition to further allege that the children came
within the meaning of § 43-292(2) and that Kerri’s paren-
tal rights should be terminated. The State alleged Kerri had
substantially and continuously or repeatedly neglected and
refused to give necessary parental care and protection to
the children.
On March 8, 2013, Kerri moved to bifurcate the adjudica-
tion as to whether the children came within the meaning of
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IN RE INTEREST OF JOSEPH S. ET AL.
Cite as 291 Neb. 953
§ 43-247(3)(a) from the adjudication for termination under
§ 43-292(2). The juvenile court denied the motion to bifur-
cate and found that the children came within the meaning of
§ 43-247(3)(a). It ordered that the adjudication proceed to
determine whether the children were within the meaning of
§ 43-292(2) and if terminating Kerri’s parental rights was in
their best interests.
After the petition was filed, the case was transferred from
Petzel to Tiffany Martin, another FPS. Martin met with Kerri
at two family team meetings in September 2012. Martin testi-
fied that at those meetings, she offered to set up supervised
visits with the children, but that Kerri declined because she
did not think the children would want a stranger to conduct
them. Kerri’s brother had previously conducted the visits, but
no longer wanted to do so because of Kerri’s inconsistency in
participation. On several occasions, Martin attempted to help
set up a psychiatric evaluation for Kerri.
In November 2012, Martin met with Kerri, who told her
that she no longer had her own residence, but was living at a
friend’s house. Martin denied Kerri’s request to have super-
vised visitations at her friend’s house.
Due to a lack of compliance with services in October
and November 2012, Kerri’s parenting time was discharged.
Although visits with the children were still allowed in December,
Kerri did not participate in such visits except for approximately
10 minutes on Christmas. From January to March 2013, Kerri
met with her children on only two occasions.
Following our remand, an adjudication hearing was held on
October 16, 2014. The State adduced evidence from both the
2009 case and the present case. Both cases involved the chil-
dren’s being placed outside the home for concerns of improper
supervision and Kerri’s drug use. Misegadis, Alvarado, Petzel,
and Martin all testified on behalf of the State. Kerri testified in
her own behalf.
On October 28, 2014, the juvenile court found by clear
and convincing evidence that the children were within the
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IN RE INTEREST OF JOSEPH S. ET AL.
Cite as 291 Neb. 953
meaning of § 43-292(2) in relation to Kerri and that it was
in their best interests to terminate Kerri’s parental rights. The
court ordered the children to remain in the custody of DHHS
for adoptive planning and placement. Kerri timely appealed
the juvenile court’s order.
ASSIGNMENTS OF ERROR
Kerri argues that the juvenile court erred in finding clear
and convincing evidence the children came within the mean-
ing of § 43-292(2), that termination of Kerri’s parental rights
is in the children’s best interests, and that the juvenile court
abused its discretion in denying Kerri’s motion to bifurcate.
As in her first appeal, Kerri asserts that her due process rights
were violated when she entered into the voluntary place-
ment agreement.
STANDARD OF REVIEW
[1,2] An appellate court reviews juvenile cases de novo on
the record and reaches its conclusions independently of the
juvenile court’s findings.2 When credible evidence is in con-
flict, an appellate court considers and may give weight to the
fact that the trial court observed the witnesses and accepted
one version of the facts rather than another.3
ANALYSIS
We first address Kerri’s arguments relating to alleged viola-
tions of her due process rights. Kerri and the guardian ad litem
for the children assert that Kerri was denied due process when
the juvenile court terminated her parental rights based on her
participation in a voluntary placement agreement with DHHS.
She claims that she was coerced into entering the agreement
and that the consequences or requirements of such agreement
were not conveyed to her prior to her consent.
2
In re Interest of Nedhal A., 289 Neb. 711, 856 N.W.2d 565 (2014).
3
See In re Interest of Rachael M. & Sherry M., 258 Neb. 250, 603 N.W.2d
10 (1999).
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IN RE INTEREST OF JOSEPH S. ET AL.
Cite as 291 Neb. 953
We resolved this issue in our first review of this case. We
noted that the record demonstrated that Kerri was afforded
all of the due process requirements set forth in In re Interest
of L.V.4 We found that the record did not show that the coer-
cive tactics used by state officials in cases cited by Kerri
were present in the present case. Nor did Kerri argue that her
compliance was not voluntary, and we declined to make such
an assumption. We further found Kerri did not argue that the
State lacked reasonable grounds in January 2012 for believ-
ing she was unable to properly care for the children, and the
record does not support such a finding. In our instructions
to the juvenile court on remand, we stated, “On remand, the
juvenile court should consider all of the evidence presented
to determine whether the State has demonstrated by clear and
convincing evidence that termination of Kerri’s parental rights
is appropriate and in the best interests of the children.”5 Thus,
we gave no instruction to determine whether Kerri’s due proc­
ess rights were violated when she entered into the voluntary
placement agreement. Consequently, we decline to address
this issue.
We next examine whether the State proved by clear and
convincing evidence that termination of Kerri’s parental rights
was appropriate under § 43-292(2). We conclude that the State
showed by clear and convincing evidence that termination of
Kerri’s parental rights was in the children’s best interests and
that she continuously or repeatedly neglected and refused to
provide necessary parental care and protection.
[3-5] In order to terminate an individual’s parental rights,
the State must prove by clear and convincing evidence that
one of the statutory grounds enumerated in § 43-292 exists and
that termination is in the children’s best interests.6 One such
4
In re Interest of L.V., 240 Neb. 404, 482 N.W.2d 250 (1992).
5
In re Interest of Joseph S. et al., supra note 1, 288 Neb. at 471, 849
N.W.2d at 475.
6
In re Interest of Walter W., 274 Neb. 859, 744 N.W.2d 55 (2008).
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IN RE INTEREST OF JOSEPH S. ET AL.
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ground is when the parents have substantially and continuously
or repeatedly neglected and refused to give the juvenile or a
sibling of the juvenile necessary parental care and protection.7
A parent’s failure to provide an environment to which his or
her children can return can establish substantial, continual,
and repeated neglect.8 Past neglect, along with facts relating to
current family circumstances which go to best interests, are all
properly considered in a parental rights termination case under
§ 43-292(2).9
At the adjudication hearing, the State showed that in the first
case in March 2009, DHHS became involved with the family
due to concerns about Kerri’s drug use and improper supervi-
sion of the children. Misegadis testified that in February 2010,
the children had been returned to Kerri’s care, but that they
returned to foster care shortly after Misegadis became involved
in the case. The children were removed from the home for
exactly 1 year from July 2010 to July 2011. The case was
closed in November 2011. Kerri was referred to aftercare for
assistance “if things didn’t go as planned.” It was up to Kerri
to engage in such services, but she never did so.
Less than 3 months after the first case closed, DHHS
received an intake reporting that Kerri had left the children
with a relative and that Kerri could not be reached. The intake
expressed concerns that Kerri was not properly supervising
the children and might be using methamphetamine. These
were the same concerns that were presented in the first case
and demonstrated that Kerri had not made progress toward
rehabilitation.
With respect to Kerri’s participation in voluntary services,
the record shows a consistent pattern of noncompliance. In her
7
§ 43-292(2).
8
In re Interest of L.C., J.C., and E.C., 235 Neb. 703, 457 N.W.2d 274
(1990).
9
In re Interest of Sir Messiah T. et al., 279 Neb. 900, 782 N.W.2d 320
(2010).
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voluntary placement agreement, Kerri agreed to a chemical
dependency evaluation and therapy. Therapy was later dis-
charged due to noncompliance from Kerri. During the 180-day
voluntary placement agreement, drug testing on three occasions
showed the presence of various drugs in Kerri’s system, includ-
ing amphetamines, methamphetamine, and marijuana. Kerri
subsequently became very inconsistent in her required drug
testing. Despite the requirement of drug testing eight times
a month, Kerri submitted to drug testing only once or twice
between July and December 2012.
Kerri was also inconsistent in visitations with her children
when these were supervised by her relatives. As a result of this
inconsistency, her relatives were unwilling to continue super-
vising visits. When visitations were established with Nebraska
Children’s Home Society, Kerri was noncompliant in October
and November 2012, resulting in discharge of this service.
Kerri has also missed family team meetings, designed to dis-
cuss the progress of Kerri’s case.
The record shows that Kerri has also repeatedly failed to
put her children’s needs ahead of her own by not providing
a safe environment. Nine days prior to the anticipated return
of the children to Kerri’s home following the voluntary place-
ment agreement, a visit by Petzel, an FPS, revealed the home
was in disarray, with graffiti on the walls which included drug
references, empty alcohol bottles around the home, numerous
unmade beds without sheets, and approximately five unknown
adults in the home who appeared to be residing there. NFC
received information from relatives of Kerri, as well as infor-
mation from law enforcement, which raised additional concerns
about Kerri’s ability to care for the children and provide a safe
environment for them. In November 2012, Kerri requested to
have visitations at a friend’s house because she no longer had
her own residence.
[6] Although much of the above-described conduct occurred
while the children were not in the custody of Kerri, we
have held that one need not have physical possession of a
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IN RE INTEREST OF JOSEPH S. ET AL.
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child to demonstrate the existence of neglect contemplated by
§ 43-292(2).10 Based on the record, we find clear and convinc-
ing evidence establishes that Kerri substantially and continu-
ously or repeatedly neglected to provide the children necessary
parental care and protection.
[7] Because the State met its burden with respect to neglect,
we turn to whether the State established by clear and convinc-
ing evidence that termination was in the best interests of the
minor children. Generally, when termination is sought under
other subsections of § 43-292, the evidence adduced to prove
the statutory grounds for termination will also be highly rel-
evant to the best interests of the juvenile, as it would show
abandonment, neglect, unfitness, or abuse.11 In proceedings to
terminate parental rights, the law does not require perfection of
a parent; instead, courts should look for the parent’s continued
improvement in parenting skills and a beneficial relationship
between parent and child.12
Misegadis testified that when the first case was closed in
November 2011, she had concerns that Kerri might go back to
her “old ways.” Less than 3 months later, after having recently
spent 11⁄2 years working with Kerri on the same issues, DHHS
received an intake regarding Kerri’s drug use and improper
supervision of the children. During the temporary placement
period, Kerri continued using drugs and failed to consist­
ently participate in mental health, drug, and family services.
Misegadis testified that she does not know what other services
could be offered to Kerri that have not already been offered.
The record establishes that Kerri has been afforded ample
opportunity to rehabilitate and improve herself, but has failed
to avail herself of the services offered.
We examine the best interests of the children in the con-
text of Kerri’s repeated failure to provide a safe, stable, and
10
In re Interest of Kalie W., 258 Neb. 46, 601 N.W.2d 753 (1999).
11
In re Interest of Aaron D., 269 Neb. 249, 691 N.W.2d 164 (2005).
12
Id.
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drug-free environment for the children. Kerri’s actions did not
reflect her concern for the best interests of the children. Her
failure to attend visitations with the children demonstrates a
lack of motivation for reunification. The inconsistency in her
attendance at the visitations led her own family members to
decline to continue their supervision.
The record shows that the children have remained in foster
care with only limited supervised visitations with Kerri since
being removed from Kerri’s home. The minor children have
been out of the home for more than 3 years in the present
case and for a year in the preceding case. NFC workers testi-
fied the children are well adjusted to their current placement.
Martin opined that the children need to have permanency pro-
vided to them and that the children are in an adoptive home
where their stability and safety needs are being met.
We agree that constant movement of the children into and
out of foster care is not advisable or in the best interests of the
children. The evidence related to best interests of the children
was largely derived from the history associated with the vari-
ous rehabilitative and reunification services which had been
offered to Kerri and her children. Based on the record, the
State established by clear and convincing evidence that it was
in the best interests of the minor children that Kerri’s parental
rights be terminated. We reject Kerri’s assignments of error in
which she claimed that the evidence was insufficient to termi-
nate her parental rights under § 43-292(2).
CONCLUSION
For the reasons stated above, we affirm the juvenile
court’s order.
A ffirmed.