In re Interest of Lisette M. ( 2014 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
IN RE INTEREST OF LISETTE M.
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 LISETTE M., A CHILD UNDER 18 YEARS OF AGE.
STATE OF NEBRASKA, APPELLEE,
V.
ANA M., APPELLANT.
Filed February 18, 2014. No. A-13-475.
Appeal from the Separate Juvenile Court of Lancaster County: REGGIE L .RYDER, Judge.
Affirmed.
Jonathan Braaten, of Anderson, Creager & Wittstruck, P.C., L.L.O., for appellant.
Maureen Lamski, Deputy Lancaster County Attorney, and Amy Clemens, Senior
Certified Law Student, for appellee.
INBODY, Chief Judge, and PIRTLE and RIEDMANN, Judges.
RIEDMANN, Judge.
INTRODUCTION
Ana M. appeals the order of the separate juvenile court of Lancaster County terminating
her parental rights to her minor child, Lisette M. Ana asserts the juvenile court erred in finding
clear and convincing evidence to support termination under Neb. Rev. Stat. § 43-292(2) and (4)
(Cum. Supp. 2012) and finding that termination was in Lisette’s best interests. Based on our de
novo review of the record, we affirm.
BACKGROUND
Ana is the biological mother of Lisette, born in September 2010. Ana has two other
minor children, who are currently placed with their respective fathers, and two adult children,
none of whom are subjects of this appeal.
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The Department of Health and Human Services (DHHS) first made contact with Ana on
October 3, 2011, after receiving a report that she was the primary caregiver for three minor
children and was using methamphetamine. Ana admitted to DHHS that she had used cocaine the
previous weekend and that she had used both cocaine and methamphetamine in the past. She
voluntarily submitted to a drug test at that time, which revealed the presence of cocaine,
amphetamines, and benzodiazepines. The children were removed from the home and placed in
the temporary custody of DHHS.
The following day, the State filed a petition seeking to adjudicate the minor children
under Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2008) because they lacked proper parental care by
reason of the fault or habits of Ana. The petition alleged that Ana, while being the sole care
provider for the children, tested positive for cocaine, amphetamines, and benzodiazepines on
October 3, 2011; that Ana admitted to using cocaine the previous weekend and having a history
of cocaine and methamphetamine use; and that such circumstances placed the children at risk of
harm. An adjudication hearing was held, during which Ana pled no contest to the allegations in
the amended petition. The court accepted her plea and found the allegations to be true.
After the children were removed, Ana began attending counseling and took it upon
herself to obtain a substance abuse evaluation. She maintained appropriate housing, participated
in supervised visits with Lisette three to four times per week, complied with required drug testing
two to three times per week, attended school, and was seeking part-time employment. The
visitation workers reported that Ana was patient, loving, attentive, and engaging with the
children during visits.
On November 16, 2011, Ana began an intensive outpatient drug and alcohol treatment
program. She had attendance issues, mostly due to lack of transportation, and did not
consistently complete homework assignments or attend 12-step meetings as required.
Additionally, from November 22 to December 22, there was “a real lapse” in Ana’s drug testing,
allegedly due to transportation issues and scheduling conflicts with her schooling and treatment.
Beginning in early December, Ana was granted monitored parenting time with Lisette.
Due to Ana’s inconsistency in testing, the case manager went to Ana’s residence on
December 23, 2011, to conduct a drug test, at which point Ana tested positive for
methamphetamine. Although she had been scheduled to graduate from the treatment program on
December 28, her completion date was postponed after this relapse. It is unclear whether Ana
ever completed this treatment program. Ana’s drug testing continued to be sporadic, and she had
another positive drug test on January 20, 2012. At that point, the court revoked its prior order
allowing monitored visitation and ordered parenting time on a supervised basis only.
Nonetheless, according to Ana’s case manager, Ana always voiced her commitment to staying
sober and completing treatment.
Ana took a relapse prevention course and was able to reenter the intensive outpatient
treatment program on March 21, 2012. Her counselors reported good participation and progress
in treatment, and she graduated from the program on May 2. During that same timeframe, Ana
completed a parenting course, had regular visits with Lisette, and participated in family
counseling and aftercare services. The visitation notes show that Ana was attentive during visits,
engaged in age-appropriate activities, and met the children’s needs.
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In June 2012, Ana was charged with possession of methamphetamine. She was not
complying with drug testing at this time, missing approximately 75 percent of her required drug
tests. However, there was some indication that she had been working out-of-town, which
affected her ability to complete drug testing on a regular basis. Ana underwent another substance
abuse evaluation in August, which recommended that she seek short term residential treatment.
Ana was accepted for residential treatment on September 7, 2012, but was not admitted
due to a conflict of interest with a staff member. Ana was placed on a waiting list of another
residential treatment center and, in the meantime, began intensive outpatient treatment through a
different program on October 22. Although she was fully participating and making progress with
this treatment, it ended on January 3, 2013, because Ana’s counselor felt that she required a
higher level of treatment.
On December 27, 2012, Ana refused to submit to drug testing and indicated that she was
no longer going to attend treatment because she had done everything that was asked of her and
yet still did not have custody of Lisette. It was made clear to Ana that she would not be allowed
to have visitation with Lisette until she submitted to drug testing, but she still refused. Ana was
very upset and emotional at that meeting, but called her case manager the following day to
request continued services with DHHS. However, she did not submit to a drug test for over a
month after that and did not request visitation with Lisette for approximately 1½ months.
On January 15, 2013, the State filed a motion to terminate Ana’s parental rights based on
Lisette’s best interests and the following statutory grounds for termination: (1) Ana has
substantially and continuously or repeatedly neglected and refused to provide Lisette necessary
parental care and protection; (2) Ana is unfit by reason of debauchery, habitual use of
intoxicating liquor or narcotic drugs, or repeated lewd and lascivious behavior, which is
seriously detrimental to the health, morals, or well-being of Lisette; (3) Lisette has previously
been determined to be a child as described in § 43-247(3)(a) and active efforts have failed to
correct the conditions leading to that determination; and (4) Lisette has been in an out-of-home
placement for 15 or more months of the most recent 22 months. Ana actively continued seeking
treatment, despite the initiation of these termination proceedings.
Ana entered short-term residential treatment in February 2013, but was administratively
discharged in less than 2 weeks for noncompliance. She left treatment against the
recommendation of the clinical team to take care of personal matters with her adult son and her
home. She returned to treatment the following day and was placed on a restrictive status, which
she successfully completed. On another occasion, Ana left a group outing without permission
from staff and walked back to the treatment facility unsupervised. She was asked, as a
requirement to remain in treatment, to complete a written assignment examining her disruptive
behaviors. Ana wrote her thoughts and concerns about treatment in general, but refused to
answer the questions posed on the assignment. She was administratively discharged from
treatment for noncompliance with the assignment.
Ana had another positive drug test on March 15, 2013. She entered a detoxification
program on March 25 and began residential treatment on April 1. Ana’s counselor indicated that
Ana was very engaged and had gained a lot of insight and knowledge of addiction and recovery
concepts. At the time of trial, it appeared that Ana was in the contemplation stage of change,
meaning that she was willing to accept her addiction and work on it, but she was moving into the
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preparation stage of change, which involves putting plans in place for continued sobriety.
According to Ana’s counselor, the fact that Ana has been unsuccessful in past treatment attempts
does not mean that she will not be successful with this treatment, particularly once she has
moved into the preparation stage of change. Ana’s counselor explained that Ana will have a solid
plan in place prior to her discharge from the residential treatment program, which plan, if
followed, will greatly improve her chances of success. At the time of trial, Ana was scheduled to
graduate from the program on April 29 and then transition into a three-quarter-way house for
approximately 3 months while attending intensive outpatient treatment and a relapse prevention
group.
Ana testified that her current treatment has taught her the severity of her disease and the
coping skills she needs to overcome it. According to Ana, she now realizes the effect of her
addiction on her ability to parent and knows that she will not be able to parent her children
properly without treatment. Ana testified that her current treatment is different than her prior
attempts at treatment due to her willingness to change. She stated that she has a sponsor and has
made plans for aftercare in accordance with her counselor’s recommendations. Ana has been in
contact with a mother-child treatment program, and the organization has agreed to accept her
into the program if she obtains custody of Lisette. Despite the 18 months that elapsed between
the date Lisette was removed from her care and the date of trial, Ana believes that she should be
given more time to reunify with Lisette. According to Ana, she has come to terms with her
addiction, has seen the devastation it has caused in her life, and wants this opportunity to prove
that she can conquer her addiction.
Ana’s case manager testified that Ana has attempted multiple treatment programs and has
not made any progress in overcoming her addiction. She believes it is in Lisette’s best interests
to have permanency through adoption by her foster parents, with whom she had been placed
since December 2011. Lisette’s case managers conducted visits at the foster parents’ home, and
observed that Lisette got along very well with her foster parents and the other children in the
home. The foster parents have indicated a willingness to adopt Lisette and to facilitate future
contact between Lisette and her siblings.
According to the case managers and visitation workers, Ana had healthy, positive
interactions with Lisette during all of her visits, and there was a strong bond between them
despite some lapses of time between visits. One visitation worker testified that Ana was very
caring, loving, and attentive to the children, and that Lisette was very receptive to Ana’s
affection. Lisette would often yell “mommy” for the entire car ride after leaving visits with Ana.
Most of the visits occurred in Ana’s home, which was always very clean with everything in
order. Ana provided healthy, nutritious meals or snacks for the children during every visit. Ana’s
ex-husband and the custodial father of their minor son testified that Ana is a loving mother, that
he has never had any concerns regarding Ana’s parenting, and that he encourages contact
between Ana and their son.
Based on the evidence presented, the juvenile court found that the State had demonstrated
clear and convincing evidence of the statutory grounds for termination under subsections (2), (4),
and (7) of § 43-292 and that termination of Ana’s parental rights was in Lisette’s best interests.
Ana timely appeals.
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ASSIGNMENTS OF ERROR
Ana asserts that the juvenile court erred in finding clear and convincing evidence that
statutory grounds for termination existed under § 43-292(2) and (4) and that termination of her
parental rights was in Lisette’s best interests. Ana also argues that the State failed to prove that
failure to terminate her parental rights would subject Lisette to future harm.
STANDARD OF REVIEW
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. However, 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. In re Interest of
Karlie D., 283 Neb. 581, 811 N.W.2d 214 (2012).
ANALYSIS
The bases for termination of parental rights are codified in § 43-292. In re Interest of Sir
Messiah T. et al., 279 Neb. 900, 782 N.W.2d 320 (2010). Section 43-292 provides 11 separate
conditions, any one of which can serve as the basis for the termination of parental rights when
coupled with evidence that termination is in the best interests of the child. Id.Here, the juvenile court found that the State had proved three of the conditions set forth
in § 43-292, namely subsections (2), (4), and (7). On appeal, Ana does not challenge the court’s
findings under subsection (7) that Lisette had been in an out-of-home placement for 15 or more
months of the most recent 22 months. She therefore concedes this condition, and we affirm the
juvenile court’s finding that the State proved by clear and convincing evidence the grounds for
termination under subsection (7).
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 Justin H. et al., 18 Neb. App. 718, 791
N.W.2d 765 (2010). Therefore, we need not address the juvenile court’s findings under
§ 43-292(2) or (4).
Best Interests.
Ana argues that the juvenile court erred in finding that terminating her parental rights was
in Lisette’s best interests. Section 43-292 provides that parental rights can be terminated only
when the court finds that termination is in the child’s best interests. A juvenile’s best interests are
a primary consideration in determining whether parental rights should be terminated. In re
Interest of Sir Messiah T. et al., supra. In deciding best interests, the court is obligated to review
the evidence presented by all parties relative to the parent’s current circumstances and determine
if termination of parental rights is in the best interests of the minor child based on those
circumstances. Id.
Here, the evidence demonstrates that Ana is either unwilling or unable to forgo her drug
addiction despite several opportunities to obtain treatment. Ana tested positive for
methamphetamine on at least three occasions, and she admitted to using methamphetamine on
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several additional occasions during the pendency of this case. She successfully completed only
one of the four treatment programs she entered, and she was arrested and charged with
possession of methamphetamine in the month following her completion of that program. Ana
failed to comply with the majority of the court-ordered drug testing throughout the case and, as a
result, missed a significant number of visits with Lisette. Ana had only two visits with Lisette
during the first 3 months of 2013, and she tested positive for methamphetamine as recently as 2
weeks prior to trial. When a parent is either unwilling or unable to forgo their drug addiction, the
parent should not be afforded yet another opportunity for rehabilitation. See In re Interest of
Joshua M. et al., 256 Neb. 596, 591 N.W.2d 557 (1999).
Several witnesses testified at trial regarding the impact of methamphetamine on an
individual’s parenting abilities, as well as the risks that children are exposed to when a parent is
under the influence of methamphetamine. Parents that are under the influence of
methamphetamine are irritable, spend less time with their children, and often make bad decisions
regarding the care of their children. Those children may be at further risk due to exposure to
drugs and drug users coming in and out of the home.
Lisette was removed from Ana’s care shortly after her first birthday, and she has spent
over half of her life in the care of her foster parents, where she has done well. The case manager
testified that it was in Lisette’s best interests to be adopted by the foster family and that returning
her to Ana’s care would be contrary to her health, safety, and welfare.
The best interests of the child require termination of parental rights where a parent is
unable or unwilling to rehabilitate themselves within a reasonable time. In re Interest of Emerald
C. et al., 19 Neb. App. 608, 810 N.W.2d 750 (2012). Children cannot, and should not, be
suspended in foster care or be made to await uncertain parental maturity. Id.Upon our de novo review of the record, we agree with the juvenile court’s determination
that termination of Ana’s parental rights is in Lisette’s best interests.
Failure to Prove Future Harm.
Ana asserts that the State failed to prove by clear and convincing evidence that failure to
terminate her parental rights would subject Lisette to future harm. In support of this argument,
Ana cites to In re Interest of Carrdale H., 18 Neb. App. 350, 352, 781 N.W.2d 622, 624 (2010),
which states: “Generally, the State need not prove that the juvenile has actually suffered harm
but must establish that without intervention, there is a definite risk of future harm.” Ana argues
that because there has been no showing of a definite risk of future harm, her parental rights must
remain intact. We disagree.
Ana’s reliance on In re Interest of Carrdale H. is mistaken, because that case addresses
the necessary requirements to adjudicate a juvenile under § 43-247(3)(a) and does not address
the requirements for termination of parental rights. Ana pled no contest to the allegation that
Lisette was a child under § 43-247(3)(a) and she does not assign as error the trial court’s finding
as to this allegation. Since the definite risk of future harm requirement applies to adjudicating a
child under § 43-247(3)(a) and does not apply to § 43-292(7) or the best interests analysis, this
assigned error is without merit.
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CONCLUSION
The juvenile court did not err in terminating Ana’s parental rights to her minor child
Lisette.
AFFIRMED.
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