In re Interest of Josselynn E. ( 2013 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
IN RE INTEREST OF JOSSELYNN E.
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 JOSSELYNN E., A CHILD UNDER 18 YEARS OF AGE.
STATE OF NEBRASKA, APPELLEE AND CROSS-APPELLEE,
V.
EVELYN M., APPELLANT, AND ROBERT E., APPELLEE AND CROSS-APPELLANT.
Filed May 7, 2013. No. A-12-455.
Appeal from the County Court for Buffalo County: GERALD R. JORGENSEN, JR., Judge.
Affirmed.
Stephen G. Lowe for appellant.
Patrick M. Lee and Mandi J. Amy, Deputy Buffalo County Attorneys, for appellee State
of Nebraska.
Vikki S. Stamm, of Stamm & Associates, P.C., L.L.O., for appellee Robert E.
D. Brandon Brinegar, of Ross, Schroeder & George, L.L.C, guardian ad litem for
appellant.
SIEVERS, PIRTLE, and RIEDMANN, Judges.
PIRTLE, Judge.
I. INTRODUCTION
Evelyn M. appeals and Robert E. cross-appeals the decision of the county court for
Buffalo County terminating her parental rights to Josselynn E. on May 2, 2012. Because Evelyn
filed the initial notice of appeal, Robert is designated as an appellee asserting a cross-appeal
pursuant to Neb. Ct. R. App. P. § 2-101(C) (rev. 2012).
For the reasons that follow, we affirm the termination of the parental rights of Evelyn and
Robert.
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II. BACKGROUND
Josselynn was born prematurely in May 2010 and spent about 20 days in the hospital. A
voluntary case was opened with the mother, Evelyn, on July 8, because of concerns with regard
to Josselynn’s failure to thrive and Evelyn’s ability to parent and take care of Josselynn on her
own. Intensive services were set up including 24-hour care in the home to assist Evelyn with
feeding, changing diapers, safety for newborns, and basic hygiene.
Josselynn was removed from Evelyn’s care on August 18, 2010. An amended petition
was filed on September 21 after it was determined Robert was Josselynn’s father. Robert never
had physical custody of Josselynn, and she remained in foster care through the close of the
termination hearing on February 3, 2012.
Josselynn was adjudicated as a child as described in Neb. Rev. Stat. § 43-247(3)(a)
(Reissue 2008) on April 8, 2011. A dispositional hearing was held on June 2, and Robert
objected to the case plan and court report of the Department of Health and Human Services
(DHHS). Robert’s objections were overruled at a hearing on July 19, and the case plan and court
report was ordered implemented.
The State filed motions to terminate the parental rights of Robert and Evelyn on June 23,
2011. The motion alleged termination grounds as to Robert under Neb. Rev. Stat. § 43-292(2)
and (5) (Cum. Supp. 2012). The motion as to Evelyn alleged termination grounds under
§ 43-292(5) and (6).
The hearing on the State’s motion to terminate parental rights commenced on October 24,
2011, and was continued on a number of dates through February 3, 2012. The State filed
amended petitions on January 27, adding the ground that Josselynn had been in foster placement
for 15 or more months of the most recent 22 months.
Robert’s parental rights to a child were terminated in South Dakota in 2006. The child
was initially removed for “failure to thrive, abuse-neglect and also mentally unstable parenting.”
Robert testified that he relinquished his parental rights to another child in June 2009 because he
was mentally unstable and could not take care of the child. He testified that the child had tumors
and that he could not afford the medical care. Additionally, he admitted he was mentally unstable
and questioned his own ability to care for the child and take care of himself.
The State offered the opinions of two clinical psychologists, Drs. John Meidlinger and
Lee Kimzey, and three separate psychological evaluations demonstrating that Robert suffered
from mental illness and that his illness would continue for a prolonged, indeterminate period.
Robert was diagnosed as having a bipolar disorder and an antisocial personality disorder, which
included antisocial, compulsive, passive aggressive, sadistic, and histrionic components.
The psychologists testified that Robert has a low tolerance for frustration and that this
would risk his ability to parent a child on a daily basis. They also testified Robert has difficulty
controlling his anger, setting routines, and empathizing with the thoughts and needs of a child.
Robert admitted that when he does not take his medication, he is dangerous to himself and to
others. Despite this fact, Robert testified he was off of his medications at several times during the
pendency of this case. During these periods, he lost employment, incurred criminal charges, and
attended therapy only sporadically. Robert is a registered sex offender and served a jail sentence
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for sexual assault of a vulnerable adult in Custer County in 2009. Robert testified that while
incarcerated, he attempted suicide three times.
The State offered the opinion of Dr. Meidlinger, who diagnosed Evelyn with a
personality disorder with borderline and dependent traits and with intermittent explosive
disorder. He testified these were mental illnesses, and he opined that they would also continue
for a prolonged indeterminate time. He also testified Evelyn is borderline mentally handicapped.
The intermittent explosive disorder results in occasional lapses of control, resulting in
violence and irritability when she is not on medication. Additionally, Dr. Meidlinger testified
that Evelyn cannot protect herself, much less protect a child, and that her strong dependence
would likely result in a child raising her, rather than her raising the child. He testified Evelyn’s
ability to protect the child, provide structure, and make more complex decisions would be
increasingly difficult as the child gets older. He also testified that she can be taught regular
routines and schedules, but situations that fall outside of the routine would present difficulties for
her. He opined her prognosis for ever being able to successfully parent her child is poor.
Dr. Meidlinger had greater concerns that if Robert and Evelyn parented together, their
personalities would increase the volatility and their problems in parenting the child. During the
pendency of the case, Evelyn lived with Robert and Robert’s wife in an “8-by-37” foot long
“camper.” Evelyn was “kicked out” several times, and she turned down DHHS’ efforts to assist
her in obtaining her own home, despite being told the camper was not an appropriate place for
Josselynn to return to. Robert testified that Evelyn needs a roommate to supervise her taking her
medications and to watch out for her mental health. The evidence shows that Evelyn failed to
take her medications on at least two occasions during this case and that she attempted suicide.
Evelyn and Robert were given the opportunity to have 22 visits per month with
Josselynn. The court calculated a potential for 154 visits between April and October
2011--Robert attended 21 and Evelyn attended 41. From the beginning of the evidentiary hearing
in October 2011 until the end of the hearing in February 2012, there were 66 possible
visits--Robert attended 1 and Evelyn attended 23.
A visitation supervisor testified Robert was affectionate toward Josselynn, but was often
disengaged from her and at times was harsh and scolding. The supervisor expressed concerns
about Robert’s temperament. The supervisor testified Evelyn is sometimes oblivious to
Josselynn’s development and puts her in dangerous situations. He also was concerned that many
of Evelyn’s relationships are volatile and that she has a habit of putting her own interests first.
The record indicates Josselynn has been in out-of-home placement for at least 15 of the
most recent 22 months and that the case has not advanced past supervised visitation. Josselynn’s
pediatrician testified that Josselynn is behind in her development in motor skills and language
and that she needs caretakers who are consistent and willing to work with her on a regular basis.
The court concluded Robert and Evelyn are unable or unwilling to provide for Josselynn’s best
interests.
The court’s journal entry indicates that the statutory grounds for termination were met
under § 43-292(2), (5), and (7) as to Robert and under § 43-292(5), (6), and (7) as to Evelyn, and
the court found that termination of Evelyn’s and Robert’s parental rights was in Josselynn’s best
interests. The court’s ruling was filed on May 2, 2012.
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III. ASSIGNMENTS OF ERROR
Evelyn assigns five errors but does not argue with specificity, so we are limited on appeal
to a review for plain error. See, Neb. Ct. R. App. P. § 2-109(D)(1)(c) (rev. 2008); In re Interest
of Jamyia M., 281 Neb. 964, 800 N.W.2d 259 (2011).
Robert’s assignments of error on cross-appeal, consolidated and restated, are that the trial
court erred in adjudicating Josselynn as a child as described in § 43-247(3)(a), in finding the
State provided reasonable efforts to preserve the family under Neb. Rev. Stat. § 43-283.01 (Cum.
Supp. 2012), and in terminating his parental rights under § 43-292.
IV. STANDARD OF REVIEW
To be considered by an appellate court, an error must be both specifically assigned and
specifically argued in the brief of the party asserting the error. Turbines Ltd. v. Transupport, Inc.,
19 Neb. Ct. App. 485, 808 N.W.2d 643 (2012).
An appellate court, upon determining that a parent’s assignments of error did not comply
with requirements for an appellate brief may proceed as though the party has failed to file a brief
or, alternatively, may examine the proceedings for plain error. In re Interest of Jamyia M., supra.
Plain error is error plainly evident from the record and of such a nature that to leave it
uncorrected would result in damage to the integrity, reputation, or fairness of the judicial
process. Id.
In an appeal from an order terminating parental rights, an appellate court tries factual
questions de novo on the record. In re Interest of Sir Messiah T. et al., 279 Neb. 900, 782
N.W.2d 320 (2010).
Appellate review is independent of the juvenile court’s findings; however, when the
evidence is in conflict, an appellate court may 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 Hope
L. et al., 278 Neb. 869, 775 N.W.2d 384 (2009).
V. ANALYSIS
1. TERMINATION OF EVELYN’S PARENTAL RIGHTS
(a) Statutory Grounds for Termination
According to § 43-292
Evelyn assigns five errors on appeal, but she argues only generally that she was not given
adequate time to work toward reunification and that reasonable efforts were not provided to
preserve and reunify the family.
To be considered by an appellate court, an error must be specifically assigned and
specifically argued in the brief of the party asserting the error. Turbines Ltd., supra. Because
Evelyn’s brief does not comply with the requirements for an appellate brief, we limit our analysis
to a review for plain error.
The court found the statutory grounds for termination were met under § 43-292(5), (6),
and (7) with regard to Evelyn and that termination was in the child’s best interests. Evelyn
appears to dispute only the court’s finding with regard to § 43-292(6).
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The trial court found that Evelyn did not provide proper care for Josselynn while she had
physical custody and that Josselynn was removed from Evelyn’s care when she was
approximately 3 months old. Josselynn was in out-of-home placement for at least 15 of the most
recent 22 months at the time of termination, satisfying the requirement to find that the condition
listed in § 43-292(7) was met. Further, Evelyn did not dispute the court’s finding that she would
be unable to discharge parental responsibilities because of mental illness or mental deficiency
under § 43-292(5). Having determined that the court found adequate grounds for termination
under § 43-292(5) and (7), we need not address Evelyn’s assignment of error with regard to
subsection (6).
(b) Josselynn’s Best Interests
A review of the evidence shows that Evelyn did not take advantage of the services
provided and that she failed to make satisfactory progress. Prior to removal, Evelyn had a
support worker in the home to teach her appropriate parenting skills and requirements for
Josselynn’s safety.
After Josselynn’s removal, Evelyn had numerous opportunities for supervised visitation
with Josselynn, including transportation to and from the visits. She failed to take full advantage
of this time. DHHS offered therapy, family support, and pretreatment assessment
recommendations, as well as a safety plan, but Evelyn was unable to fully comply. The record
also shows that Evelyn suffers from mental deficiencies which would make it difficult for her to
provide the necessary parental care. She has failed to obtain and maintain adequate housing, and
she continued to live with Robert and his wife, despite warnings that this was not appropriate
housing for Josselynn to return to. She has not had a source of employment since 2007.
The record shows the court determined that one or more of the conditions for termination
under § 43-292 was present and that clear and convincing evidence existed to support a finding
that termination was in Josselynn’s best interests. We find no evidence of plain error and affirm
the trial court’s termination of Evelyn’s parental rights.
2. TERMINATION OF ROBERT’S PARENTAL RIGHTS
(a) Adjudication
Robert asserts the court erred in adjudicating Josselynn as a child as described in
§ 43-247(3)(a).
On April 8, 2011, the Buffalo County Court, sitting as a juvenile court, adjudicated
Josselynn as a child as described in § 43-247(3)(a). The court cited Robert’s awareness of
Evelyn’s shortcomings prior to removal and the fact that Robert continued to live with Evelyn
throughout the adjudication hearings. The court also stated:
While it is true, that there is no direct evidence of neglectful treatment by [Robert]
(insomuch as he has never had physical custody of Josselynn) the evidence shows that his
rights have been terminated to children involuntarily and by voluntary relinquishment. At
least part of the reason for that termination was mental health issues of [Robert] which
the evidence shows, at this time, have not been corrected or addressed.
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Neb. Rev. Stat. § 43-2,106.01(1) (Cum. Supp. 2012) provides that a final order or
judgment may be appealed to the Nebraska Court of Appeals in the same manner as an appeal
from the district court to the Court of Appeals. A final order is an “order affecting a substantial
right made in a special proceeding.” Neb. Rev. Stat. § 25-1902 (Reissue 2008). A juvenile court
proceeding is a “special proceeding” for appellate purposes. In re Interest of Ty M. & Devon M.,
265 Neb. 150, 655 N.W.2d 672 (2003). Both a judicial determination after an adjudication that
affects the substantial rights of parents to raise their children as well as a dispositional order
imposing a rehabilitation plan for parents are final, appealable orders. Id. An appeal of such an
order must be filed within 30 days of the final order. Neb. Rev. Stat. § 25-1912(1) (Reissue
2008).
The purpose of adjudication is to protect the interests of the child, while the parents’
rights are determined at the dispositional phase. Parents are not permitted to collaterally attack
the adjudication or the case plans that were adopted pursuant to the adjudication. In the absence
of a direct appeal from an adjudication order, a parent may not question the existence of facts
upon which the juvenile asserted jurisdiction. In re Interest of Ty M. & Devon M., supra; In re
Interest of Ramon N., 18 Neb. Ct. App. 574, 789 N.W.2d 272 (2010).
In this case, Robert asserts that the trial court should not have adjudicated Josselynn as a
child within § 43-247(3)(a) because she did not need the services of DHHS and that placement
should have been initially entrusted to Robert. However, Robert did not file any appeal in
connection with this case until his notice of appeal from the order terminating his parental rights
on May 31, 2012. Robert clearly did not appeal the adjudication of Josselynn within the 30-day
time period allowed under the Nebraska Revised Statutes, and accordingly, this assignment of
error is without merit.
(b) Reasonable Efforts and Relevance
of Prior Terminations
Robert assigns the State failed to show reasonable efforts were made to preserve and
reunify the family. He also argues the prior termination of his parental rights to a special needs
child in South Dakota is irrelevant to the termination of his parental rights in this situation.
The Nebraska Revised Statutes provide that reasonable efforts to preserve and reunify the
family are not required if a court of competent jurisdiction has determined that the parental rights
of the parent to a sibling of the juvenile have been terminated involuntarily. § 43-283.01(4)(c).
Whether Robert’s parental rights have been involuntarily terminated to a sibling of
Josselynn is clearly relevant in determining whether reasonable efforts are required under the
statutes. In this situation, reasonable efforts to preserve and reunify the family are not required,
as the court found, based on the evidence that Robert’s parental rights were terminated to a child
in South Dakota in 2006.
Further, reasonable efforts are required under the juvenile code only when termination is
sought under § 43-292(6). In re Interest of Hope L. et al., 278 Neb. 869, 775 N.W.2d 384 (2009).
In this case, termination of Robert’s parental rights was not sought under § 43-292(6), but was
initially sought under § 43-292(2) and (5), and the petition was later amended to include
subsection (7). It was not necessary for the State to make reasonable efforts to reunify this
family, and Robert’s assignment of error to the contrary is without merit.
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(c) Termination Under § 43-292
The court found by clear and convincing evidence that the statutory grounds for
termination were present. Under § 43-292, the court may terminate all parental rights between
parents or the mother of a juvenile born out of wedlock and such juvenile when the court finds
such action to be in the best interests of the juvenile and it appears by the evidence that one or
more of the listed conditions exist.
Robert does not dispute that the statutory grounds for termination existed under
§ 43-292(2), (5), and (7).
Section 43-292(5) provides grounds for termination of parental rights when “[t]he parents
are unable to discharge parental responsibilities because of mental illness or mental deficiency
and there are reasonable grounds to believe that such condition will continue for a prolonged
indeterminate period.” When a parent suffers from a mental deficiency, mental illness, or mental
disorder and cannot be rehabilitated within a reasonable period of time, the best interests of the
child require a final disposition be made without delay. In re Interest of Natasha H. & Sierra H.,
258 Neb. 131, 602 N.W.2d 439 (1999).
The evidence shows Robert has been diagnosed as having a bipolar disorder and an
antisocial personality disorder, which includes antisocial, compulsive, passive aggressive,
sadistic, and histrionic components. Robert testified regarding his history of mental health issues
beginning in childhood, and he admitted he will deal with mental illness for the rest of his life.
He admitted to abusing alcohol and said that when he was drinking, he was a “very violent
person, very hostile, very unstable, very mentally unstable person.” Robert also testified that he
attempted suicide multiple times and is a registered sex offender.
Robert submitted to psychological examinations, and the psychologists opined that
Robert’s prognosis for being able to successfully parent Josselynn, “or even refrain from sexual
abuse of her,” to be quite poor, urging “extreme caution” prior to returning her to Robert’s care.
The psychologists also noted Robert’s impulse control issues, as well as his difficulty making
good decisions about Josselynn. Dr. Meidlinger testified that Robert’s bipolar disorder and
antisocial personality disorder were both mental disorders or illnesses which could be expected
to last for a prolonged, indefinite period of time.
The State proved by clear and convincing evidence that Robert would be unable to
discharge his parental responsibilities because of mental illness or mental deficiency, and there
were reasonable grounds to believe that such condition would continue for a prolonged
indeterminate period. Additionally, a review of the evidence shows Josselynn was in an
out-of-home placement for 15 of the most recent 22 months, satisfying the requirements of
§ 43-292(7). Having determined that at least one of the statutory grounds for termination existed,
we must determine whether termination was in the best interests of the child.
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. Ct. 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.
A review of the evidence shows Robert has continued mental illness or deficiencies
which would make parenting extremely difficult. He requires medication and counseling to
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control these conditions, and he has historically had trouble adhering to his medication routine.
During periods when he is not taking medication, Robert has violated the law, lost his job, and
stopped attending counseling. He has attempted suicide and has not taken the appropriate steps to
manage his mental health, creating a safety concern for Josselynn.
Josselynn has been placed with a single foster family since she was removed in August
2010. During this time, Robert was given ample opportunities to visit Josselynn, but he failed to
take advantage of the majority of such opportunities. Robert had 154 possible visitations
scheduled between April and October 2011, and Robert attended only 21 visits. From the first
day of the hearing in October 2011, to the final day in February 2012, Robert had 66
opportunities to visit with Josselynn and saw her only once. When Robert did attend, visitation
workers noted he did not accomplish family support goals of appropriately soothing and calming
a toddler. Robert lived with his wife and Evelyn in a camper that was not approved by DHHS for
visitations, and Robert’s lack of progress meant visits were always fully supervised.
We find that termination of Robert’s parental rights is in the best interests of Josselynn
and affirm the decision of the trial court.
VI. CONCLUSION
We find there is clear and convincing evidence that one or more of the statutory
conditions exist for termination under § 43-292 and that termination of the parental rights of
Evelyn and Robert is in Josselynn’s best interests. We affirm the decisions of the trial court.
AFFIRMED.
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