In re Interest of Alec S. ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Decisions of the Nebraska Court of A ppeals
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IN RE INTEREST OF ALEC S.
Cite as 23 Neb. Ct. App. 792
In re I nterest of A lec S., a child
under 18 years of age.
State of Nebraska, appellee, v.
Brenda G., appellant.
___ N.W.2d ___
Filed March 15, 2016. No. A-15-658.
1. Parental Rights: Proof. Neb. Rev. Stat. § 43-292 (Cum. Supp. 2014)
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.
2. ____: ____. Neb. Rev. Stat. § 43-292(7) (Cum. Supp. 2014) 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.
3. Parental Rights: Evidence: Appeal and Error. 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 Neb. Rev. Stat. § 43-292 (Cum. Supp. 2014), the appellate court need
not further address the sufficiency of the evidence to support termination
under any other statutory ground.
4. Parental Rights. Parental rights may only be terminated if the court
finds that termination is in the child’s best interests.
5. ____. A termination of parental rights is a final and complete severance
of the child from the parent.
6. ____. Parental rights should be terminated only in the absence of any
reasonable alternative and as the last resort.
7. Parental Rights: Presumptions: Proof. There is a rebuttable presump-
tion that the best interests of a child are served by having a relationship
with his or her parent. Based on the idea that fit parents act in the best
interests of their children, this presumption is overcome only when the
State has proved that a parent is unfit.
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IN RE INTEREST OF ALEC S.
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8. Parental Rights: Proof. When termination is sought under Neb. Rev.
Stat. § 43-292(7) (Cum. Supp. 2014), the element of best interests to
support the termination of parental rights requires the State to prove by
clear and convincing evidence that the parent is unfit.
9. Parental Rights: Words and Phrases. Parental unfitness means a per-
sonal deficiency or incapacity which has prevented, or probably will
prevent, performance of a reasonable parental obligation in child rear-
ing and which caused, or probably will result in, detriment to a child’s
well-being.
10. Parental Rights: Parent and Child. The law does not require perfec-
tion of a parent. Instead, a court should look for the parent’s continued
improvement in parenting skills and a beneficial relationship between
parent and child.
Appeal from the Separate Juvenile Court of Douglas County:
Christopher K elly, Judge. Reversed and remanded for further
proceedings.
Matthew R. Kahler, of Finley & Kahler Law Firm, P.C.,
L.L.O., for appellant.
Donald W. Kleine, Douglas County Attorney, Anthony
Hernandez, and Jocelyn Brasher, Senior Certified Law Student,
for appellee.
Irwin, Pirtle and R iedmann, Judges.
R iedmann, Judge.
INTRODUCTION
Brenda G. appeals from the order of the separate juve-
nile court of Douglas County which terminated her parental
rights to her minor child, Alec S. We conclude that the State
failed to adduce clear and convincing evidence that terminating
Brenda’s parental rights is in Alec’s best interests. We therefore
reverse, and remand for further proceedings.
BACKGROUND
The State filed a petition on September 13, 2013, alleging
that Alec, who was 8 years old at the time, was a child within
the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2008)
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due to the faults or habits of Brenda. The petition asserted that
Brenda had been diagnosed with posttraumatic stress disorder,
depression, and anxiety and that her medical providers recom-
mended inpatient treatment. As of September 13, Brenda had
failed to check herself into “the in-patient program recom-
mended by Dr. Patera.” The petition alleged that Brenda was
unable to provide proper parental care, support, or supervision
for Alec and that he was at risk for harm. An amended petition
filed 4 days later added a claim that Brenda’s use of alcohol
and/or controlled substances placed Alec at risk for harm. Alec
was removed from Brenda’s care and placed in the temporary
custody of the Nebraska Department of Health and Human
Services. He was adjudicated pursuant to § 43-247(3)(a) in
January 2014.
In a disposition and permanency plan order dated March
18, 2014, Brenda was ordered to participate in a “Level 1
outpatient chemical dependency therapy program,” submit to
random drug and alcohol testing, participate in “programs at
Community Alliance,” attend family therapy with Alec, attend
individual therapy, participate in psychiatric care, and attend
supervised visitation. A September 16 review order continued
the same requirements for Brenda, except she was no longer
ordered to participate in a chemical dependency therapy pro-
gram. The requirements contained in an order dated January
20, 2015, mirrored those in the September 2014 order.
On February 6, 2015, the State filed a motion to terminate
Brenda’s parental rights to Alec. The State sought termination
under Neb. Rev. Stat. § 43-292(2), (6), and (7) (Cum. Supp.
2014). The State also alleged that termination of Brenda’s
parental rights was in the best interests of Alec. A termination
hearing was held on June 12.
The State presented the testimony of four witnesses. Randy
LaGrone is a clinical psychologist who Brenda began seeing
for outpatient treatment in January 2013, before this case was
initiated. She attended six sessions over the following year, but
missed or canceled numerous other sessions due to “ongoing
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major stressors in her life that disrupted compliance.” LaGrone
diagnosed Brenda with posttraumatic stress disorder, a panic
disorder, and depression. He testified that she had experi-
enced significant trauma in her life, including the death of her
husband, his business partner, and her mother, as well as the
assault of her mentally ill adult son. LaGrone testified that
Brenda’s conditions were very treatable and conditions with
which people can make substantial progress. The biggest goal
for Brenda was to establish consistency in treatment because
structure and routine are important for those who have experi-
enced trauma.
The State also presented the testimony of two mental health
therapists, Mary Atwood and Jennifer Ratliff. Atwood saw
Alec in September 2013, and he was diagnosed with adjust-
ment disorder with mixed emotions. A treatment plan was
developed for “working with [Alec’s] emotions,” but he said
that he had already had trauma therapy and did not feel that he
needed additional therapy. Alec only had one more individual
session with Atwood, but Alec and Brenda saw Atwood for
three sessions of family therapy beginning in March 2014. The
goal was to enhance communication between Alec and Brenda
because he did not feel that he could speak honestly with her.
However, Brenda spent the session time “fussing” over Alec,
asking him questions such as whether he had eaten and how
his foster parents were treating him, so no progress was made
during the sessions.
Ratliff began providing individual therapy to Alec in January
2015. She likewise diagnosed him with adjustment disorder,
unspecified, and also identified features of attention deficit
disorder. The goals for Alec’s therapy were to identify coping
skills, conflict resolution skills, and anger management skills;
identify and express emotions; and address past trauma. Ratliff
said he has made “some” progress on his goals.
In March 2015, Alec and Brenda began seeing Ratliff for
family therapy. One of the goals for family therapy was to
establish and improve communication, especially identifying
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and expressing emotions and feelings. Similar to Atwood,
Ratliff testified that during the early sessions, Brenda seemed
preoccupied with how Alec was doing—whether he was eating,
attending school, and bathing—and the pending case. They did,
however, make progress at two later sessions in May, because
Brenda did not talk about the case and was able to engage in
therapeutic dialog with Alec.
Ratliff testified that there is a bond and attachment between
Alec and Brenda. She said that Alec needs an environment
where his physical and emotional needs are met consistently
and any ongoing mental health services are provided to him,
including psychiatric care for medication management. He
also needs an environment where there are consistent rules and
nonphysical discipline. In addition, according to Ratliff, Alec
needs a structured and stable environment because he has fea-
tures of attention deficit disorder.
If Brenda’s parental rights were to be terminated, Ratliff
would recommend that Brenda’s relationship with Alec con-
tinue because of their established bond and attachment. Ratliff
testified that she offered to facilitate a family therapy session
with Alec’s foster parents and Brenda to create a plan to main-
tain the relationship because she believes it would be detri-
mental to Alec’s well-being if his relationship with Brenda was
severed. Ratliff opined that it is in Alec’s best interests that he
maintain a relationship with Brenda.
The State’s final witness was the caseworker who had taken
over the case in February 2015, just 4 months prior to the ter-
mination hearing. She observed that Brenda had been ordered
to participate in various services such as random drug and
alcohol testing, therapy, and visitation, but her participation
had been inconsistent. The caseworker was concerned because
Brenda had made very little progress in the case, which had
been pending for 21 months at the time of the termination
hearing. She was also concerned because as late as February
2015, Brenda was still unable to display an understanding of
why she needed to participate in the required services. The
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IN RE INTEREST OF ALEC S.
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caseworker opined that termination of Brenda’s parental rights
was in Alec’s best interests due to the lack of progress in the
case. She acknowledged Ratliff’s recommendation that the
relationship between Alec and Brenda continue and indicated
that she would support the recommendation if the foster family
was willing to allow the relationship to continue.
The juvenile court entered an order dated June 15, 2015.
It found that although Brenda’s performance in certain areas
improved following the filing of the motion to terminate, she
had failed to participate in services to the degree necessary to
move toward reunification. Thus, the court determined that the
State presented sufficient evidence to satisfy termination under
§ 43-292(2), (6), and (7). The court also determined that clear
and convincing evidence supported a finding that termination
of Brenda’s parental rights was in Alec’s best interests. Brenda
timely appeals to this court.
ASSIGNMENTS OF ERROR
Brenda assigns that the juvenile court erred in finding that
(1) the State proved statutory grounds for termination by clear
and convincing evidence and (2) the termination of her parental
rights is in Alec’s best interests.
STANDARD OF REVIEW
An appellate court reviews juvenile cases de novo on the
record and reaches its conclusions independently of the juve-
nile court’s findings. In re Interest of Nicole M., 287 Neb. 685,
844 N.W.2d 65 (2014).
ANALYSIS
Grounds for Termination.
[1] The bases for termination of parental rights in Nebraska
are codified in § 43-292. 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. In re Interest of
Sir Messiah T. et al., 279 Neb. 900, 782 N.W.2d 320 (2010).
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IN RE INTEREST OF ALEC S.
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In its order terminating Brenda’s parental rights to Alec,
the juvenile court found that the State had presented clear and
convincing evidence to satisfy § 43-292(2), (6), and (7), which
provides in relevant part:
The court may terminate all parental rights . . . 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 following conditions exist:
....
(2) 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;
....
(6) Following a determination that the juvenile is one
as described in subdivision (3)(a) of section 43-247,
reasonable efforts to preserve and reunify the family if
required under section 43-283.01, under the direction of
the court, have failed to correct the conditions leading to
the determination; [and]
(7) The juvenile has been in an out-of-home placement
for fifteen or more months of the most recent twenty-
two months.
[2] Brenda concedes that Alec has been in an out-of-home
placement for 15 or more months of the most recent 22
months. Alec was removed from Brenda’s home on or about
September 13, 2013. At the time the motion to terminate
parental rights was filed on February 6, 2015, Alec had been
in an out-of-home placement for almost 17 months. At the
time the termination hearing began on June 12, Alec had been
in an out-of-home placement for approximately 21 months.
Despite Brenda’s argument, § 43-292(7) operates mechani-
cally 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. See In re Interest of Aaron D., 269
Neb. 249, 691 N.W.2d 164 (2005). Our de novo review of the
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record clearly and convincingly shows that grounds for ter-
mination of Brenda’s parental rights under § 43-292(7) were
proved by sufficient evidence.
[3] If an appellate court determines that the lower court
correctly found that termination of parental rights is appropri-
ate 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. Ct. App. 718,
791 N.W.2d 765 (2010). Therefore, this court need not review
termination under § 43-292(2) or (6). Once a statutory basis
for termination has been proved, the next inquiry is whether
termination is in the child’s best interests.
Alec’s Best Interests.
[4-6] Although we find that statutory grounds for termina-
tion exist, parental rights may only be terminated if the court
finds that termination is in the child’s best interests. § 43-292.
A termination of parental rights is a final and complete sever-
ance of the child from the parent. In re Interest of Crystal C.,
12 Neb. Ct. App. 458, 676 N.W.2d 378 (2004). Therefore, with
such severe and final consequences, parental rights should be
terminated only in the absence of any reasonable alternative
and as the last resort. Id.
[7] There is a rebuttable presumption that the best interests
of a child are served by having a relationship with his or her
parent. In re Interest of Nicole M., 287 Neb. 685, 844 N.W.2d
65 (2014). Based on the idea that fit parents act in the best
interests of their children, this presumption is overcome only
when the State has proved that a parent is unfit. Id.
[8,9] When termination is sought under § 43-292(7), the
element of best interests to support the termination of parental
rights requires the State to prove by clear and convincing evi-
dence that the parent is unfit. In re Interest of Xavier H., 274
Neb. 331, 740 N.W.2d 13 (2007). Parental unfitness means
a personal deficiency or incapacity which has prevented, or
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probably will prevent, performance of a reasonable parental
obligation in child rearing and which caused, or probably will
result in, detriment to a child’s well-being. In re Interest of
Nicole M., supra.
In the present case, the State presented only four witnesses,
including three mental health professionals and the caseworker
who was assigned to the case at the time the motion to termi-
nate Brenda’s parental rights was filed. We find that the evi-
dence in this case is similar to that presented in In re Interest
of Aaron D., 269 Neb. 249, 691 N.W.2d 164 (2005). In In re
Interest of Aaron D., the State presented the testimony of only
one witness, the caseworker. On appeal, the Nebraska Supreme
Court acknowledged that the caseworker for a family is likely
to be an important witness, but cautioned that a caseworker
should not be used as a proxy for all of the other witnesses
whose expertise and testimony would have been helpful, and
perhaps essential, in determining what was in the child’s best
interests. The Supreme Court also recognized that while some
of the caseworker’s testimony was based on her own observa-
tions, she largely testified based on her review of the records
and reports generated by others who observed the parties.
Reiterating that the evidence establishing that termination is
in the child’s best interests must be clear and convincing,
the Supreme Court found that “the evidence in this record is,
simply stated, neither clear nor convincing.” Id. at 263, 691
N.W.2d at 175.
Similarly, the caseworker in the present case testified in
large part based on her review of the records from others such
as visitation supervisors and medical professionals, the vast
majority of which records were not offered into evidence at
the termination hearing. The case began because Brenda’s
medical providers, specifically a Dr. Patera, recommended that
she undergo inpatient mental health treatment. There was no
evidence received from Dr. Patera, either by way of testimony
or medical records, as to the basis for Brenda’s diagnoses or
why he recommended inpatient treatment. Nor was there any
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evidence presented as to how Brenda’s mental health diagno-
ses and treatment needs affected her ability to safely parent
Alec. There are some references in the record to Brenda’s
seeing a psychiatrist and taking prescription medication, but
the State did not present any evidence from the psychiatrist
who manages her prescriptions or offer any medical records
detailing the need for medication or Brenda’s prognosis. In
sum, although LaGrone, a clinical psychologist, testified as
to the multiple stressors in Brenda’s life, there was very little
evidence presented regarding what is continually and vaguely
referred to as Brenda’s “mental health needs” upon which the
removal and adjudication were primarily based.
Further, the amended petition for adjudication references
Brenda’s use of alcohol and/or controlled substances, and she
has been required to undergo random testing. There is no evi-
dence in the record, however, of why. There was no evidence
establishing that Brenda has an alcohol or drug addiction or
that her use of drugs impacted her ability to parent Alec. We
note that after September 2014, the juvenile court no l­onger
required Brenda to participate in a chemical dependency pro-
gram. From our review of the record, it appears that any treat-
ment recommendations for Brenda were to address mental
health issues, not substance abuse issues.
More important, however, the record lacks substantive tes-
timony from those close to Alec such as visitation supervisors,
his foster parents, his doctors, or his teachers. As iterated in
In re Interest of Aaron D., 269 Neb. 249, 691 N.W.2d 164
(2005), the primary consideration in determining whether to
terminate parental rights is the best interests of the child, and
thus, a juvenile court should have at its disposal the informa-
tion necessary to make the determination regarding the minor
child’s best interests. Yet here, similar to In re Interest of
Aaron D., the evidence focused on Brenda’s personal short-
comings, as opposed to placing the focus on Alec, and there
was little evidence presented from any of the people most
able to testify as to Alec’s condition, circumstances, and best
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interests. Atwood, a mental health therapist, testified she only
saw Alec on two occasions for individual therapy and three
occasions for family therapy. We gather from the record that
the purpose of her testimony was to show Brenda’s inconsist­
ency in attending family therapy, which Atwood primarily
attributed to transportation issues, and her perception of a
disconnect between Alec and Brenda, although that perception
is contrary to the visitation records and Ratliff’s testimony
evidencing a bond between the two.
Although Ratliff, who provides current therapy for Alec
and Brenda, testified, we have no information as to how Alec
does in school, whether he experiences behaviors in his foster
home, whether he is physically healthy, or how he responds
after visits with Brenda. Ratliff testified generally that in
therapy, Alec is working on coping skills, handling his emo-
tions, and addressing past trauma, but there is no explanation
as to whether Alec’s shortcomings stem from Brenda’s parent-
ing or from general trauma such as the death of his stepfather.
The record is largely devoid of any explanation of the nature
and extent of Alec’s physical, mental, or emotional condition.
Ratliff referenced psychiatric care for medication manage-
ment for Alec, but the record lacks any evidence indicating
that Alec is currently taking medication or should be taking
medication, nor was there any evidence that Alec is seeing
a psychiatric provider who is prescribing or could prescribe
medication for him.
Significantly, Ratliff, the witness who had the most personal
contact with Alec, recommended that the relationship between
Alec and Brenda continue even if Brenda’s parental rights
were terminated. Not only was that her recommendation, but
she opined that it would be in Alec’s best interests to maintain
a relationship with Brenda and that it would be “detrimental to
[his] well-being” to sever that relationship.
Despite this, we recognize that the State’s evidence raises
questions about Brenda’s ability to parent Alec. The fact
that Brenda has been diagnosed with several mental health
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disorders and has failed to consistently attend treatment for
those conditions is concerning. It is also concerning that as of
February 2015, Brenda still lacked an understanding as to why
the case was ongoing and why her participation in the serv­
ices offered to her was necessary and best for Alec. Between
February and June 2015, Brenda did make progress, however.
The caseworker acknowledged that in that timeframe, Brenda
found stable and appropriate housing for herself, consistently
attended visitation, made progress during family therapy ses-
sions with Alec, and improved her communication with the
caseworker, including signing release forms to allow access to
her medical records. Additionally, the more recent visitation
notes no longer report any inappropriate questions from Brenda
inquiring into the case or treatment by Alec’s foster parents nor
are there mentions of Brenda yelling or her anger escalating
during visits.
We acknowledge that the caseworker opined that terminat-
ing Brenda’s parental rights would be in Alec’s best interests
based on the length of the case and the absence of progress
toward the case plan goals. However, the Nebraska Supreme
Court has noted the limits of caseworker testimony, given
that caseworkers spend relatively little time in the home
with the families and often serve as proxies for the visitation
workers and therapists who have closer family contact. See,
e.g., In re Interest of Aaron D., 269 Neb. 249, 691 N.W.2d
164 (2005).
[10] We also keep in mind that the law does not require
perfection of a parent. See id. Instead, we should look for
the parent’s continued improvement in parenting skills and a
beneficial relationship between parent and child. Id. Brenda
has shown recent improvement in addressing her goals, par-
ticularly between February and June 2015, but progress was
reported in June 2014 as well. A visitation note from that
month indicated that Brenda had been working on staying
consistent with the services offered through different agencies
and workers and had been doing better. A visitation report
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from the following month recommended that visits should
be increased.
The record is also replete with references to the bond
and loving relationship between Alec and Brenda. The visita-
tion notes include comments such as, “Brenda is very loving
towards Alec. She is very attentive during visits and always
gives him her full attention. In return Alec is very affectionate
and provides lots of information for her so they never run out
of things to talk about.” A note from June 2014 reads, “Brenda
loves Alec very much, and it shows at every visit.” A July 2014
visitation note reported, “Brenda shows lots of love and affec-
tion to Alec who shows it back. Both hope to have more visits
plus visits at home.”
Based on our de novo review of the record, we conclude that
the juvenile court erred in finding that the State established,
by clear and convincing evidence, that termination of Brenda’s
parental rights was in Alec’s best interests.
CONCLUSION
Because the evidence does not show clearly and convinc-
ingly that termination of Brenda’s parental rights is in the best
interests of Alec at this time, we reverse, and remand for fur-
ther proceedings.
R eversed and remanded for
further proceedings.