In re Interest of J'Endlessly F. , 920 N.W.2d 858 ( 2018 )

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IN RE INTEREST OF J’ENDLESSLY F. ET AL.
Cite as 26 Neb. App. 497In re I nterest ofJ’Endlessly F. et al.,
children under 18 years of age.
State of Nebraska, appellee,
v. Julia M., appellant.
___ N.W.2d ___
Filed October 30, 2018. No. A-17-1156.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juve-
nile cases de novo on the record and reaches a conclusion independently
of the juvenile court’s findings.
2. Constitutional Law: Due Process. The determination of whether the
procedures afforded an individual comport with constitutional require-
ments for procedural due process presents a question of law.
3. Appeal and Error. On a question of law, an appellate court reaches a
conclusion independently of the court below.
4. Parental Rights: Proof. Under Neb. Rev. Stat. § 43-292 (Reissue
2016), in order to terminate parental rights, the State must prove, by
clear and convincing evidence, that one or more of the statutory grounds
listed in this section have been satisfied and that termination is in the
child’s best interests.
5. Constitutional Law: Parental Rights. The proper starting point for
legal analysis when the State involves itself in family relations is always
the fundamental constitutional rights of a parent.
6. Parental Rights: Proof. Before the State attempts to force a breakup of
a natural family, over the objections of the parents and their children, the
State must prove parental unfitness.
7. ____: ____. A court may not properly deprive a parent of the custody of
his or her minor child unless the State affirmatively establishes that such
parent is unfit to perform the duties imposed by the relationship, or has
forfeited that right.
8. ____: ____. It is always the State’s burden to prove by clear and con-
vincing evidence that the parent is unfit and that the child’s best interests
are served by his or her continued removal from parental custody.
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IN RE INTEREST OF J’ENDLESSLY F. ET AL.
Cite as 26 Neb. App. 4979. Parental Rights: Statutes: Words and Phrases. The term “unfitness”
is not expressly used in Neb. Rev. Stat. § 43-292 (Reissue 2016), but
the concept is generally encompassed by the fault and neglect subsec-
tions of that statute, and also through a determination of the child’s
best interests.
10. Parental Rights: Evidence: Proof. Generally, when termination of
parental rights is sought, the evidence adduced to prove the statutory
grounds for termination will also be highly relevant to the best inter-
ests of the juvenile, as it would show abandonment, neglect, unfitness,
or abuse.
11. 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.
12. Parental Rights. Although incarceration alone cannot be the sole basis
for terminating parental rights, it is a factor to be considered.
13. ____. Children cannot, and should not, be suspended in foster care or be
made to await uncertain parental maturity.
14. Constitutional Law: Due Process. Procedural due process includes
notice to the person whose right is affected by the proceeding; reason-
able opportunity to refute or defend against the charge or accusation;
reasonable opportunity to confront and cross-examine adverse witnesses
and present evidence on the charge or accusation; representation by
counsel, when such representation is required by the Constitution or
statutes; and a hearing before an impartial decisionmaker.
Appeal from the Separate Juvenile Court of Douglas County:
Douglas F. Johnson, Judge. Affirmed.
Judith A. Wells, of Law Office of Judith A. Wells, for
appellant.
Donald W. Kleine, Douglas County Attorney, Jennifer C.
Clark, Natalie J. Killion, and Joseph Fabian, Senior Certified
Law Student, for appellee.
Pirtle, R iedmann, and Welch, Judges.
R iedmann, Judge.
INTRODUCTION
Julia M. appeals the order of the separate juvenile court
of Douglas County which terminated her parental rights to
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IN RE INTEREST OF J’ENDLESSLY F. ET AL.
Cite as 26 Neb. App. 497her minor children. Upon our de novo review of the record,
we affirm.
BACKGROUND
Julia is the mother of four children: J’Loyal P., born in
September 2008; J’Ahnesti M., born in August 2009;
J’Endlessly F., born in November 2014; and J’Legacy S., born
in November 2016. Some of the children’s fathers were made
part of the case before the juvenile court, but because none
of them have appealed their respective outcomes, we do not
address them further.
The family came to the attention of the Nebraska Department
of Health and Human Services on January 11, 2016, when
police were dispatched to a hospital to investigate potential
child abuse. The responding officers learned that Julia had
asked her sister, Jamie M., to pick up J’Endlessly from the
child’s paternal grandmother, and Jamie later observed an
injury to the child’s groin area that resembled a burn and took
her to the hospital. The officers discovered that Julia had given
temporary custody of J’Endlessly to her other sister, Virginia
M., at some point in 2015, but became upset with Virginia,
picked up J’Endlessly in September, and did not contact any-
one until asking Jamie to pick up the child the previous day.
The officers also learned that Julia left J’Loyal and J’Ahnesti
in Jamie’s custody in September 2015. Jamie and Virginia
informed the officers that Julia was addicted to methamphet-
amine, and they were concerned for the children’s safety if
they were returned to Julia’s care.
The officers observed the injury to J’Endlessly’s groin that
appeared to be a burn and also observed bruising to her lower
back area and the back of both of her shoulders. Doctors at the
hospital also discovered that she had a healed fracture to her
“left pinky finger.” All three children were removed from Julia
at that time and placed in foster care with Virginia.
The following day, the State filed a petition alleging that
J’Loyal, J’Ahnesti, and J’Endlessly were children within the
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Cite as 26 Neb. App. 497meaning of Neb. Rev. Stat. § 43-247(3)(a) (Supp. 2015) due to
the faults or habits of Julia. Specifically, the petition alleged that
J’Endlessly had been observed with an unaccounted for injury;
Julia used “drugs, alcohol, and/or controlled substances”; Julia
failed to provide proper care, support, and supervision for the
children; Julia failed to provide safe, stable, and appropriate
housing for the children; and due to the foregoing allegations,
the children were at risk of harm.
Counsel was appointed for Julia on January 15, 2016, but
counsel moved to withdraw in March due to a conflict of
interest. The juvenile court permitted her to withdraw and
appointed substitute counsel for Julia. The State was unable
to locate Julia to personally serve her with the petition and
notice of hearing, so she was ultimately served by publication
in March.
On April 20, 2016, the juvenile court held a “first appear-
ance, protective custody, adjudication, and disposition hearing”
as to Julia. Julia did not attend. At the outset of the hearing,
Julia’s substitute counsel indicated to the court that neither she
nor the original counsel appointed to represent Julia had ever
spoken with Julia, and Julia had never appeared in court. Thus,
based on the lack of communication with Julia, the court dis-
charged counsel and excused her from the hearing.
In support of the adjudication petition, the State offered
into evidence proof of service by publication and the affi-
davit for removal of the children from January 11, 2016.
The caseworker also explained that she had not spoken with
Julia in approximately 2 months, and Julia had had only
one visit with the children. Based on a preponderance of
the evidence presented by the State, the court adjudicated
the children under § 43-247(3)(a). At that time, the juvenile
court also ordered that Julia refrain from alcohol and con-
trolled substances; undergo random drug testing; participate in
Alcoholics Anonymous and/or Narcotics Anonymous, provide
proof of attendance, and obtain a sponsor; undergo an initial
diagnostic interview and chemical dependency evaluation;
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and appropriate housing; and participate in visitation with
the children.
Although not transcribed and included in the record before
us, a hearing was held on May 17, 2016, at which Julia did not
appear. The evidence established that there had been no contact
with Julia and that she had not visited the children or partici-
pated in services; thus, the caseworker recommended that no
further reasonable efforts be required to work toward reuni-
fying the children with Julia. In a written order, the juvenile
court ordered that no further reasonable effort services were
required with respect to Julia.
A review hearing was held on July 25, 2016, and Julia,
who was incarcerated at the time, personally appeared. The
juvenile court adopted a concurrent permanency objective
of adoption at that time and reappointed counsel for Julia.
Julia was represented by counsel throughout the remainder of
the case.
After J’Legacy was born, the State filed a second amended
third supplemental petition alleging that she was a child within
the meaning of § 43-247(3)(a) (Reissue 2016) as to Julia due
to the ongoing case with the older children and Julia’s lack of
participation in services designed to rehabilitate her. Julia was
served with the petition by publication in March 2017. An adju-
dication hearing with respect to J’Legacy was held on April 21;
Julia did not appear. In its order, the juvenile court found that
Julia’s whereabouts were unknown and the caseworker had
been unable to contact her and that Julia had offered no support
for J’Legacy and had not seen her since December 2016. The
court therefore found the allegations in the second amended
third supplemental petition to be true and adjudicated J’Legacy
under § 43-247(3)(a).
On May 15, 2017, the State filed a motion to terminate
Julia’s parental rights to J’Loyal, J’Ahnesti, and J’Endlessly
under Neb. Rev. Stat. § 43-292(1), (2), (6), (7), and (9)
(Reissue 2016). The State additionally moved to terminate
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Cite as 26 Neb. App. 497Julia’s parental rights to J’Legacy pursuant to § 43-292(2) and
(6). The motion also alleged that terminating Julia’s parental
rights was in the children’s best interests. Julia was served with
the motion by publication in July 2017.
A hearing on the termination motion was held on September
29, 2017. As of that time, the three older children had been
in foster care since January 2016, and J’Legacy had been
in foster care since December 2016. The caseworker was
assigned to the case when it began in January 2016 but
was unable to make contact with Julia until April. At that
time, Julia agreed to participate in visitation, but through-
out the entirety of the case, she attended only three visits
with the three older children and five visits with J’Legacy,
all of which occurred in December 2016. She was offered
three visits in January 2017 but canceled all of them. As of
September 2017, she had not seen any of the children since the
prior December.
At the time of the termination hearing, J’Loyal was in third
grade. He was continuing to struggle with some “behavioral
concerns” and had been “caught stealing fireworks over the
[F]ourth of July, attempting to feed the foster parent’s dog
chocolate stating that he wanted to kill the puppy, and [throw-
ing] sand in another peer’s face during a baseball game.”
He was diagnosed with “Other Specified Disruptive Impulse
Control and Conduct Disorder” and was continuing to partici-
pate in therapy. Despite all of this, he gets along well with his
sisters and was doing well in school with no concerns about
his grades.
J’Ahnesti was in second grade, and there were no concerns
about her grades or ability to do her schoolwork. Her negative
behaviors had recently decreased, and she had been observed
walking away from her brother when he began to act out and
helping her foster mother with laundry and cooking, and her
overall listening had improved. She has a good bond with her
siblings. She has been diagnosed with “Adjustment Disorder
with Mixed Disturbance of Emotions and Conduct” and was
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bursts and coping skills.
J’Endlessly was almost 3 years old and had no behavioral or
developmental concerns. She was walking, running, climbing,
and holding conversations, and she was fully toilet trained. She
has a bond with her foster mother and siblings.
J’Legacy was 9 months old and placed in a separate foster
home. Other than having a milk protein intolerance, she was
healthy and developmentally on track.
Throughout the duration of the case, the Department of
Health and Human Services had difficulty setting up any
of the court-ordered services for Julia because it never had
valid contact information for her and was never able to regu-
larly communicate with her. She never completed any of
the required services and made no progress during the case.
Between January and September 2017, the caseworker had
contact with Julia on just one occasion. In addition, Julia was
incarcerated several times throughout the pendency of the
case. Although the dates of Julia’s incarcerations are somewhat
unclear from the record, we understand that she was incarcer-
ated from June through December 2016 and was reincarcerated
in July 2017 and remained so at the time of the termination
hearing in September.
Julia testified in her own behalf at the hearing and admitted
that she had previously served an 8- to 12-year prison term.
Despite this, she asserted that she had attempted to rehabilitate
herself by completing multiple parenting classes and other
courses, as well as “complet[ing her] GED.” The caseworker,
however, opined that terminating Julia’s parental rights was in
the best interests of the children because of the history of the
case, the lack of the children’s relationship with Julia, and their
need for permanency, which did not appear to be an option
with Julia.
In a subsequent written order, the juvenile court found all
of the allegations of the termination motion were true by clear
and convincing evidence and that it was in the best interests
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fore terminated Julia’s parental rights to all four children.
Julia appeals.
ASSIGNMENTS OF ERROR
Julia assigns, restated, that the juvenile court erred in ter-
minating her parental rights because the State failed to adduce
clear and convincing evidence that termination was in the
children’s best interests and that her right to due process was
violated when she was denied her right to counsel.
STANDARD OF REVIEW
[1] An appellate court reviews juvenile cases de novo on the
record and reaches a conclusion independently of the juvenile
court’s findings. In re Interest of Carmelo G., 296 Neb. 805,
896 N.W.2d 902 (2017).
[2,3] The determination of whether the procedures afforded
an individual comport with constitutional requirements for
procedural due process presents a question of law. Id. On a
question of law, an appellate court reaches a conclusion inde-
pendently of the court below. Id.ANALYSIS
Termination of Parental Rights.
[4-6] Julia argues that the juvenile court erred in finding
that terminating her parental rights was in the children’s best
interests. Under § 43-292, in order to terminate parental rights,
the State must prove, by clear and convincing evidence, that
one or more of the statutory grounds listed in this section
have been satisfied and that termination is in the child’s best
interests. In re Interest of Hope L. et al., 278 Neb. 869, 775
N.W.2d 384 (2009). The proper starting point for legal analysis
when the State involves itself in family relations is always the
fundamental constitutional rights of a parent. Id. The inter-
est of parents in the care, custody, and control of their chil-
dren is perhaps the oldest of the fundamental liberty interests
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the State attempts to force a breakup of a natural family, over
the objections of the parents and their children, the State must
prove parental unfitness. Id.[7-9] A court may not properly deprive a parent of the cus-
tody of his or her minor child unless the State affirmatively
establishes that such parent is unfit to perform the duties
imposed by the relationship, or has forfeited that right. Id. It
is always the State’s burden to prove by clear and convinc-
ing evidence that the parent is unfit and that the child’s best
interests are served by his or her continued removal from
parental custody. Id. The term “unfitness” is not expressly used
in § 43-292, but the concept is generally encompassed by the
fault and neglect subsections of that statute, and also through
a determination of the child’s best interests. In re Interest of
Hope L. et al., supra.
In the present case, the juvenile court found sufficient
evidence to support terminating Julia’s parental rights under
§ 43-292(1), (2), (6), (7), and (9). In relevant part, § 43-292
provides:
The court may terminate all parental rights between
the parents or the mother of a juvenile born out of wed-
lock 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 following condi-
tions exist:
(1) The parents have abandoned the juvenile for six
months or more immediately prior to the filing of the
petition;
(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,
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required under section 43-283.01, under the direction of
the court, have failed to correct the conditions leading to
the determination;
(7) The juvenile has been in an out-of-home placement
for fifteen or more months of the most recent twenty-two
months;
....
(9) The parent of the juvenile has subjected the juve-
nile or another minor child to aggravated circumstances,
including, but not limited to, abandonment, torture,
chronic abuse, or sexual abuse.
Subsections (1) through (6) of § 43-292 have been referred
to as the fault and neglect subsections. See In re Interest of
Nicole M., 287 Neb. 685, 844 N.W.2d 65 (2014). Julia does
not challenge the juvenile court’s findings with respect to
statutory grounds to support termination. Upon our de novo
review of the record, we conclude that the State established
by clear and convincing evidence the statutory grounds for
termination along with Julia’s unfitness. We therefore turn to
Julia’s argument that the evidence was insufficient to prove
that terminating her parental rights was in the best interests of
the children.
[10,11] Generally, when termination of parental rights is
sought, the evidence adduced to prove the statutory grounds for
termination will also be highly relevant to the best interests of
the juvenile, as it would show abandonment, neglect, unfitness,
or abuse. See In re Interest of Joseph S. et al., 291 Neb. 953,
870 N.W.2d 141 (2015). 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. Id.During the present case, Julia showed no improvement, and
it was difficult to see a beneficial relationship between her
and the children when she attended so few visits with them.
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Cite as 26 Neb. App. 497Throughout the entirety of the case, Julia never maintained
consistent contact with anyone or participated in any services.
There were concerns that she was using methamphetamine, but
those concerns could never be addressed because she never
completed a chemical dependency evaluation or any random
drug testing, nor did she communicate with the caseworker
such that any services could even begin. She participated in
very few visits, and as of the termination hearing, she had not
seen any of the children in 9 months.
[12] In addition, Julia’s repeated incarcerations also hin-
dered her ability to make any progress in order to achieve
reunification. Although incarceration alone cannot be the sole
basis for terminating parental rights, it is a factor to be con-
sidered. In re Interest of Jahon S., 291 Neb. 97, 864 N.W.2d
228 (2015). Because Julia was incarcerated off and on since
the case began in January 2016, she has not been able to pro-
vide the children with consistent necessary parental care and
protection. As a result, she simply has been unable to provide
the children with such basic necessities as housing and food.
She has additionally been unable to tend to the children’s
daily needs or to provide them with any emotional support
because she never consistently attended visitation with the
children or was unable to attend due to incarceration. And
during the 7-month period in which she was not incarcerated,
she made no effort at all to work toward reunification with
the children.
[13] In the approximately 21 months between the time
the children were removed from Julia’s care until the termi-
nation hearing, Julia was never able to overcome her per-
sonal deficiencies in order to place herself in the position
to independently parent her children. Children cannot, and
should not, be suspended in foster care or be made to await
uncertain parental maturity. In re Interest of Jahon S., supra.
The caseworker assigned to the case opined that terminating
Julia’s parental rights was in the children’s best interests in
order to allow the children the permanency they need. We
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State established by clear and convincing evidence that it was
in the best interests of the children that Julia’s parental rights
be terminated.
Procedural Due Process.
Julia also argues that her procedural due process rights
were violated when the juvenile court discharged her counsel
and she was unrepresented “during the entirety of these pro-
ceedings.” Brief for appellant at 10. We disagree with Julia’s
characterization of the facts. She was without counsel only
from April 20 until July 25, 2016. We recognize that during
that timeframe, the older three children were adjudicated,
and the court ordered that no further reasonable efforts were
required to work toward reunifying the children with Julia.
Nevertheless, Julia does not specifically allege how she was
prejudiced by the procedures followed in this case, nor does
she direct our attention to any applicable case law to support
her argument.
[14] State intervention to terminate the parent-child rela-
tionship must be accomplished by procedures meeting the
requisites of the Due Process Clause. In re Interest of Ty
M. & Devon M., 265 Neb. 150, 655 N.W.2d 672 (2003).
Procedural due process includes notice to the person whose
right is affected by the proceeding; reasonable opportunity
to refute or defend against the charge or accusation; rea-
sonable opportunity to confront and cross-examine adverse
witnesses and present evidence on the charge or accusa-
tion; representation by counsel, when such representation is
required by the Constitution or statutes; and a hearing before
an impartial decisionmaker. In re Interest of Ty M. & Devon
M., supra.Julia was appointed counsel at the outset of the case. She
was served with the petition by publication after the State
was unable to locate her for personal service, and she had
the opportunity to attend the adjudication hearing or, at a
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appointed for her during the 3-month period between the fil-
ing of the petition and the adjudication hearing. She elected
not to communicate with counsel or attend the hearing. Thus,
the juvenile court subsequently discharged her counsel pursu-
ant to its authority set forth in Neb. Rev. Stat. § 43-279.01(2)
(Reissue 2016). Despite this, Julia continued to be personally
notified of all hearings scheduled thereafter, affording her the
opportunity to be heard, but she elected not to participate in the
matter. Accordingly, the court had the discretion to discharge
court-appointed counsel based on Julia’s failure to maintain
communication, counsel was reappointed once Julia appeared
in court, and Julia was afforded notice and the opportunity to
be heard. We therefore find that the procedure followed in this
case comports with due process.
We also observe that the State sought termination of Julia’s
parental rights to the children under several subsections of
§ 43-292, including § 43-292(2). No prior adjudication is
required to terminate a parent’s rights under this subsection.
See In re Interest of Joshua M. et al., 256 Neb. 596, 591
N.W.2d 557 (1999). Upon our de novo review of the record,
we find that the evidence was sufficient to support termina-
tion pursuant to this subsection. Specifically, the evidence
presented at the termination hearing established that Julia had
substantially and continuously or repeatedly neglected and
refused to give the juvenile or a sibling of the juvenile nec-
essary parental care and protection. Therefore, even if there
had been a defect at the adjudication phase, the juvenile court
was not precluded from considering the termination of Julia’s
parental rights under § 43-292(2). See In re Interest of Isabel
P. et al., 293 Neb. 62, 875 N.W.2d 848 (2016).
Counsel was reappointed for Julia more than a year prior
to the termination hearing. The record reflects that she was
advised of her rights under § 43-279.01(1) at more than one
hearing, and she personally appeared and was represented by
counsel at the termination hearing. As a result, we conclude
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Julia’s right to due process.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
separate juvenile court terminating Julia’s parental rights to
J’Loyal, J’Ahnesti, J’Endlessly, and J’Legacy.
A ffirmed.