In re Interest of C.H. ( 2021 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
IN RE INTEREST OF C.H. ET AL.
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 C.H. ET AL., CHILDREN UNDER 18 YEARS OF AGE.
STATE OF NEBRASKA, APPELLEE,
V.
COLE H., APPELLANT.
Filed August 10, 2021. No. A-20-933.
Appeal from the County Court for Otoe County: ROBERT B. O’NEAL, Judge. Affirmed.
Timothy S. Noerrlinger for appellant.
Jenniffer Panko-Rahe, Otoe County Attorney, and Joshua L. Christolear for appellee.
RIEDMANN, BISHOP, and ARTERBURN, Judges.
ARTERBURN, Judge.
INTRODUCTION
Cole H. appeals from an order of the county court for Otoe County, sitting as a juvenile
court, which terminated his parental rights to his children, S.H., L.H., and C.H. On appeal, Cole
challenges the court’s findings that termination of his parental rights were warranted under Neb.
Rev. Stat. § 43-292(1), (2), (6), and (7) (Reissue 2016) and that termination was in the children’s
best interests. For the reasons that follow, we affirm.
BACKGROUND
Pam C. and Cole are parents of three children, S.H., L.H., and C.H. S.H. was born in 2013.
L.H. was born in 2015. C.H. was born in 2017. S.H. and L.H. were originally placed in foster care
in April or May 2015. The two older children lived with the foster family off and on over the
course of the next 2 years. In July 2017 Pam tested positive for amphetamines at the time C.H.
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was born. The State filed a petition against Pam alleging, as is relevant to this appeal, that S.H.,
L.H., and C.H. were juveniles as defined by Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016).
Pursuant to an ex parte order, the children were, again, placed into foster care with the same family
who had previously cared for them. The children have remained in foster care since that time. Pam
admitted to the petition and eventually relinquished her parental rights to the children in 2019.
In June 2018, the State filed a motion to terminate Cole’s parental rights alleging that Cole
had abandoned the children for at least the 6 months immediately preceding the filing of its motion
and that he had substantially neglected the children. The State filed an amended motion to
terminate Cole’s parental rights in April 2019 which added an allegation that the children had been
in out-of-home placements for 15 or more months of the most recent 22 months. In May 2019, the
State filed a supplemental petition adding an allegation that the children were juveniles as defined
by § 43-247(3)(a) as related to Cole. Also in May 2019, the State filed an amended motion to
terminate Cole’s parental rights with the same allegations as the amended motion filed in April
2019. A hearing was held in August and September 2019 which Cole attended and ultimately, the
court found that the children were juveniles within § 43-247(3)(a). However, in an order dated
January 14, 2020, the court found that the State failed to meet its burden to show that Cole’s
parental rights should be terminated. On March 12, 2020, a dispositional order and case plan was
adopted by the court which outlined steps for Cole to take in order to obtain reunification with the
children.
In June 2020, the State again filed a motion to terminate Cole’s parental rights alleging that
Cole had abandoned and neglected the children and failed to correct the conditions leading to the
determination that the children were juveniles under § 43-247(3)(a). The State also alleged that the
children have been in an out-of-home placement for 15 or more months of the most recent 22
months.
A hearing to terminate Cole’s parental rights was held on October 20 and November 10,
2020. At the hearing three witnesses testified, Robin Stevenson, a children and family services
specialist with the Nebraska Department of Health and Human Services (DHHS), and the foster
mother and father who the children have been currently placed with. Cole did not appear for either
day of the hearing despite his attorney’s intention to call him as a witness. As is relevant to this
appeal, the following evidence was adduced:
Stevenson has been working as a caseworker with S.H., L.H., and C.H. since August 2017.
Her testimony at the termination hearing primarily focused on the lack of communication and
follow through from Cole during the entirety of the time she was assigned to the case. By the time
of the 2020 hearing, S.H. was 7 years old, L.H. was 5 years old, and C.H. was 3 years old. During
the 3 years that Stevenson had worked as a caseworker with the children, she had been successful
in contacting Cole approximately five to seven times despite attempting to contact him at least one
time per month since shortly after the current case was filed. She explained that when she was able
to speak with Cole, she focused their conversations on educating him about the services he would
need to avail himself of in order to reunify with the children. Cole at times expressed a desire to
see the children. However, he would never follow through and actually meet with Stevenson so
she could establish that he could provide a safe place at which visitations could take place.
Stevenson rarely if ever was able to make direct contact with Cole when she attempted to call, text,
or send Facebook messages to him. However, Cole would see her outside of court hearings and
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would occasionally call and demand visitation. On these occasions, Stevenson would arrange a
time for Cole to meet with her so that they could make arrangements for visitation. Cole would
then fail to attend the arranged meeting. Documentary evidence corroborated Stevenson’s
testimony that Cole was contacted numerous times by DHHS but rarely responded.
Following the March 2020 dispositional hearing, Stevenson was able to meet with Cole
and his attorney. She discussed the court’s requirements that he undergo a co-occurring disorder
evaluation, drug testing, and participate in parent-child psychotherapy with the children so as to
smooth the reintroduction of Cole to the children since he had not seen the children in 3 years and
had never met C.H. Visitation services were also arranged. Cole was required to contact the various
providers in order to begin services, but failed to do so. He did not attend the evaluation which had
been scheduled, and made no contact with any of the other providers. He never submitted to drug
testing. Due to his failure to follow through with Stevenson, Cole did not visit with the children at
any point during their time in foster care. Cole did pay child support for the children as ordered by
the district court and eventually provided information to Stevenson about the health insurance
policy under which the children were covered.
Stevenson also testified about her interactions with the children, S.H., L.H., and C.H. S.H.
was diagnosed with post-traumatic stress disorder when she first went to foster care. She
experienced “bizarre temper tantrums.” However, after extensive therapy which also involved the
foster mother, as well as the instigation of significant structure in her daily life, the tantrums
subsided and then disappeared after Pam relinquished her parental rights and visitations with her
ended.
The foster parents also testified. The children have been in their care intermittently since
May 2015, when L.H. was only a week old and continuously since July 2017 when C.H. was born.
The foster mother testified that when S.H. first came into their care, she would cry a lot and throw
tantrums but this behavior has improved as she adjusted. The other children were both infants
when they first entered foster care. The foster mother stated that the children are doing well in their
care and in school. There are currently no behavioral concerns. Neither of the foster parents have
received any communication from Cole during the time the children have been in their care. Cole
lives somewhat near their home and at one time was employed by the foster father, but he has not
visited or contacted either of them about setting up a visit with the children.
Following the termination hearing, the court entered an order terminating Cole’s parental
rights to S.H., L.H., and C.H. The court found that the State had met its burden of proving
abandonment, substantial and continuous neglect, and that the children had been in out-of-home
placement for 15 or more months out of the most recent 22 months pursuant to § 43-292(1), (2),
and (7). The court also found that pursuant to § 43-292(6), Cole also failed to correct the conditions
that led to the children being adjudicated under § 43-247(3)(a). The court further found that Cole
was an unfit parent and that it was in the best interests of the children to have Cole’s parental rights
terminated. Cole timely appealed to this court.
ASSIGNMENTS OF ERROR
Cole assigns and argues that the county court erred in finding sufficient evidence to
terminate his parental rights pursuant to § 43-292(1), (2), (6), and (7). He further assigns and argues
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that there was not sufficient evidence to show that he is an unfit parent and that terminating his
parental rights is in the best interests of the children.
STANDARD OF REVIEW
In an appeal from an order terminating parental rights, an appellate court tries factual
questions de novo on the record. In re Interest of Ryder J., 283 Neb. 318, 809 N.W.2d 255 (2012).
Appellate review is independent of the juvenile court’s findings. Id. 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 facts over another. Id. In reviewing questions of law arising
under the Nebraska Juvenile Code, an appellate court reaches conclusions independent of the lower
court’s ruling. In re Interest of Ryder J., supra.
ANALYSIS
Statutory Factors.
On appeal, Cole challenges the county court’s finding that his parental rights should be
terminated pursuant to § 43-292(1), (2), (6), and (7). He alleges that the State presented insufficient
evidence to warrant termination of his parental rights under any of these subsections of § 43-292.
Upon our review, we disagree with Cole’s assertion.
In order to terminate parental rights, a court must find by clear and convincing evidence
that one of the statutory grounds enumerated in § 43-292 exists and that the termination is in the
child’s best interests. In re Interest of Alec S., 294 Neb. 784, 884 N.W.2d 701 (2016). Clear and
convincing evidence means that amount of evidence which produces in the trier of fact a firm
belief or conviction about the existence of a fact to be proved. In re Interest of Zachary D. &
Alexander D., 289 Neb. 763, 857 N.W.2d 323 (2015). Only one statutory ground for termination
need be proved in order for parental rights to be terminated. In re Interest of Kendra M. et al., 283
Neb. 1014, 814 N.W.2d 747 (2012).
Cole argues that the court erred in utilizing § 43-292(7) as a statutory basis for terminating
his rights. He concedes that the children had been placed in a foster home in July 2017 and have
remained outside of both his and Pam’s home throughout the proceedings, thus exceeding 22
months. However, he argues that the original motion to terminate parental rights was filed prior to
“Cole’s adjudication” and there has not been a 22-month window for him to rehabilitate himself.
We disagree with Cole’s characterization of the adjudication and his interpretation of § 43-292(7).
First, we note that it is not the parent that is adjudicated pursuant to § 43-247. Our Supreme
Court addressed this issue in the case of In re Interest of Devin W. et al., 270 Neb. 640, 707 N.W.2d
758 (2005). The court stated:
Moreover, the Court of Appeals discusses “the lack of an adjudication as to” Lerry. In re
Interest of Devin W. et al., 13 Neb. App. at 403, 693 N.W.2d at 909. We disapprove of this
language, which does not accurately reflect the purpose or substance of an adjudication
proceeding. As stated above, pursuant to § 43-247, a child, not the parent, is adjudicated in
order to protect the child’s rights.
Id. at 654, 707 N.W.2d at 768. Second, § 43-292(7) provides for termination of parental rights
when “[t]he juvenile has been in an out-of-home placement for fifteen or more months of the most
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recent twenty-two months.” Proof of this absence must be established by clear and convincing
evidence. Then the State must further prove that termination of parental rights is in the child’s best
interests. See In re Interest of Jagger L., 270 Neb. 828, 708 N.W.2d 802 (2006). Section 43-292(7)
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 the parent. In re Interest of Justin H. et al., 18
Neb. App. 718, 791 N.W.2d 765 (2010). Thus, the subsection becomes applicable whenever a
child has been out of the home for 15 of the most recent 22 months. See id.Cole premises his argument on his allegation that the original motion to terminate his
parental rights was filed before any petition to adjudicate the children under § 43-247(3)(a) based
on his conduct had been filed. Even if the order of filing created an issue, the original motion to
terminate is not before us. The original motion to terminate was denied by order of the court on
January 14, 2020. In the same order, the children were adjudicated under § 43-247(3)(a). The
relevant motion to terminate parental rights presently before us was filed on June 3, 2020. Pursuant
to the allegation in that motion, the State was required to show that the children had been in
out-of-home placement for 15 of the most recent 22 months from the date the motion was filed.
See In re Interest of Jagger L., supra. There is no dispute that the children have been in an
out-of-home placement continuously for nearly 3 years at the time the motion to terminate was
filed and there is no statutory requirement that the 22-month period commence following
adjudication. Moreover, even if we were to weigh the equities of whether Cole was given the
opportunity to rehabilitate himself during the 22-month period, the evidence demonstrates that
Cole had ample opportunity to access services and place himself in a position to parent his children.
He contacted Stevenson as early as October 5, 2017, knowing that the children were in State
custody and began appearing at hearings as early as January 10, 2018. Counsel was appointed for
him on July 18. Stevenson testified to multiple efforts to involve Cole with his children dating
back to September 2017 and to having sporadic contacts with him throughout the pendency of the
case. Therefore, Cole’s claim that he was not given adequate time to rehabilitate himself is not
supported by the record. There is clear and convincing evidence that the children had been in
out-of-home placement for 15 of the most recent 22 months preceding the filing of the operative
motion to terminate parental rights. Cole’s arguments on this point fail.
Having determined that the statutory ground enumerated in § 43-292(7) has been proved,
we do not consider issues relating to the sufficiency of the evidence concerning the other statutory
provisions identified by the county court as grounds for termination or any issues related to the
alleged error with respect to subsection 6. See In re Interest of Lisa W. & Samantha W., 258 Neb.
914, 606 N.W.2d 804 (2000). See, also, City of Lincoln v. County of Lancaster, 297 Neb. 256, 898
N.W.2d 374 (2017) (appellate court is not obligated to engage in analysis that is not needed to
adjudicate case and controversy before it).
Best Interests of Children.
Cole also assigns and argues that the county court erred in finding that he was an unfit
parent and that it was in the children’s best interests to terminate his parental rights. In addition to
proving a statutory ground, the State must show that termination of parental rights is in the best
interests of the children. § 43-292; In re Interest of Isabel P. et al., 293 Neb. 62, 875 N.W.2d 848(2016). Because the parent’s right to raise his or her children is constitutionally protected, the court
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may terminate parental rights only when the State shows that the parent is unfit. In re Interest of
Isabel P. et al., supra. There is a rebuttable presumption that the best interests of the children are
served by having a relationship with their parent. Id. This presumption is overcome only when the
State has proved that the parent is unfit. Id. Parental unfitness means a personal deficiency or
incapacity which has prevented, or will probably prevent, performance of a reasonable parental
obligation in child rearing and which caused, or probably will result in, detriment to the child’s
well-being. Id.
The best interests analysis and the parental fitness analysis are fact-intensive inquires. In
re Interest of Jahon S., 291 Neb. 97, 864 N.W.2d 228 (2015). While both are separate inquiries,
each examines essentially the same underlying facts. Id. 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.
In re Interest of Becka P. et al., 27 Neb. App. 489, 933 N.W.2d 873 (2019). In cases where
termination of parental rights is based on § 43-292(7), appellate courts must be particularly diligent
in their de novo review of whether termination of parental rights is in fact in the child’s best
interests. In re Interest of Becka P. et al., supra.
In the present case, we find that there is clear and convincing evidence to show that Cole
is unfit and that termination of his parental rights is in the best interests of the children. Throughout
the case, Cole not only failed to show improvement in his parenting skills, he never placed himself
in the position to demonstrate what, if any, parenting skills he possessed. He was repeatedly invited
to meet with Stevenson regarding the steps he needed to take in order to have visits with the
children. He not only failed to take these steps, but repeatedly failed to even attend the meetings
that were arranged. He finally attended a meeting with Stevenson in April 2020 which allowed the
caseworker to schedule an evaluation and arrange services. Cole did not follow through with any
of the arranged services, all of which were required by the prior disposition and case plan
established by the court. He failed to appear for his evaluation for co-occurring disorders, did not
submit to drug testing, and did not comply with Stevenson’s efforts to get him to attend sessions
with a therapist and his children so as to ease their reintroduction to him. While Cole stated his
desire to reestablish a relationship with his children, he made no tangible efforts to achieve that
goal. Over the course of 3 years, he was given multiple opportunities to place himself in a position
to visit with the children but did not even contact the foster parents, with whom he was acquainted,
in order to check on his children’s well-being or try to arrange visitation. There is no evidence of
how Cole maintaining his parental rights would be beneficial to the children. Cole has not seen the
children in 3 years. He has not had any contact with L.H. or C.H. during their lifetimes as they
were both infants when they were placed in foster care. Based on the testimony of Stevenson, S.H.
required therapy to help her with her diagnosis of post-traumatic stress disorder. The evidence in
this case shows that she has shown marked improvement having been provided the care and
structure in which she can grow and thrive. Cole’s lack of willingness to take any steps toward
establishing visitations with the children, despite living in close proximity to the foster home,
demonstrates his level of interest in parenting his children.
Children cannot, and should not, be suspended in foster care or be made to await uncertain
parental maturity. In re Interest of Octavio B. et al., 290 Neb. 589, 861 N.W.2d 415 (2015). Cole
has not placed himself in a position to parent his children or to even communicate with them. He
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has been provided the roadmap to reestablishment of contact, communication and reunification,
but has failed to take any initiative to start that journey. The children deserve stability in their lives
and should not be suspended in foster care further while waiting on Cole to take even a first step
toward a relationship with them. Accordingly, we agree with the findings of the county court that
clear and convincing evidence exists to show that Cole is unfit to parent his children and that
terminating his parental rights is in the children’s best interests.
CONCLUSION
Upon our de novo review of the record, we find that a statutory basis exists for termination
of Cole’s parental rights and that termination of his parental rights is in the children’s best interests.
Accordingly, the county court’s order is affirmed.
AFFIRMED.
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