In re Interest of Noah C. , 306 Neb. 359 ( 2020 )


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    07/31/2020 08:09 AM CDT
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    Nebraska Supreme Court Advance Sheets
    306 Nebraska Reports
    IN RE INTEREST OF NOAH C.
    Cite as 
    306 Neb. 359
    In re Interest of Noah C., a child
    under 18 years of age.
    State of Nebraska, appellee, v.
    Samantha H., appellant.
    ___ N.W.2d ___
    Filed July 2, 2020.     No. S-19-843.
    1. Motions for Continuance: Appeal and Error. A court’s grant or
    denial of a continuance is within the discretion of the trial court, whose
    ruling will not be disturbed on appeal in the absence of an abuse of
    discretion.
    2. Juvenile Courts: Evidence: Appeal and Error. Juvenile cases are
    reviewed de novo on the record, and an appellate court is required
    to reach a conclusion independent of the juvenile court’s findings.
    However, when the evidence is in conflict, an appellate court may con-
    sider and give weight to the fact that the trial court observed the wit-
    nesses and accepted one version of the facts over the other.
    3. Parental Rights: Proof. Any one of the bases for termination of paren-
    tal rights codified by Neb. Rev. Stat. § 43-292 (Reissue 2016) 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.
    4. Constitutional Law: Parental Rights: Proof. A parent’s right to raise
    his or her child is constitutionally protected; so before a court may ter-
    minate parental rights, the State must also show that the parent is unfit.
    5. 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 the parent is unfit.
    Appeal from the County Court for Cheyenne County: Kris
    D. Mickey, Judge. Affirmed.
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    IN RE INTEREST OF NOAH C.
    Cite as 
    306 Neb. 359
    Steven E. Elmshaeuser for appellant.
    Jonathon T. Stellar, Cheyenne County Attorney, for appellee.
    Audrey M. Elliott, guardian ad litem.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Miller-Lerman, J.
    I. NATURE OF CASE
    Following a hearing, the county court for Cheyenne County,
    sitting as a juvenile court, found sufficient evidence to termi-
    nate the parental rights of Samantha H. to her biological minor
    child, Noah C. Samantha appeals, claiming that the juvenile
    court erred when it (1) denied her motion to continue the ter-
    mination hearing and (2) found that termination was in the best
    interests of Noah. We affirm.
    II. FACTS
    Samantha is the biological mother of Noah, who was born
    in 2013. Noah’s father, Donald M., is not part of this appeal.
    Noah was removed from Samantha’s care because of safety
    concerns, and he has been in out-of-home care since December
    5, 2017.
    The juvenile court adjudicated Noah as a child within the
    meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016). The
    adjudication decision was affirmed by the Nebraska Court of
    Appeals in a memorandum opinion. See In re Interest of Noah
    C., No. A-18-059, 
    2018 WL 4761053
    (Neb. App. Oct. 2, 2018)
    (selected for posting to court website).
    On March 28, 2019, the State moved to terminate
    Samantha’s parental rights. The complaint to terminate alleged
    four grounds under Neb. Rev. Stat. § 43-292 (Reissue 2016),
    which states:
    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
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    IN RE INTEREST OF NOAH C.
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    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:
    ....
    (2) The parents have substantially and continuously
    or repeatedly neglected and refused to give the juve-
    nile or a sibling of the juvenile necessary parental care
    and protection;
    (3) The parents, being financially able, have willfully
    neglected to provide the juvenile with the necessary sub-
    sistence, education, or other care necessary for his or
    her health, morals, or welfare or have neglected to pay
    for such subsistence, education, or other care when legal
    custody of the juvenile is lodged with others and such
    payment ordered by the court;
    ....
    (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;
    (7) The juvenile has been in an out-of-home placement
    for fifteen or more months of the most recent twenty-two
    months.
    Trial on the complaint for termination was scheduled for
    June 4, 2019.
    Prior to trial, the juvenile court took up the motion to quash
    filed by Joe Kozicki, who had been subpoenaed by Samantha.
    The juvenile court quashed the subpoena, because it found the
    witness was located over 100 miles away and objected to the
    subpoena. See Neb. Rev. Stat. § 25-1227 (Reissue 2016).
    Samantha, who was representing herself with standby coun-
    sel present, moved to continue the termination hearing to pre-
    pare her defense (1) because she had not received her complete
    case file from her previous counsel until May 31, 2019, and
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    IN RE INTEREST OF NOAH C.
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    (2) because Kozicki, who she claimed was a material wit-
    ness to her case, was unavailable. Samantha had apparently
    terminated representation by her prior counsel in December
    2018 and claimed that she had not had time to review all of the
    exhibits and documents in her case file, because she had the
    complete file for less than a week.
    In support of the motion to continue, Samantha stated that
    Kozicki was a material and necessary witness for presentation
    of her case and that she wanted time to take a trial deposition.
    The juvenile court overruled the motion to continue and
    explained its reasoning to Samantha as follows:
    What I’m told is and what I believe is that you
    recently received some documentation from [prior coun-
    sel’s] office. What I know from the court file is that [prior
    counsel] was permitted to withdraw in December of 2018,
    and you have previously represented in court in other
    proceedings that you fired him. And so, for approximately
    six months, [prior counsel], and perhaps a little more, has
    not been a part of these proceedings. I also know from
    the documents in evidence and from the argument and
    testimony that the motion to terminate parental rights has
    been of record since March 28th. A first appearance was
    held, I believe in April of 2019, and the matter scheduled
    then. So, all parties have known for quite some time that
    this was going to take place here today.
    . . . So — and I also believe, as an aside, that there is
    some reasonable duty placed upon all litigants when you
    are made aware of the filing of motions of character like
    this, that is, a motion to terminate parental rights, that you
    have a duty to timely request whatever documentation it
    is that you wish to have as part of the evidence in such a
    case. And under examination from this Court, [Samantha]
    was unable to identify specifically when such a request
    was made, whether it was timely or not, when the docu-
    ments were first received that were part of most of her
    file, or for that matter, anything that was recently received
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    IN RE INTEREST OF NOAH C.
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    that should affect the outcome. You have the documents.
    You’ve had them, it sounds like, for most of a week.
    Those documents, to the extent they pertain to the motion
    to terminate parental rights are within your possession,
    and can be made a part of your case if that’s what you
    decide to do. That’s up to you and your lawyer.
    I simply find that today there isn’t any meritorious
    basis supporting . . . the motion to continue . . . .
    At trial, the State called a neuropsychologist, who testi-
    fied regarding her March 2017 and September 2018 evalu-
    ations of Noah. In her 2018 report, she noted that “Noah
    currently shows measurable improvement in his presentation,
    test scores, and observer ratings from the foster home and the
    school compared to observations in 2016 and 2017. These
    improvements are shown to occur in the foster home place-
    ment and in the context of the visits with [Samantha] currently
    stopped.” She recommended that all visits between Samantha
    and Noah should cease until Samantha undergoes a psycho-
    logical evaluation. She diagnosed Noah with “an unspecified
    Trauma and Stressor related disorder stemming from parent
    extreme reactivity and dysregulated behaviors that have been
    observed in multiple clinical and non-clinical settings.” Her
    report opined that if Samantha could not demonstrate capac-
    ity to improve, “any form of interaction with [Samantha] is
    likely to continue to place Noah’s safety and well-being in
    jeopardy.” She further testified at trial that her recommenda-
    tions in the report from her evaluations were also in Noah’s
    best interests.
    The State next called a psychologist, who testified that
    Samantha was referred to him for a psychological and parent-
    ing evaluation. The psychologist was unable to complete the
    evaluation, because Samantha refused to sign a consent form
    to a parenting evaluation over several appointments.
    Lt. Keith Andrew of the Sidney Police Department testi-
    fied for the State and the guardian ad litem regarding an
    intake of Noah on December 5, 2017. Lieutenant Andrew
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    IN RE INTEREST OF NOAH C.
    Cite as 
    306 Neb. 359
    contacted Samantha, at her residence, who agreed to partici-
    pate in a respite plan where Noah would stay somewhere else
    for a few days to give Samantha “a break.” Lieutenant Andrew
    observed that Samantha was very agitated and frustrated and
    that she was making comments indicating she might harm
    Noah. Lieutenant Andrew concluded respite was not going to
    work and removed Noah from Samantha’s physical custody.
    Lieutenant Andrew also testified that he responded to two
    separate incidents involving Samantha after Noah’s removal. In
    one incident, Samantha threw things at a family support worker
    and, at another, assaulted an officer.
    Dawn Hatcher, a family services provider at a family support
    organization, testified regarding her work with Samantha and
    Noah. She testified that Samantha made about 85 percent of
    the visits over a 4- to 5-month period. The missed visits were
    canceled because Samantha was later than 15 minutes. She
    testified that about five to eight visits were cut short because
    Hatcher felt Samantha’s behavior was “too erratic to parent.”
    For example, Samantha arrived for one visit “agitated and irri-
    tated” and, as the visit progressed, “her behavior became more
    angry and was visibly angry.” Eventually, Samantha became so
    angry and argumentative that Hatcher concluded the visit and
    asked Samantha to leave.
    Hatcher also testified regarding the last supervised visit
    in July 2018, at which she called law enforcement because
    Samantha was upset and agitated about Noah’s vaccinations.
    Samantha had apparently not been advised prior to Noah’s
    being given vaccines. Samantha became increasingly upset.
    Hatcher testified that Samantha was screaming and yelling,
    slamming chairs, and calling Hatcher names, including “bitch”
    and “cunt.” She also testified that Samantha threw a pillow
    at her during this visit. Noah was present in the room when
    this occurred and told Hatcher he was scared. The visits
    ceased after this incident. Hatcher also testified that Samantha
    refused to participate in out-of-home family support, because
    Samantha felt it was not helping her.
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    IN RE INTEREST OF NOAH C.
    Cite as 
    306 Neb. 359
    The chief operating officer for the same family support
    organization also testified for the State. She testified that she
    observed one or two full visits, which went well until Samantha
    would get upset if she were told she could not do something
    or was asked to sign a release. She testified that Samantha
    could not deal with Noah when he became dysregulated. She
    testified that Samantha had completed several courses but did
    not complete the final requirement of meeting and reviewing
    the program.
    The State also called the Department of Health and
    Human Services (DHHS) worker who received the intake
    on December 5, 2017, to testify. She had been present with
    Lieutenant Andrew during the visit to Samantha’s home.
    Although the DHHS worker initially had respite set up,
    Samantha’s behavior from the time they left to when they
    arrived again later that day was concerning. Samantha even-
    tually declined respite and did not want to work with DHHS.
    The DHHS worker testified that team meetings did not go
    well, because Samantha argued with everyone, refused to
    work with some family support providers and certain work-
    ers, and ultimately refused to work with any family support
    providers because she refused to sign their contracts. The
    last time Noah saw Samantha was at a therapeutic visit in
    November 2018. The DHHS worker also testified that Noah
    had been in out-of-home care continuously since December 5,
    2017, 18 months at the time of trial.
    Sarah Robinson, a child and family services specialist for
    Noah, testified next. Once Noah was removed, Robinson
    offered Samantha 18 hours of supervised visitation per week,
    and Samantha attended about 85 percent of those visits. On
    August 1, 2018, Samantha’s visits were suspended until October
    10, when the juvenile court ordered therapeutic visits. The
    therapist then recommended supervised visits. However, those
    visits never occurred, because Samantha refused to sign the
    intake paperwork to work with family support providers.
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    IN RE INTEREST OF NOAH C.
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    Robinson testified that Samantha did not complete most of
    her goals in the case plan and court report. With respect to
    these goals, Robinson testified that Samantha (1) did not pro-
    vide a safe and stable environment for Noah by learning and
    demonstrating new parenting skills and understanding child
    development; (2) did not provide a safe and stable environ-
    ment for Noah by learning new coping skills and addressing
    any mental health symptoms she was experiencing; (3) did not
    provide a safe and stable environment for Noah by finding and
    using informal supports; (4) did not provide a safe and stable
    home for Noah by maintaining basic resources; and (5) did not
    maintain basic needs for her and Noah, such as food, clothing,
    utilities, and a home within the previous 6 months. Robinson
    explained how Samantha had failed to learn and implement
    various strategies listed for achieving the family support goals.
    Robinson then testified that Noah was not able to return safely
    to Samantha’s care, because Samantha had not been able to
    demonstrate that she can safely and effectively parent Noah,
    had completed very little of the case plan, had not completed
    any goals, and would not allow Robinson into her home in the
    last 6 months.
    Samantha offered evidence, including a letter from her coun-
    selor, recommending that Samantha and Noah move forward
    with supervised visitation. Samantha’s counselor had seen
    Samantha for five visits in late 2018 and noted that Samantha
    “has done a good job here of being appropriate.”
    Samantha also called as a witness a family advocate, who
    testified that she has a background in criminal justice and
    probation. She testified that she is familiar with how DHHS
    handles cases, and she observed that Samantha’s case was han-
    dled in an unusual way. The advocate testified that she did not
    feel Samantha’s “voice [had] been heard” throughout the case
    and that workers had “come in to tell [Samantha] what [she is]
    going to do” instead of finding a way to work with Samantha.
    The advocate testified that she did not feel Samantha would
    hurt a child or neglect a child in her care.
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    IN RE INTEREST OF NOAH C.
    Cite as 
    306 Neb. 359
    The juvenile court denied Samantha’s request to keep the
    record open or allow the taking of trial depositions. After
    receiving written closing arguments, the juvenile court took the
    case under advisement. In a written order, the juvenile court
    found that sufficient evidence was presented to demonstrate
    clearly and convincingly that termination of parental rights
    was appropriate and in the best interests of Noah. Samantha
    appeals.
    III. ASSIGNMENTS OF ERROR
    Samantha claims, summarized and restated, that the juvenile
    court erred when it (1) denied her motion to continue the ter-
    mination hearing and (2) found a statutory basis to terminate
    her parental rights to Noah after it found that termination was
    in the child’s best interests.
    IV. STANDARDS OF REVIEW
    [1] A court’s grant or denial of a continuance is within the
    discretion of the trial court, whose ruling will not be disturbed
    on appeal in the absence of an abuse of discretion. See In re
    Interest of C.G.C.S., 
    225 Neb. 605
    , 
    407 N.W.2d 196
    (1987).
    [2] Juvenile cases are reviewed de novo on the record, and
    an appellate court is required to reach a conclusion indepen-
    dent of the juvenile court’s findings. In re Interest of Taeson
    D., 
    305 Neb. 279
    , 
    939 N.W.2d 832
    (2020). However, when
    the evidence is in conflict, an appellate court may consider
    and give weight to the fact that the trial court observed the
    witnesses and accepted one version of the facts over the other.
    In re Interest of Zanaya W. et al., 
    291 Neb. 20
    , 
    863 N.W.2d 803
    (2015).
    V. ANALYSIS
    1. Continuance
    Samantha claims that the juvenile court erred when it denied
    her request for a continuance of the termination hearing. She
    contends that she was not prepared for the termination hearing
    and that the testimony of an unavailable witness was necessary
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    IN RE INTEREST OF NOAH C.
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    and material to the presentation of her case. We reject this
    assignment of error.
    With respect to Samantha’s argument that she was unable
    to prepare for the hearing, the record shows that Samantha
    had over 2 months to prepare her case between the date
    on which she received notice of the complaint to terminate
    her parental rights and the date of the termination hearing.
    In its written order, the juvenile court found that all parties
    were given adequate and reasonable notice concerning the
    scheduled hearing. The juvenile court specifically found that
    Samantha
    fail[ed] to adequately prepare, to timely accept the assist­
    ance of counsel, to properly elicit the testimony of a
    witness outside the boundaries of the subpoena power of
    the court, or in some other manner fail[ed] to appreciate
    the significance of the juvenile court process [and these
    failures do] not justify delaying justice or making special
    accommodations to one party over the other.
    Although Samantha claims she did not have access to her
    complete case file because she terminated representation by
    her lawyer, our close review of the record and testimony at
    the hearing on the continuance shows that the trial court rea-
    sonably found she had access to and personal knowledge of
    the relevant evidence. Samantha was unable to identify when
    she requested the full case file, and in any event, she pos-
    sessed the complete case file in the days prior to the termina-
    tion hearing.
    With respect to Samantha’s argument that a continuance was
    necessary for her to depose Kozicki, Samantha did not make
    a showing of Kozicki’s identity and his relevance to her case.
    The juvenile court did not err when it concluded, based on the
    information before it, that testimony of Kozicki was not nec­
    essary and material.
    The record supports the findings of the juvenile court, and
    we determine that it did not abuse its discretion when it denied
    Samantha’s motion for a continuance.
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    2. Termination
    Samantha contends generally that her parental rights should
    not have been terminated. She specifically claims that the juve-
    nile court erred when it found that termination was in Noah’s
    best interests. Because Samantha concedes that the record
    establishes grounds for termination under § 43-292(7) and
    we find support in the record establishing that termination of
    Samantha’s parental rights is in the best interests of Noah, we
    reject this assignment of error.
    (a) Statutory Grounds for Termination
    [3] The juvenile court found that sufficient evidence existed
    under § 43-292(2), (3), (6), and (7), set forth above, to sup-
    port a termination of Samantha’s parental rights. We have held
    that any one of the bases for termination of parental rights
    codified by § 43-292 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 Taeson D.,
    
    305 Neb. 279
    , 
    939 N.W.2d 832
    (2020).
    Samantha does not dispute the fact that the evidence estab-
    lishes that Noah had been in an out-of-home placement for 15
    or more months of the most recent 22 months. See § 43-292(7).
    Such evidence established a statutory basis for termination.
    See
    id. Having determined the
    statutory ground enumerated in
    § 43-292(7) has been proved, we do not consider issues relat-
    ing to the sufficiency of the evidence concerning the other
    statutory provisions identified by the juvenile court as grounds
    for termination. See In re Interest of Taeson 
    D., supra
    .
    (b) Best Interests of Noah
    [4,5] In addition to proving a statutory ground, the State
    must show that termination is in the best interests of the child.
    § 43-292. A parent’s right to raise his or her child is consti-
    tutionally protected; so before a court may terminate parental
    rights, the State must also show that the parent is unfit. In re
    Interest of Jahon S., 
    291 Neb. 97
    , 
    864 N.W.2d 228
    (2015).
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    There is a rebuttable presumption that the best interests of a
    child are served by having a relationship with his or her parent.
    Id. 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 the parent is unfit.
    Id. Although the term
    “unfitness” is not expressly used in § 43-292, the concept
    is generally encompassed by the fault and neglect subsec-
    tions of that statute and is also embedded in a determination
    of the child’s best interests, which is under consideration in
    this appeal. See In re Interest of Jahon 
    S., supra
    . We have
    defined parental unfitness as “a personal deficiency or incapac-
    ity 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 a child’s well-
    being.”
    Id. at 104, 864
    N.W.2d at 234. Analysis of the minor
    child’s best interests and the parental fitness analysis are fact-
    intensive inquiries. See In re Interest of Kendra M. et al., 
    283 Neb. 1014
    , 
    814 N.W.2d 747
    (2012). And while both are sepa-
    rate inquiries, each examines essentially the same underlying
    facts as the other.
    Id. At the onset
    of the State’s involvement in this case, the rela-
    tionship between Samantha and Noah was unhealthy. Samantha
    had called DHHS’ hotline for help and sought help for Noah’s
    behaviors. The dysfunctional dynamic was observed by DHHS
    and law enforcement witnesses, as well as a neuropsychologist,
    who testified that in 2017, she noted a strained relationship
    between Samantha and Noah.
    After removal, Noah was progressing in school, engaging
    in socially acceptable programs, and doing well. Testimony
    from caseworkers shows that although Samantha had many
    appropriate interactions with Noah during supervised visita-
    tion, Samantha could not control her behaviors if she became
    upset or if Noah became dysregulated. Because of this inabil-
    ity to control her own behavior, Samantha’s visitations never
    progressed to the point at which the personnel involved trusted
    her to be alone with Noah. Witnesses verified Samantha’s
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    pattern of volatile, angry, and disruptive behavior during visits
    with Noah or family team meetings throughout the pendency
    of the case, which began in 2017.
    After October 2018, Samantha did not maintain a rela-
    tionship with Noah. Samantha prevented reunification by not
    following the case plan, which included completing parent-
    ing classes, obtaining a psychological evaluation, obtaining
    a parenting assessment, maintaining a safe and stable home,
    maintaining a job, and maintaining regular contact with Noah.
    Overall, Samantha failed to make adequate improvement or
    mature as a parent and was demonstrably unfit. The evidence
    rebuts the presumption of fitness.
    Based upon our de novo review of the record, we find clear
    and convincing evidence that Samantha’s personal deficiencies
    have prevented her from performing her reasonable parental
    obligations to Noah in the past, that she is unable to give
    Noah necessary care and protection, and that the record estab-
    lishes there is no prospect of improvement in the future. We
    find that it was shown by clear and convincing evidence that
    termination of Samantha’s parental rights would be in Noah’s
    best interests.
    VI. CONCLUSION
    The juvenile court did not abuse its discretion when it
    denied Samantha’s motion for a continuance, and it did not err
    when it determined that terminating Samantha’s parental rights
    to Noah was appropriate under § 43-292(7) and was in the best
    interests of Noah. Accordingly, we affirm.
    Affirmed.