SUMMARY: The Nebraska Court of Appeals found that termination of a mother’s parental rights was appropriate for four siblings in a second termination proceeding because although the State presented evidence from the time period before the first termination proceeding, they used such evidence in conjunction with other evidence from the time period after the first termination proceeding. The court also found that termination was in all four children’s best interests because they had been out of the home for such a significant amount of time, their mother had not made significant progress with the reunification plan, and with respect to the two older siblings, they were more likely to achieve stability because they were at an age where they would understand the finality of termination.
Termination proceedings were initiated for four (4) siblings: Vanessa R., Mario, R., Pablo R. and Saul R. In September 2003, at the first termination proceeding, the State presented evidence from the DHHS protection and safety worker, a licensed clinical social worker, and the mother’s psychotherapist and chemical dependency counselor. The State at that time dismissed the petitions with respect to the mother, and the court entered orders terminating the father’s parental rights. In September 2005, a second termination proceeding was held with respect to the mother. The State relied on, among other things, the testimony of the DHHS safety and protection worker and a licensed psychologist. The evidence indicated that the mother’s lack of rehabilitation continued to be at odds with the children’s best interests. The county court concluded that “termination of [the mother’s] parental rights was proper as to all four children;” however that the State had only proven by clear and convincing evidence that termination was in the best interests of Vanessa and Mario. The mother’s parental rights were terminated as to Vanessa and Mario, and a long-term guardianship was established as to Pablo and Saul. The mother appealed the order terminating her parental rights as to Vanessa and Mario. The State appealed the denial of termination as to Pablo and Saul.
The Nebraska Court of Appeals upheld the termination order with respect to Vanessa and Mario, and reversed the county court’s decision with respect to Pablo and Mario, finding instead that termination was in the children’s best interests.
The Court of Appeals rejected the mother’s argument that the county court gave improper weight to the licensed psychologist’s testimony stating that “when the evidence is in conflict, we may give weight to the fact that the county court observed the witness and accepted one version of the facts over the other.” The court also rejected the mother’s argument that the “majority of the evidence presented by the State predated the hearing on the first set of petitions to terminate” her parental rights which allowed the State to “take ‘multiple bites at the apple.’” The court responded that the State had used the earlier evidence “in conjunction with evidence from the time period after that first [termination] hearing,” and even if the state were required to prove that circumstances had changed since the first termination hearing “the county court’s consideration of the former evidence in conjunction with the latter would still have been proper.”
Finally, the Court of Appeals determined that termination was in the best interests of all the children. A report from the guardian ad litem indicated that the mother would “always struggle, no matter how many children are in the home.” The DHHS safety and protection worker testified that the mother did not have “the mental and physical ability to parent her children and that termination was in the best interests of the children.” After extensive review of the file and interviews with the children and mother, the psychologist testified that in his opinion the mother “did not have the abilities to adequately parent the children.” The court concluded that this met the state’s burden with respect to termination of Vanessa and Mario. The court then, was within its power to deny the post-termination visitation with Vanessa and Mario. With respect to Pablo and Saul, the court concluded that their mother’s “repeated failure to achieve rehabilitation prove[d] that termination is in these two children’s best interests.” The testimony by the psychologist indicated that termination of the mother’s rights “would provide a sense of stability to [Pablo and Saul] because” they had been out of the home for a significant amount of time, their mother had not made significant progress with the reunification plan, and they were more likely to achieve stability, even more so than their younger siblings, since they had a greater capacity to understand the finality of termination. From this record, the court reversed the county court and found that termination was in Pablo and Saul’s best interests.