In re Interest of Brelynn E.

Caselaw Number
30 Neb. App. 723
Filed On

Docket Number: A-21-166

Summary:

This is appeal from the Buffalo County Court sitting as a juvenile court. Cindy E. appeals the juvenile court’s order terminating her parental rights to her child Brelynn E. The Court of Appeals affirmed the order of the juvenile court terminating Cindy’s parental rights.

A juvenile petition was filed alleging that Brelynn lacked proper parental care by reason of the faults or habits of her mother Cindy. The State asserted that Brelynn was at risk of harm based on: previously being in the care and custody of DHHS following reports of Cindy’s inability to leave Brelynn with appropriate caretakers, an unsanitary home, Cindy’s mental health issues, and a previous sexual assault of Brelynn by her father. Brelynn was initially placed with her maternal grandmother, Carol Gaedeke, but this placement was short lived. Ten days after placement, Ms. Gaedeke requested Brelynn be removed from her home in part due to conflict with Cindy. Throughout the life of the case Brelynn lived in several foster homes, but she was not again placed with Gaedeke or returned to Cindy’s care.

After Brelynn was in an out-of-home placement for 15 or more of the most recent 22 months, Cindy filed a motion for an exception. Cindy asked for the court to grant her an exception to the State’s duty to file a petition for termination of parental rights under § 43-292.02(3)(b). She asserted that although more than 15 months had passed since Brelynn was in the care of a nonrelative, she had not had a reasonable opportunity to avail herself of the services deemed necessary in the case plan. The court did not hold a hearing on Cindy’s motion.

Two days after Cindy filed her motion for an exception, the State filed a motion for termination of Cindy’s parental rights. The State asserted that the grounds for termination of Cindy’s parental rights were based on § 43-292(5), (6), and (7). Specifically the State alleged that Cindy was unable to discharge her parental responsibilities because of mental illness or mental deficiency and that there were reasonable grounds to believe that this condition would continue for a prolonged indeterminate period; that reasonable efforts to preserve and unify the family had failed to correct the conditions; and that Brelynn had been placed in an out-of-home placement for 15 or more months of the most recent 22 months. After the State filed a motion for termination, but before the termination trial was held, Brelynn’s maternal grandmother, Carol Gaedeke, filed a complaint to intervene, stating that she wished to have permanent placement of Brelynn if Cindy’s parental rights were terminated.

Trial on the motion to terminate took place over several days. Numerous witnesses testified, including an investigator with the Buffalo County sheriff’s office (who happened to be married to the State’s prosecuting attorney). When the investigator testified at trial, Cindy objected, citing the doctrine of oneness and affinity, because he was married to the State’s prosecuting attorney. She argued that the investigator’s testimony should be stricken. The court overruled the motion. After the termination hearing, the juvenile court issued an order terminating Cindy’s parental rights pur­suant to § 43-292(5), (6), and (7) and found that termina­tion was in the minor child’s best interest.

 

Cindy timely appeals the juvenile court’s order. Cindy assigns that the juvenile court erred in (1) denying Gaedeke placement of Brelynn during the pendency of the case; (2) failing to hold a hearing on Cindy’s motion for an excep­tion; (3) allowing the testimony of the investigator who was married to the State’s prosecuting attorney; and (4) finding that the State proved by clear and convincing evidence statutory grounds to justify the termination of her parental rights and that it was in the best interests of Brelynn for her rights to be terminated.

Denial of Placement

Cindy argues that the county court erred in not plac­ing Brelynn with Gaedeke during the pendency of the case, because she requested placement of Brelynn and it is the Department’s policy to prioritize placement of a child with family members. The Court of Appeals did not reach this assignment of error. After Gaedeke asked for Brelynn to be removed from her home at the beginning of the case, Gaedeke sent an email requesting only that she be considered for placement in the event that Cindy’s parental rights were terminated. Gaedeke later filed a com­plaint to intervene; however, her complaint to intervene was filed after the State sought termination and reiterated only that should Cindy’s rights be terminated, she wished to be considered for Brelynn’s permanent placement. She did not request temporary placement of Brelynn during the pendency of the case, nor did she petition the court for temporary place­ment. There was no pending motion in front of the county court asking the court to consider Gaedeke as a placement for Brelynn. As such, the juvenile court was never asked to consider plac­ing Brelynn with Gaedeke during the pendency of the proceed­ings. The Court of Appeals concluded that an appellate court will not consider an issue on appeal that was not presented to or passed upon by the trial court.

 

Exception Hearing

Cindy argues that Brelynn was in the care of the State for more than 15 of the most recent 22 months before the State filed its petition and that she filed an exception because she needed more time to accomplish the goals contained within her case plan. Cindy then argues she is entitled to a hearing on her motion for an exception under § 43-292.03(1). The Court of Appeals found that while Cindy is correct insofar as she argues that the statutory language of § 43-292.03(1) mandates a hearing, there was no prejudice to Cindy by the court not hav­ing an exception hearing. The Nebraska Supreme Court has explained that the purpose of an exception hearing is to determine whether the State may be excused from the mandatory requirement of § 43-292.02(1) that it file a petition to terminate parental rights under certain circumstances. The Supreme Court further explained that a parent’s due process rights are not deprived just because an exception hearing has not been held.  Instead, when there is a full opportunity to appear and present defenses at a hearing regarding the termination petition, a court does not deprive the parent’s due process rights. The court found that although an exception hearing may afford a basis for relieving the State of its statutory obligation to file a petition to terminate parental rights, no language in either § 43-292.02 or § 43-292.03 pre­vents the State from petitioning to terminate parental rights. In the present case, there was a full hearing on the termination petition and Cindy had an opportu­nity to appear and present defenses. Thus, Cindy’s due process rights were not implicated and the Court of Appeals found no error in the court’s decision not to hold an exception hearing.

 

Investigator’s Testimony

An investigator with the Buffalo County sheriff’s office (who was married to the State’s prosecuting attorney) testified at the termination trial. Prior to his testimony, Cindy objected based on the doctrine of affinity and oneness as a basis for her challenge. The county court took the objec­tion under advisement and allowed the investigator to testify. Cindy later argued that the basis of her objection was that there was a conflict of interest in having the prosecuting attorney question her own husband. Cindy argued that the investigator’s testimony should have been stricken. The juvenile court found that the objection to the testimony of the witness was not a proper remedy; rather, the proper remedy would be a motion to disqualify the prosecutor. The court also noted that a motion to disqualify the prosecut­ing attorney was not made. As a result, the court overruled the motion to exclude the investigator’s testimony. On appeal, Cindy reiter­ates her argument that there was a conflict when the investigator testified while married to the prosecuting attorney. She asserts that the court erred when it allowed the investigator to testify. However, she now asserts in the alternative that the prosecuting attorney should have been recused.

 

Cindy did not provide any case law to support her argu­ment that the investigator’s testimony was inadmissible due to his rela­tionship with the prosecuting attorney. The Court of Appeal’s review of the case law also did not reveal any authority on this issue. The Court of Appeals focused on whether Cindy’s due process rights were violated by allow­ing the testimony of the investigator. The Court found that Cindy did not suffer prejudice based on the evi­dence adduced. The investigator’s testimony focused on the initial encounter with Cindy, which was duplicative of evidence received in the form of the Department intake reports that were received. Therefore, the Court of Appeals found that Cindy was not prejudiced by allowing the investigator to testify.

 

The Court of Appeals did make note that it was troubled by the fact that the attorney called her hus­band to testify as a witness and more troubled by the fact that according to the prosecuting attorney’s statements, this was not the first case where she has called her husband to testify. The Supreme Court has long held that there should not be anything in the way of private interest to possibly sway the judgment of a prosecutor in prosecuting persons whose guilt is so doubt­ful or to tempt him or her to depart from a disinterested and conscientious discharge of his or her duty. The Court of Appeals noted that as early as 1993, an ethics advisory opinion for lawyers was issued stating that a county attorney whose spouse is a police officer should not personally prosecute any case in which his or her spouse will be called as a witness. See Neb. Ethics Adv. Op. No. 93-5 (1993). Given the prosecuting attorney’s statements during the case that she has worked on many cases where her husband has testified, the Court stated that it would be the better practice for the attorney to recuse herself in such cases in order to foreclose any questions of impropriety. However, pursuant to the specific facts of this case, the Court of Appeals found no prejudicial error to Cindy by virtue of the court’s decision to receive the investigator’s testimony.

 

 

Statutory Grounds

Cindy argues that the county court erred in finding the State proved by clear and convincing evidence that statutory grounds existed to terminate her rights. The county court found that the State presented evidence to satisfy § 43-292(5), (6), and (7). 43-292(7) allows for termination when the juvenile has been in an out-of-home placement for 15 or more months of the most recent 22 months. It 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. In a case of termination of parental rights based on § 43-292(7), the protection afforded the rights of the parent comes in the best interests step of the analysis. Cindy concedes that Brelynn had been out of the home for 15 of the most recent 22 months at the time the motion to terminate parental rights was filed; nevertheless, she argues that an exception should be provided to the “‘hard and fast’” cal­culation of the timeframe. However, the proper application of § 43-292(7) consists of counting the most recent 22 months preceding the filing of the petition to terminate parental rights, followed by counting how many of those 22 months the child was in out-of-home placement. Here, when the motion for termina­tion was filed, Brelynn had been out of the home for about 16 months. By the last day of trial, Brelynn had been out of the home for over 24 months. Accordingly, the Court of Appeals found no error in the county court’s determination that the State had proved the nec­essary elements of § 43-292(7). The Court reminds us that 43-292 provides 11 separate conditions, any one of which can serve as the basis for termination when cou­pled with the evidence that termination is in the best interests of the child. Because the Court of Appeals concluded that the State presented clear and convincing evidence that grounds to terminate existed under § 43-292(7), it did not address the other statutory grounds.

Best Interests

Cindy also argues that the county court erred in find­ing that it was in Brelynn’s best interests to terminate Cindy’s 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 child. A parent’s right to raise his or her child is constitution­ally protected; so before a court may terminate parental rights, the State must show that the parent is unfit. There is a rebuttable presumption that the best interests of the 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. In the context of the constitutionally protected relationship between a parent and a child, 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. The Court of Appeals reviewed the evidence adduced, including the fact that Brelynn had been removed from Cindy’s care on three separate occasions, Cindy’s struggles with mental health, and negative implications that Cindy’s mental health had on Brelynn. The Court of Appeals found that termination of Cindy’s parental rights was in Brelynn’s best interests, as it will prevent her from further languishing in foster care while awaiting Cindy’s uncertain ability to attain the skills necessary for parental maturity.

For the reasons stated above, the Court of Appeals affirmed the order of the juvenile court terminating Cindy’s parental rights to Brelynn.