In re Interest of Destiny H. et al.

Caselaw Number
30 Neb. App. 885
Filed On

Summary:

This is an appeal from the Separate Juvenile Court of Douglas County. Amber M. appeals the juvenile court’s order terminating her parental rights to her children, Destiny H., De’Tevious M., D’Yauna S., and Jasani S. The Court of Appeals reversed the juvenile court’s order terminating Amber’s parental rights and remanded the cause for further proceedings.

The state originally filed a juvenile petition alleging that all four children lacked proper parental care by reason of the faults or habits of Amber. The petition was then amended, alleging the children were homeless or destitute, or without proper support through no fault of Amber, who had been diagnosed with severe mental illnesses such that she was unable to provide proper parental care, support and/or supervision. Amber entered a no contest plea to the allegations contained in the amended petition and the juvenile court adjudicated all four children to be within the meaning of § 43-247(3)(a) by a preponderance of the evidence and through no fault of the parent.

At the adjudication hearing the court ordered the children to remain in temporary DHHS custody but noted that Amber had begun to make therapeutic progress by participating in pre-adjudication services. The court further ordered Amber to participate in a num­ber of services, including individual therapy, supervised visi­tation, family therapy if recommended, medication manage­ment, family support services, drug testing, parent training, and domestic violence programming. The court ordered that services for Amber be arranged and paid for by DHHS and/or PromiseShip unless Amber had insurance and was able to pay. The court also ordered the children to participate in individual therapy if recommended by an initial diagnostic interview.

Six court reports were prepared throughout the life of the case, all of which listed two goals for Amber and one goal for the children. Amber’s goals were to address her mental health and coping skills and to provide for her children’s emotional, physical, mental, and educational needs. The children’s goal was to reside in a home in which their basic physical, emotional, medical, educational, and permanency needs were met.

After the review and permanency planning stages of the case, the State moved to terminate Amber’s parental rights with respect to all four children. The motion alleged that D’Yauna came within the meaning of Neb. Rev. Stat. § 43-292(1), (2), (6), (7), and (9) and that Destiny, De’Tevious, and Jasani came within the mean­ing of § 43-292(2), (6), (7), and (9). The motion additionally alleged that it was in the best interests of all four children that Amber’s parental rights be terminated.

During the trial on the motion to terminate Amber’s parental rights, evidence was presented that Amber com­pleted many court-ordered services, including over a month of inpatient treatment, family support services, at least two chemical dependency evaluations, a psychiatric evaluation, a psychological evaluation, hands-on parent training, domestic violence programming, and a parenting class. The DHHS case manager identi­fied only three court orders that, in her opinion, Amber did not successfully complete—outpatient treatment, drug testing, and visitation.

After trial, the court entered an order finding that all four children came within the mean­ing of § 43-292(2), (6), and (7) and that it was in the chil­dren’s best interests that Amber’s parental rights be terminated. Accordingly, the court terminated Amber’s parental rights with respect to all four children. This appeal followed.

Amber assigns that the juvenile court erred in finding clear and convincing evidence that Destiny, De’Tevious, Jasani, and D’Yauna came within the meaning of § 43-292(2), (6), and (7), and in finding clear and convincing evidence that termination of Amber’s parental rights was in the children’s best interest.

Statutory Grounds for Termination.

The State alleged a number of statutory grounds for termination, including § 43-292(7), which allows for termina­tion when the juvenile has been in an out-of-home place­ment for fifteen or more months of the most recent twenty-two months. § 43-292(7) operates mechanically and does not require the State to adduce evidence of any specific fault on the part of the parent. Any one of the bases for termination of parental rights codified by § 43-292 can serve as a basis for termination of parental rights when coupled with evidence that termination is in the best interests of the children.

In this case, the juvenile court found that all four children came within the meaning of § 43-292(7). Based on the Court of Appeal’s de novo review of the record, it also found clear and convincing evidence that all four had been in an out-of-home place­ment for fifteen or more months of the most recent twenty-two months. Having determined the State proved at least one statutory ground enumerated in § 43-292, the Court of Appeals did not need to consider the suf­ficiency of the evidence concerning the other statutory grounds for termination identified by the juvenile court. Accordingly, the court concluded the juvenile court did not err in finding that all four children came within the meaning of § 43-292(7).

Best Interests.

The Court of Appeals then turned to the second prong of the termination analysis and examined whether the record contained clear and convincing evidence that termination of Amber’s parental rights was in the best interests of the children. A child’s best interests are presumed to be served by having a relationship with his or her parent. 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 has caused, or will result in, detriment to a child’s well-being. A termination of parental rights is a final and com­plete severance of the child from the parent and removes the entire bundle of parental rights. Therefore, with such severe and final consequences, parental rights should be terminated only in the absence of any reasonable alternative and as the last resort. The law does not require perfec­tion of a parent. Instead, we should look for the parent’s continued improvement in parenting skills and a beneficial relationship between parent and child.

The Court of Appeals concluded that the State failed to adduce clear and convincing evidence that termination of Amber’s parental rights was in the children’s best interests. The Court of Appeals acknowledged that the record contained substantial evidence tending to demonstrate that Amber was unfit to parent her children at the time of trial. Specifically noting that Amber has a history of addiction and suffers from severe mental illnesses, and she failed to participate consistently in court-ordered services intended to address the same. After more than a year of juvenile court involvement, Amber failed to progress beyond weekly supervised visitation with her children, and Amber’s participation in visitation was troublingly irregular.

From the Court of Appeal’s review of the record, Amber’s ongoing struggle with mental illness remained at all times the primary concern for the family, and the record demonstrated that Amber’s opportunities to make progress on her mental health were severely limited. At the outset of this case, Amber was recom­mended to continue taking multiple prescription medications intended to address her mental illness. Furthermore, Amber was at all times ordered to participate in medication man­agement. Yet, for much of this case, and through no fault of Amber’s, it appears there were no medications to manage. Rather, Amber went without her prescribed medications for a significant portion of this case. Despite her severe mental illness being the sole basis for the State’s amended petition, the Court of Appeals surmised very little was done to provide Amber with a reasonable opportunity to achieve stabil­ity in that regard. Nevertheless, Amber managed to make substantial progress through at least the first half of this case. She consistently participated in weekly visits, many of which occurred in her home. Amber also fully participated in a plethora of court-ordered services. Notably, Amber successfully completed over a month of inpatient treatment. Thereafter, Amber was recom­mended to continue outpatient treatment at the same facility but was precluded from doing so due to “payment concerns.” The Court of Appeals noted testimony from the DHHS case manager that DHHS could not afford to pay for Amber’s medications, concluding that it was difficult to rec­oncile the court’s orders that DHHS pay for Amber’s services with the apparent realities of this case.

Further, the Court of Appeals found the record in this case to be severely lacking with regard to information necessary to assess the best interests of the children. Because the primary consideration in determining whether to terminate parental rights is the best interests of the child, a juvenile court should have at its disposal the informa­tion necessary to make the determination regarding the minor child’s best interests regardless of whether the information is in reference to a time period before or after the filing of the termination petition. The Court of Appeals cautions against the use of a case manager as a proxy for all of the other witnesses whose expertise and testimony are helpful, and perhaps essential, in determining what is in a child’s best interests.

Altogether, the court concluded that the record in this case was unacceptably inadequate, noting that the State focused almost exclusively on Amber’s shortcomings, neglecting to adduce much of the evidence germane to the best interests of the children. The Court of Appeals determined the juvenile court did not err in finding clear and convincing evidence of a statutory basis for termination of parental rights under § 43-292(7). However, it concluded the State failed to adduce clear and convincing evidence that ter­minating Amber’s parental rights was in the best interests of the children. Accordingly, the Court of Appeals reversed the order of the juvenile court terminating Amber’s parental rights with respect to all four children and remanded the cause for further proceedings.