In Re Interest of CK

484 N.W.2d 68, 240 Neb. 700, 1992 Neb. LEXIS 154
CourtNebraska Supreme Court
DecidedMay 15, 1992
DocketS-91-307, S-91-308
StatusPublished
Cited by44 cases

This text of 484 N.W.2d 68 (In Re Interest of CK) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Interest of CK, 484 N.W.2d 68, 240 Neb. 700, 1992 Neb. LEXIS 154 (Neb. 1992).

Opinions

Shanahan, J.

The biological mother of three children, Lloyd, born January 9, 1984; Gena, born May 12, 1985; and Christy, born October 28, 1986, appeals from the judgments of the county court for Dodge County, sitting as a juvenile court pursuant to Neb. Rev. Stat. § 43-245 (Cum. Supp. 1990), which terminated the mother’s parental rights concerning her children. Termination was based on Neb. Rev. Stat. § 43-292(1) (Reissue 1988) (abandonment of a child for at least 6 months immediately before the filing of a petition to terminate parental rights), § 43-292(2) (substantial and continuous or repeated neglect of a juvenile and refusal to provide parental care and protection for the juvenile), and the court’s conclusion that termination of parental rights was in the children’s best interests. The children’s biological father is not involved in these appeals. We affirm.

STANDARD OF REVIEW

In an appeal from a judgment terminating parental [702]*702rights, an appellate court tries factual questions de novo on the record, which requires an appellate court to reach a conclusion independent of the findings of the trial court, but, when evidence is in conflict, an appellate court considers and may give weight to the fact that the trial court observed the witnesses and accepted one version of the facts rather than another.

In re Interest of M.P., 238 Neb. 857, 858, 472 N.W.2d 432, 434 (1991). Accord, In re Interest of A.H., 237 Neb. 797, 467 N.W.2d 682 (1991); In re Interest of J.S., A.C., and C.S., 227 Neb. 251, 417 N.W.2d 147 (1987); In re Interest of T.C., 226 Neb. 116, 409 N.W.2d 607 (1987).

“The unequivocal language of § 43-292 imposes two requirements before parental rights may be terminated. First, requisite evidence must establish existence of one or more of the circumstances described in subsections (1) to (6) of § 43-292. Second, if a circumstance designated in subsections (1) to (6) is evidentially established, there must be the additional showing that termination of parental rights is in the best interests of the child, the primary consideration in any question concerning termination of parental rights. The standard of proof for each of the two preceding requirements prescribed by § 43-292 is evidence which is ‘clear and convincing.’ ”

In re Interest of M.P., 238 Neb. at 859, 472 N.W.2d at 434 (quoting In re Interest of J.S., A.C., and C.S., supra). See, also, In re Interest of T.C., supra.

“In the absence of any reasonable alternative and as the last resort to dispose of an action brought pursuant to the Nebraska Juvenile Code... termination of parental rights is permissible when the basis for such termination is proved by clear and convincing evidence.” In re Interest of T.C., supra at 117, 409 N.W.2d at 609. Accord, In re Interest of A.H., supra; In re Interest of J.S., A.C., and C.S., supra. “ ‘[C]lear and convincing evidence means and is 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 J.S., A. C., and C. S., supra at 266, 417 N.W.2d at 157 (quoting from Castellano [703]*703v. Bitkower, 216 Neb. 806, 346 N.W.2d 249 (1984)).

In re Interest of M.P., 238 Neb. at 859-60, 472 N.W.2d at 434.

BACKGROUND FOR PARENTAL RIGHTS TERMINATION

The hearing to terminate the mother’s parental rights occurred on February 13,1991.

Anonymous reports regarding abuse of Lloyd and Gena brought the children to the attention of the Department of Social Services (DSS) and resulted in the mother’s voluntarily working with DSS concerning her children’s well-being. Within a few weeks after Christy’s birth, the child was hospitalized because “she was failing to gain weight and was, in fact, losing weight.” An attending physician suspected that Christy was not getting enough food and conveyed his suspicions to authorities, who placed Christy in a foster home on December 29, 1986. Although the juvenile court, on January 7,1987, adjudged that Christy was a child within the court’s jurisdiction, based on Neb. Rev. Stat. § 43-247(3)(a) (Reissue 1988) (lack of proper child care as the result of parental fault or habit; parental neglect or refusal to provide necessary subsistence or care necessary for a child’s health, morals, and well-being), Christy was returned to her mother on January 14. However, on January 22, DSS personnel learned about the three children in their mother’s home, where Christy was suffering from “pinkeye” and Lloyd, then 3 years old, and Gena, nearly 2, were locked in a bedroom. Police removed the hungry and dirty children from the home. On February 18, the court adjudicated that Lloyd and Gena were children within the purview of Nebraska’s Juvenile Code, pursuant to § 43-247(3)(a).

On March 4, the court ordered a rehabilitation plan to facilitate reunion of the children with their mother. The plan required that the mother abstain from consumption of alcohol and use of drugs, participate in counseling and therapy sessions, and attend classes in parenting. However, soon after issuance of the plan, the mother broke her arm by hitting a car window during a drunken brawl, was absent from numerous counseling sessions, and skipped four of six scheduled parenting classes. On August 28, the court ordered a second [704]*704plan substantially similar to the previous plan, but the mother failed to comply with the second plan. The mother moved from place to place without telling DSS about her location. In fact, between February 1987 and August 1990, the mother lived at more than 30 different addresses while in 13 different cities in 6 different states, with Cloquet, Minnesota, as her most recent address just before the termination hearing. The mother missed several of the periodic 6-month review hearings to assess the mother’s rehabilitation under the court-ordered plan. Although ordered to pay $25 per child each month as child support, the mother paid no child support until the termination petitions were filed in January 1991. At the time of the hearing, the mother was working full time as a nurse’s aide and had recently commenced attendance at parenting classes and counseling sessions, after apparently terminating her common-law marriage, which began in 1989. On the mother’s return to Nebraska, and even shortly before the termination hearing, Gena and Christy did not recognize their mother. When Lloyd finally recognized his mother, he experienced great confusion and her return coincided with a resurgence of a severe behavioral problem in Lloyd.

The mother testified that her absence from review hearings was occasioned by her difficulties with finances and transportation. The longest period of the mother’s employment was “[m]aybe ...

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Bluebook (online)
484 N.W.2d 68, 240 Neb. 700, 1992 Neb. LEXIS 154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-interest-of-ck-neb-1992.