In Re Interest of DLS

432 N.W.2d 31, 230 Neb. 435, 1988 Neb. LEXIS 422

• Court: Nebraska Supreme Court
• Decided: November 23, 1988
• Docket: 87-858
• Status: Published

Opinions

Per Curiam.

In this termination of parental rights case, the father voluntarily relinquished his rights in and to his now 3-year-old daughter, D.L.S. The county court, in the exercise of its powers as a juvenile court, then terminated the mother’s parental rights in and to said child. The mother has appealed. Her guardian ad litem and her daughter’s guardian ad litem have both aligned themselves with the mother. The errors assigned by and on behalf of the mother combine to challenge (1) certain evidentiary rulings, (2) the reasonableness of the plan of rehabilitation, and (3) the sufficiency of the evidence to support the judgment of termination. We affirm.

The child originally came to the attention of the Nebraska Department of Social Services when her parents brought her into a medical clinic at York, Nebraska, on July 7, 1986, because of a soft lump on the then 14-month-old’s head. The physician examining the child discovered a skull fracture, but found no other bruises and no evidence of trauma or brain damage. At that time the parents told the physician they were not sure how the child’s injury occurred. The physician testified that he had delivered the child and that until the head injury, she had been receiving “very good care”; “the child was very clean, well fed. The clothes were clean. The child was usually dressed up in a very nice outfit.” There had, however, been some problems with overfeeding and with ear infections.

As a consequence of the report of the head injury by the clinic, a petition was filed alleging the child was within the purview of Neb. Rev. Stat. § 43-247(3)(a) (Cum. Supp. 1986) by virtue of being in a situation dangerous to life or limb or injurious to her health and morals, and thus was within the jurisdiction of the juvenile court.

Investigation revealed that the house in which the child lived with her parents was unsanitary in the extreme, and the child was placed in the temporary custody of the department. Following a series of hearings, the court below, on October 24, 1986, ordered that the mother, who is in her midtwenties, rehabilitate herself, so that she might be reunited with her daughter, by meeting a number of requirements within 90 days. The court reimposed essentially the same requirements on January 21, 1987, again to be accomplished within 90 days. These requirements, in summary, were that she (1) cooperate with the department in visiting her daughter and in taking instruction calculated to turn her into a competent parent, (2) secure psychotherapeutic services as deemed necessary by a designated clinic and as directed by the department, (3) secure and maintain steady employment so as to support herself and her child, (4) maintain an appropriate permanent residence for herself and her child, and (5) decide what to do about her relationship with her husband, the child’s father.

On May 15,1987, the State petitioned for termination of the mother’s parental rights, pursuant to the provisions of Neb. Rev. Stat. § 43-292 (Reissue 1984), asserting, on the one hand, that the mother had “substantially and continuously or repeatedly” neglected the child and refused to give her necessary parental care and protection and, on the other hand, that she was incapable of proper parenting “because of mental illness or mental deficiency” which was reasonably believed would “continue for a prolonged indeterminate period.” The petition also avers that reasonable efforts made under the supervision of the court below failed to remove the conditions which endangered the child’s life, limb, health, or morals, and concluded that termination of the mother’s rights would be in the child’s best interests.

In turning our attention to the claims of evidential error, we begin by recalling that the Nebraska Evidence Rules, Neb. Rev. Stat. §§ 27-101 to 27-1103 (Reissue 1985), do not apply in juvenile court dispositional hearings such as one to terminate parental rights. Neb. Rev. Stat. § 43-283 (Reissue 1984); In re Interest of J.S., A.C., and C.S., 227 Neb. 251, 417 N.W.2d 147 (1987). See, also, In re Interest of J.K.B. and C.R.B., 226 Neb. 701, 414 N.W.2d 266 (1987). However, a proceeding to terminate parental rights must employ fundamentally fair procedures satisfying the requirements of due process, at which parents are entitled to cross-examine adverse witnesses. Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); In re Interest of J.S., A.C., and C.S., supra; In re Interest of J.K.B. and C.R.B., supra; In re Interest of R.A., 226 Neb. 160, 410 N.W.2d 110 (1987). Therefore, the requirements of due process control a proceeding to terminate parental rights and the type of evidence which may be used by the State in an attempt to prove that parental rights should be terminated. While the Nebraska Evidence Rules do not apply, they provide guidance in determining the type of evidence which meets due process requirements.

The mother’s first evidential concern focuses on the receipt into evidence of sundry reports dealing with the mental and physical condition and treatment of the child’s father and one of the mother’s boyfriends. The mother contends these documents were improperly received in evidence because they are not relevant and because they contain hearsay statements prejudicial to her, including the statements that the child was in foster care because of abuse and the father’s claim that the mother was promiscuous. Assuming that it was error to receive these reports in evidence, the error was harmless and thus provides no basis for reversing the judgment of the court below, for error without prejudice provides no ground for appellate relief. In re Interest of J.K.B. and C.R.B., supra.

No prejudice resulted because there was other evidence that the child suffered a skull fracture and that the mother had not been an adequate parent. Although at the termination hearing the father stated he did not know how his daughter was injured, he at one point prior to the hearing wrote a note saying he had caused his daughter’s head injury by striking her with his ring finger. There is no evidence or claim that the mother in any way herself abused the child, but two psychologists testified that the mother suffers from a dependent personality disorder. The first psychologist testified that as a consequence, the mother allows others to assume responsibility for major areas of her life and will leave major parenting decisions to others. Both psychologists were concerned that the mother would choose a boyfriend or spouse who would take control even if such relationship were harmful to the child. The second psychologist nonetheless expressed the opinion that the mother was capable of protecting her daughter from day-to-day dangers. One of these psychologists opined that with therapy which could take as long as 2 years, the mother “could” overcome her dependent personality disorder. The other expressed the opinion that the dependent personality condition was “potentially” treatable with long-term therapy over an indeterminate period of time.

The mother’s second evidential complaint is that a self-employed clinical social worker was permitted, over objection, to testify, based on reports of three psychologists, the two psychologists mentioned earlier and another with whom the social worker maintained a professional relationship, that the mother suffered from a mental deficiency, a “brain dysfunction,” which would prevent her from ever acquiring adequate parenting skills. While this social worker at one point testified that both she and the psychologist with whom she maintained a “liaison” went over various psychological tests and the reports of the two other psychologists, one of whom specifically ruled out any “intellectual deficiency,” it was the psychologist with whom she was professionally related who “interpret[ed] all of the psychological tests,” as the social worker was not herself competent to do so. Thus, the social worker was not expressing her own opinion as to the existence of a brain dysfunction, by which statement we do not mean to suggest the record establishes she is qualified to make such a diagnosis, but in reality was merely parroting her professionally related psychologist’s thoughts. Since a parent has the right to cross-examine an adverse witness appearing in a proceeding to terminate her parental rights, the mother correctly contends that by presenting the social worker’s related psychologist’s thoughts in this hearsay fashion, the State impermissibly deprived her of the opportunity to cross-examine the absent psychologist. In re Interest of J.K.B. and C.R.B., 226 Neb. 701, 414 N.W.2d 266 (1987); In re Interest of N. A, 226 Neb. 160, 410 N.W.2d 110 (1987).

This determination, however, does not end our inquiry, for in a termination of parental rights case, this court tries the factual issues de novo on the record and reaches a conclusion independent of the trial court; provided, that when the evidence is in conflict, we consider and may give weight to the trial court’s observation of the witnesses and its acceptance of one version of the facts rather than another. In re Interest of A.Z., B.Z., and R.Z., post p. 291, 430 N.W.2d 901 (1988); In re Interest of J.D.M., ante p. 273, 430 N.W.2d 689 (1988); In re Interest of Z.D.D. and N.J.D., ante p. 236, 430 N.W.2d 552 (1988); In re Interest of D.C., 229 Neb. 359, 426 N.W.2d 541 (1988). See, also, In re Interest of L.O. and B.O., 229 Neb. 889, 429 N.W.2d 388 (1988). In such de novo review, we must disregard impermissible or improper evidence, In re Interest of A.Z., B.Z., and R.Z., supra, and In re Interest of J.S., A.C., and C.S., 227 Neb. 251, 417 N.W.2d 147 (1987), even if the mother had not assigned the admission of such evidence as error, provided that, as is true in this case, an appropriate objection was made at trial. Thus, we must consider whether the evidence independent of the clinical social worker’s testimony clearly and convincingly, In re Interest of J.S., A.C., and C.S., supra (citing Castellano v. Bitkower, 216 Neb. 806, 346 N.W.2d 249 (1984)), establishes grounds for terminating the mother’s parental rights.

Since a parent’s failure to make reasonable efforts to comply with a court-ordered plan of rehabilitation designed to reunite the parent and child presents an independent reason justifying termination of parental rights under § 43-292(6), In re Interest ofA.Z., B.Z., andR.Z., supra, and In re Interest of L.O. and B. O., supra, we begin by considering the plan and the mother’s performance with respect to it.

As to the first aspect of the plan, that the mother cooperate with the department in visiting her daughter and in taking instruction calculated to turn her into a competent parent, the evidence establishes that the mother did cooperate with the department in visiting her daughter and did take the required instruction. The evidence also establishes, however, that although the mother has shown some improvement in her parenting ability, she has not succeeded in applying much of what she has been taught. A social worker employed by the department testified that at the time she saw the mother’s residence, it met “minimal standards” but nonetheless “would have had to have been much cleaner to allow unsupervised visits.”

The evidence shows that the mother bought the child gifts, had her room redecorated, and greeted her warmly during visits. While initially the child was excited to visit with her mother, as time went on the child became less affectionate toward her mother. On at least one occasion, discipline was observed to break down to the point that the mother and daughter “verbally attacked] each other,” and many of the mother’s comments to the child were negative or neutral. The same social worker who found the mother’s residence to meet no more than minimal standards was also of the opinion that the mother had difficulty meeting her daughter’s physical, emotional, and intellectual needs and would never be able to provide the child with a stable environment. Following the recent visits with her mother, the child became hyperactive, buried herself in play, cried herself to sleep, lost her appetite, had nightmares, and took a couple of days to return to normal. What is not clear from the record is whether this reaction was the result of the child’s interaction with her mother or, rather, was the result of sorrow at being separated from her mother.

The mother attacks the reasonableness of the second aspect of the plan, that she secure psychotherapeutic services as deemed necessary by a designated clinic and as directed by the department, by arguing that the court below impermissibly abdicated its judicial responsibility by leaving the nature and frequency of the therapy to be administered to the discretion of the clinic and department. The attack is well founded. Although a juvenile court judge certainly cannot be expected to diagnose a parent’s condition, determine whether treatment is indicated, and then design a course of treatment, any treatment made a part of a rehabilitation plan must be specifically ordered by the court. In re Interest of 221 Neb. 396, 377 N.W.2d 521 (1985); In re Interest of L.J, J.J., and J.N.J., 220 Neb. 102, 368 N.W.2d 474 (1985). In this way, the juvenile court can assure itself that the treatment recommended is reasonably related to the rehabilitative objective of its plan. In re Interest of L.O. and B.O., 229 Neb. 889, 429 N.W.2d 388 (1988); In re Interest of J.S., A.C., and C.S., 227 Neb. 251, 417 N.W.2d 147 (1987).

Notwithstanding the legal infirmity of the subject aspect of the plan, the fact remains that the mother did undergo the psychotherapy as required by the designated clinic and the department. Contrary to the mother’s claim that such therapy had nothing to do with her dependent personality disorder, the evidence is that part of the therapy was directly aimed at helping her make decisions on her own. The lack of that ability is the essential feature of the disorder in question.

The plan next required that the mother secure and maintain steady employment so as to support herself and her child. The record shows that by the time of the termination hearing, the mother had obtained part-time employment as a waitress, earning minimum wages and gratuities.

The plan also required that the mother maintain an appropriate residence for herself and her child. The evidence establishes that the mother was more peripatetic than most, having moved four times in a 10-month period. However, each residence provided space, bedding, and furnishings for her daughter. At the time of the termination hearing, the mother was maintaining a household in an apartment she was sharing with her sister.

Finally, the plan required that the mother decide what to do about her relationship with her husband, who was abusive toward both her and the child. The evidence is that she decided to dissolve the marriage, and did so.

This brings us, then, to the question of whether the evidence establishes the grounds for termination of the mother’s parental rights as alleged in the State’s petition; that is, does the evidence establish that the mother (1) continuously or repeatedly neglected or refused to give her daughter necessary care and protection, and, if so, (2) failed to substantially comply with the juvenile court’s plan to rehabilitate her to a condition whereby she and her daughter, consistent with the latter’s well-being, could be reunited, or, if not, (3) suffers from a “mental illness or mental deficiency” which is reasonably believed will “continue for a prolonged indeterminate period”?

The evidence convinces us the mother gave her child such care and protection as her abilities enabled her to provide. Thus, we must conclude the evidence fails to establish the State’s first ground for termination.

Neither does the evidence establish that the mother failed to comply with the juvenile court’s plan of rehabilitation. She did substantially all that was required of her, albeit she failed to obtain employment as quickly as directed. She took all the training and therapy she was directed to take. While the housing she maintained met no more than minimum standards, it cannot be said that housing which meets minimum standards provides a basis for terminating parental rights. She dealt with her relationship with her husband by divorcing him. Thus, the evidence fails as well to establish the State’s second ground for termination.

The third and last ground for termination, however, is another matter. The evidence establishes that although the mother did what the plan of rehabilitation required of her, she remained substantially incapable of applying what she was taught. She was not unwilling to do what was asked in an effort to learn to become a competent parent, but she found herself unable to acquire the requisite skills. While the record ascribes no specific reason for the existence of this lack of learning ability, there is no question but that it is present. Expert evidence is not required to establish matters which are self-evident. See Johannes v. McNeil Real Estate Fund VIII, 225 Neb. 283, 404 N.W.2d 424 (1987). Thus, notwithstanding the lack of expert opinion that the mother suffers from a “mental deficiency,” the evidence compels the conclusion that such a deficiency nonetheless exists. See, also, In re Interest of J.D.M., ante p. 273, 430 N.W.2d 689 (1988); In re Interest of R.L.T., 221 Neb. 251, 376 N.W.2d 310 (1985).

In the context of a statute which permitted the sterilization of “mentally deficient” patients seeking release from a certain state institution, we said the statute referred to those who were “feeble-minded” or “mentally retarded.” State v. Cavitt, 182 Neb. 712, 157 N.W.2d 171 (1968), reh’g denied 183 Neb. 243, 159 N.W.2d 566, appeal dismissed 396 U.S. 996, 90 S. Ct. 543, 24 L. Ed. 2d 490 (1970). Whatever “feeble-minded” or “mentally retarded” may mean in its various contexts, we hold that as used in § 43-292(5), “mental deficiency,” as distinguished from “mental illness,” includes an impairment in learning capacity such that one is unable to profit from instruction and acquire parenting skills. See Halderman v. Pennhurst State School & Hospital, 446 E Supp. 1295 (E.D. Pa. 1977), modified 612 F.2d 84 (3d Cir. 1979).

Having made that determination, it is necessary to remind ourselves that the foremost purpose and objective of the Nebraska Juvenile Code is the promotion and protection of a juvenile’s best interests, with preservation of the juvenile’s familial relationship with her or his parents where the continuation of such parental relationship is proper under the law. In re Interest of J.S., A.C., and C.S., 227 Neb. 251, 417 N.W.2d 147 (1987). Thus, the crucial question becomes whether the determination that the mother suffers from a mental deficiency in the previously reviewed context clearly and convincingly establishes that it is in the daughter’s best interests that her mother’s parental rights be terminated. We must conclude that the record does so establish.

There is no evidence whatsoever regarding the curability of the mother’s mental deficiency as such. To the extent it can be inferred the mother’s inability to learn is but a component of her dependent personality disorder, the evidence is only that the disorder is potentially treatable and only that the disorder “could” be overcome. No psychologist expressed an opinion based on reasonable psychological certainty that the mother’s disorder would be cured.

Psychological evidence based on possibility is no less speculative and conjectural than like testimony by other experts. Just as we require medical opinions to be based on reasonable medical certainty, Caradori v. Frontier Airlines, 213 Neb. 513, 329 N.W.2d 865 (1983), so do we require that psychological opinions be based on reasonable psychological certainty.

Moreover, even to the extent the disorder is theoretically treatable, assuming that to mean it is curable, the record tells us that the treatment would extend over an indeterminate period. The only concrete suggestion is that treatment would take another 2 years. We cannot gamble away an additional 2 years of this child’s life on the speculative hope that the mother can overcome the deficiency which she, albeit through no fault of her own, brought to motherhood. As we have noted in the past, a child cannot, and should not, be suspended in foster care, nor be made to await uncertain parental maturity. In re Interest of Z.D.D. and N.J.D., ante p. 236, 430 N.W.2d 552 (1988); In re Interest of R.A., 226 Neb. 160, 410 N.W.2d 110 (1987). See, also, In re Interest of J.D.M., supra.

Affirmed.

Fahrnbruch, J., concurs in the result.