State v. McKee

304 N.W.2d 918, 208 Neb. 623, 1981 Neb. LEXIS 834
CourtNebraska Supreme Court
DecidedApril 24, 1981
DocketNo. 43399
StatusPublished
Cited by2 cases

This text of 304 N.W.2d 918 (State v. McKee) 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
State v. McKee, 304 N.W.2d 918, 208 Neb. 623, 1981 Neb. LEXIS 834 (Neb. 1981).

Opinion

Brodkey, J.

Richard and Mary McKee, appellants and natural parents herein, appeal to this court from an order entered by the separate juvenile court of Douglas County, Nebraska, terminating the parental rights to their child, Swannie Elizabeth McKee, born February 27, 1979. We affirm.

The facts which comprise the background of this matter indicate that on March 30, 1979, the Douglas County Attorney filed a petition in the juvenile court alleging that Swannie McKee was a child within the meaning of Neb. Rev. Stat. § 43-202(1) (Reissue 1978), [624]*624in that the child was under the age of 18 and without proper support through no fault of her parents. The petition also alleged that Richard and Mary McKee were unable to discharge their parental responsibilities because they were mentally retarded. In an order entered on that same date, the juvenile court ordered that temporary custody of the child be placed with Douglas County Social Services. The cause was continued for a detention hearing on April 10, 1979, at which time it was established that the Child Protective Services of Douglas County had received a referral from the University of Nebraska Medical Center concerning the infant McKee in March of 1979. At that time Swannie was 2 weeks old, but had gained only one-tenth of a pound in body weight and was experiencing internal bleeding, as evidenced by bloody stools. Testimony at the detention hearing established that the proximate cause of the infant’s internal bleeding was the fact that the natural mother had been feeding the baby table foods, such as canned fruit, vegetables, and meat. It was also established that Mary McKee experienced difficulties in understanding instructions on how to care for her child, and that both parents demonstrated poor “parenting” skills. The juvenile court determined that it was in the best interests of Swannie McKee that she remain in the temporary custody of Douglas County Social Services until an assessment could be made as to whether or not Richard and Mary were capable of taking care of the child.

Following a court-ordered psychological evaluation of both parents, an adjudication hearing was held on June 26, 1979. At that time the natural parents admitted that their child was a child within the meaning of § 43-202(1). The court admitted the psychological evaluations into evidence. On July 18, 1979, the court ordered that custody of Swannie McKee be placed in the State Department of Public Welfare for temporary foster care under the supervision of Douglas County Social Services, and also ordered that Richard and [625]*625Mary participate in rehabilitative programs, such as mental health counseling, nutrition, positive “parenting,” and financial planning.

It next appears that on January 25,1980, the Douglas County Attorney filed a motion seeking the termination of the parental rights between Richard and Mary McKee as to Swannie McKee. The motion alleged in pertinent part:

“IV. That Swannie Elizabeth McKee comes within the meaning of Nebraska Revised Statutes, Section 43-209 (6) R.S. Supp. 1978, because reasonable efforts, under the direction of the Court, have failed to correct the conditions leading to the aforementioned determination, to wit: A. That the natural parents were ordered by the Court to become involved in mental health counseling and a nutrition program on a regular basis. Both parents have failed, neglected, or refused to involve themselves in both mental health counseling and any nutrition program. B. That the natural parents have failed to become involved in a financial planning program as ordered by the Court. C. That the natural parents have failed to cooperate with the Child Protective Service worker, the Visiting Nurse’s Association, Foster Care worker, the Juvenile Court service officer, and the ENCOR worker as ordered by the Court.
“V. That Swannie Elizabeth McKee comes within the meaning of Nebraska Revised Statutes, Section 43-209 (5) R.S. Supp. 1978 because her natural parents are unable to discharge their parental responsibilities because of mental deficiency and there are reasonable grounds to believe such condition will continue for a prolonged indeterminate period, to wit: A. On or about September 28, 1979, Mary McKee, natural mother of said child, was psychiatrically evaluated and diagnosed as being mentally retarded; suffering from epilepsy; evidencing immature behavior; and functioning at the third grade level. B. On or about April 18, 1979, Mary McKee and Richard McKee, natural parents of said [626]*626child, were psychologically evaluated. The recommendation of the clinical psychologist was that the child, Swannie Elizabeth McKee, should not be returned to the possession and custody of her natural .parents.”

On February 27, 1980, a hearing on the motion for termination of parental rights was held, at which time the testimony of Barbara Schuett, the clinical psychologist who had previously examined Richard and Mary McKee, and Dr. Shashi Bhatia, a child psychologist who had also examined Mary McKee, was presented by the State. Both experts testified that their opinion was that Swannie McKee should not be returned to her natural parents because they had not learned the minimum requirements necessary for child care. Barbara Schuett also concluded, to the best of her professional knowledge, that the mental condition of both Richard and Mary McKee would continue for a prolonged indeterminate period. This likewise was the conclusion of Dr. Bhatia as to Mary. Based upon this testimony, the juvenile court found that Swannie McKee was a child within both subsections (5) and (6) of Neb. Rev. Stat. § 43-209 (Reissue 1978) and ordered that the McKees’ parental rights be terminated. A subsequent motion for new trial was overruled, and the appellants have appealed to this court, contending that the evidence presented was not sufficient to terminate their parental rights under § 43-209.

At the outset, we note that an appeal of a juvenile case to this court is heard by trial de novo upon the record; and also that the findings of fact by the trial court which heard and observed the witnesses and parties will be accorded great weight, and those findings will not be set aside on appeal unless they are against the weight of the evidence or there is a clear abuse of discretion. In re Interest of Morford, 207 Neb. 627, 300 N.W.2d 795 (1981); State v. Duran, 204 Neb. 546, 283 N.W.2d 382 (1979); State v. Logan, 204 Neb. 204, 281 N.W.2d 753 (1979). We have also held that an order of the juvenile [627]*627court terminating parental rights under § 43-209 must be supported by clear and convincing evidence. In re Interest of Hill, 207 Neb. 234, 298 N.W.2d 143 (1980); State v. Hamilton, 204 Neb. 537, 283 N.W.2d 66 (1979); State v. Souza-Spittler, 204 Neb. 503, 283 N.W.2d 48 (1979).

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Related

City of Lincoln v. NEB. LIQUOR CONTROL COM'N
304 N.W.2d 922 (Nebraska Supreme Court, 1981)
In INTEREST OF McKEE
304 N.W.2d 918 (Nebraska Supreme Court, 1981)

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Bluebook (online)
304 N.W.2d 918, 208 Neb. 623, 1981 Neb. LEXIS 834, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mckee-neb-1981.