State v. Teresa S.

664 N.W.2d 488, 12 Neb. Ct. App. 13, 2003 Neb. App. LEXIS 190
CourtNebraska Court of Appeals
DecidedJuly 8, 2003
DocketNo. A-01-1383
StatusPublished
Cited by1 cases

This text of 664 N.W.2d 488 (State v. Teresa S.) is published on Counsel Stack Legal Research, covering Nebraska Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Teresa S., 664 N.W.2d 488, 12 Neb. Ct. App. 13, 2003 Neb. App. LEXIS 190 (Neb. Ct. App. 2003).

Opinions

Hannon, Judge.

INTRODUCTION

The juvenile court terminated the parental rights of Teresa S. and Kevin G., divorced and separated parents, as to their children pursuant to Neb. Rev. Stat. § 43-292(2), (4), and (6) (Reissue 1998). Teresa and Kevin separately appeal, but both resist termination of their respective rights, and when common reference to both herein is meaningful, we therefore designate them as “the appellants.” The children have been in foster care since July 2000, [15]*15and both of the appellants admit that they could not care for the children appropriately at the time of the hearing but resist termination of their parental rights in order to retain their visitation rights. We conclude that the condition described in § 43-292(6) exists, but that the State did not prove by clear and convincing evidence that termination of the appellants’ rights is in the children’s best interests. Accordingly, we reverse, and remand with directions to dismiss the State’s motion.

BACKGROUND

The appellants are the biological parents of Heather G., Spencer G., and Alex G., who were ages 10, 12, and 13, respectively, at the time of the termination hearing on November 26, 2001. Two of the children have special needs: Alex has cerebral palsy, and Spencer has “ADHD,” which Kevin called “ADD hypertension deficit,” for which Spencer takes the medication “adderal.” The family has a long history of contacts with the Department of Health and Human Services (the Department) and the juvenile court. The appellants were divorced on December 21, 1993, and Teresa initially had custody of the children pursuant to the divorce decree. There had been some contact between the family and the Department before the divorce, but that is not meaningful at this time. The children were taken from Teresa and placed in foster care through juvenile court proceedings in late 1993. Two years later, Kevin obtained custody and retained it except when the children were placed as outlined below. The last proceeding for adjudication was commenced on July 18, 2000. We glean the following history from the record:

Teresa had lived with Junior M. for approximately 8 years preceding the termination hearing. They split household expenses equally. Their relationship is and has been a turbulent one, with arguments in front of the children and, on at least one occasion, an assault of Teresa by Junior. Spencer is afraid of Junior. Junior refused to be part of a case plan. Teresa has been allowed to visit the children regularly since they were removed from her care in 1995, and she has always done so when allowed. Recently, because of Junior, visitations have been at the home of Teresa’s mother. Teresa works at Triad Fasteners and takes home approximately $1,000 per month. She received a $10,000 settlement for [16]*16a personal injury claim, but after paying bills, she still had to file for bankruptcy. She has been ordered to pay $75 per month in child support and has done so, except that she was approximately $300 behind at the time of the termination hearing.

A clinical psychologist examined and tested Teresa in November 2000. The record contains his thorough opinion. It contains much that would support a conclusion that Teresa is unlikely to be able to have custody of the children in the foreseeable future. On the other hand, it contains nothing which would indicate that her visits with the children would be harmful to them. Otherwise, the opinion is not helpful to a resolution of the case. The evidence of Teresa’s relationship with the children will be summarized later.

It is clear that the children cannot live with Teresa and Junior. Apparently, Teresa recognizes that she is not and will not be in a position to have custody of the children. She admitted as much and resists termination of her parental rights because she wants to preserve her visitation rights. Specifically, she does not seek physical or legal custody of the children, but wishes to preserve her right to visit the children.

Apparently, when Kevin obtained custody of the children in late 1995, he was living with his girl friend, Carol L. Carol has two children of her own, ages 14 and 16 at the time of the termination hearing. Kevin’s and Carol’s families lived together from the time Kevin obtained custody until June 1997. At that time, Carol was accused of abusing Alex. Kevin obtained his own home, and the appellants’ children lived with him for 2V2 years. He was able to acquire and maintain the home with the help of the Department of Housing and Urban Development (HUD). The children lived with him until they were finally removed in these proceedings in July 2000. However, while he had custody, there were proceedings against him, and the children were placed in foster care. In September 1997, the children were removed for several months. In October 1998, they were removed on a complaint through their school that Kevin had abused them, and a voluntary placement in foster care was arranged. There was also a complaint that Kevin had touched Heather improperly, but the allegations of this complaint were not established and it was dismissed.

[17]*17When the children were removed in these proceedings on July 18, 2000, Kevin lost the help of HUD and consequently lost possession of the home. If the children were placed back with him now, he would still have to wait 3 years for HUD assistance. He now lives with Carol, who has indicated that she has no interest in parenting Alex but is willing to parent Spencer. In substance, Kevin testified that Carol is not capable of parenting Alex because of his special needs.

At the time of the termination hearing, Kevin had been working at the Saddle Club as a cook for approximately 6 weeks, making $7 per hour, for approximately 30 hours per week. Before that, he had worked for Monfort, but had lost that job when he was arrested for the alleged sexual assault of Heather. (The charge was never substantiated and was dismissed.) For a while after he lost his job with Monfort, he was unemployed, and he did not give a satisfactory explanation for this unemployment. At the hearing, he admitted that he does not have enough money to support the children adequately. One of the grounds for adjudication was that he had a boa snake in the home. He testified that he likes snakes and maintained that the snake did not endanger the children. He also likes to go to meetings with friends who own motorcycles, and in violation of a case plan, he went to such meetings at a bar. There is evidence that he has had drug and alcohol problems in the past, but no evidence that he has recently used drugs or alcohol to excess.

Before the termination hearing, Kevin was visiting the children from 9 a.m., when he picked them up, until about 3 or 3:30 p.m. once a week. He testified that when he told the children in October that officials wanted to terminate his parental rights, “Alex was bawling. Spencer [was] kind of like, you know, tearing, and Heather... was off in left field.” He did agree with Joan Prince, a child protective service worker for the Department, that Alex seems happy in his present foster care. Kevin’s relationship with the children will be further summarized later.

In December 1993, the children were removed from Teresa’s custody because a babysitter reported that mice and cockroaches were in the home, that the home was dirty, and that she had observed the children playing sexually with one another.

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Related

In Re Heather G.
664 N.W.2d 488 (Nebraska Court of Appeals, 2003)

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Bluebook (online)
664 N.W.2d 488, 12 Neb. Ct. App. 13, 2003 Neb. App. LEXIS 190, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-teresa-s-nebctapp-2003.