Hamilton, In Interest of, 42307

• Decision Date: 11 September 1979
• Docket Number: No. 42307,42307
• Parties: In re Interest of Leta HAMILTON, Tina Hamilton, and Bobbi Jo Hamilton, children under 18 years of age. STATE of Nebraska, Appellee, v. Linda HAMILTON, natural mother, Appellant.
• Court: Nebraska Supreme Court

Page 66

283 N.W.2d 66

204 Neb. 537

In re Interest of Leta HAMILTON, Tina Hamilton, and Bobbi Jo Hamilton, children under 18 years of age.

STATE of Nebraska, Appellee, v. Linda HAMILTON, natural mother, Appellant.

No. 42307.

Supreme Court of Nebraska.

Sept. 11, 1979.

Syllabus by the Court

1. Parent and Child: Statutes: Evidence. An order terminating parental rights under section 43-209, R.R.S.1943, must be supported by clear and convincing evidence.

2. Parent and Child: Appeal and Error: Proof. Where review in this court is de novo and a correct judgment or order was made by the trial court, it will not be reversed because the trial court may have applied an incorrect standard of proof.

Michael C. Washburn of Starr, Slowiaczek & Washburn, P. C., Omaha, for appellant.

Donald L. Knowles, Douglas County Atty. and Robert E. Huston, Omaha, for appellee.

Heard before BOSLAUGH, CLINTON, and WHITE, JJ., and HAMILTON and HENDRIX, District Judges.

HENDRIX, District Judge.

This is an appeal from an order of the Separate Juvenile Court for Douglas County, Nebraska, terminating the parental rights of Linda Hamilton, now Linda Floyd, in three of her children, Leta, Tina, and Bobbi Jo Hamilton. The appellant will hereafter be referred to as Linda.

The original petition was filed by a deputy county attorney on September 7, 1976, and stated that Linda was the mother and Roberto Cantu was the father of the children. The petition further alleged dependency based upon section 43-202(1), R.S.Supp., 1975, and neglect based upon section 43-202(2)(b), R.S.Supp., 1975. A guardian ad litem for the children and attorneys for Linda and Roberto Cantu were appointed. Hearings were held regarding detention, evaluation, and review. On June 9, 1977, and pursuant to the stipulation of the parties, the children were adjudged dependent and the charge of neglect was dismissed. On June 9, 1977, and again at a review hearing on January 6, 1978, custody of the children was placed in the Douglas County Social Services at the home of Linda. At this time jurisdiction of the court over Roberto Cantu was terminated, he having died. Linda was ordered to make certain efforts to correct deficiencies in the care of the children. On March 21, 1978, a supplemental petition was filed alleging failure to correct the condition leading to the determination of dependency and praying for termination of parental rights. On March 30, 1978, a detention hearing was held at which Linda failed to appear, and an adjudication hearing was held on May 17, 1978, and again Linda failed to attend. Further disposition hearing was held on July 3, 1978, with Linda present. On that date the court terminated parental rights under authority of section 43-209(6), R.S.Supp., 1976. Upon a motion for new trial being overruled, this appeal was lodged. We affirm the judgment of the Separate Juvenile Court.

Facts recited to support the dependency stipulation were that just prior to the filing of the original petition the children were found very dirty and alone in a very dirty apartment. The children had the back panel off of a television set so that the wires were exposed and in reach of the children. One of the children had a wound on her foot that was swollen and evidently untreated. There was also mention of a bad condition regarding warm winter clothing.

During the pendency of the action, the court set down and continued conditions designed to correct the dependency. Guidance and supervision was ordered and provided by a number of persons throughout Douglas County. The court held hearings and admonished. Notwithstanding these efforts, however, there was no substantial improvement in the care which Linda gave the children. They continued to be dirty and ill-clothed. In a report of the supervisor of a day care center dated February 16, 1978, it was stated that the children had worn the same clothes every day since January 18th. At the center, it was frequently observed that Bobbi Jo had on no underwear. She wore clothes that had not been cleaned for an entire week and continued to wear them the following week without cleaning. It was necessary for the personnel at the day care center to bathe the children and clean their clothes. The children were seen without mittens or hats in very cold weather. Court directed...