In Interests of Owen, 36539
| Decision Date | 13 October 1967 |
| Docket Number | No. 36539,36539 |
| Citation | 153 N.W.2d 361,182 Neb. 132 |
| Parties | In the Interests of Tammy OWEN, a minor child under the age of eighteen years. W. R. MULLIKIN, Appellee, v. Connie Owen LUTKEHUSE and Devonna Dennis, Appellants. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. An appeal from a finding and judgment of the district court by authority of Chapter 43, article 2, R.R.S.1943, that a child is neglected or dependent is disposed of in this court by trial de novo upon the record.
2. The courts may not properly deprive the parents of the custody of their children unless it be shown that such parents are unfit to perform the duties and responsibilities of parenthood, or that they have forfeited that right.
3. Where a parent has been shown to be unfit to have the care and custody of a minor child, the primary concern of the court is the best interest and welfare of the child.
4. A neglected child is a child under 18 years of age who is abandoned by his parent, who lacks proper parental care by reason of the fault or habits of the parent, or whose parent neglects or refuses to provide proper or necessary subsistence, education, or other care necessary for the health, morals, or well-being of such child.
5. A child must in fact be dependent and neglected at the time proceedings are instituted to have it declared a neglected and dependent child, or it must be in danger of so becoming in the near future.
Kelly & Kelly, Grand Island, for appellants.
W. R. Mullikin, County Atty., North Platte, for appellee.
Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.
This is a proceeding under Chapter 43, article 2, R.R.S.1943, brought by the county attorney of Lincoln County to have Tammy Kay Owen, a female child born in September 1965, declared to be a dependent and neglected child. After a trial, the district court found Tammy Kay Owen to be a neglected child and committed the custody of such child to the Nebraska Children's Home Society of Omaha, Nebraska, and authorized such society to place the child in a suitable adoptive home and to that end to execute the consent necessary for such adoption. Connie Owen Lutkehuse and Devonna Dennis, mother and maternal grandmother, respectively, have appealed.
At the time the incidents arose resulting in the filing of the petition the child was in care of Devonna Dennis, the maternal grandmother. They were living in a small home adequate for their use. The home was fairly clean and comfortable. Devonna was drawing an allotment under the Aid for Dependent Children program. Such aid had first been granted to Connie Owen, the mother of the child, but it had been terminated and a new allotment made to Devonna because of Connie's abandonment of the child.
The evidence establishes the following facts: Devonna Dennis had the physical custody of Tammy Kay. The child was healthy and appeared to be well cared for, although the home was described as cluttered and not always clean. Devonna was separated from her last husband and between husbands was the mother of two illegitimate children. Connie Owen was the unwed mother of Tammy. She named a certain man as the father of the child but admitted there were other men who could have been the child's father. Connie was 18 years of age when Tammy was born on September 30, 1965. Connie was away from the home and her child so much of the time that the A.D.C. checks were shifted from Connie to Devonna. A case worker for the Lincoln County public welfare department testified that she found Connie living with a man at a motel in North Platte which was not denied. It was established also that Connie had become pregnant a second time while unmarried, although she married the putative father, Harold Lutkehuse, after this litigation was commenced. There is evidence in the record that Connie has abandoned the child to the care of Devonna. There is also evidence that Devonna kept the child out late at...
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