IN RE DEWAYNE G., JR.

• Decision Date: 25 January 2002
• Docket Number: No. S-00-1074.,S-00-1074.
• Citation: 638 N.W.2d 510,263 Neb. 43
• Parties: In re Interest of DeWAYNE G., JR., and Devon G., children under 18 years of age. State of Nebraska, Appellee, v. DeWayne G., Sr., Appellant.
• Court: Nebraska Supreme Court

638 N.W.2d 510

263 Neb. 43

In re Interest of DeWAYNE G., JR., and Devon G., children under 18 years of age.

State of Nebraska, Appellee, v. DeWayne G., Sr., Appellant.

No. S-00-1074.

Supreme Court of Nebraska.

January 25, 2002.

Jay A. Ferguson, Omaha, for appellant.

James S. Jansen, Douglas County Attorney, and Kim B. Hawkotte, for appellee.

Thomas K. Harmon, of Respeliers and Harmon, P.C., Omaha, for guardian ad litem.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

HENDRY, C.J.

INTRODUCTION

The parental rights of DeWayne G., Sr. (DeWayne), to DeWayne G., Jr. (DeWayne Jr.), and Devon G. were terminated on September 12, 2000, by the separate juvenile court of Douglas County. The court ordered termination upon its finding that the following conditions existed: abandonment under Neb.Rev.Stat. § 43-292(1) (Reissue 1998); neglect under § 43-292(2); parental unfitness under § 43-292(4); and because the juveniles had been in out-of-home placement for 15 or more months of the most recent 22 months under § 43-292(7). DeWayne appealed. The Nebraska Court of Appeals reversed the juvenile court's decision and remanded the cause for further proceedings. The State petitioned for further review, which we granted.

FACTUAL BACKGROUND

DeWayne Jr. was born on February 14, 1996. On February 16, DeWayne Jr. was placed in the temporary custody of the Department of Social Services, now the Department of Health and Human Services (DHHS), because he was born with cocaine in his system.

At the time of DeWayne Jr.'s birth, DeWayne was married to a woman with whom he had three daughters. DeWayne and DeWayne Jr.'s biological mother were never married.

DeWayne's criminal history consists of felony convictions both before and after DeWayne Jr.'s birth. In 1996, DeWayne was found guilty of possession of crack cocaine in Holt County, Missouri. On February 7, 1996, DeWayne was sentenced by the circuit court for Holt County to 2 years' supervised probation. Almost a year later, in January 1997, DeWayne was sentenced in Douglas County, Nebraska, to intensive supervised probation for two theft convictions related to an incident which occurred in 1996. Later, in June 1997, DeWayne was sentenced in Douglas County, Nebraska, to intensive supervised probation on two additional theft convictions related to a second separate incident which occurred in 1996.

While on probation for these five felony convictions, DeWayne violated the terms of his Nebraska probation. On September 16, 1997, DeWayne's Nebraska probation officer observed DeWayne socializing at a time when his probation order required him to be at work. When DeWayne's probation officer approached him, DeWayne attempted to flee but was apprehended by the officer. DeWayne pled guilty to misdemeanor assault and operation of a vehicle without a license regarding this incident. His probation in Nebraska was revoked.

The incident on September 16, 1997, also resulted in the revocation of DeWayne's probation in Missouri. On October 24, 1997, DeWayne was sentenced to 2 years' incarceration in Missouri.

While incarcerated in Missouri, DeWayne successfully completed a drug and alcohol treatment program. On February 24, 1998, DeWayne was released on parole by the State of Missouri. DeWayne then returned to Omaha, where he was released on bond awaiting sentencing for the convictions pending in Nebraska. On August 18, 1998, DeWayne was sentenced on the four theft convictions. In total, DeWayne was sentenced to a minimum of 4 years 6 months' incarceration and a maximum of 6 years' incarceration. DeWayne was serving this sentence when the State filed for termination of his parental rights in the present action.

Since February 16, 1996, DeWayne Jr. has remained in the custody of DHHS. According to Jennifer Bivens, DeWayne Jr.'s caseworker, her first direct contact from DeWayne occurred approximately 6 months after DeWayne Jr. was born, when DeWayne telephoned and identified himself as DeWayne Jr.'s father.

The caseworker's second contact with DeWayne was in February 1997, when DeWayne Jr. was approximately 1 year old. DeWayne called Bivens and expressed concerns about establishing paternity and the possibility that he would incur child support obligations for DeWayne Jr. In March 1997, DeWayne again contacted Bivens, asking her to approve his visitation of DeWayne Jr. Later that same month, DeWayne and DeWayne Jr.'s biological mother met with Bivens, informing her they were going to have a second child.

Bivens approved DeWayne's visitation of DeWayne Jr., and her records indicate that DeWayne visited DeWayne Jr. on April 9, 11, and 16, 1997. At some point during this period of time, DeWayne also had his name placed on DeWayne Jr.'s birth certificate, identifying him as the father. DeWayne's visit with DeWayne Jr. on April 16 is the last recorded visit until the summer of 2000.

On December 22, 1997, the biological mother's parental rights to DeWayne Jr. were terminated. During that same month, DHHS instituted proceedings to terminate DeWayne's parental rights. This proceeding resulted in the termination of DeWayne's parental rights to DeWayne Jr. However, this order was later reversed by the Court of Appeals on February 23, 1999, for reasons unrelated to this appeal. In re Interest of Dewayne G., Jr., No. A-98-697, 1999 WL 111322 (Neb.App. Feb.23, 1999), modified 1999 WL 1338327 (Neb.App. July 27, 1999) (not designated for permanent publication).

Devon, DeWayne's second child with DeWayne Jr.'s biological mother, was born on October 23, 1997, 1 day prior to DeWayne's sentencing in Missouri. Devon was placed in the custody of DHHS on October 24 because, like DeWayne Jr., he was born with cocaine in his system. Bivens also served as Devon's caseworker. The biological mother's parental rights to Devon were subsequently terminated on July 16, 1998. While DeWayne was free on bond between June 3 and August 17, 1998, Bivens granted DeWayne visitation with Devon. DeWayne visited Devon five times during this 10-week period.

On April 19, 2000, DHHS filed a petition to continue temporary custody of DeWayne Jr. and Devon with DHHS and to terminate DeWayne's parental rights to both children. The court granted DHHS' motion for temporary custody on April 19. On April 25, the court held a review and permanency planning hearing concerning DeWayne Jr. and Devon, together with a hearing on the State's motion to continue temporary custody with DHHS and to terminate DeWayne's parental rights. DeWayne was present at the hearing and was represented by counsel.

At the hearing, the court found custody of both children should continue with DHHS, noting that because DeWayne was incarcerated, it would not be in the best interests of the children to place them in the parental home. The court further found that DeWayne's incarceration had prevented reasonable attempts to preserve the family prior to the children's current placement with DHHS. The court also granted DeWayne visitation with the children.

On May 16, 2000, DeWayne filed a motion requesting a hearing, inter alia, on whether the State had made reasonable efforts to reunify the children with DeWayne pursuant to Neb.Rev.Stat. § 43-283.01 (Reissue 1998).

The court held a hearing on May 26, 2000, regarding, among other things, DeWayne's request for a hearing pursuant to § 43-283.01. The court found it had addressed the issue of reasonable efforts under § 43-283.01 at the April 25 hearing. The court further found that reasonable efforts to reunify were being made in that visitation had been granted at the April 25 hearing. The court observed that because DeWayne was incarcerated, there were limited options regarding reasonable efforts to reunify. The court also noted that the facts of the case had not changed since the April 25 hearing. For these reasons, the court denied DeWayne's motion requesting a separate hearing pursuant to § 43-283.01.

At the termination hearing in August 2000, Bivens testified that DeWayne has had minimal contact with DeWayne Jr. and Devon over the years. According to her records, DeWayne visited DeWayne Jr. three times in April 1997 and visited Devon five times in the summer of 1998. Bivens also testified that DeWayne Jr. suffers from serious behavioral problems due to fetal alcohol syndrome. Nevertheless, Bivens testified that DeWayne Jr. has been in the same placement for 2½ years and that the placement family is interested in providing permanency for DeWayne Jr. She further testified that Devon has been in the same placement since birth and that the placement family is interested in providing permanency for Devon. Devon has not been diagnosed with any disabilities.

DeWayne testified that he had a strong desire to parent DeWayne Jr. and Devon and had taken parenting and job skills classes while incarcerated. He disputed Bivens' testimony that he had visited DeWayne Jr. only three times while DeWayne Jr. was an infant, asserting that he had regularly gone with the biological mother to visit the child from the time of DeWayne Jr.'s birth until April 1997. DeWayne further testified that the children had visited him three times while he was incarcerated in the summer of 2000 and that the visits had gone very well. According to DeWayne, Devon seemed shy and withdrawn, but DeWayne Jr. had been excited and "really surprised that he did have a father." DeWayne testified that he would be paroled in November 2000 and that his release date was July 2001.

On September 12, 2000, the court granted the State's motion terminating DeWayne's parental rights to DeWayne Jr. and Devon, finding that the State had proved all the grounds alleged in its petition by clear and convincing evidence and that termination was in the children's best interests. The court noted that "the children in interest cannot and should not be suspended in foster care, and be made to wait for uncertain parental maturity." At the...