In re Interest of Phoenix L.
| Decision Date | 13 January 2006 |
| Docket Number | No. S-05-537.,No. S-05-536.,S-05-536.,S-05-537. |
| Citation | 708 N.W.2d 786,270 Neb. 870 |
| Parties | In re INTEREST OF PHOENIX L., a child under 18 years of age. State of Nebraska, appellee, v. Sonya L., appellant. |
| Court | Nebraska Supreme Court |
Dennis R. Keefe, Lancaster County Public Defender, and Matthew G. Graff for appellant.
Gary E. Lacey, Lancaster County Attorney, and Lori Maret, Lincoln, for appellee.
Sonya L. appeals from two orders of the separate juvenile court of Lancaster County. In case No. S-05-537, Sonya appeals from the juvenile court's order terminating her parental rights to her daughter Hunter T. and her son, Jagger L., pursuant to Neb.Rev.Stat. § 43-292 (Reissue 2004), subsections (2) (neglect), (6) (failure to correct conditions leading to adjudication), and (7) (out-of-home placement). In case No. S-05-536, Sonya appeals from the juvenile court's order adjudicating Sonya's daughter Phoenix L. as a child within the meaning of Neb.Rev.Stat. § 43-247(3)(a) (Reissue 2004) and terminating Sonya's parental rights to Phoenix pursuant to § 43-292(2). The two cases were consolidated on appeal for purposes of oral argument, and we consolidate these cases for purposes of opinion and disposition.
In both cases, Sonya, a mother of non-Indian children, argues that the clear and convincing standard of proof required to terminate parental rights set forth in Neb. Rev.Stat. § 43-279.01(3) (Reissue 2004), to which she is subject, violates equal protection, because the standard of proof is less than that required to terminate the parental rights of parents of Indian children under the Nebraska Indian Child Welfare Act (NICWA), Neb.Rev.Stat. § 43-1501 et seq. (Reissue 2004). Under the NICWA, the standard of proof is beyond a reasonable doubt. In case No. S-05-537, Sonya claims that the juvenile court lacked subject matter jurisdiction to rule on the State's motion to terminate Sonya's parental rights. In case No. S-05-536, Sonya claims that there was insufficient evidence to adjudicate Phoenix. In cases Nos. S-05-536 and S-05-537, Sonya claims that there was insufficient evidence to terminate Sonya's parental rights to Hunter, Jagger, and Phoenix and that the evidence failed to prove termination of those rights was in the best interests of the children. Finding no merit to Sonya's assigned errors, we affirm.
Sonya is the natural mother of the following three minor, non-Indian children: Hunter, born on March 9, 1999; Jagger, born on October 31, 2001; and Phoenix, born on August 5, 2004. The record reflects that Sonya is also the natural mother of Angel L. On November 20, 1997, Sonya's parental rights to Angel were terminated pursuant to § 43-292(2), (6), and (7). Hunter's father is James T. James relinquished his parental rights to Hunter prior to March 10, 2005. Jagger's father is Justin C. Justin's parental rights to Jagger were terminated by the juvenile court on January 3, 2005. Justin filed a separate appeal challenging the order terminating his parental rights to Jagger, and that order was affirmed by this court in In re Interest of Jagger L., 270 Neb. 828, ___ N.W.2d ___ (2005). The record reflects that Jason G. alleges he is the father of Phoenix. There is no indication in the record as to the status of Jason's purported parental rights to Phoenix. None of the children's fathers are parties to appellate cases Nos. S-05-536 and S-05-537, which are the subject of this opinion.
The proceedings in case No. S-05-537 began on August 15, 2000, when a petition was filed in the juvenile court alleging that Hunter was a child within the meaning of § 43-247(3)(a) by reason of the fault and habits of Sonya. According to the record, Hunter, who at the time was approximately 17 months old, had been left by Sonya unattended or without proper supervision. On that same date, the juvenile court entered an order for temporary custody, removing Hunter from Sonya's custody and placing her in the custody of the Nebraska Department of Health and Human Services (DHHS). Hunter was placed in foster care on August 15. She has remained in foster care during the entirety of these proceedings.
On October 17, 2000, the juvenile court adjudicated Hunter under § 43-247(3)(a). Sonya did not appeal the adjudication order. On January 19, 2001, the juvenile court entered a rehabilitative plan, which, in summary, directed Sonya to obtain a psychological evaluation, participate in a drug and alcohol evaluation, participate and successfully complete a parenting program, and have reasonable visitation with Hunter. The primary permanency objective was reunification. Sonya did not appeal the disposition order establishing the rehabilitative plan. Periodic dispositional hearings were held. In orders filed on July 18, 2001, February 2 and December 27, 2002, and March 20, 2003, the court continued the original plan, with minor changes.
On October 1, 2002, a supplemental petition was filed in the juvenile court concerning Jagger. The supplemental petition alleged that he was a child within the meaning of § 43-247(3)(a) by reason of the fault and habits of Sonya. According to the record, a child protection worker had come to Sonya's apartment to see Sonya and had heard Jagger crying. Jagger was approximately 11 months old at the time. The worker had knocked on the apartment door for 15 minutes, and although the worker continued to hear Jagger crying, no response was received from anyone in the apartment. The worker called the police, who also knocked on the door for a period of time and also received no response. Thereafter, the police contacted the building manager and gained access to the apartment. Jagger was found alone behind a closed bedroom door, which bedroom the record reflects was filthy. Sonya was located asleep in a separate bedroom, with the door also closed. On October 1, the juvenile court entered an order for temporary custody, removing Jagger from Sonya's custody and placing him in the custody of DHHS. Jagger was placed in foster care on October 1. He has remained in foster care during the entirety of these proceedings.
Jagger was adjudicated on April 4, 2003. Sonya did not appeal the adjudication order. On May 2, the juvenile court entered a rehabilitative plan, which noted that poor progress had been made to alleviate the causes of out-of-home placement. This rehabilitative plan directed Sonya to complete a full psychological evaluation, participate in individual counseling sessions, supply DHHS with the names of all adults in her residence, obtain and maintain employment, maintain suitable housing to provide a safe and secure living environment, and have reasonable monitored visitation with Jagger. Sonya did not appeal the dispositional order setting forth the rehabilitative plan.
Periodic dispositional hearings were held involving both Hunter and Jagger. In orders filed October 1, 2003; March 17, May 14, and June 18, 2004; and January 3, 2005, the court continued the rehabilitation plan adopted on May 2, 2003, with minor changes. These orders noted that the primary permanency objective was reunification, but that an alternative permanency objective was adoption.
On May 3, 2004, in case No. S-05-537, the State filed a motion to terminate Sonya's parental rights to Hunter and Jagger pursuant to § 43-292(2), (6), and (7). On August 6, a petition was filed in a separate case in the juvenile court, concerning Phoenix, case No. S-05-536, alleging that she was a child within the meaning of § 43-247(3)(a) by reason of the fault and habits of Sonya. In summary, this petition alleged that siblings of Phoenix had been adjudicated and were in state custody and that Sonya had failed to correct the conditions that had led to adjudication of those children. Following the filing of the State's petition, the juvenile court entered an order for temporary custody, placing Phoenix in the custody of DHHS. On August 12, the juvenile court entered an order continuing Phoenix's custody with DHHS. Phoenix was placed in foster care in August 2004. She has remained in foster care during the entirety of these proceedings. On August 12, the State filed a motion to terminate Sonya's parental rights to Phoenix pursuant to § 43-292(2).
On March 10, 2005, an evidentiary hearing was held on the August 6, 2004, petition seeking to adjudicate Phoenix and on the motions to terminate Sonya's parental rights as to Hunter, Jagger, and Phoenix. At the start of the hearing, the court heard argument on several motions filed by Sonya. One of these motions was a motion to dismiss the juvenile proceedings, in which motion Sonya claimed that the differing standards of proof between the NICWA, § 43-1501 et seq., which requires that the termination of parental rights to an Indian child be supported by evidence beyond a reasonable doubt, and § 43-279.01, which requires that the termination of parental rights to children not covered by the NICWA be supported by clear and convincing evidence, violated the equal protection guarantees under the U.S. and Nebraska Constitutions. Sonya argued that she was being discriminated against on the basis of race, because as the mother of non-Indian children, her parental rights could be terminated by a showing of clear and convincing evidence—a lower standard of proof. Sonya had also filed a motion to continue the proceedings in the juvenile case involving Jagger, because Jagger's father, Justin, who had had his parental rights terminated by an order entered on January 3, 2005, was appealing that decision. Sonya argued that the father's separate appeal divested the juvenile court of jurisdiction of the motion to terminate the mother's parental rights. Finally, Sonya had filed a motion seeking visitation in the event the...
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