In re Interest of Clifford M., S-00-699.

• Decision Date: 25 May 2001
• Docket Number: No. S-00-699.,S-00-699.
• Citation: 626 N.W.2d 549,261 Neb. 862
• Parties: In re Interest of CLIFFORD M. et al., children under 18 years of age. State of Nebraska, Appellee, v. Suzette M., Appellant.
• Court: Nebraska Supreme Court

626 N.W.2d 549

261 Neb. 862

In re Interest of CLIFFORD M. et al., children under 18 years of age.

State of Nebraska, Appellee, v. Suzette M., Appellant.

No. S-00-699.

Supreme Court of Nebraska.

May 25, 2001.

Stephanie Weber Milone, Omaha, for appellant.

James S. Jansen, Douglas County Attorney, and Karen Kassebaum Nelson, for appellee.

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

STEPHAN, J.

This is an action to terminate the parental rights of Suzette M., the biological mother of Clifford M., born February 17, 1990; Colette M., born February 1, 1992; and Chelsea M., born December 28, 1992. Following a hearing, the separate juvenile court of Douglas County, Nebraska, entered an order terminating the mother's parental rights, and she perfected this timely appeal. Finding no error, we affirm.

I. BACKGROUND

This is the third appearance of this case in the appellate courts of Nebraska. On or about March 1, 1994, the three children were removed from their mother's home and placed in the temporary custody of the Department of Health and Human Services (DHHS) because of alleged abuse. All three have been in the custody of the same foster parents since March 18, 1994. On February 3, 1995, the juvenile court adjudicated the children as being within the meaning of Neb.Rev.Stat. § 43-247(3)(a) (Reissue 1993) on the basis of a second amended petition dated November 10, 1994. The adjudication was based upon the faults and habits of the mother. The juvenile court found that the mother had failed to protect Clifford from physical abuse perpetrated by her live-in boyfriend, T.C., and that all three children had been subjected to sexual contact by both the mother and T.C.

Initially, the mother was allowed to have one or two supervised visits with the children per week. Following the adjudication, the juvenile court entered a series of rehabilitation plans designed to bring about the eventual reunification of the family. Under one of those plans, adopted in 1996, the mother was ordered to enroll and participate in a program known as Parents United, which is designed to work specifically with sexual offenders and the victims of sexual abuse. Any person admitted into this program as an offender must first admit responsibility for the sexual abuse. In this case, the mother refused to acknowledge that any sexual contact occurred.

On March 27, 1997, following a hearing on a motion filed by the guardian ad litem, the juvenile court entered an order terminating the mother's parental rights to all three minor children pursuant to Neb.Rev.Stat. § 43-292(2) and (7) (Reissue 1993). The order included a finding that "[d]ue to [the mother's] denial of the sexual contact to which she and [T.C.] subjected said children, she has effectively barred her participation in the children's therapy as ordered by this Court." The mother's visitation rights were discontinued at that time. The mother appealed, and the Nebraska Court of Appeals reversed the termination order, interpreting it as being based solely upon the mother's refusal to make the incriminating statements necessary to enroll in the Parents United program as a precursor to further participation in family therapy and holding that as such, it violated her Fifth Amendment privilege against self-incrimination. In re Interest of Clifford M. et al., 6 Neb.App. 754, 577 N.W.2d 547 (1998). The Court of Appeals characterized its holding as limited to the principle that "courts may not terminate parental rights on the sole basis that a parent refuses to waive his or her right against self-incrimination" and further noted that the State was "not prejudiced from filing another motion to terminate [the mother's] parental rights on lawful grounds and presenting evidence to support such motion, if and when such action becomes appropriate." Id. at 774, 577 N.W.2d at 559.

Following remand, the juvenile court, in accordance with the mandate of the Court of Appeals, dismissed the first motion to terminate the mother's parental rights. On July 1, 1998, the State and the guardian ad litem filed another motion to terminate the mother's parental rights. The mother moved to dismiss and filed a separate motion to require the children, then in foster care, to be made available for visitation and family therapy. The juvenile court denied both motions, and the mother appealed. In In re Interest of Clifford M. et al., 258 Neb. 800, 606 N.W.2d 743 (2000), we determined that we lacked jurisdiction because there was no final, appealable order and dismissed the appeal.

On December 28, 1998, the State and the guardian ad litem filed an amended motion for termination of parental rights. This motion sought termination under § 43-292(2) and (7) (Reissue 1998). The mother filed an answer on January 22, 1999, denying the allegations in the amended motion and asserting several affirmative defenses, including a claim that § 43-292(2) and (7) as amended by 1998 Neb. Laws, L.B. 1041, does not apply retroactively and that the amended motion therefore violated her right to due process.

An evidentiary hearing on the amended motion for termination was held on May 23 and 24, 2000. Prior to taking any evidence, the juvenile court asked the mother whether she had seen the amended motion and understood the nature of the allegations. She responded that her lawyer had explained the allegations to her. The court then advised the mother that if the allegations in the amended motion were found to be true by clear and convincing evidence, her parental rights could be terminated. She was also informed of her right to an attorney, to remain silent, to confront and cross-examine witnesses, to compel the testimony of witnesses, to a speedy trial, and to appeal.

During the hearing, various exhibits were offered by both parties, several witnesses testified on behalf of the State, and the mother testified on her own behalf. We will discuss the substance of this evidence in conjunction with our analysis of the mother's specific assignments of error. In its order terminating parental rights, the juvenile court found by clear and convincing evidence that grounds for termination had been established under § 43-292(2) and (7) (Reissue 1998) and that termination of parental rights was in the best interests of the children.

II. ASSIGNMENTS OF ERROR

The mother assigns, restated, that the juvenile court erred in (1) applying § 43-292(2) and (7) (Reissue 1998) retroactively; (2) finding clear and convincing evidence sufficient to terminate her parental rights under § 43-292(2) and (7) (Reissue 1998); (3) violating her due process rights by failing to hold an exception hearing prior to terminating her parental rights under § 43-292(2) and (7) (Reissue 1998); (4) violating her due process rights by failing to provide adequate notice of the nature and consequences of the proceedings and of the statutory provisions upon which termination was sought; (5) basing the termination of her parental rights upon § 43-292(2) and (7) (Reissue 1993), as those statutory sections have been amended; (6) finding clear and convincing evidence to support termination of her parental rights under § 43-292(2) and (7) (Reissue 1993); (7) determining that the termination of her parental rights is in the best interests of the children; and (8) denying her motion to dismiss.

III. STANDARD OF REVIEW

In an appeal from an order terminating parental rights, an appellate court tries factual questions de novo on the record. Appellate review is independent of the juvenile court's findings. However, when the evidence is in conflict, an appellate court may give weight to the fact that the juvenile court observed the witnesses and accepted one version of facts over another. In re Interest of Kalie W., 258 Neb. 46, 601 N.W.2d 753 (1999).

IV. ANALYSIS

1. INTRODUCTION

In order to terminate parental rights, the State must prove by clear and convincing evidence that one of the statutory grounds enumerated in § 43-292 exists and that termination is in the child's best interests. In re Interest of Michael B. et al., 258 Neb. 545, 604 N.W.2d 405 (2000); In re Interest of Kalie W., supra. Here, the State alleged and the juvenile court determined that the statutory grounds set forth in § 43-292(2) and (7) were established. For the reasons outlined below, we conclude based upon our de novo review that there is clear and convincing evidence justifying termination of parental rights pursuant to § 43-292(2) (Reissue 1998), and we therefore limit our discussion to that issue.

2. RETROACTIVITY

The operative amended motion to terminate parental rights was filed in this case on December 28, 1998, after the date on which amendments to the Nebraska Juvenile Code enacted by the Nebraska Legislature in that year became operative. See 1998 Neb. Laws, L.B. 1041. As we noted in In re Interest of Sarah K., 258 Neb. 52, 601 N.W.2d 780 (1999), the legislative history of L.B. 1041 indicates that it was necessitated by the terms of the federal Adoption and Safe Families Act of 1997, which mandated certain changes to state juvenile codes as a condition to continued federal funding of certain state programs, including foster care. See 42 U.S.C. § 671 (1994 & Supp. IV 1998). As a result of these amendments, § 43-292(2) provides that parental rights can be terminated upon a showing that "[t]he parents have substantially and continuously or repeatedly neglected and refused to give the juvenile or a sibling of the juvenile necessary parental care and protection." (Emphasis supplied.) The addition of the italicized phrase was the only change made to § 43-292(2) by L.B. 1041. The language of the statute as amended in 1998 was utilized by the State in its amended motion for termination of parental rights and cited by the juvenile court in its termination order. The mother generally contends that this "retroactive" application of the amended statute deprived her of...