In re Interest of Mainor T.

• Citation: 674 N.W.2d 442,267 Neb. 232
• Decision Date: 16 January 2004
• Docket Number: No. S-02-1229.,S-02-1229.
• Parties: In re INTEREST OF MAINOR T. and Estela T., children under the age of 18 years. State of Nebraska, appellee, v. Mercedes S., appellant.
• Court: Supreme Court of Nebraska

674 N.W.2d 442

267 Neb. 232

In re INTEREST OF MAINOR T. and Estela T., children under the age of 18 years.

State of Nebraska, appellee, v. Mercedes S., appellant.

No. S-02-1229.

Supreme Court of Nebraska.

January 16, 2004.

D. Milo Mumgaard, of Nebraska Appleseed Center for Law in the Public Interest, for appellant.

Robert J. Cashoili, Deputy Hall County Attorney, for appellee.

Rachel A. Daugherty, of Lauritsen, Brownell, Brostrom, Stehlik, Thayer & Myers, guardian ad litem.

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

HENDRY, C.J.

I. INTRODUCTION

On September 17, 2002, the Hall County Court, sitting as a juvenile court, entered an order terminating the parental rights of Mercedes S. to her minor children, Mainor T. and Estela T., pursuant to Neb.Rev. Stat. § 43-292(1) and (7) (Reissue 1998). The father of the children left the family shortly after Estela was born and is not a party to this action. Mercedes appeals the termination of her parental rights.

II. BACKGROUND

Mercedes is the natural mother of Mainor and Estela, who are both U.S. citizens. In her brief, Mercedes states that she is a native Guatemalan. Mercedes claims she came to the United States in 1992 seeking asylum and moved to Grand Island in 2000, where she lived in a Guatemalan community and spoke a Mayan Indian dialect with fellow Guatemalans. Mercedes also states in her brief that she is illiterate and speaks no English and very little Spanish. The record indicates Mercedes does not understand English.

On March 22, 2001, Mercedes was arrested for striking Mainor. On the same day, both children were taken into protective custody. On March 23, the State filed a juvenile petition in the Hall County Court, alleging that Mainor and Estela, ages 6 and 4 respectively, were minors within the ambit of Neb.Rev.Stat. § 43-247(3)(a) (Reissue 1998). The petition alleged the children were (1) homeless or destitute, or without proper support through no fault of their parents; (2) lacking proper parental care by reason of the fault or habits of their parents; and (3) in a situation that was dangerous to life and limb or injurious to their health or morals.

An affidavit from Lisa Kluck, a Child Protective Service worker, was filed with the court on March 23, 2001. Kluck averred that she had reviewed police reports showing that on March 22, the school psychologist had contacted the Grand Island Police Department concerning red line markings on Mainor's face. In response to questioning from the police, Mainor stated that Mercedes had hit him, which he described as "hit, hit, and hit," and that he had cried and then later watched television. Kluck averred that Mercedes had been arrested and had admitted to the police that she had hit Mainor for being rough with Estela, but had denied hitting him more than once.

Kluck further averred that a similar incident had occurred on November 11, 2000, also resulting in "markings" on Mainor's face, which a police investigation determined were the result of his mother's striking him. Kluck averred that although Mercedes was not arrested in November 2000, the police "did discuss the proper ways of discipline" with her. Finally, Kluck averred that a second child, Estela, also lived with Mercedes and that both children had been removed "at the time or prior to" Mercedes' arrest. On March 23, 2001, an ex parte order signed by the clerk magistrate found that continuation of the children in the home would be contrary to their welfare, that reasonable efforts were made to prevent their removal, and that it was in the best interests of the children to be placed in the temporary custody of the Department of Health and Human Services (DHHS). The children were placed in foster care on March 22.

The record indicates that after Mercedes was arrested and incarcerated for "child abuse," the then Immigration and Naturalization Service (INS) placed a hold on her through the Hall County jail because she was an illegal alien. In her brief, Mercedes states that because she had failed to appear at an asylum hearing several years earlier, a default order for her removal had been entered. Mercedes asserts she was aware of neither her status nor the deportation order because she had been granted temporary protected legal status and had continued to receive work permits each year. Mercedes was ultimately deported to Guatemala on May 15. The record further indicates that although the children had asked to see Mercedes during the period of time in which she was held in the Hall County jail, Mercedes had no visitation with them.

On March 27, 2001, the court issued a juvenile summons ordering personal service on Mercedes in the Hall County jail, which service was perfected on March 28. The summons commanded Mercedes to appear in court for a hearing on April 9 regarding the allegations set forth in the juvenile petition. Both the summons and petition were written in English.

The adjudication hearing was conducted on April 9, 2001. Mercedes was not present. The bill of exceptions pertaining to the adjudication hearing contains an "introductory recitation" by the court transcriber, stating that Todd Elsbernd appeared as counsel for Mercedes.

The only evidence offered at the adjudication hearing was Kluck's affidavit, which had been filed with the court on March 23, 2001, in support of the ex parte order of the clerk magistrate removing the children from their home and placing them in the temporary custody of DHHS. Near the conclusion of the adjudication hearing, the court stated:

Count one [homeless or destitute] is proven by the fact that the mother simply fails to appear and apparently no one's really too sure of her whereabouts at the current moment. And counts two [lacking proper parental care] and three [being placed in a situation dangerous to life and limb] are proven by the affidavit.

At this juncture in the adjudication hearing, the record indicates that an unidentified person in the courtroom, in referring to Mercedes, informed the court, "She's being held in jail. That's why she—she isn't here...." Despite the juvenile summons signed by the judge presiding at the adjudication hearing, which summons directed that Mercedes be personally served in the Hall County jail, and the return showing that Mercedes was personally served as directed, the court responded that "she's in custody somewhere and unable to provide a home for the children." The court then stated that

reunification of the juveniles in their home would be contrary to their health, safety or welfare. Reasonable efforts were not required to be made to preserve and reunify the family because the juveniles were submitted to aggravated circumstances, an assault, and the parent committed a pr[o]scribed criminal act, being an assault.

Temporary custody with DHHS was continued, and a disposition hearing was subsequently scheduled for June 20, 2001. The court's written adjudication order repeated the finding that "[r]easonable efforts [are] not required to preserve and reunify the family because ... the parent has subjected [the] juvenile(s) to aggravated circumstances, to wit: assault" and that the "parent has committed [a] proscribed criminal act, to wit: assault."

There is no evidentiary record of the June 20, 2001, disposition hearing other than a preprinted disposition/permanency hearing "checklist" signed by the presiding judge. The form contains a notation showing that Elsbernd appeared as counsel for Mercedes, as well as checkmarks noting that the disposition hearing was conducted and completed on June 20, 2001.

Notwithstanding the court's April 9, 2001, written order stating that reasonable efforts to preserve and reunify the family were not required due to aggravating circumstances, the court's June 20 written order contains checkmarks which indicate that the permanency objective of reunification set forth in DHHS' case plan and progress report was in the children's best interests. The order directs the case plan to be implemented, despite the case manager's statement in the court report, apparently submitted with the case plan, that "[r]easonable efforts are not necessary because on 04-09-2001 the court found reasonable efforts were not required."

Although the case plan's stated permanency objective was reunification, DHHS' only stated goal was to locate appropriate long-term placement for the children by December 14, 2001, noting in the court report that Mercedes' brother in Alabama had requested that the children be placed with him. The only stated tasks were to conduct a home study on relatives interested in obtaining long-term placement and to find a "fos-adopt" home for the children if placement with relatives was inappropriate. There were no goals or tasks related to reunification, including attempts to establish contact with Mercedes. The absence of any hearing conducted on the record leaves this court to speculate as to the apparent inconsistency between the order of April 9, 2001, finding that reunification would be contrary to the children's welfare, and the June 20 order apparently adopting a permanency objective of reunification.

The State Foster Care Review Board (FCRB) reviewed the case documents and submitted a recommendation to the court on September 18, 2001. See Neb.Rev. Stat. § 43-1308 (Reissue 1998) (requiring FCRB to review foster care cases every 6 months and submit its findings and recommendations to court with jurisdiction). FCRB found that the children were inappropriately removed from the home and that reasonable efforts were not made to prevent their removal, such as providing parenting classes, a family support worker, or therapy. FCRB concluded that a "slap on the face" was insufficient evidence to support a finding that Mainor was in imminent danger and that no evidence supported a finding that Estela was at risk.

FCRB further concluded that these mistakes led to a "domino effect," in...