In re Interest of Ty M., S-02-056.
| Decision Date | 17 January 2003 |
| Docket Number | No. S-02-056.,S-02-056. |
| Citation | 265 Neb. 150,655 N.W.2d 672 |
| Parties | In re INTEREST OF TY M. and Devon M., children under 18 years of age. State of Nebraska, Appellee and Cross-Appellee, v. Shawn M., Appellant, and Holly M., Appellee and Cross-Appellant. |
| Court | Nebraska Supreme Court |
Avis R. Andrews, Fremont, for appellant.
Pamela Lynn Hopkins for appellee Holly M.
Don Stenberg, Attorney General, and Stuart B. Mills, Special Prosecutor, for appellee State of Nebraska.
Leta F. Fornoff, Fremont, guardian ad litem.
Shawn M. and Holly M. each appeal from a judgment of the county court for Dodge County, sitting as a juvenile court, which terminated their parental rights to Ty M., born March 23, 1997, and Devon M., born June 10, 1998.
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 DeWayne G. & Devon G., 263 Neb. 43, 638 N.W.2d 510 (2002).
In reviewing questions of law arising under the Nebraska Juvenile Code, an appellate court reaches conclusions independent of the lower court's ruling. In re Interest of Chad S., 263 Neb. 184, 639 N.W.2d 84 (2002).
Ty and Devon were placed in the care, custody, and control of the Nebraska Department of Health and Human Services (DHHS) on November 20, 1998, after police were sent to the home to investigate a report that the children were in danger based on neglect. At the time, Ty was approximately 1½ years old and Devon was approximately 5 months old.
The children were with a babysitter when police arrived. The living room floor was nearly covered with toys, dirty clothing, food, cigarette butts, and garbage. Bottles found in the home contained spoiled formula or milk, and there were feces stains on the carpet. Holes had been punched through two doors. Soiled dishes were piled high in the kitchen, and no clean dishes were found. The children's room had a strong odor of urine and spoiled formula or milk. The sheets and pillowcases in the children's room had dried vomit and urine on them.
Although the parents had been counseled not to smoke because Devon has reactive airway disease, there was a strong odor of tobacco in the home. An apparatus for giving Devon breathing treatments was filthy and unusable, and there was no medication for the machine in the home.
The children were initially placed with Shawn's parents until December 7, 1998, when they were returned to the parental home. The children were again removed from the home on February 3, 1999, and placed with the grandparents until October 1, when they were placed in foster care.
The children were adjudicated under Neb.Rev.Stat. § 43-247(3)(a) (Reissue 1998) on March 24, 1999, in relation to Holly, at which time she admitted the allegations in the petition. Following a hearing on April 14, the children were adjudicated in relation to Shawn.
Between April 20, 1999, and January 16, 2001, six case plans were received and reviewed by the juvenile court. The case plans spelled out a number of goals for both parents, including marital counseling, mental health counseling, anger management skills, domestic violence counseling, parenting skills, and finances.
A petition to terminate parental rights was filed on February 27, 2001. The petition alleged that grounds for termination existed under Neb.Rev.Stat. § 43-292(6) (Reissue 1998) because (1) the children had been determined to be children under § 43-247(3)(a) and (2) following that determination, reasonable efforts had been made to preserve and reunify the family, and the efforts had failed to correct the conditions which led to that determination. The petition also alleged that grounds for termination existed under § 43-292(7) and that termination would be in the best interests of the children, who had been in out-of-home placement for 15 or more of the most recent 22 months.
An amended petition to terminate parental rights alleged that the parents failed to maintain adequate housing for themselves and their children from February 1999 to October 2000; the parents failed to demonstrate proper and consistent parenting skills during supervised visitations despite family support services, parenting classes, and supervised visitation; the parents failed to follow through with recommendations of mental health providers; and the parents failed to maintain a stable relationship.
On January 8, 2002, the juvenile court entered an order terminating parental rights. The court found that the adjudication under § 43-247(3)(a) "acknowledges that there are collective conditions which lead to a very filthy health hazard environment making conditions unsafe and unsanitary." The court further found that the State had maintained ongoing, continuing, and reasonable efforts to sustain and keep the family together, including ongoing visitation plans.
The juvenile court found an ongoing level of deterioration within the home, including lack of parenting skills, lack of awareness and sensitivity to the children and their needs, and marital strife and conflict. Holly had reported violence and a feeling of fear to her DHHS caseworker and other professionals. She stated that she was unable to meet the needs of her children and that she feared for her children's safety with Shawn. The court found that Holly's admissions of domestic violence to DHHS professionals were consistent with the evidence and that Holly had on many occasions indicated her intent to divorce Shawn.
The juvenile court noted that Shawn was in jail from October 1999 through October 2000, after which he reunited with Holly. At the time of the court order, they were living in a home provided by Shawn's parents. During Shawn's incarceration, he did not follow through with required levels of counseling and parenting classes. He sporadically participated in a men's group after his release, but the court found that neither parent maintained involvement in individual counseling or fully utilized the available opportunities, despite the family support workers' efforts and DHHS resources.
During ongoing visitations, both parents demonstrated an inability to control the children. The juvenile court found that neither parent consistently recognized safety issues regarding the children. Holly failed to timely follow through with her psychological evaluations and to take her medication for depression.
The juvenile court concluded that the rehabilitation plans ordered by the court were designed to correct the unsafe conditions in the home and that these unsafe and unsanitary conditions reflected problems with parenting skills, with domestic violence, and with recognizing the needs of the children. The court found that the parents consistently failed to comply with reasonable steps for rehabilitation as ordered by the court by failing to attend individual counseling, address spousal violence, or demonstrate proper parenting skills during visitations. The evidence showed that DHHS provided multiple resources and services for both Shawn and Holly, but neither showed an ability or consistent commitment and willingness to succeed. The parents had been unable to make satisfactory progress toward reunification.
The juvenile court found that the evidence supported termination of parental rights under § 43-292(6) in that the parents had been provided many reasonable opportunities to rehabilitate and had failed to do so. Shawn and Holly willfully failed to comply in whole or in part with the material provisions of the rehabilitation plans, including failure to demonstrate proper parenting skills and failure to keep the children reasonably safe during visitations. The parents also demonstrated lack of followthrough with individual therapy and did not address domestic violence issues. The children had been in out-of-home placement for 15 or more of the most recent 22 months, specifically since February 3, 1999. The court found clear and convincing evidence that it is in the best interests of the children to terminate the parental rights. The court ordered custody of the children to remain with DHHS for appropriate placement with the objective of adoption.
Shawn and Holly have each assigned numerous errors covering a variety of issues. However, because a number of the assigned errors are not argued in the parties' briefs, we will not address them. See Caruso v. Parkos, 262 Neb. 961, 637 N.W.2d 351 (2002). We will address only the alleged errors as summarized and restated here: (1) The juvenile court erred in "failing to enforce" the parties' due process rights and constitutional rights, (2) the court erred in finding that it is in the best interests of the children that the parents' rights be terminated, (3) the court erred in overruling Holly's motion to strike, (4) the court erred in overruling the motions for psychological and psychiatric evaluations of the children, (5) the court erred in admitting certified court documents, (6) the court erred in finding that reasonable efforts had been made to preserve and reunify the family, and (7) the court erred in failing to find § 43-292(7) unconstitutional.
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 DeWayne G. & Devon G., 263 Neb. 43, 638 N.W.2d 510 (2002)....
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