In re Interest of Rachael M.
| Decision Date | 03 December 1999 |
| Docket Number | No. S-98-955, No. S-98-956. |
| Citation | 258 Neb. 250,603 N.W.2d 10 |
| Parties | In re INTEREST OF RACHAEL M. and Sherry M., children under 18 years of age. State of Nebraska, appellee, v. Lisa G., appellant. |
| Court | Nebraska Supreme Court |
Clyde F. Starrett, McCook, for appellant.
Maurice A. Green, of Green Law Offices, P.C., guardian ad litem, McCook.
Lisa G. appeals from orders terminating her parental rights to Rachael M. and Sherry M. (the children).
The interpretation of statutes presents questions of law, in connection with which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. Winter v. Department of Motor Vehicles, 257 Neb. 28, 594 N.W.2d 642 (1999).
Not only must a claimed prejudicial error be assigned, it must also be discussed in the brief of the asserting party; an appellate court will not consider assignments of error which are not discussed in the brief. Varela v. Fisher Roofing Co., 253 Neb. 667, 572 N.W.2d 780 (1998).
On August 1, 1994, the then Nebraska Department of Social Services, now the Department of Health and Human Services (the department), received a child neglect report concerning the children, who were less than 2 weeks old. Three employees of the department responded by going to the apartment of Vernon J., who was later determined to be the father of the children. Piles of clothing were observed throughout the home. Ashtrays overflowing with cigarette butts were found in beds that were being used by the children. Other ashtrays lying throughout the apartment were also full of debris.
The department attempted to provide Lisa with voluntary services on at least two different occasions, but she refused to cooperate. In addition, the children were hospitalized twice. The second time, the children were in a dehydrated condition and had lost weight. On October 27, 1994, the department requested the county attorney to initiate proceedings to have the care, custody, and control of the children placed with the department.
On November 4, 1994, petitions were filed alleging that the children were within Neb.Rev.Stat. § 43-247(3)(a) (Reissue 1993). The Red Willow County Court, sitting as a juvenile court, ordered that the temporary custody of the children be placed with the department. In addition, Lisa was to receive basic parenting information through instruction with a family service support provider.
At an adjudication hearing on December 19, 1994, the trial court concluded that the allegations in the petitions were true in that the children suffered from failure to thrive due to lack of proper parental care by reason of the fault or habits of Lisa and that Lisa neglected or refused to provide proper and necessary care for the health and well-being of the children. Thus, the trial court determined that it was in the best interests of the children to remain in the care, custody, and control of the department for out-of-home placement. Following adjudication, visitation and parenting education continued.
Following a hearing on January 17, 1995, the trial court ordered Lisa to undergo a medical and psychological evaluation which was to include a parenting skills evaluation. Dr. Lee Kimzey conducted a psychological examination of Lisa and concluded that her level of functioning was such that she was barely able to care for herself, let alone care for the needs of the children. Kimzey opined that Lisa appeared to be in the throes of a major depression with associated psychotic thought processing, as reflected in delusional thinking and hallucinations.
On March 3, 1995, the trial court adopted a case plan and made Vernon, the putative father, a party to the case. On May 5, an adjudication hearing was held regarding a petition filed against Vernon. The petition was based on Vernon's mental health condition indicating that he was not a fit and proper custodian for the children. Concluding that the facts in the petition were true, the trial court scheduled a dispositional hearing and requested that a case plan and court report be developed. Visitation was ordered to be continued as outlined in a case plan and court report dated February 21.
Following a physical altercation between Lisa and Vernon on June 12, 1995, Lisa severed their relationship and requested separate case plans for herself and Vernon. At a hearing on August 9, Vernon requested that his parental rights be terminated. The trial court instructed the department to investigate Vernon's request and ordered continuation of the visitation plan involving Lisa and the children.
After several review hearings concerning the parents' progress, a hearing was held on November 6, 1996, at which time the county attorney informed the trial court of his intention to file petitions to terminate Lisa's parental rights. Subsequently, the guardian ad litem for the children filed such petitions. Trial was completed on August 12, 1998, at which time the trial court found that the children were within § 43-247(3)(a) in that they had failed to thrive because of a lack of proper parental care by the fault and habits of Lisa and that Lisa had neglected and refused to provide proper subsistence and care necessary to the health and well-being of the children. The trial court found that the parents were unable to provide proper and necessary care for the children because (1) they had failed to successfully complete counseling and the medical treatment necessary to correct mental illnesses diagnosed by qualified mental health professionals, (2) they had failed to visit the children on a regular and frequent basis necessary for the children's return to the home of a parent without causing severe trauma and stress, and (3) Lisa was unable to provide an adequate home with adequate care for the children and their two siblings. The trial court noted that numerous efforts, including psychological, medical, and educational guidance, had failed to give the parents the skills and ability to provide proper and necessary care for the children and to provide a safe, stable, and permanent environment for the children. Based on these findings, the trial court ordered that the parental rights of Lisa and Vernon be terminated.
Lisa asserts that the trial court erred (1) in allowing the guardian ad litem to file pleadings and participate in the trial in an adversarial fashion even after objection; (2) in finding clear and convincing evidence to terminate her parental rights; (3) in not requiring a written determination that continuation in the home would be contrary to the children's welfare before the court ordered that the children be removed from their home, which was alleged to be unconstitutional; (4) in not requiring the department to situate the children nearer to Lisa's home after her move to Fairfield; and (5) in not making reasonable efforts to reunify the family, as required by law.
We first address whether the trial court erred in allowing the guardian ad litem to file the petitions to terminate parental rights and then proceed to try the case as an attorney for the children. Lisa relies on Betz v. Betz, 254 Neb. 341, 575 N.W.2d 406 (1998), to support her claim that a guardian ad litem may be an attorney, but an attorney who performs the functions of a guardian ad litem does not act as an attorney and is not to participate in the trial in an adversarial fashion such as calling or examining witnesses or filing pleadings or briefs.
Betz is clearly distinguishable because it involved a guardian ad litem in a divorce proceeding who was appointed pursuant to Neb.Rev.Stat. § 42-358 (Cum.Supp.1996). In Betz, we held that when making the appointment of a guardian ad litem or an attorney to represent the interests of a minor pursuant to § 42-358 in forums other than the juvenile court, the appointing court, in the order making the appointment, shall specify whether the person appointed is to act as a guardian ad litem or as an attorney pursuant to § 42-358. One person may not serve in both capacities.
Here, the actions of the guardian ad litem are governed by Neb.Rev.Stat. § 43-272.01(2) (Cum.Supp.1996), which states that the guardian ad litem "(e) [m]ay present evidence and witnesses and cross-examine witnesses at all evidentiary hearings ... and (h) [m]ay file a petition in the juvenile court on behalf of the juvenile, including a supplemental petition as provided in section 43-291."
The interpretation of statutes presents questions of law, in connection with which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. Winter v. Department of Motor Vehicles, 257 Neb. 28, 594 N.W.2d 642 (1999). The guardian ad litem proceeded under the statutory authority of § 43-272.01(2) in presenting evidence and witnesses, cross-examining witnesses, and filing the petitions for termination. Thus, the trial court did not err in overruling Lisa's objection to the guardian ad litem's participation with regard to termination of her parental rights.
In addition, Lisa's argument that § 43-272.01(2)(e) as amended is unconstitutional was not properly raised on appeal. An appellate court will not consider a constitutional question unless it has been properly presented to the trial court for...
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