In re Interest of Azia B.

• Decision Date: 24 April 2001
• Docket Number: No. A-00-666.,A-00-666.
• Citation: 626 N.W.2d 602,10 Neb. App. 124
• Parties: In re INTEREST OF AZIA B., a child under 18 years of age. State of Nebraska, Appellee and Cross-Appellee, v. Monique B., Appellant, and Steven C., Appellee and Cross-Appellant.
• Court: Nebraska Court of Appeals

626 N.W.2d 602

10 Neb. App. 124

In re INTEREST OF AZIA B., a child under 18 years of age.

State of Nebraska, Appellee and Cross-Appellee, v. Monique B., Appellant, and Steven C., Appellee and Cross-Appellant.

No. A-00-666.

Court of Appeals of Nebraska.

April 24, 2001.

Kimberly A. Dunovan, of Nebraska Legal Services, for appellant.

James E. Reisinger, Omaha, of Reisinger Law Office, for appellee Steven C.

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

IRWIN, Chief Judge, and INBODY and CARLSON, JJ.

CARLSON, Judge.

I. INTRODUCTION

Monique B., natural mother of Azia B., appeals from the order for termination of her parental rights over Azia pursuant to Neb.Rev.Stat. § 43-292(2) and (6) (Reissue 1998). Stephen C., the natural father of Azia, whose parental rights were terminated pursuant to § 43-292(2), cross-appeals termination of his parental rights. For the reasons set forth below, we affirm both terminations.

II. BACKGROUND

Azia was born on February 5, 1998. On February 6, in an action not directly at issue in this case, an affidavit for the removal of Azia from Monique's care was entered in the separate juvenile court of Douglas County. The State filed a petition seeking custody of Azia on the ground that Azia had been exposed to cocaine in utero. The petition was granted on February 9, and at 5 days of age, Azia was placed in foster care. Monique successfully completed outpatient chemical dependency counseling and parenting classes and worked with a family support worker. Azia was returned to Monique's custody on April 3, and the juvenile court terminated its jurisdiction in that case on July 15.

Also in July 1998, Stephen, imprisoned at the Nebraska State Penitentiary for assaulting a police officer, took a "buccal swab test" that confirmed that he is Azia's father. Stephen was released from prison on September 4. After Stephen's release from prison, Steven and Monique resumed their previous relationship, sharing several residences with Azia. On February 6, 1999, Stephen and Monique separated, Azia staying with Monique. On March 27, Stephen learned for the first time that Azia had tested positive for cocaine at birth. Stephen went to Monique's residence and struck her "[a] couple of times," "split[ting] open her forehead"; Monique's injury required stitches. Azia was present in the residence, but not in the room where Monique was struck.

Later that same day, Stephen turned himself in to the Omaha Police Department. Stephen was incarcerated in the Douglas County jail from March 28 through October 17, 1999. The record shows that on October 17, Stephen was transferred to the Nebraska State Penitentiary. On May 21, 1999, the State filed a second petition (the instant petition) alleging that Azia came within the purview of the Nebraska Juvenile Code because of the faults or habits of Monique. Specifically, the petition alleged that on or about May 19, Monique had been arrested for solicitation and that Monique's use of alcohol or controlled substances impaired her ability to parent Azia. It is uncontroverted that an amended petition, not included in the record before us, was filed on or about June 3, seeking a similar adjudication with regard to Stephen. Azia was returned to foster care on June 10. In June, Josephine Glass was assigned as the Child Protective Services worker for Azia. Glass developed a rehabilitation plan for Monique, including a chemical dependency evaluation, income and housing components, and adequate visitation with Azia. On October 13, the juvenile court entered an order finding that Monique had admitted to the allegations of the petition and that Azia was a child within the meaning of Neb. Rev.Stat. § 43-247(3)(a) (Reissue 1998). The court placed custody of Azia with the Nebraska Department of Health and Human Services. On December 20, the juvenile court entered a similar order with regard to Stephen.

On February 22, 2000, the State moved to terminate the parental rights of both parents. With regard to Monique, the petition alleged that termination was appropriate with regard to two provisions of § 43-292. First, the State alleged that termination was appropriate pursuant to § 43-292(2) in that Monique had substantially and continuously or repeatedly neglected Azia because Azia had tested positive for cocaine at birth, because Monique had failed to consistently visit her, and because Monique lacked a legal source of income and safe and adequate and stable housing, and in that Azia had been twice placed in foster care and continuously in foster care since May 1999. The State also alleged that termination was appropriate pursuant to § 43-292(6) in that Monique had failed to correct conditions leading to the initial adjudication. Specifically, the State alleged that Monique had failed to complete a previously ordered chemical dependency evaluation, had failed to obtain and maintain a legal source of income, had failed to obtain and maintain adequate housing, and had failed to maintain minimum visitation with Azia.

With regard to Stephen, the State alleged that termination was appropriate pursuant to § 43-292(2) in that Stephen had been repeatedly incarcerated, lacked a legal source of income, and "engage[d] in angry, violent conduct" that was seriously detrimental to Azia, and in that Azia had been in foster care twice in 2 years and continuously since May 1999. In the motion, the State further alleged that termination of the parental rights of both parents was within Azia's best interests.

The termination of parental rights petition was heard on May 5 and 16, 2000. Monique was not present, and testimony at the hearing showed that Monique had been in custody of the Wisconsin Department of Corrections since March for violation of probation. At the outset of the hearing, each parent moved for a continuance. Monique's counsel advised the court that Monique "would be in a halfway house... toward the end of July or first part of August and, therefore, be eligible to travel and ... present for a hearing." Stephen's counsel premised his motion for continuance on the ground that he had been able to meet with Stephen only the night before the hearing. Both motions for continuance were denied. Monique's counsel then moved to have her participate telephonically. That motion was also denied. The hearing then proceeded, with counsel for each parent calling witnesses and offering evidence. Stephen testified on his behalf. On May 23, the juvenile court entered an order finding that the State had proved each of its allegations by clear and convincing evidence and terminating both parents' parental rights over Azia.

Monique appeals and Steven cross-appeals. See Neb.Ct.R. of Prac. 1C and 1E (rev.2000).

III. ASSIGNMENTS OF ERROR

Monique makes three assignments of error: The juvenile court erred in (1) refusing to make it possible for her to participate in the termination hearing, either personally or telephonically; (2) finding that she had been afforded a reasonable time to rehabilitate herself; and (3) finding that termination of Monique's parental rights was in Azia's best interests. On cross-appeal, Stephen asserts that (1) he was denied effective assistance of counsel; (2) the juvenile court abused its discretion in denying his motion to continue, which in turn denied him a fair adjudication; and (3) the juvenile court erred in finding that the State presented evidence sufficient to warrant termination of his parental rights.

IV. STANDARD OF REVIEW

In an appeal from a juvenile court order terminating parental rights, the appellate court tries factual questions de novo on the record; while appellate review is independent of the juvenile court's findings, when the evidence is in conflict, the appellate court may give weight to the fact that the juvenile court observed the witnesses and accepted one version of the facts over another. In re Interest of Sunshine A. et al., 258 Neb. 148, 602 N.W.2d 452 (1999). An order terminating parental rights must be based on clear and convincing evidence. Id. A juvenile's best interests are a primary consideration in determining whether parental rights should be terminated as authorized by the Nebraska Juvenile Code. Id.

Whether a party was provided effective assistance of counsel presents a question of law. See State v. Patterson, 232 Neb. 304, 440 N.W.2d 242 (1989). When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling. Ethanair Corp. v. Thompson, 252 Neb. 245, 561 N.W.2d 225 (1997).

Whether to allow a parent who is incarcerated to attend a termination hearing is within the discretion of the trial court, whose decision on appeal will be upheld in the absence of an abuse of discretion. In re Interest of L.V., 240 Neb. 404, 482 N.W.2d 250 (1992).

A motion for continuance is addressed to the discretion of the trial court, whose ruling will not be disturbed on appeal in the absence of an abuse of discretion. Johnson v. Ford New Holland, 254 Neb. 182, 575 N.W.2d 392 (1998).

V. ANALYSIS

1. MONIQUE'S APPEAL

(a) Monique's Motions for Participation

Monique argues first that the juvenile court abused its discretion by denying her motion for a continuance. At the threshold, we note that an application for a continuance must be in writing and supported by an affidavit which contains factual allegations demonstrating good cause or sufficient reason necessitating postponement of the proceedings. Neb. Rev.Stat. § 25-1148 (Reissue 1998); Stewart v. Amigo's Restaurant, 240 Neb. 53, 480 N.W.2d 211 (1992). An oral request is not sufficient to comply with this requirement. Gutierrez v. Gutierrez, 5 Neb.App. 205, 557 N.W.2d 44 (1996) (denying wife's request for continuance on basis that it was merely oral and holding that application for continuance must be in writing and supported by affidavit which contains factual allegations demonstrating good cause or...