In re Interest of Brettany M.
Decision Date | 07 May 2002 |
Docket Number | No. A-01-880.,A-01-880. |
Citation | 11 Neb. App. 104,644 N.W.2d 574 |
Parties | In re Interest of BRETTANY M. et al., children under 18 years of age. State of Nebraska, Appellee, v. Brett W., Appellant. |
Court | Nebraska Court of Appeals |
Scott A. Calkins, of Byam & Hoarty, Omaha, for appellant.
James S. Jansen, Douglas County Attorney, and Kim B. Hawekotte, Omaha, for appellee.
Brett W. appeals from an order of the separate juvenile court of Douglas County, Nebraska, terminating his parental rights to Brettany M. and Cinnamon M. On appeal, Brett challenges the court's rulings concerning the admission of certain evidence and the court's finding that the State had proven by clear and convincing evidence that termination of his parental rights was in the best interests of Brettany and Cinnamon. Brett argues that the determination to terminate his parental rights was based on his incarceration. On our de novo review, we affirm the termination of Brett's parental rights.
These proceedings involve the termination of Brett's parental rights to Brettany and Cinnamon. Although another child, Darius M., was also named in the caption of the case, the issues on appeal are limited to Brettany and Cinnamon. Accordingly, we limit the factual background to a discussion of the facts as they relate to those two children.
Brettany was born August 26, 1996. Brettany suffered medical complications at birth and experienced a condition known as gastroschisis, a condition in which she was born with her intestines outside her body. As a result of this condition, Brettany spent the first few months of her life in the hospital and underwent several surgeries before she was discharged and allowed to leave the hospital. Brett testified that he spent as much time as he could, when not working, at the hospital with Brettany during this time and was in the surgery room with Brettany during her surgeries. To be able to care for Brettany's condition when she was allowed to leave the hospital, Brett underwent training and received a state license to act as a certified nursing assistant.
The evidence presented at trial indicated that after Brettany left the hospital, Brett was the primary caregiver taking care of her special needs. Specifically, Brett maintained a feeding tube necessary for feeding Brettany, was initially a stay-at-home parent for Brettany, and ultimately assisted daycare providers with Brettany's special needs.
Brettany's biological mother, Jennifer M., had a poor relationship with Brett. The parties separated numerous times, during which Brett cared for Brettany. Ultimately, Brett underwent court proceedings to establish paternity of Brettany and to be awarded legal custody of Brettany. In those court proceedings, Brett was found to be Brettany's father and was awarded custody of Brettany.
Cinnamon was born 15 months after Brettany, on November 30, 1997. Brett testified that after Cinnamon's birth, he was the primary caregiver to both Brettany and Cinnamon. When Cinnamon was approximately 6 months old, Jennifer took Cinnamon and left town for approximately 1 month without notifying Brett of their whereabouts. After this incident, Brett underwent court proceedings to establish paternity of Cinnamon and to be awarded legal custody of Cinnamon. In those court proceedings, Brett was found to be Cinnamon's father and was awarded custody of Cinnamon.
The record is undisputed that Brett was the primary caregiver for both Brettany and Cinnamon. Brett called several witnesses to testify to this fact and testified in this regard on his own behalf.
The record indicates that Brett and Jennifer were unable to live together and get along. There was apparently some altercation in July 1998, although the details of this altercation are not evident on the record. Following the July altercation, Brett underwent court proceedings and obtained a domestic violence protection order on behalf of himself and Brettany and Cinnamon, which was granted on September 1. In addition, although there is no evidence in the record to indicate that either child ever witnessed or experienced any domestic violence, the relationship between Brett and Jennifer turned violent on at least one occasion.
On November 1, 1998, there was an altercation between Brett and Jennifer. During this altercation, Brett assaulted Jennifer and caused serious bodily injury. Specifically, Brett pled no contest to a charge of first degree assault, and the factual basis for the plea indicated that Brett was observed to have "stomped" on Jennifer's head. As a result, Jennifer spent approximately 1 month in the hospital and was then released to a nursing home where she remained largely uncommunicative and unable to care for herself. The record indicates that Jennifer remained in this condition at least as of June 1999, although there was no evidence presented at trial to indicate her progress.
As a result of Brett's no contest plea, he was sentenced to a term of imprisonment of 19 to 20 years on June 18, 1999. According to the record, Brett is eligible for parole on May 11, 2008, and has a tentative release date of November 11, 2008. By the year 2008, Brettany will be approximately 11 years old and Cinnamon will be approximately 10 years old, and both will have spent more than 9 years away from Brett's care. On November 17, 1998, an amended petition was filed alleging that Brettany and Cinnamon were within the jurisdiction of the juvenile court through the fault or habits of Brett. A second amended petition was filed on December 4, 1998, which added Darius to the pleadings. On March 4,1999, the juvenile court entered an order finding that the children were within the jurisdiction of the court through the fault or habits of Brett.
On April 19, 1999, a disposition order was entered by the juvenile court. The court indicated that the permanency objective was reunification and ordered Brett to comply with a case plan developed by the Nebraska Department of Health and Human Services (Department). Various orders were entered after review hearings in October and November 1999 and January and April 2000.
On July 20, 2000, the State filed a motion for termination of Brett's parental rights. The State alleged that termination was appropriate pursuant to Neb.Rev.Stat. § 43-292(2) and (7) (Reissue 1998). The court entered an order terminating Brett's parental rights on July 18, 2001. The court found that termination was appropriate under both § 43-292(2) and (7) and that termination was in the best interests of Brettany and Cinnamon. This timely appeal followed.
On appeal, Brett has assigned five errors, which we consolidate for discussion to two. First, Brett asserts that the court erred in various evidentiary rulings. Second, Brett asserts that the court erred in finding clear and convincing evidence that termination of his parental rights is in the best interests of Brettany and Cinnamon; Brett argues primarily that there was not clear and convincing evidence because the State's evidence focused on his incarceration.
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 best interests of the children involved. In re Interest of Clifford M. et al., 261 Neb. 862, 626 N.W.2d 549 (2001). Here, the State alleged and the court determined that the statutory grounds set forth in § 43-292(2) and (7) were established. On appeal, Brett has not challenged the juvenile court's finding that there was a statutory basis for termination, but has challenged the court's finding that termination was in the best interests of Brettany and Cinnamon.
In an appeal from an order terminating parental rights, an appellate court tries factual questions de novo on the record. In re Interest of Clifford M. et al., supra. 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 the facts over another. Id.
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 Clifford M. et al., supra. "Clear and convincing evidence" means and is that amount of evidence which produces in the trier of fact a firm belief or conviction about the existence of a fact to be proven. In re Interest of Lisa W. & Samantha W., 258 Neb. 914, 606 N.W.2d 804 (2000); In re Interest of Michael B. et al., 258 Neb. 545, 604 N.W.2d 405 (2000); In re Interest of Joshua M. et al., 251 Neb. 614, 558 N.W.2d 548 (1997). Further, clear and convincing evidence is more than a preponderance of evidence, but less than proof beyond a reasonable doubt. In re Interest of Headrick, 3 Neb.App. 807, 532 N.W.2d 643 (1995).
Brett first challenges the court's ruling on various evidentiary objections. Brett alleges that the court erred in receiving various evidence offered by the State and in not receiving various evidence offered by Brett.
First, Brett challenges the court's ruling that exhibit 59 was admissible. Exhibit 59 is a transcription of Brett's plea and sentencing in the criminal action concerning the first degree assault of Jennifer. When exhibit 59 was offered by the State, Brett specifically indicated On appeal, Brett argues that the evidence "has absolutely no probative value in this case." Brief for appellant at 33. We disagree.
As Brett recognizes on appeal, the Nebraska rules of evidence...
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