In re Kantril P.
| Decision Date | 13 August 1999 |
| Docket Number | No. S-98-756.,S-98-756. |
| Citation | 257 Neb. 450,598 N.W.2d 729 |
| Parties | In re Interest of KANTRIL P. and Chenelle P., children under 18 years of age. Carlotta P., also known as Charlotta P., appellant, v. State of Nebraska, appellee. |
| Court | Nebraska Supreme Court |
Tracy Grinstead-Everly, of the Law Office of Susan Ann Koenig, Omaha, for appellant.
Mary P. McFarland, Omaha, guardian ad litem, for appellee.
Appellant Carlotta P., also known as Charlotta P. in the record, the natural mother of Kantril P. and Chenelle P., seeks to reverse a juvenile court's order terminating her parental rights. Carlotta contends that the juvenile court did not have subject matter jurisdiction over the children and, alternatively, erred in various respects, including that the court failed to find Neb.Rev.Stat. § 43-272.01(2) (Reissue 1998) unconstitutional. We affirm.
Carlotta assigns that the separate juvenile court erred in (1) failing to dismiss the petition for lack of subject matter jurisdiction; (2) failing to dismiss the motion to terminate parental rights because § 43-272.01(2) is unconstitutional; (3) terminating her parental rights because the State did not meet its burden of proof that (a) the mother's failure to comply with the rehabilitation plan was reasonably related to the objective of reunification, (b) termination of her parental rights was in the best interests of the children, and/or (c) no reasonable alternative to termination of her parental rights existed; and (4) denying her motion for new trial.
On September 7, 1995, Carlotta took Kantril and Chenelle, then 6 and 4, respectively, to Saint Joseph Hospital's emergency room in Omaha, Nebraska, because she thought that someone was living in their attic and might have inserted drugs into one child's rectum and possibly both children's ears. Carlotta was hospitalized for 2 days at the Saint Joseph Center for Mental Health, and the children were immediately placed in foster care. Carlotta tested positive for cocaine use, and a doctor concluded from the tests that she had ingested cocaine shortly before taking the children to the emergency room.
On September 8, 1995, the Douglas County Attorney filed a petition in separate juvenile court alleging that Kantril and Chenelle were juveniles within the meaning of Neb.Rev.Stat. § 43-247(3)(a) (Reissue 1993) in that they were homeless or destitute, or without proper support through no fault of Carlotta, specifically that their mother was unable to provide the care, support, and nurturance required by said children due to her own special needs and circumstances.
A detention hearing was held on September 26, 1995, at which a guardian ad litem appeared for the children. The court ordered that the children remain in the temporary custody of what was then the Nebraska Department of Social Services (now the Department of Health and Human Services (DHHS)). The children were placed with their noncustodial father on October 4, and remained with him throughout most of the proceedings.
Carlotta admitted to the allegations in the petition. The county attorney offered a factual basis which included that Carlotta had been diagnosed with schizophrenia and that because of that condition, she had hallucinations, including visions of ghosts coming from the walls and attacking her children, and had difficulty keeping track of the children. The court accepted Carlotta's admission and, in an order dated March 8, 1996, found that Kantril and Chenelle were juveniles falling within the meaning of § 43-247(3)(a) and ordered that Carlotta submit to a chemical evaluation and that DHHS and the guardian ad litem conduct a predisposition evaluation.
Carlotta tested positive for crack cocaine in March and again in April 1996. Because of these positive test results, she was hospitalized at Hastings Regional Center from May 14 to June 7.
The court reviewed DHHS' temporary custody on July 30, 1996, and determined that it was in the children's best interests to remain in the temporary custody of DHHS. The court ordered Carlotta to: (1) visit the children 1 hour per week with supervision, contingent upon her appropriate behavior; (2) attend weekly therapy sessions to address violence issues and her mental health disorder; (3) take prescribed medication and consistently attend medication check appointments; (4) resume her drug dependency treatment; (5) obtain random drug screenings; (6) cooperate with the professionals involved with her care and treatment; (7) maintain stable and adequate housing and a legal source of income; and (8) work with a DHHS family support worker to learn home management skills, age appropriate expectations, and age appropriate discipline.
Carlotta set up a visit for individual mental health therapy but did not attend. In August 1996, after Carlotta was denied readmittance into a chemical dependency program she had participated in earlier, DHHS arranged for another assessment by another treatment service that recommended she be treated in a halfway house program. Carlotta refused to participate. In December, a DHHS caseworker referred Carlotta to the Immanuel hospital to address both her psychiatric and her chemical dependency problems. Carlotta did not participate in those services.
The court again reviewed custody on December 5, 1996, and June 5, 1997, finding on both occasions that the children's best interests were to remain in DHHS' temporary custody and again ordered Carlotta to comply with the rehabilitation plan; although in the December 1996 order, the court did not include the provision to resume her drug dependency treatment, and in the June 1997 order, did not include either that provision or the provision to learn home management skills.
In 1997, Carlotta visited the children a total of seven times. She moved from Omaha to Tennessee in March and remained there until August, visiting her children only four times during that period. In August, a DHHS caseworker reminded Carlotta of the court-ordered rehabilitation plan's provisions. Carlotta was asked to attend Narcotics Anonymous meetings, but she refused. She told a DHHS caseworker that she would not see a psychiatrist or obtain treatment for her mental health disorder. Carlotta was told on three occasions that she needed to submit to random drug screenings and was given a referral to a service that would provide the screenings. The record indicates she did not submit to that program or any other program that would provide such screenings.
On January 16, 1998, the guardian ad litem filed a motion to terminate Carlotta's parental rights. In the motion, the guardian ad litem alleged that (1) conditions under Neb.Rev.Stat. § 43-292(6) (Cum. Supp.1996) existed in that Carlotta failed in many ways to comply with the court-ordered rehabilitation plan, and thus the conditions leading to the children's adjudication under § 43-247(3)(a) had not been corrected; (2) conditions under § 43-292(7) existed in that the children had been in out-of-home placement for more than 18 consecutive months and Carlotta had failed to correct the conditions leading to the out-of-home placement, despite services offered by the State and ordered by the court; and (3) termination of Carlotta's parental rights was in the best interests of the children.
At the termination hearing, Carlotta's counsel made an oral motion to dismiss on the grounds that it is violative of [Carlotta's] rights to due process that the guardian ad litem be allowed to not only investigate this case, but then based on her own case that she has created[,] file her own motion to terminate the parental rights and then be allowed to try the same case which she herself was allowed to put together and possibly even testify in the case.
The court overruled the motion. At the hearing, the guardian ad litem examined witnesses and presented evidence but did not testify and no guardian ad litem report was submitted into evidence. The county attorney was present but remained silent throughout much of the hearing.
Near the conclusion of the termination hearing, Carlotta's counsel again moved to dismiss the case on the ground that the court did not have subject-matter jurisdiction. The court overruled the motion.
The court found that "the minor children are within the meaning of Section 43-292(6) and 43-292(7) ... by clear and convincing evidence, insofar as their mother is concerned." The court found that it was in the children's best interests and welfare that Carlotta's parental rights be terminated and in their best interests that the State retain custody for adoptive planning and placement. Carlotta's parental rights were terminated.
Carlotta moved for a new trial. She argued that the court should have granted its first motion to dismiss because her due process rights were violated when the guardian ad litem was permitted to file and argue the motion to terminate. Carlotta argued that § 43-272.01(2), which describes the powers of the guardian ad litem, is unconstitutional because it gives too much power to the guardian ad litem. Carlotta also argued that the court lacked subject-matter jurisdiction and that the evidence was insufficient to sustain the court's order. The court overruled the motion. Carlotta appealed and filed a motion in this court to bypass the Nebraska Court of Appeals. We granted the motion to bypass because of the constitutional issue asserted in this appeal.
Where a jurisdictional question does not involve a factual dispute, determination of the issue is a matter of law which requires an appellate court to reach a conclusion independent from that of the inferior court. In re Interest of Anthony G., 255 Neb. 442, 586 N.W.2d 427 (1998); In re Interest of Constance G., 247 Neb....
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