Interest of C.A., In re

• Decision Date: 20 July 1990
• Docket Number: No. 89-1404,89-1404
• Citation: 457 N.W.2d 822,235 Neb. 893
• Parties: In re Interest of C.A., a Child Under 18 Years of Age. STATE of Nebraska, Appellee, v. B.T., Appellant.
• Court: Nebraska Supreme Court

Page 822

457 N.W.2d 822

235 Neb. 893

In re Interest of C.A., a Child Under 18 Years of Age.

STATE of Nebraska, Appellee, v. B.T., Appellant.

No. 89-1404.

Supreme Court of Nebraska.

July 20, 1990.

Syllabus by the Court

1. Parental Rights: Abandonment: Words and Phrases. "Abandonment," for the purpose of Neb.Rev.Stat. § 43-292(1) (Reissue 1988), is a parent's intentionally withholding from a child, without just cause or excuse, the parent's presence, care, love, protection, maintenance, and the opportunity for the display of parental affection for the child.

2. Parental Rights: Abandonment: Intent: Proof. Whether a parent has abandoned a child within the meaning of Neb.Rev.Stat. § 43-292(1) (Reissue 1988) is a question of fact and depends on parental intent, which may be determined by circumstantial evidence.

3. Juvenile Courts: Parental Rights. Parental visitation rights, as a subject within the Nebraska Juvenile Code, are matters for judicial determination.

Elizabeth C. Schrock, Omaha, for appellant.

Karen L. Vervaecke, Omaha, guardian ad litem.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

SHANAHAN, Justice.

Pursuant to the Nebraska Juvenile Code, Neb.Rev.Stat. §§ 43-245 et seq. (Reissue 1988), the separate juvenile court of Douglas County, on November 19, 1986, conducted an adjudication hearing attended by C.A.'s biological parents, lawyers for the parents, C.A.'s guardian ad litem, the State's attorney, and a representative of the Nebraska Department of Social Services (DSS). The court determined that C.A. was a juvenile within § 43-247(3)(a) (a child who is in a situation dangerous to life or limb or injurious to the health or morals of the child). On November 6, 1989, the juvenile court terminated parental rights concerning C.A., on account of parental abandonment of C.A. for more than 6 months immediately prior to the State's filing its petition for termination of parental rights. See § 43-292(1). C.A.'s mother, B.T., has appealed, but C.A.'s father has not appealed.

STANDARD OF REVIEW

In an appeal from a judgment terminating parental rights, the Supreme Court tries factual questions de novo on the record, which requires the Supreme Court to reach a conclusion independent of the findings of the trial court, but, where evidence is in conflict, the Supreme Court considers and may give weight to the fact that the trial court observed the witnesses and accepted one version of the facts rather than another. [Citations omitted.] In the absence of any reasonable alternative and as the last resort to dispose of an action brought pursuant to the Nebraska Juvenile Code ... termination of parental rights is permissible when the basis for such termination is proved by clear and convincing evidence. [Citations omitted.] A juvenile's best interests are one of the primary considerations in determining whether parental rights should be terminated as authorized by the Nebraska Juvenile Code.

In re Interest of T.C., 226 Neb. 116, 117-18, 409 N.W.2d 607, 609 (1987); In re Interest of J.L.M. et al., 234 Neb. 381, 451 N.W.2d 377 (1990).

BACKGROUND

Adjudication and Disposition Proceedings re C.A.'s Father.

C.A. was born on January 13, 1982, to R.A. and B.T., who had been married since October 1979. The marriage of R.A. and B.T. was dissolved in September 1985, and R.A. was granted custody of his daughter, C.A.

In January 1986, after the Omaha Police Division received a complaint that R.A. was sexually abusing C.A., the child was placed in the temporary custody of DSS. On February 13, 1986, the State filed a petition and alleged that C.A. was a child within § 43-247(3)(a) on account of R.A.'s sexual misconduct with C.A. Pending adjudication, C.A. remained in the temporary custody of DSS. Also, during pendency of the adjudication proceedings, the child's mother, B.T., married J.T. on March 28, 1986, and requested temporary custody of C.A. in the proceedings pending before the juvenile court, a request which the court denied.

At the adjudication hearing on November 19, 1986, the court found the allegations of the State's petition to be true, determined that C.A. was a juvenile within § 43-247(3)(a), and, at a dispositional hearing on July 9, 1987, continued DSS' temporary custody of C.A. for placement with B.T. and J.T., the child's stepfather. The court further ordered that B.T. and J.T. participate in counseling and maintain a suitable residence and income, and also ordered that the child's father, R.A., submit to a psychological evaluation and maintain visitation with C.A. under DSS supervision.

Subsequent Review Proceedings.

B.T. and J.T., without court approval, took C.A. to Joplin, Missouri, in December 1987. The court record does not disclose the reason for that change of residence. Around February 17, 1988, B.T. "decided that she no longer wanted to care for [C.A.]" and voluntarily gave C.A. to the Missouri Department of Social Services in Joplin, which, in turn, returned C.A. to DSS in Nebraska.

The court held a review hearing on February 23, 1988. B.T. did not attend the hearing, but remained in Joplin. The court ordered that C.A. remain in DSS' temporary custody for "appropriate foster care placement." On March 16, the court ordered that C.A. should receive therapy arranged by DSS. In April, B.T. filed, but later withdrew, a motion to transfer the proceedings to Missouri. Although notified, B.T. failed to attend additional review hearings held on June 21 and September 23, but was represented by her lawyer at those hearings, in which the court continued DSS' temporary custody of C.A. During the September hearing, the court was informed that C.A. was "experiencing a lot of depression from being abandoned by her mother."

Without having had any contact with C.A. for nearly a year, B.T. arrived in Omaha on February 10, 1989, with the expressed I arranged counseling with Sue Willig from Lutheran Family Services for [B.T.]. I informed [B.T.] of the arrangement and I called the next day to see if she had made contact with this therapist at which time I was informed she had returned to Missouri. She later returned and notified her attorney that she decided prior to any counseling or any attempt to work on this issue that the problems of [C.A.] were too severe and she had changed her mind. She has decided she no longer wanted to be her--part of her life. It was decided at the meeting that even if [B.T.] decided not to try for reunification with [C.A.], she make a commitment to meet in therapy with [C.A.] to close out some old issues with her because she has severe feelings of abandonment and [B.T.] agreed to do that. She failed to do this.

                intention of regaining custody of her daughter.  Kara Murphy, a juvenile court probation officer, told B.T. that she should meet with caseworkers for C.A.  At a meeting on March 1, which included B.T.;   Betty Burton, who was a Child Protective Services worker;  C.A.'s therapist;  and Murphy, B.T. was told that she would have to participate in counseling as a condition for visiting C.A.  At a review hearing held on April 17, Murphy testified
                

B.T. did not attend the April 17 hearing, but was represented by counsel who, in reference to Murphy's testimony, conceded that "[e]verything that has been said appears to be correct." B.T.'s counsel did state, however, that B.T. was attempting to exchange letters with C.A. Also, at the April 17 hearing, the court, without objection, received Burton's DSS case report regarding the meeting between B.T. and the caseworkers for C.A.:

A meeting was arranged for March 1, 1989, with [C.A.'s] primary therapist, Lisa Richardson, so that [C.A.'s] emotional state resulting from the relationship between her and [B.T.], could be explained. The therapist did explain [C.A.'s] complex needs and recommended that [B.T.] become involved in a plan. The plan included [B.T.'s] need to make a firm commitment to work hard and accept [C.A.] as she is because to give up again would be devastating and destroy [C.A.]. We explained that [C.A.] needed structure, consistency and nurturing and she needed to equip herself with these essential parenting qualities. She claims she really wanted reunification with this child. We explained that since she felt that she could not handle [C.A.] in the past, nothing had presently changed with [C.A.] that would make it any easier. She would need to make a commitment and stick by the commitment so that she could help [C.A.]. It is felt that by [B.T.'s] response, that she did not really want to accept any responsibility. Shortly after that meeting, she left town without any explanation. If she had made a commitment to work, an actual visit would have been arranged between her and [C.A.].

The child's father, R.A., did not attend the hearing. R.A. had never visited C.A. after the hearing in November 1988 and, since November 1988, had not participated in counseling ordered by the court.

At the conclusion of the April 17 hearing, the court ordered that C.A. continue receiving therapy and remain in DSS' temporary custody.

Termination Proceedings.

On May 2, 1989, the State filed a motion or petition to terminate the parental rights of B.T. and R.A. Regarding the child's mother, the State alleged that B.T. had abandoned C.A. "for a period in excess of six months immediately preceding the filing of said motion herein, to wit: [B.T.] has had no contact with said child, nor provided any financial or emotional support for said child for over one year." In her answer, B.T. denied that she had abandoned C.A., "in that on February 10, 1989, the natural mother returned to Omaha and immediately requested a visit with her daughter. This request was denied."

A hearing for termination of parental rights was held on November 6, 1989. Although C.A.'s parents had approximately 6 months' notice of the State's motion to terminate their parental rights, neither At the termination hearing, Burton...