Interest of Clifford M., In re
| Decision Date | 07 April 1998 |
| Docket Number | No. A-97-449,A-97-449 |
| Citation | 6 Neb.App. 754,577 N.W.2d 547 |
| Parties | In re Interest of CLIFFORD M. et al., children under 18 years of age. STATE of Nebraska, Appellee, v. SUZETTE M., Appellant. |
| Court | Nebraska Court of Appeals |
Syllabus by the Court
1. Constitutional Law: Statutes: Self-Incrimination. A person's right against self-incrimination emanates from three distinct sources, the U.S. Constitution, the Nebraska Constitution, and the Nebraska statutes.
2. Constitutional Law: Self-Incrimination. The Fifth Amendment privilege not only permits a person to refuse to testify against himself or herself during a criminal trial in which he or she is a defendant, but also privileges him or her to refuse to answer questions put to him or her in any other proceeding, civil or criminal, formal or informal, where the answers might tend to incriminate him or her in future criminal proceedings.
3. Self-Incrimination: Parental Rights. The protections afforded against self-incrimination may, in the proper context, be applicable in termination of parental rights proceedings.
4. Self-Incrimination: Juvenile Courts: Parental Rights. It is impermissible for a juvenile court to terminate a person's parental rights because the person invokes his or her privilege against self-incrimination.
5. Pleadings: Notice. The system embodied in Nebraska's pleading system has many purposes and functions, not the least of which is to provide adequate notice as to what allegations a party will be required to meet at trial.
6. Collateral Attack: Parental Rights: Appeal and Error. A parent may not generally raise a collateral attack challenging the provisions of a rehabilitation plan if the parent failed to timely appeal from the plan.
Stephanie Weber Milone, Omaha, for appellant.
James S. Jansen, Douglas County Attorney, Omaha, and Karen S. Kassebaum, Lincoln, for appellee.
Thomas C. Riley, Douglas County Public Defender, and Ann C. Holtz, Omaha, guardian ad litem.
Suzette M., the natural mother of Clifford M., Colette M., and Chelsea M., appeals from an order of the separate juvenile court of Douglas County, Nebraska, terminating her parental rights with respect to the three children. On appeal, Suzette challenges the termination order. Because the court terminated Suzette's parental rights solely on the basis that she refused to waive her right against self-incrimination, we reverse, and remand with directions.
On November 10, 1994, the State filed a second amended petition seeking jurisdiction over Clifford, Colette, and Chelsea. The State asserted that Clifford was born on February 17, 1990; that Colette was born on February 1, 1992; and that Chelsea was born on December 28, 1992. The State alleged that on or about February 22, 1994, Suzette's live-in boyfriend had thrown Clifford into a wall, resulting in bruising on the side of Clifford's face. Additionally, the State alleged that all three children had been subjected to sexual contact by both Suzette and the live-in boyfriend. The State also alleged that Clifford had been subjected to a beating with a belt. The State sought jurisdiction over the children on the basis that Suzette failed to protect them and that she had had sexual contact with them.
After evidentiary hearings, the juvenile court entered an adjudication order. The court found that Suzette admitted the dates of birth of the children. The court found that the allegation that Clifford had been beaten with a belt was not true. The court found that the remaining allegations of the petition were true, including the allegations concerning sexual contact. As such, the court adjudicated the three children to be within the terms of Neb.Rev.Stat. § 43-247(3)(a) (Reissue 1993). The temporary custody of the children was placed in the Nebraska Department of Social Services for appropriate care and placement.
On March 3, 1995, the juvenile court entered a rehabilitation plan designed to continue the efforts at eventual reunification of this family. Among other requirements, the court ordered Suzette to submit to psychiatric examinations, participate in a YWCA domestic violence program, find appropriate housing, find a legal source of income, and participate in the children's therapy as requested by their therapist. Suzette was granted reasonable rights of visitation, at a minimum of once per week and twice per week if possible. The rehabilitation order was thereafter periodically reviewed and reaffirmed.
The record reveals that Suzette presented evidence at the hearing on the motion to terminate her parental rights, which indicates that she complied with portions of the rehabilitation plan ordered by the juvenile court. Suzette completed psychiatric examinations, enrolled in and completed parenting classes, participated in the YWCA domestic violence program, received income from a legal source, participated in personal counseling, and attended visitation regularly. The record further reveals that the children's therapist desired Suzette to participate in a program known as Parents United as a precursor to participation in family therapy with the children.
Subsequent to a review hearing regarding the rehabilitation plan, on May 3, 1996, the juvenile court entered an order which reaffirmed the prior rehabilitation plan and additionally ordered Suzette to enroll and participate in the Parents United program. The court specifically held that Suzette's request that the children be returned to her possession was denied "for the reason that the evidence shows that [Suzette] has not addressed the issue of sexual abuse which placed her children into protective custody...."
According to the record, Parents United is a program designed to work specifically with families affected by sexual abuse issues. The program involves therapy both for victims of sexual abuse and for offenders of sexual abuse. As the program is operated in the Nebraska area, a person may be admitted into the program either as a nonoffender who has been affected by sexual abuse or as an offender who has committed sexual abuse. If a person is to be admitted into the program as an offender, Parents United requires that the offender first admit responsibility for the sexual abuse which he or she perpetrated on the victim.
The record indicates that Suzette contacted the director of Parents United in May or June 1996 about participating, after being requested to do so by the children's therapist and after being ordered to do so by the juvenile court order of May 3, 1996. Suzette refused to make statements acknowledging responsibility for the alleged sexual abuse perpetrated upon Clifford, Colette, and Chelsea. As a result, Suzette was denied admission into the program. The director of Parents United authored a letter to the juvenile court in June, which now appears in the bill of exceptions, explaining that Suzette could not be admitted into the program as a nonoffender because of the court's prior adjudication order finding that she was responsible for the sexual contact and that Suzette could not be admitted into the program as an offender without an acknowledgment by her of responsibility for the sexual contact.
On December 5, 1996, the court-appointed guardian ad litem for the children filed a motion to terminate Suzette's parental rights. The guardian ad litem generally alleged in the motion that termination was appropriate under Neb.Rev.Stat. § 43-292(2) and (7) (Reissue 1993). Section 43-292(2) provides that parental rights may be terminated when "[t]he parents have substantially and continuously or repeatedly neglected the juvenile and refused to give the juvenile necessary parental care and protection." Section 43-292(7) provides that parental rights may be terminated when a "juvenile has been in an out-of-home placement for eighteen or more consecutive months and the parents have failed to correct the conditions leading to the juvenile's out-of-home placement in spite of reasonable efforts and services" offered to the parents by the Department of Social Services or court order.
The guardian ad litem asserted that termination of Suzette's parental rights was appropriate under § 43-292(2), alleging as follows:
[The children] come within the meaning of § 3-292(2) ... because the natural parent Suzette M[.] has substantially and continuously neglected [the children] and refused to give the necessary parental care and protection, to wit:
A. After a February 2, 1995, finding by [the juvenile court] that said children have been subjected to sexual contact by Suzette M[.] and [her live-in boyfriend]. Suzette M[.] refuses to acknowledge said sexual contact occurred. Suzette M[.] refuses to acknowledge any parental responsibility that she has toward said children's care and protection to that end.
The guardian ad litem asserted that termination of Suzette's parental rights was appropriate under § 43-292(7), alleging as follows:
[The children] come within the meaning of § 3-292 (7) ... being under the age of 18 years and having been in an out-of-home placement for 18 or more consecutive months and Suzette M[.] has failed to correct the conditions leading to the juvenile's out-of-home placement in spite of reasonable efforts and services to the parent ordered by the Court or offered by the Nebraska Department of Social Services.
A. Since March, 1994, said children have been in the Nebraska Department of Social Services for out-of-home placement.
B. Since March, 1994, Suzette M[.] has gained no insight regarding her children's care and protection with respect to having been subjected to sexual contact by herself and [her live-in boyfriend].
C. Due to Suzette M[.'s] denial of the sexual contact to which she and [her live-in boyfriend] subjected said children, she has effectively barred her participation in the children's therapy as ordered by [the juvenile...
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State v. Brown, No. 96,862.
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Privilege
...and State Statutes. See U.S.C.A. Const.Amend. 5; Nebraska Const. Art. 1, § 12; Neb.Rev.St. § 25-1210. See In re Interest of Clifford M., 577 N.W.2d 547, 6 Neb.App. 754 (1998). PRIVILEGE AGAINST SELF-INCRIMINATION IN NEW JERSEY: Physicians who do not specifically assert their privilege again......
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Privilege
...and State Statutes. See U.S.C.A. Const.Amend. 5; Nebraska Const. Art. 1, § 12; Neb.Rev.St. § 25-1210. See In re Interest of Clifford M., 577 N.W.2d 547, 6 Neb.App. 754 (1998). PRIVILEGE AGAINST SELF-INCRIMINATION IN NEW JERSEY: Physicians who do not specifically assert their privilege again......
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Privilege
...State Statutes. See U.S.C.A. Const. Amend. 5; Nebraska Const. Art. 1, § 12; Neb.Rev. St. § 25-1210. See In re Interest of Clifford M., 577 N.W.2d 547, 6 Neb.App. 754 (1998). PRIVILEGE AGAINST SELF-INCRIMINATION IN NEW JERSEY: Physicians who do not specifically assert their privilege against......
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Privilege
...and State Statutes. See U.S.C.A. Const.Amend. 5; Nebraska Const. Art. 1, § 12; Neb.Rev.St. § 25-1210. See In re Interest of Clifford M., 577 N.W.2d 547, 6 Neb.App. 754 (1998). PRIVILEGE AGAINST SELF-INCRIMINATION IN NEW JERSEY: Physicians who do not specifically assert their privilege again......