Interest of D.L.S., In re

• Decision Date: 23 November 1988
• Docket Number: No. 87-858,87-858
• Citation: 230 Neb. 435,432 N.W.2d 31
• Parties: In re Interest of D.L.S., a Child Under 18 Years of Age. STATE of Nebraska, Appellee, v. J.S.C., Appellant.
• Court: Nebraska Supreme Court

Page 31

432 N.W.2d 31

230 Neb. 435

In re Interest of D.L.S., a Child Under 18 Years of Age.

STATE of Nebraska, Appellee, v. J.S.C., Appellant.

No. 87-858.

Supreme Court of Nebraska.

Nov. 23, 1988.

Syllabus by the Court

1. Rules of Evidence: Parental Rights: Juvenile Courts: Due Process. While the Nebraska Evidence Rules, Neb.Rev.Stat. §§ 27-101 to 27-1103 (Reissue 1985), do not apply in juvenile court dispositional hearings such as one to terminate parental rights, they do provide guidance in determining the type of evidence which meets due process requirements.

2. Parental Rights: Juvenile Courts: Due Process. A proceeding to terminate parental rights must employ fundamentally fair procedures satisfying the requirements of due process.

3. Parental Rights: Juvenile Courts: Due Process: Evidence: Proof. The requirements of due process control a proceeding to terminate parental rights and the type of evidence which may be used by the State in an attempt to prove that parental rights should be terminated.

4. Appeal and Error. Error without prejudice provides no ground for appellate relief.

5. Parental Rights: Juvenile Courts: Due Process: Witnesses. A parent has the right to cross-examine an adverse witness appearing in a proceeding to terminate her or his parental rights.

6. Parental Rights: Appeal and Error. In a termination of parental rights case, the Nebraska Supreme Court tries the factual issues de novo on the record and reaches a conclusion independent of the trial court; provided, that when the evidence is in conflict, it considers and may give weight to the trial court's observation of the witnesses and its acceptance of one version of the facts rather than another.

7. Parental Rights: Trial: Evidence: Appeal and Error. In its de novo review of a termination of parental rights case, the Nebraska Supreme Court must, even absent an assignment of error, disregard impermissible or improper evidence; provided, however, that an appropriate objection was made at trial.

8. Parental Rights. A parent's failure to make reasonable efforts to comply with a court-ordered plan of rehabilitation designed to reunite the parent and child presents an independent reason justifying termination of parental rights under Neb.Rev.Stat. § 43-292(6) (Reissue 1984).

9. Parental Rights: Juvenile Courts. Any treatment made a part of a rehabilitation plan must be specifically ordered by the court.

10. Parental Rights: Juvenile Courts. Any treatment ordered as part of a rehabilitation plan must be reasonably related to the plan's objective of reuniting a parent and her or his child.

11. Expert Witnesses. Expert evidence is not required to establish matters which are self-evident.

12. Parental Rights: Words and Phrases. "Mental deficiency," as used in Neb.Rev.Stat. § 43-292(5) (Reissue 1984), includes an impairment in learning capacity such that one is unable to profit from instruction and acquire parenting skills.

13. Parental Rights. The foremost purpose and objective of the Nebraska Juvenile Code is the promotion and protection of a juvenile's best interests, with preservation of the juvenile's familial relationship with her or his parents where the continuation of such parental relationship is proper under the law.

14. Trial: Expert Witnesses. To be admissible, psychological opinions must be based on reasonable psychological certainty.

15. Parental Rights. A child cannot, and should not, be suspended in foster care, nor be made to await uncertain parental maturity.

Kevin V. Schlender, York, and Michael Powell, Aurora, guardian ad litem of J.S.C., for appellant.

Charles W. Campbell, York Co. Atty., for appellee.

Bruce E. Stephens, York, guardian ad litem.

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

PER CURIAM.

In this termination of parental rights case, the father voluntarily relinquished his rights in and to his now 3-year-old daughter, D.L.S. The county court, in the exercise of its powers as a juvenile court, then terminated the mother's parental rights in and to said child. The mother has appealed. Her guardian ad litem and her daughter's guardian ad litem have both aligned themselves with the mother. The errors assigned by and on behalf of the mother combine to challenge (1) certain evidentiary rulings, (2) the reasonableness of the plan of rehabilitation, and (3) the sufficiency of the evidence to support the judgment of termination. We affirm.

The child originally came to the attention of the Nebraska Department of Social Services when her parents brought her into a medical clinic at York, Nebraska, on July 7, 1986, because of a soft lump on the then 14-month-old's head. The physician examining the child discovered a skull fracture, but found no other bruises and no evidence of trauma or brain damage. At that time the parents told the physician they were not sure how the child's injury occurred. The physician testified that he had delivered the child and that until the head injury, she had been receiving "very good care"; "the child was very clean, well fed. The clothes were clean. The child was usually dressed up in a very nice outfit." There had, however, been some problems with overfeeding and with ear infections.

As a consequence of the report of the head injury by the clinic, a petition was filed alleging the child was within the purview of Neb.Rev.Stat. § 43-247(3)(a) (Cum.Supp.1986) by virtue of being in a situation dangerous to life or limb or injurious to her health and morals, and thus was within the jurisdiction of the juvenile court.

Investigation revealed that the house in which the child lived with her parents was unsanitary in the extreme, and the child was placed in the temporary custody of the department. Following a series of hearings, the court below, on October 24, 1986, ordered that the mother, who is in her midtwenties, rehabilitate herself, so that she might be reunited with her daughter, by meeting a number of requirements within 90 days. The court reimposed essentially the same requirements on January 21, 1987, again to be accomplished within 90 days. These requirements, in summary, were that she (1) cooperate with the department in visiting her daughter and in taking instruction calculated to turn her into a competent parent, (2) secure psychotherapeutic services as deemed necessary by a designated clinic and as directed by the department, (3) secure and maintain steady employment so as to support herself and her child, (4) maintain an appropriate permanent residence for herself and her child, and (5) decide what to do about her relationship with her husband, the child's father.

On May 15, 1987, the State petitioned for termination of the mother's parental rights, pursuant to the provisions of Neb.Rev.Stat. § 43-292 (Reissue 1984), asserting, on the one hand, that the mother had "substantially and continuously or repeatedly" neglected the child and refused to give her necessary parental care and protection and, on the other hand, that she was incapable of proper parenting "because of mental illness or mental deficiency" which was reasonably believed would "continue for a prolonged indeterminate period." The petition also avers that reasonable efforts made under the supervision of the court below failed to remove the conditions which endangered the child's life, limb, health, or morals, and concluded that termination of the mother's rights would be in the child's best interests.

In turning our attention to the claims of evidential error, we begin by recalling that the Nebraska Evidence Rules, Neb.Rev.Stat. §§ 27-101 to 27-1103 (Reissue 1985), do not apply in juvenile court dispositional hearings such as one to terminate parental rights. Neb.Rev.Stat. § 43-283 (Reissue 1984); In re Interest of J.S., A.C., and C.S., 227 Neb. 251, 417 N.W.2d 147 (1987). See also, In re Interest of J.K.B. and C.R.B., 226 Neb. 701, 414 N.W.2d 266 (1987). However, a proceeding to terminate parental rights must employ fundamentally fair procedures satisfying the requirements of due process, at which parents are entitled to cross-examine adverse witnesses. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re Interest of J.S., A.C., and C.S., supra; In re Interest of J.K.B. and C.R.B., supra; In re Interest of R.A., 226 Neb. 160, 410 N.W.2d 110 (1987). Therefore, the requirements of due process control a proceeding to terminate parental rights and the type of evidence which may be used by the State in an attempt to prove that parental rights should be terminated. While the Nebraska Evidence Rules do not apply, they provide guidance in determining the type of evidence which meets due process requirements.

The mother's first evidential concern focuses on the receipt into evidence of sundry reports dealing with the mental and physical condition and treatment of the child's father and one of the mother's boyfriends. The mother contends these documents were improperly received in evidence because they are not relevant and because they contain hearsay statements prejudicial to her, including the statements that the child was in foster care because of abuse and the father's claim that the mother was promiscuous. Assuming that it was error to receive these reports in evidence, the error was harmless and thus provides no basis for reversing the judgment of the court below, for error without prejudice provides no ground for appellate relief. In re Interest of J.K.B. and C.R.B., supra.

No prejudice resulted because there was other evidence that the child suffered a skull fracture and that the mother had not been an adequate parent. Although at the termination hearing the father stated he did not know how his daughter was injured, he at one point prior to the hearing wrote a note saying he had caused his daughter's head injury by striking her with his ring finger. There is no evidence or claim that the mother in any way herself...