Interest of A.H., In re

• Decision Date: 05 April 1991
• Docket Number: No. 90-596,90-596
• Citation: 467 N.W.2d 682,237 Neb. 797
• Parties: In re Interest of A.H., a Child Under 18 Years of Age. STATE of Nebraska, Appellee, v. N.H., Appellant.
• Court: Nebraska Supreme Court

Page 682

467 N.W.2d 682

237 Neb. 797

In re Interest of A.H., a Child

Under 18 Years of Age.

STATE of Nebraska, Appellee, v. N.H., Appellant.

No. 90-596.

Supreme Court of Nebraska.

April 5, 1991.

Syllabus by the Court

1. Parental Rights: Juvenile Courts. A juvenile court has the discretionary power to prescribe a reasonable plan for parental rehabilitation to correct the conditions underlying the adjudication that a child is a juvenile within the Nebraska Juvenile Code.

2. Parental Rights. When a parent fails to make reasonable efforts to comply with a court-ordered rehabilitative plan, the parent's failure presents an independent reason justifying termination of parental rights.

3. Parental Rights: Words and Phrases. Within Neb.Rev.Stat. § 43-292(6) (Reissue 1988), "reasonable efforts, under the direction of the court" means efforts in relation to a court-ordered plan for parental rehabilitation, not an extrajudicial agreement between a parent and an administrative agency regarding the parent's lifestyle.

4. Parental Rights: Words and Phrases. A rehabilitation plan, within the purview of Neb.Rev.Stat. § 43-292(6) (Reissue 1988), is a court-ordered plan, that is, a judicially fashioned and determined plan, for parental rehabilitation.

5. Parental Rights. A plan for rehabilitation is not a prerequisite or condition precedent to termination of parental rights.

6. Parental Rights: Rules of Evidence: Due Process: Proof. While the Nebraska Evidence Rules, Neb.Rev.Stat. §§ 27-101 to 27-1103 (Reissue 1989), are not applicable in a dispositional hearing, including a hearing to terminate parental rights, 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.

7. Parental Rights: Evidence: Appeal and Error. Because factual questions concerning a judgment or order terminating parental rights are tried by the Supreme Court de novo on the record, impermissible or improper evidence is not considered by the Supreme Court.

Kathryn L. Mesner, of Mesner & Mesner, Central City, for appellant.

Dale M. Shotkoski, Merrick County Atty., for appellee.

Steven M. Curry, of Sampson, Curry & Hummel, Central City, guardian ad litem.

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

SHANAHAN, Justice.

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 In re Interest of C.A., 235 Neb. 893, 894-95, 457 N.W.2d 822, 824 (1990). Accord, In re Interest of J.L.M. et al., 234 Neb. 381, 451 N.W.2d 377 (1990); In re Interest of T.C., 226 Neb. 116, 409 N.W.2d 607 (1987). See, also, Neb.Rev.Stat. § 25-2728(4) (Reissue 1989) (direct appeal to Supreme Court from a judgment of a county court sitting as a juvenile court).

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 [237 Neb. 799] should be terminated as authorized by the Nebraska Juvenile Code."

ASSIGNMENTS OF ERROR

N.H. contends that the court erred (1) by improperly admitting documentary evidence regarding N.H.'s "lifestyle and parenting problems that took place in a different state as much as eight years prior to the birth of the juvenile named in this case," (2) by concluding that there was clear and convincing evidence of her parental unfitness as a basis to terminate her parental rights in her daughter, A.H., and (3) by determining that the termination of N.H.'s parental rights was in A.H.'s best interests.

PROCEEDINGS IN THE JUVENILE COURT

Adjudication Hearing.

In accordance with the Nebraska Juvenile Code, Neb.Rev.Stat. §§ 43-245 et seq. (Reissue 1988), the county court for Merrick County, sitting as a juvenile court on December 5, 1988, conducted an adjudication hearing attended by A.H.'s biological mother, N.H.; the mother's lawyer; the guardian ad litem for A.H.; and the county attorney of Merrick County. On that date, the court determined that A.H. was a juvenile within § 43-247(3)(a) (a child whose parent neglects or refuses to provide proper or necessary subsistence, education, or other care necessary for the health, morals, or well-being of such juvenile) and, subsequently, placed A.H. in the temporary custody of the Department of Social Services (DSS).

Rehabilitation Plans.

Although the record fails to disclose any court-ordered rehabilitation plan, from January 9 to September 22, 1989, N.H. and DSS entered into three separate written rehabilitation "agreements," whereby N.H. agreed, among other things, to participate in a program of inpatient treatment for drug and alcohol abuse, find employment and housing, live without roommates unless approved by DSS, and visit A.H. DDS agreed to assist N.H. and monitor her progress toward the goal of reuniting the mother and child.

Petition to Terminate Parental Rights.

After interim review hearings concerning the relationship between A.H. and her mother, the county attorney, on February 14, 1990, petitioned for termination of N.H.'s parental rights in A.H. and alleged that N.H. substantially and repeatedly neglected the child, refused to supply necessary parental care and protection for the child, habitually consumed liquor, and pursued a life which was seriously detrimental to A.H.'s health and well-being. See § 43-292(4). Also, the county attorney alleged that "reasonable efforts, under the direction of the court, have failed to correct the conditions leading to the determination" that A.H. was a child within the jurisdiction of a juvenile court under the Nebraska Juvenile Code. See § 43-292(6).

Basis for Termination of Parental Rights.

As mentioned above under the heading "Rehabilitation Plans," there were agreements between N.H. and DSS concerning the manner in which N.H. would conduct her life. Under § 43-292(6), a ground to terminate parental rights exists when "reasonable efforts, under the direction of the court, have failed to correct the conditions leading to the determination" and adjudication that a child is a juvenile under the Nebraska Juvenile Code and, therefore, is within the jurisdiction of a juvenile court. The record reflects no court order containing a plan for N.H.'s rehabilitation. As we very specifically and clearly stated in reference to § 43-292(6) as a basis to terminate parental rights: "A juvenile court has the discretionary power to prescribe a reasonable plan for parental rehabilitation to correct the conditions underlying the adjudication that a child is a juvenile within the Nebraska Juvenile Code." In re Interest of L.H., 227 Neb. 857, 863, 420 N.W.2d 318, 321 (1988). Accord, In re Interest of J.L.M. et al., 234 Neb. 381, 451 N.W.2d 377 (1990); In re Interest of T.C., 226 Neb. 116, 409 N.W.2d 607 (1987). Also, in express reference to § 43-292(6), we have recognized that "when a parent fails to make reasonable efforts to comply with a court-ordered rehabilitative plan, the parent's failure presents an independent reason justifying termination of parental rights." In re Interest of J.S., A.C., and C.S., 227 Neb. 251, 266, 417 N.W.2d 147, 158 (1987). Accord, In re Interest of J.L.M. et al., supra; In re Interest of L.H., supra. Consequently, within § 43-292(6), "reasonable efforts, under the direction of the court" means efforts in relation to a court-ordered plan for parental rehabilitation, not an extrajudicial agreement between a parent and an administrative agency regarding the parent's lifestyle. Presently, we need not elaborate on legal implications and problems inherent in leaving rehabilitation plans to the dictates of an administrative agency rather than the judicial direction contemplated by § 43-292(6). Inasmuch as it is unclear that the trial court in N.H.'s case utilized parental noncompliance with the N.H.-DSS agreements as a basis to terminate N.H.'s parental rights, we do not consider those extrajudicial agreements in our de novo review for disposition of N.H.'s appeal. However, we again emphasize through repetition: A rehabilitation plan, within the purview of § 43-292(6), is a court-ordered plan, that is, a judicially fashioned and determined plan, for parental rehabilitation. Also, in In re Interest of J.S., A.C., and C.S., supra, we prescribed a procedure, including an evidential hearing, precedent to a plan for parental rehabilitation and then pointed out the necessity for careful thought reflected in a rehabilitation plan in view of the serious consequences from a parent's willful noncompliance with the plan. "Serious consequences" is an understatement, since noncompliance with a rehabilitation plan may lead to termination of parental rights in a child. We encourage courts and counsel to review In re Interest of J.S., A.C., and C.S. regarding plans for parental rehabilitation. Implicit in the foregoing is the assumption that In re Interest of J.S., A.C., and C.S. has previously been viewed, which we hope is not an unjustified assumption.

Nevertheless, a plan for rehabilitation is not a prerequisite or condition precedent to termination of parental rights. In re Interest of M.B., R.P., and J.P., 222 Neb. 757, 386 N.W.2d 877 (1986); In re Interest of M.W.M., 221 Neb. 829, 381 N.W.2d 134 (1986).

In April 1990, at a hearing attended by...