Interest of Kimsey, In re

• Decision Date: 06 March 1981
• Docket Number: No. 43145,43145
• Citation: 208 Neb. 193,302 N.W.2d 707
• Parties: In re Interest of Shawna KIMSEY, a minor child. STATE of Nebraska et al., Appellants, v. Dennis KIMSEY, Appellee.
• Court: Nebraska Supreme Court

Page 707

302 N.W.2d 707

208 Neb. 193

In re Interest of Shawna KIMSEY, a minor child.

STATE of Nebraska et al., Appellants, v. Dennis KIMSEY, Appellee.

No. 43145.

Supreme Court of Nebraska.

March 6, 1981.

Syllabus by the Court

1. Parental Rights. Under Neb.Rev.Stat. § 43-209 (Reissue 1978), a person's parental rights may be terminated only upon presentation of clear and convincing evidence.

2. Parental Rights. The right of parents to maintain the custody of their child is a natural right subject only to the paramount interest which the public has in the protection of the rights of a child.

3. Child Custody. While there may be no direct affirmative evidence of child abuse, where there is ample evidence of neglect and a lack of proper parental care directly and adversely injurious to the health, safety, and well-being of the child, the best interests of the child become paramount.

4. Parental Rights. Parental rights may be forfeited by substantial, continuous, and repeated neglect of a child and a failure to discharge the duties of parental care and protection.

5. Parental Duties. Both parents have duties to their children; a father cannot delegate those duties to the mother of his children and expect to be held harmless if she neglects the children.

James D. Livingston, guardian ad litem, of Cunningham, Blackburn, Von Seggern, Livingston, Francis & Riley, Grand Island, for appellant Shawna.

Richard E. Weaver, Grand Island, for appellant State.

Duane A. Burns, of Mayer, Burns & Mayer, Grand Island, for appellee.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.

WHITE, Justice.

This is an appeal by the State of Nebraska and the guardian ad litem of Shawna Kimsey, minor child born December 4, 1976. The appellants assign as error the District Court's finding that there was no clear and convincing evidence presented to justify the county court's termination of parental rights of the father, Dennis Kimsey, to Shawna Kimsey. The mother's parental rights to the child were also terminated in the county court; she appealed, and the District Court affirmed the decision of the lower court. She did not appeal here and that matter is not before us.

After a hearing on September 1, 1977, the court held that Shawna Marie Kimsey was a child within the meaning of Neb.Rev.Stat. § 43-202(2)(e) (Reissue 1978), "who is in a situation or engages in an occupation dangerous to life or limb or injurious to the health or morals of such child." Dennis and Karin Kimsey were allowed to retain custody of the child, but under the supervision of the Hall County Development of Welfare for a period of 1 year. As part of the court order, Karin was ordered to attend Alcoholics Anonymous meetings for a period of 1 year and Dennis was ordered to attend Al-Anon meetings for the same period of time.

On October 28, 1977, Karin Kimsey gave birth to a second child, Cynthia. The child was born with multiple physical and psychological problems. The court was informed by counsel at oral argument that Cynthia Kimsey had died during the pendency of the appeal, after having spent substantially all of her short life either in a hospital or in the care of foster parents.

On November 4, 1977, an Alcoholics Anonymous sponsor found Karin Kimsey intoxicated and passed out in her apartment and notified the welfare department. The department of welfare took temporary care of Shawna Kimsey. There was another hearing on November 9, 1977. As a result of that hearing, physical custody of Shawna was given to Dennis under the supervision of the Hall County Department of Welfare, but actual physical possession of the child was given to Dennis' father and stepmother.

In March 1978, and in violation of a court order, Dennis removed the child from Nebraska to Le Mars, Iowa. The child was recovered by Iowa authorities on March 6, 1978, initially placed in Children's Village, and then returned to Dennis' stepmother.

On March 14, 1979, Dennis' stepmother was stricken with an illness and Shawna was taken from her and placed in another temporary foster home. Again, on April 29, 1979, Shawna was removed from that temporary foster home and sent to another. Shawna had begun exhibiting evidence of severe emotional insecurity, determined to be a direct result of the many and various environments which she had been placed into and then removed from. Shawna was admitted to St. Francis Hospital in Grand Island, Nebraska, for treatment of serious nervous and psychiatric disorders, and on June 28, 1979, she was taken to the Nebraska Psychiatric Institute. Subsequently she was placed in yet another foster home.

The final termination hearing in the county court was held on July 13, 1979, 2 years after the initial hearing. By the time of this hearing, the court had received recommendations to terminate parental rights of both parents from representatives of the Hall County Department of Welfare, the Plains Area Mental Health Center at Le Mars, Iowa, and the Iowa Department of Social Services, Plymouth County, Iowa. The court also heard evidence that Dennis and Karin had been divorced on June 4, 1979, and finally determined that the best interests of the minor dictated that the parental rights of both Karin and Dennis be terminated. Dennis Kimsey then appealed the termination of his rights to the District Court for Hall County.

The District Court reversed the order of the Hall County Court and ordered that legal custody of Shawna Kimsey be given to Dennis and that physical custody be given to his natural mother who lives in Missouri. As of the date of the hearing, Shawna had only recently become slightly acquainted with this woman.

We are concerned with one assignment of error, i. e. whether the District Court erred in finding that there was not clear and convincing evidence presented to justify the termination of Dennis Kimsey's parental rights to Shawna Kimsey. Under Neb.Rev.Stat. § 43-209 (Reissue 1978), a person's parental rights may be terminated only upon presentation of clear and convincing evidence. State v. Souza-Spittler, 204 Neb. 503, 283 N.W.2d 48 (1979); State v. Hamilton, 204 Neb. 537, 283 N.W.2d 66 (1979).

The right of a parent to maintain the custody of his or her child is a natural right subject only to the paramount interest which the public has in the protection of the rights of a child. Linn v. Linn, 205 Neb. 218, 286 N.W.2d 765 (1980); State v. Metteer, 203 Neb. 515, 279 N.W.2d 374 (1979). Further, in a proceeding to terminate parental rights under § 43-209(6), there must be a determination that the child is one described in subsection (1) or (2) of § 43-202 and that reasonable efforts, under the direction of the court, have failed to correct the conditions leading to that determination.

The county court first determined that Shawna was a neglected child when her mother was arrested for public drunkenness and it was discovered that her mother was an alcoholic. Although the record shows that Karin Kimsey has struggled to overcome her alcoholism, she has not yet succeeded. Karin has been an inpatient at a number of alcoholism treatment centers in both Nebraska and Iowa, and at the time of trial she was residing in a halfway house in Iowa.

Some background is necessary. Karin Kimsey is a native of Germany and the mother of a young girl who lives there still. It appears from the record that when Dennis married Karin he promised that they would continue to live in Germany after their marriage so that Karin could keep in contact with...