Interest of L.V., In re

• Decision Date: 03 April 1992
• Docket Number: No. S-91-716,S-91-716
• Citation: 482 N.W.2d 250,240 Neb. 404
• Parties: In re Interest of L.V., a Child Under 18 Years of Age. STATE of Nebraska, Appellee, v. W.V., Appellant.
• Court: Nebraska Supreme Court

Page 250

482 N.W.2d 250

240 Neb. 404

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

STATE of Nebraska, Appellee, v. W.V., Appellant.

No. S-91-716.

Supreme Court of Nebraska.

April 3, 1992.

Syllabus by the Court

1. Parent and Child: Due Process. The parent-child relationship is afforded due process protection.

2. Parental Rights: Due Process. Procedural due process is applicable to a proceeding for termination of parental rights.

3. Due Process. Procedural due process includes notice to the person whose right is affected by a proceeding, that is, timely notice reasonably calculated to inform the person concerning the subject and issues involved in the proceeding; a reasonable opportunity to refute or defend against a charge or accusation; a reasonable opportunity to confront and cross-examine adverse witnesses and present evidence on the charge or accusation; representation by counsel, when such representation is required by constitution or statute; and a hearing before an impartial decisionmaker.

4. Parental Rights: Due Process. Parental physical presence is unnecessary for a hearing to terminate parental rights, provided that the parent has been afforded procedural due process for the hearing to terminate parental rights.

5. Parental Rights: Due Process: Appeal and Error. If a parent has been afforded procedural due process for a hearing to terminate parental rights, allowing a parent who is incarcerated or otherwise confined in custody of a government to attend the termination hearing is within the discretion of the trial court, whose decision on appeal will be upheld in the absence of an abuse of discretion.

6. Parental Rights: Due Process. In deciding whether to allow a parent's attendance at a hearing to terminate parental rights, notwithstanding the parent's incarceration or other confinement, a court may consider the delay resulting from prospective parental attendance, the need for disposition of the proceeding within the immediate future, the elapsed time during which the proceeding has been pending before the juvenile court, the expense to the State if the State will be required to provide transportation for the parent, the inconvenience or detriment to parties or witnesses, the potential danger or security risk which may occur as a result of the parent's release from custody or confinement to attend the hearing, the reasonable availability of the parent's testimony through a means other than parental attendance at the hearing, and the best interests of the parent's child or children in reference to the parent's prospective physical attendance at the termination hearing.

7. Judges: Words and Phrases: Appeal and Error. A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrain from action, but the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through a judicial system.

8. Parental Rights. Although parental rights may not be terminated solely for a parent's incarceration, parental incarceration is a factor which may be considered in determining whether parental rights should be terminated.

9. Parental Rights: Abandonment: Words and Phrases. Abandonment, for the purpose of Neb.Rev.Stat. § 43-292(1) 10. Parental Rights: Abandonment. Parental incarceration may be considered in reference to abandonment as a basis for termination of parental rights.

(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 opportunity for the display of parental affection for the child.

Bernard J. Ach, Friend, for appellant.

Chris Horacek, Deputy Saline County Atty., for appellee.

Vicky L. Johnson, guardian ad litem.

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

SHANAHAN, Justice.

W.V., biological father of L.V., appeals from the judgment of the county court for Saline County, sitting as a juvenile court pursuant to Neb.Rev.Stat. § 43-245 (Cum.Supp.1990), which terminated W.V.'s parental rights concerning L.V. Termination was based on Neb.Rev.Stat. § 43-292(1) (Reissue 1988) (abandonment of a juvenile for at least 6 months immediately before the filing of a petition to terminate parental rights), § 43-292(2) (substantial and continuous or repeated neglect of a juvenile and refusal to provide parental care and protection for the juvenile), and the court's conclusion that termination of parental rights was in L.V.'s best interests. L.V.'s biological mother entered her voluntary appearance in the proceedings, but is not involved in this appeal. We affirm.

STANDARD OF REVIEW

In an appeal from a judgment terminating parental rights, an appellate court tries factual questions de novo on the record, which requires an appellate court to reach a conclusion independent of the findings of the trial court, but, when evidence is in conflict, an appellate 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.

In re Interest of M.P., 238 Neb. 857, 858-59, 472 N.W.2d 432, 434 (1991). Accord, In re Interest of A.H., 237 Neb. 797, 467 N.W.2d 682 (1991); In re Interest of J.S., A.C., and C.S., 227 Neb. 251, 417 N.W.2d 147 (1987); In re Interest of T.C., 226 Neb. 116, 409 N.W.2d 607 (1987).

The unequivocal language of § 43-292 imposes two requirements before parental rights may be terminated. First, requisite evidence must establish existence of one or more of the circumstances described in subsections (1) to (6) of § 43-292. Second, if a circumstance designated in subsections (1) to (6) is evidentially established, there must be the additional showing that the termination of parental rights is in the best interests of the child, the primary consideration in any question concerning termination of parental rights. The standard of proof for each of the two preceding requirements prescribed by § 43-292 is evidence which is "clear and convincing."

In re Interest of J.S., A.C., and C.S., 227 Neb. at 267, 417 N.W.2d at 158. Accord, In re Interest of M.P., supra; In re Interest of T.C., supra.

"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." In re Interest of T.C., 226 Neb. at 117, 409 N.W.2d at 609. Accord, In re Interest of J.S., A.C., and C.S., supra; In re Interest of M.P., supra. " '[C]lear and convincing evidence means and is that amount of evidence which produces in the trier of fact a firm belief or conviction about the existence of a fact to be proved.' " In re Interest of J.S., A.C., and C.S., 227 Neb. at 266, 417 N.W.2d at 157 (quoting from Castellano v. Bitkower, 216 Neb. 806, 346 N.W.2d 249 (1984)).

PROCEDURAL BACKGROUND FOR TERMINATION HEARING

Adjudication.

The child, L.V., was born on August 10, 1977, of her mother's marriage to W.V Petition to Terminate W.V.'s Parental Rights.

As a result of a marital dissolution decree in 1979, the mother received custody of L.V. However, at an adjudication hearing in 1988, the court determined that L.V. was a juvenile in a situation which was dangerous to her life or limb or was injurious to her health or morals. See Neb.Rev.Stat. § 43-247(3)(a) (Reissue 1988) (jurisdiction of juvenile courts). L.V.'s custody was thereafter placed with the Nebraska Department of Social Services (DSS). No appeal was taken from the adjudication.

On August 31, 1990, the State filed a petition to terminate W.V.'s parental rights concerning L.V. Among the bases for its petition, the State alleged W.V.'s 6-month abandonment of L.V., see § 43-292(1), and his failure to provide parental care and protection for L.V., see § 43-292(2).

When notified of the termination hearing, W.V. was incarcerated in the state penitentiary at Kyle, Texas, where he had served approximately 8 years of his 25-year sentence for aggravated sexual assault of a 6-year-old victim. In reference to the prospective hearing, W.V. filed a motion asserting that his "mandatory supervision release date" from the Texas penitentiary was December 8, 1991, and, therefore, requesting that the termination proceeding be postponed until W.V. might be physically present at the termination hearing. After counsel's argument on the motion, the court, on October 10, 1990, concluded: "There is no due process requirement for [W.V.] to be personally present" at the termination hearing, which eventually took place on December 20. However, the court ordered that on completion of the State's evidence at the December 20 hearing, the proceeding would be recessed, testimony from the State's witnesses would be transcribed, and the county attorney, W.V.'s lawyer, and L.V.'s guardian ad litem would then proceed to Texas at state expense and obtain W.V.'s deposition in light of the transcription. Also, the court ordered that W.V., after his examination of the transcribed testimony given at the December 20 hearing and on resumption of the termination hearing, would be allowed to recall any of the State's witnesses for further cross-examination and call his own witnesses. Although the record indicates that W.V.'s deposition was not taken, the transcription of the December 20 hearing, at which W.V. was represented by a lawyer, was filed with the court on January 10, 1991. W.V.'s lawyer sent a copy of the transcript to W.V. in Texas. W.V. examined the transcript and corresponded with his lawyer about some aspects of the testimony at the hearing of December 20, 1990. There is no complaint that W.V.'s deposition was not obtained in accordance with the order of October 10, 1990.

TERMINATION...