Interest of M.W.M., In re, 85-122

• Decision Date: 07 February 1986
• Docket Number: No. 85-122,85-122
• Citation: 221 Neb. 829,381 N.W.2d 134
• Parties: In re Interest of M.W.M., a Child Under 18 Years of Age. STATE of Nebraska, Appellee, v. R.F.M. and J.M.M., Appellants.
• Court: Nebraska Supreme Court

Page 134

381 N.W.2d 134

221 Neb. 829

In re Interest of M.W.M., a Child Under 18 Years of Age.

STATE of Nebraska, Appellee, v. R.F.M. and J.M.M., Appellants.

No. 85-122.

Supreme Court of Nebraska.

Feb. 7, 1986.

Syllabus by the Court

1. Parental Rights. An order terminating parental rights must be based on clear and convincing evidence.

2. Parental Rights: Appeal and Error. An order terminating parental rights is reviewed in this court de novo on the record, giving weight to the fact that the trial court observed the parties and witnesses and judged their credibility.

3. Parental Rights. A primary consideration in a case involving termination of parental rights is the best interests of the child.

4. Parental Rights. In entering an order of termination of parental rights, the court may properly take into consideration all of its earlier proceedings in the case.

James H. Monahan, Omaha, for appellants.

Donald L. Knowles, Douglas Co. Atty., and Elizabeth G. Crnkovich, Omaha, for appellee.

Kenneth P. Weiner, of Wall, Wintroub & Weiner, Omaha, guardian ad litem.

KRIVOSHA, C.J., and BOSLAUGH, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ., and COLWELL, D.J., Retired.

GRANT, Justice.

The natural parents of M.W.M., a child under 18 years old, appeal the order of the separate juvenile court of Douglas County, Nebraska, terminating their parental rights. Appellants assign three errors: (1) That the order was contrary to law; (2) That the court erred in "finding that they were unfit parents"; and (3) That the court erred in failing to dismiss the case when 3 years had elapsed between the time "that the Court found the Appellants unfit, and the Court's action terminating their parental rights." We affirm.

An order terminating parental rights must be based on clear and convincing evidence and is reviewed in this court de novo on the record, giving weight to the fact that the trial court observed the parties and witnesses and judged their credibility. In re Interest of M.L.B., 221 Neb. 396, 377 N.W.2d 521 (1985); In re Interest of M.S., 218 Neb. 889, 360 N.W.2d 478 (1984).

The first two assignments of error may be considered together, as they contest the sufficiency of the evidence to support the court's order of termination. With regard to the sufficiency of the evidence before the court, the record shows the following.

In February 1974 Child Protective Services in Douglas County received a referral concerning the alleged filthy condition of the home maintained by appellants and the delayed development of the child born December 24, 1973. From 1974 to 1977 Child Protective Services caseworkers, the Visiting Nurse Association, ENCOR (Eastern Nebraska Community Office of Retardation), the Parent-Child Center, and other agencies worked with appellants in attempts to correct the home condition.

On August 5, 1977, a petition was filed in the Douglas County Separate Juvenile Court seeking termination of the parental rights of R.F.M. and J.M.M. On November 22, 1977, the court entered an order finding that the child was one within the meaning of Neb.Rev.Stat. § 43-202(1) (Cum.Supp.1976), which then provided that the juvenile court had exclusive original jurisdiction of any child under 18, "who is homeless or destitute, or without proper support through no fault of his parent...." The order placed the child in foster care and set out a plan for the rehabilitation of the parents and ordered the parents to comply with that plan. The record does not show the specific disposition of this 1977 proceeding, but evidence indicates that the child was returned to appellants' home in August of 1978.

On December 15, 1981, a petition was filed in the same court in a new case concerning M.W.M. This petition alleged that the child was one within the meaning of Neb.Rev.Stat. §§ 43-202(2)(b) and 43-209(2) (Reissue 1978), in that the child lacked proper parental care because of the faults or habits of his natural parents. The petition alleged, in part, that appellants were at fault in that:

A. The residence of ... said child, is frequently in a state of disarray, to wit: Garbage, trash, rubbish in large quantities are strewn throughout the yard; junk, trash, rubbish, dirty clothes, garbage are strewn throught [sic] the residence in such large quantities that a pathway is required for movement through the residence; the kitchen is covered with trash, junk, rubbish, decayed food on the floor, cabinets, pots, pans and dishes; a putrid odor permeates the entire residence; the residence is infested with roaches and fleas.

....

C. Said child has been observed in school wearing clothes which were infested with cockroaches....

....

E. On or about November 25, 1981, said child was removed from the residence of [R.F.M.] and [J.M.M.] by law enforcement authorities after a determination by said officers that the residence was unfit for human habitation.

The petition prayed that the court render appropriate orders for the care of the child and terminate the parental rights of appellants.

A detention hearing was held on January 4, 1982, pursuant to Neb.Rev.Stat. § 43-205.04 (Reissue 1978). Appellants were present with counsel. Two witnesses testified on behalf of the State, and R.F.M. testified on behalf of appellants. Martha Husebo, a police officer with the juvenile court unit of the Omaha Police Department, testified that she went to the home of appellants on November 25, 1981, regarding a complaint from school authorities that M.W.M. was coming to school in a filthy condition with cockroaches on him, which precipitated giving the child a bath at school. The child's father let the police officer into the home. The officer testified that the house was "littered with trash wall to wall to a point where it had a path about [12 to 18 inches] wide to walk through the entire house in." The police officer then called for the identification bureau to take pictures of the "horrible mess" she observed. These pictures were received in evidence and show the condition of the home to be in the condition described by Officer Husebo. The officer testified that she did not consider the home "an inhabitable and sanitary environment for a child" and that "a child certainly shouldn't have to put up with this. The child didn't create it." The officer told the appellants that she was taking the child and that they should "start cleaning up this filthy mess."

Jan Rashid, a caseworker with Child Protective Services, testified that after she had been refused entry to appellants' home on a previous day, she returned to make a scheduled visit on November 24, 1981. On that day the caseworker entered the house with J.M.M. through the back door. She testified that she "made it through half the kitchen, but the stench of the house drove me back outside. It was terrible, the combination of urine, decayed human feces. It was an ungodly stench." The caseworker told J.M.M. that the Omaha Police Department would be called. Appellants refused to permit a cruiser officer inside the house, and the following day Officer Husebo began her investigation described above.

On December 1, 1981, appellants went to the office of Rashid. Appellants stated they had hired a woman to clean the house and had had some plumbing repaired. It was agreed that the caseworker should visit the house the next week. This visit was postponed by appellants until December 15. On this visit Rashid testified that the situation was improved, but it was "still very, very filthy, very, very infested with bugs." She further testified, "I watched [J.M.M.] make some sandwiches for [R.F.M.]. It turned my stomach. There were cockroaches running around on the cutting board." On cross-examination this witness testified that after the first court case involving these parties was terminated in August of 1978, the child's situation was again referred to Child Protective Services in September of 1978. Child Protective Services kept that referral open until 1980 when the case was closed. During that time, the caseworkers' reports showed consistently filthy home conditions.

R.F.M. testified at this hearing to the effect that the parents' home had been cleaned up considerably by December 29, 1981. When asked about "the continual filthy conditions that have existed since 1974 or have been reported since 1974 until 1982," he testified that he had no money to hire anyone to come in and help him clean. He then admitted that services had been offered to him, but did not explain his need for professional cleaning help. He also testified that he was employed as a security guard, that his wife had not had any ill health, but that M.W.M. had epilepsy.

At the conclusion of this detention hearing, the court placed the child in foster care and ordered psychological and psychiatric testing for the child, pending an adjudication hearing, which was held on February 11, 1982.

At that hearing the parents were present with their counsel. Before any further evidence was adduced, the parents admitted certain of the allegations set forth in the petition filed in the juvenile court on December 15, 1981, in this case. Appellants specifically admitted paragraphs A, C, and E of that petition as set out above. Before accepting appellants' pleas of admission to those facts, the court asked each of the parents if the recited facts were true and if each of them knew that by admitting those facts the court could terminate his or her parental rights. Each of the parents stated that each understood and made such admissions freely. The court then found that M.W.M. was a child as defined in §§ 43-202(2)(b) and 43-209(2) and took under advisement the question of the termination of the parental rights of appellants.

The above recital sets out the facts before the court when the order terminating appellants' parental rights was made on January 9, 1985. Appellants contend that the evidence before the court was not sufficient to support the...