Souza, In Interest of, 42348

• Decision Date: 04 September 1979
• Docket Number: No. 42348,42348
• Court: Nebraska Supreme Court
• Parties: In re Interest of Faith Ann SOUZA, a child under eighteen years of age. STATE of Nebraska, Appellee, v. Bonita Souza SPITTLER, natural mother, Appellant.

Page 48

283 N.W.2d 48

204 Neb. 503

In re Interest of Faith Ann SOUZA, a child under eighteen years of age.

STATE of Nebraska, Appellee, v. Bonita Souza SPITTLER, natural mother, Appellant.

No. 42348.

Supreme Court of Nebraska.

Sept. 4, 1979.

Syllabus by the Court

1. Constitutional Law: Minors: Statutes: Parent and Child. Section 43-209(6), R.R.S.1943, is sufficiently definite, both facially and as applied in this case, to withstand constitutional attack based on vagueness.

2. Evidence: Proof: Statutes: Parent and Child. Parental rights may be terminated under section 43-209, R.R.S.1943, only upon presentation of clear and convincing evidence.

3. Supreme Court: Appeal and Error: Parent and Child: Proof. In a case terminating parental rights, review in the Supreme Court is made de novo on the record. Where a correct judgment or order has been made, it will not be reversed for the reason that it may have been arrived at under an incorrect standard of proof.

John B. Ashford of Bradford & Coenen, Omaha, for appellant.

Donald K. Knowles, Douglas County Atty., and Francis T. Belsky, Deputy County Atty., Omaha, for appellee.

Heard before BOSLAUGH, CLINTON, WHITE, and HASTINGS, JJ., and KORTUM, District Judge.

WHITE, Justice.

This is an appeal from an order of the Separate Juvenile Court for Douglas County, Nebraska, terminating the parental relationship between Faith Ann Souza and her mother, Bonita Souza, now Bonita Spittler.

From the time of the child's birth on January 8, 1976, until August 2 of that year, the child lived with her mother at various residences in Omaha. At least some of the residences were suggested by Douglas County Social Services. On August 2, 1976, a petition was presented by the county attorney for Douglas County alleging that Faith Ann Souza was a homeless, destitute child under the age of 18 years within the meaning of section 43-202(1), (2)(a), and (2)(b), R.R.S.1943, and asking that immediate custody of the child be taken from Bonita Souza, the natural mother, and further, that after notice and hearing the parental rights be terminated under section 43-209(2), R.R.S.1943.

Section 43-202, R.R.S.1943, defines the jurisdiction of the juvenile court. It states, in pertinent part: "(1) Exclusive original jurisdiction as to any child under the age of eighteen years, who is homeless or destitute, or without proper support through no fault of his parent, guardian, or custodian;

"(2) Exclusive original jurisdiction as to any child under the age of eighteen years (a) who is abandoned by his parent, guardian, or custodian; (b) who lacks proper parental care by reason of the fault or habits of his parent, guardian, or custodian; (c) whose parent, guardian, or custodian neglects or refuses to provide proper or necessary subsistence, education, or other care necessary for the health, morals, or well-being of such child; (d) whose parent, guardian, or custodian neglects or refuses to provide special care made necessary by the mental condition of the child; or (e) 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; * * *."

Section 43-209, R.R.S.1943, the termination section, provides in part, after summons and notice: "The court may terminate all parental rights between the parents or the mother of a child born out of wedlock and such child when the court finds such action to be in the best interests of the child and it appears by the evidence that one or more of the following conditions exist:

"(1) The parents have abandoned the child for six months or more immediately prior to the filing of the petition "(2) The parents have substantially and continuously or repeatedly neglected the child and refused to give the child necessary parental care and protection;

"(3) The parents, being financially able, have willfully neglected to provide the child with the necessary subsistence, education or other care necessary for his health, morals or welfare or have neglected to pay for such subsistence, education or other care when legal custody of the child is lodged with others and such payment ordered by the court;

"(4) The parents are unfit by reason of debauchery, habitual use of intoxicating liquor or narcotic drugs or repeated lewd and lascivious behavior, which conduct is found by the court to be seriously detrimental to the health, morals, or well-being of the child;

"(5) The parents are unable to discharge parental responsibilities because of mental illness or mental deficiency, and there are reasonable grounds to believe that such condition will continue for a prolonged indeterminate period; or

"(6) Following upon a determination that the child is one as described in subdivision (1) or (2) of section 43-202, reasonable efforts, under the direction of the court, have failed to correct the conditions leading to the determination."

The trial court appointed counsel for the mother, Bonita Souza, and appointed a guardian ad litem to represent the interests of Faith Ann Souza. On August 11, 1976, the trial court entered an order placing temporary custody of Faith Ann Souza with Douglas County Social Services for foster home placement. The order for temporary custody was not opposed by Bonita or by her attorney.

On November 8, 1976, hearing was held on the termination petition.

The natural father, who had never married Bonita Souza, did not appear and his parental rights were subsequently terminated pursuant to section 43-209(2), R.R.S.1943. That portion of the order is not contested on appeal.

The court, after making findings of fact, found that as to the mother, appellant here, there was insufficient evidence at that time to terminate parental rights. The court did find, however, that Faith Ann was a child within the meaning of section 43-202(1) and (2), R.R.S.1943, and retained jurisdiction with custody to remain in Douglas County Social Services pending a disposition hearing.

At the disposition hearing on January 3, 1977, the court continued the custody of Faith Ann Souza in Douglas County Social Services and ordered Bonita Souza to comply with a rehabilitation plan. The plan included the order that Bonita Souza was to participate in therapy at the Immanuel Mental Health Center; obtain and maintain employment or job training and an adequate income for the support of herself and of her child; obtain and maintain adequate housing and furnishings for herself and her child; become involved in the Positive Parenting Program through the Family Service of Omaha-Council Bluffs; work with the Visiting Nurses Association, obtain any necessary medical treatment for herself, and work with the Child Protective Service worker in the probation office in attempting to comply with the plan of rehabilitation. The order required that the matter be continued for a compliance hearing.

The compliance hearing was held on June 13, 1977. The court also took evidence on a motion for termination of parental rights which had been refiled by the county attorney. The original plan of rehabilitation was amended to delete the requirement of counseling for the mother at Immanuel Mental Health Center. The hearing on the termination motion was continued until August 29, 1977, at which time the court found that the mother had substantially failed to comply with the rehabilitation plan and, accordingly, the child was within section 43-209(6), R.R.S.1943, set out above. The court, however, declined to terminate parental rights at that time and set out instead a revised plan of rehabilitation aimed at counseling and education of Bonita in hygiene and child rearing. It provided for weekend visitation in the home by the child every month and required the mother to maintain a clean, physically adequate home at all times.

A review hearing was held on July 18, 1978. At that time the court found that reasonable efforts under the direction of the court over a period of almost 2 years had failed to correct adequately the conditions leading to the previous determinations that the child was within sections 43-202(1) and (2) and 43-209(6), R.R.S.1943. The court therefore terminated the parental rights of the natural mother.

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