State v. P'lar'e S. (In re Interest of Zanaya W.)

• Decision Date: 05 June 2015
• Docket Number: Nos. S–14–550,S–14–564.,s. S–14–550
• Citation: 863 N.W.2d 803
• Parties: In re Interest of Zanaya W. et al., children under 18 years of age. State of Nebraska, appellee and cross–appellee, v. P'lar'e S., appellee and cross–appellant, and Reon W., intervenor–appellant. In re Interest of Jahon S., a child under 18 years of age. State of Nebraska, appellee, v. P'lar'e S., appellant.
• Court: Nebraska Supreme Court

863 N.W.2d 803

In re Interest of Zanaya W. et al., children under 18 years of age.

State of Nebraska, appellee and cross–appellee

v. P'lar'e S., appellee and cross–appellantandReon W., intervenor–appellant.

In re Interest of Jahon S., a child under 18 years of age.

State of Nebraska, appellee

v.P'lar'e S., appellant.

Nos. S–14–550

S–14–564.

Supreme Court of Nebraska.

Filed June 5, 2015.

Joseph L. Howard, of Dornan, Lustgarten & Troia, P.C., L.L.O., Omaha, for intervenor-appellant Reon W. in No. S–14–550.

Thomas C. Riley, Douglas County Public Defender, Omaha, and Zoë R. Wade for appellee P'lar'e S. in No. S–14–550 and appellant P'lar'e S. in No. S–14–564.

Donald W. Kleine, Douglas County Attorney, Amy Schuchman, and Jennifer Chrystal–Clark for appellee State.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller–Lerman, and Cassel, JJ.

Syllabus by the Court

1. Juvenile Courts: Evidence: Appeal and Error.Juvenile cases are reviewed de novo on the record, and an appellate court is required to reach a conclusion independent of the juvenile court's findings. However, when the evidence is in conflict, an appellate court may consider and give weight to the fact that the trial court observed the witnesses and accepted one version of the facts over the other.

2. Parental Rights.Incarceration may be considered along with other factors in determining whether parental rights can be terminated. Specifically, it is proper to consider a parent's inability to perform his or her parental obligations because of incarceration.

3. Parental Rights: Abandonment.Although incarceration itself may be involuntary as far as the parent is concerned, the criminal conduct causing the incarceration is voluntary.

4. Parental Rights.Where a parent is unable or unwilling to rehabilitate himself or herself within a reasonable time, the best interests of the child require termination of the parental rights.

5. Constitutional Law: Appeal and Error.Generally, a constitutional issue not passed upon by the trial court is not appropriate for consideration on appeal.

6. Appeal and Error.When an issue is raised for the first time in an appellate court, it will be disregarded inasmuch as a lower court cannot commit error in resolving an issue never presented and submitted to it for disposition.

Opinion

Stephan, J.

Reon W. and P'lar'e S. are the biological parents of Zanaya W., Mileaya S., and Imareon S. The separate juvenile court of Douglas County terminated their parental rights to the children, and both filed timely appeals. Reon's appeal and P'lar'e's cross-appeal are before us as case No. S–14–550.

Reon and P'lar'e are also the parents of Jahon S. In separate proceedings, the juvenile court also terminated their parental rights to Jahon. P'lar'e's appeal is before us in case No. S–14–564. Reon's appeal is separately docketed as case No. S–14–1049 and is not the subject of this opinion. We granted P'lar'e's petition to bypass and consolidated cases Nos. S–14–550 and S–14–564 for disposition. We now affirm the judgment of the juvenile court in each case.

BACKGROUND

General

In March 2011, the State filed a petition alleging Zanaya, then 2 years old, and Mileaya, then approximately 1 year old,

came within the meaning of Neb. Rev. Stat. § 43–247(3)(a) (Reissue 2008) due to the fault or habits of P'lar'e. The children were removed from P'lar'e's custody and placed with Reon. In July, Reon was allowed to intervene in the juvenile proceedings as an interested party. Imareon was born in May 2012, and the petition was subsequently amended to include him as a child within the meaning of § 43–247(3)(a) due to the fault or habits of P'lar'e. Zanaya, Mileaya, and Imareon were adjudicated in July 2012 after P'lar'e admitted she had failed to provide them with safe and stable housing and had failed to participate in necessary mental health treatment for herself. Imareon was also placed with Reon.

The original disposition was in September 2012. At that time, the permanency objective was family preservation with Reon and a concurrent objective of reunification with P'lar'e. P'lar'e was ordered to work with her psychiatrist for medication management and take all medications prescribed, to submit to random drug and alcohol testing a minimum of two times per week, to continue to participate in individual therapy, to participate in an outpatient substance abuse program and mental health therapy, and to cooperate with family support workers and the Department of Health and Human Services (DHHS). P'lar'e was allowed supervised visitation with the children.

P'lar'e completed 5 of 10 scheduled visits with the children in September 2012 and 1 of 6 scheduled visits in October. Her caseworker reported that during visits, P'lar'e struggled to engage appropriately with the children, but did show them verbal and physical affection. P'lar'e missed scheduled drug tests in May, June, and August. She also missed four scheduled appointments with a psychiatrist between March and September. P'lar'e stopped visitation in November, when she moved to Detroit, Michigan. At that time, she understood Reon was going to be given custody of the children and she was comfortable with that. She testified that she was capable of parenting at that time but was tired of the process and decided to just let the children be with Reon. P'lar'e and Reon

agreed she could have visits with the children, supervised by him. After P'lar'e moved to Detroit, the permanency objective changed to family preservation with Reon and DHHS stopped making efforts to reunify P'lar'e and the children.

In March 2013, Reon was arrested for possessing marijuana with intent to distribute. In April, a supplemental petition was filed alleging Zanaya, Mileaya, and Imareon came within § 43–247(3)(a) due to the fault or habits of Reon. As relevant to this case, it was alleged that Reon used and/or possessed controlled substances in the home and that Reon failed to provide safe housing for the children. Reon admitted these allegations, and the children were adjudicated and placed in the care and custody of DHHS.

Meanwhile, P'lar'e returned to Nebraska in February 2013. In an April 2013 review order, the court allowed her to resume DHHS-supervised visitation with the children. It also ordered her to submit to random drug and alcohol testing.

Termination of Reon's Parental Rights

On January 21, 2014, the State petitioned to terminate Reon's parental rights to Zanaya, Mileaya, and Imareon based on an allegation that he substantially and continuously or repeatedly neglected and refused to give them necessary parental care and protection.¹ The petition also alleged that the children had been in an out-of-home placement for 15 or more of the most recent 22 months.² The petition further alleged that terminating Reon's parental rights was in the best interests of the children.

Reon initially denied the allegations in the petition. At a May 19, 2014, hearing, however, he informed the court he wished to admit the allegations that (1) he substantially and continuously or repeatedly neglected the children and refused to give them parental care and protection and (2) termination

of his parental rights was in the children's best interests. The court advised Reon of the rights he would be waiving by making the admissions and ascertained that his admissions were freely and voluntarily given. The court then asked the State to give a factual basis for the admissions, and it responded:

Your Honor, if called today, Janece Potter[, a family permanency specialist,] would testify that [the children] have been in foster care since April of 2013 when they were removed from the care of their father due to his incarceration. The evidence will also show that the father was convicted of possession with intent to distribute marijuana.

And the State would offer Exhibit 54, a certified copy of that conviction. Exhibit 54 would also show that the father was sentenced to three to five years for his conviction of possession with intent to distribute. In addition, the State offers Exhibit 56, an additional conviction of the father for an assault that occurred while he was incarcerated in which he was sentenced an additional 120 days.

If called to the stand, Janece Potter would testify that it's in the children's best interests that their father's rights be terminated due to incarceration and the fact that he's not able to provide permanency for the children currently, nor will be—will he be enabled to provide permanency for them in the upcoming—for at least a year.

The State later added:

[I]f Janece Potter were to testify, she would testify that while the children were in the father's care and custody, which occurred when they were initially removed [in March 2011] up until April of 2013, the father had admitted, once incarcerated, to using marijuana on a daily basis while he had care, custody, and control of his children.

The record shows that Janece Potter is a representative of the Nebraska Families Collaborative and was the family permanency specialist for DHHS in the juvenile proceedings.

The court accepted Reon's admissions and found the allegations in the petition pertaining to neglect under § 43–292(2) and the best interests of the children had been proved by clear and convincing evidence. It then stated on the record that “it is the agreement of the parties that the Court will make a finding that this is, in fact, a voluntary termination of parental rights on the part of the father.” Reon agreed to this statement. The court then terminated Reon's parental rights.

Termination of P'lar'e's Parental Rights

The State also moved to terminate P'lar'e's parental rights to Zanaya, Mileaya, and Imareon on January 21, 2014. The petition alleged three grounds under § 43–292 : subsections (2) (substantial neglect), (6) (failure to correct conditions leading to adjudication), and (7) (out-of-home placement for 15 of last 22 months). On February 25, the State also moved to terminate P'lar'e's parental...