Wayne G. v. West
| Decision Date | 06 June 2014 |
| Docket Number | No. S-12-1037,S-12-1037 |
| Citation | 288 Neb. 262,847 N.W.2d 85 |
| Parties | Wayne G., appellee, v. Jacqueline W., appellant. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Petition for further review from the Court of Appeals, Inbody, Chief Judge, and Irwin and Riedmann, Judges, on appeal thereto from the County Court for Seward County, Gerald E. Rouse, Judge. Judgment of Court of Appeals affirmed.
Jerrod P. Jaeger, of Jaeger Law Office, P.C., L.L.O., for appellant.
Eric J. Williams for appellee.
Gregory C. Damman, Seward, of Blevens & Damman, guardian ad litem.
1. Juvenile Courts: Judgments: Appeal and Error. Cases arising under the Nebraska Juvenile Code are reviewed de novo on the record, and an appellate court is required to reach a conclusion independent of the trial court's findings. However, when the evidence is in conflict, the appellate court will consider and give weight to the fact that the lower court observed the witnesses and accepted one version of the facts over the other.
2. Parental Rights: Evidence: Proof. Before parental rights may be terminated, the evidence must clearly and convincingly establish the existence of one or more of the statutory grounds permitting termination and that termination is in the juvenile's best interests.
3. Appeal and Error. An appellate court may, at its option, notice plain error.
4. Parental Rights: Mental Competency: Guardians Ad Litem: Case Disapproved: Appeal and Error. Where an appellate court finds that multiple statutory grounds support termination of parental rights, including, but not limited to, Neb.Rev.Stat. § 43–292(5) (Cum.Supp.2012), a failure to appoint a guardian ad litem for the parent is error, but not error requiring automatic reversal. In that circumstance, the failure to appoint a guardian ad litem will generally not require reversal unless it is assigned as error on appeal and shown to have been prejudicial to the parent. To the extent that In re Interest of Presten O., 18 Neb.App. 259, 778 N.W.2d 759 (2010), is inconsistent with this holding, it is disapproved.
The Nebraska Court of Appeals affirmed the judgment of the county court for Seward County terminating the parental rights of Wayne G. to Jaidyn G., a minor child, on the petition of Jacqueline W., Jaidyn's mother. We granted Wayne's petition for further review primarily to consider inconsistencies in decisions of this court and the Court of Appeals regarding the effect of a trial court's failure to appoint a guardian ad litem for a person whose parental rights are sought to be terminated under Neb.Rev.Stat. § 43–292(5) (Cum.Supp.2012).
The published opinion of the Court of Appeals sets forth the facts of this case in considerable detail.1 We summarize only those facts necessary for our further review of that court's decision.
Jacqueline met Wayne in California in 2001 or 2002. A daughter, Jaidyn, was born to the couple in 2006. Later that year, Jacqueline left Wayne and moved to Nebraska, taking Jaidyn with her.
On September 27, 2011, Wayne filed a “Complaint to Acknowledge Paternity and Establish Custody and Parenting Time” in the district court for Seward County. Jacqueline filed an answer in which she admitted that Wayne was Jaidyn's biological father but denied that he was a fit parent. On February 24, 2012, Jacqueline filed a petition for termination of parental rights under Neb.Rev.Stat. § 42–364(5) (Cum.Supp.2012). Three days later, Jacqueline filed an amended petition which alleged that termination of Wayne's parental rights was in Jaidyn's best interests and that § 43–292(1), (2), (4), (5), and (9) were grounds for termination. The case was transferred to the Seward County Court, and a trial was held on September 10 and October 1. The county court appointed a guardian ad litem for Jaidyn, but not for Wayne.
A number of witnesses—including Jacqueline, her adult daughter, and Wayne's adult daughter—testified that Wayne has a history of abusive behavior. There was testimony that Wayne had struck his ex-wife, Jacqueline, and a number of minor children who had lived in his house. Witnesses testified that Wayne had made numerous threats to the lives and physical well-being of persons in a domestic relation to him. There was also testimony that Wayne has a 25–year history of crack cocaine use.
Wayne admitted to having a substantial criminal record. His convictions include, but are not limited to, grand larceny, grand theft, forgery, inflicting corporal injury on a spouse/ cohabitant (multiple convictions), criminal contempt, petty theft, disobeying a court order (multiple convictions), possession of a controlled substance/paraphernalia (multiple convictions), false imprisonment, and threaten crime with intent to terrorize. Wayne also admitted that his parental rights to one of his other daughters had been terminated.
Evidence of Wayne's mental illness was adduced. Wayne admitted that he has been diagnosed with adult attention deficit hyperactivity disorder, posttraumatic stress disorder, and depression. Testimony was heard from Wayne and other witnesses as to the diagnosis and treatment of his mental illness.
Wayne acknowledged that he had a checkered past, but testified that he had turned his life around in the last 3 years and was ready to have a greater role in Jaidyn's life. Wayne testified that he was now “properly medicated” and had not consumed crack cocaine within the previous 2 years. His girlfriend of nearly 1 year testified that Wayne had been appropriately interacting with her adult son and several of her minor nephews.
Jacqueline remarried in June 2012, and she testified that her husband had a good relationship with Jaidyn. Her husband testified that Jaidyn sometimes called him “daddy” and that he intended to adopt her if Wayne's parental rights were terminated.
On October 3, 2012, the Seward County Court entered an order terminating Wayne's parental rights to Jaidyn. The court concluded that termination was in Jaidyn's best interests and, identifying subsections (2), (4), (5), and (9) as the “relevant portion[s]” of § 43–292, found that “one or more grounds exist in support of termination of parental rights.”
Wayne appealed the termination of his parental rights to the Court of Appeals. His brief assigned as error the county court's findings that (1) one of the grounds in § 43–292 existed and (2) termination was in Jaidyn's best interests. Wayne did not assign as error the county court's failure to appoint him a guardian ad litem, although he did argue that such appointment was mandatory and that the failure was plain error requiring reversal.
The Court of Appeals affirmed, finding that the evidence established grounds for termination under § 43–292(2), that Wayne was unfit to parent Jaidyn, and that termination was in Jaidyn's best interests.2 Because the court concluded that grounds for termination existed under § 43–292(2), it declined to review Wayne's assignment of error as to the other subsections of § 43–292.3 The Court of Appeals did not address the county court's failure to appoint a guardian ad litem for Wayne.
In his petition for further review, Wayne assigns, renumbered, that the Court of Appeals erred by (1) not addressing the county court's failure to appoint a guardian ad litem and (2) finding the evidence sufficient to terminate his parental rights under § 43–292(2).
Cases arising under the Nebraska Juvenile Code are reviewed de novo on the record, and an appellate court is required to reach a conclusion independent of the trial court's findings.4 However, when the evidence is in conflict, the appellate court will consider and give weight to the fact that the lower court observed the witnesses and accepted one version of the facts over the other.5
Before parental rights may be terminated, the evidence must clearly and convincingly establish the existence of one or more of the statutory grounds permitting termination and that termination is in the juvenile's best interests.6 Jacqueline alleged and the county court found the following grounds for termination stated in § 43–292:
(2) The parents have substantially and continuously or repeatedly neglected and refused to give the juvenile or a sibling of the juvenile necessary parental care and protection;
....
(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 juvenile;
(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;
....
(9) The parent of the juvenile has subjected the juvenile or another minor child to aggravated circumstances, including, but not limited to, abandonment, torture, chronic abuse, or sexual abuse.
The Nebraska Juvenile Code provides, at Neb.Rev.Stat. § 43–292.01 (Reissue 2008):
When termination of the parent-juvenile relationship is sought under subdivision (5) of section 43–292, the court shall appoint a guardian ad litem for the alleged incompetent parent. The court may, in any other case, appoint a guardian ad litem, as deemed necessary or desirable, for any party. The guardian ad litem shall be paid a reasonable fee set by the court and paid from the general fund of the county.
It is only when termination is sought under § 43–292(5) that a court is required to appoint a guardian ad litem for the parent. Here, we are presented with the following question: When termination of parental rights is sought on multiple grounds, including § 43–292(5), and an appellate court finds that at least one ground other than § 43–292(5) is established by...
To continue reading
Request your trial
-
Arens v. Nebco, Inc.
...F.3d 449 (8th Cir. 2000); 2 McCormick on Evidence § 324.3 (Kenneth S. Broun et al. eds., 7th ed. 2013). 23. See, Wayne G. v. Jacqueline W., 288 Neb. 262, 847 N.W.2d 85 (2014); Bedore v. Ranch Oil Co., 282 Neb. 553, 805 N.W.2d 68 (2011). 24. See, 2014 Neb. Laws, L.B. 788, § 7, codified at Ne......
-
Arens v. NEBCO, Inc.
...F.3d 449 (8th Cir. 2000) ; 2 McCormick on Evidence § 324.3 (Kenneth S. Broun et al. eds., 7th ed. 2013).23 See, Wayne G. v. Jacqueline W., 288 Neb. 262, 847 N.W.2d 85 (2014) ; Bedore v. Ranch Oil Co., 282 Neb. 553, 805 N.W.2d 68 (2011).24 See, 2014 Neb. Laws, L.B. 788, § 7, codified at Neb.......
-
State v. P'lar'e S. (In re Interest of Zanaya W.)
...Mainor T . & Estela T., 267 Neb. 232, 674 N.W.2d 442 (2004).18 See, Neb. Rev. Stat. § 43–292.01 (Reissue 2008) ; Wayne G. v. Jacqueline W., 288 Neb. 262, 847 N.W.2d 85 (2014).19 In re Interest of Jamyia M., 281 Neb. 964, 800 N.W.2d 259 (2011) ; In re Interest of Markice M., 275 Neb. 908, 75......
-
Flores v. Flores-Guerrero
...of the word “shall” is considered to indicate a mandatory directive, inconsistent with the idea of discretion. Wayne G. v. Jacqueline W., 288 Neb. 262, 847 N.W.2d 85 (2014). Therefore, where a preponderance, or the greater weight, of the evidence demonstrates that a parent has committed one......