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In re Interest of Kennith L., Jr., a child under 18 years of age, State of Nebraska v. Theresa H.
Date: 02-20-2004
Case Number: A-03-320
Judge: Irwin
Court: In The Court of Appeals of The State of Nebraska
Plaintiff's Attorney: Charles Jan Headley.
Defendant's Attorney: James S. Jansen, Douglas County Attorney, and Karen Kassebaum Nelson.
Kenny was born March 9, 1996. Theresa alleged that Kennith L., Sr. (Kennith), was the father of Kenny and put Kennith's name on Kenny's birth certificate. Blood tests subsequently determined that Kennith was not the biological father of Kenny.
Kennith has been the primary caregiver to Kenny for most of Kenny's life. Kenny lived with both Kennith and Theresa for the first year of his life. Kennith and Theresa then separated, and Kenny resided with Theresa for approximately 1 year. Kennith took custody of Kenny in September 1998, and Kenny has continuously resided with Kennith since that time.
The record is not clear as to exactly when, but sometime prior to November 17, 2000, Kennith sought to obtain legal custody of Kenny. The court required Kennith to prove paternity. It was at this time that through the results of the blood tests used to establish paternity, Kennith discovered he was not Kenny's biological father.
On November 17, 2000, the State filed a petition with the separate juvenile court of Douglas County. On February 7, 2001, the court declared that Kenny was within the meaning of § 43-292(3)(a) with regard to Theresa, based on a plea of admission entered by Theresa. The court ordered that Theresa be allowed reasonable rights of agency-supervised visits and that Kenny remain in the custody of the Nebraska Department of Health and Human Services. Kenny remained at the home of Kennith and his wife.
Kennith requested to intervene in the State's action at a subsequent disposition and permanency planning hearing on March 26, 2001. The court found that reasonable efforts had been made to return Kenny to Theresa, but that to do so would be contrary to the health and safety of Kenny at that time. The court then ordered that it was in the best interests of Kenny for him to remain in the temporary custody of the Department of Health and Human Services. Kennith and his wife were Kenny's foster parents. Theresa was ordered to have reasonable rights of supervised visitation; to participate in individual therapy; to obtain and maintain a legal source of income; and to obtain and maintain safe, adequate, and independent housing for herself and Kenny.
On June 19, 2001, Kennith was granted permission to intervene in the State's action. On September 13, the court held a review and permanency planning hearing, in which the court made essentially the same orders as to Theresa as those made at the March 26, 2001, hearing. The court again made essentially the same orders at the next review and permanency planning hearing on March 13, 2002.
On June 6, 2002, the State filed a motion for termination of parental rights with regard to Theresa. Hearings followed on September 10 and November 1. The court heard testimony from Kennith, Theresa, Kenny's current and former caseworkers, the licensed psychologist who evaluated Theresa, and Kenny's therapist.
At the conclusion of the trial, the court issued an order terminating Theresa's parental rights. The court found by clear and convincing evidence that Kenny fell within the meaning of § 43-292(2) and (7). The court then addressed the best interests requirement of § 43-292. Specifically, the court recognized that virtually all of the testifying witnesses opined that Theresa had a positive parent-child bond with Kenny. However, the court stated that the State's witnesses recommended permanency as an objective, rather than reunification with Theresa. The court noted that Theresa had "largely failed to comply with the Court's rehabilitation plan" and was "nowhere close to having herself situated to care for [Kenny]." Accordingly, the court found that it was in the best interests of Kenny to terminate Theresa's parental rights and make Kenny available for adoption by his foster parents, Kennith and his wife, who had been caring for him.
Theresa now appeals the termination of her parental rights by the juvenile court.
Theresa assigns as error that the juvenile court erred in (1) finding by clear and convincing evidence that Kenny came within the meaning of § 43-292(2) and (7), and (2) finding by clear and convincing evidence that it is in the best interests of Kenny to terminate Theresa's parental rights.
In an appeal from an order terminating parental rights, an appellate court tries factual questions de novo on the record. Appellate review is independent of the juvenile court's findings. However, when the evidence is in conflict, an appellate court may give weight to the fact that the juvenile court observed the witnesses and accepted one version of the facts over another. In re Interest of Ty M. & Devon M., 265 Neb. 150, 655 N.W.2d 672 (2003); In re Interest of DeWayne G. & Devon G., 263 Neb. 43, 638 N.W.2d 510 (2002).
In reviewing questions of law arising under the Nebraska Juvenile Code, an appellate court reaches conclusions independent of the lower court's ruling. In re Interest of Ty M. & Devon M., supra; In re Interest of Chad S., 263 Neb. 184, 639 N.W.2d 84 (2002).
Theresa argues the juvenile court erred in finding by clear and convincing evidence that Kenny came within the meaning of § 43-292(2) and (7) because she had substantially and continuously or repeatedly neglected and refused to give Kenny the necessary parental care and protection. Theresa makes no argument that Kenny was not in out-of-home placement for 15 or more months of the most recent 22 months.
Under § 43-292, the State may terminate an individual's parental rights if one of the grounds enumerated in § 43-292 exists and the termination is found to be in the child's best interests. In the case at bar, the juvenile court terminated Theresa's parental rights on the basis of the following grounds of § 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 [and] (7) The juvenile has been in an out-of-home placement for fifteen or more months of the most recent twenty-two months."
In this case, the juvenile court terminated Theresa's parental rights on the basis of § 43-292(2) and (7). It is undisputed that Kenny has been placed with and has been continuously in the care of Kennith and his wife since September 1998. Because the State has proven by clear and convincing evidence that Kenny falls within the scope of § 43-292(7), termination of Theresa's parental rights on the basis of § 43-292(7) was not in error.
Theresa argues the juvenile court erred in finding that she had substantially and continuously or repeatedly neglected and refused to give Kenny the necessary parental care and protection. Because § 43-292 requires a finding of only one enumerated ground to terminate parental rights and because we find that the statutory ground under § 43-292(7) was proven by clear and convincing evidence, we do not consider Theresa's arguments with regard to the juvenile court's determination under § 43-292(2). See, In re Interest of DeWayne G. & Devon G., supra; In re Interest of Lisa W. & Samantha W., 258 Neb. 914, 606 N.W.2d 804 (2000).
Theresa argues the juvenile court erred in finding that termination of her parental rights with regard to Kenny is in his best interests. The State argues the court was correct in finding that termination of Theresa's parental rights is in the best interests of Kenny in order to provide permanency for Kenny.
This is a somewhat thorny issue. On the one hand, all experts and parties involved seem to agree that it is in the best interests of Kenny to maintain a relationship with Theresa. Dr. Glenda Cottam, a licensed psychologist testifying on behalf of the State, testified that she would not recommend Theresa be prohibited from visiting with Kenny, that some positive bonding and a connection existed between Kenny and Theresa, and that withholding visitation from Theresa would be "damaging to [Kenny]." Kenny's therapist testified that it was in Kenny's best interests to remain under Kennith's care, but that losing contact with Theresa would cause Kenny "a lot of anxiety" and would not be in Kenny's best interests. Kenny's former caseworker testified that at no time while she had the case was she able to recommend Kenny be placed with Theresa, but that it would be quite painful for Kenny to terminate the bond he has with Theresa. Kenny's current caseworker also testified that Kenny seemed "quite bonded" with Theresa and that Kenny's no longer being able to see Theresa would be "quite a source of anxiety" for Kenny. Even Kennith testified that he thought it was in Kenny's best interests for Kenny to continue seeing Theresa. The juvenile court acknowledged these opinions in its order, stating, "[V]irtually all of the witnesses who testified in this matter recognized an essentially positive parent/child bond between [Theresa] and [Kenny]."
On the other hand, the State argues that permanency is of greater importance than Kenny's bond with Theresa and, thus, that it is in Kenny's best interests to have Theresa's parental rights terminated. The State's exhibits and experts' testimony support this theory. For example, Cottam recommended that either a guardianship or open adoption occur. Kenny's current caseworker stated that terminating Theresa's parental rights is in Kenny's best interests and that specifically, open adoption is in Kenny's best interests. We agree with these opinions.
There is no legal middle ground in a termination of parental rights case; we must choose to either terminate Theresa's parental rights or leave her parental rights intact. We recognize that if Theresa's parental rights are terminated, she will no longer have any legally cognizable rights to Kenny, including legal rights to visitation. Given that everyone agrees that she has a bonded relationship with Kenny and that some contact should be maintained between them, the result herein appears problematic at first blush. Should Kennith adopt Kenny and subsequently decide to no longer allow Theresa to visit with Kenny, Theresa would have no recourse. Cottam recognized this as a risk of open adoption in her testimony. We find it notable that Kennith testified that he had no intention, nor any desire, to prevent Theresa from seeing Kenny.
Further, Theresa has responded negatively in the past to discussions of an open adoption by Kennith. Kenny's current caseworker testified that she had met with Theresa in July 2002 to discuss other possible options for resolution and that Theresa "did not want to hear about anything." Kenny's caseworker also testified that all of the parties involved agreed to meet to talk to Theresa about open adoption, but that Theresa did not attend the meeting. The caseworker stated that she tried to assure Theresa that they were not just trying to take Kenny away from her. The caseworker further stated that the primary barrier to an open adoption arrangement would be Theresa's unwillingness to cooperate.
The purpose of possibly allowing Theresa to maintain her parental rights would be visitation, not actual custody. The record clearly supports a finding that it is not in Kenny's best interests to permanently reside with Theresa. Theresa has not complied with the court's conditions for reunification. As the court acknowledged in its order, Theresa has had difficulty maintaining employment, has not maintained independent housing, and has not completed the court-ordered therapy. In addition, Kenny's former caseworker testified that Theresa has had "a lot of no-shows" regarding her scheduled supervised visitation with Kenny. If Theresa had complied with the court's reunification plan, reunification with Kenny might have been a possibility. She has not done so.
Theresa now argues that she has had her own housing since April 2002, that she has been employed with Goodwill since February 2002, and that she is willing to complete the court-ordered therapy. We find Theresa's arguments and promises to be a case of too little, too late. Kenny has lived with Kennith since September 1998, and Theresa has been repeatedly ordered since March 2001 to obtain a legal source of income, to maintain independent housing, and to complete individual therapy. Theresa's alleged compliance with the court's orders did not begin for at least a year after the court first ordered the conditions of reunification. Theresa has still not completed all of the court's orders and arguably has not completed any of the court's orders. A promise to do so in the future is not compliance, and Kenny has already been in out-of-home placement for 15 or more months of the most recent 22 months as required under § 43-292(7).
If Theresa were permitted to comply with the court's orders, custody of Kenny could potentially be reinstated with her. In this instance, Theresa could then deny Kennith visitation with Kenny. Theresa has admittedly threatened to do just that, though she now claims that her threats were made only in anger and that she would not deny Kennith visitation with Kenny. The juvenile court, who we recognize observed and heard the witnesses, stated that Theresa's testimony claiming she would allow Kennith to visit with Kenny was "not credible."
The Nebraska Supreme Court has stated that a child cannot be made to await uncertain parental maturity or ability to provide the necessary care and safe environment required by a child of tender age. See In re Interest of Lisa W. & Samantha W., 258 Neb. 914, 606 N.W.2d 804 (2000). The Supreme Court has also stated that when a parent is unwilling or unable to rehabilitate himself or herself in a reasonable amount of time, termination of parental rights is in the child's best interests. In re Interest of Michael B. et al., 258 Neb. 545, 604 N.W.2d 405 (2000).
The fact exists that Theresa has not complied with all of the court's conditions for reunification with Kenny since the first order of March 2001. Recent events, as of the date of the last hearing, arguably reflect some possible progress on the part of Theresa, but nonetheless, she has not complied with all conditions and has had ample time to do so. Furthermore, if this court must decide between the lesser of two evils, that being Kenny's losing contact with either Theresa or Kennith, we recognize that Kennith is the only man Kenny has known as his father and is the person with whom Kenny has lived for all but 1 year of his nearly 8-year life. We find this to be a significant amount of time and a relationship that should be protected. Therefore, we find it is in Kenny's best interests that the court terminate Theresa's parental rights and make Kenny available for adoption by Kennith. Accordingly, we affirm the ruling of the juvenile court.
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Click the case caption above for the full text
of the Court's opinion.
Affirmed in favor of Defendent.
About This Case
What was the outcome of In re Interest of Kennith L., Jr., a child under 18 years...?
The outcome was: The juvenile court's order terminating Theresa's parental rights with regard to Kenny is affirmed. The State has proven by clear and convincing evidence that Kenny came within the meaning of § 43-292(7). In addition, clear and convincing evidence exists on the record to find that termination of Theresa's parental rights is in the best interests of Kenny. As such, we do not find error in the juvenile court's termination of Theresa's parental rights. Affirmed in favor of Defendent.
Which court heard In re Interest of Kennith L., Jr., a child under 18 years...?
This case was heard in In The Court of Appeals of The State of Nebraska, NE. The presiding judge was Irwin.
Who were the attorneys in In re Interest of Kennith L., Jr., a child under 18 years...?
Plaintiff's attorney: Charles Jan Headley.. Defendant's attorney: James S. Jansen, Douglas County Attorney, and Karen Kassebaum Nelson..
When was In re Interest of Kennith L., Jr., a child under 18 years... decided?
This case was decided on February 20, 2004.