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In re Ray'Cine L.

Court of Appeals of Nebraska

June 18, 2013

In re Interest of Ray'Cine L., a child under 18 years of age.
v.
Sylvester M., appellant. State of Nebraska, appellee, In re Interest of Dejan L., a child under 18 years of age. State of Nebraska, appellee,
v.
Sylvester M., appellant.

NOT DESIGNATED FOR PERMANENT PUBLICATION

Appeal from the Separate Juvenile Court of Douglas County: Christopher Kelly, Judge.

Matthew R. Kahler, of Finley & Kahler Law Firm, P.C., L.L.O., for appellant.

Donald W. Kleine, Douglas County Attorney, and Jennifer C. Clark for appellee.

Irwin, Pirtle, and Riedmann, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Irwin, Judge.

I. INTRODUCTION

In 2010, the separate juvenile court of Douglas County, Nebraska, terminated the parental rights of Sylvester M. concerning his two children, Ray'Cine L. and Dejan L. Sylvester appealed, and in a memorandum opinion filed on April 26, 2010, in cases Nos. A-09-993 and A-09-994, we reversed the juvenile court's orders of termination, finding that the State had not sufficiently demonstrated a statutory basis for terminating his parental rights. In December 2011, the State filed a second petition to terminate his parental rights, and in February 2012, the juvenile court entered orders terminating his parental rights a second time.

Sylvester now appeals from those orders, asserting that the State failed to sufficiently demonstrate (1) that statutory grounds existed for termination of his parental rights and (2) that termination of his parental rights is in the best interests of the children. We have consolidated these appeals. We find that the children have been in a continuous out-of-home placement for well in excess of 15 or more of the last 22 months and that termination of Sylvester's parental rights is in the best interests of the children. As such, we affirm.

II. BACKGROUND

The two children at the heart of this case have been involved with the Nebraska Department of Health and Human Services (DHHS) for essentially their entire lives. Because a complete picture of their situation is vital to an understanding and appreciation for the resolution of this case, we will recount the relevant factual and procedural background involving the children, including some information previously set forth in our prior memorandum opinion.

Ray'Cine and Dejan were born into an unconventional situation. The children's biological mother, Deja L., was "raised" by Sylvester's cousin, and when the cousin passed away, in approximately 2005, Sylvester took Deja in because she had nowhere else to stay. Deja was born in 1988 and would have been approximately 17 years of age in 2005; Sylvester was born in 1949 and would have been approximately 56 years of age in 2005. Ray'Cine was born in May 2007, and Dejan was born in January 2009.

Deja came to the attention of DHHS on June 1, 2007, immediately after Ray'Cine's birth, as a result of concerns about drug use and inappropriate parenting of Ray'Cine. At that time, Sylvester was not identified as the biological father and DHHS was told that Sylvester was Deja's uncle, as Sylvester apparently feared that he would get into trouble for being approximately 58 years of age and having sex with Deja when she was under 19 years of age.

The State filed a petition with the juvenile court in August 2007, seeking an adjudication that Ray'Cine was within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Cum. Supp. 2006) by reason of the faults or habits of Deja. Ray'Cine was placed in the custody of DHHS on September 13, 2007. Deja relinquished her parental rights to Ray'Cine in December 2008.

Genetic test results in June 2008 revealed that Sylvester was Ray'Cine's biological father. As a result, in October 2008, the State filed a supplemental petition seeking adjudication of Ray'Cine as related to Sylvester and seeking termination of Sylvester's parental rights. In June 2009, the juvenile court entered a dispositional order requiring Sylvester to take various actions.

Dejan was born in January 2009. Within 1 week of his birth, the State filed a petition with the juvenile court alleging that he came within the meaning of § 43-247(3)(a) (Reissue 2008) by reason of the faults or habits of Deja. The juvenile court entered an order placing Dejan in the custody of DHHS on February 9. Dejan was temporarily placed with Deja from February 18 through March 24, but was returned to the custody of DHHS. Deja's parental rights to Dejan were terminated in September.

In June 2009, the State filed a supplemental petition seeking adjudication of Dejan as related to Sylvester and seeking termination of Sylvester's parental rights.

In September 2009, the juvenile court held adjudication/termination hearings for both Ray'Cine and Dejan, as related to Sylvester. Evidence was adduced concerning Sylvester's visitation with the children, participation and progress in family support services, and housing and income situation. At that time, much of the concern with respect to Sylvester's parenting the children was focused on whether he could sufficiently protect them from being exposed to Deja's use of drugs, anger, and violence. The juvenile court entered orders adjudicating both Ray'Cine and Dejan as being within the court's jurisdiction as related to Sylvester and terminating his parental rights to the children.

Sylvester appealed the first termination of his parental rights to Ray'Cine and Dejan. In a memorandum opinion filed on April 26, 2010, we reversed the first termination of Sylvester's parental rights to Ray'Cine and Dejan, finding that the State had not sufficiently proven the existence of any of the alleged statutory grounds to support termination of parental rights. We specifically did not reach the issue of whether termination of Sylvester's parental rights was in the best interests of the children.

After this court's reversal of the first termination of Sylvester's parental rights, the juvenile court conducted review hearings and entered dispositional orders in August 2010, April 2011, and October 2011. In all three orders, the court required Sylvester to participate in scheduled visitation with Ray'Cine and Dejan, to cooperate with various support workers, and to maintain adequate housing and consistent income. In the August and April orders, the court required Sylvester to complete a pretreatment assessment and a parenting assessment, to release medical and mental health records, and to complete a parenting class. In addition, Sylvester was ordered to participate in family counseling with Ray'Cine and Dejan and to provide a list of family and friends capable of providing an informal support system to help him parent the children.

In the October 2010 review hearing, the State indicated that it was still awaiting Sylvester's release of medical and mental health records. The State indicated that its review of the records was important to determining what services might be offered to Sylvester to facilitate reunification and preservation of the family. The juvenile court stressed to Sylvester during the hearing that he needed to comply with the court's order to release his medical and mental health records.

In the April 2011 review hearing, the State indicated that it had only recently received the medical and mental health records that Sylvester had been ordered to release. The State indicated that Sylvester did not sign the release forms until approximately March 2011. The State also represented that it had been attempting to get the records from Sylvester for approximately 2 years. The State expressed concern about Sylvester's ability to parent the children, noting that he had been diagnosed as a paranoid schizophrenic, had missed approximately 35 scheduled visitations since the prior November, and had not completed many of the requirements ordered by the court. Sylvester's attorney argued that he had shown an ability to parent, that he had a large family that could assist him, and that his visitation should be increased.

In October 2011, the juvenile court conducted another review hearing. Sylvester did not appear in his own behalf, and his attorney indicated a lack of knowledge about why Sylvester was not present. The State argued that there had not been progress in bonding between Sylvester and the children, argued that Sylvester continued to not make progress despite being given a second chance by this court's reversal of the first termination of his parental rights, and noted that Ray'Cine and Dejan had been in foster care for essentially their entire lives. Sylvester's guardian ad litem and his attorney argued that he had maintained stable housing and income, had complied with most of the court's requirements--except for completion of parenting and pretreatment assessments--and that his visitation should be increased and changed to unsupervised visitation.

In December 2011, the State filed a second petition for termination of Sylvester's parental rights to Ray'Cine and Dejan. The State alleged that statutory grounds for termination of parental rights existed because Sylvester had substantially and continually neglected Ray'Cine and Dejan within the meaning of Neb. Rev. Stat. § 43-292(2) (Cum. Supp. 2012), because reasonable efforts to preserve and reunify the family had failed to correct the conditions leading to adjudication of Ray'Cine and Dejan within the meaning of § 43-292(6), and because the children had been in an out-of-home placement for 15 or more of the most recent 22 months within the meaning of § 43-292(7). The State also alleged that termination of Sylvester's parental rights was in the best interests of Ray'Cine and Dejan.

In February 2012, the juvenile court conducted a hearing on the State's second petition to terminate Sylvester's parental rights. The State adduced testimony from a mental health practitioner and play therapist who had been assigned to this case, from a DHHS child and family outcome monitor who had been assigned to this case, from a family permanency specialist who had been assigned to this case, and from a family support and visitation specialist who had overseen Sylvester's visitations with Ray'Cine and Dejan. The foster parent in whose home Ray'Cine and Dejan have lived throughout the entirety of the juvenile court proceedings also testified. Sylvester did not testify in his own behalf.

Through the testimony of the various support workers who had been assigned to this case and who had worked with Sylvester, Ray'Cine, and Dejan, the State presented evidence concerning Sylvester's progress toward being in a position to parent the children, as well as the difficulties experienced in attempting to support and assist Sylvester. That testimony concerned the statutory grounds for terminating his parental ...


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