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In re Keisha G.

Court of Appeals of Nebraska

December 3, 2013

In re Interest of Keisha G., a child under 18 years of age.
v.
Michael G., appellant. State of Nebraska, appellee,

Page 563

Appeal from the County Court for Hall County: ARTHUR S. WETZEL, Judge. Reversed.

Jerry Fogarty for appellant.

Martin R. Klein, Deputy Hall County Attorney, for appellee.

Tanya J. Hansen, of Leininger, Smith, Johnson, Baack, Placzek & Allen, guardian ad litem.

Moore, Pirtle, and Bishop, Judges.

1. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases de novo on the record and reaches its conclusions independently of the juvenile court's findings. When the evidence is in conflict, however, an appellate court may give weight to the fact that the lower court observed the witnesses and accepted one version of the facts over the other.

2. Statutes: Appeal and Error. To the extent an appeal calls for statutory interpretation or presents questions of law, an appellate court must reach an independent conclusion irrespective of the determination made by the court below.

[21 Neb.App. 473] 3. Juvenile Courts: Parental Rights: Notice. Neb.Rev.Stat. § 43-279.01(2) (Reissue 2008), which governs juveniles in need of assistance or termination of parental rights, requires that adequate notice of the possibility of the termination of parental rights be given in adjudication hearings before the juvenile court may accept an in-court admission from a parent as to all or any part of the allegations of the petition before the juvenile court.

4. Juvenile Courts: Final Orders: Appeal and Error. Generally, it has been held that adjudication and disposition orders are final, appealable orders.

5. Final Orders: Time: Appeal and Error. An appeal of a final order must be made within 30 days after the entry of such order.

6. Juvenile Courts: Parental Rights: Jurisdiction: Appeal and Error. In the absence of a direct appeal from an

Page 564

adjudication order, a parent may not question the existence of facts upon which the juvenile court asserted jurisdiction.

7. Juvenile Courts: Parental Rights: Due Process. A defective adjudication does not preclude a termination of parental rights under Neb.Rev.Stat. § 43-292(1) through (5) (Cum.Supp.2012), since no adjudication is required to terminate pursuant to those subsections, as long as due process safeguards are met.

8. Parental Rights: Proof. In Nebraska statutes, the bases for termination of parental rights are codified in Neb.Rev.Stat. § 43-292 (Cum.Supp.2012). Section 43-292 provides 11 separate conditions, any one of which can serve as the basis for the termination of parental rights when coupled with evidence that termination is in the best interests of the child.

9. Juvenile Courts: Parental Rights. Neb.Rev.Stat. § 43-292(4) (Cum.Supp.2012) provides that a juvenile court may terminate parental rights when the parent is 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.

Bishop, Judge.

INTRODUCTION

Michael G. appeals from an order of the county court for Hall County, sitting as a juvenile court, terminating his parental [21 Neb.App. 474] rights to his daughter, Keisha G., pursuant to Neb.Rev.Stat. § 43-292(4) and (6) (Cum.Supp.2012). On appeal, Michael alleges deficiency of the pleadings, improper admission of evidence, failure to properly advise him of his rights, and insufficiency of evidence. We agree that Michael was not given a proper advisement of rights at the adjudication hearing before entering his plea of no contest. This defect during the adjudication phase excludes consideration of termination pursuant to § 43-292(6) and limits this court's review of the termination proceeding to the one remaining statutory ground for which we find insufficient evidence to terminate Michael's parental rights. We reverse.

PROCEDURAL BACKGROUND

Keisha was born in October 2010 and removed from her mother's care on September 19, 2011. Michael was incarcerated at the time of the removal and never had custody of Keisha. On February 8, 2012, Keisha was adjudicated as a child within the meaning of Neb.Rev.Stat. § 43-247(3)(a) (Reissue 2008). Both parents attended the adjudication hearing and entered pleas of no contest after being advised of certain rights. Before entering his plea, Michael was not advised that the termination of his parental rights was a potential consequence of the proceeding.

A dispositional hearing was conducted on March 29, 2012. Michael attended. The juvenile court ordered a case plan.

On June 25, 2012, the guardian ad litem filed a motion to terminate Michael's parental rights. Although the statute was not cited, the motion alleged grounds for

Page 565

termination consistent with § 43-292(4) and (6):

1. [Michael] is unfit by reason of debauchery, habitual use of intoxicating liquor or narcotic drugs, or repeated lewd and lascivious behavior, which conduct is seriously detrimental to the health, morals, or well-being of the juvenile; and
2. Following the determination that the juvenile was one as described in subdivision (3)(a) of section 43-247, reasonable efforts to preserve and reunify the [21 Neb.App. 475] family have failed to correct the conditions leading to the determination.

The motion did not allege that termination of parental rights was in the child's best interests.

The mother relinquished her parental rights to Keisha on July 24, 2012. On the same date, Michael was present at the initial hearing on the motion to terminate his parental rights. The juvenile court advised Michael of certain rights, and Michael confirmed that he understood those rights. The juvenile court further advised Michael of the allegations in the motion to terminate, which advisement did not include a reference to Keisha's best interests. Michael did not attend any of the three subsequent hearings that took place, but he was represented by counsel.

On November 8, 2012, the juvenile court conducted a termination hearing. Witnesses testified, inter alia, whether termination of Michael's parental rights would be in Keisha's best interests. Michael's counsel had the opportunity to object and cross-examine witnesses on the issue. Michael's counsel objected on various grounds to all testimony concerning Keisha's best interests but did not raise any deficiency in the pleadings. Michael's counsel addressed Keisha's best interests during closing arguments.

The juvenile court terminated Michael's parental rights in an order entered on November 26, 2012. The juvenile court found sufficient grounds for termination consistent with § 43-292(4) and (6). The juvenile court made the following finding concerning best interests:

This Court finds, based on the evidence presented, that it is in the best interest of [Keisha] for [Michael's] parental rights to be terminated. Specifically, this Court finds that there is no reasonable expectation that [Michael] will be in a position to provide permanency or stability to [Keisha] and that [Keisha] cannot, and should not, be suspended in foster care or be made to await uncertain parental maturity.

Michael appeals. We summarize additional relevant facts in the analysis portion of this opinion.

[21 Neb.App. 476] ASSIGNMENTS OF ERROR

Michael assigns, condensed and restated, that the trial court erred in (1) determining that termination of his parental rights was in Keisha's best interests when the motion to terminate made no such allegation, (2) finding that it had jurisdiction to hear allegations under § 43-292(4) and (6), (3) admitting certain evidence over ...


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