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In re Athina M.

Court of Appeals of Nebraska

January 7, 2014

In re Interest of Athina M., a child under 18 years of age.
Darwin M., appellant. State of Nebraska, appellee,

Page 160

Appeal from the Separate Juvenile Court of Lancaster County: REGGIE L. RYDER, Judge.

Reversed and remanded for further proceedings.

Angelica W. McClure, Lincoln, of Kotik & McClure Law, for appellant.

Page 161

Joe Kelly, Lancaster County Attorney, and Maureen Lamski for appellee.

Irwin, Pirtle, and Bishop, Judges.


1. Juvenile Courts: Evidence: 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: Proof. Neb. Rev. Stat. § 43-292 (Cum. Supp. 2012) 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.

[21 Neb.App. 625] 3. Parental Rights: Words and Phrases. A termination of parental rights is a final and complete severance of the child from the parent and removes the entire bundle of parental rights.

4. Parental Rights. Parental rights should be terminated only in the absence of any reasonable alternative and as the last resort.

5. Parental Rights: Evidence: Proof. To terminate parental rights, the State must prove by clear and convincing evidence that termination is in the child's best interests.

6. Parent and Child. The law does not require perfection of a parent; instead, courts should look for the parent's continued improvement in parenting skills and a beneficial relationship between parent and child.

Bishop, Judge.

Darwin M. appeals from the decision of the separate juvenile court of Lancaster County terminating his parental rights to his daughter, Athina M. Upon our de novo review, we find that the State failed to prove by clear and convincing evidence that termination is in Athina's best interests. We therefore reverse, and remand for further proceedings.


Darwin is the biological father of Athina, born in September 2010. Although it was undisputed that Darwin was Athina's father, his paternity was confirmed via genetic testing in June 2011. Karla M. is the biological mother of Athina. Darwin and Karla were not married when Athina was born, but were married 3 days after her birth. Athina was removed from Karla's care 2 days after her birth because Karla had had two other children removed from her care and had not corrected the conditions leading to the adjudication of those two children. We note that Darwin is not the biological father of Karla's other [21 Neb.App. 626]children. Darwin was interviewed following Athina's birth, and it was determined he did not have a stable residence for Athina. Athina was placed in the temporary custody of the Nebraska Department of Health and Human Services (DHHS), which placed her in foster care.

Athina was adjudicated in November 2010, due to the faults or habits of Karla. The court found that Athina should remain in the custody of DHHS.

Athina's case came before the juvenile court for numerous review and permanency hearings throughout 2011 and 2012. The parents were provided with numerous services. Karla did not cooperate with services, and her visits with Athina were not productive. Darwin, however, was cooperative with services, including individual therapy, coparenting counseling, parenting classes, and supervised visitation. During the spring and summer of 2012, Darwin's visitations progressed from supervised to monitored to overnight. He made so much progress that Athina was placed in his physical custody on August 9, 2012.

On September 8, 2012, Darwin was arrested and jailed. Athina was returned to the foster home in which she resided prior to her brief placement with Darwin. Darwin eventually pled no contest to making terroristic threats, a Class IV felony. He remained in jail pending his sentencing, which was scheduled for February 26, 2013. Darwin did not have visitation with Athina while he was in jail, because a glass barrier would have separated Darwin and Athina during visits and DHHS did not think it was in Athina's best interests to have visits in this manner due to her young age.

On November 13, 2012, the State filed a motion to terminate Darwin's parental rights to Athina pursuant to Neb.Rev.Stat. § 43-292(2), (6), and (7) (Cum.Supp.2012). The State alleged that Darwin had substantially and continuously or repeatedly neglected and refused to give the child necessary parental care and protection, that reasonable efforts had failed to correct the conditions leading to the adjudication, that the child had been in an out-of-home placement for 15 or more of the most recent 22 months, and that termination was in the child's best interests.

[21 Neb.App. 627] The State also moved to terminate Karla's parental rights to Athina, which motion the juvenile court ultimately granted. But because Karla has not appealed

Page 162

that decision, we will not discuss any evidence presented as to her at the termination hearing. We simply note that at the time of the termination hearing, Darwin and Karla were separated and Darwin testified that their final divorce hearing was scheduled for the following month.

The termination hearing was held on February 11, 2013. Katy Rawhouser, a children and family services specialist with DHHS, was the only witness for the State. Rawhouser began working with Darwin and Athina in May 2012. Rawhouser testified that Darwin's parental rights should be terminated because he was incarcerated at that time and was unable to provide care for Athina. Rawhouser stated that Athina was able to be placed with Darwin for only approximately 30 days " despite a good deal of effort made on the part of [DHHS] to get her there" and that " at this time, [Athina is] in need of permanency."

On cross-examination, Rawhouser testified that Darwin had done everything that he was asked to do; he completed individual therapy, couple's counseling, a parenting class, and supervised and monitored visits. She stated that in May 2012, Darwin had supervised visits with Athina two times each week, and he progressed to having monitored visits and then overnight visits. Rawhouser acknowledged that Darwin was appropriate with Athina, that he had a bond with her, and that there were no safety concerns. When asked the following by Darwin's counsel: " [I]f [Darwin] were to get released at the end of this month, would that change your opinion in regards to terminating his parental rights?" ...

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