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Wayne G. v. Jacqueline W.

Supreme Court of Nebraska

June 6, 2014

WAYNE G., APPELLEE,
v.
JACQUELINE W., APPELLANT

Page 86

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.

AFFIRMED.

Jerrod P. Jaeger, of Jaeger Law Office, P.C., L.L.O., for appellant.

Eric J. Williams for appellee.

Gregory C. Damman, of Blevens & Damman, guardian ad litem.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ. Cassel, J., dissenting. Miller-Lerman, J., joins in this dissent.

OPINION

Page 87

[288 Neb. 263] Stephan, J.

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).

BACKGROUND

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 [288 Neb. 264] 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

Page 88

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.

[288 Neb. 265] 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 ยง 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 ...


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