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In re Isabel P.

Supreme Court of Nebraska

March 18, 2016

IN RE INTEREST OF ISABEL P. ET AL., CHILDREN UNDER 18 YEARS OF AGE. STATE OF NEBRASKA, APPELLANT, AND BRADLEY C. EASLAND, GUARDIAN A.D. LITEM, APPELLEE AND CROSS-APPELLANT,
v.
CHARLES J., APPELLEE AND CROSS-APPELLEE

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Appeal from the County Court for Madison County: ROSS A. STOFFER, Judge.

Gail E. Collins, Deputy Madison County Attorney, for appellant.

Kathleen Koenig Rockey, of Copple, Rockey, McKeever & Schlecht, P.C., L.L.O., for appellee Charles J.

Bradley C. Easland, of Morland, Easland & Lohrberg, P.C., guardian ad litem.

WRIGHT, CONNOLLY, MILLER-LERMAN, CASSEL, and STACY, JJ. HEAVICAN, C.J., not participating.

OPINION

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[293 Neb. 64] Wright, J.

I. NATURE OF CASE

The State appeals an order of the county court for Madison County, Nebraska, sitting as a juvenile court, declining to terminate Charles J.'s parental rights to his son, K.J., pursuant to Neb. Rev. Stat. § 43-292 (Cum. Supp. 2014). The juvenile court declined to terminate parental rights, because it had not provided counsel for Charles in the proceedings leading up to the adjudication of K.J. pursuant to Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2008). The State appeals, and the guardian ad litem (GAL) cross-appeals.

II. BACKGROUND

In 2012, K.J. and his three siblings were living with their mother, Kristie P., in her mother's apartment in Norfolk, Nebraska. Kristie had recently been cited for child abuse and was struggling with addiction. Her mother called the Department of Health and Human Services (DHHS) out of concern for her grandchildren. Several other calls were made to DHHS as well. On October 18, DHHS removed the children from the apartment. K.J. and one of his brothers were placed in a foster home together and remained there at the time of the hearing on the State's petition to terminate Charles' parental rights.

1. Adjudication

On October 19, 2012, the State filed a petition pursuant to § 43-247(3)(a), which grants courts jurisdiction over any person under the age of 18

[293 Neb. 65] who lacks proper parental care by reason of the fault or habits of his or her parent . . . ; whose parent . . . neglects or refuses to provide proper or necessary subsistence, education, or other care necessary for the health, morals, or well-being of such juvenile; . . . or who is in a situation . . . dangerous to life or limb or injurious to the health or morals of such juvenile.

A child adjudicated to be within the meaning of § 43-247(3)(a), and thus under the

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court's jurisdiction, is said to be " adjudicated." [1]

The State requested that the court adjudicate the four children, including K.J., and enter orders of disposition in the best interests of the children. The petition alleged, among other things, that the mother of the children, Kristie, was physically and/or verbally abusive to the juveniles, had failed to give K.J. or his school officials his prescribed psychiatric medicines, and was transient and left her children with others without telling them how long she would be gone or where she could be reached.

The first hearing for the adjudication petition took place on November 1, 2012. Although there were no allegations against him, Charles appeared at the hearing. The State indicated that it was under the impression that Charles was not very involved in K.J.'s life and suggested that a supplemental petition might be filed to include allegations against Charles.

At the hearing, the court advised both Charles and Kristie of the nature of the proceedings, the possible consequences, and the parties' rights, as required by Neb. Rev. Stat. § 43-279.01 (Reissue 2008). Those rights include the right of a parent to have counsel appointed if the parent is unable to afford to hire a lawyer. Kristie requested and was appointed an attorney. The [293 Neb. 66] court declined to appoint an attorney for Charles because there were no allegations against him. It stated:

Once allegations are filed against you, or in other words, once the State starts saying some things that you did that also caused the children to be put in that position that I talked about before where they were endangered or abandoned or abused or anything of that nature, then, at that point, you would become entitled to have an attorney here and I would address that with you at that time.

The State requested that the care, custody, and control of the children remain with DHHS. Charles objected to the request, explaining that he would like to have custody of K.J. At that time, Kristie supported placement of K.J. with Charles. But the State did not, and it presented evidence against Charles. Because of the evidence adduced about Charles' criminal history, his history of drug abuse, and his failure to provide DHHS with information that would allow them to do a background check on Charles' roommates, the court ordered care, custody, and control to remain with DHHS.

Kristie eventually admitted most of the allegations within the adjudication petition and relinquished her parental rights to the children, including K.J.

2. Petition to Terminate Charles' Parental Rights

Over 22 months after the adjudication, on August 27, 2014, the State petitioned to terminate Charles' parental rights. Section 43-292 allows for termination of parental rights if the termination is in the best interests of the child and at least one of the enumerated grounds within the statute exists. The State alleged that grounds (1) through (3), (6), and (7) existed. Section 43-292 provides, in relevant part:

The court may terminate all parental rights between the parents . . . and such juvenile when the court finds such action to be in the best interests of the juvenile and it [293 Neb. 67] appears by the evidence that one or more of the following conditions exist:

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(1) The parents have abandoned the juvenile for six months or more immediately prior to the filing of the petition;
(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]
(3) The parents, being financially able, have willfully neglected to provide the juvenile with the necessary subsistence, education, or other care necessary for his or her health, morals, or welfare or have neglected to pay for such subsistence, education, or other care when legal custody of the juvenile is lodged with others and such payment ordered by the court.

Charles was appointed counsel on October 15, 2014. On October 28, at the first hearing on the petition to terminate, the court again informed Charles of the nature of the proceedings, the possible consequences, and his rights, as required by § 43-279.01.

3. Charles' Objection to Case Plan

On November 5, 2014, Charles filed an objection to the case plan, which contained the goal of adoption for K.J. Charles opposed that goal and also requested that the case plan set forth a more specific schedule of visitation.

A hearing on Charles' objection to the case plan was held on January 29, 2015. The DHHS worker who created the case plan testified that visitations were always the parents' responsibility to schedule. Initially, Charles was able to schedule a visit with K.J. for up to 15 hours per week, but was subsequently limited to therapeutic visits, because he had missed a number of scheduled visits and the visits were negatively affecting K.J. The foster mother testified as to K.J.'s behavior before and [293 Neb. 68] after visits with Charles and stated that K.J. told her he did not want visits with Charles.

The juvenile court overruled Charles' objection to the case plan and found it was in K.J.'s best interests that no visitation take place at that time. The court's order stated, " Clear and convincing evidence [was] presented that during a period of over 6 months beginning ...


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