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In re Alec S.

Supreme Court of Nebraska

September 16, 2016

In re Interest of Alec S., a Child under 18 years of age. State of Nebraska, Appellee,
Brenda G., Appellant.

         1. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases de novo on the record and reaches a conclusion independently of the juvenile court's findings.

         2. Parental Rights: Proof. In order to terminate parental rights, a court must find by clear and convincing evidence that one of the statutory grounds enumerated in Neb. Rev. Stat. § 43-292 (Cum. Supp. 2014) exists and that the termination is in the child's best interests.

         3. Parental Rights: Presumptions: Proof. A child's best interests are presumed to be served by having a relationship with his or her parent. This presumption is overcome only when the State has proved that the parent is unfit.

         4. Constitutional Law: Parental Rights: Words and Phrases. In the context of the constitutionally protected relationship between a parent and a child, parental unfitness means a personal deficiency or incapacity which has prevented, or will probably prevent, performance of a reasonable parental obligation in child rearing and which has caused, or probably will result in, detriment to a child's well-being.

         5. Parental Rights. The best interests analysis and the parental fitness analysis are separate inquiries, but each examines essentially the same underlying facts as the other.

         6. ___. Last-minute attempts by parents to comply with the rehabilitation plan do not prevent termination of parental rights.

         7. ___. Children cannot, and should not, be suspended in foster care or be made to await uncertain parental maturity.

         [294 Neb. 785] Petition for further review from the Court of Appeals. Irwin, Pirtle, and Riedmann, Judges, on appeal thereto from the Separate Juvenile Court of Douglas County, Christopher Kelly, Judge.

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

          Donald W. Kleine, Douglas County Attorney, Anthony Hernandez, and Jocelyn Brasher, Senior Certified Law Student, for appellee.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          CASSEL, J.


         The juvenile court terminated a mother's parental rights to her child. Relying upon our decision in In re Interest of Aaron D., [1] the Nebraska Court of Appeals reversed, concluding that the State failed to prove termination was in the child's best interests.[2] We granted the State's petition for further review. In comparison to the meager record in In re Interest of Aaron D., the record here abounds with clear and convincing evidence supporting the termination. We reverse the Court of Appeals' decision and remand the cause with direction.


         Procedural Background

         On September 13, 2013, the State moved for temporary custody of Alec S. According to an affidavit for Alec's removal from the home of his mother, Brenda G., a hotline [294 Neb. 786] of the Department of Health and Human Services (DHHS) received an intake on September 11, alleging that Brenda was diagnosed with mental health issues to the point that she needed to be admitted to a hospital for care. Brenda agreed to a September 12 enrollment in an inpatient program recommended by a Dr. Patera. A DHHS employee learned from Patera's nurse that Patera believed that Brenda needed to be in an inpatient program due to her mental health needs, that Brenda was currently unable to provide care for Alec, and that Brenda did not follow up on her health appointments with health care professionals. The DHHS employee confirmed on September 13 that Brenda had not checked herself into the inpatient program.

         The State filed a petition seeking to adjudicate Alec simultaneously with the filing of the motion for temporary custody. The State alleged that Alec, who was "under eight years of age, " was a child within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2008) due to the faults or habits of Brenda. The petition alleged that Brenda had been diagnosed with posttraumatic stress disorder, depression, and anxiety; that she was unable to provide proper care for Alec; that medical professionals had recommended inpatient care; and that Brenda had failed to check herself into the inpatient program as recommended by Patera. An amended petition added that Brenda's use of alcohol and/or controlled substances placed Alec at risk for harm. The juvenile court adjudicated Alec in January 2014.

         On March 18, 2014, the juvenile court entered a disposition and permanency planning order. The permanency objective was reunification with a concurrent objective of adoption. The court ordered Brenda to participate in an outpatient chemical dependency therapy program, to continue submitting to random drug and alcohol testing, and to continue participation in programs at "Community Alliance.'' (According to testimony in the bill of exceptions, Community Alliance provides outpatient chemical dependency treatment.) [294 Neb. 787] The court further ordered her to attend family and individual therapy and to continue participating in psychiatric care. Brenda was allowed supervised visitation with Alec. On September 16, the court entered a review and permanency planning order. It did not order Brenda to participate in a chemical dependency therapy program, but otherwise ordered her to participate in the same tasks as those in the March 18 order. Substantially the same requirements were contained in a January 20, 2015, order.

         On February 6, 2015, the State filed a motion to terminate Brenda's parental rights under Neb. Rev. Stat. § 43-292(2). (6), and (7) (Cum. Supp. 2014).

         Termination Hearing

         In June 2015, the juvenile court conducted a termination hearing. Four witnesses-all called on behalf of the State-testified.

         Dr. Randy LaGrone, a clinical psychologist, testified about Brenda's participation in outpatient psychological care beginning in January 2013. Her primary diagnosis was posttraumatic stress disorder, and LaGrone began working with her to obtain consistency in treatment and to increase her sense of safety. He met with Brenda only six times-Brenda missed or canceled 19 sessions. Because Brenda's difficulties were very treatable at that time and LaGrone wanted her to see someone, he made referrals to other community agencies. But Brenda did not act on those referrals. According to LaGrone, Brenda did not make any progress toward her goals. He discharged her in August 2014.

         Mary Atwood, Alec's mental health therapist, provided testimony about therapy. Alec was diagnosed with "[a]djustment disorder with mixed emotions, " and a treatment plan was created to work with his emotions. Atwood had two sessions of individual therapy with Alec. In March 2014, a case manager requested that Atwood conduct family therapy with Alec and Brenda. Despite scheduling weekly appointments, Atwood [294 Neb. 788] had conducted only three sessions of family therapy over 2 months. According to Atwood, Brenda did not demonstrate any insight regarding the need for family therapy. The goal was to start communication between Alec and Brenda, because Alec did not feel like he could speak honestly with his mother. Atwood testified that because Brenda spent the time "fussing" over Alec and asking him questions, no progress was made toward the goal. Atwood added that as a result of Brenda's questioning, Alec tended to "shut down."

         Jennifer Ratliff, a mental health therapist, testified about her individual therapy with Alec. She diagnosed Alec with adjustment disorder, unspecified, and also identified features of attention deficit hyperactivity disorder. Due to those features, Alec needed a moderately structured and stable environment to help manage the symptoms that accompanied the diagnosis. Ratliff elaborated:

[H]e needs an environment where his physical needs are met consistently, as well as emotional needs, and any ongoing mental health services or needs need to be provided to him, including psychiatric care for medication management. Also he needs to be in an environment where . . . there are consistent rules and nonphysical discipline.

         Alec made progress in two areas: identifying activities to engage in to serve as coping skills and expressing emotions. But due to becoming withdrawn, he ...

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