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In re Becka P.

Court of Appeals of Nebraska

August 6, 2019

In re Interest of Becka P. et al., children under 18 years of age.
v.
Robert P., appellant, State of Nebraska, appellee and cross-appellee, and Veronica M., appellee and cross-appellant.

         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 juvenile court observed the witnesses and accepted one version of facts over another.

         2. Parental Rights: Rules of Evidence: Due Process. The Nebraska Evidence Rules do not apply in cases involving the termination of parental rights. Instead, due process controls and requires that the State use fundamentally fair procedures before a court terminates parental rights.

         3. ___: ___: ___ . In determining whether admission or exclusion of particular evidence would violate fundamental due process, the Nebraska Evidence Rules serve as a guidepost.

         4. Parental Rights: Rules of Evidence: Due Process: Appeal and Error. Rather than the formal rules of evidence, an appellate court evaluates the admission of evidence in termination of parental rights cases using a due process analysis.

         5. Constitutional Law: Due Process. Procedural due process includes notice to the person whose right is affected by the proceeding; reasonable opportunity to refute or defend against the charge or accusation; reasonable opportunity to confront and cross-examine adverse witnesses and present evidence on the charge or accusation; representation by counsel, when such representation is required by the Constitution or statutes; and a hearing before an impartial decisionmaker.

         [27 Neb.App. 490] 6. Juvenile Courts: Parental Rights: Proof. For a juvenile court to terminate parental rights under Neb. Rev. Stat. § 43-292 (Reissue 2016), it must find that one or more of the statutory grounds listed in this section have been satisfied and that such termination is in the child's best interests. The State must prove these facts by clear and convincing evidence.

         7. Parental Rights: Proof. Neb. Rev. Stat. § 43-292(7) (Reissue 2016) operates mechanically and, unlike the other subsections of the statute, does not require the State to adduce evidence of any specific fault on the part of a parent.

         8. Parental Rights. In a case of termination of parental rights based on Neb. Rev. Stat. § 43-292(7) (Reissue 2016), the protection afforded the rights of the parent comes in the best interests step of the analysis.

         9. Parental Rights: Evidence: Appeal and Error. If an appellate court determines that the lower court correctly found that termination of parental rights is appropriate under one of the statutory grounds set forth in Neb. Rev. Stat. § 43-292 (Reissue 2016), the appellate court need not further address the sufficiency of the evidence to support termination under any other statutory ground.

         10. Parental Rights: Proof. In addition to proving a statutory ground, the State must show that termination of parental rights is in the best interests of the child.

         11. Constitutional Law: Parental Rights: Proof. A parent's right to raise his or her child is constitutionally protected; so before a court may terminate parental rights, the State must show that the parent is unfit.

         12. Parental Rights: Presumptions: Proof. There is a rebuttable presumption that the best interests of the child are served by having a relationship with his or her parent. Based on the idea that fit parents act in the best interests of their children, this presumption is overcome only when the State has proved that the parent is unfit.

         13. 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 caused, or probably will result in, detriment to the child's well-being.

         14. Parental Rights. The best interests analysis and the parental fitness analysis are fact-intensive inquiries. And while both are separate inquiries, each examines essentially the same underlying facts.

         15. Parental Rights: Parent and Child. In proceedings to terminate parental rights, 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.

         16. Parental Rights: Appeal and Error. Where termination of parental rights is based on Neb. Rev. Stat. § 43-292(7) (Reissue 2016), appellate courts must be particularly diligent in their de novo review of whether termination of parental rights is in fact in the child's best interests.

         17. Parental Rights. Where a parent is unable or unwilling to rehabilitate himself or herself within a reasonable time, the best interests of the child require termination of the parental rights.

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

          Appeal from the County Court for Garden County: Randin R. Roland, Judge. Affirmed.

          Robert S. Harvoy for appellant.

          Philip E. Pierce, Garden County Attorney, for appellee State of Nebraska.

          Jaquelin G. Leef, of Sonntag, Goodwin & Leef, PC, for appellee Veronica M.

          Steven E. Elmshaeuser, guardian ad litem.

          Moore, Chief Judge, and Pirtle and Bishop, Judges.

          Pirtle, Judge.

         I. INTRODUCTION

         Robert P. (Bob) appeals, and Veronica M. cross-appeals, from an order of the Garden County Court sitting as a juvenile court, terminating their parental rights to four of their children. Upon our de novo review of the record, we affirm the juvenile court's order.

         II. BACKGROUND

         Bob and Veronica are the parents of Becka P., born in July 2011; Robert P., Jr., born in July 2013; Thomas P., born in October 2014; and Brandy P., born in November 2016. Bob and Veronica are also the parents of a fifth child, Brittney P., [27 Neb.App. 492] born in December 2017. However, the termination trial did not involve Brittney. Accordingly, Brittney is not part of the appeal before us now and she will only be discussed as necessary to address Bob's and Veronica's assigned errors.

         In December 2015, separate petitions were filed to adjudicate Becka, Robert, and Thomas pursuant to Neb. Rev. Stat. § 43-247(3)(a) (Supp. 2015) based on the actions of both parents. Becka, Robert, and Thomas were adjudicated in February 2016. The basis of the adjudication was the parents' failure to use proper car seats on a regular basis. The petition also included concerns in regard to the children's being develop-mentally delayed. A petition to adjudicate Brandy was filed in December 2016, and she was adjudicated in April 2017. Becka, Robert, Thomas, and Brandy were removed from the parental home on December 16, 2016. They have remained out of the home since that time.

         On July 31, 2018, the State filed a motion for termination of Bob's and Veronica's parental rights in regard to the four children, alleging statutory grounds to terminate existed pursuant to Neb. Rev. Stat. § 43-292(2), (3), (5), (6), and (7) (Reissue 2016), and alleging that termination was in the best interests of the children. A termination trial was held over the course of 4 days in August 2018.

         The evidence showed that the family first became involved with the Nebraska Department of Health and Human Services (Department) in 2013 based on the living conditions of the home and Becka's being developmentally delayed. At that time, only Becka and Robert were born. The case was dismissed when the family moved into an acceptable home and educational services were being provided for Becka, which Bob and Veronica agreed to continue. Shortly after the case was dismissed, Bob would not allow the continuation of the educational services.

         In 2015, the Department investigated the family on two separate occasions based on intakes involving allegations of abuse and neglect. Voluntary services were offered to the [27 Neb.App. 493] family both times, but they were denied. As previously stated, the present case began in January 2016 when petitions to adjudicate Becka, Robert, and Thomas were filed. The petition to adjudicate Brandy was filed in December 2016.

         Sonya Oliverius, who supervises caseworkers for the Department, became involved with the case when Becka, Robert, and Thomas were adjudicated in February 2016. She testified that during her time assigned to the case, Bob did not want to participate in services that were offered by the Department and would argue with her or tell her that either she or the Department had done something wrong. She testified that Veronica "pretty much followed whatever Bob's directions were" and that Bob made all the decisions. Oliverius testified that Bob had threatened her life and that he made her aware he knew where she lived, her husband's name, and what school and daycare her children attended. As a result of Bob's threats and innuendos, Oliverius obtained a protection order against him in December ...


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