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In re Steven S.

Court of Appeals of Nebraska

December 10, 2019

In re Interest of Steven S., Jr., et al., children under 18 years of age.
Steven S., Sr., appellant, State of Nebraska, appellee and cross-appellee, and Jennette S., 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 lower court observed the witnesses and accepted one version of the facts over the other.

         2. Parental Rights: Proof. Neb. Rev. Stat. § 43-292 (Reissue 2016) 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.

         3. Parent and Child: Child Custody. A parent's failure to provide an environment to which his or her children can return can establish substantial, continual, and repeated neglect.

         4. 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.

         5. Parental Rights: Proof. Under Neb. Rev. Stat. § 43-292 (Reissue 2016), once the State shows that statutory grounds for termination of parental rights exist, the State must then show that termination is in the best interests of the child.

         6. Parental Rights: Presumptions: Proof. A child's best interests are presumed to be served by having a relationship with his or her parent. This [27 Neb.App. 832] presumption is overcome only when the State has proved that the parent is unfit.

         7. 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.

         8. Rules of the Supreme Court: Appeal and Error. A cross-appellant is required to comply with the rules on cross-appeals, including the requirement that the cross-appellant designate on the cover of his or her brief that it is a cross-appeal, and set forth the cross-appeal in a separate division of the brief entitled "Brief on Cross-Appeal."

         9. __: __ . An appellate court may consider a party's cross-appeal, even though the party's brief violated Neb. Ct. R. App. P. § 2-109(D)(4) (rev. 2014) requiring a separate section for a cross-appeal, where the form and presentation of the assignments of error in the party's brief conformed with Neb. Ct. R. App. P. § 2-109(D)(1) (rev. 2014), which applies to an appellant's brief.

          Appeal from the County Court for Scotts Bluff County: Kris D. Mickey, Judge.

          Gretchen Traw, Deputy Scotts Bluff County Public Defender, for appellant.

          Rhonda R. Flower, of Law Office of Rhonda R. Flower, for appellee.

          Riedmann, Bishop, and Arterburn, Judges.

          Per Curiam.


         Steven S., Sr., appeals, and Jennette S. cross-appeals, from an order entered by the Scotts Bluff County Court, sitting as a juvenile court, which terminated their parental rights to their three minor children: Steven S., Jr. (Steven Jr.) (case No. A-18-1183), Aodhan S. (case No. A-18-1184), and Genevive S. (case No. A-18-1185). We consolidate these three appeals for disposition, and we affirm the order of the juvenile court.

          [27 Neb.App. 833] II. BACKGROUND

         1. Procedural Background

         Steven and Jennette are the natural parents of Steven Jr.. born in September 2005; Genevive, born in October 2011; and Aodhan, born in May 2013. Steven and Jennette are married, but by the time of the hearing on the State's motions to terminate their parental rights, they were living separately.

         The current proceedings involving this family were initiated in October 2017. However, this is not the first time the family has been involved with either the juvenile court or the Department of Health and Human Services (the Department). In fact, the family has a lengthy history with the Department. In 2000, the Department was contacted twice regarding Steven and Jennette's treatment of an older son, who is not a subject of the current proceedings. Both reports indicated that Steven and Jennette were neglecting the older son, who was then an infant, by failing to properly feed him, failing to bathe him, and failing to obtain necessary medical care for him. In 2001, Steven and Jennette's older daughter, who is also not a subject of the current proceedings, was removed from their care after she was taken to the hospital and tested positive for opiates and marijuana. These children are no longer in the custody of Steven and Jennette.

         In 2006, the Department received a report that Steven and Jennette were neglecting Steven Jr., who was then 1 year old. The reporter indicated that the family home was "in a very bad state and [was] very dirty with cat and dog feces in the house.'' In 2011, Steven and Jennette's niece, who was living with them, reported that both Steven and Jennette were physically abusive to her. She had injuries consistent with her reports. Testimony from the termination hearing revealed that Steven was ultimately convicted of sexually abusing the niece and was jailed for 1 year.

         From 2013 to 2016, the Department received four additional reports regarding Steven and Jennette. Each of these reports [27 Neb.App. 834] indicated that Steven and Jennette were neglecting Steven Jr., Genevive, and Aodhan by not bathing the children, not providing a clean and safe home environment, and not obtaining necessary medical care for them. After each of these reports, the Department provided services to assist the family. In March 2017, 6 months prior to the initiation of the current court proceedings, the Department received another report regarding Steven and Jennette's neglect of the children. This report indicated that Aodhan was not receiving necessary medical care and that the children smelled of urine and body odor.

         On October 6, 2017, the current proceedings were initiated when the State filed petitions alleging that Steven Jr., Genevive, and Aodhan were within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016) due to the fault or habits of Steven and Jennette. We note that at the time the petitions were filed, the family was still receiving assistance from the Department based on previous issues of neglect.

         Also on October 6, 2017, the State filed motions asking that the children immediately be placed in the custody of the Department. In support of the motions, the State provided an affidavit authored by a deputy with the Scotts Bluff County sheriff's office. The affidavit indicated that the deputy visited the family home on October 6, after the Department had received another report regarding Steven and Jennette's neglect of the children. The deputy stated that upon his arrival at the home, he "was almost immediately overwhelmed with the smell of ammonia, the source of which appeared to be cat urine." The deputy observed numerous dirty dishes and dirty laundry scattered throughout the house. In addition, there were cat feces on the floor and on some of the laundry. The deputy indicated that "this [w]as one of the worst homes he has been in while working for the Sheriff's Department." The deputy believed that the children needed to be removed from the home for their safety. Ultimately, the juvenile court granted the State's motions for temporary custody, placing the children in the custody of the Department and outside of Steven and [27 Neb.App. 835] Jennette's home. The children have remained outside of their parents' home since October 6.

         Subsequent to the State's filing the original petitions, the State filed amended petitions on November 17, 2017. In the amended petitions, the State alleged that the children were at risk for harm because they lacked safe and sanitary housing and because Steven was currently incarcerated and unable to care for the children. Steven ultimately admitted that portion of the amended petition which alleged that the children were at risk for harm due to his continued incarceration. Jennette ultimately admitted that portion of the amended petition which alleged that the children were at risk for harm because she was not providing them with safe and sanitary living conditions. Given the parents' admissions, the juvenile court found Steven Jr., Genevive, and Aodhan to be within the meaning of § 43-247(3)(a).

         A disposition hearing was held on January 9, 2018. We note that the record from this hearing reflects that Jennette was present at the hearing, but because she had been recently arrested and jailed, she appeared at the hearing "in custody." Jennette had apparently been charged with child abuse; however, the exact circumstances surrounding this charge are not discussed in our record. Steven was also present at the hearing, because he was no longer incarcerated.

         At the hearing, the juvenile court ordered that Steven and Jennette comply with the case plan recommended by the Department. That case plan included directives for both Steven and Jennette to participate in a psychological evaluation and a parenting assessment; to take steps to maintain a clean and safe home environment, including working with a family support worker; and to attend supervised parenting time with the children and demonstrate age-appropriate supervision for each child. The Department indicated that prior to the hearing, both Steven and Jennette had participated in a psychological evaluation and a parenting assessment. The parties noted that they were awaiting the results of that testing.

          [27 Neb.App. 836] A review hearing was held in April 2018. At this hearing. Steven and Jennette were ordered to "follow the recommendations of the comprehensive parental capacity evaluations." These recommendations included participating with individual and family counseling and medication management. A subsequent review hearing was held in July 2018. At this hearing, the juvenile court changed the permanency goal from reunification to adoption with a concurrent goal of reunification. Steven and Jennette were again ordered to comply with the Department's case plan.

         On July 20, 2018, the State filed motions to terminate Steven's and Jennette's parental rights. In the motions, the State alleged that termination was appropriate pursuant to Neb. Rev. Stat. § 43-292(2), (6), and (9) (Reissue 2016). The State also alleged that termination of Steven's and Jennette's parental rights was in the best interests of the children.

         2. Termination Hearing Evidence

         A hearing on the termination motions was held on September 27, 2018. At the hearing, the State called six witnesses to testify, including two Department caseworkers who had been assigned to the family's case, the clinical psychologist who conducted a psychological evaluation and a parenting assessment for both Steven and Jennette, Genevive and Aodhan's therapist, and Genevive and Aodhan's foster mother. The State's witnesses largely testified regarding Steven's and Jennette's failure to make any progress toward becoming appropriate parents for the children. Neither Steven nor Jennette fully took advantage of the rehabilitative services they were offered and ordered to complete. The witnesses also testified regarding the children's severe behavioral problems and the progress the children have made while living apart from their parents in foster care. In addition to the State's witnesses, Jennette called three witnesses to testify on her behalf. Each of these witnesses indicated that Jennette appeared to be an involved mother who had a bond with her children.

          [27 Neb.App. 837] (a) Evidence Regarding Steven

         As we mentioned above, in October 2017, when the current proceedings were initiated, Steven was in jail. Evidence in our record indicates that his incarceration was the result of being convicted of writing bad checks. When Steven was released, he lived with Jennette. However, at the July 2018 review hearing, both Steven and Jennette testified that they were no longer living together. Jennette indicated that she told Steven to leave her home because he was not working and she no longer wanted to support him. Steven indicated that he was homeless and was sleeping in a tent which he pitched in various locations, including, on occasion, Jennette's backyard. Despite not having adequate housing for himself or for his children, Steven expressed that his primary desire was to obtain a vehicle.

         Steven was unemployed from the time of his release from jail through at least July 2018 when he obtained part-time employment. At the review hearing held in July, Steven testified that although he had applied for various jobs, he struggled with finding employment that would accommodate his scheduled visitation with the children. We note that by this time in the proceedings, Steven had visitation with the children only on weekends. The Department assisted both Steven and Jennette financially with such expenses as utilities, gas, and their telephones, but even with this assistance, they were unable to meet their own basic needs.

         During the pendency of the juvenile court proceedings, Steven failed to consistently participate with family support services. He also failed to demonstrate his participation in individual therapy, despite his reports that he started attending therapy in July 2018. The only service that Steven consistently took advantage of was supervised visitation with the children. However, the Department had concerns about statements made by Steven to the children during the visitation sessions. In addition, because of Steven's and Jennette's living situations, the visits never took place in their home. The visits with [27 Neb.App. 838] Genevive and Aodhan took place at a visitation center, and the visits with Steven Jr. took place in a motel room, because he had been placed in a foster home in Omaha, Nebraska.

         By the time of the termination hearing, Steven and Jennette saw their children every other weekend. They would have a visit with Genevive and Aodhan every other weekend and would have a visit with Steven Jr. on alternating weekends. Both of the Department caseworkers assigned to the case testified that during visits with the children, Steven and Jennette failed to follow through with disciplining the children, despite their behaviors, and as a result, struggled to control the children. They also spent a great deal of time looking at their telephones instead of interacting with the children and were sometimes not fully prepared with everything necessary to care for the children. Steven had to be repeatedly prompted to change Aodhan's diapers prior to the time he became potty trained. When asked, Steven and Jennette both indicated their belief that visits with the children were going well.

         The results of Steven's psychological evaluation and parenting assessment further indicated the deficiencies in his parenting abilities. Dr. Gage Stermensky, the clinical psychologist who performed the evaluations on Steven, testified at the termination hearing that based upon the results of his evaluations, he believed that Steven currently lacked the ability to sufficiently care for his children. Stermensky testified that Steven suffered from bipolar disorder, antisocial personality disorder, and anxiety disorder. Antisocial personality disorder in particular can cause impulsivity and difficulty with being taught new skills or with being supervised. Furthermore, Stermensky said that Steven lacked insight into how his behaviors and actions impacted his children and that he lacked empathy for others and displayed an inability to meet his basic needs.

         Stermensky opined that Steven would benefit from both behavioral therapy and medication compliance. Steven informed Stermensky that he was not currently taking any [27 Neb.App. 839] medication because he could not afford to pay for the prescriptions. Stermensky indicated that there are programs available which provide assistance with the cost of prescriptions for mental health issues. Stermensky testified that ultimately. Steven's prognosis was "guarded" in that Stermensky had concerns about whether Steven would ever gain the capacity to be an appropriate parent. Such concerns included Steven's lengthy history of involvement with the Department without any significant or maintained improvements. Stermensky noted that even with the Department's help, Steven was still unable to meet his own basic needs. And, Stermensky questioned whether Steven would ever be able to meet his children's needs. Stermensky testified that given Steven's history, he would need to demonstrate improvement over a lengthy period of time, rather than just for a few months, prior to any change in his status with regard to the children.

         There was evidence presented by the State's witnesses regarding allegations that Steven either had sexually abused Genevive or was grooming her for such sexual abuse. Genevive's foster mother, Susan M., testified that Genevive had disclosed multiple instances of sexual abuse, including reports of Steven's touching her with his penis and Jennette's taking pictures of her when she was not wearing any clothes. Susan also testified that Genevive displays sexualized behaviors, including masturbating "all the time." Similarly, Genevive's therapist, Mandy Price, testified at the termination hearing that Genevive had displayed sexualized behavior at school in addition to in her foster home. For example, Genevive wrote a letter to a high school football player expressing her desire to have a sexual relationship with him. Price testified that in her opinion, 6-year-old Genevive was able to describe sexual intercourse at a level "probably above the normal developmental stage." Genevive reported to Price, completely unprompted and "out of the blue," that Steven had touched her on her bottom with his penis. When Genevive made this report, she asked Price not to tell anyone about this information and she said she did [27 Neb.App. 840] not want to disclose any further information about the incident. Price testified that she did not believe that Genevive's disclosures were the result of anyone "coaching" her about what to say.

         While both Steven and Jennette denied the allegations of sexual abuse during the current proceedings, Jennette had previously reported her own concerns about Steven's relationship with Genevive. When Genevive was younger, Jennette took Genevive to the hospital with concerns that Steven was molesting her because he took too long to change her diapers. And, during a prior court proceeding, Jennette asked that Steven have only supervised visits with Genevive because of concerns that he was sexually abusing her. Moreover, as we noted above, Steven had previously been convicted of sexually abusing his young niece.

         (b) Evidence Regarding Jennette

         The children were initially removed from the family home due to its unsanitary and unsafe condition. Throughout the proceedings, Jennette had made some efforts to improve the home; however, by the time of the termination hearing, the condition of the home remained an issue. Jennette did pay to fix some of the subflooring in the home, to fix water damage present on the ceiling, and to build an enclosed porch. However, a "[v]ery potent" smell still existed in the home. The most recent Department caseworker, Abbie Wiebesiek, described the smell as consisting of "cat urine [and] old garbage." In addition, in February and March 2018, there was no electricity in the home and it was very cold. Wiebesiek testified that she had not visited the home since June because Jennette was no longer being cooperative ...

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