In re Interest of Alec S.

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In re Interest of Alec S.

Caselaw No.
294 Neb. 784
Filed on
Friday, September 16, 2016


SUMMARY: The lower juvenile court terminated a mother’s parental rights to her child. The Court of Appeals reversed due to the State having failed to prove termination was in the child’s best interests. The Nebraska Supreme Court reverses the Court of Appeals and remands the cause with direction.

On September 13, 2013, the State moved for temporary custody of Alec S. and removal of him from the home of his mother, Brenda G., after a hotline report was made to DHHS alleging that Brenda was suffering from mental health issues and required hospital admission. The previous day, Brenda had enrolled in an inpatient mental health program but had not checked herself in by September 13.

 

Thus, the State filed a petition seeking to adjudicate Alec under § 43-247(3)(a) with the filing of the motion for temporary custody. This petition alleged that Brenda had been diagnosed with PTSD, depression, and anxiety and could no longer care for Alec, who was under eight years of age. The petition was later amended to include that Brenda’s alcohol and substance use placed Alec at risk for harm. Alec was adjudicated in January 2014.

 

On March 18, 2014, the juvenile court entered a disposition and permanency planning order with a permanency objective of reunification with a concurrent objective of adoption. Brenda was ordered to: participate in an out-patient chemical dependency therapy program; submit to alcohol and drug testing; participate in programs at “Community Alliance;” attend family and individual therapy; and participate in psychiatric care. Brenda was allowed supervised visitation with Alec.

 

On February 6, 2015, the State filed a motion to terminate Brenda’s parental rights under § 43-292(2), (6) & (7).  At the June 2015 termination hearing, four witnesses were called to testify for the State. The first, Brenda’s clinical psychologist, stated that Brenda had missed or cancelled 19 sessions and only met with her six times. Other treatment options were recommended to Brenda but she failed to act on them, made little progress towards treatment, and was discharged from the program in August 2014.

 

Alec’s mental health therapist also testified and diagnosed Alec as having an adjustment disorder with mixed emotions. Family therapy for Alec and Brenda was the recommended course of action but, despite scheduling weekly appointments, the therapist only conducted three sessions over two months. According to the therapist, Brenda demonstrated no insight into the need for family therapy and spent the sessions asking Alec questions which led Alec to “shut down” as a result. 

 

Alec’s individual therapist testified as well and similarly diagnosed Alec with an adjustment disorder. She determined that Alec needed a more structured and stable environment undergirded by consistent rules and non-physical discipline. While Alec made some progress in therapy, he wasn’t able to address past trauma. This same therapist also engaged Brenda and Alec simultaneously in family therapy, of which Brenda only attended half of the sessions. Of those she did attend, the therapist noted little progress at first due to Brenda’s preoccupation with Alec’s hygiene and his tendency to “shut down” in her presence. During the two remaining sessions, Brenda was able to engage in a therapeutic dialogue with Alec and the therapist concluded that some contact between the two would be good, regardless of the outcome of any future judicial proceedings.

 

Lastly, a DHHS family permanency specialist who had been working Alec’s case since February 2015 testified about Brenda’s lack of compliance with the court order. Specifically, Brenda had not completed individual therapy, not completed chemical dependency treatment, not fully complied with drug and alcohol screens, and tested positive for alcohol on occasion. Visitation had not been able to move beyond supervised visits and had missed visits in March 2015. The specialist remarked that Brenda’s mental health remained a primary concern and that conflicting accounts were held by Brenda as to why she was referred to mental health therapy and DHHS. According to Brenda, she had been tricked into inpatient treatment and “did not belong” in those programs.

 

The specialist also disclosed that Brenda had been unable to maintain stable housing, was often homeless, and was staying at various shelters. Several shelters barred Brenda due to alcohol use, anger issues, and inability to seek treatment. At the time of the hearing Brenda was living in a Salvation Army shelter that did not allow children. While the specialist did note Brenda making improvements in the months leading up to the hearing, she believed these had little lasting power and forward progress would be abandoned if Alec was returned to her care.

 

Visitation observations received into evidence by the court showed that Brenda was loving towards Alec but got angry easily during visits and was habitually late. Notes from a May 2015 visit document Brenda appearing edgy and the specialist learning Brenda had tested positive for methamphetamine several weeks prior and had refused to submit more screens since then.

 

As a result of this testimony and documentation, the juvenile court terminated Brenda’s parental rights. The court recognized a bond between Alec and Brenda existed but found her visits with him and attempts at rehabilitation sporadic. Noting that Alec had been placed out of home for almost two years at that point, the court concluded that there was little chance for reunification given Brenda’s myriad problems and her inability to rehabilitate herself. Thus, the court found by clear and convincing evidence that the State proved grounds for termination under § 43-292(2), (6), & (7) and that termination was in Alec’s best interests.

 

Brenda appealed and the Court of Appeals first found that the record clearly and convincingly showed that a ground for termination under § 43-292(7) existed and would not review the same under § 43-292(2) or (6). However, using In re Interest of Aaron D., the Court of Appeals ultimately determined that the State failed to adduce clear and convincing evidence that terminating Brenda’s parental rights was in Alec’s best interests. The State then filed this appeal to the Supreme Court.

 

In its review, the Supreme Court looks to In re Interest of Aaron D., which the Court of Appeals used to reach its decision. The Supreme Court states that cases based solely on § 43-292(7) can be difficult to prove termination due to an insufficient record, but concludes that is not the case here. This is demonstrated by the lower court’s having found that Brenda substantially and continuously or repeatedly neglected and refused to give Alec necessary parental care and protection. Further, reasonable efforts to preserve and reunify the family had failed to correct the conditions leading to the adjudication.

 

Additionally, the record in In re Interest of Aaron D. did not contain any dispositional orders setting forth the court-ordered rehabilitation plans, which would have been needed to show that the parent in that case failed to follow them clearly and convincingly. Here, the opposite is true in that the record contains numerous orders for rehabilitation as part of the permanency planning process.

 

Brenda failed to meet these expectations in the context of reunification. This was testified to by four witnesses on behalf of the State and none in the defense of Brenda, also a marked differentiation from In re Interest of Aaron D. where the State produced one witness versus the parent’s three. Witnesses here did not merely recall the written record and summarize reports. Instead, witnesses were produced that spoke with Brenda on multiple occasions in addition to working with Alec and Brenda directly in their rehabilitation efforts. The Supreme Court concedes that many details are missing that could have aided in the Court of Appeals review of the case but finds that “the lack of the ‘gory details’ does not mean the State failed to meet its burden of proof.”

 

Thus, the Supreme Court turns to the legal framework involved: “[a] child’s best interests are presumed to be served by having a relationship with his or her parent” and “[t]his presumption is overcome only when the State had proved that the parent is unfit.” This represents two separate inquiries but each relies on the same facts. Here, the Supreme Court finds that the evidence is demonstrable of Brenda’s lack of parental fitness. While she may have mental health issues, she has refused treatment on numerous occasions and fails to see how her lack of participation contributes to Alec’s safety. More than enough time was present to show some kind of progress or promise, yet Brenda only engaged on the figurative eve of the termination hearing which is too little, too late. See In re Interest of Kassara M., 258 Neb. 90 (1999).

 

Two of the State’s witnesses specifically testified that Alec’s best interests lie with the termination of Brenda’s parental rights. Alec’s caseworker cited the duration of the case, Alec’s continued out-of-home placement, lack of visitation progress, Brenda’s erratic behavior, and her failure to follow court orders. This contrasts with a single witness for the State recommending that the relationship continue due to the bond that Alec and Brenda share.

 

Considering this evidence, the Supreme Court holds that the existence of a bond does not prove parental fitness and that a relationship can exist which is not that of the classically characterized “mother and son” variety. Rather, Alec’s need for permanency is of greater concern. Brenda has defeated reunification as an option by her own hand which necessitated 21 months of the State’s care for Alec. Brenda has shown no real lasting progress, much less than the kind needed to be entrusted with Alec’s care once again. The Supreme Court cites In re Interest of Nicole M. and opines that “[c]hildren cannot, and should not, be suspended in foster care or be made to await uncertain parental maturity.” 287 Neb. 685 (2014).

 

Therefore, the Supreme Court concludes that the State showed by clear and convincing evidence that termination of Brenda’s parental rights was in Alec’s best interest and remands the case with direction to affirm the judgment of the juvenile court.