In re Interest of D.L.S.

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In re Interest of D.L.S.

Caselaw No.
87-858; 230 Neb. 435, 432 N.W.2d 31
Filed on
Wednesday, November 23, 1988


Summary: Termination of parental rights was appropriate where, although the lower court did err in allowing hearsay evidence, the Nebraska Supreme Court found that the evidence establishes that the mother did comply with the rehabilitation plan to the best of her abilities but remained substantially unable to apply what she was taught due to mental illness or deficiency. 

A petition was filed alleging that D.L.S., born in May of 1985, was in a situation dangerous to life, limb, or injurious to her health and morals after a report of a skull fracture discovered in a York medical clinic. Further investigation revealed extremely unsanitary conditions in the home and the child was placed in temporary custody of the department. On October 24, 1986 and January 21, 1987, the mother was instructed to rehabilitate herself within 90 days to reunite with her daughter. She was ordered to cooperate with the department for visitation and in taking instructions to improve her parenting, securing psychotherapeutic services as deemed necessary by a designated clinic, secure and maintain steady employment, maintain an appropriate permanent residence for herself and her child, and decide what to do about her relationship with D.L.S.’s father, who voluntarily relinquished his parental rights. On May 15, 1987 the State filed a petition to terminate the mother’s parental rights, asserting the mother had substantially and continually or repeatedly neglected the child and refused to give her necessary parental care and protection and, on the other hand, that she was incapable of proper parenting because of mental illness or deficiency that they reasonably believed would continue for a prolonged, indeterminate period. The record demonstrates that the mother sought therapy, moved frequently but always had a bed and bedding for D.L.S., ultimately obtained employment, and divorced D.L.S.’s father. However, she was in a relationship with a similar man for some time and was diagnosed with a dependent personality disorder. Additionally, D.L.S. exhibited hyperactive and extremely emotional behavior after her visits with her mother. It is unclear whether that behavior was due to the mother or being upset and missing her mother. At one point discipline broke down and resulted in a screaming match between the mother and D.L.S. Finally, psychologists testified that the mother’s disorder was treatable, however could not provide more information about how long it would take for her to be able to make her decisions and control her own life. The court terminated her parental rights. 

The Nebraska Supreme Court affirmed. The mother appealed the decision on 3 assignments of error. The mother first argued the court erred in allowing in reports dealing with the mental and physical condition and treatment of the father and the mother’s boyfriend because they were irrelevant and hearsay. The Court found that even if it was an error to allow the evidence, it was harmless error as the information contained within the reports could also be found elsewhere in the record. Next, the mother argued that the court erred by allowing a self-employed social workers to testify based on the reports of three psychologists, 2 who testified at the hearing and a third that had not met the mother or testified, that the mother suffered from mental deficiencies that prevented her from ever acquiring adequate parenting skills. The Court found that allowing the social worker to testify to the opinion of the third psychologist did violate the mother’s right to cross-examination of adverse witnesses. However, the Court must consider whether there is evidence to terminate without the impermissible reports. 

The Court considered the mother’s cooperation and compliance with the rehabilitation as failure to comply is an independent reason to justify termination of parental rights. While the record demonstrates that the mother provided D.L.S. with the care and protection her abilities enabled her to provide, however, she was substantially incapable of applying what she was taught and could not reasonably, to a degree of psychological certainty, be expected to for a prolonged, indeterminate period of time. 

A concurring opinion agreed in result but would have found the evidence regarding the physical and mental condition of the mother’s ex-husband and boyfriend admissible and important for the lower court’s decision. The evidence went to the mother’s ability to choose father figures for her daughter and understand the best environment for herself and D.L.S. 
A dissent found that the record demonstrated improvement and warranted more time for the mother to continue to learn and grow, especially considering her mental deficiencies.