SUMMARY: Termination of parental rights was improper as to the children not connected to the inappropriate sexual contact because the parents established significant progress in their ability to care and protect the children. However, with the children involved in the sexual assault, the parents did not show that they had the ability to provide a proper environment that would protect the children.
Tonya, Jeffrey, and Michael are the parents of multiple sets of children, Stephanie, DOB 3/95, Justin, DOB 3/97, Nicholas, DOB 2/99, Zachary, DOB 2/02, Ashley, DOB 6/01, Austin, DOB 10/02, Kiarra, DOB 6/06, and Cian, 8/07. On various occasions since 1999, the children were removed from parental homes on neglect allegations. Stephanie, Justin, Nicholas, Zachary and Kiarra were removed again in June 2007 based on Justin’s subjecting Nicholas to inappropriate sexual contact, Michael’s inappropriate physical contact and Tonya’s and Jeffrey’s failure to protect. Cian was removed at birth in August 2007. Tonya and Jeffrey admitted to allegations related to the failure to protect Nicholas from Justin and were ordered complete services. On October 7, 2008, the State filed a motion to terminate Tonya’s parental rights to Stephanie, Justin, Nicholas, Zachary, Kiarra and Cian. A motion was also filed to terminate Jeffrey’s parental rights to Stephanie, Justin, Ashley, and Austin. Another petition was filed alleging Michael’s children were within the meaning of 43-247(3)(a) due to his failure to attend visitation, provide housing and utilize services, and to terminate his parental rights. On November 2, 2009, the court terminated Tonya’s parental rights to all ofher children and Jeffrey’s parental rights to all of his children. The court also found Michael’s children to be within the meaning of 43-247(3)(a) but denied termination. Tonya, Jeffrey and Michael appealed.
The Court of Appeals affirmed the termination of Tonya’s parental rights to Justin and Nicholas but reversed the termination as to Stephanie, Zachary, Kiarra and Cian. It justified its findings on the basis that Tonya did not have the ability to properly care for and protect Justin and Nicholas given Justin’s sexual assault against Nicholas. However, the Court of Appeals found that Tonya had been making more significant progress in improving her ability to care for the children than during prior court involvement, namely that she improved in therapy, had appropriate visitation, demonstrated appropriate parenting skills and maintained stable housing. The Court of Appeals also found a strong bond between Tonya and the children with the exception of Justin and Nicholas.
As to Jeffrey, the Court of Appeals affirmed the termination of parental rights as to Jeffrey but reversed the terminations as to Stephanie, Ashley and Austin based on similar reasoning. It found that Jeffrey complied with every court order, consistently attended visitation and demonstrated appropriate parenting techniques. However, like with Tonya, the Court of Appeals found that Jeffrey was unable to provide Justin with a strict, structured environment he requires.
As to both parents, the Court of Appeals discounted the testimony of a therapist supporting termination of parental rights because it found that the evidence and remaining testimony overwhelming contradicted her testimony.
Finally, as to Michael, the Court of Appeals reversed the court’s finding that Kiarra and Cian came within the meaning of 43-247(3)(a). It found that although Michael was initially inconsistent with attending visitation beginning in 2008 he consistently attended visits. The evidence also established that he acquired appropriate housing and voluntarily participated in services.