In re Interest of Alyssa D.

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In re Interest of Alyssa D.

Caselaw No.
No. A-15-1158
Filed on
Tuesday, August 23, 2016

SUMMARY: Angela D. appeals from the decision of the Hall County Court, sitting as a juvenile court, terminating her parental rights to her minor children, Alyssa D., Addison D., Aidan D., and Abigail D., pursuant to Neb. Rev. Stat. § 43-292(4) (Cum. Supp. 2014). Specifically, Angela submits that the lower court terminated without sufficient notice of her parental rights as a matter of due process, wrongly admitted evidence over her objection, terminated parental rights without clear and convincing evidence, and wrongly denied her motions for visitation. The Court of Appeals affirms, finding that Angela’s alcohol use has proven detrimental to her children and was likely to continue, thus the termination of her parental rights is in the best interests of her children.


The children’s father, Daniel D., and Angela were married in May 2000. On May 27, 2011, Daniel filed for divorce and the resulting divorce decree granted him custody of the children. Angela subsequently gave birth to another child in July 2014 and remarried in December 2014.


On December 22, 2014 in Hall County District Court, Daniel filed a motion to termination Angela’s parental rights to their children, pursuant to Neb. Rev. Stat. § 43-292(4). The motion was transferred to juvenile court.


On April 21, 2015, the first hearing on the motion was held. There, the court informed Angela of the nature of the proceedings and her rights. The court read the allegations of the motion, which included a detailed history of Angela’s history of alcohol abuse. Angela, represented by counsel, denied the allegations via written answer. In the coming months, Angela also filed several motions regarding visitation rights.


On October 19, 2015, the termination hearing commenced. Daniel called Angela as his first witness and presented her with several alcohol-related medical and criminal records. These records detailed at least: five alcohol-related hospitalizations; eight arrests, including four citations for Driving Under the Influence; six admissions to alcohol treatment facilities with no lasting progress; and multiple court sanctions for violating probation - including jail time, house arrest, license suspensions, and additional probation.


Several Grand Island Police officers also gave testimony and recalled Angela’s many arrests. Officers focused mainly on DUI and domestic violence arrests which characterized Angela as regularly intoxicated during their interactions. The officers also revealed that several of these incidents resulted in property damage, violent outbursts, and injury to others.


Additional evidence revealed during testimony included: a disciplinary complaint while a State employee for coming to work intoxicated and not complying with resulting sanctions; eventual loss of mental health practitioner license; several BAC readings above .30; having to delay her second marriage ceremony in 2014 due to intoxication on the original day; repeatedly missing visitation days with her children due to intoxication; an incident where Angela became angry and violently struck her brother’s face in front of her distressed children while she was intoxicated; removal of Angela’s child with her second husband (not included in this case) by her Alcoholics Anonymous sponsor due to alcohol abuse as evidenced by failing a breathalyzer administered by the sponsor; dismissal from a halfway house and employment for intoxication; and hospitalization for intoxication after consuming “essentially hand sanitizer.”


A therapist for Alyssa, Addison, Aidan, and Abigail described the impact of Angela’s behavior on the children as creating instability and inconsistency, resulting in upheaval. Consequently, the therapist diagnosed the children with “a chronic adjustment disorder” which could result in long-term anxieties regarding safety.


In response, Angela produced witnesses who attested to her desire to seek treatment, ability to be responsible in childcare roles, general compliance with probation (save for a few recent positive tests for alcohol), nature of emotional issues, life obstacles, and need for treatment.


On November 9, 2015, the court entered a written order terminating Angela’s parental rights to Alyssa, Addison, Aidan, and Abigail pursuant to § 43-292(4). The court found that Daniel had demonstrated by clear and convincing evidence that Angela’s alcohol dependence rendered her an unfit parent by reason of her habitual use of intoxicating liquor, which the court found to be seriously detrimental to the health, morals, and well-being of the minor children. The court reasoned that, in her present state, Angela could not meet the emotional needs of the children, placed them at risk due to her criminal and violent behaviors, and had subjected them to strain, both emotionally and physically. Thus, the court held that termination was in the children’s best interests and that children’s vital needs could not be met without termination. 


In response, Angela appealed this order with the Court of Appeals.


Angela’s claim for relief regarding sufficiency of notice argues that Daniel’s termination notice did not include the names and ages of the children at issue, nor did it allege that Angela is indeed the children’s mother or Daniel their father. In response, Daniel argues that there is no confusion as to the identities of the people involved and since Angela did not raise this issue with the lower court she had, therefore, waived the issue.


The Court of Appeals cites In re Interest of Bird Head as the standard of review for such a sufficiency of notice claim. 209 Neb. 575 (1981). There, the Nebraska Supreme Court held that, in the context of proceedings for termination of parental rights, the defendant waives any defect in the notice or pleadings when she further participates on the merits of the cause of the action. Thus, while Daniel’s motion was deficient, Angela failed to challenge the sufficiency of the notice at the appropriate occasion and waived the matter by continued participation in the proceedings to their conclusion.


Further, the Court of Appeals does not find relief for Angela in her additional assertions that this lack of proper notice constitutes plain error. The Court applies the standard for plain error from In Re Interest of Justine J. & Sylissa J., which requires a showing that the nature of the error must make it “plainly evident” that, should the error go uncorrected, it “would result in damage to the integrity, reputation, or fairness of the judicial process.” 288 Neb. 607 (2014).


The Court notes that plain error was present where the State sought to terminate parental rights under § 43-292(1) & (7), but the lower court had instead terminated under § 43-292(2) & (6), In re Interest of Tina L.K. & Billy M., 3 Neb. App. 483 (1995), and where the State filed a petition to terminate a father’s parental rights to three of his children, but the lower court instead terminated rights to four children, In re Interest of D.J. et al., 224 Neb. 226 (1986).


However, here the Court of Appeals finds no comparable error. The lower court introduced the matter and all of the children involved; advised Angela of the nature of the proceedings and her rights; described the potential consequences; and read verbatim the allegations Daniel filed in his termination motion. Angela acknowledged that she understood the allegations being made at the initial hearing and subsequently filed an answer denying the allegations. Furthermore, in her answer Angela named all four children in addition to identifying herself as their mother and Daniel as their father. The Court of Appeals notes that Angela was represented by counsel throughout the proceedings, actively participated in the hearings, and presented testimony from a number of witnesses. Therefore, the Court finds Angela’s argument for an assignment of plain error for this reason without basis.


Angela’s second claim disputes the juvenile court’s having received evidence despite her objections on hearsay, foundational, and confrontational grounds, which she asserts denied her due process. Daniel parries this argument by highlighting notices to Angela that he intended to subpoena the documents and the fact that the documents were delivered to the court for review prior to the hearing for review by her counsel.


The Court of Appeals outlines that the Nebraska Rules of Evidence do not apply in termination of parental rights cases, rather operating in favor of “due process” and “the use of fundamentally fair procedures.” See In re Interest of Destiny A. et al., 274 Neb. 713 (2007). With regard to due process, the admitting court will consider the type of evidence used in order to determine the weight given to that evidence. See In re Interest of Aaron D., 269 Neb. 249 (2005).


It is noted by the Court that Angela did not offer a specific argument as to how the challenged evidence violated her due process rights, only arguing generally that a violation had occurred. In response, the Court states that the evidence at issue was offered to establish her history of alcohol-related hospitalizations, treatments, arrests, employment issues, and sanctions. Angela herself acknowledged that these events occurred during her examinations and provided details in response to many.  Moreover, none of the records were testimonial and most were medical in nature and, therefore admissible under the business record exception to the hearsay rule.


The Court also concludes that the process by which the records were subpoenaed by the juvenile court was fundamentally fair. By having the records sent directly to the court, counsel for Angela had an opportunity to examine them and make known any potential issues. Likewise, the lower court also had an opportunity to review the records for potentially privileged material that should not have been used. Doing so safeguarded procedural fairness, as well as ensured the authenticity of the records received.


Lastly, Angela assigns that the juvenile court erred in finding that clear and convincing evidence that she was an unfit parent existed which would necessitate the termination of her parental rights. Angela claims that while “extensive evidence” of her alcoholism exists, little suggests “that her disease was seriously detrimental to the health, morals or well-being of the juveniles.” Angela also maintains that nearly “all of the evidence concerned incidents that occurred out of the presence of the juveniles” and during a time the children were in Daniel’s custody.


In response, Daniel argues that Angela’s alcoholism had indeed harmed the children over the years and was confirmed by witnesses heard during the hearing. He includes that, even during the periods he maintained custody, Angela was allowed visitations which he characterized as often “nothing short of traumatic” themselves. 


Consequently, the Court of Appeals cites In re Interest of Elizabeth S. which held that the basis for termination is codified in § 43-292 and speaks to eleven separate conditions that, if any one is met, can serve as the basis for the termination of parental rights. 282 Neb. 1015 (2012). However, such a termination requires that clear and convincing evidence must establish the existence of one or more of the statutory grounds permitting termination and that termination is in the juvenile’s best interests. See In re Interest of Lisa W. & Samantha W., 258 Neb. 914 (2000). The Court then makes clear that even though most termination cases are brought by the State against a custodial parent, a non-custodial parent such as Angela could still be the subject of a termination action. See Wayne G. v. Jacqueline W., 21 Neb. App. 551 (2013); see also Kenneth C. v. Lacie H., 286 Neb. 799 (2013).


The Court looks to § 43-202(4) which states that grounds for termination of parental rights exist if the parent is “unfit by reason of debauchery, habitual use of intoxicating liquor or narcotic drugs, or repeated lewd and lascivious behavior, which conduct is found by the court to be seriously detrimental to the health, morals, or well-being of the juvenile.” In its de novo review, the Court of Appeals determined that the evidence presented at the hearing was indeed clear and convincing regarding Angela’s alcohol use and subsequently turned its analysis to whether there was clear and convincing evidence that her conduct seriously detrimental to the health, morals, or well-being of her children.


To that end, the Court recalls In re Interest of Keisha G. where an order terminating a father’s parental rights was reversed after it was determined that his drug abuse and convictions for the same had occurred largely prior to the birth of his daughter, save for one arrest which he was not convicted. 21 Neb. App. 472 (2013). The rationale for the reversal was founded in the conclusion that the State had “failed to adduce any evidence that his drug use had affected or been detrimental to the daughter” and not shown that his daughter was present during any drug use nor that drug use had affected the father’s ability to care for her. Similarly, the Court looks at In re Interest of Justine J. et al., where it was determined that parental rights were correctly terminated for two of four children that had been present in the household during drug abuse and domestic violence episodes, but incorrectly terminated for two children that lived with grandparents at the time and did not witness the same incidents. 286 Neb. 250 (2013).


Instead, the Court draws a closer parallel to In re Interest of Joshua M. et al. where a methamphetamine dependent mother was incarcerated six times during the pendency of the termination proceedings. 256 Neb. 596 (1999). Further, that parent was frequently tardy to or missed visitation repeatedly and did not use opportunities for rehabilitation. Id. As a result, the Court affirmed termination to end the “limbo” imposed on the children by a parent unwilling to make a good faith effort to curb her drug addiction.


In the instant matter, the Court gives weight to Daniel’s account of trying to shield the children from their mother’s alcoholism, but notes each attempt as having been thwarted due to Angela’s commitment to habitual drinking in excess. Regardless of court sanctions, amount of supervision while with her children, large and small consequences, damage, injury, amount of help, treatment attempts, and interventions, Angela continues to drink and the children continue to show signs of trauma. It is also noted in the opinion that the children were observed at their best and showed signs of improvement when visitation with their mother ceased. This assessment is supported by the observations of the children’s therapist and comments made by the children themselves.


As a result, the Court of Appeals concludes that Daniel has established, by clear and convincing evidence, that Angela is an unfit parent by reason of her habitual use of alcohol, conduct which is seriously detrimental to the children’s health, morals, or well-being.


With regard to whether termination of parental rights is in the best interest of the children as consequence, the Court employs the legal standard contained in Kenneth C. v. Lacie H., which utilized a “best interests” analysis focused on the future well-being of the child. 286 Neb. 799 (2013). This in hand, the Court concluded that Angela’s alcoholism will likely continue into the future, as evidenced by repeated hospitalizations, encounters with law enforcement, failed treatments attempts, poor employment prospects, and little progress towards recovery. This assumption is further supported by the testimony supplied at the hearing from those that know her well. Thus, in spite of all efforts to protect the children from injury as a result of their mother’s alcoholism while maintaining her access to them, the totality of the narrative proves this not to be tenable while Angela continues to be involved with them in her current state. Termination is seen as a last resort, but a focus on the best future interests of the children dictates that termination of Angela’s parental rights is the correct course of action given the evidence presented, the standards set forth in § 43-247(2), and the applicable law cited.