Summary:
This is an appeal from the Separate Juvenile Court of Douglas County. Al B. appeals the juvenile court’s order terminating his parental rights. He contends that the juvenile court erred in finding statutory grounds existed and that termination of his parental rights was in the minor child’s best interests. He also takes issue with the court’s determination that the case manager was an essential witness and not subject to the same sequestration as other witnesses. The Court of Appeals affirmed the juvenile court’s order terminating Al’s parental rights.
Al is the biological father of Gabriel B. Gabriel began living with Al after his mother died by suicide. Four years after Gabriel moved in with his father, the State filed a petition alleging that Gabriel came within the meaning of § 43-247(3)(a) in that Al was incarcerated at the time; had subjected Gabriel to inappropriate physical contact; had failed to provide proper parental care, support, and/or supervision; and had failed to provide safe, stable, and appropriate housing for Gabriel, placing him at risk for harm. On the same day the petition was filed, the State filed, and the court granted, an ex parte motion for immediate custody of Gabriel, to exclude the home of Al. DHHS took custody of Gabriel, and he was placed with his stepmother, Jessica A., and he remained with her throughout the life of the case. Al was not allowed any visitation or contact with Gabriel during the case.
Gabriel had been a state ward for over one year when the State filed a motion for termination of parental rights against Al, alleging that Gabriel came within the meaning of § 43-292(2), (6), and (9) and that termination was in Gabriel’s best interests. Trial on the motion for termination was held on multiple days. On the first day of trial, Al requested that all witnesses be sequestered. The State requested that Laura Johnson, Al and Gabriel’s case manager for over one year, be deemed an essential witness and allowed to remain in the courtroom. After hearing argument from both parties, the court found that Johnson was an essential witness.
The first witness to testify for the State was a licensed psychologist who conducted a forensic psychological evaluation and parenting risk assessment of Al. The psychologist testified that Al was superficially cooperative with the assessment and that there was a constant theme of defensiveness or underreporting in his responses. The psychologist also testified that Al had a strong perception that he was the victim in this case in that false allegations had been made against him and that his ex-wife and Gabriel were out to get him.
Based on his evaluation and all available information, Al was rated at a moderate risk to engage in future child maltreatment. This rating was based on several risk elevation factors, including Al’s relationship instability, his aggression, and abuse allegations. Al was diagnosed with major depressive disorder, requiring therapeutic attention and medication. Al was recommended to participate in therapy that included stress management and anger management.
Following the psychologist’s testimony, Al renewed his objection to allowing Johnson to be present in the courtroom as an essential witness. He argued that no evidence was offered during the State’s request to deem Johnson an essential witness. The court determined, based on its interpretation of § 27-615, that the State needed to “make a showing” that Johnson needed to hear the testimony of other witnesses in order to form her opinion regarding Gabriel’s best interests. The State then called Johnson to testify as to why she was an essential witness. Johnson testified that although she had an opinion regarding Gabriel’s best interests, additional information could either change or reinforce her opinion. She testified that she did not know what questions would be asked of witnesses or what answers they would give and that it was possible her opinion could change based on testimony during the proceeding.
The court ultimately overruled Al’s objection to allowing Johnson to remain in the courtroom, but only during the testimony of Gabriel’s therapist and Al’s therapist. Al then made a motion to exclude Johnson as a witness because the State did not make the required showing prior to the psychologist’s testimony and because Johnson had already heard the psychologist testify. The court overruled Al’s motion to exclude Johnson as a witness, and trial on the motion for termination continued.
Gabriel’s therapist testified that during their first session Gabriel informed her that his father had physically and verbally abused him. Gabriel disclosed that his father spanked him, hit him, choked him until he passed out, and held a gun to his head. Gabriel was diagnosed with chronic PTSD. His symptoms included nightmares, aggressive behavior, avoidance tendencies, and avoidance of talking about the trauma. The source of Gabriel’s trauma was the abuse by Al. During therapy, Gabriel was unable to identify any positive memories he had with his father. Gabriel told his therapist that he never wanted to see his father again and that he would not feel safe in his father’s care. He did not want supervised visitation or even visitation through videoconferencing or some other outlet. At trial Gabriel’s therapist testified that based on Gabriel’s feelings about his father, it was unknown how long it would take before he would feel safe or comfortable in his father’s care or custody.
Johnson, the case manager, testified about Al’s progress with his rehabilitation plan, specifically that he had completed the services that had been ordered by the court. Al was ordered to complete anger management class, which he did complete. Johnson testified that despite completing the class, she had not seen any discernible change in his behavior toward her or in general. She stated Al struggles to remain in a calm state when they meet and frequently raises his voice when talking to her, as well as clenching and unclenching his fists, which she sees as a sign of anger. She also testified that when he feels like he is not in control, he finds different ways to assert control. Johnson had also seen him get angry with his girlfriend. Johnson testified that she made efforts to meet with Al every month and that after a year of services, nothing has changed. She stated that he continues to see himself as a victim and has not taken responsibility for what he had put Gabriel through. She also testified that in her opinion termination of Al’s parental rights was in Gabriel’s best interests.
The juvenile court entered an order terminating Al’s parental rights on the basis that there was clear and convincing evidence that Gabriel was a minor child within the meaning of § 43-292(2), (6), and (9) and that termination of Al’s parental rights was in Gabriel’s best interests. Al appeals the order terminating his parental rights.
Al assigns that the juvenile court erred in (1) finding that the State proved by clear and convincing evidence that Gabriel was a minor child within the meaning of § 43-292(2), (6), and (9); (2) finding that the State proved by clear and convincing evidence that termination was in Gabriel’s best interests; and (3) allowing Johnson to remain present in the courtroom during the testimony of the testimony of the psychologist who conducted a forensic psychological evaluation and parenting risk assessment of Al.
Statutory Grounds
Al first assigns that the juvenile court erred when it found that statutory grounds existed to terminate his parental rights pursuant to § 43-292(2), (6), and (9). For a juvenile court to terminate parental rights under § 43-292, it must find that one or more of the statutory grounds listed in this section have been satisfied and that such termination is in the child’s best interests. The State must prove these facts by clear and convincing evidence. § 43-292(2) provides for termination of parental rights when “parents have substantially and continuously or repeatedly neglected and refused to give the juvenile or a sibling of the juvenile necessary parental care and protection.” Past neglect, along with facts relating to current family circumstances—which go to best interests—are all properly considered in a parental rights termination case under § 43-292(2). One need not have physical possession of a child to demonstrate the existence of neglect contemplated by § 43-292(2). A parent neglects a child by failing to put himself or herself in a position where the child can be placed in the parent’s care, in the same manner as a parent who improperly cares for a child in his or her care.
Al argues that the State failed to prove by clear and convincing evidence that he substantially and continuously neglected Gabriel or failed to provide him with necessary parental care and protection because he was not given the opportunity to improve his relationship with Gabriel or improve his parenting skills. He states that even though he was participating in court-ordered services, he was never allowed to have contact with Gabriel or participate in family therapy with him. The Court of Appeals conceded that the evidence showed Al was not allowed contact with Gabriel since his initial removal, but that ultimately, the evidence supported the juvenile court’s determination that Al neglected Gabriel within the meaning of § 43-292(2).
Shortly after Gabriel came to live with Al after his mother died, Al began subjecting Gabriel to verbal and physical abuse. Gabriel was 5 years old at the time. The verbal abuse included Al telling Gabriel he was “worthless” and a “piece of shit,” as well as blaming Gabriel for his mother’s death. The physical abuse included Al’s spanking, hitting, and kicking Gabriel, choking him until he passed out, and holding a gun to his head.
The fact that Al had no contact with Gabriel since his initial removal was a consequence of Al’s own actions during the time Gabriel was in his care. The abuse Gabriel endured by his father has had a traumatic and lasting impact on Gabriel. He has been diagnosed with chronic PTSD as a result of the abuse. He has nightmares, and he exhibits outbursts and aggressive behavior. He also mirrors some of his father’s behavior, such as “destroying” his bedroom. In therapy, Gabriel does not like to discuss his father or the abuse and is fearful of his father’s finding out about what he says. In his foster home, Gabriel gets upset and his behavior escalates when there is any talk about seeing his father. Gabriel regressed in the progress he had made due to the possibility of seeing his father in court. He has made it clear that he never wants to see his father again and would not feel safe in his care. Gabriel’s therapist testified it was unknown how long it would take before Gabriel would feel safe or comfortable in his father’s care. Further, his therapist testified about the negative effects of forcing a child to attend family therapy with a parent the child is afraid of. She testified that it can make things worse for the child and that the child could potentially hurt himself or others.
The evidence also showed that Al sees himself as a victim and failed to show empathy toward Gabriel regarding the pain and trauma the abuse has caused him. He does not understand how his actions have affected Gabriel. Further, the psychologist’s assessment showed that Al presents a moderate risk of future child maltreatment. Johnson did not believe that Al exhibited any behavioral changes even after completing rehabilitative services. By failing to internalize the rehabilitative treatment, the same safety risks that led to Gabriel’s removal are still present.
Based upon the Court of Appeal’s de novo review, it concluded that there was clear and convincing evidence that Al substantially and continuously neglected Gabriel or failed to provide him with necessary parental care and protection as required by § 43-292(2). Any one of the bases for termination of parental rights codified by § 43-292 can serve as a basis for the termination of parental rights when coupled with evidence that termination is in the best interests of the child. Accordingly, the Court did not need to determine whether termination of Al’s parental rights was proper pursuant to § 43-292(6) or (9).
Best Interests and Unfitness
Al next assigns that the juvenile court erred in finding that the State proved by clear and convincing evidence that termination of his parental rights was in Gabriel’s best interests. In addition to providing a statutory ground, the State must show that termination of parental rights is in the best interests of the child. A parent’s right to raise his or her child is constitutionally protected; so before a court may terminate parental rights, the State must show that the parent is unfit. There is a rebuttable presumption that the best interests of the child are served by having a relationship with his or her parent. Based on the idea that fit parents act in the best interests of their children, this presumption is overcome only when the State has proved that the parent is unfit.
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 caused, or probably will result in, detriment to the child’s well-being. In proceedings to terminate parental rights, the law does not require perfection of a parent; instead, courts should look for the parent’s continued improvement in parenting skills and a beneficial relationship between parent and child.
The Court of Appeals notes that Al participated in and completed court-ordered services in this case. While the Court commended Al for his effort, it concluded there was clear and convincing evidence that it is in Gabriel’s best interests to terminate Al’s parental rights. The case manager had not seen any change in Al’s behavior despite his participation in services. She testified that he struggled with controlling his anger, needs to feel in control, had a victim mentality, had no empathy for Gabriel, and had not processed how his actions and this case have negatively affected Gabriel. As a result, she did not believe he was capable of meeting Gabriel’s needs. In her opinion, the safety risks that were present when Gabriel was removed from Al’s care were still present. She testified that terminating Al’s parental rights was in Gabriel’s best interests.
Gabriel suffers from chronic PTSD as a result of the physical and verbal abuse by his father. He continues to be afraid of his father and does not want to ever see him again, let alone live with him. Gabriel regressed in therapy when he thought he might have to face his father in court. He also has no positive memories of his father, and there was no evidence of any beneficial relationship between them. There was evidence that forcing him to attend even family therapy with his father would negatively affect Gabriel. There is no way of knowing how long it would be, if ever, before Gabriel would be willing to have contact with his father and feel safe and comfortable with him. Accordingly, the Court of Appeals found there was clear and convincing evidence that it was in Gabriel’s best interests to terminate Al’s parental rights.
Essential Witness.
Al’s final assignment of error is that the juvenile court erred in allowing Johnson to remain present in the courtroom as an essential witness during the testimony of the psychologist. Both parties rely on § 27-615, which sets forth the rule regarding sequestering witnesses:
At the request of a party the judge shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and he may make the order on his own motion. This rule does not authorize exclusion of . . . (3) a person whose presence is shown by a party to be essential to the presentation of his cause.
Al argues that the juvenile court failed to require the State to present evidence prior to the psychologist’s testimony as to why Johnson was an essential witness. The State did not present such evidence until after the psychologist’s testimony, and when it did, there was no testimony as to why the psychologist’s testimony would aid Johnson in forming her best interests opinion. Further, Al argues that Johnson was not an essential witness because she had the opportunity to request information from the psychologist during the time she was case manager. In other words, she had another way to obtain information from the psychologist other than his testimony at trial
The Court of Appeals notes that the Nebraska Evidence Rules do not apply in cases involving the termination of parental rights. Instead, due process controls and requires that the State use fundamentally fair procedures before a court terminates parental rights. The concept of due process embodies the notion of fundamental fairness and defies precise definition. In deciding due process requirements in a particular case, we must weigh the interest of the parent, the interest of the State, and the risk of erroneous decision given the procedures used. Due process is flexible and calls for such procedural protections as the particular situation demands.
In relying on § 27-615 as a guidepost, the Court notes that the statute does not require that the witness have no other way to obtain the information needed except to be present in the courtroom. Further, § 27-615 does not require a party to present evidence in order to show that a witness is essential, as Al contends. The statute only requires a party to show that a witness’ presence is essential to the presentation of the party’s case. At the beginning of trial, the State requested that the court declare Johnson an essential witness. The court then asked the State to explain why Johnson was an essential witness. The State explained that Johnson would be relying on testimony from other witnesses to form her opinion on Gabriel’s best interests and that it was important for her to hear the testimony so she could give a fully informed opinion. Al’s counsel objected to the request. In response, the State further explained that Johnson was essential to the presentation of its case because the “overarching” determination of whether termination of parental rights is appropriate is whether or not it is in the best interests of the child and Johnson was going to provide that opinion to the court. The State argued it was important for Johnson to hear the testimony of other witnesses so she could make a fully informed opinion in order to present the best evidence to the court. The court determined that based on Johnson’s position as the case manager and the best interests opinion she would be providing, she was allowed to remain in the courtroom as an essential witness.
Johnson was asked by the State to provide an opinion about whether or not termination of Al’s parental rights to Gabriel was in his best interests, the ultimate issue before the court. A case worker relies on collateral information in forming an opinion about best interests. The evaluation of Al and subsequent testimony of the psychologist was the type of information that could impact Johnson’s best interests opinion. Further, the State made a showing prior to the psychologist’s testimony as to why Johnson was an essential witness. Accordingly, the Court of Appeals found that Al’s due process rights were not violated by Johnson’s remaining in the courtroom during the psychologist’s testimony. Al’s final assignment of error fails.
For the reasons stated above, the Court of Appeals affirmed the juvenile court’s order terminating Al’s parental rights.