In re Interest of Jay'Oni W. et al.

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In re Interest of Jay'Oni W. et al.

Caselaw No.
31 Neb. App. 302
Filed on
Tuesday, August 30, 2022


This is an appeal from the Separate Juvenile Court of Douglas County. Breyonna W. appeals the juvenile court’s order terminating her parental rights with respect to one of her minor children, Jasmine W. However, Jasmine is only one of three children involved in the underlying juvenile court proceedings, as Breyonna is also the biological mother of Jasmine’s two younger sisters, Ja’Niyah W., and Jay’Oni W. All three children resided with Breyonna until they were removed from her care after the family home was deemed unsuitable during a welfare check.

Thereafter, all three children were placed together in a kinship foster home, and despite Ja’Niyah’s being placed with her father for a period of time, all three children remained placed together as of the termination hearings. As far as the Court of Appeals is aware, all three children continue to reside together in a kinship foster home, and Breyonna’s parental rights remain intact with respect to Ja’Niyah and Jay’Oni. Thus, this case presents the rather unique circumstance of three siblings that have experienced more or less the same progression through the juvenile court system, yet only one of the three has so far been subjected to the termination of her mother’s parental rights.

The present case arose out of an incident in which Breyonna reportedly sent her mother a message threatening to kill Ja’Niyah.  In response, Breyonna’s mother called law enforcement to conduct a welfare check of the three children, and the responding officers observed the family home to be in an unsuitable condition. The State filed an ex parte motion for immediate temporary custody and a juvenile petition alleging that the three children came within the meaning of § 43-247(3)(a) in that they lacked proper parental care by reason of the fault or habits of Breyonna. The juvenile court granted the ex parte motion and ordered DHHS to take temporary custody of the children. Breyonna entered an admission to a portion of the juvenile petition in exchange for the State’s dismissal of the remaining counts. Specifically, Breyonna admitted that law enforcement officials observed the family home to be in a filthy, unwholesome condition placing said juveniles at risk of harm and that she failed to provide proper parental care, support and/or supervision for said juveniles.

As part of a dispositional plan, the court ordered Breyonna to cooperate with a variety of services to include: a medication evaluation, parenting assessment, family support services, agency supervised visitation, co-occurring evaluation, parent-child interactive therapy with Jay’Oni and Jasmine, psychological evaluation with a parenting assessment, psychiatric evaluation, maintain a stable source of income, maintain adequate housing, a domestic violence course, random urinalysis drug testing, and sign releases of information between her probation officer and St. Francis Ministries (the agency providing case management). As a result of the psychological evaluation, Breyonna was recommended to participate in trauma-based therapy, which the court added to the ordered services. As a result of the co-occurring evaluation, Breyonna was recommended to participate in outpatient treatment.

During the review stages of the case, the guardian ad litem for the children filed an ex parte motion to suspend visitation. The motion was based on an affidavit from a visitation and family support worker outlining concerns that Breyonna was unable to control her emotions during visits, repeatedly inspecting Ja’Niyah for marks on her body and in her vaginal region and demonstrating signs of being under the influence. The juvenile court granted the motion of the guardian ad litem and entered an ex parte order suspending visitation. Subsequently, the court entered an order finding that upon agreement of the parties, Breyonna would be allowed to have visitation with Jay’Oni, Ja’Niyah, and Jasmine in the form of virtual visitation. Visitation was set to occur once a week, with increased frequency at the discretion of the case manager. As of the first termination hearing, visitation had not increased beyond once a week, and visits continued to occur virtually.

Approximately one month later, the State filed a motion for termination of Breyonna’s parental rights with respect to Jay’Oni and Jasmine only. The motion alleged that Jay’Oni and Jasmine came within the meaning of § 43-292(2), (6), and (7). The motion did not identify any factual basis with respect to the allegations under § 43-292(2) and (7). With respect to the allegation under § 43-292(6), the State listed the court-ordered services that it believed Breyonna had not successfully completed.  The State thus alleged that terminating Breyonna’s parental rights with respect to Jay’Oni and Jasmine was in the best interests of the children. It was eventually revealed that the termination proceedings actually pertained to Jasmine alone, given that an appearance had been entered by Jay’Oni’s biological father.

Cheyenne Wilson, case manager for the family throughout the life of the case, provided testimony at the termination hearing. Wilson testified that her biggest concern was the appropriateness of Breyonna’s housing. At the time of the termination hearing, Breyonna continued to reside in the home from which the children were initially removed from and there was no indication that Breyonna had made progress toward establishing a home which was safe and suitable for the children. With regard to the court order that Breyonna maintain a stable source of income, Wilson testified that Breyonna’s employment was sporadic.

After completing an updated chemical dependency evaluation, Breyonna was recommended to participate in residential treatment. Breyonna arranged to participate in residential treatment, but was unsuccessfully discharged. With regard to supervised visitation, Wilson testified that due to the COVID-19 pandemic, the initial visits were entirely virtual. Wilson also testified that Breyonna was incarcerated on two different occasions during this case, and confirmed that Breyonna was not able to participate in any visits, virtual or otherwise, while incarcerated. Visits were eventually able to occur in person, but visitation workers reported to Wilson some difficult behaviors from Jasmine and Ja’Niyah during visits, adding that both Breyonna and the visitation workers had difficulty redirecting the children. Due to difficulties controlling all three children at the same time, visits were split such that Breyonna visited with Jasmine and Jay’Oni at one time and with Ja’Niyah at another time. Wilson further testified that, at some point, the visitation workers communicated additional concerns regarding consistency, quality of the visits, and conversations that were happening during visits.

A significant amount of time at the first termination hearing, and nearly the entirety of the second termination hearing, was spent discussing court-ordered drug testing and Breyonna’s compliance therewith. Breyonna was discharged from two drug testing agencies for lack of participation.

Regarding Jasmine’s progress during the case, Wilson testified that Jasmine was diagnosed with ADHD, and when Wilson first met her, Jasmine was very hyperactive and very difficult to have a conversation with. Wilson also pointed out that Jasmine was very rough with her younger sisters and that she appeared to have a lot of responsibility and knew a lot that kids her age are typically not responsible for. Throughout the case Jasmine made a lot of progress in being able to understand and verbalize things that she wants and that she needs. Wilson further testified that Jasmine become much more age appropriate with her siblings. Wilson ultimately testified to her opinion that it would be in Jasmine’s best interests for Breyonna’s parental rights to be terminated. With regard to Jasmine’s input, Wilson testified that Jasmine loves her mom, misses her mom, is very worried about her mom, and wants her mom to get help.

The juvenile court entered an order terminating Breyonna’s parental rights with respect to Jasmine only. The court found that the State had proved, by clear and convincing evidence, statutory bases for termination under § 43-292(2), (6), and (7) and that termination of Breyonna’s parental rights was in the best interests of Jasmine. With regard to the allegations under § 43-292(6), the court found that each was true by clear and convincing evidence, except the court dismissed allegations (1) and (6) above. The court thus terminated Breyonna’s parental rights with respect to Jasmine, and Breyonna brought this appeal.

Breyonna assigns that the juvenile court erred in terminating her parental rights because the State failed to prove by clear and convincing evidence that Jasmine was within the mean­ing of § 43-292(2), (6), and (7) and because the State failed to prove by clear and convincing evidence that termination was in the best interests of Jasmine.

Statutory Grounds for Termination

The State alleged a number of statutory grounds for ter­mination, including § 43-292(7), which allows for termination when the juvenile has been in an out-of-home placement for fifteen or more of the most recent twenty-two months. 43-292(7) operates mechanically and does not require the State to adduce evidence of any specific fault on the part of the par­ent. Any one of the bases for termination codified by § 43-292 can serve as a basis for termination of parental rights when coupled with evidence that termination is in the best interests of the children. In this case, the juvenile court found that Jasmine came within the meaning of § 43-292(7). Based on the Court of Appeals de novo review of the record, it also found clear and convincing evi­dence that Jasmine came within the meaning of § 43-292(7).

Best Interests.

Based on the Court’s de novo review of the record, it concluded the juvenile court did not err in finding clear and convinc­ing evidence that termination of Breyonna’s parental rights was in Jasmine’s best interests. The Court of Appeals arrived at this conclusion because the evidence regarding Breyonna’s continued drug use, lack of income, lack of suitable housing, and overall lack of progress toward reunification raises serious concerns about Breyonna’s parental fitness and her ability to rehabilitate her­self within a reasonable period of time. Additionally, Jasmine had made significant improvements since being removed from Breyonna’s care. When a parent is unable or unwilling to rehabilitate himself or herself within a reasonable period of time, the child’s best interests require termination of parental rights. Children cannot, and should not, be suspended in foster care or be made to await uncertain parental maturity.

Altogether, the record demonstrated clear and convincing evidence of present parental unfitness, and despite ample opportunity, Breyonna failed to take mean­ingful steps toward rehabilitating herself. Thus, the Court of Appeals affirmed the order of the juvenile court terminating Breyonna’s parental rights as to Jasmine.

As a cautionary note, the Court pointed out that the record in this case is lacking evidence that would have been helpful to the de novo review of Jasmine’s best interests. Aside from a single affidavit discussing two virtual visits, the record is devoid of evidence adduced directly from individuals who were actu­ally present for visits between Breyonna and the children. Wilson testified that she had never been present at any of the visits, and her testimony was limited to reiterating general­ized concerns reported to her from visitation workers. The Court’s ability to assess the nature of visits is further impacted by the absence of any documentary evidence such as periodic court reports or notes from visitation workers.

Moreover, while Wilson suggested that Breyonna was not adequately addressing her psychiatric needs, the record is inexplicably devoid of any evidence regarding Breyonna’s psychiatric diagnoses, prescription medications, or treatment goals. At oral argument, the State indicated that this was because Breyonna failed to sign releases of information such that Wilson was not able to obtain this information. However, the record refutes that claim. Wilson specifically testified to speaking directly with Breyonna’s psychiatrist and getting periodic updates on Breyonna’s compliance with appoint­ments. Wilson further testified that she never had an issue with Breyonna’s declining to sign a release of information in this case.

Perhaps most importantly, there was no testimony or other evidence regarding the impact that terminating Breyonna’s parental rights may or may not have on Jasmine, especially considering the fact that Breyonna’s parental rights remained intact with respect to Jasmine’s younger sisters who were both placed with Jasmine in the same foster home. The State failed to adduce evidence directly from many of the people most able to testify as to Jasmine’s present condition and future well-being. Rather, the State relied primarily on a single caseworker who testified that she saw Jasmine only once a month.

As the present case illustrates, evidence that a parent is presently unfit, when coupled with a demonstrated inability or unwillingness to rehabilitate oneself within a reasonable period of time, can supply the information necessary to deter­mine the best interests of the child. However, it must not be forgotten that the focus of a termination proceeding is the juvenile, not the parent. Thus, evidence of parental deficiencies should not be adduced to the exclusion of addi­tional evidence relevant to the present condition and future well-being of the child. Ultimately, the Court concluded that the State satisfied its burden of proof despite failing to adduce evidence that could have aided a de novo review.

For the foregoing reasons, the Court of Appeals affirmed the order of the juve­nile court terminating Breyonna’s parental rights to Jasmine.