Summary:
Samantha M. appeals the order of the county court for Cheyenne County, sitting as a juvenile court, terminating her parental rights to her daughter, Jessalina M. Samantha is the mother of Jessalina. Jose M. is Jessalina’s father. Jose was part of the juvenile proceedings, but made significant progress on his case plan and reunified with Jessalina. Because Jose is not part of this appeal, he will only be discussed as necessary.
Background
Jessalina was removed from Samantha’s care shortly after Jessalina’s birth. Hospital staff had been concerned about Samantha’s behaviors, which included yelling and screaming at staff; her initial refusal to sign a treatment order for Jessalina; and Samantha’s history of mental health issues. Additionally, Samantha previously had her parental rights terminated to her son, Noah C.
In September 2020, the State filed a petition in the county court for Lincoln County, sitting as a juvenile court, alleging that Jessalina was a child within the meaning of §43-247(3)(a). That same day, the juvenile court entered an “Order of Detention” giving temporary custody of Jessalina to DHHS. Jessalina was placed in foster care, where she remained until about January 2022, at which time she was placed with her father.
In September 2020, the juvenile court appointed counsel to represent Samantha and GAL for Jessalina. After a motion by the State noting Samantha’s history of mental health issues, the court also appointed a GAL for Samantha. In October 2020, Jessalina was adjudicated to be a child within the meaning of §43-247(3)(a) based on her father’s answer of “no contest” to the allegations in the petition. In January 2021, Samantha entered her “no contest” answer to the allegations in the petition, and Jessalina was once again adjudicated to be a child within the meaning of §43-247(3)(a).
Following a disposition hearing in February 2021, the juvenile court adopted the DHHS case plan. The case plan set forth three goals and numerous strategies to achieve those goals. The first goal was for Samantha to provide a safe and healthy environment for her child. The second goal was for Samantha to manage her mental health. The third goal was for Jessalina to have a safe and stable home provided for her where her physical and emotional needs are consistently met. The goals and strategies from the February 2021 case plan remained the same throughout the entirety of this case.
In April 2021, Samantha’s counsel filed a motion to withdraw, citing a break down in the attorney-client relationship. At a hearing in May, counsel stated that Samantha expressed a desire for different or more effective representation. Samantha’s GAL stated that Samantha was getting excellent counsel and that it would not be in Samantha’s best interests to allow counsel to withdraw. Following the hearing, the juvenile court denied counsel’s motion to withdraw, but it did appoint cocounsel to represent Samantha.
A review hearing was held in May 2021. Samantha objected to DHHS’ May court report and case plan, which included a concurrent plan for adoption. An evidentiary hearing was set for June. Before the evidentiary hearing was held, Jessalina’s GAL filed a motion to transfer the case to Cheyenne County. The GAL alleged that Cheyenne County was the more convenient forum. Samantha filed a motion to continue the hearing on the GAL’s motion to transfer. She claimed that she would be unduly prejudiced by having the motion heard prior to the previously scheduled hearing.
Following a hearing, the juvenile court, on its own motion, postponed the contested court report and case plan hearing and stated that the contested motion to transfer would be heard instead. At the hearing on the motion to transfer, the juvenile court stated that Jessalina’s GAL was excused from the hearing but was authorized to present evidence by affidavit. Exhibits were then received, and arguments were made. The juvenile court entered its order in July transferring the matter to Cheyenne County; it also deferred the contested review hearing on the May court report and case plan to Cheyenne County.
In August 2021, the county court for Cheyenne County, sitting as a juvenile court, set Samantha’s objection to the May court report and case plan for hearing. Prior to the hearing, Samantha’s court-appointed counsel in Cheyenne County filed a motion to withdraw, stating that she had been “fired” by Samantha. The juvenile court granted the motion and appointed new counsel the same day.
Following the hearing on Samantha’s objection to the May 2021 DHHS court report and case plan, the juvenile court entered an order modifying the May report “to eliminate Adoption as an alternative to reunification at this time” and approving the court report and case plan “as modified.” The goals and strategies for Samantha otherwise remained the same.
In October 2021, the juvenile court granted Samantha’s motion to hire an expert in psychology to assess whether her mental health needs rose to a level of disability that may require special accommodations; Dr. Gage Stermensky was to be the expert. In November, Jessalina’s GAL filed a motion to update Samantha’s psychological evaluation, noting that it had been a year since Samantha’s previous psychological evaluation. Following a hearing, the court granted the GAL’s motion and ordered Samantha to obtain an updated psychological evaluation by Dr. Stermensky. Samantha was also ordered to sign all psychological and medical releases.
In January 2022, the State and Jessalina’s GAL filed an emergency motion to suspend visitations with Samantha and Jessalina. The motion contained several allegations including the fact that during a visit, law enforcement was summoned due to Samantha’s behavior. Following a hearing, the juvenile court entered an order granting the motion to suspend visits and stating that no further in-person visitations would be provided until Samantha submitted to an evaluation by Dr. Stermensky and his report was filed with the court; pending the evaluation and receipt of the report, Samantha was to be provided video visitation with Jessalina.
In March 2022, the State and Jessalina’s GAL filed a complaint to terminate Samantha’s parental rights to Jessalina pursuant §43-292(2), (3), (5), (6), and (7).
Parental Termination Hearing
The parental termination hearing was held in July and August 2022. The State called several witnesses to testify, and numerous exhibits were received into evidence. Samantha did not testify, but two witnesses testified on her behalf.
Prior Parental Termination
Evidence was provided that Noah was removed from Samantha’s care in December 2017. Samantha was not able to make enough progress with her mental health and DHHS did not feel that she could provide a safe and emotionally stable environment for Noah. DHHS never knew exactly what Samantha was diagnosed with as Samantha would not sign releases and never completed requested psychological evaluations. She also did not complete a parenting capacity assessment. Samantha questioned anyone on her case and it got to the point where there was not a visitation provider who wanted to work with her. Samantha and Noah’s father (not Jose) ultimately had their parental rights terminated in August 2019.
September 2020 Removal of Jessalina
When Jessalina was born there were concerns about Samantha’s behavior at the hospital, as well as her mental health; the doctor who oversaw Samantha’s prenatal care and delivered Jessalina was concerned about Jessalina leaving the hospital with Samantha and thought Samantha needed a “psych eval.” Samantha was “dismissive like nothing’s wrong” and she accused nurses of lying on a few occasions.
Samantha cited domestic violence between Jose and her as the reason she had moved to North Platte. Samantha would not allow DHHS to do a walk-through of her home or provide her address because “she was very paranoid that somebody would get the address and give it to Jose.” Samantha “scored high” on a risk assessment tool and it did not seem like she had addressed concerns since Noah’s case the year prior.
October 2020 Through August 2022
Samantha was court-ordered to undergo a psychological evaluation. She completed an evaluation with “Dr. Kimzey, PhD.” in November 2020. Outpatient counseling was recommended, as well as a psychiatric medical consultation. The submitted exhibit contained only a portion of Dr. Kimzey’s report, as that was all that was provided to DHHS. DHHS did not believe that the information related to the psychological evaluation was comprehensive enough to be valid, and was concerned that all the information provided to Dr. Kimzey came solely from Samantha. Later in the case, Samantha was ordered to obtain an updated evaluation, but DHHS was unaware whether Samantha had not done so by the time of the termination hearing.
The DHHS case plan goals and strategies remained the same throughout the entirety of the case. According to exhibits received into evidence, DHHS provided numerous services to Samantha, including family support with two different agencies, supervised visitation with three different agencies, makeup visitation, “Zoom” visits, home visits, case management, team meetings, medical consultations, urgent needs assessment, counseling, psychological evaluations, hotel vouchers, gas vouchers, and transportation. Samantha did not utilize all the services provided to her, and it inhibited her ability to achieve reunification. Samantha had attended parenting classes early in the case.
DHHS tried to help Samantha with time management, provided her with a watch, talked to her about using “apps” on her phone, switched visitation times to be later in the day, and extended how late she could be for a visit. DHHS accommodated Samantha’s dog, which she said would indicate to her when she was going to have a seizure, as Samantha reported having epilepsy. DHHS accommodated Samantha with breaks to help with anxiety. Samantha was to attend visits as scheduled, communicate with family support if she was running late, and not have visits ended due to becoming upset, threatening others, or not meeting the needs of the child. Samantha’s progress was “minimal,” because she was not attending visits on a regular basis and communicating with workers was an issue. Samantha had not made sufficient progress on the goals in order to reunify with Jessalina.
Juvenile Court’s Decision
In a journal entry and order entered on August 29, 2022, the juvenile court found by clear and convincing evidence that statutory grounds for termination of Samantha’s parental rights existed pursuant to §43-292(2), (3), (5), (6), and (7). The court also found that Samantha was an unfit parent and that termination of her parental rights was in the child’s best interests. Accordingly, the court terminated Samantha’s parental rights to Jessalina.
Samantha assigns as follows: That in the county court for Lincoln County, (1) her constitutional rights were violated and the court erred when it transferred this juvenile case from its original jurisdiction to another jurisdiction, because the court denied her a meaningful opportunity to cross-examine witnesses when the GAL was excused from the hearing and because the court dismissed her court-appointed attorneys before a hearing or ruling on a previously scheduled contested hearing on her objection to a DHHS court report and case plan. That the county court for Cheyenne County erred (2) in finding that grounds for terminating her parental rights existed pursuant to §43-292(2), (3), (5), (6), and (7); and (3) in finding that she was unfit and that terminating her parental rights was in Jessalina’s best interests.
Analysis
1. Transfer to Cheyenne County
Samantha argues that her “Due Process and Constitutional rights were violated, and the trial court erred when the Lincoln County Court transferred this Juvenile case from its original jurisdiction.” Specifically, that “the court dismissed Samantha’s court appointed attorneys and denied Samantha’s meaningful opportunity to confront accusers or cross examine witnesses, before hearing or ruling on a previously scheduled contested hearing on Samantha’s Objection” to a DHHS court report and case plan.
(a) Principles of Law
§43-282 states in relevant part:
If a petition alleging a juvenile to be within the jurisdiction of the Nebraska Juvenile Code is filed in a county other than the county where the juvenile is presently living or domiciled, the court, at any time after adjudication and prior to final termination of jurisdiction, may transfer the proceedings to the county where the juvenile lives or is domiciled and the court having juvenile court jurisdiction therein shall thereafter have sole charge of such proceedings and full authority to enter any order it could have entered had the adjudication occurred therein.
(b) Procedural Background
Several months after Jessalina was adjudicated, her GAL filed a motion to transfer the case to Cheyenne County pursuant to §43-282. At the hearing on the motion to transfer, the juvenile court stated that although the strict rules of evidence did not apply and it was a discretionary matter for the court under §43-282, it would receive evidence. The court also stated that Jessalina’s GAL was excused from the hearing but was authorized to present evidence by affidavit; that affidavit was received into evidence without objection. The affidavit reiterated the reasons set forth in the GAL’s motion to transfer regarding the location of all relevant persons; that all visitations occurred outside of Lincoln County, with the majority occurring in Cheyenne County; Samantha had a recently expired domestic abuse protection order against Jose in Cheyenne County; Samantha and Jose had a divorce proceeding pending in Cheyenne County; the May 4, 2021, DHHS court report set forth the history of the case and showed the lack of meaningful contact with Lincoln County; and Jose had progressed significantly toward reunification with Jessalina as compared to Samantha and “placement should occur with him as the case closes down.” Numerous exhibits were attached to the affidavit.
A report from Samantha’s GAL was also received into evidence. This report stated that Samantha lived in North Platte, where she had moved while pregnant with Jessalina because Jose was physically abusive; her therapist and doctors were in North Platte; she was already required to travel for visits with Jessalina, and such travel interfered with Samantha’s mental health and her ability to look for employment; and the travel created obstacles to her ability to parent. Also received into evidence was a March 18, 2021, letter from Samantha’s therapist recommending that Samantha’s visitations be held outside of Sidney because of trauma Samantha experienced there; the trauma led to a diagnosis of post-traumatic stress disorder, and putting Samantha near the place her trauma occurred was not in her best interests. A visitation schedule showed that Samantha was scheduled to have visits in Ogallala and North Platte. Upon inquiry by the juvenile court, Samantha’s counsel confirmed that none of Samantha’s visits were occurring in Sidney.
The State was in favor of a transfer to Sidney because in Sidney they have “a lengthy background” with Samantha and terminated her parental rights previously, witnesses testifying on behalf of the State would primarily be in the Sidney area if there was a parental termination, Jessalina had been in Sidney the “entire time” except for a few days, and Jessalina’s father was in Sidney. DHHS concurred and also requested that the case be transferred to Cheyenne County. DHHS noted that the case manager and supervisor for the case would remain the same, so there would not be any interruption in case management. Jose’s counsel stated that Jose agreed with the transfer.
Samantha’s GAL argued that it appeared that the reason for seeking a transfer was to immediately file for a termination of Samantha’s parental rights. Samantha’s attorney was “concerned about the timing of this being solely an effort to get this somewhere where someone will do something to terminate Samantha’s rights.” Counsel argued that Samantha’s caseworker, other providers, and her appointed attorneys that she had for 8 months would change if the case were transferred to Cheyenne County.
The juvenile court entered its order on July 2, 2021, transferring the matter to Cheyenne County. The court noted that Jessalina had lived in Cheyenne County since September 2020 and that the proceedings had transitioned past the adjudication phase for both parents. All parties except Samantha “have joined in or agreed to the GAL’s request to transfer jurisdiction,” and the GAL’s affidavit “points out that the transfer would be in the best interest of the minor for a variety of reasons.” The court stated, “It should be noted that if a transfer would take place, virtually no interruption of services will occur, nor will the mother’s visitation be disrupted.” The court did “not disagree that the mother suffers from serious mental health issues and that special care must be taken if a transfer were granted to accommodate her needs”; “however, the issue isn’t whether the transfer of this Court’s jurisdiction is in the best interest of the mother but the best interest of the child.” The court said that Samantha’s concerns could be accommodated by virtual court appearances if medically necessary and continued visitations outside of Sidney. The court also deferred the contested review hearing on the court report and case plan.
(c) Transfer Was Proper
Initially, Samantha claimed that “because the trial court excused Jessalina’s GAL from the transfer hearing, Samantha could not confront her accuser.” However, at the transfer hearing, Samantha neither objected to the GAL being excused nor the receipt of the GAL’s affidavit into evidence; she therefore waived any argument regarding her right to confront the GAL. And regardless, Samantha’s GAL, as well as Samantha’s attorney, made numerous arguments to counter the points made by Jessalina’s GAL in support of transferring the case.
Samantha also contends that the transfer was prejudicial to her because it caused a delay in the contested hearing regarding DHHS’ May 4, 2021, court report and case plan. However, Samantha continued to be provided with services and visitation until the contested hearing was held in Cheyenne County in September 2021. At the hearing, Samantha’s lawyer asked the court not to adopt the May 4 plan and to have DHHS rewrite the case plan to leave out the adoption language.
Samantha’s GAL also said the “adoption” language (concurrent plan) should be redacted. Jessalina’s GAL asked the court to adopt the plan, but understood the plan was now 4 months old and needed an update, and suggested they come back in 30 days. The State said it was “not entirely sure what the objection was” other than the concurrent plan of adoption. Following the hearing, the juvenile court modified the DHHS court report and case plan “to eliminate Adoption as an alternative to reunification at this time,” and approved the court report and case plan “as modified.”
It appears that Samantha’s objection to the case plan dated May 4, 2021, was the language concerning an alternative plan of adoption, and that language was “eliminated” by the juvenile court as requested. The May 4 DHHS case plan contained identical case plan goals and strategies for Samantha as appeared in the February 17 plan; the only difference was that the May plan contained updates on Samantha’s progress. Additionally, the subsequent case plan dated November 2, 2021, was approved by the court on November 30 over Samantha’s objections. The November 2 plan once again contained identical case plan goals and strategies for Samantha as appeared in the previous plans, with the only difference being updated progress notes. Given the foregoing, the Nebraska Court of Appeals failed to see how Samantha’s rights were violated or how she was prejudiced by the transfer of the case to Cheyenne County. Thus, the Court found no error in the juvenile court’s decision to transfer the case.
2. Statutory Grounds for Termination
The State and Jessalina’s GAL sought to terminate Samantha’s parental rights to Jessalina under §43-292(2), (3), (5), (6), and (7). The juvenile court found that all five of those grounds existed by clear and convincing evidence.
§43-292(7) allows for termination when “the juvenile has been in an out-of-home placement for fifteen or more months of the most recent twenty-two months.” By the plain and ordinary meaning of the language in §43-292(7), there are no exceptions to the condition of 15 out of 22 months’ out-of-home placement. 43-292(7) operates mechanically and, unlike the other subsections of the statute, does not require the State to adduce evidence of any specific fault on the part of a parent. In other words, if the period of 15 out of 22 months is met, § 43-292(7) is met.
§43-292(7) does not specifically provide a triggering event for when the 22-month look-back period should commence. Compare §43-292(1) (termination of parental rights allowed when parents have abandoned juvenile for 6 months or more immediately prior to filing of petition). Notably, however, to terminate parental rights under §43-292(7), it must be alleged in the petition or motion to terminate parental rights that the juvenile has been in an out-of-home placement for 15 or more months of the most recent 22 months. Thus, the logical conclusion is that the filing of the petition, supplemental petition, or motion to terminate parental rights is the triggering event for the 22-month look-back period described in §43-292(7). The Nebraska Supreme Court has also used the filing date of the petition when considering §43-292(7).
Jessalina was removed from Samantha’s care and custody on September 10, 2020 and Jessalina never returned to Samantha’s home. Jessalina was placed with her father on January 10, 2022. Assuming without deciding that the time Jessalina was placed with her father did not count as an out-of-home placement for purposes of §43-292(7), Jessalina had been in an out-of-home placement for 16 months from September 10, 2020, until January 10, 2022. The “complaint” to terminate Samantha’s parental rights was filed on March 25, 2022. Therefore, the 22-month look-back period would run from May 25, 2020, to March 25, 2022, which includes the 16 months of out-of-home placement from the time of Jessalina’s removal until she was placed with her father. Further, even when looking back at the most recent 22 months preceding the July 20, 2022, commencement of the parental termination hearing (September 20, 2020, to July 20, 2022), Jessalina had been in an out-of-home placement for 15 of those 22 months as of December 20, 2021.
The State has shown clearly and convincingly that §43-292(7) exists as a statutory basis for terminating the parental rights of Samantha. And since any one of the bases for termination codified in §43-292 can serve as the basis for termination, the Court need not consider the sufficiency of the evidence concerning any other statutory basis for termination.
3. Best Interests and Unfitness
Under §43-292, once the State shows that statutory grounds for termination of parental rights exist, the State must then show that termination is in the best interests of the child. A child’s best interests are presumed to be served by having a relationship with his or her parent. This presumption is overcome only when the State has proved that the parent is unfit. Although the term “unfitness” is not expressly stated in §43-292, the Nebraska Supreme Court has said that it derives from the fault and neglect subsections of that statute and from an assessment of the child’s best interests. 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 has caused, or probably will result in, detriment to a child’s well-being. The best interests analysis and the parental fitness analysis are separate inquiries, but each examines essentially the same underlying facts as the other.
Notably, the same issues that were present in the previous case with Noah were again present here in that Samantha failed to address her mental health issues and failed to make progress on case plans. In the current case, DHHS provided numerous services to Samantha, including family support with two different agencies, supervised visitation with three different agencies, makeup visitation, “Zoom” visits, home visits, case management, team meetings, hotel vouchers, gas vouchers, transportation, and assistance with time management; she failed to utilize all of the services provided to her. Additionally, Samantha failed to sign releases for DHHS to access counseling and medical records, DHHS was only provided a partial copy of Dr. Kimzey’s evaluation, and Samantha failed to complete an updated evaluation; all of these things inhibited DHHS’ ability to help Samantha. Samantha’s failure to utilize or engage in services, and her failure or inability to work with the providers who were trying to help her, inhibited her ability to reunify with Jessalina.
While Samantha’s visits with Jessalina were generally good when they occurred, they did not occur consistently. She even missed visits that were to occur in North Platte and would not have required her to travel. And Samantha never progressed beyond supervised visitation. Jessalina had been out of Samantha’s care for 22 months at the time the termination hearing commenced in July 2022. Samantha had not seen Jessalina in person since January, and from February to August, they only had three 15-minute video visits scheduled each week, because Samantha had not obtained an updated psychological evaluation. Samantha missed many of the video visits, as described previously.
Children cannot, and should not, be suspended in foster care or be made to await uncertain parental maturity. And where a parent is unable or unwilling to rehabilitate himself or herself within a reasonable time, the best interests of the child require termination of the parental rights. The State proved that Samantha was unfit. There is clear and convincing evidence that it is in Jessalina’s best interests to terminate Samantha’s parental rights.
Conclusion
For the reasons recited above, the Court of Appeals affirms the order of the juvenile court terminating Samantha’s parental rights to Jessalina