In re Interest of Nicole M.

Caselaw Number
287 Neb. 685
Filed On

SUMMARY: Termination of the mother’s parental rights was proper where she physically and verbally abused the children, had mental health issues that she didn’t adequately address, lied about taking medication and could not maintain a period of stability. However, termination of the father’s parental rights was improper where he was not alleged of abuse, could adequately protect the children when he was aware of abuse and had minimum parenting and life abilities to adequately care for the children.

Nicole, DOB 10/04, and Sandra, DOB 1/06, were removed from the home of their parents, Tom and Brandy, on March 28, 2011, due to unsanitary conditions. The family had been involved in voluntary services after law enforcement involvement in July 2008. A 3a petition was filed on March 29, 2011, and the children were adjudicated on April 6. Further allegations were made about Brandy’s physical and verbal abuse of the children, including threatening to stab them while they slept. The children also revealed they were sexually assaulted by Brandy’s friend, unknowingly by Brandy. However, Brandy continued to expose the children to the offender after becoming aware of the abuse. Visitation was at first encouraged but there were soon reports of Brandy physically abusing the children during unsupervised visits. Both children experienced mental health issues, with Nicole having been diagnosed with PTSD and adjustment disorder, and expressed fear of Brandy. Brandy started therapy but stopped attending and didn’t start again until it was required by DHHS. Brandy completed psychological testing which concluded she had mood variability short of bipolar disorder and that medication was essential. The evaluation also found that Brandy had malicious tendencies and would use the children as a way to punish Tom. The therapist eventually learned that Brandy was not being honest and was lying about taking her medication and that she was resistant to accepting responsibility for what happened to the children. Tom attended counseling and had been diagnosed with adjustment disorder, likely caused by the children’s removal. Tom had below average/borderline IQ but was able to maintain a job, pay his bills, and perform daily living skills. Tom had a pattern of being the victim of his partner’s behaviors and had had difficulty standing up to Brandy and to leaving her even when it might mean losing parental rights. However, there were no allegations of abuse by Tom and Tom testified that he was able to protect the children when Brandy was lashing out. Tom was able to care for the children with family support help but lacked the ability to discipline. On January 16, 2013, the State filed a motion to terminate Tom’s and Brandy’s parental rights. After trial in March 2013, the court terminated their parental rights pursuant to N.R.S. 43-292(2), (5), (6), and (7). Tom and Brandy appealed.

The Nebraska Supreme Court affirmed as to Brandy and reversed as to Tom. The Supreme Court first discussed unfitness of a parent, noting that it 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 a child’s well-being.” In re Interest of Kendra M., 283 Neb. 1013, 1033-4, 814 N.W.2d 747 (2012). As to Brandy, the Supreme Court addressed the issue of unfitness and noted that Brandy had mental health issues she failed to address with medication, that she repeatedly physically and verbally abused the children, that she puts her needs ahead of the children’s and that she has failed to satisfy therapy goals or comply with her case plan. While she made minor progress prior to trial, her long history of instability establishes her unfitness. Similar evidence established that termination was in the children’s best interests. As to Tom, however, the Supreme Court rejected the finding that Tom did not protect his children from Brandy, noting that he would remove them from Brandy’s presence when she was verbally abusive to them and that he never witnessed any physical violence. The Supreme Court acknowledged that Tom has continued his relationship with Brandy but found that his case plan never required that he leave Brandy. The Supreme Court also acknowledged Tom’s lower IQ levels but found that he could maintain a living and function on a day-to-day basis and while not perfect, was not unfit as required for termination of parental rights.