*1 549 parties any the consent fraud or collusion or collusion of fraud was no evidence There decrees. trial, argued District in the or the issue raised nor was upon passed presented Questions not Court. appeal. considered will not be trial court the Powers N.W.2d 501 Chizek, 285 204 Neb. v. (1979). unnecessary holdings to consider it is of our
In view cross-appeal defendant of issues raised Company. Construction Hawkins judgment was correct District Court is affirmed.
Affirmed. Krivosha, C.J., in result. concurs participating J., on briefs. Clinton, years Cook, 18 re of a child under In Interest age. appellee, Nebraska, appellant. Cook, Yvonne N.W.2d [390] April 1981. No. 43388. Filed appellant. Steven Lefler for County Attorney, Douglas Knowles,
Donald L. appellee. Mark Ashford for
W. Krivosha, C.J., Boslaugh, McCown, Heard before JJ. Clinton, Brodkey, White, Hastings, J. Boslaugh, separate appeals from an order Cook County, Douglas Nebraska, terminat- court of ing over her child. *2 Joseph the natural Cook are Cook and Yvonne February 20,
parents 1973. who was born of a child August juvenile petition in court on the A was filed alleged amended, 1979,which, the child was 24, that lacking proper of sexual molesta- care because by petition manipulation The her father. tion and set out specific on had occurred incidents which alleged August 8, 1979, 22, 1977, and March numerous and those dates incidents had occurred between child from failed to remove the that Yvonne had and the environment tion these adjudica- by At the created the father. hearing 1979, 27, Yvonne admitted on November
allegations were true. by placed in care the child was foster petition After an was filed. on the date the court evidentiary hearing September 10, 1979, the de- on opposition of both was over the tention continued hearing adjudication Joseph. held An was Yvonne and rights November and the on Yvonne and January Joseph 29, were terminated person Joseph appeared in at the Yvonne and 1980. represented separate hearings counsel. and were represented ad litem. a The child was January Only appeals 29, the order of Yvonne from rights. terminating parental 1980, may parents terminated when Parental substantially continuously repeatedly have and give neglected child; refused to the child have necessary parental protection; action and such care Rev. Stat. of the child. Neb. the best interests (Reissue 1978). § 43-209 (cid:127) concerning dispute facts There is little or no shows that the sexual this case. The evidence father com- the child molestation or abuse of began approxi- walk, at about time she menced age, mately and continued until the time 18 months placed in molestation was foster care. The that she fondling, kissing, attempted sex, in- oral included masturbating presence tercourse, child. complained Protective Serv-
When Yvonne to Child August she knew that the molestation ices on years. going on for more than 2 She testified had been complained child to her in March 1977. concerning testified a third incident which Yvonne that the had occurred in 1979 and admitted complained After child had to her before March 1977. complaint by the child March 1977 Joseph confronted Protective and contacted Child suggested counseling. Approximately Services, which Joseph 1 month later admitted that he had been molesting months old the child since she was 18 or 19 sought counselingi^The counseling, however, con- only Joseph sisted of again one or two conferences. did not in *3 counseling seek until after the incident counseling apparent 1979. It was stop ineffective to the molestation and abuse. August
After the incident Yvonne refused cooperate police with the officers who contacted permission speak her and refused for the officers to with the child or for the child to be examined a physician. complaining The child at time was urinating. of irritation and discomfort while suggested bathing the condition was due to insufficient and soiled underwear.
The record shows that Yvonne was more interested preserving relationship Joseph with than in protecting the child. The fact that Yvonne claimed ignorance of but a few of the incidents that had oc- inability curred with demonstrated her to deal unwilling realities of the situation. She was to do anything remedy urge than the situation other Joseph counseling attempt to seek to be more Although “watchful” child. Yvonne and other children moved to her mother’s home after the August incident, she has not told her mother why placed the reason the child was in foster care. progressed The evidence shows that the child has very Although nightmares well foster care. living which she suffered while at home continued for appears satisfactory while, a adjustment. she now to have made a There is some indication in the record that Yvonne Joseph separated September and hearing At 1979.
on the motion for new trial on March 1980, counsel stated that Yvonne had commenced a proceeding. regard may dissolution have Without to what happened may happen proceeding, in that Joseph there is no assurance that will not return to the home at some future time. The other children proceeding. were not affected this hope The record indicates Yvonne would to reunite family. record, As we view the it was in the best interests parental rights parents of the child that the of both be judgment terminated. The is therefore affirmed.
Affirmed. Krivosha, C.J., dissenting. regret again I that must once dissent with the the
majority
concerning
of the court in this case
terminating parental rights.
matter of
IWhile
do
not for a moment minimize the seriousness of the
generally
matter,
that
case,
either
or in this
I believe
the court has resorted to means more drastic
necessary
than are
under the facts in this case.
terminating
Before an order of the
court
(Reissue
§
under Neb. Rev. Stat. 43-209
1978) may
upheld by
court,
the action taken
*4
supported by
the lower court must be
clear and con-
vincing
Wedige,
See,
evidence.
205 Neb.
(1980);
687,
No fact, all taken. As a matter action should be the visitation indicates that offered the case evidence rights be continued. of the mother should January signed report 1980, 16, Ann A dated Campion, officer; Tiedeman, John service Gladys litem; Haines, Services and Child Protective ad worker, evidence, into recommended and offered custody placed that, while the minor child be Department for continued the State of Public Welfare placement, nevertheless, mother, foster care the regular A with the child. continue to have report visitation County Douglas Welfare Admin- filed the January 23, 1980, and offered into istration dated evidence, likewise recommended that the mother rights continue to have of visitation with the child. report Neither recommended that
be terminated. report prepared Dr.
A dated Kenney, Com- K. J. center director for Immanuel munity Center, offered into Mental Health hearing January evidence at held on have been indicated the father and mother September obtaining outpatient counseling since “they progress.” 1979 and have made excellent goes report provide: Mr. Mrs. on further to “Both great resolving problem. Cook have made strides They recognize, present time, each at anger for Mr. Cook’s deviant behavior was his reason anger his Yvonne. This has been worked towards through wife satisfactorily are, the two of them Kenney’s very getting along present time, well.” Dr. my report “Therefore, recom- concludes as follows: living resumption would of their mendation couple, house, with their in their own a married program daughter, therapy and a continued *5 554 Dahlke, with us here at Dr. or with
established either Community Center, for at Health Mental Immanuel least program be carried If this should six months. you supply happy with here, then to we would be out further has made.” family progress the to the information as urged court not likewise The ad litem the mother. to terminate majority relies, extent, the fact that to some taking place, though mother, of what was aware the did the home the child from not remove herself and immediately. hoped might action would have that such
While we nevertheless, occurred, not, fail to must have we moderately recognize life. A educated the realities of support, children, no means of woman with small quickly place go no not remove herself from does family home for whatever reason. that, Moreover, when the evidence discloses episode apparently occurred, the mother con- first advised them of Child Protective Services and tacted what was taking place. point At that Child Protective herself did not recommend that she remove Services suggested home, but, rather, the child from the the entire family counseling. If the failure to seek justify negligent our as to remove the child was so why terminating rights, not Child her did problem suggest to the Protective Services see the apparently action, rather than woman she take such assure her in home could remain she counseling? sought if she sight of the fact that this entire
We must not lose light did, in because the mother matter came fact, true she should overlook and her for it is from the home. While remove the child sooner, should not have done it we did, fact, take such action the fact.that she police. report to the We now reward the matter necessary strength finally acquired having parental rights. terminating to act
555 do not believe that the evidence this case convincing clear and such a manner that she rights that the mother has acted
has, indeed, lost her child, or that the best interests of the under separated facts, from her the mother and two demand that she be my As I noted in dissent in brothers. p. Goodon, In re Interest ante N.W.2d options (1981): “The available to the terminating parental rights court, short of for the best many. child, interests of the Rev. are See Neb. Stat. (Reissue 1978).”Where, here, § 43-210 the evidence *6 sought indicates that the mother has and obtained counseling making progress, and is and the child has counseling making progress, had and is would have been inclined to follow the recommendations of the professionals urging and the ad litem delayed terminating and mother for case at least an additional 6 months
to see whether the mother and her child could not successfully have been reunited. Nebraska, appellee, appellant. Wostoupal, Mell T.
Filed 1981. No. 43529.