*1
209
Marteney
172,
State,
v.
210 Neb.
The defendant also contends that his sentence was statutory penalty degree excessive. for first imprisonment sexual assault for not less than 1 years. nor more than 50 The defendant was sen- years’ to not tenced prisonment. less than 6 nor more than 10 im- previous The defendant had a sexual mentally record, assault was found to be a treatable offender, disordered sex and the sentence was well statutory range. within There was no abuse of discretion. judgment of the District Court is affirmed.
Affirmed.
JJ.,
White concur in the result.
Caporale,
Hastings.
In re
Interest
Nebraska,
appellee,
State
v.
appellants.
Hastings,
Robert
Thomas F. Dowd of Dowd & Robert. appellant Cunningham, Dawn.
Deborah County Attorney, Douglas Knowles, Donald L. appellee. Ashford, Mark W. Krivosha, C.J., before
Heard McCown, Boslaugh, JJ. Hastings, Caporale, Clinton, White, J. Boslaugh, Hastings, parents *2 Hastings and Robert a Dawn May appeal boy 7, 1978, from an order of the born juvenile terminating parental separate their court rights to their child. appear
Reports in the record show that the placed “po- been in foster home after a child had pick-up.” child, The who at that time was lice less year University old, had been taken to the than 1 Center because he had been Medical Nebraska time the “left side of his face At that was beaten. eye and bruised. His left was swollen com- swollen eye bloody.” pletely of the closed and the white was front tooth was knocked out and his His “left was cut mouth bleeding and swollen. He was also from the gums.” juvenile April petition 27, in the on
A filed court among things, alleged, 1979, other that the child had suffering injuries indicating observed from been physically petition The he had abused. appropriate prayed orders for the care and cus- tody be and of the child made the appellants hearing terminated. At a May parents appeared 22, 1979, the at which on by parents counsel, person the admitted the al- legations allega- Other similar referred to above. referring previous occasions, to four tions indi- cating neglect, by abuse and were dismissed the county attorney. juvenile court continued Douglas temporary custody County of the child Services. Social Hastings to been admitted
Dawn had Nebraska apparently Psychiatric fering 1978, Institute on June suf- way schizophrenia. from On the hos- jump attempted pital, had she out a vehicle holding moving per baby 30 miles hour while August 10, 1978, her arms. She was released on but August 13, readmitted mission, on 1978. Prior to the read- tumbling the father discovered Dawn baby dropping in her arms and almost him. She day transferred to care on October hospitalized has not been date, full time since that by but remains under commitment the board of mental health.
Following disposition hearing July 26, on juvenile “comply court ordered the plan designed with a to eliminate the conditions leading findings made in this matter.” plan required therapy established the court Psychiatric at the Nebraska Insti- conjoint therapy tute; Hastings; for Robert attend- Anonymous; cooperation ance Parents Douglas County the court and Social Services. February
After a review juvenile court ordered the to continue mar- riage counseling through *3 Psychiatric the Nebraska Institute; to continue to attend the Positive Par- enting group and become involved in the child de- velopment by class offered the American Red regular Cross; maintain child; visitation with the employment training; pay maintain or vocational support by child as court; ordered the maintain housing child; clean themselves and the and con- cooperate tinue with the welfare authorities. hearing May 28, 1980,
After review on visitation parents per the home of the in for 3 hours week was provision weekly authorized, overnight with a previously proved if the visitation visits authorized satisfactory. to be September 5, 1980,
On extended visitation not ex- ceeding days 3 at a time was authorized. The court ordered that also observation of interaction between parents by development child and the the a child arranged. specialist be hearing A further review 10, 1980, held on November was and visitation in the Monday morning Friday parents’ until home from morning was scheduled The matter authorized. was again in months. for review guardian January 1981, 30, motion of the on the On juvenile suspended child, the court litem for the ad permitted parents, but in the home visitation rights” “ordinary the father to con- visitation motion, on this counsel Prior tinue. permitted parents represented was both had who withdraw for the mother. as counsel in the home of the visitation record shows that The proved to be dis- the mother with natural the reports were received evi- The astrous. reports hearing, together received at this dence hearings, preceding the demonstrated the at evidence indicated had deteriorated. The situation neglected visi- had been abused and child parents’ stated to the in the home. father tation child to be it unsafe for the that was workers social mother. The had not home with the at alone attended by parenting as ordered all of the sessions very progress they court, little had made but necessary understanding developing skills for the child. able to care guardian reports by litem, dated ad Jan- Three January January 27, 1981, uary were re- hearing. 30, 1981, in evidence at ceived present guardian litem, at the hear- ad who The ing, reports based on information were stated gathered firsthand. had report January concerned confer- January the home of the foster
ence guardian parents, ad litem and attended Elise Wagoner, the foster care caseworker. This part: parents report “The foster stated *4 child] still comes home after extended visitations parents cranky and his natural tired and hun- gry. He has on some occasions returned home with bruises. have never admitted and cuts physical any The foster contact. intentional harmful repeats pro- [the child] further state derogatory language that he comments and fane parents. Further, home of his natural at the hears period extended, very poor of visitation has been that since to the foster home with returns deportment times, uncontrollable and is almost day longer or to return him to the that it takes a and reasonable discipline that the foster have relationship [the child] since their to instill in tried began.” three-page report report to this was a Attached detailing problems parents, encoun- the foster par- the child had made visitations in the after tered 14, 1980, home between November ents’ 5, Following visitations, the child these would parents dirty returned to the foster and fre- be cranky, quently tired, ill. The child would day very to control for the first or two difficult after a visitation. physical abuse these
Evidence visita- puncture consisted of marks on his face tions right right upper stomach, knee, on his bruises eye. thigh, right and under his After a visitation up head, ‘‘hold his hands to his as if would child get doing expecting hit in the head” after some- wrong. increasing thing He exhibited resistance to being parents’ taken to his home for the visitations. January detailed result meeting January at the home of of a According of the child’s father. mother this presence report, the father stated guardian litem, ad the Child Protective Services caseworker, and his mother that ‘‘he wanted he and child never have the back and that it dangerous to be there when he is not properly care for Dawn does not him. He because rarely, ever, that she if left the house without said (Bob); keeps drapes him that she shades *5 very day long all and exercises little disci- drawn except pline excessively [the child] over when she is angry sleeps or irritated with him. He said she alot during day, leaving [the child] [sic] unattended forcing sl.eep stays up or him to as well. She until nightly watching a.m., between 2:00 and 4:00 televi- responding way in a he sion and is not Bob thinks a wife should. prepared [the
“He said the meals himself and single child] are not well balanced but are item rarely meals. She fixes meals which forces Bob to evening prepare meal and most breakfasts part he not feel does should his duties on which regular basis. gets exceptionally “He related that Dawn irritated language denouncing [the child]; uses with foul very control him and little over him. Dawn has many apparently stated on occasions that she put up she did not have to with Bob at all wished (These problem. [the child] was an unbearable not exact words but is an accurate was are account- said). ing of what Hastings not “Mr. does intend to continue the mar- riage capable properly and believes Dawn is not caring [the child]. He understands family having disciplinary problems foster serious recognizes goes child] [the child] with family, occasions, to the foster back some not hungry clean, and tired. He believes that it is not in [the best interests to even let the to be returned any home for kind of visitation. requested meeting up “Bob be set as soon Judge Moylan per- possible him, with to relate to as sonally, what has said us . . . .” January 27, 1981, stated as follows: Muehling date received a call from Joan “On this [the child] she when related that came parents, visitation the natural- back from she ‘Mommy-Dawn slapped [sic] He me.’ also said spanked said that Dawn had him. He rubbed be- his indicating it hind that was tender and sore.
“Upon removing his im- trousers Joan saw the print buttock, of a hand on the on the left She side. picture yet had taken a said she it it was but developed. undressing sleep, [the child] Joan
“When removing belt, she was his as became very belt; animated and afraid of the and asked that spanked. Wagoner he not be Joan called Elise *6 report Wagoner the incident but Elise was out of the message sick, office, but a was left.
“Further, Joan relates last that week during was sick the time he was with his natural symptoms symptoms. mother. He had cold and flu Hastings brought [the child] Dawn When foster erly back to the parents, prop- his hair was and wet he was not prevailing clothed for the weather.” complicated by The situation was further a deteri- relationship in the oration themselves. between the Their conduct toward each other was by physical characterized verbal and violence and considering the father divorce. guardian litem,
A of the ad received at the hearing on November described some of the conduct of child’s in their home. The report, telephone which was based on a on interview neighbor parents, 7, 1980, November “Pam told me that did stated: she not wish to be- captioned in the come a witness above matter and get necessary would medical if excuse to avoid having testify. say did, however, to She that time the entire they that Bob and Dawn her, lived above constantly fighting verbally were —both they physically. always She stated that had used extremely language foul directed at each other and many screaming there were times when the became body against intense and the so sounds of contact floor walls and that she not take it could and had to sought medical that she leave. She stated further caused the an- for a condition attention nervous problem and that her had tics above described diagnosed thereby. to be She caused fact actually had leave because that she town stated personally threatened her with Bob Dawn had talking appointed person- physical harm for court relating to herein. nel the matter involved She Bob after that when she returned Dawn stated away she much had moved that became better al- immediately. most very long had one stated that she at least
“She Hastings early year with Bob conversation 1980, staying time he in her at which confided his fear of knowledge marriage
in the and his that it is stay [the child] to such an environ- unsafe help hearing ment. She could of over content many arguments between Bob and Dawn. telling many on overheard Bob She occasions her; woman; he would leave he had another any longer. her couldn’t stand Pam Wil- arguments lert these and similar states words up including heard to and the date on were Bob and present Dawn moved their home.’’ pa- final At the March *7 rights parents of rental both were terminated. A report four-page officer, the of court service re- hearing, develop- at this summarized ceived April in the ments case since and contained following conclusion and recommendation: Although April 27, “This case was filed on services have been made numerous available to Mr. Hastings, changed. the situation has not and Mrs. events home Recent extended visits have danger [the child] in is still in shown his natural ability home and further that the to improved. for their child has not care Further evi- unchanged clearly this of was dence situation indi- during my conversation Mrs. on cated with totally 6, 1981, at which time March 'she denied that any [the child] there were marks or bruises on when left on last the home extended weekend visit of 24th and 25th. twenty-
“[The child] has in care foster years two months is two a and and half old. It is ex- tremely permanent important plans be made given opportunity [the child] and he is to safe, live a and secure stable environment. Therefore it is this Service Officer’s recommenda- tion that the ings and Bob Hast- Dawn over be terminated.” worker, A Child Protective Services February hearing, dated received this part: stated “Child Protective Services has Dawn, contact maintained with Robert and purpose supervising the weekend arranged place My visits on foster care. visits took 11/6/80, 11/29/80, 12/4/80, 12/6/80, 12/19/80, 1/3/81, 1/10/81, and 1/23/81 1/24/81. “During these visits found in- Dawn’s behavior appropriate interacting myself. when with Some examples leaving going are her the room ahd to take nap, playing continuous with the her television willing On all visits set. Dawn to talk with regards any problems may having to me with than she rarely [the child]. spoke with me other response question. a direct Dawn’s re- sponses your ‘fine’, either were ‘it’s none business pertain it doesn’t order’, because the court or T my attorney’. have to talk to will
“According everything Robert, was not fine they having marriage problems were still serious problems [the child]. some with Robert ex- plained to on 1/10, me visit it was hard trying problems to talk with me about home their privately. Dawn and wanted to talk me around arranged 1/24/81, he for me to meet with him On present mother, Gunn, Mrs. at her home. Also his *8 218 Guardian-ad-litem, Trustin. Robert Mark
was the changed nothing has between at this visit stated They having still serious him Dawn. were preparing problems a di- he was marital vorce. any change in in re- He had not seen her Dawn responsibilities gard or mother. Ex- as a wife to 1) amples preparing meals, balanced are: Her evening prepare forces Robert which meals, shouldn’t the breakfast which feels most of 2) rarely regular responsibility; Dawn will be his keeps she the house him and leave without 3) day; sleeps drapes and shades drawn all Dawn mostly during day, leaving [the child] unat- sleep forcing him to also or also. Robert tended very gets this Dawn irritated with visit that stated during child] [the the weekend visits. She uses foul very language [the and has little control over child’s] like she behavior. She makes statements put up Robert, [the or she didn’t have wishes just problem. During visit, child] this was Mrs. happened an incident on Decem- related Gunn signed by letter See attached 1980. Mrs. ber (The letter referred to and attached to the Gunn.” an incident which the mother related f......kid.”) continually “you referred child as court aware the abuse ‘‘The supervision led Dawn’s visits with telephone child]. 2/10/81, On [the had a conver- Hastings regarding with Robert the incident sation Robert the weekend of 23rd. stated that on on Saturday Sunday p.m., or about 4:30 hit ‘rear’ with her hand his because he living eat. that he in the He said room wouldn’t happened. watching T.V. when the incident Child Protective Services staff been in- has ‘‘The tensively family involved with since July [The child] been in foster care (22 months). April of This 1979 worker has since August family with this since involved *9 months). (18 been made have services Numerous improving Hastings them in to aid available parenting have shown events skills. Recent their that danger child] in his natural
[the still recognizes Hastings the situ- care. Mr. mother’s environment to a safe has failed establish but ation plans to made child]. need be [the Permanent possible [the child’s] I’m behalf. as as soon recommending child] [the in foster care remain parental rights recommending be therefore permanent can be es- situation that a terminated so for this child.” tablished report Services the Child Protective
A later any face-to-face ‘‘I have not had stated: worker January Hastings 30, 1981, with the since contact [the child] was sus- Dawn’s visitation with when pended. February attempted on A home visit was separate 19, had two 1981 without success. I’ve phone Hastings. both Dawn and Robert conversations with (February 10th, three different occasions ‘‘On 1981) February February Tay- 17th, 27, Dr. Ann myself attempted Trustin, lor, to have a Mark Hastings. Robert Robert never conference up any appointments. of the scheduled showed attempts [the has made no visit with Robert January child] on since the ‘‘My the recommendations remain same as stated my prior report February to the court dated 1981.” worker, of the foster care received at hearing, following made recommendation:
this twenty-two child] ‘‘[The been in foster care for placement, Child Since his Protective months. attempted Services, court and foster care have parenting them in their to aid with his work including However, skills, visits. after weekend when re- weekend ap- marks, it would and other with bruises turned pear any, positive changes few, if have been years [the child] made. As is now two and a half important permanent plans old, it is be made given opportunity him for in and that he be to live safe, Therefore, stable environment. recom- [the child] mend that remain foster care and that of Robert and Dawn may stable, terminated so that have a se- and safe environment.” cure reports psychiatrist, of the child received at hearing, significant this indicated child exhibited problems, “poor behavioral showed the effects of disruptive past socialization and care” years, therapy. required and now The letter Judge Moylan, February dated stated in *10 part: my “At this time recommendations would be: 1) attempt get relinquish pa- To to the father to his rights [the child], [the on rental which would allow 2) adopted. child] to be To continue to work with child]. [The child] [the of shows a lot of effects disruptive poor past socialization and care over years, two whether he is returned to the going care, [the child] remains in or foster is to play therpay help remedy [sic] some need to these problems. report The foster mother does a lot of the 3) disruptive [the behavior in their home. To allow child] to have a stable environment. At this time I significant changes that think Dawn should show on stay long [the child] her own allow in term any given [the care before foster consideration be being child] returned to her.” guardian The letter of March ad regard stated as follows: litem “This letter is in hope you get child]. proper [the I that will it to the person. [The my child] was evaluated in office along regards with his in to visitation and rights. of I termination As have worked with child], there are I several concerns have. He is con- [the child] put chaos fused. that has couple years through showing up in the last of is significant problems [the child]. behavioral with I [the child] from feel could benefit some indi- coordinating therapy seeing this with vidual family. [the child] feel foster do some in- ways relating appropriate peo- to adults and other ple. help inappropriate with He does need some his soiling pants upset. behaviors like his when anybody. [The does not trust “Diagnosis: aggressive Undersocialized reaction of childhood.
“My [the child] recommendations would be in- therapy through we work dividual until can some adjustments. behavioral Even if the the terminated therapy.” are parents, with the should have guardian litem, ad received at hearing, part: meetings stated this “Three in the Taylor, psychiatrist, Ann office of were scheduled Kathy Hastings. Jones and Bob Bob with appear any although occasion, on did he had re- attorney notice and his had ceived been alerted. spoke Muehling,
“I this date Mrs. foster January She mother. advises since suspended when the Court date visita- Hastings, mother, tion has havior and natural there improvement [the child’s]
been marked be- general emotional state. She stated prior time of the last visitation since to the hear- ing experienced 30, 1981, [the child] had nightmares nightly almost basis which lasted *11 approximately nightmares March until directly [the child’s] fear relate that he would be pinched or Muehling with struck a belt. Mrs. said she, occasions, on these [the that had to comfort stay child] him and with most of the rest of each Muehling night. trying Mrs. said that she has been feeling [the a child]; to reinforce more secure that pinch her she and husband would never or strike 222 recently he knows her that child] told [The
him. him, it was Dawn who that not hurt that she would pinched him. [the child] does what he relates that further
“She longer regularly relieves himself no more is told in his nearly Muehling language [sic] clothes, fowl does not use suspended. Mrs. much since visitation as suggested Taylor that Ann who with talked therapy begin her treatments with child] some [the training. proper socialization Muehling says [the child] does not that “Mrs. anymore. Dawn, Bob or mention psychiatric copy a of received “I have February Taylor, 17, 1981. Note dated Ann from estimation, that, Dawn is not particularly in her significant changes.’ making any ‘capable That not seen Dr. Stan Moore evalu- has further she suggested Further, the outset. that was ation adopted child] [the be should belief that it is her that of the natural outside Although Taylor sug- therapy. Ms. further needs may yet signifi- possibility gests make Dawn report, paragraph changes of her she the last cant presence Kathy her office Jones me in told has the in- not believe she does any ability, skills, other which would en- nor herent appropriate proper or mother her to become able for belief, child]. it her stated that based She study [the examinations her family home either on not be returned should permanent or a basis. basis a visitation January the natural “Since any Hastings, not made effort father, Bob [the child].” contact make that the best in- as a whole establishes record required that the the child terests The child had terminated. of both years nearly and was almost care in foster
223 improving, age. years the situation of of Instead deteriorated. had opinion members of the court are
Three juvenile judgment re- the court should be of the the child to The effect would be condemn versed. indefinite no evi- foster care. There is substantial it could be concluded that either from which dence parent for the ever be able to care child. will state that foster care is a
It is the rule this only pur- temporary measure to be utilized maintaining permanent pose the child of until dis- position be made. can Tibbs, 330, v. 197 Neb. 248
In State N.W.2d (1976), “Although appellant we said: would 334 ability time to demonstrate his additional like properly point children, out care his we that this pending approximately litigation 2 require years, and the best interests of the children brought it be to final conclusion without further delay.” 623, McKee, 629, re Interest 208 Neb. In In 304 (1981), 918, 921 we said: “The rule is well
N.W.2d
that when natural
cannot reha-
established
themselves
within
reasonable
time
bilitate
after
adjudication hearing,
the best
interests of
disposition
require that a final
be made with-
child
delay.” See, also, In re
Farmer,
Interest
out
210
(1982);
500,
As we a child needs some permanence in his life before it is too sort late. It provide time to a stable home for the child in- in this case. volved given this case were all assistance *13 possible. was
that Extended visitation was at- tempted, with disastrous results. The mother is in- capable caring for the child. The father has failed to demonstrate that he could for the care by suggested any plan himself and child has not or arrangement permit which would the child to re- in his care alone. circumstances, main Under these juvenile court had no the alternative but to termi- parental rights parents. judg- the nate is ment affirmed. Affirmed. dissenting. C.J.,
Krivosha, again regrettably I I find that must once dissent majority. My dissenting the from basis for is not I am unconcerned about the welfare of a child compelled rather, recognize but, I am the play making role a limited court can the world a place perfect question, in which to live. There is no by majority, noted the as that the child this case perfect parents. not blessed with Quite to the contrary, apparent product it is that the child is a parents undoubtedly who themselves will have diffi- making culty way through their life. But the un- they truth of fortunate the matter is that are not un- parents parental rights like scores whose are terminated. previous suggest I have on occasions,
As I do not granted moment the for a here be un- I custody supervised or control Indeed, of the child. that the custody child believe must remain under simply step It is of the State. minating parental with the final of ter-
rights disagree. it is true While child foster years, true, care for several it is likewise as re- by hearing up record, flected the court that at each until were
praised attempting for their sincere efforts in They given to correct the situation. were extended rights of visitation and commended for their dedica- upon Yet, tion and efforts. the based the affidavits of guardian January 30, 1981, ad . litem dated indi- cating spanked that the child had been on his bottom usually which, and was inclined to use words while regularly court, not uttered in are now found in most rights books, movies and in almost all are thereafter terminated on March regard The action taken the court with supported by mother seems record, better al- though the evidence is scant as whether likely improve mother’s condition is not in the fu- regarding But ture. terminate his fered rights. evidence the father sufficient to totally lacking. We are of- support terminating no evidence to our his *14 precipitating action' in this case was the fact contemplating obtaining that vorce. the father a di While, sure, to be that in and of itself causes instability family relationship further may prolong may
the time when the child return to parents, or both one of the natural it does not occur parental rights, to me be sufficient to terminate particularly repeatedly fy parental father, that of the in this case. We have necessary justi
held that the evidence termination must be clear and con vincing. Souza-Spittler, 503, State v. 204 283 Neb. (1979); 48 N.W.2d State Hamilton, v. 204 Neb. (1979). 2803N.W.2d 66 Yet the record this case is convincing. simply neither clear nor that must The record is everyone growing tired of the effort which be exerted if success is ever to be realized. In my view, all of yet the alternatives have not sufficiently parental exhausted and the of at In have been terminated. the father should
least in- fact, the child make would view of that time, eligible adoption see no I likewise at this rights. terminating purpose the mother’s program foster care I have continued would be- what the situation determine until could least tween what indeed would be and would legal of the child. in the best interests join JJ., in this dissent. Caporale, White George appellees, al., et v. Todsen Runge appellees, al., et Darold appellant. corporation, Bank, Paul National St. N.W.2d 88 April No. 44380.
Filed Truell, & of Ahlschwede D. Ahlschwede Earl appellant. Depue, McDermott, Depue McDer-
Ronald S. appellees Todsen. McDermott, mott & Heard before Boslaugh, C.J., McCown, Krivosha, JJ., White, Hastings, Caporale, Clinton, D.J.
White, J. George Todsen, Plaintiffs, filed this ac- and Sarah