*1 Bashus, going after Turner was not he observed that the vehicle run, stop, began jumped prior being struck to to to testimony I do to Bashus vehicle. not read mean that ran vehicle; rather, he front of the I read that mean that when going stop, vehicle not he ran to what realized Turner hoped place safety, get but able he would be a was not away from the Turner vehicle. I do not believe that such action part pedestrian on the an act which would have constitutes justified giving 11. trial court instruction No. For that I reason would have reversed and remanded.
White, J., joins in this dissent. years age. D.,
In re under child appellants. Nebraska, appellee, al., v. L.J.D. et State of July 20, 1984. Filed No. 83-583. Anderson, appellants.
Richard for C. County Attorney, R. Jorgensen, Deputy Gerald appellee. C.J.,
Krivosha, Boslaugh, White, Hastings, Caporale, Shanahan, Grant, JJ.
Shanahan, J. County, juvenile sitting as a court for Buffalo court, rights of the father mother terminated parents appealed their minor district followed, we appeal which affirm. affirmed. This
(cid:127) 17,1979. and mother were married on November father Kearney, Nebraska, They August 1980. first arrived in late later, 21,1980, Approximately September 1 month *2 living and in with was born the moved friends. That 11,1980, par- arrangement continued until December when the proceedings in the ents these and their child moved. Because provide housing were unable immediate for them- parents child, parents voluntarily placed the the child selves County Department with the Buffalo of Social Services for 19, 1980, temporary juvenile peti- foster On December a care. filed, alleging that child was tion was the as described in subsec- (1) (2) (Reissue 1978). tions of Neb. Rev. Stat. 43-202 § January 7,1981, On hearing a held parents was at which the admitted that their child a child in 43-202(1), was as described § destitute, namely, the that child was “homeless or or without proper support through parent...” no fault of his Cf. Neb. (Cum. Supp. 1982) (substantially Rev. Stat. 43-247 § similar Upon language). adjudi- the the evidence court made an determining cation the child to be as described in 43-202(1), § plan parental rehabilitation, namely, and ordered the child parents’ could be returned to the on home condition that the parents employment stability, (1) (2)provided showed a suitable environment, (3) and stable home demonstrated financial and physical care (4) cooperated abilities to in all by programs required county department the of social services. Physical custody of the child was transferred from the county department of parents February social services to the 14, 1981. The department supervi- of social services continued sion of the child and his required were keep appointments, psychological evaluations, doctors’ receive cooperate with a department homemaker from the welfare in improve environment, order to their home maintain ad- equate living By environment for the child. mid-March 1981the steady father no employment, had to cooperate and failed programs required by offered and department. welfare developed diaper brought severe which was rash physician only attention of a by after intervention the wel- department’s fare Although homemaker. medicine for the diaper once, child’s rash was obtained did not refill rash, required prescription to alleviate the child’s notwith- standing money purchase approxi- that the found .mately cigarettes day. packs two each by
Before further intervention violation forbidding court order removal of the jurisdiction, child from the took their child court’s Felony charges unspecified to Florida. of an nature were filed against removing their child from Nebraska. were Florida returned to Nebraska from proceedings early extradition the late summer or fall of 1981. September In the child was returned to Nebraska and placed in renewed In parents’ foster care. Nebraska the efforts advantage to take of rehabilitative services afforded the wel- sporadic. fare were The rehabilitation had little or no success. The mother visited the child from twice fall of 1981to while the father visited the child only during period. once that February 2, 1982, held, hearing
On a review and the *3 court ordered a definite rehabilitation program required parents (1) This the to secure and maintain employment; (2) housing; full-time (3) partici- locate suitable pate in complete following specific programs: the (a) designed improve management classes to skills for the care and children, treatment, (b) (c) counseling; of alcohol and marital (4) felony probations; follow terms and directions of their cooperate (5) with the of welfare and the services of its The homemaker. were allowed reasonable visitation during of their child proposed program. such The problem. father had a severe alcohol because he believed he could control his alcoholism without outside help, participation county’s the father exhibited limited in the counseling services and discontinued prescribed Antabuse as part of the father’s treatment for alcoholism and rehabilitation. only requirement regarding parenting The classes was the presence physical of the 7 10 at of class sessions. The classes, completed parenting mother the but the father did not. counseling Community Marital at the South Central Mental pay Health Services was terminated when the failed to a father, per eight $1 According session fee for sessions. 26 total back paid were months that he have the
there several could $8, acknowledged nonpayment because he but fees of the father time, Throughout the counseling. this did not care to continue forgot and the mother employment sporadic, was still father’s county’s family The homemaker. appointments with the several again. to move arrears in rent and were forced fell in County attorney’s December the office re- In 1982 parental of dispositional hearing for the termination quested held 21 rights. dispositional hearing on February 2,1983. receiving the court en- After evidence terminating appellant an parental tered order of the appeal parents. That order was affirmed to district court. before the was insuf- contend evidence court support parental rights.
ficient
termination of
case,
juvenile
appeal
including
“In
of
termination of
rights,
novo,
regarding
we review the
de
record
findings
disputed
independent
our own
con
facts make
W.,
In
reached
trial court.”
re Interest
217
clusion
325, 329,
861,
cf.,
N.W.2d
State
(1984);
Neb.
348
864
v.
Kinkner,
367,
Rice,
(1974);
Neb.
8,1982, and retained employment through that the termination hearing employment 1983. the father’s inconsistent, remained jobs in the form of separated by three varying lengths unemployment, employment with full-time just 5 weeks hearing. before the termination
From October 1982to 1983both were avail- appointments able for and consultation with the caseworker until approximately p.m. weekdays. Before the commenced visitation of their department’s welfare frequently requested caseworker that the visit her office in the courthouse for familiarization about the visitation condi- tions in the court-ordered rehabilitation. Despite repeated these requests, appointment never made an with case- worker. explained The mother that attempted she had to make an appointment working but was either did or not have trans- portation to the courthouse office of the caseworker. When transportation available, was not the mother walked to the courthouse, where of welfare office was lo- cated, picked up stamps her food and welfare checks. Nei- ther any weekday missed appointment with proba- officer, tion whose office was also located in county court- house.
From the record we conclude that the were not inter- maintaining ested in contact with their minor child and were not taking interested in advantage of the programs rehabilitation offered department. the welfare assignment of error that there is insufficient evidence to pa- sustain termination of rental is without merit. next maintain that the sitting as a
juvenile court, finding erred in that the best interests of the
28 by terminating parental
minor child would be served rights. any involving primary case termination consideration re parental
of is the best interests of the child. See In Levey, (1982). 317 N.W.2d of visitations, During two one in October and one in December separating of the caseworker had difficulties in the child parents. The from his foster when asked to leave the caseworker, cry, with home of the foster would scream, cling parents. According to the foster to the case- worker, probably in December 1982“it took us 15or 20 minutes try finally him to work it and could not and kind of just bodily carried him out to the car with me.” The child had sound, developed a relationship affectionate with his foster only and exhibited minimal emotional attachment to his natural When he was asked to return to his foster visitation, parental “immediately put after the child with problem. his coat and left” the caseworker without frequently As all too occurs cases such as the one before us, receptivity parent the enthusiasm or toward a rehabili- intensify dispositional tation seems to as the time for a hearing approaches. practical program A parental of rehabili- system’sindulgent tation should not be viewed our as toleration pro- of otherwise intolerable situation. A afforded a an. gram of rehabilitation must realize that the courts will examine pattern in determining appropriate conduct disposition for the best interests of a child. In cases such as this past parent’s good is an indication of the future. Failure faith effort injuri- toward rehabilitation to a situation correct development may ous to the life and normal of a child cause a parent’s past court to conclude that a offers no future for the child. currently years
The child is exception almost old. With the parents, with spent 9 months his the child has his entire life During time, foster care. this have failed to take advantage support of the efforts of the court and services to weighs heavily restore the child to the It home. in our generally neglected minds that the have failed and advantage opportunities take to visit their child. To now leave the child in period foster care for an indefinite would be patently him, only unfair to and would continue the emotional problems “temporary” custody attendant to a A situation. care, suspended cannot be left in foster and should not be required Further, wholly inadequate to exist in a home. a child cannot parental maturity. be made to await uncertain As we K.S.J., said in In re Interest R.D.J. and *6 215 Neb. “ ‘ 415, 418 (1983): N.W.2d gamble will not with the “[W]e ’ ” system child’s future.” In our of law directed toward the juvenile, best interests of a parental rights termination of is not penalty imposed on poverty. inability account of Parental heights reach of economic pre success is no basis to sever the relationship normally cious which exists between system child. pertaining juve that same of laws niles cannot reward bankruptcy by evidenced indiffer lethargy ence or adversely affecting inexcusable the life and liv ing conditions demanded personal dignity. a child’s The as signment of error that parental rights termination of is not the best interests of the child is without merit. judgment of the district court is affirmed.
Affirmed. Krivosha, C.J., dissenting.
For particularly reasons more my set out in recent dissent in S.B., In re of D.R. (1984), I find that I must likewise dissent in again this case. I believe simply that the record “by does not establish clear and convincing evidence” that parental rights parties of the here ironic, should be terminated. It is because the record would imply seem to that if the voluntarily placed had not County child with the Department of Social Services temporary foster care in December might the State not have taken regard action with Obviously, this case. the child is parents, not comfortable with the having natural away matter, long. however, been for so That is a which I believe time would correct. I believe that we should mot have termi parental rights nated the in this case.