IN RE INTEREST OF DUSTIN H. ET AL., CHILDREN UNDER 18 YEARS OF AGE. STATE OF NEBRASKA, APPELLEE, V. TONYA H., APPELLANT. IN RE INTEREST OF LACIE H., A CHILD UNDER 18 YEARS OF AGE. STATE OF NEBRASKA, APPELLEE, V. MICHAEL S., APPELLANT.
Nos. S-99-141, S-99-351
Supreme Court of Nebraska
April 7, 2000
259 Neb. 166 | 608 N.W.2d 580
Steven M. Renteria, of Wintroub, Rinden, Sens & McCreary, for appellant Michael S.
James S. Jansen, Douglas County Attorney, Kathleen S. Pallesen, and Kim B. Hawekotte for appellee.
WRIGHT, J.
NATURE OF CASE
Tonya H. appeals from an order of the separate juvenile court of Douglas County which terminated her parental rights to Dustin H., Brandon H., Lacie H., Brooke C., and Tara C. We have consolidated Tonya‘s appeal with that of Michael S., who appeals from an order of the separate juvenile court which terminated his parental rights to Lacie.
SCOPE OF REVIEW
In an appeal from a juvenile court order terminating parental rights, an appellate court tries factual questions de novo on the record. Appellate review is independent of the juvenile court‘s findings; however, when the evidence is in conflict, the appellate court may give weight to the fact that the juvenile court observed the witnesses and accepted one version of the facts over another. In re Interest of Michael B. et al., 258 Neb. 545, 604 N.W.2d 405 (2000).
Statutory interpretation presents a question of law, in connection with which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. Thompson v. Kiewit Constr. Co., 258 Neb. 323, 603 N.W.2d 368 (1999).
Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. US Ecology v. State, 258 Neb. 10, 601 N.W.2d 775 (1999).
In the absence of a judgment or order finally disposing of a case, an appellate court is without jurisdiction to act and must dismiss the purported appeal. In re Application of SID No. 384, 256 Neb. 299, 589 N.W.2d 542 (1999).
FACTS
On March 24, 1998, the State filed a petition alleging that Dustin, Brandon, Lacie, Brooke, and Tara were within the meaning of
At an adjudication hearing on June 24, 1998, Tonya was represented by counsel, but Tonya herself did not appear. Following the receipt of evidence, the juvenile court found that placement of the children in Tonya‘s home at that time would be сontrary to the health, safety, or welfare of the children. The court found that the children came within the meaning of
The juvenile court conсluded that the children were at risk for harm and that the children should remain in the temporary custody of the Nebraska Department of Health and Human Services (Department) for appropriate care and placement. The matter was then set for a dispositional hearing.
At a dispositional hearing on August 27, 1998, the juvenile court found that placement of the children in Tonya‘s home at that time would be cоntrary to the health, safety, or welfare of the children and that reasonable efforts had been made to preserve and reunify the family, but had not made reunification possible. The court found that it was in the best interests and welfare of the children that they remain in the custody of the Department for appropriate care and placement.
In addition, the juvenile court ordered Tonya to undergо a psychological examination, a parenting and chemical dependency evaluation, and a bonding assessment; to pay $25 to the clerk of the district court by August 31, 1998, as restitution for drug screening costs; and to pay the same amount each month on the 15th day of the month until further order of the court. The court further ordered Tonya to contribute a sum in accordance
On October 13, 1998, the State filed a supplemental petition, alleging that it was in the children‘s best interests to terminate Tonya‘s parental rights pursuant to
The record before us concerning Michael, the father of Lacie, is sparse. A hearing was held on December 9, 1998, in which the State presented evidence in support of its motion to terminate parental rights to all of the children. At this time, Michael appeared with counsel to contest termination of his parental rights based upon abandonment. Michael‘s motion for continuance was overruled, but his counsel was granted leave to present his defense at a later time.
The State then presented evidence against Tonya regarding the issue of abandonment. Michelle Hemphill, a case manager with the Department, testified that Tonya had failed to visit the children and had made only two telephone calls to the Department over a 7-month period. Hemрhill testified that from March 20 to October 13, 1998, Tonya failed to contact the Department regarding the well-being of the children. In addition, between August 27 and October 13, Hemphill referred Tonya for a psychological evaluation and discussed the chemical dependency evaluation that had been ordered by the court. Tonya did not complete either evaluation. Hemphill was never able to addrеss any of the issues of visitation or the recommended services because she was unable to locate Tonya. Hemphill testified that termination of Tonya‘s parental rights was in the children‘s best interests.
Bob Owens, a risk assessment investigator for the Department who was assigned to the case on March 25, 1998, testified that Tonya had not kept any of their scheduled appointments. The only contact Tonyа had with Owens was a telephone call to inquire whether she was “in trouble.” Tonya told Owens she was fearful of being arrested by the police, and Owens stated that Tonya never inquired about the children‘s well-being and foster care.
On January 6, 1999, the juvenile court found by clear and convincing evidence that the children were within the meaning of
On February 9, 1999, the matter came on for adjudication of Lacie as to Michael. On February 10, the juvenile court took the matter of termination of Michael‘s parental rights under advisement. However, the record does not reflect the final disposition of Michael‘s parental rights. On December 20, this court issued an order to show cause because the transcript filed herein did not contain a final order which terminated Michael‘s parental rights. Michael was ordered to show cause on or before December 30 why this appeal should not be dismissed for lack of a final, appealable order. The record reflects no response to this order to show cause.
ASSIGNMENTS OF ERROR
Tonya assigns as error that the juvenile court erred in terminating her parental rights under
ANALYSIS
We first consider Tonya‘s appeal. Tonya claims that the juvenile court erred in terminating her parental rights under
Section 43-292 provides in pertinent part:
The court may terminate all parental rights between the parents or the mother of a juvenile born out of wedlock and such juvenile when the court finds such action to be in the best interests of the juvenile and it appears by the evidence that one or more of the following conditions exist:
(1) The parents have abandoned the juvenile for six months or more immediately prior to the filing of the petition.
For purposes of
The State claims that Tonya abandoned her children for a 7-month period prior to the filing of the supplemental petition in that from March 20 until August 27, 1998, Tonya did not visit
In suрport of her contention that the August 27, 1998, order tolled the 6-month statutory requirement for abandonment, Tonya relies upon In re Interest of B.J.M. et al., 1 Neb. App. 851, 510 N.W.2d 418 (1993). There, the father of four children was ordered on May 1, 1992, to have no visitation with his children. On July 9, the State filed a petition to terminate parental rights based upon abandonment. On September 15, the juvenile court concluded that the father had abandoned the children and that termination was in the best interests of the children. The Nebraska Court of Appeals reversed, concluding that the record showed a systematically created series of impediments which prevented the father from successfully developing a relationship with the children. During the 6 months immediately preceding the filing of the petition, the father was kept at bay by the then Department of Social Services (DSS) and then by court order.
The present case is readily distinguishable from In re Interest of B.J.M. et al. There, during the 6-month period preceding the filing of the petition for termination, the father had renewed his interest in the children, had successfully completed a drug counseling program, and had remarried and taken an active and positive interest in his wife‘s child. The father and his second wife had reestablished ties with the four children, worked with DSS to set up visitation, and persisted in their efforts to arrange visitation. Although these efforts werе met with a motion to limit visitation, the father persisted in his efforts, responded to a questionnaire by DSS, moved to Nebraska, acquired a Nebraska probation officer, and was gainfully employed. Based upon the record before it, the Court of Appeals concluded that at the time of the termination, the father had demonstrated his intent during the requisite period to participate in the children‘s lives and that his efforts were genuine.
Whether a parent has abandoned a child within the meaning of
Parents have a positive duty to exhibit a continued interest in their children and a genuine effort to associate and maintain the lines of communication with those children. See In re Interest of C.K., L.K., and G.K., 240 Neb. 700, 484 N.W.2d 68 (1992). In In re Interest of C.A., we noted that the mother‘s actions during the 6 months preceding the State‘s motion to terminate could not be viewed in total isolation from the mother‘s previous conduct and absence from the child, especially since DSS’ refusal to allow the mother to see the child was the result of the mother‘s indifference to the child‘s well-being.
We conclude that the juvenile court‘s order of August 27, 1998, which prohibited Tonya from visiting the children, did not toll the 6-month period for purposes of abandonment. The State established that Tonya never visited the children and did not provide any financial support, nor did she send them cards, gifts, or letters other than one birthday card which was brought to the Department on September 3. From March 20 until August 27, Tonya had no contact of any kind with the children. From August 27 until October 13, she had no contact with the Department concerning the welfare of the children. After August 27, the Department received two telephone calls from Tonya in regard to a psychological evaluation and a chemical dependency evaluation. Tonya made no inquiry as to how the children were doing in fоster care, nor did she ask about their well-being. She did not bring up any of the children in the telephone conversa-
From our de novo review of the record, we conclude that Tonya has not presented any evidence which would show a continuing interest in the children or a genuine effort to maintain communication аnd a meaningful relationship with these children. There is clear and convincing evidence that Tonya has abandoned these children. There is also clear and convincing evidence that the best interests of the children require that Tonya‘s parental rights be terminated.
For the reasons stated herein, the judgment of the separate juvenile court of Douglas County terminating Tonya‘s parental rights is affirmed.
We next аddress Michael‘s appeal. Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. US Ecology v. State, 258 Neb. 10, 601 N.W.2d 775 (1999). In the absence of a judgment or order finally disposing of a case, an appellate court is without jurisdiction to act and must dismiss the purported appeal. In re Application of SID No. 384, 256 Neb. 299, 589 N.W.2d 542 (1999).
The order which terminated Michael‘s parеntal rights does not appear in the record. Since we are without a final, appealable order, we are without jurisdiction to consider this appeal. Thus, Michael‘s appeal is hereby dismissed.
JUDGMENT IN NO. S-99-141 AFFIRMED.
APPEAL IN No. S-99-351 DISMISSED.
GERRARD, J., concurring in part, and in part dissenting.
I dissent with reference to the termination of Tonya‘s parental rights. Even though the record suggests that the mother, Tonya, may (1) have repeatedly neglected and refused to give her children necessary рarental care and protection,
Thus, the State set out to prove that the mother abandoned her children for a period of 6 months or more immediately prior to October 13, 1998. The most obvious problеm with the State‘s theory is that on August 27, 1998, the mother was granted “no rights of visitation with [her] children pending further order” of the juvenile court. No further rights of visitation were granted to the mother by the juvenile court between August 27 and October 13.
For the purposes of
It is fundamentally unfair, and a violation of the parent‘s due process rights, to allow the termination of one‘s parental rights on the sole basis of abandonment when utilizing portions of time that a parent has been court ordered to have no contact or “no visitation” with his or her children. I agree with the majority that from March 20 until August 27, 1998, Tonya had no contact of any kind with her children. I also acknowledge that from August 27 until October 13, 1998, Tonya‘s only contact with her children was the delivery of one birthday card to the Department on September 3. In light of the “no visitation” order, however, I am not willing to say that from August 27 until October 13, this mother had a fair opportunity to display her presence, care, love, protection, and parental affection for her children. See In re Interest of Sunshine A. et al., supra. Therefore, I disagree with
That is not to say the record demonstrates that Tonya is a fit parent or, as noted in my first paragraph, that the continuation of Tonya‘s parental rights is in the best interests of her children. Nor am I suggesting that it is in any way improper for a juvenile court to utilize a “no visitation” order when the best interests of the children are served by such an order. What I am asserting is that it is fundamentally unfair under the Due Process Clause of both the federal and the state Constitutions to allow the machinery of the State to impede visitation between a parent and child and then to allow the termination of parental rights on the sole basis of abandonment, utilizing evidence from the period of time that the parent was court ordered to have “no visitation” with his or her children.
Therefore, I would reverse the January 6, 1999, order of the juvenile court which terminated the parental rights of Tonya on the sole basis of abandonment and remand this cause for further proceedings. It should be noted that I concur in that portion of the majority‘s judgment dismissing Michael‘s appeal in case No. S-99-351.
HENDRY, C.J., and STEPHAN, J., join in this concurrence and dissent.