State v. Samuel B.State v. Samuel B.
NATURE OF CASE
The separate juvenile court of Douglas County terminated the parental rights of Samuel B. to his minor child Phyllisa B. pursuant to
STATEMENT OF FACTS
Samuel and Phyllis B. are the natural parents of Phyllisa, born on September 19, 1991. On or about October 21, 1998, Phyllisa was removed from her parents’ care and placed in protective custody with the Nebraska Department of Health and Human Services (DHHS) by the Omaha Police Department due to allegations of an unsafe home environment. Specifically, Phyllisa had reported, in response to her elementary school teacher’s inquiry as to why Phyllisa was falling asleep in class, that her father would come into her room late at night and “ ‘stick something in her mouth.’ ” After school officials called the police department to report Phyllisa’s statement, Phyllisa told the investigating police officer that “her father came into her room and laid on top of her and ‘humped her.’ ” Phyllisa also later reported that her brother, who is approximately 2 years older than Phyllisa, had sexual contact with her. Juvenile court proceedings were filed on October 21, 1998, and on the same date, the juvenile court ordered Phyllisa to be placed in DHHS’ custody. She has remained in foster care in DHHS’ custody continuously since that date.
In count II of its second amended adjudication petition filed on December 17, 1998, the State alleged as follows:
A. On or about October 20, 1998, [Phyllisa] disclosed that she was being subjected to inappropriate sexual contact by Samuel [B.]
B. Samuel [B.] continues to reside at the family residence.
C. Samuel [B.] has a past conviction for sexual assault on a child.
D. Samuel [B.]’s use of alcohol and/or controlled substances places [Phyllisa] at risk for harm.
E. Due to the above allegations, [Phyllisa] is at risk for harm.
At the adjudication hearing, following the testimony of several witnesses, including Phyllisa’s elementary school teacher and a school counselor, Samuel pled no contest to paragraphs A, B, and E of count II. Near the end of the adjudication hearing, the State dismissed paragraphs C and D of count II.
In an order filed February 26, 1999, the juvenile court determined that Phyllisa was a child as described in
A disposition hearing was held on July 7, 1999, followed by review hearings on January 25 and August 30, 2000, and February 8 and August 3, 2001. In orders entered following each of these hearings, the juvenile court found that the permanency objective
On June 7, 2001, the State filed a “Motion for Termination of Parental Rights and Notice of Hearing.” The motion sought termination of both Samuel’s and Phyllis’ parental rights under
On February 19, 2002, the State’s motion for termination came on for hearing before the juvenile court. In a written order filed February 21, the juvenile court found that the State had proved by clear and convincing evidence the grounds for termination set forth in
ASSIGNMENTS OF ERROR
On appeal, Samuel alleges three assignments of error. Samuel alleges, renumbered and restated, that the juvenile court erred (1) in granting the State’s motion to terminate Samuel’s parental rights in violation of his Fifth Amendment privilege against self-incrimination, (2) in finding that the State proved by clear
and convincing evidence under
STANDARDS OF REVIEW
Juvenile cases are reviewed de novo on the record, and the appellate court is required to reach a conclusion independent of the juvenile court’s findings; however, when the evidence is in conflict, the appellate court will consider and give weight to the fact that the lower court observed the witnesses and accepted one version of the facts over the other.
ANALYSIS
Constitutional Objection.
On appeal, Samuel claims that compliance with various plan provisions would require that he admit to sexual contact with Phyllisa and that such terms would violate his right to exercise his Fifth Amendment privilege against self-incrimination. Samuel suggests on appeal that Phyllisa was continued in out-of-home placement due, in part, to Samuel’s refusal to admit to sexual contact with Phyllisa. In this regard, we note that the record shows that the juvenile court’s orders with regard to the reunification plan to obtain “meaningful therapy” employed the language of
In re Interest of Clifford M. et al,
The record provided on appeal does not reflect that Samuel raised his constitutional objection in the proceedings before the juvenile court. Generally, an appellate court will not consider a constitutional question on appeal that was not raised and properly presented for disposition by the trial court.
In re Interest of Lisa W. & Samantha W.,
supra;
In re Interest of Rachael M. & Sherry M.,
Termination of Parental Rights Under
The juvenile court found that all three of the grounds for termination alleged in the State’s motion,
On February 26,1999, the juvenile court determined that Phyllisa was a child within the meaning of
At the February 19, 2002, termination hearing, the State called six witnesses to testify: Tina Flowers, Phyllisa’s therapist; Cheryl Felix, Phyllis’ therapist; Kathie McDaniel, Samuel’s therapist; Letitia Kopp, Phyllisa’s foster care specialist; and Nicole Rogert and Jennifer Bivens, DHHS child protection and safety workers assigned to Phyllisa’s case. The State also introduced into evidence exhibit 30, which was composed of certified copies of the petitions and orders in the case. Phyllis testified on her own behalf. Samuel did not testify or call any witnesses or introduce any exhibits into evidence.
During the termination hearing, Flowers testified as to Phyllisa’s conduct that supported Phyllisa’s claim that she had been subjected to inappropriate sexual contact by Samuel, including that Phyllisa wet her bed nightly, had “ongoing nightmares regarding sucking men’s penises [and] having sexual relations with men,” and masturbated publicly. Flowers testified that she could not explain this conduct as signifying anything other than that Phyllisa had been sexually molested. Although Flowers testified that Phyllisa had subsequently recanted her earlier statement that she had been subjected to inappropriate sexual contact by Samuel, Flowers responded “[y]es” when asked if it was normal for children who initially tell the truth regarding allegations of sexual molestation to later recant those statements. According to Flowers, Phyllisa’s recantation was normal “especially since it’s a parental figure [and] she wants to go home.”
On appeal, Samuel disputes that the inappropriate contact occurred. The record shows that Samuel has not participated in meaningful therapy and rehabilitation relating to the molestation issue. The record farther reflects that Samuel remains in the family home. Finally, the record reflects that Kopp testified that it would not be in Phyllisa’s best interests to be returned to her family home and that Flowers and Bivens both testified that termination of Samuel’s parental rights was in Phyllisa’s best interests.
We have stated that children cannot, and should not, be suspended in foster care or be made to await uncertain parental maturity.
In re Interest of DeWayne G. & Devon G.,
CONCLUSION
Based upon our de novo review of the record, we conclude that there is clear and convincing evidence that Samuel’s parental rights should be terminated pursuant to
Affirmed.