Cameron L. v. Clarissa L.

1

32 Neb.App. 578

In re Interest of Cameron L. and David L., children under 18 years of age. State of Nebraska, appellee, v. Clarissa L., appellant.

No. A-23-377

Court of Appeals of Nebraska

January 23, 2024

1. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases, including those under the Nebraska Indian Child Welfare Act, de novo on the record and reaches its conclusions independently of the juvenile court's findings in a termination of parental rights case.

2. Parental Rights: Proof. To terminate parental rights, it is the State's burden to show by clear and convincing evidence both that one of the statutory bases enumerated in Neb. Rev. Stat. § 43-292 (Reissue 2016) exists and that termination is in the child's best interests.

3. Indian Child Welfare Act: Parental Rights: Proof Expert Witnesses. The Nebraska Indian Child Welfare Act adds two additional elements the State must prove before terminating parental rights in cases involving Indian children. First, the State must prove by clear and convincing evidence that active efforts have been made to prevent the breakup of the Indian family and that these efforts have proved unsuccessful. Second, the State must prove by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

4. Trial: Evidence: Appeal and Error. To preserve a claimed error in admission of evidence, a litigant must make a timely objection that specifies the ground of the objection to the offered evidence.

5. Trial: Expert Witnesses: Appeal and Error. A trial court is allowed discretion in determining whether a witness is qualified to testify as an expert, and unless the court's finding is clearly erroneous, such a determination will not be disturbed on appeal.

6. Parental Rights: Proof. Neb. Rev. Stat. § 43-292(7) (Reissue 2016) operates mechanically and, unlike the other subsections of the statute, does not require the State to adduce evidence of any specific fault on the part of a parent.

7. Parental Rights. In a case of termination of parental rights based on Neb. Rev. Stat. § 43-292(7) (Reissue 2016), the protection afforded the rights of the parent comes in the best interests step of the analysis.

8. Parental Rights: Evidence: Appeal and Error. If an appellate court determines that the lower court correctly found that termination of parental rights is appropriate under one of the statutory grounds set forth in Neb. Rev. Stat. § 43-292 (Reissue 2016), the appellate court need not further address the sufficiency of the evidence to support termination under any other statutory ground.

9. Parental Rights: Proof. In addition to proving a statutory ground, the State must show that termination of parental rights is in the best interests of the children.

10. Constitutional Law: Parental Rights: Proof. A parent's right to raise his or her child is constitutionally protected; so before a court may terminate parental rights, the State must show that the parent is unfit.

11. Parental Rights: Presumptions: Proof. There is a rebuttable presumption that the best interests of a child are served by having a relationship with his or her parent. Based on the idea that fit parents act in the best interests of their children, this presumption is overcome only when the State has proved that the parent is unfit.

12. Parental Rights. The best interests analysis and the parental fitness analysis are fact-intensive inquiries. And while both are separate inquiries, each examines essentially the same underlying facts as the other.

13. Parental Rights: Parent and Child. In proceedings to terminate parental rights, the law does not require perfection of a parent; instead, courts should look for the parent's continued improvement in parenting skills and a beneficial relationship between parent and child.

14. Parental Rights: Appeal and Error. Where termination of parental rights is based on Neb. Rev. Stat § 43-292(7) (Reissue 2016), appellate courts must be particularly diligent in their de novo review of whether termination of parental rights is in fact in the child's best interests.

15. Parental Rights. Where a parent is unable or unwilling to rehabilitate himself or herself within a reasonable time, the best interests of the child require termination of the parental rights.

16 ___. Children cannot, and should not, be suspended in foster care or be made to await uncertain parental maturity.

Appeal from the Separate Juvenile Court of Lancaster County: Shellie D. Sabata, Judge.

Jonathan Seagrass, Jennifer Gaughan, Abby Kuntz, Patrick Carraher, and Mark Bestul, of Legal Aid of Nebraska, for appellant.

Tara A. Parpart, Deputy Lancaster County Attorney, for appellee.

Joy Kathurima and Rose Godinez for amicus curiae ACLU of Nebraska Foundation.

Pirtle, Chief Judge, and Moore and Arterburn, Judges.

Moore Judge.

I. INTRODUCTION

Clarissa L. appeals from an order of the separate juvenile court of Lancaster County, terminating her parental rights to two of her children. Clarissa assigns that the State failed to prove beyond a reasonable doubt, as required by the Indian Child Welfare Act (ICWA) and the Nebraska Indian Child Welfare Act (NICWA), through qualified expert witness testimony, that the continued custody of the children by Clarissa was likely to result in serious emotional or physical damage to them. Clarissa also assigns that the termination of her parental rights was not in the children's best interests. Upon our de novo review of the record, we affirm the juvenile court's order.

II. STATEMENT OF FACTS

1. Procedural Background

Clarissa is the biological mother of David L., born in December 2014, and Cameron L., born July 2016. Clarissa is also the mother of Qlani L., born in September 2005, and Dazianna L., born in October 2007. Though Qlani and Dazianna were removed from Clarissa's care along with David and Cameron and named in the petition, the motion for termination of Clarissa's parental rights and subsequent order relate only to David and Cameron. All four children share the same biological father. As discussed further below, the father's parental rights to David and Cameron were terminated during these same proceedings, and we discuss him only as necessary to the resolution of the current appeal by Clarissa.

Qlani, Dazianna, David, and Cameron were removed from Clarissa's care by law enforcement on February 14, 2020, after Clarissa was found intoxicated on a city bus and was placed into a "detox" facility. There were additional reports that Clarissa had hit either David or Cameron and frequently left them unsupervised at a family homeless shelter. A petition was filed on February 18 to adjudicate all four children pursuant to Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016), based on Clarissa's subjecting the children to excessive physical discipline and becoming so intoxicated that she was unable or unwilling to provide adequate care to the children, placing them at risk of harm. That same day, the juvenile court entered an ex parte order for temporary emergency custody, placing the four children in the care of the Nebraska Department of Health and Human Services (the Department).

An order entered on February 19, 2020, reflects that at a hearing held that day, the juvenile court inquired as to whether Indian children were involved in the proceedings and directed the State and the Department to give notice to the appropriate identified tribe pursuant to NICWA. The order lists the Oglala Sioux Tribe (the Tribe) as the tribe on record. Also at this hearing, Clarissa was appointed a guardian ad litem, though the reason for the appointment is unclear from our record.

On March 2, 2020, the State filed an "ICWA Notice" addressed to the ICWA administrator of the Tribe; the Aberdeen, South Dakota, regional director of the Bureau of Indian Affairs; Clarissa; and the father. The notice stated that proceedings regarding the four children had begun in the juvenile court and that it was believed both David and Cameron were eligible for enrollment in the Tribe. Qlani and Dazianna were already enrolled members. Both Clarissa and the father were listed in the notice as enrolled members of the Tribe. The notice further indicated that a temporary custody hearing was scheduled for March 25. The State subsequently filed affidavits evidencing that the notices had been mailed.

The adjudication hearing scheduled for March 2020 was continued to April 29, due to the COVID-19 pandemic. On March 27, the State filed another "ICWA Notice" addressed to the same individuals, indicating the date of the continued temporary custody hearing, and the State subsequently filed affidavits of notice evidencing that the notices had been mailed. The address and individual recipient listed by the State for the Tribe in this second ICWA notice is different than that included in the first.

An order entered on May 8, 2020, indicated that a temporary custody and adjudication hearing was held on April 29. A bill of exceptions from this hearing does not appear in our record on appeal. A representative of the Tribe appeared telephonically at the hearing, and the juvenile court received a "Certificate of Indian Blood" for both Qlani and Dazianna. Clarissa entered a denial of the allegations contained in the petition. The representative requested leave on behalf of the Tribe to intervene in these proceedings as to Qlani and Dazianna, which the court granted. The representative then advised the court that the Tribe did not object to the temporary custody hearing proceedings and did not object to Shirley Bad Wound providing...