In re Xavier H.

740 N.W.2d 13

274 Neb. 331

In re Interest of XAVIER H., a Child Under 18 Years of Age State of Nebraska, Appellee and Cross-Appellant, v. Katianne S., Appellant and Cross-Appellee.

No. S-06-841.

Supreme Court of Nebraska.

October 19, 2007.

Richard Register, Fremont, and Christina C. Boydston, of Register Law Office, for appellant.

Jeri L. Grachek, Deputy Dodge County Attorney, for appellee.

HEAVICAN, C.J., WRIGHT, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

McCORMACK, J.

NATURE OF CASE

Katianne S. is the mother of Alita, born March 14, 2001; Kalila, born April 6, 2003; and Xavier, born May 12, 2004. Katianne's fitness as a mother to Alita and Kalila is not in question, and they remain with her in the family home in Fremont, Nebraska. Katianne's petition for further review asks that we evaluate the Nebraska Court of Appeals' decision to affirm the juvenile court's termination, under Neb. Rev.Stat. § 43-292(7) (Reissue 2004), of Katianne's parental rights to Xavier. The broader issue presented in this appeal is the extent to which the State must respect a parent's fundamental constitutional rights when terminating parental rights under § 43-292(7).

FACTS

BACKGROUND OF XAVIER'S ADJUDICATION

After Xavier's birth, Katianne immediately suspected that Xavier might have a milk allergy because he kept spitting up breast milk. Katianne's daughter, Kalila, had been born with reflux and allergies to soy and milk proteins and had shown similar symptoms. Katianne and Xavier were discharged from the hospital within 2 days, but Katianne continued to seek medical care for Xavier's feeding problem, taking Xavier to his pediatrician several times a week.

Xavier was eventually diagnosed with a milk and soy protein intolerance and gastroesophageal reflux. From May 12 to July 23, 2004, Xavier was put on several different hypoallergenic formulas, but he continued to spit up frequently. He was gaining weight poorly and was very irritable. Katianne explained that Xavier's allergies and reflux problem were much more severe than her daughter Kalila's had been.

On July 23, 2004, Xavier was placed on a nasogastric feeding tube which would drip formula into his stomach at a slow rate to allow him to absorb the formula without spitting it up. The feeding tube was to be in place at all times. Xavier had to wear special mittens to keep from pulling it out. He would have to go to the hospital to have the tube reinserted if he pulled it out. The pump would "alarm every once in a while," and there was a list of procedures to determine the reason for the alarm. The bags of formula needed to be refilled as soon as they were empty, and periodic tubing changes were also required.

When Xavier was 2 weeks old, Katianne had gone back to work part time at a gas station. She explained that she soon began to suffer from postpartum depression, which was getting progressively worse. She did not seek professional help. Katianne had a history of depression as a teenager and of drug and alcohol abuse as a young adult. However, Katianne was an active member of Alcoholics Anonymous and had not had a drinking or drug abuse problem since at least 2000.

Xavier was cared for by his father or a sitter while Katianne was at work. Katianne became concerned over whether they could properly care for Xavier's special needs. According to Katianne, the pediatrician suggested temporary out-of-home care as a solution. Katianne testified that she contacted social services for assistance. Crystal Hestekind, a protection and safety worker for the Department of Health and Human Services (the Department), helped Katianne get some assistance through some community service agencies, but the Department initially refused out-of-home voluntary temporary placement.

On July 28, 2004, someone filed a report with the Department expressing concerns about Xavier's health and well-being. After an investigation, the report was deemed to be unfounded. In discussions with Katianne about the report, Katianne again expressed to the Department her concern over Xavier's care while she was at work. Hestekind had Home Health Care increase its visitation to Katianne's home to three to four times per week to assist with weight checks and the pump. Hestekind explained that they were also encouraging Katianne to seek assistance for her postpartum depression, but, at that time, Katianne was reticent to take medication.

Hestekind explained that Katianne was not very successful in keeping in communication with Hestekind, and Xavier still was not gaining any weight. Hestekind testified that she had offered to set up commercial daycare with staff properly trained for Xavier's medical needs, but that Katianne had refused because of concerns about Xavier's becoming sick by being around other children. Hestekind later admitted that the daycare she had arranged for Katianne was closed during the evening hours that Katianne worked.

Because the situation was deteriorating, on August 9, 2004, Katianne and the Department agreed to a voluntary 1-month placement of Xavier outside the home. Xavier's condition improved in the foster home. On August 23, Katianne suffered what she described as a relapse. She drank half a bottle of whiskey, took "a bunch of pills," and was hospitalized for several days as a result.

Because Xavier still needed special care to be weaned from the feeding tube to the bottle, the Department asked Katianne and Xavier's father to sign a voluntary extension of the out-of-home placement. When Xavier's father refused to agree to the extension, Xavier was adjudicated, in accordance with Neb.Rev.Stat. § 43-247(3)(a) (Reissue 2004), to be under the jurisdiction of the juvenile court due to the parents' failure to provide proper care. The petition for adjudication alleged that Xavier's parents did not feel they were capable of caring for Xavier while he had the feeding tube.

COMPLIANCE WITH CASE PLAN

Xavier was weaned from the feeding tube to the bottle, and his special needs largely resolved. However, his adjudication began a process in which a case plan for reunification was developed by the Department for Katianne. According to the Department, Katianne was not to be reunited with Xavier until the goals of that plan were met. The goals of the case plan included maintaining steady employment, attending therapy, submitting to random urinalysis testing, attending parenting classes, presenting a budget and receipts for the timely payment of her bills, enhancing her time management skills, maintaining a healthy lifestyle, maintaining her home in a condition suitable for visits, engaging in positive family activities, maintaining communication with service providers, and cooperating with a family support worker to set up visitation with Xavier.

The initial visitation plan under the voluntary placement had been four 2-hour visits per week. As of September 9, 2004, when the Department asked Katianne and Xavier's father to sign a voluntary extension of that agreement, Katianne had not seen Xavier for 3 weeks. She had canceled her visits with Xavier for various reasons, including illnesses of her other children, and also, presumably, for reasons relating to her August 23 hospitalization. By November, after the adjudication, visitation was reduced to twice a week. Because of further missed visits, the frequency and number of which are not reflected in the record, Katianne's visits were reduced to once a week in January 2005.

The only visitation records submitted into evidence by the Department show that between June 1 and December 2, 2005, 48 out of 59 scheduled visits between Katianne and Xavier took place. Each visit lasted approximately 2 hours. Approximately 10 visits were missed, although several canceled visits were due to family members' being ill.

In accordance with the case plan, Katianne immediately began working with Lutheran Family Services to address substance abuse and mental health issues. After an initial evaluation, Lutheran Family Services recommended a 12-week individual and group outpatient therapy program for substance abuse. Katianne had successfully completed the program by the end of December 2004. Katianne also saw a psychiatrist at Lutheran Family Services, who prescribed antidepressants. Ongoing therapy to address general mental health issues was recommended in conjunction with her medication.

Debra Hallstrom was Katianne's therapist through Lutheran Family Services. Hallstrom testified that Katianne was fairly regular in her appointments with her. Still, by the end of December 2004, Katianne had three "late cancels" with the supervising psychiatrist who prescribed her antidepressants. In accordance with Lutheran Family Services' official policy, the three late cancels mandated that Katianne be discharged for all services provided by the program, including her therapy visits with Hallstrom. During her discharge, Katianne sought therapy outside of Lutheran Family Services.

In April 2005, Katianne was allowed back into the program at Lutheran Family Services. Katianne continued her therapy at Lutheran Family Services until October or November 2005, when she was again discharged for three late cancels with her supervising physician. Hallstrom testified that at the time of her discharge, Katianne had partially completed her therapy goals, such as "boundary issues" and "setting goals." Katianne was still working on issues relating to job stability, daycare, and her dependence on Social Security income. Katianne did not have the money to pay for daycare, and she could not rely on Xavier's father to take care of the children. Hallstrom explained that Katianne was not able to get to work when a child was sick, and because of unreliable childcare, this was causing problems with her employment. Although Katianne missed visits to her supervising physician, she did continue taking her antidepressant medication.

Katianne also worked with Raegen Yount, a family...