State v. Cody B. (In re Gavin B.)

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In re Interest of Gavin B., a child under 18 years of age.

State of Nebraska, appellee, v. Cody B., appellant.

No. A-22-569

Court of Appeals of Nebraska

February 14, 2023

THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the Separate Juvenile Court of Lancaster County: Roger J. Heideman, Judge. Affirmed.

Mona L. Burton, of Anderson, Creager & Wittstruck, P.C. L.L.O., for appellant.

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

Moore Bishop, and Welch, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

WELCH JUDGE

INTRODUCTION

Cody B appeals from an order of the Lancaster County Separate Juvenile Court terminating his parental rights to his child, Gavin B. He argues that the State failed to prove by clear and convincing evidence that termination of his parental rights was in Gavin's best interests. For the reasons stated herein, we affirm.

STATEMENT OF FACTS

Cody is the biological father of Gavin, born in January 2017. Gavin's mother relinquished her parental rights and is not part of this appeal. Gavin was removed from Cody's care following a call to police on October 30, 2020. When officers arrived at Cody's residence, they discovered that Cody was exhibiting signs of a mental health crisis with officers describing him as hyper, scared, and paranoid. In the police report, officers noted that Cody suffered from schizophrenia, bipolar disorder, post-traumatic stress disorder, borderline personality disorder, and obsessive-compulsive disorder. Cody admitted to officers that he had not slept in a while and that he had used cannabidiol to calm down. They further reported that Cody had claimed that there were bugs in the Wi-Fi and that he was being set up to be murdered. The officers further observed that the residence was cluttered with visible trash, there was grime throughout the residence and cockroaches and other bugs in the shower, there was no reliable heat source and burn marks on a blanket from a nearby space heater, and there was very little food in the refrigerator. The residence was found to be unsanitary and unsafe. Cody was taken to the hospital for mental health treatment and Gavin was placed in the temporary custody of his paternal grandmother.

On November 3, 2020, the State filed a petition, which was later amended, asserting that Gavin came within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016) as Gavin lacked proper parental care by reason of the faults or habits of Cody; Gavin was in a situation dangerous to life or limb or injurious to his health or morals as a result of Cody's October 30, 2020, mental health crisis which occurred in Gavin's presence; the residence was in an unsafe or unsanitary condition; and that those conditions placed Gavin at risk for harm. An adjudication hearing was held in December 2020, wherein Cody admitted to the allegations contained in the State's petition and the juvenile court found that Gavin came within the meaning of § 43-247(3)(a). Following a dispositional hearing in January 2021, the court ordered Cody to participate in family support services, complete a co-occurring evaluation and follow all the recommendations therein, maintain a safe and stable residence, not possess or consume alcohol or controlled substances, submit to random drug testing, cooperate with a medication assessment, maintain a legal means of support for himself and Gavin, and participate in supervised parenting time.

In January 2021, Cody completed a co-occurring evaluation which recommended residential mental health treatment due to Cody demonstrating serious difficulty functioning in several dimensions. The Department of Health and Human Services (DHHS) received the evaluation recommendations in early March and subsequently completed a referral for residential mental health treatment.

During an April 2021 review hearing, the juvenile court found that "poor progress has been made by [Cody] to alleviate the causes of the Court's adjudication and [Gavin's] out-of-home placement." The court also found that

reasonable efforts, including an initial diagnostic interview, a substance use evaluation, substance abuse treatment, residential mental health treatment, random drug and alcohol testing, family support services, relative placement of the juvenile, and an EDN [Early Development Network] referral, have been made to eliminate out-of-home placement of Gavin.

At the review hearings held on July and October 2021, and January 2022, the juvenile court found that Cody had made poor progress or no progress in alleviating the causes for the court's adjudication and Gavin's placement in out-of-home care.

On January 26, 2022, the State filed a petition to terminate Cody's parental rights under Neb. Rev. Stat. § 43-292 (Reissue 2016) for the reasons that (1) Cody had substantially and continuously or repeatedly neglected and refused to give said juvenile or a sibling of said juvenile necessary parental care and protection under § 43-292(2); (2) that reasonable efforts to preserve and reunify the family if required under section 43-283.01, under the direction of the court had failed to correct the conditions leading to the adjudication under § 43-292(6); and/or (3) the juvenile had been in an out-of-home placement for fifteen or more months of the most recent twenty-two months under § 43-292(7). A hearing on the motion for termination of parental rights was heard on June 27. Testimony was adduced from the DHHS caseworker. The State offered multiple exhibits including the prior case plans and court reports.

Following the hearing, on June 28, 2022, the court entered its order terminating Cody's parental rights based upon its finding that clear and convincing evidence existed to support termination under the statutory bases alleged and that termination was in Gavin's best interests. Cody now appeals from the order terminating his parental rights.

ASSIGNMENT OF ERROR

Cody's sole assignment of error is that the State failed to prove by clear and convincing evidence that termination of his parental rights was in Gavin's best interests.

STANDARD OF REVIEW

An appellate court reviews juvenile cases de novo on the record and reaches a conclusion independently of the juvenile court's findings. In re Interest of Jordon B., 312 Neb. 827, 981 N.W.2d 242 (2022). However, when the evidence is in conflict, an appellate court may consider and 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 Mateo L. et al, 309 Neb. 565, 961 N.W.2d 516 (2021).

ANALYSIS

Cody assigns only that the district court erred in finding that the State proved by clear and convincing evidence that termination of his parental rights was in Gavin's best interests.

In Nebraska, the grounds for terminating parental rights are codified in § 43-292. In re Interest of Mateo L. et al, supra. That statute contains 11 separate subsections, any one of which can serve as a basis for termination when coupled with evidence that termination is in the best interests of the child. Id. It is the State's burden to show by clear and convincing evidence both that one of the statutory bases enumerated in § 43-292 exists and that termination is in the child's best interests. Id.

STATUTORY BASIS FOR TERMINATION

Although Cody does not assign or argue that the evidence was insufficient to support termination under the statutory bases, for the sake of completeness, we review the findings of the district court regarding the statutory basis for termination.

As relevant here, in its petition, the State sought to terminate Cody's parental rights under § 43-292(2), (6), and (7). Subsection 7 provides for termination of parental rights if "[t]he juvenile has been in an out-of-home placement for fifteen or more months of the most recent twenty-two months[.]" It 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. In re Interest of Brelynn E., 30 Neb.App. 723, 972 N.W.2d 442 (2022). In a case of termination of parental rights based on § 43-292(7), the protection afforded the rights of the parent comes in the best interests step of the analysis. Id.

Here, the evidence established that Gavin was removed from Cody's care on October 30, 2020. At the time of the June 27, 2022, termination hearing, Gavin had been in out-of-home care for 19 months of the most recent 22 months. Because Gavin had been in out-of-home care for more than 15 months out of the most recent 22 months, we find no error in the district court's findings that termination under § 43-292(7) was proper. We need not consider the evidence in relation to the additional statutory bases. See In re Interest of Andrew M. et al., 11 Neb.App. 80, 643 N.W.2d 401 (2002) (once appellate court determines the State has established by clear and convincing evidence that termination of parental rights is appropriate pursuant to § 43-292(7), appellate court need not consider issues relating to sufficiency of evidence concerning other statutory provisions identified by trial court as grounds for termination).

Best Interests

Cody assigns that the State failed to prove that termination of his parental rights was in Gavin's best interests. He argues that the State failed to use reasonable efforts to address his mental health. He contends that the biggest barrier to reunification with Gavin was his mental health and that the State did not reasonably provide Cody with help obtaining services to address the concerns and he was not given adequate time to do so.

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