State v. Lisa G. (In re Kendra M.)

283 Neb. 1014

814 N.W.2d 747

In re Interest of KENDRA M. et al., children under 18 years of age.State of Nebraska, appellee,

v.Lisa G., appellant.

No. S–11–695.

Supreme Court of Nebraska.

June 15, 2012.

Syllabus by the Court

[283 Neb. 1014]1. Judges: Recusal: Appeal and Error. A motion to disqualify a trial judge on account of prejudice is addressed to the sound discretion of the trial court. An order overruling such a motion will be affirmed on appeal unless the record establishes bias or prejudice as a matter of law.

2. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases de novo on the record and reaches its conclusions independently of the juvenile court's findings. When the evidence is in conflict, however, an appellate court may give weight to the fact that the lower court observed the witnesses and accepted one version of the facts over the other.

3. Statutes: Appeal and Error. To the extent an appeal calls for statutory interpretation or presents questions of law, an appellate court must reach an independent conclusion irrespective of the determination made by the court below.

4. Judges: Recusal. Under the Nebraska Revised Code of Judicial Conduct, a judge must recuse himself or herself from a case if the judge's impartiality might reasonably be questioned.

5. Judges: Recusal: Proof. In order to demonstrate that a trial judge should have recused himself or herself, the moving party must demonstrate that a reasonable person who knew the circumstances of the case would question the judge's impartiality under an objective standard of reasonableness, even though no actual bias or prejudice was shown.

6. Judges: Recusal: Presumptions. A party seeking to disqualify a judge on the basis of bias or prejudice bears the heavy burden of overcoming the presumption of judicial impartiality.

7. Parental Rights: Proof. In order to terminate an individual's parental rights, the State must prove by clear and convincing evidence that one of the statutory grounds enumerated in Neb.Rev.Stat. § 43–292 (Cum.Supp.2010) exists and that termination is in the child's best interests.

8. Statutes: Legislature: Public Policy. It is the Legislature's function through the enactment of statutes to declare what is the law and public policy.

9. Statutes: Appeal and Error. Absent anything to the contrary, an appellate court gives statutory language its plain and ordinary meaning.

10. Parental Rights: Proof. The fact that a child has been placed outside the home for 15 or more months of the most recent 22 months does not demonstrate parental unfitness.

11. Parental Rights: Proof. Only one statutory ground for termination need be proved in order for parental rights to be terminated.

12. 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 also show that the parent is unfit.

[283 Neb. 1015]13. 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.

14. Child Custody: Words and Phrases. Parental unfitness means a personal deficiency or incapacity which has prevented, or will probably prevent, performance of a reasonable parental obligation in child rearing and which has caused, or probably will result in, detriment to a child's well-being.

15. 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.

Rachel A. Daugherty, of Myers & Daugherty, P.C., L.L.O., for appellant.

Lynelle Homolka, Merrick County Attorney, for appellee State of Nebraska.

Matthew C. Boyle, of Lauritsen, Brownell, Brostrom & Stehlik, guardian ad litem for appellant.

Jerom E. Janulewicz, Grand Island, of Mayer, Burns, Koenig & Janulewicz, guardian ad litem.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, McCORMACK, and MILLER–LERMAN, JJ.

STEPHAN, J.

Lisa G., the biological mother of Kendra M., Matthew G., and Katrina G., appeals from an order of the county court for Merrick County, sitting as a juvenile court, terminating her parental rights to the three minor children. Paternal rights are not at issue in this case. We affirm.

BACKGROUND

The facts relevant to the issues in this appeal span a period of several years. Because resolution of the appeal is highly dependent upon these facts, we recount them in some detail.

Family Members and Relationships

Lisa has given birth to eight children, including two sets of twins. Her first children, twin girls, were born in July 1994. Kendra was born in March 1996, Matthew in June 1998, and Katrina in September 1999.

In October 2008, Lisa gave birth to another set of twin girls, Dakota S. and Destiny S., and her son Johnathan F. was born in October 2010. Mark F. is Johnathan's father and Lisa's current boyfriend. Dakota, Destiny, and Johnathan reside with Mark and Lisa, and Lisa's parental rights with respect to those three children are not at issue in this case.

Lisa's mother is Paula B. At all relevant times, Robert L. was Paula's boyfriend. Teresa R. and Gregory R. (Greg) are the court-appointed guardians of Kendra, Matthew, and Katrina.

Lisa's History With Nebraska Department of Health and Human Services

The twin girls born in 1994 were twice hospitalized in the months following their births. Lisa's visits to the hospital were minimal, and she showed little interest in the twins. Petitions to adjudicate each twin based on Lisa's neglect were filed in Red Willow County, Nebraska, in November 1994. Lisa failed to make progress on her case plan, and her parental rights to the twins were terminated in August 1998. The order terminating Lisa's parental rights was appealed and affirmed by this court.¹

In November 1998, when Matthew was nearly 5 months old and Kendra was 2 years old, the Nebraska Department of Health and Human Services (DHHS) received a report regarding the condition of Lisa's home. An investigation revealed that the home contained dog excrement and was filled with junk. The home's source of heat was an unguarded stove that presented a burn hazard to the children. Lisa cleaned the home, but the stove remained unguarded. Lisa thereafter refused to let DHHS officials into her home.

Due to ongoing concerns with the condition of the home, Lisa's lack of cooperation with DHHS, and Kendra's slow development, a juvenile petition with respect to Kendra and Matthew was filed in Clay County, Nebraska, in January 1999. The children were adjudicated in March and placed in the legal custody of DHHS but remained in Lisa's care.

In June 1999, Lisa reported suspicions that Kendra, then 3 years old, had been sexually molested. Lisa reported that in mid-January, Kendra began stripping herself and acting out sexually following a night she spent with Paula and Robert. Kendra apparently said, “ ‘Bob did it.’ ” Robert was charged with sexual assault, but the case was later dismissed. Robert was a registered sex offender, and Lisa had been warned by several parties prior to this time not to leave the children alone with him. The juvenile case filed in January 1999 was dismissed on May 16, 2000. At the time, Lisa was seeing to the children's needs and was employed.

In October 2004, a DHHS employee visited Lisa's home after receiving a report of a red mark under Kendra's eye. Despite Kendra's claim that Paula caused the bruise by intentionally hitting her, the report was closed as unfounded. During the visit, Lisa told the DHHS employee that she and the children were living with Paula and Robert. The employee told Lisa that Robert was a convicted sex offender and that the conviction stemmed from sexually assaulting young boys similar in age to Kendra and Matthew. Lisa allegedly responded by stating that she had no concerns about Robert and felt that Robert was falsely convicted of the crimes. Lisa denied ever saying that Robert was falsely accused, but admitted she knew as of October 2004 that Robert had a sexual assault conviction. Lisa also testified that Robert was not living with her in October 2004 and that although Paula moved in with her at a later date, she did not allow Robert to also live with her and the children.

Adjudication of Kendra, Matthew, and Katrina

On February 15, 2005, Lisa went to a community agency seeking relocation assistance and reported that Robert had sexually assaulted the children. Lisa reported that a few days earlier, she had heard Robert hit Matthew and then take him into the bathroom. She heard Matthew screaming “ ‘stop’ ” and “ ‘no.’ ” At the same time, Paula was physically assaulting Kendra and Lisa was trying to stop that assault. Lisa reported that when Matthew came out of the bathroom, he was pulling up his pants. Lisa further reported that she left the children alone with Paula and Robert following this incident, but she later denied doing so.

Following Lisa's report, the children were interviewed. Kendra and Matthew disclosed physical and sexual abuse, and Katrina disclosed physical abuse. Paula and Robert were each charged with sexual assault of a child and felony child abuse. Robert entered a plea of no contest to the felony child abuse charge, for which he was sentenced to 4 to 5 years' imprisonment. Paula pled no contest to misdemeanor child abuse and was sentenced to 75 days' imprisonment.

The three children were removed from Lisa's care on February 16, 2005. The petition which commenced this proceeding was filed on February 23 and alleged that Kendra, Matthew, and Katrina were juveniles as defined by Neb.Rev.Stat. § 43–247(3)(a) (Reissue 2004), because they lacked proper parental care. The children have not...