State v. Reon W. (In re Jahon S.)

864 N.W.2d 228

In re Interest of Jahon S., a child under 18 years of age.

State of Nebraska, appellee

v.Reon W., appellant.

No. S–14–1049

Supreme Court of Nebraska.

Filed June 12, 2015

Joseph L. Howard, of Dornan, Lustgarten & Troia, P.C., L.L.O., for appellant.

Donald W. Kleine, Douglas County Attorney, Amy Schuchman, and Jennifer Chrystal–Clark for appellee.

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

Syllabus by the Court

1. 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.

2. Parental Rights: Proof.Under Neb.Rev.Stat. § 43–292 (Cum.Supp.2014), in order to terminate parental rights, the State must prove, by clear and convincing evidence, that one or more of the statutory grounds listed in this section have been satisfied and that termination is in the child's best interests.

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

4. 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.

5. 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.

6. Parental Rights: Statutes: Words and Phrases.The term “unfitness” is not expressly used in Neb.Rev.Stat. § 43–292 (Cum.Supp.2014), but the concept is generally encompassed by the fault and neglect subsections of that statute, and also through a determination of the child's best interests.

7. Constitutional Law: Parental Rights: Words and Phrases.In the context of the constitutionally protected relationship between a parent and a child, 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 caused, or probably will result in, detriment to a child's well-being.

8. 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.

9. Parental Rights.Although incarceration alone cannot be the sole basis for terminating parental rights, it is a factor to be considered.

10. Parental Rights: Abandonment.Although incarceration itself may be involuntary as far as a parent is concerned, the criminal conduct causing the incarceration is voluntary.

11. Parental Rights: Abandonment.In a case involving termination of parental rights, it is proper to consider a parent's inability to perform his or her parental obligations because of incarceration.

12. Parental Rights.Children cannot, and should not, be suspended in foster care or be made to await uncertain parental maturity.

Opinion

STEPHAN, J.

Reon W. and P'lar'e S. are the parents of Zanaya W., Mileaya S., Imareon S., and Jahon S. The separate juvenile court of Douglas County terminated P'lare's parental rights to all four children and Reon's parental rights to Zanaya, Mileaya, and Imareon. Both parents filed timely appeals. We affirmed the terminations in In re Interest of Zanaya W. et al .¹ In a separate proceeding, the same court terminated Reon's parental rights to Jahon, the youngest of the four children. This is Reon's direct appeal from that order.

BACKGROUND

As noted in our opinion in In re Interest of Zanaya W. et al., the three older children were adjudicated as children within the meaning of Neb.Rev.Stat. § 43–247(3)(a) (Reissue 2008) and placed with their father, Reon, after they were removed from the custody of their mother, P'lar'e. But in March 2013, the children were removed from Reon's custody when the Department of Health and Human Services (DHHS) learned that Reon was incarcerated on pending criminal charges. On July 9, Reon pled guilty to a charge of possession of marijuana with intent to deliver, a Class IIIA felony. On September 10, he was sentenced to imprisonment for 3 to 5 years.

Jahon was born in November 2013, while Reon was serving his prison sentence. Two days after his birth, an ex parte order for emergency temporary custody was entered and he was placed in the custody of DHHS. When he was 4 days old, Jahon was placed with the same foster parents who care for his three older siblings, and he remained in that placement with his siblings at the time of the termination hearing.

In September 2014, the State filed a supplemental petition to terminate Reon's rights to Jahon. As grounds, it asserted he had substantially and continuously or repeatedly neglected and refused to give necessary parental care and protection to Jahon and his three older siblings. Reon personally appeared in the juvenile court with counsel on October 28 and entered a denial to the supplemental petition. A termination hearing was held immediately thereafter. Although Reon was present with counsel, he did not testify or offer any evidence.

The State called two witnesses. The first was the foster parent with whom Jahon and his siblings had been placed. She testified that Jahon was placed with her in December 2013 and that his three siblings had been placed with her since April 2013. All four children were in her care at the time of the hearing. She testified that while the children were in her care, Reon had sent several letters to each of them, including Jahon, but had not visited with them in person or by telephone. She

testified that Reon had been incarcerated during the entire time that Jahon had been placed with her.

The second State witness was Janece Potter. She testified that she had served as the family permanency specialist for Jahon and his three siblings and had worked with them and their parents from August 2012 through March 2014, when she took a different position. Potter testified that after they became state wards and were removed from the custody of their mother, Zanaya and Mileaya were placed with Reon in March 2011 and that Imareon was placed with Reon in August 2012. Potter testified that while the children were placed with Reon, she checked on them one or two times each month and had no concerns about their well-being other than an observation that the house was “cluttered.” But in 2013, Potter learned that Reon had been incarcerated in 2012 and that during his incarceration, the children were cared for by Reon's mother. Reon had not reported this incarceration to Potter; she learned of it from another source. On March 29, 2013, Reon was arrested for possession of marijuana with intent to deliver and the three children were removed and placed in foster care. While incarcerated for this offense, Reon was charged with physically assaulting another inmate.

Potter visited with Reon at the correctional facility where he was incarcerated in April 2013. They discussed the fact that drugs had been found in his home, and he reported that he had been smoking an ounce of marijuana a day but denied selling it. Potter stated that Reon was unable to participate in review hearings or receive services during his incarceration.

In January 2014, Potter assumed case management responsibilities for Jahon. She prepared a court report and case plan for a review hearing held in March. The report noted that Jahon's needs for safety, health, and well-being were being met in his foster home and that DHHS was working on an alternative permanency plan of adoption. The report noted that no services had been ordered for Reon, who was still incarcerated. Potter stated that she had been unable to meet with Reon since September 2013 because he had been placed

in isolation. At some point, she learned this was because he had been charged with the assault of another inmate. In March 2014, Potter recommended that a motion to terminate parental rights be filed with respect to all of the children, including Jahon, because of the length of time that the cases had been open and the lack of progress that Reon had made with Jahon and his older siblings.

Potter testified that in her conversations with Reon, he never accepted responsibility for his actions or for how they affected his children. Reon told Potter that he had been employed at the correctional facility but that he either had quit or was fired. He also told her that when released, he planned to move to Florida, where his mother lived. When she asked him if he would be cooperative with DHHS upon his release, he replied that he would participate in services but would not cooperate and “would make it very difficult.” Potter testified that she had determined Reon's projected release date to be in September 2015.

Potter testified that in her opinion, termination of Reon's parental rights was in the best interests of Jahon. She based her opinion on the fact that Jahon had been in foster care for “100 percent of his life” and was in need of care, which Reon could not provide due to his incarceration. She stated that Reon had not been able to make any progress toward reunification with Jahon “[d]ue to being incarcerated” and would not make any such progress during the additional year that she believed his incarceration would continue. She further stated that Jahon would be at risk of harm if returned to Reon and that Reon was not in a position to care for a child because of his incarceration. She also noted that Jahon's siblings had been in foster care for a significant amount of time.

On cross-examination, Potter acknowledged that she had assisted Reon in gaining custody of the three older children before his arrest. As late as February 2013, she believed that placement of the...