Summary - Nebraska Bar Association
http://www.nebar.com/resources/nelawexp ... ul20.htm#5
Date Filed and Case No.: July 15, 2005. No. S-04-028.
Internet Address: http://court.nol.org/opinions/2005/july ... 04-028.htm
Court Appealed From: Petition for further review from the Nebraska Court of Appeals, Inbody, Chief Judge, and Irwin and Carlson, Judges, on appeal thereto from the County Court for Dodge County, Gerald E. Rouse, Judge.
Attorneys for the Appeal: James Walter Crampton for Shawna L., appellant. Jon Bruning, B. Gail Steen, and Jeri Grachek for State of Nebraska, appellee and cross-appellee. Leta F. Fornoff for Robert Z., appellee and cross-appellant. Jeffrey A. Wagner for Donald L. and Judy L., intervenors-appellees and cross-appellants. Pamela Lynn Hopkins, guardian ad litem.
Justices: Hendry, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman, JJ.
Authored By: Connolly, J.
Shortly after Shelby L.’s birth to her mother, Shawna L., she suffered from several serious health problems which included a congenital heart disease requiring surgery at 10 weeks, respiratory syncytial virus (RSV) and pneumonia at 6 weeks, gastric reflux, and asthma. She was also diagnosed with a tear duct problem and required ear tubes. In May 1999, when Shelby was 16 months old, Shawna took Shelby to the emergency room with a second- and third-degree burn on her hand. Shortly after this incident, the Nebraska Department of Health and Human Services (DHHS) received a call from a person alleging that Shawna had “medically” and physically abused Shelby. On June 24, DHHS removed Shelby from Shawna’s home and placed her in protective custody.
From the start, DHHS suspected abuse related to “Munchausen’s Syndrome by Proxy” (MSBP) (factitious disorders in children produced by their parents or caregivers). Later, in November 1999, the Dodge County Court, sitting as a juvenile court, determined that Shelby was a child in need of special supervision under Neb. Rev. Stat. § 43-247(3)(a) (Reissue 1998). Shelby remained in foster care for almost 2 years, including 1 year with Shawna’s sister and her husband. Around June 1, 2001, DHHS returned Shelby to Shawna. One of the conditions of reunification required Shawna to take Shelby to only one doctor, a new pediatrician, Madeleine MacDonald. In March 2002, however, DHHS removed Shelby again and placed her back with Shawna’s sister because Shelby’s caseworker, believed Shawna continued to seek unnecessary medical care. The permanency objective was changed from reunification with Shawna to a guardianship with a concurrent goal of adoption which was adopted by the juvenile court that July. Shawna appealed the juvenile court’s order changing the permanency objective but the Court of Appeals affirmed (In re Interest of Shelby L., No. A-02-900, 2003 WL 1962921 (Neb. App. Apr. 29, 2003) (not designated for permanent publication) (In re Interest of Shelby L. I)).
On 06/24/03, 1 month after the Court of Appeals affirmed, the State moved to terminate the parental rights of Shawna and Robert Z., the biological father alleging grounds for termination under both § 43-292(7) (15 of most recent 22 months in out-of-home placement) and (6) (reasonable efforts to preserve and reunify family have failed to correct conditions leading to adjudication). Before the termination petition was filed, DHHS removed Shelby from Shawna’s sister’s home because of her sister’s marital and family problems. At that time, Clark determined that it was in Shelby’s best interests to terminate Robert and Shawna’s parental rights and placed Shelby in a “fos-adopt” home.
After the State filed termination proceedings, the juvenile court granted the maternal grandparents, Donald L. and Judy L.’s petition to intervene but declined to adjudicate their request until after Shawna’s rights were determined.
The juvenile court terminated the parental rights of Shawna and Robert based on Neb. Rev. Stat. § 43-292(6) and (7) (Reissue 2004). All three parties, Shawna, Robert, and Donald and Judy, appealed. The Nebraska Court of Appeals affirmed. In re Interest of Shelby L., No. A-04-028, 2004 WL 2935857 (Neb. App. Dec. 21, 2004) (not designated for permanent publication) (In re Interest of Shelby L. II). Shawna and Donald and Judy petitioned for further review. Robert and Shawna are divorced, and he has not sought further review. The Supreme Court granted Shawna’s petition for further review.
The Supreme Court wrote that the State satisfied the statutory ground for termination under subsection (7). “If this were the only ground for termination, the only question would be whether termination was in Shelby’s best interests” they said. But here, the juvenile court also found grounds for termination under subsection (6) so under precedent, the evidence adduced to prove termination on any statutory ground other than subsection (7) is “highly relevant to the best interests of the juvenile, as it would show abandonment, neglect, unfitness, or abuse.” In re Interest of Aaron D., 269 Neb. 249, 260, 691 N.W.2d 164, 173 (2005). “Thus, whether the State proved by clear and convincing evidence grounds for termination under subsection (6) is highly relevant to a determination of Shelby’s best interests.”
Here, the juvenile court found clear and convincing evidence that Shawna had failed to comply with her goals and objectives and had placed Shelby at risk. The Court noted the juvenile court’s specific findings. “The juvenile court’s finding that Shawna failed to immediately seek emergency medical treatment obviously does not support termination based on the relevant allegation from the adjudication petition, i.e., that Shawna had subjected Shelby to unnecessary medical treatment to her detriment” wrote the Court. The Court noted the irony. “The court not only ignored the relevant allegation, its finding demonstrates Shawna’s dilemma. On the one hand, the juvenile court viewed Shawna’s attempts to comfort Shelby before seeking emergency medical care as an indication that she did not recognize when Shelby required emergency medical care. On the other hand, (Stephanie Clark, Shelby’s caseworker) testified that there was no reason for Shawna to seek emergency medical care over this 3-day period and even emphasized the emergency room visits to bolster her opinion that Shawna was seeking unnecessary medical care.”
The Court of Appeals had affirmed the termination order based on Clark’s testimony. The Supreme Court recognized that at the adjudication hearing, Shawna admitted to seeking unnecessary medical care to Shawna’s detriment. At the termination hearing, however, Clark testified to specific facts about Shelby’s health and medical contacts in her first 17 months which the State introduced as circumstantial evidence that Shelby was at risk whenever Shawna was responsible for her medical decisions. The Court noted that the State’s proof that Shelby was at risk with Shawna depended heavily upon contrasting Shelby’s health and medical contacts while in Shawna’s care to her health and medical contacts while in foster care. The State’s conclusion hung on two premises: (1) Shelby was seen by a doctor less frequently in foster care and (2) Shelby’s health substantially improved in foster care. “But the State’s argument and conclusion collapse under the weight of the evidence” said the Court. “First, the State failed to prove its premise that Shelby was substantially healthier in foster care. More important, the State’s premises do not necessarily support its conclusion.” Reviewing the record, the Court ruled that, in sum, the State produced no evidence that Shawna intentionally induced or falsified Shelby’s symptoms or was even suspected of this behavior. Furthermore, the State failed to adduce expert testimony that Shawna was diagnosed with MSBP disorder. In the absence of proving medical abuse, the State had shown that Shawna is overprotective, excessively worries, and sometimes takes Shelby to the doctor for minor problems but Shelby’s physician did not believe Shelby had been harmed by any of Shawna’s medical contacts, and Clark could not point to any harm because of these contacts.
The Court determined that the State had failed to prove by clear and convincing evidence grounds for termination of Shawna’s parental rights under subsection (6). “Nor has the State proved that it is otherwise in Shelby’s best interests to terminate Shawna’s parental rights” ruled the Court.
Because the Court determined that the State failed to prove by clear and convincing evidence that it is in Shelby’s best interests to terminate Shawna’s parental rights, the Court found it unnecessary to address the Court of Appeals’ determination that it lacked jurisdiction to consider Donald and Judy’s appeal. REVERSED.