t,

, ,
Case No. A-00-0277
IN THE NEBRASKA COURT OF APPEALS
FILED
___________________---""J:..=UN'--'----""'2 1 2000
IN THE INTEREST OF SABRIENIA BRUCE
Child Under Eighteen Years of Age
APPEAL FROM THE SEPARATE JUVENILE COURT
FOR DOUGLAS COUNTY, NEBRASKA
Honorable Douglas F. Johnson
Juvenile Court Judge
BRIEF OF APPELLEE
Prepared and Submitted by:
JAMES S. JANSEN
Douglas County Attorney
KAREN KASSEBAUM NELSON #20523
Deputy Douglas County Attorney
601 Hall of Justice
17th and Farnam Streets
Omaha, Nebraska 68183
(402) 444-7051
Attorney for Appellee
CLERK
NEBRASKA SUPREME COURT
COURT OF .A.PPEAlS
TABLE OF CONTENTS
STATEMENT OF THE CASE '" 1
A. Nature of the Case 1
B. Issues Actually Tried 1
C. How the Issues Were Decided 1
D. Standard Review 1
E. Jurisdictional Statement. 2
PROPOSITIONS OF LAW 2
STATEMENT OF FACTS 5
ARGUMENT:
I. THE TRIAL COURT DID NOT ERRIN FINDING A CAUSE
OF ACTION WAS STATED PURSUANT TO 43-292(6)ANDDID
NOT VIOLATE HOGNER'S PROCEDURAL DUE PROCESS
RIGHTS AS A RESULT THEREOF 17
II. THE TRIAL COURT DID NOT ERRIN OVERRULING
HOGNER'S DEMURRER OR VIOLATE HOGNER'S
PROCEDURAL DUE PROCESS RIGHTS AS THE STATE'S
PLEADINGS STATED A CAUSE OF ACTION .20
III. THE TRIAL COURT DID NOT ERRIN FINDING A
TERMINATION WAS IN SABRIENIA'S BEST INTERESTS 22 .
IV. THE TRIAL COURT DID NOT ERRIN FINDING HHS USED
"ACTIVE EFFORTS" AND THEREBY DID NOT ERRIN
TERMINATING HOGNER'S PARENTAL RIGHTS 27
V. THERE WAS AMPLE EVIDENCE FOR THE TRIAL COURT
TO TERMINATE HOGNER'S PARENTAL RIGHTS TO
SABRIENIA BRUCE BY BEYOND A REASONABLE DOUBT
UNDER 43-292(6) 32
CONCLUSION 34
CASES CITED
Babcock v. St. Francix Medical Center, 4 Neb.App. 362, 543 N.W.2d 749 (1996)......3,17
Boll v. Nebraska Department of Revenue, 247 Neb. 473, 528 N.W.2d 300 (1995).......3,18
In re Interest C.P., 235 Neb. 276, 455 N.W.2d 138 (1990)" "" .3,18,32
In re Interest ofC.W. et.al., 239 Neb. 817,479 N.W.2d 105 (1992)." ....4,5,22,23,25,26,32
In re Interest of J.B. and A.P., 235 Neb. 74,453 N.W.2d 477 (1990)" : " .32
In re Interest of J.H" 242 Neb, 905,496 N.W.2d 346 (1993)"" " 31
In re Interest of John T., 4 Neb.App. 79, 538 N.W.2d 761 (1995) 31
In re Interest L.H. et.al., 241 Neb. 232, 487 N.W,2d 279 (1992) 2
In re Interest ofLJ., 220 Neb. 102,368 N.W.2d 474 (1985) " 25
In re Interest of Kelley D. and Heather D., 256 Neb. 465, 590 N.W.2d 392 (1999)......3,17
In re Interest of Teela H., 4 Neb.App. 608, 546 N.W.2d 512 (1996) " 25
Keithley v. Black, 239 Neb. 685,477 N.W.2d 806 (1991) " 5,33
Morton v. Fanner's Business Cooperative of Shelby, 1 Neb.App. 552, 510 N.W.2d
326 (1993) 5,33
State ex.rel. Grape v. Zach, 247 Neb. 29, 524 N.W.2d 788 (1994) ", 3,17
STATUTES CITED
Neb. Rev. Stat. 25-833 (Reissue 1995) ".." " " : 4,19,21
Neb. Rev. 81m. 27-702 (Reissue 1995) " " .4,22
Neb. Rev. Stat. 43-247 20
Neb. Rev. Stat. 43-274 (1) 20
StU. 43-279 (Reissue 1998) 20
Neb. Rev. Still. 43-279.01 (Reissue 1998) 3,17
Ncl2. B&Y. Stat. 43-292 2,5,18,20,32
Rev. StU. 43-291 (1) (Reissue 1998) 1,33,34
Rev. Stat. 43-292 (2) (Reissue 1998) .1,33,34
Neb. Rev. Stat. 43-292 (6) (Reissue 1998) .1,17,32,33,34
Neb. Rev. Stat. 43-1501 32
Stat. 43-1505 (4) (Reissue 1998) .4,18
Stat. 43-1505 (6) (Reissue 1998) .4,18,22
Neb. Rev. Stat. 43-2,106.01 (Reissue 1998) : 2
OTHER AUTHORITIES
Nebraska Supreme CQurt Rule 9(D)(1)(d) 5,33
STATEMENT OF THE CASE
Nature of the Case:
Roseann Hogner appeals a February 25,2000, order of the Separate Juvenile
Court for Douglas County terminating her parental rights to Sabrienia Bruce.
The Issues Actually Tried:
The Separate Juvenile Court for Douglas County was asked to determine if there
was evidence beyond a reasonable doubt to terminate Roseann Hogner's parental rights to
Sabrienia Bruce under N e b . ~ . StU. 43-292 (1), (2), (6) (Reissue 1998).
Specifically, the State alleged that Sabrienia Bruce came within the meaning of 43-292
(2) because Roseann Hogner was not consistently visiting said child; that Sabrienia Bruce
came within the meaning of 43-292 (6) because Roseann Hogner had failed to complete
court-ordered psychiatric evaluations and to keep Nebraska Health and Human Services
[HHS] appraised ofher whereabouts; and that Sabrienia Bruce came within the meaning
of 43-292 (1) because Roseann Hogner had only one authorized contact with Sabrienia
the six (6) months preceding March 5, 1998, at which time she attempted to abduct
Sabrienia and had only limited unauthorized contact with Sabrienia Bruce.
How the Issues Were Decided:
On or about February 25,2000, the Separate Juvenile Court for Douglas County
terminated Roseann Hogner's parental rights to Sabrienia Bruce under 43-292 (1), (2),
and (6).
Standard of Review:
In an appeal terminating parental rights, an appellate court tries factual questions
de novo on the record which requires an appellate court to reach a conclusion
independent of the findings ofthe trial court. In re Interest L.H, et.a!., 241 Neb. 232, 487
N.W.2d 279 (1992). When evidenceis in conflict, an appellate court considers and may
give weight to the fact that the trial court observedthe witnesses and acceptedone
version of facts rather than another" Id.
Jurisdictional Statement:
This appeal is pursuant to Neb. Rev. Stat. 43-2,106,OI (Reissue 1998) which
states that, "Any final order or judgment enteredby a juvenile court may be appealed to
the CourtofAppeals."
PROPOSITIONS OF LAW
I.
In an appeal terminating parental rights, an appellatecourt tries factual questions de novo
on the record which requires an appellatecourt to reach a conclusion independent of the
findings of the trial court. In re Interest L.H, et.a!., 241 Neb. 232, 487 N,W.2d 279
(1992).
II.
When evidence is in conflict, an appellatecourt considers andmay give weight to the fact
that the trial court observed the witnesses and acceptedone version of facts rather than
another. In re Interest L.H. et.a!., 241 Neb. 232, 487 N.W.2d279 (1992).
III,
To terminate parental rights, there must be clear and convincing evidenceto show a
factual basis, as contemplatedby one or more ofthe subsections in 43-292, exists and
2
also that the children's best interests are served by terminating parental rights. Inre
Interest C.P., 235 Neb. 276, 455 N.W.2d 138 (1990).
IV.
The hallmarks of procedural due process are reasonable notice concerning the subject to
be litigated; a reasonable opportunity to be heard, to present evidence, and to confront
and cross-examine adverse witnesses; representation by counsel when required by statute
or Constitutional provisions; and a hearing before an impartial decision-maker. In re
Interest of Kelley D. and Heather D., 256 Neb. 465, 590 N.W.2d 392 (1999), Babcock v.
St. Francix Medical Center, 4 Neb.App.362, 543 N.W.2d 749 (1996) and State ex.rel.
Grape v. Zach, 247 Neb. 29, 524 N.W.2d 788 (1994). See also Neb. Rev. Stat. 43-
279.01 (Reissue 1998).
v.
In construing the guarantees ofprocedural due process under the Fourteenth Amendment
to the United States Constitution, the Nebraska Supreme Court has held that the
requirements of due process are satisfied if the individual has reasonable notice and a
reasonable opportunity to be heard as long as such opportunities are appropriate to the
nature of the proceedings as well as the character of rights which may be affected. Boll v.
Nebraska Department of Revenue, 247 Neb. 473, 528 N.W.2d 300 (1995).
3
VI.
Under the Nebraska Indian Child.Welfare Act [ICWA], Ncl2, B&Y. Stat. 43-1505 (4) and
(6) , the State must showthat, "active efforts," were used to provide, "remedial services
and rehabilitativeprograms designedto prevent the breakup of the Indian family," and
that, "continued custodyofthe child by the parent or Indiancustodian is likely to result in
serious emotional or physical damage."
VII.
Under Ncl2, ~ . Stat. 25-833 (Reissue 1995), a partymay file amotion to make more
definite and certain, "when the allegations of a pleadingare so indefiniteand uncertain
that the precise nature ofthe charge or defense is not apparent."
VIII.
The State is requiredto showvia expert testimony that, "continuedcustodyof the child
by the parent or Indian custodian is likelyto result in seriousemotional or physical
damage." See Neb. Rev. Stat. 43-1505 (6) (Reissue 1998).
IX.
Whether a witness is qualified to testify as an expert pursuant to Neb. Rev. Stat. 27-702
(Reissue 1995), is a preliminary questionof admissibility and that such a determination
will be upheld on appeal unless that finding is clearlyerroneous. See In re Interest of
C.W. et.al., 239 Neb. 817,479 N.W.2d 105 (1992).
4
x.
The Indian Child Welfare Act, "does not change the cardinal rule that the best interests of
the child are paramount, although it may alter its focus." See In re Interest ofC.W. et.a!.,
239 Neb. 817,479 N.W.2d 105 (1992).
XI.
Under the Rules of the Supreme Court promulgated by the Nebraska Supreme Court, an
appellants are required to separately number and paragraph in their appellate briefs each
assignment of error which she contends the juvenile court made. See Nebraska Supreme .
Court Rule 9(D){l)(d).
XII.
Appellate review is limited to errs assigned and argued, and errors not assigned in an
appellate brief are deemed waived. See Keithley y. Black, 239 Neb. 685,477 N.W.2d
806 (1991); Morton v. Farmer's Business Cooperative of Shelby, 1 Neb.App.552, 510
N.W.2d 326 (1993).
STATEMENT OF FACTS
On or about March 5, 1999, the State filed a motion seeking to terminate Roseann
Hogner's parental rights to Sabrienia Bruce under 43-292. In March 1999, Ms. Hogner
filed a motion to dismiss the State's motion to terminate parental rights, and when the
. motion to dismiss was overruled, Ms. Hogner appealed that decision to the Nebraska
Court of Appeals. The Nebraska Court of Appeals granted the State's motion for
summary affirmance, and the matter on the motion to terminate parental rights was
adjudicated on January 31, February 1, February 7, and February 23,2000. The Separate
5
Juvenile Court for Douglas County took judicial notice of a September 8, 1998 order
finding that the Nebraska Indian Child Welfare Act [ICWA] applied to this case, and the
State stipulated that ICWA applied. (7:2-9) At the hearing, the State called Dr. Leslie
Joseph, Ph.D., Trisa High, Stephanie Hoesing, Sharon Frillman, Judy Enders, Donna
Skala, and Brenda Shepherd.
Leslie Joseph, Ph.D., testified that he is employed as a licensed psychologist at
Alegent Health. (8:8-22) Dr. Joseph testified that he completed an intake evaluation as
well as some psychological testing on Roseann Hogner on April 16, 1999 and May 6,
1999. (9:13-17;11 :10-14) Dr. Joseph's report, exhibit 5, was received into evidence.
(12: 11-18) When asked whether she hears voices, Hogner initially indicated she heard a
"squeaky voice" but when asked again, she paused and then answered that she did not
hear voices. (17:19-18:2) Dr. Joseph concluded, "This patient meets the criteria to be
classified as an adult with severe and persistent mental illness," and that,
[Ms. Hegner] can be expected to encounter significant difficulties in her
attempts to cope with stress and manage herself, her relationships and life
situations adaptively. Roseann was encouraged to seek a psychiatric
evaluation in that possible antidepressant and anti-anxiety medications
could be quite beneficial for her. Unfortunately, she seems quite reluctant
to seek such help at this time. (E5p4-5;See alsoI9:13-20)
In exhibit 5, Dr. Joseph diagnosed Hogner with major depression-recurrent with
psychotic features--and indicated Hogner may be manifesting Paranoid and Schizotypal
Personality Traits. (E5p5) Dr. Joseph testified that, without medication, court-ordering
Ms. Hogner to undergo individual therapy or attend parenting classes would serve no
useful purpose due to Hogner's level of depression, stress, and mental confusion. (22:12-
6
23:5) Dr. Joseph felt that Hogner's prognosis without a psychiatric evaluation and
medication was poor. (45:22-46:1)
The State next called Trisa High, a therapist at Maplewood Counseling
Associates. (50:25-51 :9) High explained that she began providing therapy to Sabrienia
Bruce and Judy Enders, Sabrienia's great-aunt and foster care placement, on June 10,
1999. (53:3-14) At the time of the hearing, High was still working with Sabrienia at her
foster placement once a week on communication issues, relationship skills, and behavior
management. (53:21-54:6) .
Stephanie Hoesing testified that she was previously employed at Nebraska Health
and Human Services [HHS] as a case manager from October 1997 to October 1998.
(90:9-7) Hoesing was the case manager for Roseann Hogner and her daughter Sabrienia.
(91:13-19) Hoesing explained that she was aware that Roseann Hogner was court-
ordered to complete a psychiatric evaluation. (91:25-92:4) Hoesing scheduled a
psychiatric evaluation for Hogner on February 24, 1998, with Dr. Copaz and made
arrangement to transport Hogner to that appointment. (92:8-6) Hogner did not complete
the February 24, 1998, psychiatric evaluation. (93:14-16) Subsequently on February 25,
Hoesing rescheduled the psychiatric evaluation for March 17, 1998, personally notified
Hogner ofthe appointment, and explained that she was personally transporting Hogner to
the March 17, 1998, appointment. (94:1-18) On February 25, 1998; Hoesing stressed to
Hogner how important it was to keep the March 17, 1998 appointment as the psychiatric
evaluation was court-ordered. (94:7-18) Hogner told Hoesing on February 25, 1998, that
she missed the appointment on the 24th because she was looking for a place to live.
7
, r
(98:22-24) Hoesing reminded Hagner on March 13th of the March 17th appointment.
(99: 11-19) When Hoesing showed up to transport Hagner to the March 17th
appointment, Hagner was not there. (94:19-23) After the June 1998 court hearing,
Hoesing again scheduled another psychiatric evaluation with Dr. Copaz on August 18,
1998, had a letter informing Hagner of the appointment, hand-delivered through the
family support worker, and again made transportation arrangements for Hagner. (95:3-
11) Again on August 18, 1998, Hoesing attempted to personally take Hagner to the
psychiatric evaluation, but Hagner did not keep that appointment. (108:11-16)
Hoesing spoke with Hagner on February 4, 1998, at which time Hagner informed
her that she was at the SienafFrancis House, needed bus tickets to attend visits, and on
February 5, Hoesing dropped-off those bus tickets for Hagner at the Siena/Francis House.
(96:22-97:1) Hoesing next saw Hagner on February 10, 1998, during a scheduled visit
and at that time, Hagner informed Hoesing that she would be leaving the Siena/Francis
House to go live with a friend somewhere off of21st and Howard Streets (no specific
address or telephone number given). (97:4-18) When Hoesing saw Hagner on February
20, 1998, Hogner again indicated to Hoesing that she wanted to move but did not know
where. (98: 1-7) On February 25th, Hogner informed Hoesing that she had stayed the
previous night at a Travel Lodge, that she was looking for a place to live because she and
her boyfriend had broken-up, and that she was applying to the Salvation Army for
housing. (98: 19-99: 10) On March 13th, Hagner explained to Hoesing that she had been
at the Lydia House, but she left the Lydia House because she was again staying with her
boyfriend, that they were staying the night at the Travel Lodge, and beyond that she did
8
not know where they would be staying. (99: 11-100:5) On the day of the adjudication on
March 23, 1998, Hoesing spoke with Hogner who told her that she was staying with
friends somewhere near 26th and Howard Streets and could not give out the phone
number at the friends' request. (100:6-23) On May 6, 1998, Hoesing again spoke with
Hogner because her boyfriend had pushed her, she left, and was again looking for
housing. (103:24-104:5) Hoesing explained that Hogner was not allowed into most of
the shelters in the Omaha area, and that Hogner was able to borrow thirty dollars from her
brother and get bus tickets from Hoesing to spend the night at the YMCA. (104:5-15)
Hoesing next spoke with Hogner on June 4, 1998 at which time Hogner was again at the
Siena/Francis House. (104:24-105:5) Hoesing explained that during the ten (10) months
she was the case manager, Hogner resided at numerous shelters or other locations, and
Hogner was not cooperative in keeping Hoesing appraised of her whereabouts. (107: 10-
21)
On April 27, 1998, Hoesing attended a supervised visit at the Salvation Army at
which time she had the opportunity to discuss the sporadic visits and to explain the
confirmation plan which was going to be implemented. (100:24-101:19) Exhibit 14,
which was received into evidence, is a copy of the visitation plan which outlines the
dates, time, and confirmation numbers of visits; Roseann Hogner signed the visitation
plan. (101: 13-103:17) At the termination hearing, the State stipulated that Hogner kept
all of her February 1998 visits. (116: 1-8) In March 1998, however, Hogner only kept
four visits, failed to show for five visits, and there was one canceled visit due to the
weather. (125:12-25) In April 1998, Hogner missed six visits and kept two visits.
9
(126:7-11) In May 1998, there were six missed visits and only one visit which was kept.
(126:12-14) In June 1998, there were two missed visits and five visits which were kept.
(126: 15-17) In July 1998, there were six missed visits and again only two visits kept.
(126: 18-20) Hoesing explained that the above-referenced sporadic visitation was
consistent with Hogner's visitation pattern while Hoesing was case manager. (126:24-
127:9)
Hoesing explained that she understood this to be an lCWA case and initiated the
change of placement for Sabrienia to Judy Enders, as a Native American relative who was
a licensed foster care provider, in an effort to comply with K'WA. (111:3-19)
Judy Enders, Sabrienia's great-aunt, testified that Sabrienia was placed in her
home on August 3, 1998. Enders explained that she enrolled Sabrienia
into the Cherokee Nation Tribe because she felt it was Sabrienia's right. (165:7-166:6)
Enders is enrolled in the Rosebud Sioux Tribe and has taken efforts to make sure that
Sabrienia is exposed to the Native AmericanlIndian culture, and those efforts include
going to powwows, having fry bread, listening to Native AmericanlIndian music,
teaching Sabrienia some of the language, saying Native American prayers, and having
Native AmericanlIndian artifacts in her home. (166:13-167:12)
Enders explained that Hognerarrived at her home on September 30, 1998 and
wanted to take the children trick or treating. (171: 15-172: 13) . After taking Hogner to the
store and explaining that Halloween was a month away, Enders allowed Hogner into her
residence and let her visit with Sabrienia. (172:8-173 :2) On October 24, 1998, Hogner
again showed up at the Enders residence thinking it was Halloween, but Enders asked
'10
Hogner to leave at that time. (177:7-25) Between October 1998 and May 1999, Enders
is aware ofHogner having approximately one visit with Sabrienia. (170:23-
171:7;173:17-20)
Donna Skala testified that she was previously employed at Visinet as a family
support worker. (234:14-235:2) As a family support worker, Skala supervised visits,
transported children to visits, and would help parents look for jobs and housing. (235:3-
7) Skala supervised visits between Hogner and Sabrienia between April/May 1998 and
November 1998. (236:2-19) Skala testified that on November 2, 1998, there was a visit
at which Hogner arrived late and then started yelling and screaming. (240:20-242:22) At
one point, Hogner grabbed Sabrienia and security had to be called in order for Hogner to
put Sabrienia down. (243:7) Skala testified that while there were visits on October 2,
1998, and November 2, 1998, there were no visits from October 5, 1998, through October
30, 1998, because Roseann failed to confirm those visits. (238:1-2;240:19;244:23-24)
Skala also explained that there were no visits between September 5, 1998, and September
28, 1998; Skala did explain that she was ill and had to cancel a visit but Hogner failed to
reschedule that visit. (244:25-246: 17) The last visit Skala was to supervise was on
November 14, 1998, but that had to be canceled because Sabrienia had pink eye.
(246: 18-23) Skala testified that Hogner was very inconsistent in keeping her visitation
with Sabrienia; that is, Hogner could have visits up to twice per week but that rarely
happened because Hogner would either fail to confirm a visit or would call and cancel the
visit. (247:2-25)
11
, )
Skala also attempted to assist Hogner in obtaining housing, through Section 8, in
finding shelter care, and in locating ajob. (248:8-16) While Skala was the family
support worker, Hogner made no progress on the housing and employment goals.
(248:20-21) Skala explained that Hogner would say she would do something but then
failed to follow-through and was not interested in attempting to locate a two-bedroom
residence. (248:23-8)
Sharon Frillman, a family support worker and visitation specialist with Visinet,
testified that she was assigned to supervise visits between Roseann Hogner and Sabrienia '
Bruce. (133:10-135:3) Frillman explained that she was assigned the case in the second
week of November 1998 andstated that the last visit she attempted occurred on
December 31, 1998. (135:4-11) During that seven week time period, Frillman testified
that she never sawRoseann and never supervised any visits during that time period.
(135:22-136:8) Frillman testified that on November 26, December 5, December 15,
December 17, December 22, December 24, December 29, and December 31, 1998,
Hogner called to confirm that she would be at the visit but then failed to appear for the
visit causing Sabrienia to be unnecessarily transported to the visit. (136:9-
138:23;147:11-25;150:8-15) During the short time that Frillman was thefamily support
worker and visitation specialist, Hogner changed the visitation times on November 30,
1998, only to change the visitation time back on December 10,1998. (158:2-161:1)
However, by the very next week on December 14, 1998, Hogner became confused on
when the visitation times were. (161:2-9) Frillman explained that frequent changing of
12
visitation time was difficult for her and was confusing to her, however, she allowed the
changes so that Hogner would have visitation with Sabrienia. (161:10-162:1)
Brenda Shepherd testified that she is an employee ofHHS and is a protective
service worker and was assigned to the HognerlBruce case in approximately November
1998. (272:6-11;273:13-21) As a protective service worker, Shepherd works with
families that are in need of assistance in stabilizing an unsafe family home as determined
by juvenile court. (272:25-273:2)
When Shepherd was assigned the case, Shepherd understood the status of
Hogner's case to be that Hogner was to be completing evaluations and that Hogner had
was having sporadic contact with Sabrienia and HHS. (274:13-21) While Hogner's HHS
case file indicated she was living with her parents, Shepherd had a difficult time
ascertaining her whereabouts. (275:14-276:2) Shepherd contacted the family support
workers, the foster parent, and even corresponded with a shelter in an effort to locate
Hogner. (276:6-15) When Shepherd finally spoke with Hogner on January 27, 1999,
Shepherd asked Hogner where she was living, Hogner told Shepherd it was none of her
business. (279:23-280:3) Shepherd asked Hogner where she had been, and Hogner
explained that she had the flu and had hurt her ankle and could not contact anyone.
(280:4-11) In February 1999, Shepherd learned through Hogner's aunt, Judy Enders, that
Hogner was residing at the SienalFrancis House. (281:14-282:12) Shepherd testified that
Hogner was not keeping her appraised of her whereabouts, and that since the inception of
the case, Hogner has resided in ten to eleven different residences. (297:17-21;298:18-
299:3)
13
After weeks of missed visits and not confirming her visits, Shepherd put the visits
between Hogner and Sabrienia on hold in December 1998, which is typically done when
a parent has missed weeks ofvisits. (277:16-278:13) Hogner finally contacted Shepherd
on January 27, 1999, when Hogner wanted to know why there were no visits. (279:11-
22) Hogner was very agitated on the phone, so Shepherd scheduled an appointment to
meet with Hogner on February 1, 1999, but Hogner canceled. (180:15-25) That
appointment was eventually rescheduled for April I, 1999. (281:1-13) Shepherd testified
that after December 1998, Hogner's first visit with Sabrienia occurred on May 13, 1998.
(297:4-11) Since May 13, 1998, Shepherd testified that Hogner was having fairly
consistent visitation with Sabrienia. (297:12-16)
When asked what efforts she made to assist Hogner in completing a psychiatric
evaluation, Hogner explained that she made referrals, set-up appointments, and made
transportation arrangements for the psychiatric evaluation on more than one occasion.
(283: 18-24) Shepherd scheduled psychiatric evaluations for Hogner on March 2, 1999,
April 1, 1999, April 16, 1999, and November 3, 1999. Concerning the March 2, 1999,
appointment, Shepherd sent a letter to Hogner informing her of the March 2, 1999,
appointment and indicated that Hogner should contact her if she needed assistance with
transportation. (283:25-284:3;285:6-9) Hogner did not keep the March 2, 1999,
appointment, and when Shepherd asked Hogner why, Hogner said she did not have
transportation, became agitated, refused to allow Shepherd to reschedule the appointment,
and refused to accept assistance with transportation on future appointments. (284:20-
14
285:15) Hogner also did not keep the April 1, 1999, appointment for a psychiatric
evaluation, (284:23-24)
Subsequently, Shepherd called Alegant and requested an appointment for a
psychiatric evaluation which was scheduled for April 16, 1999; Shepherd also sent a
referral authorizing payment to Alegant for the psychiatric evaluation. (285:18-287:3)
Shepherd personally transported Hogner to the Apn116, 1999, appointment and believed
that a psychiatric evaluation was being completed; however, Alegant completed a
psychological evaluation instead of a psychiatric evaluation. (288:12-17) Shepherd
explained that Alegant's psychological evaluation recommended a psychiatric evaluation,
which was what HHS was attempting to obtain, (289:4-9)
When Shepherd explained to Hogner that a psychiatric evaluation still needed to
be completed, Hogner became distressed. (289:4-9) Even after April 1999, Shepherd
continued to try to contact Hogner via telephone, personal contact at visitations, and
written correspondence to explain to Hogner that a psychiatric evaluation still needed to
be completed. (289:16-20) Shepherd even scheduled another psychiatric evaluation for
Hogner on November 3, 1999. (291:22-292:5) Prior to that appointment, on October 15,
1999, Shepherd personally informed Hogner ofthe appointment, Hogner not only refused
the appointment but raised her voice, started yelling profanities at Shepherd, moved
towards Shepherd, and threatened to kick Shepherd's "ass." (292:18-9;302:20-303:2)
Shepherd asked Hogner to calm down, to stop using profanity, and to back away from
her, and when Hogner did not do so, security was called. (294: 1-9) When Shepherd
15
arrived to transport Hogner to the November 1999 psychiatric evaluation, Hegner was not
there. (291:22-292:14)
Shepherd testified that there were no other efforts she could make to assist Hogner
in completing the psychiatric evaluation and that the primary obstacle to Hogner's
completing the evaluation was Hogner's unwillingness to do so. (294:10-19) Shepherd
explained that Hogner's failure to complete the psychiatric evaluation was an impediment
to the goal of reunification as, "The psychiatric evaluation would have given us a basis on
what services to give Roseann to initiate her in getting her daughter back. Her failure to
comply with that basic first step stopped the whole process." (300:5-17)
After hearing all the evidence, the Separate Juvenile Court for Douglas County
found the following: the allegations in Counts II, IV, and VI to be true by beyond a
. reasonable doubt; found that Nebraska Health and Human Services [HHS] used active
efforts to provide remedial service and rehabilitative programs designed to prevent the
breakup of the Indian family and that these efforts were unsuccessful; that the evidence,
including the testimony of a qualified expert witness, showed beyond a reasonable doubt
that continued custody of Sabrieni a Bruce in the custody of Roseann Hogner would likely
result in serious emotional and physical damage to said child; found that Sabrienia
Bruce's best interests required termination of Roseann Hogner's parental rights; and
thereby terminated Roseann Hogner's parental rights. The juvenile court cited In re
Interest ofP.D., 231 Neb. 608,437 N.W.2d 156 and made a specific findings that, "The
child has unfortunately and inappropriately languished in foster care due to the mother's
sporadic visitation, failure to obtain a stable residence to provide for herself and her child,
16
whereabouts constantly unknown, and failing to obtain a mental evaluation for possible
services."
ARGUMENT
I.
THE COURT DID NOT ERR IN FINDING A CAUSE OF ACTION WAS
STATED PURSUANT TO 43-292(6) AND DID NOT VIOLATE HOGNER'S
PROCEDURAL DUE PROCESS RIGHTS AS A RESULT 'THEREOF.
Hogner apparently argues "reasonable efforts" language utilized in Count IV of
the motion to terminate parental rights were not specifically detailed enough, that she had
no procedural mechanism to challenge the State's failure to define "reasonable efforts" in
the motion to terminate parental rights, and that Separate Juvenile Court for Douglas
County erred in not sustaining her demurrer. See Appellant's Brief at 8 to 13.
The hallmarks of procedural due process are reasonable notice concerning the
subject to be litigated; a reasonable opportunity to be heard, to present evidence, and to
confront and cross-examine adverse witnesses; representation by counsel when required
by statute or Constitutional provisions; and a hearing before an impartial decision-maker.
In re Interest of Kelley D. and Heather D., 256 Neb. 465, 590 N.W.2d 392 (1999),
Babcock v. St. Francix Medical Center, 4 Neb.App.362, 543 N.W.2d 749 (199q) and
State ex.rel. Grape v. Zach, 247 Neb. 29, 524 N.W.2d 788 (1994). ~ aImNcl2, Rev.
.stu. 43-279.01 (Reissue 1998). In construing the guarantees ofprocedural due process
17
under the Fourteenth Amendment to the United States Constitution, the Nebraska
Supreme Court has held that the requirements of due process are satisfied if the individual
has reasonable notice and a reasonable opportunity to be heard as long as such
opportunities are appropriate to the nature of the proceedings as well as the character of
rights which may be affected. Boll v. Nebraska Department of Revenue, 247 Neb. 473,
528 N.W.2d 300 (1995). Under Neb. Rev. Stat. 43-292, the Separate Juvenile Court
may terminate parental rights if a factual basis is shown and there is clear and convincing
evidence that to terminate parental rights would be in the child's best interests. See In re
Interest C.P., 235 Neb. 276,455 N.W.2d 138 (1990). Under the Nebraska Indian Child
Welfare Act [ICWA], Neb. ReY. S1a1. 43-1505 (4) and (6) , the State must show that,
"active efforts," were used to provide, "remedial services and rehabilitative programs
designed to prevent the breakup of the Indian family," and that, "continued custody of the
child by the parent or Indian custodian is likely to result in serious emotional or physical
damage."
In the instant case, Hogner does not contest that she received a copy of the motion
to terminate parental rights or was served with such a motion with a notice of hearing.
Receiving such a notice informed her of the nature and subject matter of the proceeding
as well as the fact that the State was seeking to terminate her parental rights. Likewise,
she was appraised of her rights at the detention hearing, the adjudication hearing, and
when she arrived at the termination of parental rights hearing. The termination hearing
was held before an impartial decision-maker-the Separate Juvenile Court for Douglas
County-and there is no assignment of error alleging otherwise. Hogner was served with
18
notice ofthe hearing and appeared in person for most ofthe proceedings and was
represented by competent legal counsel, who cross-examined all witnesses called.
Hogner had the opportunity to be heard and to present evidence on her behalf.
Hogner argues that, "when the State elects to file for a termination of parental
rights by motion, there is no means of challenging deficient or defective allegations
. .
contained there." .See Appellant's Brief at 10. While Hogner refers to a demurrer as an
appropriate filing when apleading' fails to state a cause of action, nowhere in Argument I
does Hogner argue that the State failed to state a cause of action. ~ Appellant's Brief at
9-10. A careful reading ofHogner's brief, however, shows that her major complaint is
that the State's pleading wasnot more definite and certain--specifically she cites Iowa
and Colorado statutes and argues that the terminology, "reasonable efforts," needed to be
defined. See Appellant's Brief at 12-13.
The State simply responds in several ways. First, while Iowa and Colorado
statutes may specifically require a delineation of what, "reasonable efforts," were used,
nothing in Nebraska statutes so require such a delineation. Second, there are procedures
in Nebraska Revised Statutes by which Hogner could have challenged "deficient"
pleadings. The State refers this Court to Ncl2. Rev. Stat. 25-833 (Reissue 1995) which
allows parties to file motions to make more definite and certain, ''when the allegations of
a pleading are so indefinite and uncertain that the precise nature of the charge or defense
is not apparent." Clearly, if Hogner or her legal counsel had questions on what
"reasonable efforts" meant in this case or how ICWA affected this case, clearly Hogner
could have appropriately filed a motion to make more definite and certain.
19
In her brief, Hogner argues,
As a basis for overruling Appellant's Demurrer, the trial court's order
stated that Appellant had been advised at the detention hearing 'of her
rights, including the nature of the proceedings and the possible
consequences or dispositions, one of the possible dispositions being a
proceeding regarding termination ofparental rights.' Further the same
advisory was given at the adjudication hearing. (T21-22) The trial court
appears to hold that a general advisory that termination of parental rights
is a potential outcome in the proceedings is sufficient to satisfy due
process requirements. See Appellant's Brief at 11.
The State submits that, in the instant case, there is no evidence that the juvenile court
failed to comply with Neb. Rev. Stat. 43-279 (Reissue 1998) and failed to advise or
warn Hogner that her parental rights could be terminated. Section 43-274 (1) involves
"criminal complaints" filed pursuant to Neb. Rev. Stat. 43-247--not 43-292. While
. Hogner cites and relies on Neb. Rev. Stat. 43-274 (1) to support her proposition that
State should be required to file an affidavit which sets forth with specificity the basis of
the prayer for termination, the State is unaware of any statute or case law which requires
the State to file a detailed affidavit as a basis to support the prayer for termination under
Neb. Rev. Stll, 43-292.
II.
THE TRIAL COURT DID NOT ERR IN OVERRULING HOGNER'S
DEMURRER ORVIOLATE HOGNER'S PROCEDURAL DUE PROCESS
RIGHTS AS THE STATE'S PLEADINGS STATED A CAUSE OF ACTION.
20
In her brief, while it is not entirely clear, Hogner appears to argue that the State
should have included allegations in the Motion to Terminate Parental Rights that active
efforts had been used in this case and that Hogner's continued custody of Sabrienia would
cause Sabrienia serious emotional or physical damage. See Appellant's Brief at 13-15.
In her argument, however, Hogner cites no statute or case law which would support the
specific proposition that Hogner proposes.
While the State concedes that pleadings are meant to frame the issues, and that a
demurrer is usually one means to challenge a pleading, certainly Hogner cites no case or
statute which supports her proposition that such allegations need to be specifically
--
delineated. Further, without conceding that the State must contain the allegations Hogner
proposes, there were allegations in Count N concerning "reasonable efforts" which
arguably encompass "active efforts" as well as allegations in Count VII concerning "best
interests" which arguably encompass the emotional or physical damage issue. Those
allegations in Counts N and VII placed Hogner on notice that the State would be
producing evidence concerning Sabrienia's best interests, which include emotional or
physical suffering, as well as what efforts HHS was using to assist her. IfHogner was
concerned or confused that the State's allegations were too indefinite or uncertain for her
to understand the Motion to Terminate Parental Rights or to adequately prepare a defense,
Hogner could have filed a motion to make more definite and certain under Nsili. Rev. S1ill;.
25-833 (Reissue 1995) as discussed in Argument 1. Thus, given the States allegations in
Counts IV and VII and the procedural mechanisms Hogner failed to utilize (which
arguably constitutes waiver of those issues), the State suggests that the pleading in the
21
instant case (i.e., the Motion to Terminate Parental Rights) was sufficient to place Hogner
on notice that State would be procuring evidence concerning both Sabrienia Bruce's best
interests which could have included emotional and physical suffering as well as efforts
HHS were using.
III.
THE TRIAL COURT DID NOT ERR IN FINDING A TERMINATION
WAS IN SABRIENIA'S BEST INTERESTS.
In her brief, Hogner argues both that the State failed to prove neither that
termination of parental rights was in Sabrienia Bruce's best interests nor that Sabrienia
Bruce would suffer emotional and/or physical harm if removed from her parent or Indian
custodian. See Appellant's Brief at 15 to 22.
The issue before this Court regarding the best interests and the expert testimony
concerning harm to an Indian/Native American child has been previously addressed in In
re Interest of C.W. et.a!., 239 Neb. 817, 479 N.W.2d 105 (1992). In that instance, on
appeal, the mother unsuccessfully argued that State's expert witnesses was not an expert.
Under 43-1505 (6), the State is required to show via expert testimony that, "continued
custody of the child by the parent or Indian custodian is likely to result in serious
emotional or physical damage." The c.;:}L court noted that whether a witness is qualified
to testify as an expert pursuant to Neb. Rev. Stil. 27-702 (Reissue 1995), is a
preliminary question of admissibility and that such a determination will be upheld on
appeal unless that finding is clearly erroneous. Id. In that case, the Nebraska Supreme
Court found that the State's expert possessed substantial education and experience and
22
that the expert's lack of experience with Native American culture in no way undermined
his testimony. The Supreme Court went on to note that ICWA, "does not change the
cardinal rule that the best interests of the child are paramount, although it may alter its
focus." Id. The c.:5l:L. court then went on to find that there was evidence of emotional
harm as well as best interests testimony and added that the mother had not found the
"incentive to mature" so the Court would not expect the child to wait and see whether the
mother would grow up.
The State submits that in the instant situation, there was sufficient testimony from'
Trisa High for the Court to find that emotional damage would result from Sabrienia being
removed from Judy Enders and that Sabrienia would suffer emotional and/or physical
trauma if Sabrienia were placed with Bruce. High testified in detail that Sabrienia Bruce
is in need of a safe, stable, permanent home, that Judy Enders is providing that to
Sabrienia, that Sabrienia is bonded with her great-aunt, Judy Enders. (66:24-70:1) High
related that during therapy session Sabrienia talked about times in which her mother
failed to show-up for visits, that Sabrienia acted-out more after the missed visits, and that
Sabrienia is negatively impacted, confused, and upset as a result of the missed visits.
(56:12-57:9)
High explained thatshe had a therapy session with Sabrienia on January 18,2000.
(61:12-15) During that visit, Sabrienia drew three pictures which were marked as
exhibits 11, 12, and 13 at the hearing and were received into evidence. (66:11-20)
23
Sabrienia drew Exhibit 11 when High asked her to draw a picture of how Roseann
Hogner appears in Sabrienia's dreams. (61:18-62:12) Exhibit 11 was significant to High
because the picture,
was all one color and she did it in a matter ofjust very quickly and there is
one color. There is a smile on there, but it's like everything is distorted,
and there's a little bit of orange down here and there's just nothing
concrete about it. It's just all over the place. (63:3-11)
Sabrienia drew Exhibit 12 when High asked her to draw how Roseann Hogner appears in
real life. (63:12-15) In exhibit 12, there are three colors and High explains, "there's a
smile on the face, and the legs are-just there's nothing. There's no hands, there's no feet,
there's no arms. It's just-It's more detailed, a little more colorful, but it's still not
exactly detailed like a person." (63:14-23) Sabrienia drew Exhibit 13 when High asked
her to draw how Judy Enders appears in real life. (63:24-64:3) High stated that Sabrienia
took more time d r a ~ i n g this picture; used five different colors; depicted arms, legs, feet,
no hands, and a smile; and wrote MOM above the picture. (64:4-10) When asked what
MOM spelled, Sabrienia answered, "mom." (64:10-15) High concluded that Sabrienia is
more emotionally invested in Judy Enders. (64:16-24)
High opined that it was important to Sabrienia to have a safe, stable, permanent,
structured home environment. (67:1-9) High also explained that Sabrienia appears to be
bonded with Judy Enders, that she is aware that Judy Enders is an extended family
member, and that if Judy Enders were exposing Sabrienia to the Native AmericanlIndian
culture then High's therapeutic concerns would be satisfied. (69: 12-71:2) Brenda
,
Shepherd opined that termination of Hogner's parental rights to Sabrienia was in
24
Sabrienia's best interests. (299:4-24) Shepherd explained that Sabrienia was in need of a
safe, loving home and that Hogner demonstrated she was not capable of providing this.
(300: 1-4) Given such testimony and using the precedent elucidated in c..:1L., .sJJlID}, the
Separate Juvenile Court for Douglas County had sufficient testimony to find, "That the
evidence shows beyond a reasonable doubt, including testimony of qualified expert
witnesses, that the continued custody of the child by the parent is likely to result in
serious emotional and physical damage to the child."
Concerning High's credentials, the State submits that clearly High qualifies as an
expert. Trisa High has a masters degree in communities counseling and is a provisional
licensed mental health practitioner, which means she has completed 6000 hours of
counseling to graduate, has 1500 direct contact hours and 1500 indirect contact hours.
(51:10-52:20) High has been employed at Maplewood Counseling since October 1996
and has worked with many children and families. (52:21-53:2) Given High's education
and her experience, the State submits that the Separate Juvenile Court for Douglas
County did not err in finding there was qualified expert testimony concerning the
emotional/physical harm Sabrienia would suffer if she were to remain in Hogner's care.
Under C.W., supra, there is no evidence that the Separate Juvenile Court for Douglas
County erroneously determined that High was a qualified expert.
On appeal, Hogner's specific argument appears to be twofold. First, Hogner cites
In re Interest ofTeela H., 4 Neb.App.608, 547 N.W.2d 512 (1996) and In re I n t e ~ e s t of
L.J., 220 Neb. 102,368 N.W.2d 474 (1985) asserts that, "The State's position is
25
apparently that Sabrienia would benefit from continuity of care from an individual which
whom she was 'bonded.'" ~ Appellant's Brief at 16. Second, Hogner argues that the
opinion testimony concerning best interest and emotional/physical damage was based
upon a faulty premise--namely that Hogner was inconsistent regarding her visitation with
Sabrienia. See Appellant's Brief at 17.
Clearly, Hogner does not understand the State's position. While the testimony is
unrefuted that Sabrienia is bonded with Judy Enders, this is not the sole basis of the
prayer for termination ofHogner's rights. The State asserts that this case is similar to the
facts in c.:iL., supra. In that the case, the Nebraska Supreme Court noted that mother's
addiction to alcohol and/or controlled substances, her denial of such addictions, and
found,
The evidence supports a causal relationship between the mother's behavior.
and likely damage to the children, and we will not ask the children to wait
and see whether their mother grows up in the future. She has not found
the incentive to mature and change her lifestyle over the years this case
has been progressing through the juvenile court, when that was the only
obstruction to having her children returned to her.
Id. at 831, 479 N.W.2d at 115. Likewise, in the instant case, the record is replete with
evidence that Bogner failed to maintain a residence, failed to consistently visit Sabrienia,
failed to obtain a psychiatric evaluation, and failed to cooperate with HHS officials.
While Hogner argues that on isolated incidents there were visits which were canceled due
to Sabrienia having pink eye or due to the visitation worker being ill, but it is also clear
that there were many more instances that Hogner failed to reschedule those missed visits
26
when given the opportunity to do so. Further, there was ample evidence that Hogner, for
whatever reasons, on her own accord failed to visit Sabrienia when given the opportunity.
The evidence was overwhelming that termination was in Sabrienia's best interests and
failing to do so would cause her emotional/physical harms given that Hogner's lifestyle
was unstable which included multiple residences, that Hogner was nowhere near the point
that she could reunify with Sabrienia, and that Sabrienia was bonded with Judy Enders.
Given such evidence, the juvenile court appropriate found,
The child has unfortunately and inappropriately languished in foster care
due tot he mother's sporadic visitation, failure to obtain a stable residence
to provide for herself and her child, whereabouts constantly unknown, and
..
failing to obtain a mental evaluation for possible services. "Children
cannot, and should not, be suspended in foster care, nor be made to await
uncertain parental maturity."
To argue that best interests and emotional/physical harm testimony was premised on lack
of consistent visitation or Sabrienia's bond with Enders, ignores the whole picture and
unfairly summarizes the evidence.
IV.
THE TRIAL COURT DID NOT ERR IN FINDING HHS USED "ACTIVE
EFFORTS" AND THEREBY DID NOT ERR IN TERMINATING HOGNER'S
PARENTAL RIGHTS.
In her brief, Hogner recognizes that "active efforts" has no precise meaning but
. argues that Nebraska Health and Ruman Services, specifically Stephanie Hoesing and
Brenda Shepherd, failed to use "active efforts" to reunify Hogner with Sabrienia Bruce.
~ Appellant's Brief at 22 to 25. While Hogner cites no statute or case law, either
27
federal or state, which would support her arguments, she complains that the following
efforts ofHHS were insufficient to be deemed active efforts: the February 11, 1999 letter
that Brenda Shepherd allegedly sent to the wrong address; that transportation
arrangements which were made for Hogner to various psychiatric appointments were
somehow not suitable; that Alegant performed a psychological evaluation in April 1999
instead of the requested psychiatric evaluation; and that Hoesing did not take sufficient
efforts to personally notify Hogner ofthe February 24, 1998 psychiatric evaluation. ~
Appellant's Briefat 23-24.
The State suggests that the evidence was unrefuted that both Hoesing and
Shepherd used, at a minimum, "active efforts." Hoesing detailed that her active efforts
included making a number of personal contacts with Hogner, providing her with bus
tickets, providing a family support worker to assist her with parenting, housing,
employment, and income issues, scheduling psychiatric and chemical dependency
. evaluations, and providing visitation schedules and monthly calendars. (109:9-110:4)
Hogner, however, was not cooperative with Hoesing in accessing services which was
demonstrated by Hogner failing to keep anyone of the three scheduled psychiatric
evaluations, only working with the family support worker twice on housing and income
issues, failing to follow-through with other scheduled appointments, and Hogner's failure
to let Hoesing know her whereabouts. (110:9-22) In fact, Hoesing had to, "track down
and talked to other people to find out where she [Hogner] was at." (110:20-22) Hoesing
was unaware of anything else which could have been offered to Hogner to assist in
reunifying her with Sabrienia. (110:23-111 :2) Hoesing testified that she felt Hogner
28
made no significant progress in reunifying with Sabrienia during the time that she was the
case manager. (111:20-112:11)
Shepherd testified that she used "active efforts" in this case. (294:20-295:7)
Shepherd explained that she used "active efforts" due to
the numerous times that I had to set up the evaluation in itself. It's not
practice to -- to set up evaluations for parents, usually. That's something
that they initiate on their own. Transportation, although we may assist in
it, me picking up a client and transporting them to an evaluation is pretty
rare, especially on this many occasions. (295: 10-17)
In short, both case managers testified that they used "active efforts."
Without addressing Hegner's specific complaint that Hoesing did not personally
inform her of the February 1998 psychiatric appointment, the State submits that Hoesing
did everything short of physically forcing Hogner to go the to the two psychiatric
appointments Hoesing subsequently scheduled. Hoesing rescheduled the missed
February 1998 psychiatric evaluation for March 17, 1998, personally notified Hogner of
the appointment at which time Hoesing stressed how important the psychiatric evaluation
was, reminded Hogner of the appointment on March 13th, made arrangements to
personally transport Hogner, and when Hoesing showed up to transport Hogner to the
March 17th appointment, Hogner was not there. (94:1-23;99:11-19) Hoesing again
scheduled another psychiatric evaluation on August 18, 1998, had a letter informing
Hogner of the appointment, hand-delivered throughthe family support worker, and again
made transportation arrangements for Hogner. (95:3-11) Again on August 18, 1998,
Hoesing attempted to personally take Hogner to the psychiatric evaluation, but Hogner
29
did not keep that appointment. (108: 11-16) Certainly such actions on Hoesing's part
(both the transportation arrangements and the scheduling procedures) qualify ~ s "active
efforts" regardless ofwhether or not Hoesing personally informed Hogner of the
February 1998 appointment.
Regarding the actions Shepherd made to schedule psychiatric evaluations for
Hogner, it is unrefuted that Shepherd scheduled psychiatric evaluations for Hogner on
March 2, 1999, April 1, 1999, April 16, 1999, and November 3, 1999. Without
addressing Hogner's complaints concerning the March 2, 1999, and April 1, 1999,
scheduled psychiatric appointments, certainly Hogner cannot contest that Shepherd used
active efforts relating to the April 16, 1999 and November 3, 1999, appointments.
Shepherd personally transported Hogner to the April 16, 1999, appointment andbelieved
that a psychiatric evaluation was being completed; however, Alegant completed a
psychological evaluation instead ofa psychiatric evaluation. (288:12-17) While Hogner
complains about this, certainly Shepherd did everything in her power to schedule the
psychiatric evaluation which included sending a referral authorizing payment to Alegant
for the psychiatric evaluation. (285:18-287:3) Further, Shepherd scheduled another
psychiatric evaluation for Hogner on November 3, 1999. (291:22-292:5) Prior to that
appointment, on October 15, 1999, Shepherd personally informed Hogner of the
appointment, Hogner not only refused the appointment but raised her voice, started
yelling profanities at Shepherd, moved towards Shepherd, and threatened Shepherd.
(292:18-9;302:20-303:2)
30
I I
While Hogner complains about Hoesing and Shepherd, she overlooks two
important points. First, Hogner has not-and cannot--complain about most of what
Hoesing and Shepherd did to assist her because they both went above and beyond the call
of duty which included seeking Hogner out and personally transporting her to
appointments. Secondly, and maybe more importantly, Hogner overlooks any
responsibility she had to make efforts on her own behalf to place herselfin a position to
parent Sabrienia Bruce. In In re Interest of John T., 4 Neb.App.79, 538 N.W.2d 761
(1995), the Nebraska Court of Appeals recognized the discretionary power of the juvenile'
court to order a reasonable plan for parental rehabilitation to correct the conditions which
brought the child under the jurisdiction ofjuvenile court. Moreover, when a parent fails
to make reasonable efforts to comply with a court-ordered rehabilitation plan, such a
failure on the part ofthe parent provides a separate and independent basis to terminate
parental rights. In re Interest ofJ.H., 242 Neb. 906,496 N.W.2d 346 (1993) (emphasis
added).
Based upon the evidence presented at the January and February 2000 termination
hearing, there was ample evidence to show that the major barrier in this case was
. Hogner's unwillingness to comply with the plan. Both Hoesing and Shepherd made
numerous psychiatric appointments, which Hogner had personal notice of, and even with
door-to-door transportation services offered by the case managers, Hogner did not keep
those appointments. Shepherd explained that Hogner's unwillingness to cooperate
with HHS was the primary obstacle in getting the psychiatric evaluation completed.
Further evidence ofHogner's uncooperative attitude was her failure to keep HHS
31
, ( ,
informed ofher whereabouts. Hoesing testified that Hogner would frequently not report
a change of address or a current address, so Hoesing resorted to making efforts on her
own to locate Hogner. Shepherd, too, also testified she had initial difficulty locating
Hogner. Given such testimony, there can be little doubt that Hogner failed to take
advantage ofthe "active efforts" in which various individuals were making to assist her.
The State submits that even ifHHS had made Herculean efforts (as were arguably made),
such efforts would have fallen short given the uncooperative attitude Hogner displayed in
being receptive to such efforts.
V.
THERE WAS AMPLE EVIDENCE FOR THE TRIAL COURT TO
TERMINATE HOGNER'S PARENTAL RIGHTS TO SABRIENIA BRUCE BY
BEYOND A REASONABLE DOUBT UNDER 43-292 (6).
Under 43-292, the Separate Juvenile Court may terminate parental rights if a
factual basis is shown and there is clear and convincing evidence that to terminate
parental rights would be in the children's best interest. See In re Interest ofe.p., 235
Neb. 276, 455 N.W.2d 138 (1990). See also In re Interest ofIB. and A.P., 235 Neb. 74,
453 N.W.2d 477 (1990). When seeking to terminate parental rights in a case where
ICWA is applicable, the State must prove, by beyond a reasonable doubt, that a factual
basis exists under 43-292 as well as prove, by beyond a reasonable doubt, that
termination is in the child's best interest. ~ In re Interest ofC.W. et.al., 239 Neb. 817,
479 N.W.2d 105 (1992) and Neb. Rev. Stat. 43-1501 et. seq.
32
In her brief, Hogner only assigns as error and only argues that the Separate
Juvenile Court for Douglas County erred in terminating Hogner's parental rights under
43-292 (1) and (2) as there was insufficient evidence to show that Hogner intended to
abandon Bruce. See Appellant's Brief at 25 to 27.
While the Separate Juvenile Court for Douglas County terminated Hegner's
parental rights under 4 3 - 2 ~ 2 (1) and (2), the juvenile court also terminated Hogner's
parental rights pursuant to 43-292 (6). In her brief, Hogner never assigns as error that
were was insufficient evidence for the Separate Juvenile Court's to terminate her parental'
rights under 43-292 (6) by beyond a reasonable doubt. Under the Rules of the Supreme
Court promulgated by the Nebraska Supreme Court, Hogner is required to separately
number and paragraph in her appellate brief each assignment of error which she contends
the juvenile court made. See Nebraska Supreme Court Rule 9(D)(1)(d). Under that rule,
appellate review is limited to errors assigned and argued, and errors not assigned in an
appellate brief are deemed waived. Id. See also Keithley v. Black, 239 Neb. 685, 477
N.W.2d 806 (1991); Morton v. Farmer's Business Cooperative of Shelby, 1
Neb.App.552, 510 N.W.2d 326 (1993). Since Hogner has not assigned as error the
juvenile court's finding that there was sufficient basis to terminate Hogner's parental
rights under 43-292 (6), she cannot now complain that such a finding was error. So
assuming, in arguendo, that the juvenile court somehow erred in terminating Hogner's
parental right under 43-292 (1) and (2), there is an adequate and independent basis to
affirm the Separate Juvenile Court for Douglas County's order terminating Hogner's
parental rights under 43-292 (6).
33
CONCLUSION
The State respectfully requests that this Court affirm the findings of the Separate
Juvenile Court for Douglas County and terminate Hogner's parental rights to Bruce
pursuant to 43-292 (1), (2), and (6).
Respectfully submitted,
STATE OF NEBRASKA
~
~ n Kassebaum Nelson #20523
Deputy Douglas County Attorney
601 Hall of Justice
17th and Farnam Streets
Omaha, Nebraska 68183
(402) 444-7051
Attorney for Appellee
34
, , r
IN THE COURT OF APPEALS FOR THE STATE OF NEBRASKA
STATE OF NEBRASKA
Appellee
vs.
BRUCE, SABRIENIA
Child Under Eighteen Years of Age
STATE OF NEBRASKA)
Countyof Douglas ,) ss.
)
)
)
)
)
)
Case No. A-00-0277
PROOF OF SERVICE OF
BRIEF OF APPELLEE
I, Karen Kassebaum Nelson, being first duly sworn, depose and state that true and
correct copies of the foregoing Brief of Appellee have been mailed to the Nebraska Court
of Appeals, State Capitol 2413, P.O. Box 98910, Lincoln, Nebraska 68509; Vicki L.
Boone-Lawson, 1823 Hamey Street, Suite 1016, Omaha, Nebraska 68102; Catherine
Shugrue-Schaffuer, P.O. Box 390714, Omaha, Nebraska 68139 and Paula Fritz, P.O. Box
6385, Omaha, Nebraska 68106 on June 26, 2000.
~ ~ ~
Deputy Douglas CountyAttorney
601 Hall of Justice
17th and Farnam Streets
Omaha, Nebraska 68183
(402) 444-7051
ATTORNEY FOR APPELLEE
SUBSCRIBED and sworn before me and in my presence this 26th day of June,
2000.
J;
ENERALNOTARYSlale 01 Nebraska
. III TAMARA L. DUBAY
. My Comm, Exp. March 31. 2001