Opinion
No. 81-770.
Filed August 6, 1982.
1. Parental Rights. The right of a parent to maintain custody of his or her child is a natural but not an inalienable right; the public has a paramount interest in the protection of the rights of a child. 2. ___. Courts may not properly deprive a parent of the custody of a minor child unless it is affirmatively shown that such parent is unfit to perform the duties imposed by the relationship, or has forfeited that right. 3. ___. An order of the juvenile court terminating parental rights must be based on clear and convincing evidence. 4. Juvenile Courts: Appeal and Error. The Nebraska Supreme Court is required to review the record of the separate juvenile court de novo.
Appeal from the Separate Juvenile Court of Lancaster County. Affirmed in part, and in part reversed.
Paul M. Conley and Leroy P. Shuster, for appellant.
Michael G. Heavican, Lancaster County Attorney, and Richard J. Hautzinger, for appellee.
Mariclare Thomas, guardian ad litem.
Heard before KRIVOSHA, C.J., BOSLAUGH, McCOWN, HASTINGS, and CAPORALE, JJ.
Appellant, Deborah Jo Bruner, appeals to this court from an order of the separate juvenile court of Lancaster County, Nebraska, dated September 14, 1981, which terminated her parental rights to Rod Lee McKinzie, a minor born September 22, 1970. That order also terminated the parental rights of the natural father, Herbert Rodney McKinzie, Sr., but that portion of the order has not been appealed.
The two issues are (1) whether the order of the juvenile court terminating the parental rights of the appellant is supported by the evidence, and (2) whether the decision to terminate appellant's parental rights is in the best interests of the minor. We reverse.
Neb. Rev. Stat. § 43-202 (Reissue 1978) provides in pertinent part as follows: "The juvenile court in each county . . . shall have . . .
"(1) Exclusive original jurisdiction as to any child under the age of eighteen years, who is homeless or destitute, or without proper support through no fault of his parent, guardian, or custodian;
"(2) Exclusive original jurisdiction as to any child under the age of eighteen years . . . (b) who lacks proper parental care by reason of the fault or habits of his parent, guardian, or custodian; (c) whose parent, guardian, or custodian neglects or refuses to provide proper or necessary subsistence, education, or other care necessary for the health, morals, or well-being of such child; (d) whose parent, guardian, or custodian neglects or refuses to provide special care made necessary by the mental condition of the child . . . ."
This matter was first brought to the attention of the juvenile court by a petition filed April 22, 1977, alleging the child to be without proper support through no fault of his parents. A supplemental petition was filed on June 24, 1981, alleging that the child was without proper care and supervision due to the faults and habits of his parents, and sought termination of the rights of the parents.
As we have stated in the past, the right of a parent to maintain custody of his or her child is a natural but not an inalienable right; the public has a paramount interest in the protection of the rights of a child. In re Interest of Shepherd, 211 Neb. 313, 318 N.W.2d 288 (1982); In re Interest of J.L.L., 209 Neb. 76, 306 N.W.2d 175 (1981). However, courts may not properly deprive a parent of the custody of a minor child unless it is affirmatively shown that such parent is unfit to perform the duties imposed by the relationship, or has forfeited that right. In re Interest of Shepherd, supra; In re Interest of D., 209 Neb. 529, 308 N.W.2d 729 (1981). Furthermore, an order of the juvenile court terminating parental rights must be based on clear and convincing evidence. In re Interest of Shepherd, supra; In re Interest of Farmer, 210 Neb. 500, 315 N.W.2d 454 (1982); In re Interest of Hiatt, 209 Neb. 195, 307 N.W.2d 108 (1981); Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L.Ed.2d 599 (1982).
With those rules in mind we review the record of the separate juvenile court de novo, as we are required to do. In re Interest of Shepherd, supra; In re Interest of Spradlin, 210 Neb. 734, 317 N.W.2d 59 (1982); In re Interest of Farmer, supra.
The record clearly and convincingly establishes that the minor child suffers from a mild brain dysfunction and from an attention deficit with hyperactivity. He manifests behavioral and physiological problems. The mother voluntarily placed the child with the Lancaster County Division of Public Welfare for foster care in October of 1976. On May 4, 1977, the minor was adjudged a dependent child as defined in 43-202(1). He was thereupon committed to the temporary legal custody of the Lancaster County Division of Public Welfare with continued placement in a foster home. A series of hearings and placements followed, including a trial placement with the appellant. It became obvious during this period of time that this child simply required more care and attention than the mother, well intentioned as she may have been, was capable of providing. The mother recognizes this fact, although she, understandably, appears unable to accept it fully. In December of 1980 the appellant stated that she planned to relinquish the child for adoption and discussed that plan both with the separate juvenile court and with a social agency. Appellant, however, changed her mind in that regard. When the child became aware that such a plan was being considered he became even more depressed and exhibited even more behavioral problems. In May of 1981 the court changed the custody of the child from the Lancaster County Division of Public Welfare to the Department of Public Welfare, State of Nebraska.
The record clearly and convincingly establishes that the minor child is in need of a consistent and stable home environment which will provide him with a sense of belonging. The record also establishes that the mother has been unable to provide such an environment and sense of belonging. What the record does not show is that such an environment cannot be provided without terminating the mother's rights or that it is in the best interests of the child that those rights be terminated. Indeed, the record demonstrates that he has an attachment both to his mother and to his younger sister who is living with the mother. The record contains little evidence as to the likelihood of finding adoptive parents with the requisite skills and resources to provide this now almost 12-year-old boy with the environment and emotional support which he so clearly needs. Nor is there any showing he cannot be provided that environment and emotional support by continuing his custody in the Department of Public Welfare of the State of Nebraska, with his mother having rights of visitation.
That portion of the order of the separate juvenile court of Lancaster County, Nebraska, dated September 14, 1981, which terminates appellant's parental rights in the minor child is reversed. That portion of the order continuing custody of the child in the Department of Public Welfare is affirmed.
AFFIRMED IN PART, AND IN PART REVERSED.
CLINTON, J., participating on briefs.