Summary
reviewing a parental rights termination proceeding from juvenile division and holding that "[e]very court has inherent power to appoint a guardian ad litem to represent an incapacitated person in that court"
Summary of this case from Office of Public Guardian v. Lund (In re G.J.P.)Opinion
No. 87-610.
Filed March 18, 1988.
1. Courts: Guardians Ad Litem. Every court has inherent power to appoint a guardian ad litem to represent an incapacitated person in that court. 2. Guardians Ad Litem: Service of Process: Notice. Although Neb. Rev. Stat. 25-508.01 (3) (Reissue 1985) requires that where summons is served on an incapacitated person, notice of such service shall be given to the guardian, it also provides that failure to give such notice will not affect the validity of the service. 3. Parental Rights. Where a parent is unable to discharge parental responsibilities because of mental deficiency, and where there are reasonable grounds to believe that such condition will continue for a prolonged and indeterminate period, the parental rights may be terminated when such action is found to be in the best interests of the child or children.
Louie M. Ligouri, Auburn, for appellants.
Douglas E. Merz, Richardson County Attorney, and Curtis L. Maschman, Humboldt, guardian ad litem, for appellee.
HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.
This is an appeal by the parents of A.M.K., seeking to reverse an order of the county court, juvenile division, which terminated their parental rights. The parents insist that the order is not sustained by the evidence.
Both of the parents are of limited intellectual ability; the father is mildly mentally retarded and possibly has an underlying personality disorder, while the mother is in the dull normal to borderline range of intellectual functioning, with an IQ ranging in the low 80s.
Although no question of jurisdiction has been raised, we note the fact that on September 12, 1983, the father appeared in county court with his guardian ad litem, Willis G. Yoesel; it was found that the father was incapacitated, and a guardian, other than the guardian ad litem, was appointed to provide for the care and supervision of the father. The named guardian has not been a party to these termination proceedings. The record does not disclose whether the guardian is still acting. However, both parents have been represented by Willis Yoesel as court-appointed counsel throughout the proceedings in county court. On January 21, 1987, following the filing of the motion to terminate parental rights, Willis Yoesel was appointed as guardian ad litem to represent both parents. The child also had a guardian, who joins with the position of the State. The record does not contain copies of any summons or other process that may have been served; however, the parents appeared at all hearings together with Willis Yoesel.
Every court has inherent power to appoint a guardian ad litem to represent an incapacitated person in that court. In re Guardianship of Jonas, 211 Neb. 397, 318 N.W.2d 867 (1982). "If the person to be served [by summons] is an incapacitated person for whom a . . . guardian has been appointed . . . notice of the service shall be given to the . . . guardian. . . . Failure to give such notice does not affect the validity of the service on the incapacitated person." Neb. Rev. Stat. 25-508.01 (3) (Reissue 1985).
The minor child, who was born on June 10, 1985, also has special needs. She is handicapped, with both developmental and physical disabilities which require an extraordinary amount of time and effort on the part of those who care for her. The issue, then, is whether the parents are equipped to handle the special demands placed on them by virtue of their daughter's problems.
Shortly after A.M.K.'s birth, a registered nurse was assigned to supervise her care at home. The appellants cared for their daughter in their home until July 31, 1985, when the nurse noticed that the girl's leg was extremely swollen. The diagnosis was a spiral fracture of the femur. The child was subsequently placed in the care of the Department of Social Services, and a motion to terminate parental rights was filed.
The juvenile court subsequently ordered a reunification plan. As part of this plan, supervised visitations began under the direction of social services. This continued until May 1986, with the goal being to help the parents develop the necessary parenting skills needed to care for their daughter. Additionally, they were to be instructed in how to administer the physical therapy which was needed by their daughter. This therapy would take several hours per day to administer.
The child was returned for an overnight, unsupervised visit with her parents on May 15, 1986. After this visit, red marks were noticed on her chest, and she was again placed in foster care.
The parents were also to attend sessions with a physical therapist so he could teach them how to conduct the physical therapy procedures required by their daughter. The parents attended only two of these sessions, and the mother refused to attempt any of the procedures on her own, later explaining that she was afraid to do so.
The trial court found that although it appeared the appellants had attempted to cooperate and to improve themselves so they would be able to care for their daughter, they had been unable to do so, given their limited abilities and the special care required by their daughter.
Experts testified that the parents' mental deficiencies would be expected to continue indefinitely. There was also testimony to the effect that above-average parenting skills would be needed to properly care for the child. Additionally, a doctor testified that neither parent would be able to adequately discharge his or her parental responsibilities toward the daughter. The juvenile court ordered that it would be in the best interests of the child to terminate the appellants' parental rights.
Neb. Rev. Stat. § 43-292 (5) (Reissue 1984) provides that the court may terminate parental rights when it is in the best interests of the child to do so and "[t]he parents are unable to discharge parental responsibilities because of mental illness or mental deficiency and there are reasonable grounds to believe that such condition will continue for a prolonged indeterminate period."
There was substantial evidence that the parents' mental deficiencies would be continued for a prolonged and indeterminate period of time. There does not seem to be any substantial issue regarding that fact. The parents' appeal, rather, hinges on whether these deficiencies were sufficient to cause an inability to care for their daughter. The testimony of Dr. Collamer was that their deficiencies would cause such an inability. Furthermore, the physical therapist stated that the child would require physical therapy for the rest of her life and that it is needed daily at this point. She will always need aid from someone to accomplish this therapy. The physical therapist testified that neither parent would be able to provide this assistance. In addition, there was evidence that on at least two occasions the child suffered injuries while under her parents' care, one of these injuries being very serious.
In the appellants' favor, they had shown some improvement in their parenting skills. The child was apparently always clean and dry while in their care, and there was no evidence that the child ever went without food or shelter.
In In re Interest of Wanek, 212 Neb. 394, 322 N.W.2d 803 (1982), this court terminated the parental rights of a mother who was mildly retarded and functionally illiterate. The mother also had a severe alcohol problem. The evidence showed that she was unable, without daily supervision, to care for the needs of her children, one of whom was borderline retarded. The court concerned itself with the best interests of the children, finding that overwhelming evidence showed that, unsupervised, neither parent could ever be responsible for the care of the children because of mental or psychological deficiencies. The court stated:
We have held before that where a parent is unable to discharge parental responsibilities because of mental deficiency, and where there are reasonable grounds to believe that such condition will continue for a prolonged and indeterminate period, the parental rights may be terminated when such action is found to be in the best interests of the child or children.
Id. at 398, 322 N.W.2d at 806. This position was reiterated by the court in In re Interest of Fant, 214 Neb. 692, 335 N.W.2d 314 (1983), in which the appellant had a borderline personality disorder and a severe mental disorder which rendered her incapable of effectively caring for her children.
Evidently, most of the cases decided under 43-292 (5) deal with a mental illness, rather than low intelligence. For instance, in In re Interest of B.F.R., 217 Neb. 94, 348 N.W.2d 125 (1984), the mother suffered from schizophrenia and paranoia, and was able to control her life only in the most minimal sense and only with the help of large amounts of medication. The court found that the child could not "be made to face this uncertainty. His best interests and his future stability require that parental rights be terminated." Id. at 96, 348 N.W.2d at 127.
Similarly, in In re Interest of Farmer, 210 Neb. 500, 315 N.W.2d 454 (1982), the mother was unable to discharge her parental responsibilities because of schizophrenia. The court held that where the natural parent cannot rehabilitate herself within a reasonable time, the best interests of the child require that a final disposition be made without delay.
Thus, the standard is whether it would be in the best interests of the minor child to terminate the appellants' parental rights. That is, the evidence must show that because of the appellants' mental deficiencies, they are unable, and will be unable for a prolonged and indeterminate period of time, to properly care for their daughter's special needs.
The facts in this case demonstrate an impossible situation, and there is no realistic hope that these parents will ever be able to discharge their parental duties in a manner satisfactory to the best interests of the child.
The judgment of the juvenile court is affirmed.
AFFIRMED.