Opinion
No. 83-240.
Filed November 4, 1983.
1. Juvenile Courts: Appeal and Error. This court hears appeals of juvenile proceedings de novo upon the record but accords the findings of fact of the juvenile court great weight because it both heard and observed the parties and witnesses. 2. Parental Rights. The right of parents to maintain custody of their children is a natural one subject only to the paramount interest which the public has in the protection of the rights of a child.
Appeal from the District Court for Greeley County: JOHN M. BROWER, Judge. Reversed and dismissed.
Earl D. Ahlschwede of Ahlschwede Truell, for appellant.
Charles R. Maser, Greeley County Attorney, for appellee.
Robert E. Wheeler, guardian ad litem.
KRIVOSHA, C.J., BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.
The principal issue presented by this appeal is whether, as articulated by the juvenile court judge, the State may interfere in the relationship between a mother and her children by virtue of the former's eccentricity. The courts below have answered affirmatively. We conclude otherwise. We therefore reverse the judgment of the District Court which affirmed placement of custody by the juvenile court in the Nebraska Department of Public Welfare, with physical possession of the children in a foster home, and order the case dismissed.
In its third amended petition the State sought to terminate the parental rights of the appellant, Beverly J. (Pat) Hochstetler, based upon an allegation that she was mentally ill within the meaning of then Neb. Rev. Stat. § 43-209(5) (Reissue 1978). That statute provided that parental rights may be terminated when such action is found to be in the best interests of the child and it appears that the parents are unable to discharge parental responsibilities because of mental illness or deficiency, and there are reasonable grounds to believe that such condition will continue for a prolonged, indeterminate period. The petition also alleged that the three Hochstetler children were within the definitions of then Neb. Rev. Stat. § 43-202(1) and (2)(b), (c), and (e) (Reissue 1978), and, therefore, their custody should be awarded to the Nebraska Department of Public Welfare under then Neb. Rev. Stat. § 43-208 (Reissue 1978). The aforesaid portions of then 43-202, in pertinent part, provided: "The juvenile court in each county . . . shall have jurisdiction as follows:
"(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; . . . or (e) who is in a situation or engages in an occupation dangerous to life or limb or injurious to the health or morals of such child."
Then 43-208 provided, among other things, that when a child under the age of 18 shall be adjudged to be one defined in subdivision (1) or (2) of 43-202, such child may be committed to the care and custody of the Department of Public Welfare.
The courts below determined that although Mrs. Hochstetler did not fit the definition of then 43-209(5), the children fell within the provisions of then 43-202(2) (c) and (e).
In reviewing this matter we bear in mind that an appeal of a juvenile proceeding to this court is heard de novo upon the record, but that the findings of fact of the juvenile court will be accorded great weight because it both heard and observed the parties and witnesses. In re Interest of Spradlin, 214 Neb. 834, 336 N.W.2d 563 (1983); In re Interest of Fant, 214 Neb. 692, 335 N.W.2d 314 (1983); In re Interest of Spradlin, 210 Neb. 734, 317 N.W.2d 59 (1982).
By such a review we find the relevant facts to be that on May 8, 1981, Mrs. Hochstetler was arrested, charged, and eventually convicted of exercising control over property owned by another. Her conviction was affirmed by this court in State v. Hochstetler, 214 Neb. 482, 334 N.W.2d 455 (1983). In connection with her arrest she was held in jail for 20 days. During that time her children were taken into custody by the Department of Public Welfare. When Mrs. Hochstetler was released from jail on May 28, 1981, the Department of Public Welfare prepared to release the children to her. The three children, Jo Hannah (age 15 at the time), Christopher (then age 13), and John (then age 8), were brought from their foster home in Custer County to that county's welfare office. Upon their arrival at that office the two older children expressed their unhappiness at the imminent reunion with their mother. On that basis a caseworker placed a telephone call to the Greeley County Court. The county judge, in his capacity as the juvenile judge, then directed that the children remain in the custody of the Department of Public Welfare. Subsequently, this action was commenced.
Mrs. Hochstetler is, to say the least, a highly eccentric person. Even her heritage is in dispute. She claims to be of Native American extraction of the Kwakiutl Tribe. She has so told her children and encouraged them to take pride in the fact. Her brother testified that his sister's claim of such heritage is not true. We are not certain whom to believe in this regard.
Mrs. Hochstetler has told her children that she was involved in military intelligence matters, operating as an agent active in foreign espionage. There is evidence that she has at various times claimed to have been imprisoned in the Soviet Union along with Boris Pasternak. At trial she testified that she had been employed with the military but refused to disclose details of that employment. She has told other persons that she owned and was tending a herd of buffalo. Such was not the case.
She has told her children that one Lester Hochstetler was their father and that he was killed in Vietnam. In 1975 or 1976 her two older children discovered that John Kinzie was their true father. They confronted their mother, who then admitted the truth of the matter.
Mrs. Hochstetler has claimed to her children to have some sort of supernatural powers, due to her Indian heritage, which give her the ability to repair television sets, ripple water, and change the color of objects by merely gazing at them.
Mrs. Hochstetler is a prime example of De Tocqueville's characterization of the American people as a litigious one, and apparently is willing to institute legal proceedings against anyone she considers to have infringed upon her legal rights.
While the evidence is overwhelming that Mrs. Hochstetler is strikingly out of the ordinary, it is just as overwhelming that she has consistently attempted to discharge, and for the most part has succeeded in discharging, her duties as a parent to her three children.
Mrs. Hochstetler is permanently disabled and unable to work. She has supported her family on approximately $450 per month received from various governmental agencies, and food stamps. Except for a short time in 1979, after she was evicted, she has provided her children with a home in which to live.
Testimony was elicited that occasionally, near the end of the month, the supply of food in her household would run short. However, there never was a time she or the children were without food. At their house in Scotia, Nebraska, the heat was turned down at times in order to conserve fuel. On a few occasions her propane tank would run dry.
Physicians have examined the children and found their health to be problem-free except for an ulcer condition suffered by Jo Hannah. Doctors retained by the Department of Public Welfare state that this ulcer condition is a result of stress caused by her mother's conduct. Jo Hannah characterizes the problem with her mother as disputes concerning clothing, makeup, religion, politics, money, and school friends. Mrs. Hochstetler and Jo Hannah both engaged in counseling to alleviate the stress in their relationship and were seeing a counselor regularly up to the time of her arrest. Jo Hannah's ulcer condition was brought under control shortly after its diagnosis.
It is clear that the physical needs of her children were being met by Mrs. Hochstetler. There is no evidence of any physical abuse, although on one occasion Mrs. Hochstetler allegedly slapped her daughter.
Mrs. Hochstetler has been diagnosed as having a paranoid personality disorder, which is characterized by an overwhelming sense of suspicion of the motivations of those around her. The State has alleged that this disorder has contributed to Mrs. Hochstetler's frequent changes of residence, which have resulted in the severing of her family's emotional ties to the community at large. The evidence shows, however, that the children have been well dressed and clean, have attended school regularly but not without absences, and have received above average grades in their courses. The children, especially Jo Hannah, have been active in extracurricular activities. They are respectful, intelligent, and articulate. They have a good social and moral sense, as illustrated by Christopher's and Jo Hannah's responses to their mother when she committed the acts which form the basis for our opinion in State v. Hochstetler, supra. They told her that if she got caught and they had to testify, they would tell the truth.
There is also testimony, small wonder, by a social worker that the suspicions of Mrs. Hochstetler have in part been kindled by the State's efforts to take her children from her.
Much is made by the State of letters sent by Mrs. Hochstetler to her children while they have been in the care of the Department of Public Welfare. In her letters Mrs. Hochstetler places the blame for these problems on Jo Hannah. She also tells her children that this custody matter has adversely affected the health of their grandmother, the truth of which is unclear from the evidence.
In summary, the record establishes that Mrs. Hochstetler is an intelligent, haughty, articulate, aggressive, and abrasive woman who has been convicted of a crime. She refuses to document certain aspects of her background, and claims unlikely powers. She appears to delight in confronting and tweaking the bureaucracy which both sustains and torments her. Her outlandish behavior embarrasses her children. The record also establishes, however, that she loves and, given the opportunity, adequately cares for them.
Notwithstanding the deference given to the findings of the juvenile court under the rule stated earlier in this opinion, we cannot, in the words of the question phrased by the juvenile judge, conclude that Mrs. Hochstetler's eccentricity causes such chaos and stress in the family life as to make it harmful to the emotional health of the children.
Parents frequently embarrass their children, just as children frequently embarrass their parents. There is no support for the conclusion that the embarrassment caused the children has in any material way affected their well-being. Although Mrs. Hochstetler may well be paranoid, there is no showing that such condition endangers the life, health, or morals of her children. The disputes between Mrs. Hochstetler and Jo Hannah are the usual disputes between a mother and a maturing daughter. The shortage of fuel and food toward the end of the month and the lack of a stable residence are the unfortunate but pervasive characteristics of our poor.
The right of parents to maintain custody of their children is a natural one, subject only to the paramount interest which the public has in the protection of the rights of a child. In re Interest of M., ante p. 383, 338 N.W.2d 764 (1983).
The record in this case establishes only that Mrs. Hochstetler is a woman who refuses to defer to those with whom she must deal and does not behave like the majority of society. Nowhere is there authority to deprive her of the custody of her children solely on that account.
We conclude the record fails to establish that the children fell within then 43-202(2)(c) or (e). Accordingly, the juvenile court never acquired jurisdiction over the children such as to permit it to place custody of them in the Department of Public Welfare once Mrs. Hochstetler was released from jail.
The judgment of the District Court affirming the juvenile court must be reversed and the action dismissed.
REVERSED AND DISMISSED.