State v. Bruner

Boslaugh, J.,

dissenting.

The majority opinion finds that the child in question requires more care and attention than the mother can (or is willing to) provide. It concludes that the solution is not to terminate the mother’s rights, but to institutionalize the child so that the mother’s right of visitation may be preserved. I find this an unacceptable solution and not one in the best interests of the child.

As long as the child remains in a proper foster care setting, and gets the necessary medication and psychosocial discipline and attention, his disorders may be controllable to some degree. However, the witnesses testifying as to the child’s condition stressed that the most important factor in this child’s future is that he be placed in a stable situation.

There is considerable testimony in the record that, in spite of the medication and proper techniques in dealing with his hyperactivity, his worst behavioral episodes occurred during times when he viewed his future as unstable. Although he does have an attachment to his mother, as the majority states, the record is clear that this child has a tremendous desire and need for a stable homelife where he can be loved and raised like other children, and that he believes he will never be returned to his mother. The last thing this child needs is to be continued in foster care with the accompanying ambivalence of a dim *404 hope that he may someday return home, yet the belief that he will never be able to.

I believe the record shows, by clear and convincing evidence, that a stable environment for this child cannot be obtained without terminating the appellant’s parental rights. During the trial placement of the child with his mother in 1979-80, there were numerous weekends when she placed both the child in interest and his sister in Cedars Home for Children in Lincoln because of “problems” she was having, either financial or personal. At the time of the disposition hearing the mother had finally obtained a full-time job, and her personal problems centered around her second husband (not the child’s father). When the child in interest went back into foster care, the trial court ordered that the second husband not be present during visitations between the child and mother, but the mother admitted that he was often there during visitations. The mother has moved numerous times during the pendency of this action, with each move being into a different school area. At the final disposition hearing she stated that she had separated from her second husband and had moved back to Lincoln from Eagle, but was not sure whether or not she would divorce the husband. There is nothing in the evidence to show that the mother intends to or is capable of providing even geographic stability for the child.

During the child’s second stay in foster care, commencing in October 1980, the mother’s efforts to visit the child became much less frequent. Pam Hughes, the child’s foster mother from March 25, 1981, to June 4, 1981, testified there were only two visits between the mother and child during this time, both of them being initiated by the child himself. During the time the child was at the Nebraska Psychiatric Institute, the mother at first refused to visit him there because she did not agree with the welfare worker that the visits should be supervised. During *405 the disposition hearing, which extended over a period of 2 or 3 weeks, she did visit him once, but only after earlier testimony that she had not visited him since he had been there.

The testimony shows that this sporadic visitation by the mother was extremely hard on the child. There is nothing in the record to demonstrate that the mother’s visitation attitude will change. It is difficult to understand why this child should be left in a situation identical to that which drove him from “normal” foster care in a home setting to an inpatient setting at NPI.

While this child may not be as adoptable as children without his behavior disorders, the evidence does not show that adoption is not a viable alternative. There is evidence that when the mother was considering voluntarily relinquishing the child for adoption, the counselor from Lutheran Family and Social Services found a family willing to adopt him.

Our cases hold, generally, that it is in a child’s best interests “that a final disposition be made without delay.” In re Interest of McKee, 208 Neb. 623, 304 N.W.2d 918 (1981). See, also, In re Interest of Holley, 209 Neb. 437, 308 N.W.2d 341 (1981); In re Interest of Levey, 211 Neb. 66, 317 N.W.2d 760 (1982); In re Interest of Hastings, 211 Neb. 209, 318 N.W.2d 80 (1982). “ ‘[W]e will not gamble with the child’s future; [he] cannot be made to await uncertain parental maturity.’ ” State v. Souza-Spittler, 204 Neb. 503, 511, 283 N.W.2d 48, 52 (1979). The majority opinion appears to ignore these cases, and disregards clear evidence that a stable situation is required for this child’s best interests. It is the appellant herself who provides the lion’s share of the instability in this child’s life.

I would affirm the judgment of the juvenile court.

Hastings, J., joins in this dissent.