In re Interest of Annika H. & Praxton H., A-16-1077, A-16-1078

Background

Twins Annika and Praxton (b. Dec. 2013) were removed from mother Cassandra’s care in July 2014 for neglect and placed in DHHS foster care; they remained in out-of-home placement throughout the proceedings.
Christopher O. was incarcerated before the twins’ birth and learned he was the biological father in early 2015 after DNA testing; he has never met the children.
The State filed supplemental petitions (Mar. 4, 2016) to terminate Christopher’s parental rights under Neb. Rev. Stat. § 43-292, alleging abandonment, neglect, failure to provide, and that the children had been in out-of-home placement for 15+ of the most recent 22 months.
At the Aug. 18, 2016 hearing Christopher participated by phone; DHHS caseworkers and a bonding/attachment expert testified that the children had bonded with foster parents, showed attachment trauma, and that disruption would harm them.
The juvenile court terminated Christopher’s parental rights under § 43-292(1) and (7) and found termination was in the children’s best interests; the court’s finding under (7) (15+ of 22 months) was not contested on appeal.
On appeal the Nebraska Court of Appeals conducted a de novo review, affirmed termination, concluding that despite Christopher’s limited attempts to engage while incarcerated, the length of out-of-home placement and uncertain timing of his release rebutted the presumption of parental fitness.

Issues

Issue	Christopher’s Argument	State’s Argument	Held
Whether statutory grounds existed to terminate under § 43-292(1) (abandonment)	Christopher argued he attempted contact and could not parent due to incarceration; he disputed abandonment	State alleged abandonment and pointed to lack of visits, gifts, and involvement	Court did not need to decide § 43-292(1) because § 43-292(7) (15+ of 22 months) was proven and sufficient to support termination
Whether termination was in the children’s best interests	Christopher argued incarceration alone (and crimes committed before conception) should not defeat reunification when he sought to participate and was pursuing parole/programming	State argued children needed permanency after ~25 months in foster care, expert testimony warned disruption would harm attachment, and Christopher’s release timing was speculative	Held: Termination was in the children’s best interests; the State rebutted the presumption of parental fitness given lengthy foster placement and uncertain release timeline
Whether incarceration alone can justify termination	Christopher argued his crimes predated the children and incarceration should not be dispositive	State argued incarceration is a relevant factor insofar as it prevents performance of parental duties	Held: Incarceration alone insufficient, but it is a proper factor; here combined with prolonged out-of-home placement and speculative release supported termination
Whether parental unfitness was proven	Christopher argued he engaged as much as possible in prison (parenting programs, inquiries) and was not shown unfit	State relied on lack of relationship, no visitation, lack of case-plan goals assigned, and attachment harm to children	Held: Court found, by clear and convincing evidence, parental fitness presumption rebutted and parental unfitness (practical incapacity to parent timely) shown for best-interest determination

Key Cases Cited

In re Interest of Isabel P. et al., 293 Neb. 62 (de novo review standard for juvenile matters)
In re Interest of Elizabeth S., 282 Neb. 1015 (§ 43-292: any single statutory ground may support termination if best interests shown)
In re Interest of Nicole M., 287 Neb. 685 (parental rights constitutionally protected; best-interests presumption favors parent unless unfit shown)
In re Interest of Jahon S., 291 Neb. 97 (incarceration is a factor but not sole basis for termination)
In re Interest of Zanaya W. et al., 291 Neb. 20 (termination warranted where parent unable/unwilling to rehabilitate within reasonable time)
In re Interest of Athina M., 21 Neb. App. 624 (reversal where incarceration and permanency alone did not prove best interests; prior parental involvement relevant)
In re Interest of Leland B., 19 Neb. App. 17 (incarceration-focused evidence insufficient where parent had been primary caregiver pre-incarceration)
In re Interest of Walter W., 274 Neb. 859 (children should not be suspended in foster care awaiting uncertain parental maturity)