In re Interest of Gypsey N.
A-17-185
| Neb. Ct. App. | Dec 12, 2017Background
- Child Gypsey born Oct. 2011; removed from father's custody Oct. 17, 2014 and became a state ward; placed in foster care continuously thereafter.
- Mother Tracy lived in Texas, had minimal contact: one telephone call, one birthday card (Oct. 2015), no in-person visits since state wardship began; David (father) relinquished rights in mid-2016.
- The State filed a supplemental petition July 19, 2016 seeking termination of Tracy’s parental rights under multiple subsections of Neb. Rev. Stat. § 43-292, including § 43-292(7) (child in out-of-home placement 15+ of last 22 months).
- Termination hearing held Dec. 2, 2016; Tracy did not appear though represented by counsel (continuance denied); DHHS caseworker and two therapists/foster parent testified for the State.
- Evidence: Gypsey had trauma-related behavioral diagnosis (Disinhibited Social Engagement Disorder), improving in foster care but sensitive to change; DHHS attempted to engage Tracy but efforts were largely unsuccessful.
- Juvenile court terminated Tracy’s parental rights under § 43-292(7) and found termination in Gypsey’s best interests; Tracy appealed arguing the court erred on the best-interests/unfitness issue.
Issues
| Issue | Plaintiff's Argument (Tracy) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether termination is in child’s best interests and whether parent is unfit/has forfeited rights | Tracy: Record lacks evidence she is unfit; little information about her; termination not warranted | State: Statutory ground (§ 43-292(7)) proven; Tracy failed to engage, had minimal contact, and effectively forfeited parental role; termination serves child’s stability | Court affirmed: statutory ground met; clear and convincing evidence termination is in child’s best interests and Tracy forfeited parental rights |
| Sufficiency of testimony supporting best-interests finding (reliance on caseworker) | Tracy: Court erred relying primarily on caseworker testimony | State: Caseworker testimony was supported by therapists and foster parent testimony and represented direct engagement efforts | Court: Distinguishes prior cases where only caseworker testified; here other witnesses testified and caseworker had personal knowledge — evidence sufficient |
| Whether procedural fairness impacted by Tracy’s absence at hearing | Tracy: (implied) absence undermines decision | State: Tracy was served and failed to appear; counsel requested continuance only and offered no explanation | Court: Tracy’s unexplained absence weighed against her; no showing she was unaware; proceedings proper |
| Whether improvement/therapeutic options counseled against termination | Tracy: (implied) therapeutic contacts or reunification steps possible | State: Child is stable in foster care; diagnosis makes placement change risky; therapeutic reintroduction not appropriate without steps; long separation already occurred | Court: Child’s need for stability and prior failures to engage justify termination |
Key Cases Cited
- Gottsch v. Bank of Stapleton, 235 Neb. 816, 458 N.W.2d 443 (1990) (judicial notice of court records and limits via collateral estoppel/res judicata)
- Dairyland Power Co-op v. State Bd. of Equal., 238 Neb. 696, 472 N.W.2d 363 (1991) (judicial notice principles)
- State v. Dandridge, 255 Neb. 364, 585 N.W.2d 433 (1998) (judicial notice and record-taking guidance)
- In re Interest of Elizabeth S., 282 Neb. 1015, 809 N.W.2d 495 (2012) (§ 43-292 statutory grounds overview)
- In re Interest of Ryder J., 283 Neb. 318, 809 N.W.2d 255 (2012) (once statutory grounds shown, court must find termination is in child’s best interests)
- In re Interest of Nicole M., 287 Neb. 685, 844 N.W.2d 65 (2014) (parental rights are constitutionally protected; State must show parent unfit)
- In re Interest of Aaron D., 269 Neb. 249, 691 N.W.2d 164 (2005) (insufficiency where caseworker used as proxy for other expert witnesses)
- In re Interest of Skye W. & McKenzie W., 14 Neb. App. 74, 704 N.W.2d 1 (2005) (similar caution about relying solely on caseworker testimony)
- In re Interest of Chance J., 279 Neb. 81, 776 N.W.2d 519 (2009) (parental forfeiture where parent made no meaningful pre-petition contact)