In re Interest of Isabel P.
293 Neb. 62
| Neb. | 2016Background
- In 2012 DHHS removed K.J. (and siblings) from his mother's care; K.J. was placed in foster care and remained there through the termination hearing.
- The State filed an adjudication petition under Neb. Rev. Stat. § 43-247(3)(a); at the first adjudication hearing the court appointed counsel for the mother but declined to appoint counsel for Charles J. because there were no allegations then against him.
- Charles had a long criminal history, periods of incarceration during K.J.’s life, sporadic contact with K.J., and episodes of leaving K.J. unsupervised (including a multi-day absence in 2012).
- DHHS did not place K.J. with Charles after removal due to concerns (criminal history, substance abuse, failure to provide roommate background info) and K.J. was placed with licensed foster parents who reported bonding and progress.
- The State petitioned to terminate Charles’ parental rights on August 27, 2014 under Neb. Rev. Stat. § 43-292 (alleging multiple statutory grounds, including abandonment). Charles was appointed counsel for the termination proceedings and contested the petition.
- The juvenile court found it erred in not appointing counsel for Charles at the adjudication stage and therefore declined to terminate parental rights; the State appealed and the GAL cross-appealed.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Charles) | Held |
|---|---|---|---|
| Whether appellate court has jurisdiction to review juvenile court denial of termination | Order denying termination affects a substantial right in a special proceeding and is appealable | (implicit) no jurisdictional bar argued | Court has jurisdiction; denial affected a substantial right and is reviewable |
| Whether failure to appoint counsel at adjudication precludes consideration of termination under § 43-292(1)-(3) | A defect in adjudication does not bar termination if parent received due process at termination stage | Failure to appoint counsel earlier misled Charles and prejudiced his ability to contest | Juvenile court erred to refuse to consider termination on that ground; due process was satisfied at termination hearing so adjudication-stage counsel defect did not preclude consideration |
| Whether clear and convincing evidence supports termination under § 43-292(1) (abandonment) | Charles abandoned K.J. (no contact for 6 months before petition; sparse contact over 22 months) | Charles claimed he stepped back believing mother would reunify and disputed extent of contact | Court (on de novo review) held clear and convincing evidence Charles abandoned K.J.; statutory ground (1) proven |
| Whether termination is in the child's best interests | Termination is in K.J.’s best interests given Charles’ criminal history, instability, negative effects of visits, and foster placement stability | Charles sought to maintain parental relationship; argued potential to parent | Court held clear and convincing evidence termination was in K.J.’s best interests and ordered termination |
Key Cases Cited
- In re Interest of Joshua M. et al., 256 Neb. 596, 591 N.W.2d 557 (Neb. 1999) (juvenile adjudication principles)
- In re Interest of Gabriella H., 289 Neb. 323, 855 N.W.2d 368 (Neb. 2014) (definition and proof of abandonment for § 43-292(1))
- Kenneth C. v. Lacie H., 286 Neb. 799, 839 N.W.2d 305 (Neb. 2013) (abandonment and parental obligations)
- In re Interest of Jahon S., 291 Neb. 97, 864 N.W.2d 228 (Neb. 2015) (presumption child’s best interests served by parent relationship; parental unfitness standard)
- In re Interest of Kendra M. et al., 283 Neb. 1014, 814 N.W.2d 747 (Neb. 2012) (standard for termination: clear and convincing evidence of statutory ground and best interests)