994 N.W.2d 106
Neb. Ct. App.2023Background
- Child Jessalina born Sept. 2020 and removed from mother Samantha’s care at birth due to concerns about Samantha’s behavior and mental health; Samantha previously had parental rights to another child (Noah) terminated.
- Case initially filed and adjudicated in Lincoln County; DHHS adopted case plans requiring Samantha to address parenting and mental-health issues, obtain releases and updated psychological evaluation, attend supervised visits, and demonstrate stability.
- Multiple service providers and supervised-visit agencies ceased working with Samantha because of her hostile communications and conduct; visits were inconsistent and ultimately limited to short video visits after Samantha failed to obtain an updated psych evaluation.
- State (and GAL) filed a petition to terminate Samantha’s parental rights March 25, 2022 alleging multiple statutory grounds including § 43-292(7) (15 of most recent 22 months in out-of-home placement).
- Juvenile court transferred the case to Cheyenne County, found § 43-292(7) satisfied, found Samantha unfit, held termination was in the child’s best interests, and terminated parental rights; Samantha appealed.
Issues
| Issue | Plaintiff's Argument (Samantha) | Defendant's Argument (State/GAL) | Held |
|---|---|---|---|
| Transfer of venue to Cheyenne County (due process/confrontation) | Transfer violated due process: GAL excused so Samantha could not confront accuser; dismissal/changes of her court-appointed counsel prejudiced her and delayed hearing on her objection to DHHS plan. | Transfer authorized by § 43-282; GAL’s affidavit and other evidence were received; Samantha did not object to affidavit at hearing; transfer served child’s interests and did not prejudice Samantha. | Transfer was proper. Samantha waived objection to GAL’s absence; transfer did not deny meaningful opportunity to be heard or otherwise prejudice her. |
| Statutory grounds for termination (§ 43-292(7)) | Argued the court erred in finding statutory grounds for termination. | § 43-292(7) is mechanical: if juvenile was in out-of-home placement 15 of most recent 22 months, ground satisfied. Jessalina was removed Sept. 10, 2020 and remained out-of-home long enough. | § 43-292(7) satisfied (petition filed March 25, 2022); one statutory ground suffices for termination. |
| Best interests / parental unfitness | Samantha maintained she was making progress and mental-health issues alone do not justify termination; she contested that termination served the child’s best interests. | Samantha repeatedly failed to engage with services, missed/was inconsistent with visits, refused releases and updated psychological testing, was hostile to providers, and posed risk to permanency. | Court found Samantha unfit and that termination was in Jessalina’s best interests given prolonged out-of-home placement and lack of rehabilitative progress. |
Key Cases Cited
- In re Interest of Mateo L. et al., 309 Neb. 565, 961 N.W.2d 516 (2021) (de novo review of juvenile cases; § 43-292(7) operates mechanically)
- In re Interest of Jeremy U. et al., 304 Neb. 734, 936 N.W.2d 733 (2020) (transfer under § 43-282 to county where juvenile domiciled)
- In re Interest of Tegan V., 18 Neb. App. 857, 794 N.W.2d 190 (2011) (discretionary transfer under § 43-282)
- In re Interest of Nicole M., 287 Neb. 685, 844 N.W.2d 65 (2014) (uses petition filing date when assessing § 43-292(7) look-back)
- In re Interest of Shelby L., 270 Neb. 150, 699 N.W.2d 392 (2005) (§ 43-292(7) timing and termination analysis)
- In re Interest of Ryder J., 283 Neb. 318, 809 N.W.2d 255 (2012) (best-interests requirement after statutory grounds shown)
- In re Interest of Leyton C. & Landyn C., 307 Neb. 529, 949 N.W.2d 773 (2020) (parental unfitness standard and presumption favoring parent-child relationship)
- In re Interest of Walter W., 274 Neb. 859, 744 N.W.2d 55 (2008) (children should not be indefinitely suspended in foster care; termination may be required if parent cannot rehabilitate)
- In re Interest of Noah C., 306 Neb. 359, 945 N.W.2d 143 (2020) (prior termination of Samantha’s parental rights to another child)