997 N.W.2d 778
Neb.2023Background
- Child Jessalina born Sept. 2020; removed from mother Samantha’s custody two days after birth and placed in DHHS custody and foster care.
- Father Jose later obtained placement (January 10, 2022); child remained in DHHS custody subject to removal if unsafe.
- State filed petition to terminate Samantha’s parental rights on March 25, 2022; termination trial held July–August 2022; juvenile court entered order terminating rights on August 29, 2022.
- Juvenile court found statutory bases under Neb. Rev. Stat. § 43-292 (including § 43-292(7)) proven by clear and convincing evidence, and found Samantha unfit and termination in the child’s best interests.
- Nebraska Court of Appeals affirmed; mother petitioned for further review focusing on (1) whether the 22-month "look-back" in § 43-292(7) is measured from petition filing or from trial/termination, and (2) whether placement with the father counts as "out-of-home placement" as to the mother.
Issues
| Issue | Plaintiff's Argument (Samantha) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Does "out-of-home placement" under § 43-292(7) include placement with another parent? | Placement with father should not count as out-of-home placement for purposes of terminating Samantha’s rights. | "Out-of-home placement" is any placement outside the specific parent’s home, including placement with another parent. | Held: Counts as out-of-home placement from the perspective of the parent whose rights are at issue. |
| What is the trigger date for the 22‑month look-back under § 43-292(7)? (filing vs. trial/termination) | The look-back should be measured at the date of the termination order (or trial), not the petition filing, to reflect current circumstances. | The look-back is measured as of the date the petition or motion to terminate is filed; allegations must be based on facts existing when filed. | Held: The 22‑month period is measured as of the date the petition or motion to terminate parental rights is filed. |
| Was the statutory threshold of 15+ months out-of-home within the most recent 22 months met here? | If placement with father is excluded and/or the look-back is measured at termination, the 15‑month threshold is not met. | Using the petition filing date and counting placement with father as out-of-home, Jessalina was out-of-home for >=15 months of the prior 22 months. | Held: Statutory threshold met: Jessalina was out-of-home as to Samantha for 15+ months of the most recent 22 months measured from petition filing. |
| Were findings of parental unfitness and best interests supported independent of the mathematical § 43-292(7) finding? | Court’s fitness/best-interest findings rely on the erroneous § 43-292(7) determination. | Fitness and best-interest findings rest on separate, clear-and-convincing evidence presented at trial and may consider post-filing changes. | Held: Court of Appeals correctly affirmed the juvenile court’s findings of unfitness and best interests on the record. |
Key Cases Cited
- In re Interest of Kendra M. et al., 283 Neb. 1014 (Neb. 2012) (gave statutory "out-of-home placement" plain meaning and held placements outside the parent’s home count regardless of temporary nature)
- In re Interest of Nicole M., 287 Neb. 685 (Neb. 2014) (discussed computing out-of-home placement relative to filing of termination petition)
- In re Interest of Shelby L., 270 Neb. 150 (Neb. 2005) (used petition filing date when referencing continuous out-of-home placement for § 43-292(7))
- In re Interest of Noah C., 306 Neb. 359 (Neb. 2020) (background case: affirmed prior termination of Samantha’s parental rights to another child)
- In re Interest of Manuel C. & Mateo S., 314 Neb. 91 (Neb. 2023) (standard of review for juvenile termination appeals explained)