In re Interest of Joezia P.
30 Neb. Ct. App. 281
| Neb. Ct. App. | 2021Background
- Jeremy H., father of Joezia (born 2017), has prior domestic-violence convictions involving Joezia’s mother while she was pregnant and while Joezia was present.
- Joezia was adjudicated under Neb. Rev. Stat. § 43-247(3)(a) in 2019 and placed in DHHS custody; removed to foster care in Sept. 2019.
- Jeremy was repeatedly incarcerated (including an escape and additional conviction that extended his sentence), limiting contact with Joezia and completion of court-ordered services.
- The State moved to terminate Jeremy’s parental rights under Neb. Rev. Stat. § 43-292(2) (neglect); hearings were held partly by remote means during COVID-19; the court employed a bifurcated procedure allowing Jeremy transcript review and consultation with counsel.
- The juvenile court found clear and convincing evidence of repeated neglect and that termination was in Joezia’s best interests; the Nebraska Court of Appeals affirmed.
Issues
| Issue | State's Argument | Jeremy's Argument | Held |
|---|---|---|---|
| Whether overruling Jeremy’s motion to transport (physical presence) violated due process | Denial was permissible because procedural due process was provided: counsel, bifurcated hearing, transcript review; COVID, delay, security and transport concerns justified decision | He was denied meaningful participation by not being physically present or able to observe witnesses/communicate in real time | Court: No abuse of discretion; due process satisfied by bifurcated procedure, transcript review, counsel access |
| Whether § 43-292(2) neglect was proven by clear and convincing evidence | Jeremy’s repeated and prolonged incarcerations, voluntary criminal conduct (including escape) and failure to complete services showed substantial/repeated neglect | He attempted to pursue services but was prevented by facility/COVID limitations and other barriers | Court: Affirmed — clear and convincing evidence of repeated/substantial neglect; incarceration considered with voluntary criminal conduct |
| Whether termination was in the child’s best interests (and presumption of parental fitness rebutted) | Permanency and stability favored adoption: child bonded with foster family, improved with stable placement; Jeremy failed to rehabilitate and could not provide support/stability | Argued he was not unfit and had sought services; constraints limited completion | Court: Affirmed — termination in child’s best interests; parent failed to rehabilitate within reasonable time |
Key Cases Cited
- In re Interest of Taeson D., 305 Neb. 279, 939 N.W.2d 832 (Neb. 2020) (leaves method of meaningful participation by incarcerated parent to juvenile court discretion)
- In re Interest of L.V., 240 Neb. 404, 482 N.W.2d 250 (Neb. 1992) (lists factors to consider before requiring incarcerated parent’s physical presence)
- In re Interest of Kalie W., 258 Neb. 46, 601 N.W.2d 753 (Neb. 1999) (incarceration and the underlying criminal conduct are relevant to neglect analysis)
- Fetherkile v. Fetherkile, 299 Neb. 76, 907 N.W.2d 275 (Neb. 2018) (appellate courts consider only errors both assigned and argued)
- In re Interest of Becka P., 27 Neb. App. 489, 933 N.W.2d 873 (Neb. Ct. App. 2019) (appellate review of juvenile cases is de novo but may defer to juvenile court credibility findings)
- In re Interest of Ryder J., 283 Neb. 318, 809 N.W.2d 255 (Neb. 2012) (parent’s inability or unwillingness to rehabilitate within reasonable time supports termination)