In re Interest of Joezia P.
30 Neb. Ct. App. 281
Neb. Ct. App.2021Background:
- Father Jeremy H. has a history of domestic-assault convictions (including while the mother was pregnant) and multiple periods of incarceration; child Joezia born 2017.
- March–July 2019: State filed juvenile petition; court adjudicated Joezia under § 43-247(3)(a) and placed him in DHHS custody; child removed to foster care Sept 2019 and has remained there.
- Court-ordered services for Jeremy (batterers class, counseling, CPP) were only partially completed; Jeremy was terminated from a batterers program, cut his monitor and escaped custody, received additional incarceration extending his release to Dec. 2021.
- State moved to terminate Jeremy’s parental rights under Neb. Rev. Stat. § 43-292(2) (neglect) and sought adoption permanency; hearings were held Dec. 18, 2020, Jan. 27 and Jan. 29, 2021. Jeremy participated by phone/brief video; his transport request was denied and the court used a bifurcated procedure allowing transcript review.
- Evidence: CPP therapist testified child improved and bonded in foster home; DHHS recommended termination due to child’s need for permanency and Jeremy’s continued incarceration and failure to complete services.
- Juvenile court found clear and convincing evidence of repeated neglect and that termination was in the child’s best interests; parental rights were terminated and the decision is affirmed on appeal.
Issues:
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Jeremy) | Held |
|---|---|---|---|
| Whether denial of transport/physical presence violated due process | Bifurcated hearing, counsel present, transcript review and opportunity to consult provided meaningful participation; COVID and delays justified denying transport | Denial prevented meaningful participation: no real-time communication, could not see witnesses or use chat, quarantine prevented attendance | Court: no abuse of discretion; due process satisfied by bifurcated procedure and transcript review; transport denial permissible under circumstances |
| Whether § 43-292(2) neglect was proved by clear and convincing evidence | Jeremy substantially/continuously neglected by repeated inability/unwillingness to parent due to incarceration, criminal conduct (escape), failure to complete services | Jeremy attempted to comply and was sometimes prevented by COVID or facility limitations; termination based on incarceration alone is improper | Court: clear and convincing evidence of repeated/substantial neglect given history, failure to complete services, and voluntary criminal acts extending incarceration |
| Whether termination was in child’s best interests and presumption of fitness rebutted | Child needs permanency; child improved in foster home; Jeremy unable/unwilling to rehabilitate and cannot provide stability or support | Jeremy argued efforts to pursue services and COVID-related barriers | Court: best interests favor termination; presumption of fitness rebutted—parental unfitness shown by inability/unwillingness to rehabilitate within reasonable time |
Key Cases Cited
- In re Interest of Taeson D., 305 Neb. 279, 939 N.W.2d 832 (2020) (due-process standard for incarcerated parents; courts have discretion to fashion meaningful participation)
- In re Interest of L.V., 240 Neb. 404, 482 N.W.2d 250 (1992) (incarcerated parent may be absent so long as procedural due process is afforded)
- In re Interest of Becka P., 27 Neb. App. 489, 933 N.W.2d 873 (2019) (appellate review of juvenile cases is de novo but deference given to trial court credibility findings)
- In re Interest of Kalie W., 258 Neb. 46, 601 N.W.2d 753 (1999) (incarceration and the underlying criminal conduct are relevant to neglect determinations)
- Fetherkile v. Fetherkile, 299 Neb. 76, 907 N.W.2d 275 (2018) (appellate court will consider only errors specifically assigned and argued)
- In re Interest of Ryder J., 283 Neb. 318, 809 N.W.2d 255 (2012) (parental inability/unwillingness to rehabilitate within reasonable time supports termination)
- In re Interest of Jahon S., 291 Neb. 97, 864 N.W.2d 228 (2015) (child should not be left in foster care awaiting uncertain parental maturity)