In re Interest of Joseph S.
870 N.W.2d 141
| Neb. | 2015Background
- Kerri S. is mother of three boys; DHHS first intervened in 2009 for drug use and improper supervision; children were removed for about a year and later returned in 2011.
- In January 2012 DHHS received a new intake alleging Kerri left the children with relatives, was unreachable, and possibly using drugs; Kerri entered a 180-day voluntary out-of-home placement agreement and worked with Nebraska Families Collaborative (NFC).
- During the placement Kerri had multiple positive or "non-negative" drug screens and later became inconsistent with required drug testing; supervised visitation and therapy participation were also inconsistent or terminated for noncompliance.
- Nine days before the voluntary period expired, an unannounced home visit revealed the residence unsafe and unsanitary, with graffiti (including drug references), alcohol bottles, unmade beds, and multiple unknown adults present.
- The State filed a petition alleging the children were within § 43-247(3)(a) and later amended to seek termination of Kerri’s parental rights under Neb. Rev. Stat. § 43-292(2) (substantial, continuous, or repeated neglect); after remand the juvenile court found by clear and convincing evidence § 43-292(2) was met and termination was in the children’s best interests.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether termination may be based on conduct during a voluntary placement agreement (due process claim) | Kerri: agreement was coerced and she lacked adequate notice of consequences; thus due process bars using that conduct for termination | State: voluntary placement here complied with due process; remand limited court to deciding neglect and best interests | Court declined to relitigate due process on remand (issue resolved earlier); did not address it further on appeal |
| Whether § 43-292(2) neglect was proven by clear and convincing evidence | Kerri: claimed compliance/defenses implicit; challenged sufficiency | State: showed pattern of repeated neglect—drug use, inconsistent testing, unsafe home, missed services and visitations | Court held State met clear and convincing evidence that Kerri substantially, continuously, or repeatedly neglected the children under § 43-292(2) |
| Whether termination was in the children’s best interests | Kerri: argued termination was not warranted given efforts and that children had some contact | State: cited long periods in foster care, children well-adjusted in current placement, lack of parental improvement or stability | Court held termination was in children’s best interests given lack of rehabilitation, instability, and need for permanency |
| Whether juvenile court abused discretion by denying bifurcation of adjudication and termination proceedings | Kerri: sought bifurcation to separate adjudication under § 43-247(3)(a) from termination under § 43-292(2) | State: opposed bifurcation; court found proceedings could proceed together | Court affirmed denial of bifurcation (no reversible error) |
Key Cases Cited
- In re Interest of Joseph S. et al., 288 Neb. 463, 849 N.W.2d 468 (Neb. 2014) (prior appellate proceedings in this matter and remand instructions)
- In re Interest of L.V., 240 Neb. 404, 482 N.W.2d 250 (Neb. 1992) (due process standards for voluntary placement agreements)
- In re Interest of Nedhal A., 289 Neb. 711, 856 N.W.2d 565 (Neb. 2014) (due process issues in parental-rights contexts)
- In re Interest of Walter W., 274 Neb. 859, 744 N.W.2d 55 (Neb. 2008) (burden to prove statutory ground and best interests by clear and convincing evidence)
- In re Interest of L.C., J.C., and E.C., 235 Neb. 703, 457 N.W.2d 274 (Neb. 1990) (failure to provide returnable environment supports neglect finding)
- In re Interest of Sir Messiah T. et al., 279 Neb. 900, 782 N.W.2d 320 (Neb. 2010) (consideration of past neglect and current circumstances in best-interests analysis)