In re Interest of Lizabella R.
25 Neb. Ct. App. 421
| Neb. Ct. App. | 2018Background
- Mother Elizabeth L. is parent to Lizabella (b. Jan 2015) and Jose (b. Feb 2016). Lizabella was removed Aug 2015 after being found unresponsive while Elizabeth was jailed pretrial; Jose was removed June 2016 after Elizabeth’s federal conviction and incarceration.
- Elizabeth completed residential treatment and multiple voluntary services while out of custody, maintained frequent visitation with Lizabella, and was the primary caretaker for Jose from his birth until her incarceration.
- In late May 2016 Elizabeth was convicted on federal drug charges and sentenced to concurrent 10-year terms; she has remained incarcerated since sentencing and maintains telephone contact with both children.
- The juvenile court adjudicated both children and later ordered services (including relinquishment counseling); the State moved to terminate Elizabeth’s parental rights and the juvenile court found grounds under Neb. Rev. Stat. § 43-292(2), (6), and (7) and that termination was in the children’s best interests.
- On appeal the Nebraska Court of Appeals reviewed the record de novo, found plain error as to § 43-292(7) for Jose, and reversed termination of parental rights as to both children, remanding for further proceedings.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Elizabeth) | Held |
|---|---|---|---|
| Whether Jose fits § 43-292(2) (substantial, continuous, or repeated neglect) | Elizabeth’s voluntary criminal conduct leading to long incarceration justifies finding neglect because she cannot parent and children need permanency | Elizabeth was an appropriate caretaker for Jose from birth until incarceration; incarceration alone cannot support termination | Reversed: insufficient clear and convincing evidence; incarceration alone not enough to prove neglect under § 43-292(2) |
| Whether Jose fits § 43-292(6) (reasonable efforts failed) | Reasonable efforts failed to reunify given post-adjudication noncompliance and Elizabeth’s incarceration | Elizabeth undertook extensive voluntary services pre‑adjudication and could not complete some court-ordered requirements due to incarceration or because the order (relinquishment counseling) was not reunification-oriented | Reversed: State failed to show reasonable efforts failed under § 43-292(6); remanded |
| Whether termination is in Jose’s best interests | Long parental incarceration and inability to provide stable placement favor termination | Continued parent–child relationship, active participation in services pre‑incarceration, and telephone contact weigh against termination | Not addressed on merits for Jose after reversal of statutory grounds (remanded) |
| Whether Lizabella meets statutory grounds and best interests | Lizabella was in foster care >15 of most recent 22 months (§ 43-292(7)); long incarceration makes termination appropriate for permanency and child’s needs | Elizabeth made substantial progress pre‑incarceration, was primary caregiver, completed services for Lizabella’s special needs, maintains contact; incarceration alone insufficient to show parental unfitness | Reversed: although § 43-292(7) was met, the court concluded termination was not shown to be in Lizabella’s best interests; remanded for further proceedings |
Key Cases Cited
- In re Interest of Noah B., 295 Neb. 764, 891 N.W.2d 109 (standard of de novo appellate review in juvenile cases)
- In re Interest of LeVanta S., 295 Neb. 151, 887 N.W.2d 502 (deference to trial court credibility findings when evidence conflicts)
- In re Interest of Mainor T. & Estela T., 267 Neb. 232, 674 N.W.2d 442 (plain error doctrine)
- In re Interest of Kalie W., 258 Neb. 46, 601 N.W.2d 753 (incarceration not alone a ground; elements and burden for termination)
- In re Interest of Leland B., 19 Neb. App. 17, 797 N.W.2d 282 (incarceration alone insufficient for termination)
- In re Interest of Josiah T., 17 Neb. App. 919, 773 N.W.2d 161 (discussion of incarceration and proof of likely duration)
- In re Interest of Zanaya W. et al., 291 Neb. 20, 863 N.W.2d 803 (termination supported where incarceration combined with additional evidence of parental unfitness)
- In re Interest of Jahon S., 291 Neb. 97, 864 N.W.2d 228 (best‑interests and parental fitness standards)
- In re Interest of Aaron D., 269 Neb. 249, 691 N.W.2d 164 (courts look for continued parental improvement rather than perfection)