In re Interest of Lizabella R.
25 Neb. Ct. App. 421
| Neb. Ct. App. | 2018Background
- Mother Elizabeth L. is the biological parent of Lizabella (b. Jan 2015) and Jose (b. Feb 2016); both children were placed in foster care after child-protection proceedings.
- Lizabella was removed Aug 2015 while Elizabeth was in pretrial custody; adjudicated Apr 2016 and remained in foster care through the termination hearing.
- Elizabeth was released Nov 2015, completed residential treatment and multiple services, then was convicted on federal drug charges and sentenced to concurrent 10-year terms in May 2016 and has been incarcerated since.
- Jose remained with Elizabeth after his Feb 2016 birth until Elizabeth’s May 2016 incarceration; he was removed and adjudicated Sept 2016.
- The juvenile court terminated Elizabeth’s parental rights to both children under Neb. Rev. Stat. § 43-292(2), (6), and (7); Elizabeth appealed.
- On de novo review, the Court of Appeals reversed termination as to both children and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Elizabeth) | Held |
|---|---|---|---|
| Whether Jose falls under § 43-292(7) (15+ months OOH) | Jose has been in out-of-home placement long enough to satisfy § 43-292(7) | Jose had been in placement only ~9 months at hearing | Reversed — plain error; Jose did not meet § 43-292(7) |
| Whether Jose falls under § 43-292(2) (substantial, continuous neglect) | Elizabeth’s criminal conduct and resulting incarceration justify finding neglect (inability to parent) | Incarceration alone does not constitute neglect; Elizabeth was appropriate caregiver pre-incarceration and completed services | Reversed — State failed to prove neglect by clear and convincing evidence; incarceration alone insufficient |
| Whether Jose falls under § 43-292(6) (reasonable efforts failed) | Post-adjudication orders were not satisfied, showing reasonable efforts failed | Elizabeth completed voluntary services pre-conviction; some court-ordered items (probation compliance, relinquishment counseling) were impossible or not intended to reunify; reasonable efforts did not fail | Reversed — State failed to show reasonable efforts failed under § 43-292(6) |
| Whether termination of Lizabella’s parental rights was in child’s best interests | Long incarceration and inability to provide stable placement mean termination is in child's best interests | Elizabeth had a sustained parent–child relationship, completed services, had unsupervised/overnight visits pre-incarceration, and maintained contact while incarcerated | Reversed — although § 43-292(7) was met for Lizabella, the State did not show termination was in Lizabella’s best interests |
Key Cases Cited
- In re Interest of Noah B., 295 Neb. 764, 891 N.W.2d 109 (de novo review in juvenile appeals)
- In re Interest of LeVanta S., 295 Neb. 151, 887 N.W.2d 502 (weight to trial court observations when evidence conflicts)
- In re Interest of Mainor T. & Estela T., 267 Neb. 232, 674 N.W.2d 442 (plain error doctrine in juvenile cases)
- In re Interest of Kalie W., 258 Neb. 46, 601 N.W.2d 753 (incarceration may be considered but alone is not sufficient for termination)
- In re Interest of Leland B., 19 Neb. App. 17, 797 N.W.2d 282 (incarceration alone insufficient to terminate)
- In re Interest of Josiah T., 17 Neb. App. 919, 773 N.W.2d 161 (parental incarceration and need for evidence about likely length of absence)
- In re Interest of Zanaya W. et al., 291 Neb. 20, 863 N.W.2d 803 (upholding termination where additional neglectful conduct was shown)
- In re Interest of Jahon S., 291 Neb. 97, 864 N.W.2d 228 (parental fitness and best-interests framework)
- In re Interest of Aaron D., 269 Neb. 249, 691 N.W.2d 164 (focus on continued parental improvement and beneficial parent–child relationship)