907 N.W.2d 745
Neb. Ct. App.2018Background
- Elizabeth L., mother of Lizabella (b. Jan 2015) and Jose (b. Feb 2016), was the subject of juvenile petitions after Lizabella was found injured while Elizabeth was incarcerated on federal drug charges. Lizabella removed Aug 2015; Jose removed June 2016.
- Elizabeth was released pretrial in Nov 2015, completed residential treatment and multiple services, and had unsupervised visitation with Lizabella before she was convicted and sentenced to 10 years’ federal imprisonment in May 2016.
- Following Elizabeth’s incarceration, both children were placed in foster care: Lizabella remained in care from Aug 2015 through the termination hearing (over 15 months); Jose had been in care about 9 months at the termination hearing.
- The State moved to terminate Elizabeth’s parental rights under Neb. Rev. Stat. § 43‑292 subsections (2), (6), and (7); the juvenile court found all three grounds satisfied and that termination was in the children’s best interests.
- On appeal the Nebraska Court of Appeals conducted a de novo review and reversed termination as to both children, remanding for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Jose qualified under § 43‑292(7) (15+ of most recent 22 months in out‑of‑home care) | State: statute satisfied | Elizabeth: Jose had only been in care ≈9 months | Reversed — plain error; § 43‑292(7) not met for Jose |
| Whether Jose qualified under § 43‑292(2) (substantial, continuous, or repeated neglect) | State: incarceration and voluntary criminal conduct support neglect finding | Elizabeth: she cared for Jose from birth until incarceration; incarceration alone is insufficient | Reversed — insufficient clear and convincing evidence; incarceration alone does not prove neglect under § 43‑292(2) |
| Whether Jose qualified under § 43‑292(6) (reasonable reunification efforts failed) | State: dispositional orders and post‑adjudication orders not complied with | Elizabeth: she completed available services pre‑incarceration; some ordered steps (relinquishment counseling, probation compliance) were impossible or not aimed at reunification | Reversed — State failed to show reasonable reunification efforts failed under § 43‑292(6) |
| Whether termination was in Lizabella’s best interests (and parental fitness) | State: long incarceration prevents stable care; permanency requires termination | Elizabeth: prior progress, heavy special‑needs caregiving history, ongoing contact and commitment; incarceration alone not dispositive | Reversed — despite statutory ground § 43‑292(7) being met, termination not shown to be in Lizabella’s best interests given record of caregiver fitness and efforts |
Key Cases Cited
- In re Interest of Noah B., 295 Neb. 764, 891 N.W.2d 109 (de novo appellate review of juvenile cases)
- In re Interest of LeVanta S., 295 Neb. 151, 887 N.W.2d 502 (weight given to trial court's witness observations when evidence conflicts)
- In re Interest of Kalie W., 258 Neb. 46, 601 N.W.2d 753 (incarceration alone insufficient for termination; clarifies neglect standard)
- In re Interest of Zanaya W., 291 Neb. 20, 863 N.W.2d 803 (termination upheld where incarceration plus additional misconduct and admissions supported neglect)
- In re Interest of Jahon S., 291 Neb. 97, 864 N.W.2d 228 (parental rights constitutionally protected; State must show unfitness and best interests)