961 N.W.2d 516
Neb.2021Background
- Juvenile case involving Juana L., a Guatemalan mother whose three children were adjudicated neglected after one proven incident where she left two children home alone; legal custody was transferred to DHHS and children later placed in foster care.
- Juana fled an abusive partner, relocated to Minnesota, was arrested for forgery/false ID after using false documents to obtain work, and spent about 21 months in jail/ICE/psychiatric detention with limited in-person contact with her children.
- While in foster care the children rapidly lost K’iche’/Spanish ability; foster parents generally cared for them but contact and language continuity with Juana were limited.
- The State petitioned to terminate Juana’s parental rights under Neb. Rev. Stat. § 43-292 subsections (2), (3), (6), and (7), including § 43-292(7) (child in out-of-home placement 15 of the past 22 months).
- The juvenile court found Juana credible, denied termination, reinstated reunification as the sole permanency goal with ordered robust reunification efforts, and the State appealed.
- The Nebraska Supreme Court affirmed: it found § 43-292(7) satisfied (the statutory 15/22 months), but termination was not in the children’s best interests given Juana’s credibility, efforts, changed circumstances (asylum, stability), and failures by DHHS to facilitate meaningful reunification; a concurrence emphasized DHHS’ deficient reunification efforts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 43-292(7) (15 of 22 months out-of-home) is met | State: children were in foster care >15 of 22 months, so § 43-292(7) applies | Juana: juvenile court treated statutory exceptions (incarceration, lack of reasonable efforts) as defeating § 43-292(7) | Court: § 43-292(7) met; statute operates mechanically when formula satisfied |
| Whether incarceration or lack of reasonable efforts prevents using § 43-292(7) | State: § 43-292.02 exceptions do not bar filing under § 43-292(7) | Juana: juvenile court argued § 43-292.02(2)(b) and (3)(c) create exceptions | Court: exceptions do not negate application of § 43-292(7); State may proceed under (7) even if reunification efforts were lacking |
| Whether termination is in children’s best interests (fitness/unfitness) | State: prior neglect, medical lapses, prolonged separation, criminal conduct, and out-of-home placement show unfitness and support termination | Juana: credited testimony shows coercion/abuse, sincere efforts to reunify, asylum and legal work status, remedied many issues; presumption favors parent | Court: Presumption of maintaining parent relationship not overcome; termination not in children’s best interests; Juana not shown unfit by clear and convincing evidence |
| Whether DHHS provided reasonable reunification efforts (relevant to § 43-292(6)) | State: DHHS made reasonable efforts | Juana / concurrence: DHHS failed (limited visits, did not prioritize relatives, allowed language loss) | Majority: not necessary to outcome; Concurrence: DHHS failed to provide reasonable efforts and should have done more to preserve parent-child bond |
Key Cases Cited
- In re Interest of Prince R., 308 Neb. 415 (de novo juvenile review; may give weight to juvenile court credibility findings)
- In re Interest of Leyton C. & Landyn C., 307 Neb. 529 (statutory termination grounds; State burden)
- In re Interest of Aaron D., 269 Neb. 249 (§ 43-292(7) operates mechanically when 15/22 months satisfied)
- In re Adoption of Micah H., 301 Neb. 437 (incarceration cannot be the sole factual basis for termination under certain statutes)
- In re Interest of Alec S., 294 Neb. 784 (§ 43-292.02 and reasonable-efforts principles; timing and best-interests nuance)
- In re Interest of Angelica L. & Daniel L., 277 Neb. 984 (immigrant mother; errors of judgment do not necessarily establish parental unfitness)
- In re Interest of Karlie D., 283 Neb. 581 (preference for placement with relatives when appropriate)