In re Interest of Tre'von A.
A-17-193
| Neb. Ct. App. | Sep 26, 2017Background
- Randi (born 2011) was removed from her mother in 2013 and has lived continuously with foster parents since age 2; mother relinquished rights in 2015.
- Albert was incarcerated in federal prison beginning May 2011 (one month before Randi’s birth) and remained largely absent until release to a halfway house in 2016.
- Paternity was uncertain; Albert did not pursue genetic testing or meaningful contact until mid-2016; testing showed he is Randi’s biological father in August 2016.
- Randi had been in out-of-home placement for more than 15 of the most recent 22 months (about 36 months total) at the time the State moved to terminate Albert’s parental rights.
- Evidence at the termination hearing: DHHS worker and foster mother testified to Albert’s minimal contact and lack of support; foster mother and therapist reported worsening behavioral symptoms in Randi when contact occurred.
- Juvenile court terminated Albert’s parental rights under Neb. Rev. Stat. § 43-292(1), (2), (7), and (9); the court found termination was in Randi’s best interests. Albert appealed.
Issues
| Issue | Plaintiff's Argument (Albert) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether statutory grounds for termination were proved | Court erred; State did not prove relevant statutory grounds | § 43-292(7) satisfied because child was in out-of-home placement 15 of 22 months; other grounds alleged too | Affirmed: § 43-292(7) clearly met |
| Whether termination was in the child’s best interests | Termination not supported; Albert can parent and incarceration mitigates fault | Termination serves child’s need for immediate permanency; Albert unfit and made no efforts to parent | Affirmed: termination is in Randi’s best interests |
| Whether Albert is unfit to parent (required where only § 43-292(7) applies) | Insufficient evidence of unfitness; incarceration alone cannot justify termination | Albert failed to establish paternity timely, offered no parental support or preparation, and failed mediation/contacts | Affirmed: clear and convincing evidence Albert was unfit under the totality of circumstances |
| Whether incarceration alone can support termination | Argues incarceration impermissible sole basis | Incarnation considered as a factor; here combined with inactivity and lack of contact supports termination | Held: incarceration not sole basis, but is relevant; combined factors support termination |
Key Cases Cited
- In re Interest of LeVanta S., 295 Neb. 151, 887 N.W.2d 502 (de novo review standard; give weight to credibility findings)
- In re Interest of Isabel P., 293 Neb. 62, 875 N.W.2d 848 (if § 43-292(7) established, court need not address other statutory grounds)
- In re Interest of Justin H., 18 Neb. App. 718, 791 N.W.2d 765 (§ 43-292(7) operates mechanically and does not require fault)
- In re Interest of Aaron D., 269 Neb. 249, 691 N.W.2d 164 (when termination rests solely on § 43-292(7), best-interests/unfitness must be proved by clear and convincing evidence)
- In re Interest of Jahon S., 291 Neb. 97, 864 N.W.2d 228 (incarceration is a relevant factor but not sole basis for termination)
- In re Interest of DeWayne G., 263 Neb. 43, 638 N.W.2d 510 (consideration of inability to perform parental obligations due to incarceration)
- In re Interest of Athina M., 21 Neb. App. 624, 842 N.W.2d 159 (contrast where termination reversed because prior parent–child relationship and potential imminent release supported re-evaluation)