In re Interest of Zanaya W.
291 Neb. 20
| Neb. | 2015Background
- Children Zanaya, Mileaya, Imareon (and later Jahon) were removed from mother P’lar’e S.’s custody in 2011 for unsafe housing and untreated mental health issues; they initially were placed with father Reon W.
- Permanency plan allowed reunification with P’lar’e and preservation with Reon; P’lar’e had supervised visits, inconsistent therapy/medication compliance, missed drug tests, unstable housing, and limited engagement with the children.
- Reon was arrested in March 2013, later convicted for possession with intent to distribute marijuana (sentence 3–5 years) and for an assault committed while incarcerated (additional 120 days); DHHS removed the children from his care in April 2013.
- The State moved to terminate Reon’s parental rights (alleging neglect and long out-of-home placement) and to terminate P’lar’e’s rights (alleging neglect, failure to correct conditions, and long out-of-home placement); petitions later included Jahon.
- Reon admitted the neglect allegation and that termination was in the children’s best interests; the court ascertained a factual basis (convictions, incarceration length, admissions of daily marijuana use while children were in his custody) and terminated his rights.
- After trial, the juvenile court found clear and convincing evidence to terminate P’lar’e’s rights under subsections for neglect, failure to correct conditions, and 15-of-22-months placement; P’lar’e appealed claiming due process violation for not proceeding under the mental-illness ground (§ 43-292(5)).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there was a sufficient factual basis to support Reon’s admissions to neglect and best-interests grounds | Reon: factual basis insufficient because it relied improperly on incarceration | State: factual basis included convictions, incarceration length, assault while incarcerated, and Reon’s admission of daily marijuana use while children were in his care | Court: factual basis was sufficient; convictions, admissions, and incarceration-related facts supported neglect and best-interests admissions |
| Whether termination of Reon’s rights could rest on § 43-292(7) (15-of-22-months) | Reon: facts do not support termination under § 43-292(7) | State: § 43-292(7) was pleaded but not relied on at termination after Reon’s admission | Court: § 43-292(7) was dismissed after admission; not an issue on appeal |
| Whether State’s failure to proceed under § 43-292(5) (mental illness) violated P’lar’e’s due process rights | P’lar’e: because she has mental illness affecting parenting, State should have proceeded under § 43-292(5) rather than § 43-292(2)/(6)/(7) | State: permitted to proceed under neglect/failure-to-correct/placement grounds; precedent allows termination under other grounds even if mental illness exists | Court: P’lar’e did not raise this issue below; preserved-review rules bar appellate consideration; In re Interest of J.N.V. supports State’s choice; issue not preserved |
| Whether a parent’s incarceration (or crimes causing it) can be considered in termination analysis | Reon: incarceration alone cannot support termination | State: criminal conduct causing incarceration and resulting inability to parent are relevant factors | Court: incarceration is a permissible factor when coupled with other conduct (and criminal conduct is voluntary); here incarceration plus convictions/admissions justified considering permanency impact |
Key Cases Cited
- In re Interest of Karlie D., 283 Neb. 581 (2012) (discusses application of the 15-of-22-months termination ground)
- In re Interest of L.B., A.B., and A.T., 235 Neb. 134 (1990) (judicial admissions in termination proceedings dispense with need for independent proof)
- In re Interest of Ryder J., 283 Neb. 318 (2012) (incarceration and inability to perform parental duties may be considered in termination)
- In re Interest of Kalie W., 258 Neb. 46 (1999) (incarceration cannot alone support termination but is a relevant factor when considered with other evidence)
- In re Interest of J.N.V., 224 Neb. 108 (1986) (State may proceed under neglect ground despite parent’s mental illness; proceeding under § 43-292(5) not strictly required)
- In re Interest of Mainor T. & Estela T., 267 Neb. 232 (2004) (plain-error doctrine may allow review of unpreserved issues only in exceptional circumstances)
- Lindner v. Kindig, 285 Neb. 386 (2013) (constitutional issues not raised below generally not considered on appeal)