In re Interest of Zy'air T.
A-16-1074
| Neb. Ct. App. | May 9, 2017Background
- Three children (Zy’Air b.2008, Zyriha b.2009, Heaven b.2011) were placed in DHHS custody in May 2012 after findings of inadequate parental care and unsafe housing.
- Veronica (mother) relinquished or had her parental rights terminated; Pierre is biological father of Zy’Air and Zyriha and legal father of Heaven (paternity contested by Pierre).
- Court-ordered reunification plan for Pierre (since Jan. 2013) required housing, income, substance evaluation/abstinence, random drug testing, psychological evaluation, parenting classes, and supervised visitation; Pierre did not meaningfully engage until Sept. 2015.
- By the time the State moved for termination (Mar. 2016) and at the termination hearing (Sept–Oct. 2016), the children had been in out-of-home placement for well over 15 of the most recent 22 months (≈46–51 months total).
- Testimony from family services, the therapist, and foster parent described slow, belated progress by Pierre, ongoing trust/behavioral issues with the children, and professional opinions that termination was in the children’s best interests.
- Juvenile court terminated Pierre’s parental rights under Neb. Rev. Stat. § 43‑292(2), (6), and (7); Pierre appealed claiming insufficiency of statutory grounds, best‑interests error, and a due process/paternity challenge regarding Heaven.
Issues
| Issue | Pierre's Argument | State's Argument | Held |
|---|---|---|---|
| Whether statutory grounds for termination were proven (§ 43‑292(2),(6),(7)) | Termination not supported by clear and convincing evidence on statutory grounds | Children were in out-of-home placement >15 of last 22 months, satisfying § 43‑292(7) | Court: § 43‑292(7) satisfied; termination grounds proven |
| Whether termination was in the children’s best interests | Pierre argued his later efforts and positive drug tests weigh against termination | State argued progress was too slow/too late and children benefit from permanency | Court: Termination in children’s best interests given lengthy placement, limited timely compliance, and therapeutic findings |
| Whether due process required formal proof of paternity for Heaven before termination | Pierre: juvenile court lacked authority to terminate rights absent proof/adjudication of paternity | State: prior paternity adjudication and admissions preclude collateral attack; proceeding may terminate legal parental rights | Court: No due process violation; sufficient evidence/legal basis to treat Pierre as legal father and terminate rights |
| Whether rehabilitation efforts preclude termination | Pierre: recent compliance (employment, classes, negative drug screens, visitation) shows potential for reunification | State: efforts began too late; services were available earlier and Pierre was absent for ~2 years | Court: Recent efforts "too little, too late" and do not prevent termination |
Key Cases Cited
- In re Interest of LeVanta S., 295 Neb. 151 (de novo review standard in juvenile cases)
- In re Interest of Isabel P., 293 Neb. 62 (§ 43‑292(7) alone sufficient to support termination; no need to address other subsections)
- In re Interest of Aaron D., 269 Neb. 249 (heightened best‑interests scrutiny when termination rests solely on § 43‑292(7))
- In re Interest of Brittany S., 12 Neb. App. 208 (paternity need not be re-proved in termination when not previously contested or where judicial admissions/prior adjudications exist)
- Jesse B. v. Tyler H., 293 Neb. 973 (collateral attacks on prior decrees impermissible except where court lacked jurisdiction)