847 N.W.2d 85
Neb.2014Background
- Jacqueline W. petitioned to terminate Wayne G.’s parental rights to their daughter Jaidyn, alleging multiple statutory grounds including Neb. Rev. Stat. § 43-292(5) (parental inability due to mental illness).
- The county court conducted a trial, appointed a GAL for the child but not for Wayne, and found termination was in the child’s best interests, citing § 43-292(2), (4), (5), and (9).
- Evidence included testimony of Wayne’s history of violent and threatening behavior, long-term crack addiction, extensive criminal convictions, prior termination of parental rights to another child, and diagnoses of ADHD, PTSD, and depression.
- Wayne argued on appeal that the court erred in terminating his rights and also contended (though did not assign as error) that the trial court’s failure to appoint a guardian ad litem (GAL) for him was plain error.
- The Court of Appeals affirmed termination primarily on § 43-292(2) (neglect) and did not address the GAL omission; the Nebraska Supreme Court granted further review to resolve the GAL appointment issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to appoint a GAL for a parent when § 43-292(5) is alleged is plain error requiring automatic reversal | Jacqueline (petitioner) implicitly: appointment not outcome-dispositive when other grounds exist | Wayne: failure to appoint GAL when § 43-292(5) is alleged is mandatory error and plain error requiring reversal | Where multiple grounds including § 43-292(5) are alleged, failure to appoint GAL is error but not automatic plain error; reversal generally required only if assigned on appeal and shown prejudicial |
| Whether evidence supports termination under § 43-292(2) (neglect) | Jacqueline: evidence of repeated neglect and inability to parent supports termination | Wayne: disputed fitness and contested evidence; argued insufficiency | Court affirmed that clear and convincing evidence supported termination under § 43-292(2) |
Key Cases Cited
- In re Interest of M.M., C.M., and D.M., 230 Neb. 388, 431 N.W.2d 611 (Neb. 1988) (held appointment of GAL mandatory and failure was plain error when § 43-292(5) was sole ground)
- In re Interest of Presten O., 18 Neb. App. 259, 778 N.W.2d 759 (Neb. Ct. App. 2010) (applied M.M. when § 43-292(5) was alleged among multiple grounds and found plain error)
- In re Interest of J.N.V., 224 Neb. 108, 395 N.W.2d 758 (Neb. 1986) (upheld termination on neglect ground despite mother’s mental illness not pleaded under subsection (5))
- In re Interest of Michael B. et al., 258 Neb. 545, 604 N.W.2d 405 (Neb. 2000) (evidence of mental deficiency inadmissible if § 43-292(5) not pleaded, but termination may stand on other grounds independent of mental deficiency)
- Cesar C. v. Alicia L., 281 Neb. 979, 800 N.W.2d 249 (Neb. 2011) (plain error doctrine requires showing of prejudice and that leaving error uncorrected would result in miscarriage of justice)