SUMMARY: Termination of the parental rights of a deported mother was improper because the State did not prove parental unfitness especially as the mother submitted overwhelming evidence in two home studies of her fitness as a parent. The “best interest” standard does not mean finding one environment to be superior to another. State courts retain jurisdiction over child custody matters even if federal issues arise regarding deportation. Compliance with the N.R.S. 43-3804 requiring notification of consulates for foreign nationals is not a prerequisite to jurisdiction.
Daniel L., DOB 2/13/98, and Angelica L., DOB 1/04, were removed from the mother, Maria, an illegal resident, on April 7, 2005, after she was arrested for lying to police officers about her identity. Law enforcement visited her home after receiving a report that Maria had failed to bring her infant to a follow-up medical visit after the child was diagnosed with an infection. The infant, who was born prematurely, had previously received medical attention in March 2004 for dehydration and other conditions. Maria had then begun services with Healthy Starts, a program for healthy babies, but returned her infant to the hospital on April 3, 2005, with a fever. Social services personnel then contacted law enforcement after Maria failed to bring the infant to a follow-up visit.
After Maria was detained, she was deported to Guatemala and DHHS chose not to allow the children to return with her. The case continued without her presence, and the case plan required Maria to provide a safe environment, maintain a job, complete a psychological evaluation, maintain contact with the caseworker and children and take a parenting class. In Guatemala, Maria contacted missionaries who began helping her with the requirements of the case plan. One missionary gave her parenting classes and counseling, and two home studies were completed. The caseworker had periodic phone contact with Maria but did not monitor her progress. A petition to terminate parental rights was filed on September 22, 2006, and her rights were terminated after the December 2007 trial. Testimony was received noting that the quality of life the children would receive in the U.S. would be superior to Guatemala. Maria testified that she had established a stable home, had available medical care and had attended counseling. Maria appealed the termination and also challenged jurisdiction based on the failure to notify the consulate and the inclusion of federal authorities in deportation proceedings.
The Nebraska Supreme Court reversed the termination of parental rights. It held that the juvenile court did have jurisdiction as the issue of child custody cannot be superseded by a federal matter and because compliance with 43-3804 requiring consulate notification is not a jurisdictional prerequisite. The Supreme Court ruled that in terminating Maria’s parental rights, it failed to consider her constitutional interest in the care of her children and the State failed to rebut the presumption that the best interests of the children was reunification. Maria followed most instructions during her infant’s medical care and there were no allegations that the other child was being neglected. The evidence Maria submitted from two home studies was that she had a stable living environment, completed the majority of the case plan and had the ability to provide medical and other care to the children. The Supreme Court held that the State failed to rebut this evidence, instead focusing on the fact that the children’s lives in the U.S. would give them more opportunity than in Guatemala, and that the juvenile court ignored the evidence from the home studies. In summary, the Supreme Court held that the evidence failed to establish that Maria was an unfit parent.
Judge Gerrard issued a concurring opinion, joined by Justices Heavican, Connolly and Stephan, reinforcing the importance of notifying consulates under the Vienna Convention, as early and active involvement of the consulate is beneficial to the case. He noted that had the Guatemalan consulate become involved in this case, the results may have been quite different.