In re Interest of Ellena S.

Extended Case Summary:

A-19-62, In re Interest of Ellena S., State of Nebraska v. Kurtis H. (appellant)

Original Trial Court: Cass County Court sitting as a Juvenile Court, Judge John F. Steinheider

Attorneys: Michael Ziskey (Fankhauser, Nelsen, Werts, Ziskey & Merwin, P.C., L.L.O.) (for appellant Kurtis H.); Sarah M. Sutter (Deputy Cass County Attorney) (for appellee State of Nebraska)

Juvenile Action: Termination of Parental Rights

Background: On July 20, 2017, law enforcement removed Ellena from her parents’ custody after they were arrested (mother on criminal charges, father on out-of-state warrant); Ellena was with her parents when they were arrested. A juvenile petition was filed alleging that Ellena was within the meaning of Neb. Rev. Stat. 43-247(3)(a) (Reissue 2016). On September 15, 2017, the father and mother each entered an admission and the child was adjudicated and found to be within the jurisdiction of the court under § 43-247(3)(a). In an October 18 disposition order, the parents were ordered to comply with recommendations of chemical dependency and psychological evaluations, maintain suitable housing and employment, complete parenting classes and psychiatric evaluations, and comply with the terms of the Nebraska Department of Health and Human Services’ case plan.

          On April 9, 2018, the county attorney filed an amended motion to terminate the parental rights of Ellena’s mother and father pursuant to Neb. Rev. Stat. § 43-292(1) (abandonment for 6 months or more), (2) (substantially and continuously or repeatedly neglected and refused to give the child necessary care and protection), (4) (parent unfit by reason of debauchery, habitual use of intoxicating liquor or narcotic drugs, or repeated lewd and lascivious behavior, which conduct is found by the court to be seriously detrimental to the health, morals, or well-being of the juvenile, and (6) (reasonable efforts to preserve and reunify the family had failed to correct the conditions leading to the adjudication of the children under § 43-247(3)(a) (Reissue 2016); the State also alleged that termination of parental rights was in Ellena’s best interests.

          A hearing was held on November 29, 2018, on the State’s amended motion to terminate Kurtis’ parental rights. (Ellena’s mother had relinquished her parental rights prior to the hearing.) Upon oral motion of the State at the close of evidence, the juvenile court granted the State leave to amend the pleadings to conform to the evidence presented at trial and add §43-292(7) (child out-of-home for 15 or more months of the most recent 22 months) to the amended motion for termination of parental rights.

In an order filed on December 18, 2018, the juvenile court terminated Kurtis’ parental rights to Ellena after finding that statutory grounds for termination existed pursuant to § 43-292(1), (2), (6), (7), that Kurtis was unfit to act as a parent, and that termination of his parental rights was in child’s best interests. (The court found that the State had failed to prove by clear and convincing evidence that Kurtis’ parental rights should be terminated pursuant to § 43-247(4).)

Kurtis appeals the juvenile court’s order terminating his parental rights to Ellena. Kurtis argues he did not abandon Ellena (§ 43-292(1)); he kept in contact with DHHS as much as he could in the different correctional facilities he was in and when given the opportunity, he inquired about Ellena and got updates on her development; he was not able to communicate with Ellena due to financial inability and her age.

Kurtis argues he did not neglect or refuse to care for Ellena (§ 43-292(2)); prior to Ellena’s removal he was providing proper care for her, and while his incarceration after removal had been a barrier, it should not be viewed as a refusal to carry out his parental duties.

Kurtis argues that reasonable efforts had not failed to correct the conditions leading to the adjudication (§ 43-292(6)) because the State provided no reasonable efforts beyond substance abuse and psychological evaluations, both of which Kurtis completed prior to adjudication.

And Kurtis argues that under § 43-292(7), the State must establish that the child has been in an out-of-home placement for 15 or more of the most recent 22 months, but that at the time the amended motion to terminate his parental rights was filed, Ellena had been out of home of less than 9 months.

Further, Kurtis argues that he has been incarcerated since the case was filed and minimal efforts were made by DHHS workers to preserve and reunify the family and no consideration was given to the fact that he was scheduled to be released shortly after the hearing on the motion to terminate his parental rights. Additionally, Kurtis contends that he was caring for the child at the time of the removal and was not given the opportunity to show a continued parent-child relationship could be established upon his release from incarceration.

The Nebraska Court of Appeals will consider the following issues:          

          1. Did statutory grounds exist to terminate Kurtis’ parental rights?

2. Was it in Ellena’s best interests to terminate Kurtis’ parental rights?

          3. Was Kurtis an unfit parent?