SUMMARY: Because the testimony of the sole witness for the State was primarily based on hearsay and the testimony from the mother’s therapist that the mother was improving her parenting skills and that the child would be harmed by termination was not contradicted, the State did not prove that termination of parental rights was in the child’s best interests.
Aaron D., DOB 8/12/94, was removed from the mother, Lorena, on May 20, 2002, after the mother revealed to a caseworker that Aaron had admitted to sexually touching his younger sister, Carmen. Aaron was adjudicated under Neb. Rev. Stat. section 43-247(3)(a) on July 10, 2002, and a series of case plans were developed for Lorena, which according to the caseworker focused on providing a safe and stable living environment and parenting the children in an effective and appropriate manner. On October 23, 2003, the state filed a motion to terminate Lorena’s parental rights to Aaron. After removal, Aaron was placed in agency-based foster care in Norfolk while his brother Irving, who was in a wheelchair and had significant medical needs, was placed in ______. Lorena lived in Fremont with Carmen. Because Lorena was an undocumented Mexican citizen, she had difficulty obtaining employment and received state assistance. She was supported by the father of her 2 youngest children, Rigo, but there were reports of domestic violence and Rigo was reportedly jailed for 6 to 7 months at the time of trial. All evidence adduced from the State at trial was from the testimony of the family’s caseworker, who primarily relied on reports from other parties. She testified that DHHS provided a family support worker and parenting classes to Lorena, although the parenting classes were held in Sioux City, but reported that not much progress was made. She also testified that the mother missed 16 of 27 visits with Aaron between May and October 2003, but acknowledged that the mother gave birth in July 2003 and reported to her on a few occasions prior to birth that she was not allowed to travel. The mother was not given a Spanish copy of the case plan until 2003 and was told by visitation supervisors to speak English even though her English was limited and Aaron was fluent in Spanish. A therapist for the child and family testified that she met with the mother to work on parenting skills and had seen an improvement in Lorena’s skills with Carmen but that DHHS terminated therapy after the therapist disagreed with DHHS’ therapy goals. The therapist also testified that termination would not be in Aaron’s best interests because it would separate him from his siblings and harm him if his relationship with the mother was cut off. On April 23, 2004, the court terminated the mother’s parental rights. The mother appealed.
The Nebraska Court of Appeals reversed the termination of parental rights. It held that although the state proved that the child was out of home 15 of the past 22 months, very little evidence was submitted at to whether termination was in the child’s best interests. The Court of Appeals noted that it must be particularly diligent in a review of best interests when 15/22 is the sole ground. However, in this case the only testimony was that of the caseworker, who relied significantly on the reports of others involved with the family. The only case plan submitted as evidence was one filed on the day the termination petition was filed; therefore the reasonableness of the dispositional case plans could be reviewed. Furthermore, the mother’s witness, the therapist, provided first-hand knowledge of the improvement in the mother’s skills as well as her opinions as to termination, neither of which were rebutted by the State. Nor was there contradiction of the mother’s testimony of the hardship caused by the distances required for visitation or her difficulty in maintaining employment due to immigrant status. The Court of Appeals noted that the impact of separation from siblings is also a proper consideration in termination. Based on these factors, the Court of Appeals concluded that the State did not establish by clear and convincing evidence that termination was in the child’s best interests.