SUMMARY: An order suspending visitation where a TPR trial was imminent, the allegations for termination pertained to issues other than lack of contact, and the mother had recently re-appeared after being out-of-contact for six months is not final and appealable.
Brandy is the mother of four children, all under 6 years of age, who were placed in foster care on June 29, 2010, after the family was expelled from two shelters due to Brandy’s behavior. Case plans were entered in November 2010 and May 2011 that noted Brandy’s lack of willingness and ability to parent, her low functioning, lack of visitation, and housing and employment issues. In February 2011, Brandy stopped communicating with DHHS and was out-of-contact with all parties including the children until July 2011. In May 2011, the State filed a motion to terminate Brandy’s parental rights on several bases, including substantial and continuous neglect, being unfit to parent due to drugs, alcohol or behavior, failure of reasonable efforts to correct the conditions and abandonment. On July 27, 2011, Brandy requested visits with the children. On July 29, 2011, the guardian ad litem filed a motion to suspend visits pending the TPR trial. A hearing on the motion was held on August 12, 2011, where the caseworker and GAL testified in favor of suspending visits. On August 23, 2011, the court sustained the motion to suspend visits. Brandy appealed.
The Nebraska Court of Appeals dismissed the appeal after finding the court’s order not to be final and appealable. It summarized In re Interest of Clifford M. et al., 258 Neb. 800, 606 N.W.2d 743 (2000) and In re Guardianship of Sophia M., 271 Neb. 133, 710 N.W.2D 312 (2006), as having two main considerations in deciding whether the order is final and appealable: (1) the length of time the parent’s relationship with the child will be affected, and (2) the object of the order (that is, in this case, whether the outcome of the court’s order denying visits will have an effect on the motion to terminate parental rights). The Court of Appeals noted that the motion to terminate parents rights contained many grounds not connected to whether the mother was engaged in visitation, and that the mother could re-gain visitation rights upon a showing of best interests if successful at the TPR trial. As for length of time, the Court of Appeals found that the order suspending visitation was only to last until the TPR trial scheduled for one month later and that, if successful at trial, Brandy could re-gain visitation rights at that time. The Nebraska Court of Appeals made an additional observation that past reports of Brandy’s poor parenting at visits do not give an indication that continuing visitation would be beneficial.