SUMMARY: The absence of the guardian ad litem during the termination trial was not plain error. Because the father was not provided with a case plan until late in the case and there was little evidence establishing his failure to comply, termination of his parental rights was improper.
The children, Jesse G., DOB 12/95, Marcos M., DOB 11/99, Allen G., DOB 2/02, Lydianna G, DOB 2/03, and Tabitha G. Jr, DOB 10/05, were removed from the home of the mother, Tabitha, on September 26, 2006, due to allegations of domestic violence and excessive force in disciplining. Candy is the father of Allen, Lydianna and Tabitha Jr., and was living in Montana. For the remainder of the case, Allen Lydianna and Tabitha Jr. were living with either Candy or Candy’s mother. The children were adjudicated on January 19, 2007, as to Tabitha’s admissions only, and disposition was held in March 2007. Tabitha was ordered to attend parenting classes, domestic violence classes and family therapy, secure housing and attend supervised visitation. The caseworker acknowledged that Candy was not part of the family case plan.
Subsequent hearings were held dealing with Tabitha’s lack of progress on the case plan but little was mentioned as to Candy. Tabitha had stopped attending classes, attended visitation with the children sporadically and refused to complete a substance abuse evaluation. At a review hearing on January 10, 2008, the court ordered Candy to obtain housing, complete a substance abuse evaluation and follow recommendations, and attend visitation with the children. On March 11, 2008, the court changed the permanency plans to adoption, cancelled Candy and Tabitha’s visitation, and found that “reasonable efforts are no longer necessary.” Petitions for termination of parental rights as to Candy and Tabitha were filed on July 7, 2008, and on January 29, 2009, the court terminated their parental rights. Both parents appealed.
The Nebraska Court of Appeals affirmed the termination of parental rights as to Tabitha but reversed as to Candy. It first held that it was not plain error to hold the termination trial without the presence of the guardian ad litem because N.R.S. 43-272.01, which requires the GAL to be present at all hearings, does not limit the court’s authority to conduct a hearing in the GAL’s absence. As to Candy’s termination, the Court of Appeals noted that the opportunity for compliance with a case plan was limited to 2 months and it was unclear what progress Candy made with the plan during that time. However, evidence at trial showed that Candy was making progress as to housing and substance abuse issues, and the Court concluded it would not be in the children’s best interests to terminate Candy’s parental rights.
At to Tabitha, the Court of Appeals affirmed the termination because she did not make sufficient progress in complying with the case plan even though the children were out of care approximately 28 months.