SUMMARY: The statutory ground for termination where the child must be out of the home 15 of the most recent 22 months requires “clear and convincing evidence of circumstances as compelling and pertinent to a child’s best interests as to those enumerated in the other subsections”, given that this subsection is based solely on a timeline and not any findings of parental unfitness, abandonment, neglect or abuse as the other subsections are. The court properly terminated the father’s parental rights on evidence primarily stemming from his lengthy incarceration, because there existed an “aggregate of circumstances” that indicated termination was in the child’s best interest.
The child, Ashantay, DOB 5/31/02, was removed from the mother on May 11, 2005. The father, Che H., had been incarcerated since 2003 and continued to be incarcerated at the time of termination. The father admitted to the petition, and on August 27, 2007, the state filed for termination of his parental rights pursuant to 43-292(2) and (7). Trial was held on November 19 and December 5, 2007, and the Court issued an order after trial terminating the father’s parental rights. Testimony adduced at trial was elicited from the caseworker and the child’s foster parent, who is the father’s sister. The father had supervised visitation with the child while incarcerated, which increased during work release. His work release was revoked in March 2007 and he was not released on parole after becoming eligible in October 2007. He was due to be eligible for parole again in January 2008. The caseworker testified that the father was not able to parent Ashantay due to his incarceration, and that once he was released from prison he would first have to demonstrate his ability to parent and provide for her.
The court of appeals upheld the termination of the father’s parental rights. It held that the statutory grounds under 43-292(7) were satisfied because the child had been out of home 15 of the past 22 months. It noted that consideration of whether termination was in the child’s best interests must be especially diligent since the statutory ground does not require any findings of parental unfitness, abandonment, neglect or abuse as the other subsections do. There must be “clear and convincing evidence of circumstances as compelling and pertinent to a child’s best interests as to those enumerated in the other subsections.” Although incarceration cannot be the sole ground for termination, courts may “consider the attendant circumstances which are occasioned by incarceration”, and when the aggregate of these circumstances show that termination is in the child’s best interests, termination is proper.
In this case, the court of appeals held that the aggregate of circumstances surrounding the father’s incarceration showed that termination was in the child’s best interests. The father’s incarceration made it nearly impossible to fulfill his fatherly duties for the entirety of her life. His illegal actions putting him in prison were voluntary as were his actions that led to revocation from work release. The father completed some courses but made no other therapeutic progress. The father would be unable to rehabilitate himself within a reasonable amount of time and Ashantay should not languish in foster care for an unspecified amount of time
In dissent, Judge Sievers expressed concern about the lack of evidence produced about the father, i.e., his reason for incarceration and denial of parole, his inability to parent the child once he is released and any showing that any of the visitation sessions were inappropriate.