SUMMARY: Termination of the father’s parental rights was improper because the length of time in foster care cannot be the sole best interest factor when the parent is not unfit and the length of incarceration of the father was speculative even though it was the sole reason for the termination filing.
Athina M. was removed shortly after birth in September 2010. Her father, Darwin, was not married to the mother at time of birth and established paternity in June 2011. Athina was adjudicated as to the mother in November 2010, and many review and permanency hearings were held in 2011 and 2012. The mother was provided services but did not cooperate. Darwin was cooperative with services, including therapy and parenting classes, and gradually progressed in visits from supervised to unsupervised to overnight. Athina was placed in his home on August 9, 2012. On September 8, 2012, Darwin was arrested and jailed, and Athina was placed in foster care. Darwin pled no contest to making terroristic threats and was awaiting sentencing. On November 13, 2012, the State filed a motion to terminate Darwin’s parental rights. Trial was held on February 11, 2013, where the sole witness for the state was the caseworker who testified that the incarceration was the sole reason for the TPR filing. She acknowledged Darwin complied with services and had a good bond with Athina. No evidence was submitted as to the length of time Darwin would be incarcerated, or the details of the incident that led to arrest. Darwin then testified that he probably wouldn’t be sentenced to more than a year, which would be time served and that his past criminal history was mostly misdemeanors and did not include assaultive or aggressive behavior. He also testified that he would have housing and a job waiting for him when released. After trial, the court terminated his parental rights. Darwin appealed.
The Nebraska Court of Appeals reversed the termination of parental rights. It found that the grounds under N.R.S. 43-292 were satisfied because Athina had been out-of-home more than 15 of the past 22 months. As to best interests, the Court of Appeals noted that the court gave great weight to Athina’s length of time in foster care; however, it stated that if that is to be used as a factor for best interests, other factors like the parent’s lack of involvement or inability to make progress must exist. In this case, no other factors existed. Darwin did everything he was asked to do, had established a strong bond with Athina and there were no safety concerns about Athina living with him. The evidence centered around Darwin’s incarceration, the length of which was uncertain and could have ended as soon as two weeks after the trial. Therefore, the Court of Appeal concluded that the State failed to prove by clear and convincing evidence that termination was in Athina’s best interests.