SUMMARY: There was not a violation of the father’s due process rights in the termination of his parental rights as, although he could not attend a portion of the trial due to incarceration, he was offered counsel and the opportunity to submit evidence and cross-examine witnesses.
Bianca, DOB 2/03, and Eternity, 12/04, were removed from the parental home in July 2005. The father was appointed counsel. A petition to terminate the father’s parental rights was filed on November 21, 2007. Trial was held on April 23 and 30, 2009; May 4, 5, 7 and 15; and June 15 and 24. The father was present at the April 23 and 30th hearings although he was incarcerated at the Lancaster County jail. On April 30, 2009, he was to be released into the custody of the U.S. Marshall Service. At the hearing, he expressed his understanding that he may not be permitted to attend the trial in person but nevertheless indicated his desire to release his attorney and represent himself. His attorney remained as standby counsel. The father was not permitted by the U.S. Marshall to attend subsequent proceedings but submitted a letter to his standby counsel to submit into evidence. He also filed more than one request for a continuance, which were denied. On September 23, 2009, the court terminated the father’s parental rights, and the father appealed claiming a violation of his due process rights.
The Nebraska Court of Appeals affirmed the termination of parental rights. It found that the father was represented by counsel but eventually chose to represent himself with the knowledge that he may not be able to attend future hearings due to his incarcerated status. It also found that the court repeatedly asked the father’s standby counsel whether he wanted him to act as counsel or submit evidence. Therefore, the Court of Appeals concluded that the father had a reasonable opportunity to present evidence, confront witnesses and refute the accusations against him, but chose not to do so. It finally found that the court did not err in continuing to hold the termination trial in the father’s absence because there was no evidence as to when he might be released and the children had been in care since July 2005 and needed permanency.