SUMMARY: A difference in physical appearance between the parent and child or a suspicion based on infidelity are not just causes for abandonment of a child born in wedlock.
Chance, DOB 4/17/06, was removed from the mother’s care in June 2007. On February 6, 2002, the mother, Miranda, married Andrew. They separated in June or July 2005 based on the Miranda’s use of drugs and engagement in prostitution, and in April 2006 Andrew learned that Miranda was giving birth. He traveled to the hospital to discover that the child was “white, had blue eyes and red hair.” Andrew is black and Miranda reasoned that the child was a product of one of her “tricks.” Andrew had no further contact with Miranda or Chance. After the child was removed from the mother’s care, DHHS sent certified letters to 3 known past addresses. Andrew testified to never having received any letters and there was no evidence of his having received the letters; however, one of the letters was sent to an address where he was living at the time. DHHS also tried calling Andrew on a phone number given by Miranda, and received a reply from Andrew on February 14, 2008, giving them a new number. The termination petition was filed on February 14, 2008, alleging abandonment and repeated or continuous neglect. A genetic test taken in April 2008 revealed Andrew to be the father of Chance. Andrew drove to Omaha in July to visit Chance but the visits did not occur due to a series of mix-ups. On August 8, 2008, the court terminated Andrew’s parental rights pursuant to 43-292(1), (2) and (9). The father appealed and the Court of Appeals reversed the termination, finding that the father did not intend to abandon the child because he did not have actual knowledge of his existence. In re Interest of Chance J., 17 Neb. App. 645. The State petitioned for further review.
The Nebraska Supreme Court reversed the Court of Appeals decision, finding that Andrew did abandon the child and noting that the finding in In re Interest of Dylan Z., 13 Neb. App. 586, 697 N.W.2d 707, does not apply because the father was not notified and because there was no child within marriage. In the decision, the Supreme Court held that “paternal uncertainty based on physical appearance of a child or suspicions of infidelity is not just cause or excuse for abandoning a child born into wedlock, especially when there are ample means to verify one’s paternity.” 279 Neb. at 91. Furthermore, because the grounds for termination did not include 43-292(6), there was no requirement to show that reasonable efforts to preserve and reunify the family have been provided. The Supreme Court finally concluded that termination is in Chance’s best interests because the father never made any contact with Chance after birth and Chance has many special needs that have been addressed by the foster parents and of which the father does not know how to address.