SUMMARY: The father did not abandon the child for purposes of 43-292 as he reasonably believed at birth that he was not the biological father of the child, had no contact with the mother or DHHS until the termination petition was filed, and made efforts to become involved once finding out he was the biological father.
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 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. 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 Nebraska Court of Appeals reversed the termination and remanded the case to the juvenile court. The Court of Appeals held that Andrew did not abandon Chance under 43-292(1) or (9) because he did not intent to abandon his child as he reasonably believed based on the circumstances surrounding his birth that Chance was not his child and there is no evidence to indicate Andrew had actual knowledge that Chance was his child until April 2008. The Court of Appeals also held that Andrew did not neglect his child under 43-292(2) as any failure to parent was based on his lack of knowledge that Chance was his child and once he became aware of the relationship he took steps to become involved.
Chief Judge Inbody issued a dissenting opinion arguing that, because he was married to Miranda at the time of birth, Andrew was the legal father of Chance and knew of the birth, and should not be excused from his legal obligation to Chance from birth.