In re Interest of Damien S.

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In re Interest of Damien S.

Caselaw No.
Filed on
Tuesday, October 22, 2013

SUMMARY: Termination of the father’s parental rights was improper where although the father had his rights to two older sibling involuntarily terminated, he had taken every step he could since the youngest child’s birth to establish a parental relationship.

Damien S. was born in May 2011 to Jessica and Jerry. In December 2010, the juvenile court terminated their parental rights to two older children and Jessica disclosed at Damien’s birth that she was suffering from bipolar disorder, not taking medication, using marijuana and maintaining a relationship with Jerry that was physically violent. DHHS initially placed Damien with Jessica but removed him around September 2011 due to domestic violence between Jessica and her current boyfriend. At some point, the State moved to terminate Jerry’s parental rights. Jerry was incarcerated prior to Damien’s birth but had been released after the removal and subsequently initiated visits with Damien. Those visits were terminated upon the discovery of a protection order against Jerry but Jerry contacted DHHS and visits resumed in July 2012. Jerry moved apartments in order to have visits in his home, and attended every twice-weekly visit. He also maintained employment, and attended GED classes, AA meetings, anger management classes and parenting classes. One misstep was responding to a Facebook message from Jessica. Trial on the TPR was held in November 2012. Evidence established that Jerry has a domestic violence history with Jessica but has divorced her and has not had any instances of domestic violence since his release from incarceration. After trial, the juvenile court terminated Jerry’s parental rights. Jerry appealed.

The Nebraska Court of Appeals reversed the termination. Although it held the statutory grounds for termination existed due to the prior involuntary terminations of parental rights to Damien’s siblings, the Court of Appeals did not agree that termination was in Damien’s best interest. It noted prior caselaw that makes prior parental conduct relevant in subsequent proceedings but found that Jerry was making many positive steps toward reunification. The Court of Appeals described in detail Jerry’s visits with Damien and Jerry’s compliance with the case plan. It also noted that Jerry terminated his relationship with Jessica to prevent exposing Damien to domestic violence.