In re Interest of Davonest D. et. al

Caselaw Number
19 Neb. App. 543
Filed On


SUMMARY: The incarcerated father’s absence at the termination of parental rights trial denied him his due process rights because even though the court made initial efforts to notify him it took no official action after receiving a sheriff’s request for a writ and did not comment on the record as to the absence.

Da Shawn B. and his siblings, Davonest and Daviarra, were removed from the home in 2008. Da Shawn’s father, Travis, was incarcerated and notified of alleged paternity in 2009. He had been incarcerated in 2004 on a 151-month sentence. On March 1, 2011, a petition for temporary custody was again filed as to Da Shawn, which included a petition to terminate Travis’ parental rights. Travis was appointed an attorney on March 2nd. A request to transport Travis was filed with the Sheriff but the wrong hearing date was provided. Therefore, the Protective Custody Hearing on March 7th was continued to April 8th. A request to transport was sent to the Sheriff for the April 8th hearing but the Sheriff sent a letter back requiring a writ of habeas corpus. No writ was executed. Neither Travis nor his attorney were present at the hearing on April 8th but the court heard testimony on the petition and entered an order terminating Travis’ parental rights. Travis appealed.

The Nebraska Court of Appeals vacated the judgment and remanded the case. The Court of Appeals first noted the juvenile court’s efforts to enable Travis to attend the hearing. However, it found the court failed to take further action after receiving the request for the writ and made no comment on the record as to Travis’ absence. Therefore, the Court of Appeals found that Travis was denied due process because (1) there was no procedure for Travis to address allegations and (2) there was no process for Travis to participate, cross-examine witnesses or present evidence.