Summary:
The county court for Hall County, sitting as a juvenile court, terminated the parental rights of Denzel D., Sr. (Denzel Sr.), to his son, Denzel D., Jr. (Denzel Jr.), and declined to impose a guardianship for the child. The Nebraska Court of Appeals reversed the termination of Denzel Sr.’s parental rights because it could not find that the termination was in Denzel Jr.’s best interests. The Court of Appeals further vacated the juvenile court’s order regarding the guardianship. The State successfully petitioned for further review.
Denzel Sr. is the father of Denzel Jr., who was born in February 2018. In February 2020, Denzel Jr. was adjudicated pursuant to §43-247(3)(a). In September 2021, the State and the guardian ad litem filed a motion to terminate Denzel Sr.’s parental rights. As statutory grounds for termination under §43-292, the State asserted that under subsection (2), Denzel Sr. had substantially and continuously or repeatedly neglected and refused to give Denzel Jr. necessary parental care and protection, and that under subsection (7), Denzel Jr. had been in out-of-home placement for 15 or more months of the most recent 22 months.
Termination Hearing
The following evidence was presenting at the termination hearing held in March 2022. In May 2018, Denzel Sr. was arrested and placed in jail on a charge of possession of a firearm by a prohibited person. He was later convicted and sentenced to imprisonment for 8 to 12 years in the NE Department of Correctional Services. He will be eligible for parole in November 2023, and his discharge date is in January 2026. Although Denzel Sr. was aware of Denzel Jr.’s birth shortly after he was born, Denzel Sr.’s paternity of Denzel Jr. was not confirmed by a DNA test until February or March 2019. During most of the time prior to the termination hearing, the correctional facility in which Denzel Sr. was housed did not allow inmates to have in-person visits because of the COVID-19 pandemic. At the time of the termination hearing, Denzel Sr. had had one in-person visit with Denzel Jr. since his arrest, but had virtual visits and phoned weekly to speak with Denzel Jr. Denzel Jr.’s foster mother testified that the phone calls between Denzel Sr. and Denzel Jr. went well.
The DHHS caseworker at the time of the termination hearing testified that Denzel Sr. had expressed a desire to be involved in Denzel Jr.’s life. Denzel Sr.’s case plan goals were to follow the directives of the correctional facility, to have phone calls with Denzel Jr. when allowed, to maintain communications with the caseworker, and to participate in any programming that was available to him. The caseworker testified that Denzel Sr. met all his goals, but was still incarcerated.
Denzel Sr. expressed to the caseworker that he would like for his mother, Gabrielle H. (Gabby), to be Denzel Jr.’s guardian. Although Gabby lives in Chicago, Illinois, she was actively involved with the case and had weekly virtual visits with Denzel Jr., as well as in-person visits when she traveled to Nebraska for court hearings related to the case. Gabby expressed a strong desire for Denzel Jr. to be placed with her, but because the initial primary permanency goal for Denzel Jr. was reunification with his mother, DHHS had declined to place him with Gabby at that time. Gabby informed the caseworker that if the permanency goal was changed to guardianship, she would be willing to have Denzel Jr. and his siblings placed with her.
In May 2021, DHHS recommended changing Denzel Jr.’s primary permanency goal to guardianship with Gabby. Because Gabby lived in a different state, certain procedures, including a home study, were completed, and Gabby was approved to have placement of Denzel Jr. Although at the time of the termination hearing, Denzel Jr. remained in the foster home, the caseworker testified that DHHS was still actively looking into a placement with Gabby.
Trial Court Order
Following the termination hearing, the juvenile court filed an order terminating Denzel Sr.’s parental rights to Denzel Jr. The court found that Denzel Sr. had met the requirements of his case plan. Nevertheless, the court found clear and convincing evidence to support the asserted statutory bases for termination. In addition to finding that under §43-292(7) Denzel Jr. had been in out-of-home placement for the most recent 25 months, the court found that under §43-292(2), Denzel Sr. had neglected Denzel Jr. because his own actions had caused him to be incarcerated and therefore unable to meet Denzel Jr.’s basic needs.
The court also found that termination of Denzel Sr.’s parental rights was in Denzel Jr.’s best interests. The court noted that because of his incarceration, Denzel Sr. had not been able to parent Denzel Jr., and that although Denzel Sr. would be eligible for parole in late 2023, he could remain in prison until 2026. The court further reasoned that guardianship is intended to be only a temporary placement to allow a parent to address issues and that Denzel Jr. should not be required to languish in the court system indefinitely. For that reason, in addition to terminating Denzel Sr.’s parental rights, the court denied the request for a guardianship for Denzel Jr.
Court of Appeals Opinion
Denzel Sr. appealed to the Court of Appeals. He claimed that the juvenile court erred when it (1) terminated his parental rights and (2) denied his request for a guardianship. First addressing the statutory basis for termination of Denzel Sr.’s parental rights, the Court of Appeals determined that the evidence showed that under §43-292(7), Denzel Jr. had been in out-of-home placement for 15 or more months of the most recent 22 months. However, it found that the State and the guardian ad litem had not proved by clear and convincing evidence that termination of Denzel Sr.’s parental rights was in Denzel Jr.’s best interests.
Recognizing that incarceration alone cannot be the sole basis for termination of parental rights, the Court stated that “almost the entirety of the State’s evidence related to best interests and unfitness focused on Denzel Sr.’s incarceration.” It noted that the best interests inquiry focuses on the future well-being of the child, as well as the rebuttable presumption that it is in the child’s best interests to maintain a relationship with his or her parent. The Court stated that it could not find that termination of Denzel Sr.’s parental rights was in Denzel Jr.’s best interests, and it reversed the juvenile court’s order terminating Denzel Sr.’s parental rights.
The Court of Appeals then considered the juvenile court’s denial of Denzel Sr.’s request for a guardianship for Denzel Jr. The Court first rejected the State’s argument that the issue of a guardianship was not properly presented to the juvenile court because no motion was filed under §43-1312.01. The Court reasoned that the statute authorized the juvenile court to make a guardianship placement but did not require that a specific motion for guardianship be made in order for the juvenile court to consider placing a child in a guardianship. Instead, the Court reasoned, DHHS determines the permanency plan for children in its custody and presents the plan to the juvenile court for approval; if the plan recommends a guardianship and DHHS has identified a potential guardian, then the issue has been presented to the juvenile court. The Court noted that in this case, DHHS had recommended changing the permanency plan for Denzel Jr. to a guardianship in May 2021 and the court had approved the change. DHHS took steps to facilitate a guardianship and had approved Gabby for placement of Denzel Jr. The Court of Appeals determined, therefore, that the permanency plan of a guardianship with Gabby had been presented to the juvenile court throughout the case.
The Court of Appeals further determined that the juvenile court erred when it denied the guardianship. The Court noted that the juvenile court characterized a guardianship as a temporary placement that allowed a parent to address issues and that the juvenile court therefore declined to impose a guardianship because it determined that Denzel Jr.’s best interests required permanency. The Court stated, however, that terminating a parent’s rights is not a prerequisite to achieving permanency for an adjudicated child and that §43-1312.01(3) specifically provides that a “guardianship placement shall be considered permanent for the child.” The Court noted that Gabby had been approved for the guardianship and that she had participated since the inception of this case. The Court also noted DHHS’ support for the establishment of a guardianship and the caseworker’s testimony that it was in Denzel Jr.’s best interests to be placed in a guardianship with Gabby.
The Court of Appeals determined that “the juvenile court erred in denying the request for guardianship.” It therefore vacated the juvenile court’s order and remanded the cause “for further proceedings consistent with this opinion.” The Nebraska Supreme Court granted the State’s petition for further review.
Assignments of Error
On further review, the State claims that the Court of Appeals erred when it (1) reversed the order of the juvenile court that had terminated the parental rights of Denzel Sr. and (2) vacated the order of the juvenile court that had denied Denzel Sr.’s request for a guardianship.
Analysis
1. Termination of Parental Rights
The State claims that the Court of Appeals erred when it reversed the order of the juvenile court that had terminated the parental rights of Denzel Sr. Upon the Supreme Court’s de novo review, it concludes that the parental rights of Denzel Sr. should not have been terminated and therefore affirm the decision of the Court of Appeals in this regard.
(a) Statutory Basis For Termination
The grounds for terminating parental rights are codified in §43-292. Any of the 11 separate subsections of §43-292 can serve as a basis for termination when coupled with evidence that termination is in the best interests of the child. The State has the burden to show by clear and convincing evidence both that one of the statutory bases enumerated in § 43-292 exists and that termination is in the child’s best interests.
There is no dispute that §43-292(7) provided such a basis for termination in this case. 43-292(7) allows for termination when “the juvenile has been in an out of-home placement for fifteen or more months of the most recent twenty-two months.” At the time of the termination hearing, Denzel Jr. had been in out-of-home placement continuously for 25 months. Based on the Supreme Court’s de novo review, the State and the guardian ad litem met their burden to show by clear and convincing evidence that grounds for termination under §43-292(7) were satisfied. 43-292 requires that the State prove only one of the enumerated statutory grounds for termination of parental rights. Thus, the Court need not address whether the evidence was sufficient to support termination under §43-292(2) and proceed to the forward-looking question of whether termination was also in the best interests of Denzel Jr.
(b) Best Interests of Denzel Jr.
The State also challenges the Court of Appeals’ conclusion that it would not be in the best interests of Denzel Jr. to terminate Denzel Sr.’s parental rights. As stated above, under §43-292, it is the State’s burden by clear and convincing evidence to show that there not only exists a statutory basis for termination but that termination is in the best interests of the child. Whereas the statutory grounds for termination of parental rights are based on a parent’s past conduct, the best interests inquiry focuses on the future well-being of the child. This second hurdle is a high bar for the State, since a parent’s right to raise his or her children is constitutionally protected. The Due Process Clause of the Constitution would be offended “if a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness.” The Supreme Court then directs attention to a section of the Court of Appeals opinion which describes Denzel Sr.’s efforts to maintain contact with his son and engage in services, which support Denzel Sr.’s parental fitness.
In light of the constitutionally protected nature of the parent-child relationship, in this case, the State and the guardian ad litem must overcome the rebuttable presumption that it is in Denzel Jr.’s best interests to share a relationship with his parents. That presumption can only be overcome by a showing that the parent either is unfit to perform the duties imposed by the relationship or has forfeited that right. In this context, parental unfitness means a personal deficiency or incapacity that has prevented, or will probably prevent, performance of a reasonable parental obligation in child rearing and that has caused, or probably will result in, detriment to a child’s well-being. The best interests and parental unfitness analyses require separate, fact-intensive inquiries, but each examines essentially the same underlying facts.
The Supreme Court agrees with the analysis of the Court of Appeals that stated, “Almost the entirety of the State’s evidence related to best interests and unfitness focused on Denzel Sr.’s incarceration.” While Denzel Sr.’s incarceration presently limits his ability to provide for Denzel Jr., he is not unfit to parent. Since Denzel Sr.’s paternity was confirmed, he has remained in Denzel Jr.’s life as feasible and has not reoffended. Since learning of his paternity, Denzel Sr. has been willing and interested in performing parental duties. He has completed 3 parenting classes, stayed in contact with caseworkers, and stayed in communication with Denzel Jr. via weekly phone calls, as well as video visits and one in-person visit. Prior to his incarceration, while in a relationship with Denzel Jr.’s mother, Denzel Sr. had performed parental duties for Denzel Jr.’s older sister. Denzel Sr. has maintained employment within the correctional facility, and he is working toward a work-release program. He also completed a program aimed at improving his chances of not reoffending, building his emotional intelligence, integrating back into society, and creating a better future for himself. He also testified that he is seeking a forklift certification.
In this regard, the juvenile court specifically found that Denzel Sr. met the requirements of his court reports and case plans. Under these plans, his goal was to safely parent and protect his son, and his strategies were to follow the requirements at the state penitentiary, have calls with his son and the caseworker, and participate in any programming at the facility.
The juvenile court raised a concern that Denzel Jr. would languish in the foster care system and be denied permanency unless Denzel Sr.’s parental rights were terminated. The best interests of the child would not be served where the child would languish in the system because an incarcerated parent continued to offend or had not demonstrated the ability to parent, or where it was unclear when or whether the parent would be able to perform parenting duties in the future. But, as the Court of Appeals observed, under the Nebraska Juvenile Code, an adjudicated child can achieve permanency without terminating a parent’s rights if the juvenile court grants a guardianship.
Nebraska law requires the creation of permanency plans for every juvenile placed in out-of-home care and requires the juvenile courts to hold a hearing on the plan. The court’s order on a permanency plan must include whether the objective is for the juvenile to be returned to the parent, referred for a termination of-parental-rights filing, placed for adoption, or referred for a guardianship. If the permanency plan for a child who has been adjudicated under §43-247(3)(a) does not recommend return of the child to his or her parent or that the child be placed for adoption, the juvenile court may place the child in a guardianship as long as certain statutory requirements have been met.
43-1312.01(3) specifically provides that notwithstanding the fact that the juvenile court retains jurisdiction over the child for modification or termination of the guardianship order, “the guardianship placement shall be considered permanent for the child.” When a guardianship is created, §43-1312.01(3) provides that “the court shall discontinue permanency reviews and case reviews and shall relieve DHHS of the responsibility of supervising the placement of the child.” Consistent with the goal of permanency, Denzel Sr. requested a guardianship with Gabby, which is discussed below. Thus, termination of Denzel Sr.’s parental rights is not necessary to achieve permanency for Denzel Jr.
In view of the foregoing, the State and the guardian ad litem failed to prove that Denzel Sr. is unfit or that termination of Denzel Sr.’s parental rights was in Denzel Jr.’s best interests. The Supreme Court affirms the decision of the Court of Appeals that reversed the order of the juvenile court terminating Denzel Sr.’s parental rights.
(c) Guardianship
The State generally reads the Court of Appeals decision as prematurely weighing in favorably on the merits of Denzel Sr.’s request for a guardianship. The State contends that the Court of Appeals directed the juvenile court to place Denzel Jr. with Gabby as guardian. Although the Supreme Court does not completely agree with the State’s reading of the opinion of the Court of Appeals, it modifies the opinion to the extent it can be read as suggesting that Denzel Jr. should be placed with Gabby as his guardian at this time.
In its opinion, the Court of Appeals stated:
The record indicates that DHHS supports placing Denzel Jr. in a guardianship with Gabby, she was willing and able to take in Denzel Jr. and his siblings in order to keep then together, and she could provide the permanency that Denzel Jr. needs while he could remain in a relative placement with his paternal grandmother. Based on the foregoing, we conclude that the juvenile court erred in denying the request for guardianship.
The Court of Appeals did not prematurely evaluate the guardianship question, and more importantly, under the relevant statutes, a guardianship was not presently available at the time of the termination hearing. The juvenile court can place a child in a guardianship according to statutes. The relevant statutes include 43-1312.01(1)(a) through (d). Because Gabby has not provided foster care, under 43-1312.01 she is not eligible for a guardianship as having been a “relative home” or “kinship home.” Although she is an “individual” under 43-285, Denzel Jr. has not been in placement with her for at least 6 months as required by 43-1312.01(1)(b). On this record, Gabby was not eligible for a guardianship. To the extent the opinion of the Court of Appeals suggested that the juvenile court should place Denzel Jr. with Gabby as guardian, the Supreme Court disapproves of the suggestion at this time and modifies the opinion of the Court of Appeals accordingly.
Conclusion
For the reasons recited above, the Supreme Court affirms the decision of the Court of Appeals that concluded that terminating Denzel Sr.’s parental rights is not in Denzel Jr.’s best interests and reversed the juvenile court’s order, but modifies the decision of the Court of Appeals to the extent that its opinion can be read as suggesting that Denzel Jr. should be placed with Gabby as guardian at this time.
**Funke, J., Heavican, C.J., and Cassel, J. dissenting