SUMMARY: A separate hearing is not required when a parent challenges the provision of reasonable efforts under Neb. Rev. Stat. section 43-283.01. Although incarceration cannot alone be a basis for termination, the court may consider the facts that led to the incarceration and the parent’s inability to parental obligations due to incarceration.
DeWayne Jr., DOB 2/14/96, and Devon, DOB 10/23/97, were removed from the mother’s care at birth due to cocaine in their systems. DeWayne is the father of both children. DeWayne was present at the first hearing for DeWayne but only acknowledged himself as a family friend, didn’t acknowledge paternity until DeWayne Jr. was 6 months old, and had little contact for the first one year and seven months of DeWayne Jr.’s life. DeWayne Sr. has a long criminal record and on September 16, 1997, was imprisoned in Missouri for two years for violation of probation. Upon being released on February 24, 1998, DeWayne Sr. was sentenced to a minimum of 4 years 6 months incarceration on other charges. While he was free on bond, DeWayne Sr. visited Devon five times in a 10-week period. On May 16, 2000, DeWayne Sr. requested a separate hearing to determine whether reasonable efforts had been held. The court found that it had made reasonable efforts findings at the prior hearing and that reasonable efforts were being made through visitation, and denied the request for hearing. The termination of parental rights hearing was held in August 2000, and the court terminated parental rights on September 12, 2000.
The Nebraska Court of Appeals reversed the termination, finding that under the statute a separate hearing was required to determine whether reasonable efforts were being made. The Nebraska Supreme Court reversed the Court of Appeals opinion and affirmed the termination of parental rights. The Supreme Court noted that when the reasonable efforts statute, Neb. Rev. Stat. section 43-283.01, was enacted in 1998, additional provisions were included throughout the juvenile code that indicated where the court should consider reasonable efforts, thus indicating that a separate layer of specific hearings was not intended. It found that the issue of reasonable efforts must be reviewed by the court (1) when removing the child from the home, (2) when continuing out-of-home placement pending adjudication, (3) when reviewing the child’s status and permanency planning under 43-1415, and (4) when termination is sought under 43-292(6). Therefore, DeWayne Sr. was not entitled to a separate hearing.
In considering whether termination was in the children’s best interests, the Supreme Court noted that although incarceration alone cannot be the basis for termination, it is proper to consider a parent’s inability to perform parental obligations due to the incarceration as well as the parent’s conduct that led to the incarceration. The Supreme Court found that termination was in the children’s best interests because DeWayne Sr. delayed in acknowledging paternity, had little contact with the children, knowingly and deliberately violated his probation which led to incarceration and had not parented either child during any point in their lives.