Summary: The Nebraska Supreme Court reversed 22 Neb. App. 70 and upheld Colfax County Court’s original decision terminating the father’s rights based on abandonment. The Court of Appeals had reversed the original decision regarding abandonment citing uncertainty regarding paternity and also a lack of intent based on the father’s incarceration. Despite the genetic testing not being completed until November 2012, the Court found that because he had held himself out as the father in 2011 and there was no evidence that he did not think he was the father, abandonment was established. Further, the Supreme Court found that while incarceration prohibited in-person visits, it did not preclude him from making other efforts such as telephone calls or letters, which the father did not do.
Gabriella H. was born in November 2011 and was removed from her mother that same month. No father was indicated in the petition, but the mother stated the appellant, Ricardo, was a potential father. Ricardo attended visitations with Gabriella from December 17, 2011-February 2, 2012. There was no evidence of contact following February 2, 2012. Ricardo was arrested in July 2012 and was awaiting trial when on November 20, 2012 the court recognized Ricardo as the father and appointed Counsel. The relevant 6-month period to establish abandonment in this case was November 3, 2012- May 3, 2013. The Supreme Court found “absolute certainty” of paternity is not necessary to establish intent. The Court may look at the father’s conduct outside the six month period, which in this case included visitations in 2011.
The Supreme Court distinguished the present case from In re Interest of Chance J, 279 Neb. 81 (2009) and In re Interest of Dylan Z., 13 Neb. App. 586 (2005). In the present case there was no physical indications that Ricardo was not the father, nor evidence that anyone told Ricardo that he was not the father. The Supreme Court did agree with the Court of Appeals that since Ricardo’s incarceration was prior to a finding of guilt in the criminal charge, they must presume Ricardo’s innocence, but they did not have to excuse his conduct while incarcerated of not making any efforts in regards to Gabriella. Finally, the Supreme Court found that it was in Gabriella’s best interests that Ricardo’s rights be terminated because Gabriella did not know who Ricardo was and Ricardo would be incarcerated “for an undetermined amount of time.” The Court reasoned that it was in Gabriella’s best interests to achieve permanency “sooner rather than later.”