In re Interest of Izabella W.

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Filed On

SUMMARY: A father was not denied due process when the judge denied father’s motion to transport from prison to the termination hearing, but did allow counsel to be present and the father to participate via video conferencing. In addition, termination of parental rights was in the child’s best interests where the father was incarcerated for sexual assault of a minor and had not participated in any services.

On January 13, 2011, Izabella (DOB April 2010) was removed from her mother’s care after Izabella tested positive for methamphetamine and marijuana. Though there was no father listed on Izabella’s birth certificate, Izabella’s mother reported Jose was Izabella’s father. Jose was incarcerated at the time on charges of sexual assault of a minor and conspiracy to tamper with a witness. Jose was later convicted of those charges and sentence to more than twenty years in prison. Jose’s earliest release date was November 2026. The State filed a complaint for establishment of paternity on November 23, 2011, and the juvenile court entered a default judgment because Jose was personally served but failed to appear. The State filed a motion to terminate Jose’s parental rights on September 9, 2013. On September 24, Jose was transported to court and appeared with his counsel for advisement of his rights and to enter a denial to the allegations. Jose’s counsel moved to have Jose transported for the joint pretrial conference and the termination hearing, but the juvenile court denied both motions. At the February 3, 2014 termination hearing, Jose participated via video conference technology. The juvenile court made efforts to ensure Jose could see and hear the proceedings and the courtroom was cleared on several occasions to allow Jose to consult privately with his attorney.Evidence demonstrated that Izabella had been in foster care continuously since January 2012 and had only one in-person contact with Jose when she was one month old. Jose did not provide Izabella with any money or gifts. Despite the caseworker’s request, Jose never provided the caseworker with classes or treatment that he had participated in while in prison. The juvenile court terminated Jose’s parental rights on February 11, 2014.

The Nebraska Court of Appeals affirmed the termination of parental rights. The Court of Appeals held that Jose was not denied procedural due process when the juvenile court denied his motion to transport from prison because Jose was represented by counsel throughout the case and Jose participated in the termination hearing via video conference technology. In addition, the termination of Jose’s parental rights was proper because Izabella had been in foster care most of her life and would be at least 15 years old by the time Jose is released from prison. Jose did not do even the minimal things available to someone incarcerated to show his care and concern for Izabella. Thus, termination of Jose’s parental rights was in Izabella’s best interests.