Summary:
Jeremy H. appeals from an order of the separate juvenile court of Lancaster County terminating his parental rights to his minor child. The Court of Appeals affirms.
In April 2017, Jeremy pled no contest to and was convicted of third degree domestic assault in relation to an incident of domestic violence committed against Jacara on or about January 9, while Jacara was pregnant with Joezia. This was just the beginning of Jeremy’s domestic violence saga in relation to Jacara as related by Jacara and/or in court documents showing other charges of domestic violence.
On March 29, 2019, the State filed a petition alleging that Joezia was a juvenile as defined by Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016). Count I of the petition alleged Joezia lacks proper parental care by reason of the faults or habits of his father, Jeremy, or that Joezia is in a situation dangerous to life or limb or injurious to his health or morals. The trial court found the allegations to be true, Jeremy also pled no contest to unrelated criminal charges on July 25, 2019. Joezia was placed in the temporary legal custody of the Nebraska Department of Health and Human Services (DHHS), initially Joezia was allowed to reside with his mother with Jeremy having supervised visits. Jeremy was also ordered to drug test, maintain housing and employment and complete a men’s domestic violence class for batterers. By September 2019 Joezia was in foster care. The trial court made note of Jeremy’s poor progress in the next several review hearings. By May 2020 the trial court sustained a motion to eliminate the requirement of reasonable efforts to preserve and reunify the family on the grounds that Jeremy previously had his parental rights involuntarily terminated with respect to a sibling of Joezia. See Neb. Rev. Stat. § 43-283.01(4)(c) (Reissue 2016). On June 23, 2020, the State filed a motion to terminate Jeremy’s parental rights to Joezia. Jeremy also continued his criminal career by escaping when under arrest on a felony charge in October 2020, he pled no contest and was sentenced to an additional 18 months of incarceration, extending his expected release date from March 2021 to December 2021.
The TPR hearing was held November 17, 2020 via videoconference in light of the COVID-19 pandemic (all parties had agreed). Jeremy attended by phone due to some issues with videoconference at the facility he was placed in. Due to this Jeremy objected to the hearing on the grounds that he could not see the witnesses or communicate with counsel using the private “chat” function. As Jeremy was no longer willing to stipulate to a trial by videoconference, the court continued the matter to the December trial term. The trial court noted the matter had already been pending “for a significant amount of time.” The court also referred to case law suggesting the formal hearing could proceed without Jeremy’s presence upon proper procedural safeguards. Due to more pandemic issues the trial court’s transport orders to allow Jeremy to attend the trial in person had to be vacated. Jeremy subsequently filed a motion to continue the trial, the trial overruled the motion directing the parties to In re Interest of L.V., 240 Neb. 404, 482 N.W.2d 250 (1992), “which indicates in these motions to terminate parental rights, the presence of the parent is not necessary so long as their procedural due process rights can be afforded.” The court explained the State would present its case as scheduled, after which the matter would be continued to provide an opportunity for Jeremy to review the transcript and consult with counsel prior to presenting his case. The court intimated this procedure would adequately protect Jeremy’s due process rights and eliminate the need for transportation during the COVID-19 pandemic.
On December 18, 2020, the trial court held the TPR trial. Jeremy was represented but not present. The State called four witnesses. These witnesses testified about Jeremy’s poor progress. One therapist testified at length about Joezia and how he cried most of the time in CPP services until he was placed with the new foster family at which time he was happy. The therapist also testified that she tried to schedule with Jeremy but was unsuccessful due to a “transportation glitch” which was not Jeremy’s fault. While the therapist was not able to observe Jeremy with Joezia, she testified that based on Joezia’s age and the length of time since Jeremy’s last contact with him, Joezia “probably does not have any memory” of Jeremy. It was also noted by another witness that Jeremy only attended one intake session at a 30-week batterer’s intervention class at ACT; he was terminated from the class for leaving the property without permission and verbally abusing his case manager at CCCL. There was also testimony of Jeremy cutting off his EM which led to criminal charges and an eighteen months stay at Tecumseh. The DHHS case manager testified that Jeremy sent Joezia a “doll-type toy” in August 2020. Aside from that gift, Jeremy had not had any contact with Joezia since May or June 2019 due to Jeremy’s incarceration. When the State rested its case, the court reiterated the intended procedure to recess until Jeremy had an opportunity to review a transcript of the State’s evidence and consult with counsel before proceeding. The court indicated it would also provide Jeremy’s counsel with a digital media file of the evidence “in the event” that Jeremy had a computer available to him. Counsel noted that she had a conversation with Jeremy prior to the hearing in which he advised that he did not have access to a computer. Accordingly, counsel stated that “we will just wait for the transcript.” The second day of trial was January 27, 2021, Jeremy appeared via videoconference for approximately 30 minutes of the hearing. He called three witnesses including the case manager, a therapist and the first foster parent for Joezia. At the end of the hearing counsel for Jeremy asked the trial court to allow an opportunity to discuss the testimony from today’s hearing. The trial court stated the following: “In fairness to [Jeremy], given these are allegations as to him, I think we had also set additional time on Friday, had we not, for conclusion of the matter? If we resume the matter at that point in time, that will afford [counsel] the opportunity to at least contact [Jeremy], determine if he wishes to testify. My understanding is the video ability is limited but he may have more of an extended ability to appear by telephone, so I think we could accommodate that.”
On January 29, 2021 the trial court reconvened, Jeremy rested and closing arguments were heard. On January 29, 2021, the court entered an order terminating Jeremy’s parental rights to Joezia. The court found that Jeremy has failed to put himself in a position to parent his child throughout the entirety of the case, and with knowledge of his child being in foster care and a pending motion to terminate his parental rights, chose to engage in further criminal activity thereby making himself unavailable to parent his child for an extended period of incarceration. The court noted Jeremy was afforded an opportunity to work in the community and engage in court-ordered services, but “he failed to refrain from criminal acts resulting in his incarceration and continued removal from his child.” On these grounds, the court found that Jeremy had engaged in neglect under Neb. Rev. Stat. § 43-292(2) (Reissue 2016). The court went on to find that termination of Jeremy’s parental rights was in Joezia’s best interests in light of Joezia’s need for permanency and Jeremy’s relative inability to provide a stable and secure environment. Based on his history of incarceration and inability to provide a basic means of support for Joezia, the court found that the State had rebutted the presumption that Jeremy is a fit parent.
Jeremy’s assignments of appeal were that the juvenile court erred in (1) overruling Jeremy’s motion to transport, (2) finding that the State proved by clear and convincing evidence that Jeremy substantially and continuously or repeatedly neglected and refused to give Joezia necessary parental care and protection, and (3) finding that the State proved by clear and convincing evidence that termination of Jeremy’s parental rights was in Joezia’s best interests.
In his first assignment of error, Jeremy asserts “[t]he juvenile court erred in overruling [his] motion to transport Jeremy to the trial in this matter thus not allowing him to meaningfully participate in his defense.” In the body of his argument on appeal, Jeremy asserts multiple due process violations. The Appeals Court cracked down once again on the appellate brief rules – To be considered by an appellate court, an alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error. This was not done properly by Jeremy therefore the Appeals Court did not address the alleged errors that were argued but not assigned. The Appeals Court also cited In re Interest of Taeson D., 305 Neb. 279, 939 N.W.2d 832 (2020); In re Interest of L.V., 240 Neb. 404, 482 N.W.2d 250 (1992), to remind us that it is well settled in Nebraska that an incarcerated parent does not need to be physically present at a hearing to terminate parental rights, so long as the parent is afforded procedural due process. The Court also discussed the factors to consider when determining this issue as well as issues due to COVID-19.
Jeremy also had assigned that the juvenile court erred in finding clear and convincing evidence of statutory grounds to terminate his parental rights under § 43-292(2). This section permits termination of parental rights when the parents have substantially and continuously or repeatedly neglected and refused to give the juvenile or a sibling of the juvenile necessary parental care and protection. It is no surprise that the Appeals Court stated that while incarceration alone is not a basis for termination of parental rights, a parent’s incarceration may be considered along with other factors in determining whether parental rights can be terminated based on neglect. In re Interest of Kalie W., 258 Neb. 46, 601 N.W.2d 753 (1999); In re Interest of L.V., 240 Neb. 404, 482 N.W.2d 250 (1992). “We have often noted that although incarceration itself may be involuntary as far as a parent is concerned, the criminal conduct causing the incarceration is voluntary.” In re Interest of Kalie W., 258 Neb. at 50, 601 N.W.2d at 756. The record reflects that Jeremy was continuously incarcerated from November 2017 to September 2018 in relation to an incident of domestic violence between Jeremy and Jacara while Joezia was present in the home. The Court goes to list out more of Jeremy’s criminal endeavors and stints in jail during the case. The Court also took note of Jeremy’s actions in getting kicked out the batters’ prevention course. Next Jeremy argued that the TPR was not in Joezia’s best interest. The Appeals Court noted all the ways Jeremy’s actions showed he was an unfit parent and the Court agreed with the trial court that the State met the burden to rebut the presumption that Jeremy is a fit parent. When a parent is unable or unwilling to rehabilitate himself or herself within a reasonable time, the best interests of the child require termination of parental rights. In re Interest of Ryder J., 283 Neb. 318, 809 N.W.2d 255 (2012). Moreover, a child cannot, and should not, be suspended in foster care or be made to await uncertain parental maturity. In re Interest of Jahon S., 291 Neb. 97, 864 N.W.2d 228 (2015). The Appeals Court took into consideration the length of time the child had been in foster care and the testimony of the therapist of the child who had testified to the importance of permanency and stability in Joezia’s life, which was demonstrated by Joezia’s improvement once placed in a stable environment. The Appeals Court also pointed out that throughout the proceedings, Jeremy failed to rehabilitate himself and engaged in further criminal conduct that resulted in his continued removal from Joezia. Therefore, the Appeals Court found clear and convincing evidence that termination of Jeremy’s parental rights is in Joezia’s best interests.