SUMMARY: A prior adjudication is not required for the termination of parental rights brought under Neb Rev. Stat. section 43-292(1) through (5).
Joshua, then age 9, was voluntarily placed in foster care in April 1995 while the mother, Mitzi, was incarcerated. Joshua was adjudicated under Neb. Rev. Stat. section 43-247(3)(a) on November 7, 1995. Mitzi’s other children, Jonathan, then 4 years old, Jasmine, then 2 years old, and Devon, then 1 year old, were placed in foster care on October 18, 1996, after Mitzi was again arrested. A 3(a) petition was filed but the three children were never adjudicated. The mother has a history of drug abuse, never completed a drug evaluation and failed to appear in court. The mother was in and out of prison through termination proceedings August 21, 1997. Motions to terminate the mother’s parental rights as to all four children were filed on March 14, 1997. Trial was held on August 21, 1997, and the court terminated parental rights as to all children on September 23, 1997 under 43-292(2) and (4) and additionally for Joshua under 43-292(6) and (7). The mother appealed. The Nebraska Court of Appeals reversed the termination, finding that the juvenile court cannot terminate parental rights where there had been no adjudication.
The Nebraska Supreme Court reversed the Court of Appeals opinion. In interpreting Neb. Rev. Stat. section 43-291, which allows an original petition to be filed for the termination of parental rights, Neb. Rev. Stat. section 43-247, which provides for court jurisdiction in proceedings for termination of parental rights, and Neb. Rev. Stat. section 43-292, which provides for grounds for termination that include bases that do not require prior court involvement, the Supreme Court held that the reading of the statutes as a whole forces the conclusion that termination of parental rights may be accomplished without a prior adjudication. The Supreme Court also noted that while Neb. Rev. Stat. section 43-278 requires adjudication hearings to be held within 90 days after the filing of the petition, this language has been held to be directory, not mandatory. Thus, lack of adjudication in this case, while not best practice, does not preclude the termination of parental rights. The Supreme Court ordered reinstatement of the termination of parental rights.