SUMMARY: Termination of parental rights was proper because the parents’ mental illness prevents them from being able to parent for a prolonged indeterminate period, and they did not make sufficient efforts to avail themselves of services.
Josselynn was born prematurely in May 2010 and spent 20 days in the hospital. On July 8, a voluntary case was opened with the mother, Evelyn, because of Josselynn’s failure to thrive and concerns about Evelyn’s ability to care for her. After intensive services failed, Josselynn was removed on August 18, 2010, and a petition was filed on September 21, 2010, as to Josselynn’s father, Robert. Robert never had physical custody of Josselynn and had his rights to another child involuntarily terminated in 2006 due to mental instability. Josselyn was adjudicated on April 8, 2011, pursuant to 43-247(3)(a). On June 23, 2011, the state filed motions to terminate the parental rights of Robert under 43-292(2) and (5), and Evelyn under 43-292(5) and (6). Trial began on October 24, 2011, and ended after several hearings on February 3, 2012. During that time, the State added the 15 out of 22 month in foster care ground for termination. During trial, two clinical psychologists testified as to Robert’s mental illness – which include bipolar disorder and antisocial personality disorder – and the likelihood that they would continue for a prolonged, indeterminate period. They also testified as to Robert’s inability to handle frustration, control his anger, set routines and empathize with others. Robert testified that when he is off medications he is a danger to himself and others, and that he was off his meds several times during the case. Another psychologist evaluated Evelyn and diagnosed her with personality disorder, intermittent explosive disorder and testified that she is borderline mentally handicapped. He testified that Evelyn cannot protect herself or a child, and that she can be taught routines but anything falling outside of the routine would present difficulties. There was also testimony about the parents’ inappropriate living conditions and their decreasing attendance for visits with Josselynn. On May 2, 2012, the court terminated Robert’s and Evelyn’s parental rights. Both parents appealed.
The Nebraska Court of Appeals affirmed the terminations. It affirmed the termination of Evelyn’s parental rights under a plain error review – due to lack of assigned errors in her brief – and noted that Evelyn failed to take advantage of services, missed many visits, failed to get adequate housing and employment, and suffered from mental deficiencies that would make it difficult to parent Josselynn. As to Robert, the Court of Appeals rejected Robert’s claim of failure to show reasonable efforts were being made since 43-292(6) was not a ground for termination. It then reviewed the evidence regarding Robert’s mental illnesses noting that it would make parenting extremely difficult and that Robert has also had difficulty staying on medication, attending visits and finding appropriate housing, before concluding that termination of Robert’s parental rights was proper.