SUMMARY: Serious emotional or physical damage under ICWA was likely to result if the child was returned home given the degree of domestic violence committed by the father against the mother and failure to address the issues. Termination of the parental rights of both parents was proper based on the failure to address issues of severe domestic violence.
Bianca, DOB 2/03, and Eternity, DOB 12/04, were removed from the parental home of Antonio and Victoria on February 9, 2005. Justice H., DOB 11/07, and Antonio Jr., DOB 10/08, were removed on later dates. There is a long history of severe violence by Antonio against Victoria since their relationship began in 2001. This includes Antonio punching, kicking and burning Victoria, threatening to kill one of her older children, strangling her with an extension cord, carving her body up with a key, breaking fingers and much else. Some of the violence was witnessed by the children, as shown in Bianca’s statements, drawings and aggressive behavior. Victoria presented to the caseworker her intent to leave Antonio, but this was later proven wrong as Victoria often visited Antonio in prison, spoke with him on the phone and named their youngest son after him. Antonio and Victoria were given supervised visitation which was later restricted to therapeutic visitation and eventually suspended on February 19, 2007, never to resume. Neither parent successfully completed any of the requirements in the rehabilitation plan, including individual therapy, finding employment and housing and protecting the children from exposure to domestic violence.
On November 21, 2007, the State filed an amended motion to terminate parental rights to Bianca and Eternity. On August 14, 2008, the State filed a petition to find Antonio Jr. within the meaning of N.R.S. 43-247(3)(a). On September 8, 2008, the State filed an amended motion to terminate parental rights as to Justice H. On September 23, 2009, the court terminated Victoria’s parental rights to Bianca and Eternity (Antonio’s were also terminated and the Court of Appeals affirmed link this to https://cip.nebraska.gov/articles/2010/03/30/in-re-interest-of-bianca-h-and-eternity-h-2/), adjudicated Justice H. within the meaning of N.R.S. 43-247(3)(a) and terminated Antonio and Victoria’s parental rights as to Justice, and adjudicated Antonio Jr. within the meaning of N.R.S. 43-247(3)(a). Separate appeals were filed as to Bianca and Eternity, Justice and Antonio Jr. This appeal pertains to Justice H. Antonio and Victoria both appealed the court’s termination of their parental rights.
The Nebraska Court of Appeals affirmed the terminations of the parental rights. Addressing Antonio’s claim that active efforts were not made, the Court of Appeals found that DHHS offered services such as a substance abuse evaluation, psychotherapy, and AA classes, but that services were difficult to provide because Antonio did not notify DHHS of his whereabouts. Assuming the children’s psychologist to be the ICWA expert witness, the Court of Appeals also found that serious emotional or physical damage would likely result if Justice were returned home due to the extreme physical violence that the children had witnessed and would be likely to continue. Finally, the Court of Appeals affirmed the terminations of parental rights based on the history of domestic violence between the parents and their failure to take steps to address the issues. In doing so, the Court of Appeals noted that Justice had been placed out-of-home since shortly after birth and lacked a bond with Antonio or Victoria.