SUMMARY: There was no plain error in the juvenile court finding there was not clear and convincing evidence to terminate the mother’s parental rights because there was insufficient evidence of best interests especially given that one child is living with her father and another is in a relative guardianship.
Sylissa, age 14, and Justine, age 11, were removed from the home of the mother, Shawna, on April 12, 2012, after reports were received of drug use, improper supervision and care, and domestic violence. The children were adjudicated soon after. In November and December 2012, the caseworker attempted to set up visits but Shawna could not be located. After December 2012, the caseworker didn’t have an address or phone number for her. Shawna met Justine after school once around January 2013, returning her to school after the visit. In February 2013, the girls told the caseworker that Shawn was in Florida. Sylissa and Justine had occasional unauthorized Facebook contact with Shawna for several months. In July 2013, Shawna e-mailed the caseworker about two younger children but failed to respond to 10-15 subsequent e-mail messages the caseworker sent her. On July 24, 2013, the State filed a motion to terminate Shawna’s parental rights pursuant to N.R.S. 43-292(1) and (9). At the time of trial, the caseworker did not know Shawna’s whereabouts. The caseworker testified that Justine was living with her father and Sylissa was in a relative guardianship. After trial, the court found that the girls came within the meaning of 43-292(1) and (9) as to Shawna, but that the State had not proved by clear and convincing evidence that termination was in their best interests. The State appealed.
The Nebraska Supreme Court affirmed the juvenile court’s order. Because the State did not separately assign error in its brief, the juvenile court order was reviewed for plain error. It first found no plain error in the court’s determination that Shawna had abandoned the children pursuant to 43-292(1) and (9). As to best interests, the Supreme Court noted that there was no evidence submitted that addressed what the best interests of the children are. The permanency plans for the girls are family preservation with a father and a family guardianship so it was unclear on its face how terminating the mother’s parental rights would be necessary to accomplish those permanency goals. There was no other evidence submitted addressing the children’s attitudes toward Shawna, their mental health needs, or any other issues. Therefore, the Supreme Court concluded it was not plain error for the court to find the State had not proved by clear and convincing evidence that termination was in the children’s best interests.