SUMMARY: A judge’s prior minimal involvement as a deputy county attorney in the criminal case of an individual peripheral to the case, of which she had no recollection, was not sufficient to warrant recusal. “Out-of-home placement” under statutory grounds for termination of parental rights includes placement under a guardianship. The mother’s personal deficiencies as established over the course of the entire case establish that she is unfit to parent, despite her current stability.
Lisa, the mother, has been involved in the child welfare system since 1998. Issues involving lack of appropriate housing, inability to protect from sexual abuse and inability to maintain employment were frequently at issue. Lisa lost her parental rights to twins born in 1994. At issue in this case were children Kendra, DOB 3/96, Matthew, DOB 6/98, and Katrina, DOB 9/99, who were removed from Lisa’s home on February 16, 2005. She complied with the case plan for some time but by September 2006 had stolen money, lost housing and moved into a shelter, and had tumultuous relationships. For the next few years, Lisa was in and out of abusive relationships, was frequently without housing, staying in shelters or with short-term boyfriends, and could not maintain employment. In early 2008, the court changed the permanency objective from reunification to guardianship, and a petition for guardianship was approved in March 2009. In the meantime, Lisa gave birth to three more children and entered into a stable relationship. Lisa had visits with the other children but they did not go well, one leading to an unsubstantiated report of sexual abuse against a guardian.
On October 28, 2010, Lisa filed a motion to terminate the guardianship. On March 28, 2011, the guardian ad litem filed a motion to terminate Lisa’s parental rights to the children. Lisa submitted to a psychological evaluation, which found consistently with prior ones in 2005 and 2007 that she had Axis I personality disorder, which suggested long-term struggles in functioning and maintaining relationships. At trial, the court received testimony from the children’s therapist that termination was in the children’s best interest. Lisa also requested the judge to recuse on the basis that she signed an order in a criminal case involving her mother’s boyfriend, who was part of the sexual abuse allegations, but the judge overruled the motion finding that she had no recollection and had likely only been signing paperwork as a supervisor. On July 22, 2011, the court denied Lisa’s motion to terminate the guardianship and terminated her parental rights. Lisa appealed.
The Nebraska Court of Appeals affirmed the terminations of parental rights. It first addressed the motion for recusal and found that the facts as alleged do not cause a reasonable person to question the judge’s impartiality, given that the signed order was filed 17 years earlier and the judge would likely not have remembered the case. As to termination, the Court of Appeals first found that the statutory ground of 15 of the past 22 months in out-of-home placement had been met. It rejected Lisa’s argument that time under a guardianship would not be considered out-of-home placement for purposes of the statutory ground for TPR, finding that the change to guardianship “did not change the nature of the guardianship, which was outside of her home.” 283 Neb. at 1032. As to best interests, the Court of Appeals considered “what has transpired during the parental relationship,” 283 Neb. at 1034, and found that Lisa exposed the children to health hazards, sexual abuse, theft and unstable relationships, and was unable to provide a stable home despite many services. It acknowledged Lisa’s current stability, but noted the psychologist’s testimony indicating high odds that Lisa would be unable to maintain a stable relationship in the long-term and that the loss of this relationship would likely cause other instability.