In re Interest of Keisha G.

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In re Interest of Keisha G.

Caselaw No.
21 Neb. App. 472
Filed on
Tuesday, December 3, 2013

SUMMARY: Since the rights advisement at adjudication didn’t include termination of parental rights as a possible consequence, 43-292(6) cannot be a ground for termination. The evidence didn’t support the remaining TPR ground because there was no showing how the father’s prior drug use made him unfit to parent.

Keisha, DOB 10/10, was removed from the mother’s home on September 19, 2011. The mother eventually relinquished her parental rights. The father, Michael, was incarcerated at the time and never had custody of Keisha. On February 8, 2012, Michael entered a no contest plea and Keisha was adjudicated under N.R.S. 43-247(3)(a). Prior to entering his plea, Michael was advised of his rights but was not advised that termination of parental rights was a possible consequence. A dispositional hearing was held on March 29, 2012, and on June 25, 2012, the State and the Guardian ad Litem filed a motion to terminate Michael’s parental rights consistent with N.R.S. 43-292(4) and (6). Trial was held on November 8, 2012. Evidence established that Michael, age 27, had many drug and alcohol offenses prior to Keisha’s birth and was arrested in June 2012 for possession of marijuana and generic form of Vicodin but had not been convicted. Michael also tested positive for THC in September 2012 and there was testimony from a CASA that he admitted to intravenous drug use after the proceedings started. On November 26, 2012, the juvenile court terminated Michael’s parental rights pursuant to N.R.S. 43-292(4) and (6). Michael appealed.

The Nebraska Court of Appeals reversed the termination of parental rights. It noted that for terminations falling under 43-292(6), N.R.S. 43-279.01(1) requires that the court “shall” inform the parties of possible consequences of the proceedings, including termination of parental rights. In this case, the court advised Michael of his rights but not the possible consequence of termination. N.R.S. 43-292(6) cannot, therefore, be a later ground for termination, and the Court of Appeals thus treated the case as being one with no prior adjudication and only looked at 43-292(4) as a ground for termination (after finding that the rights advisement was sufficient enough to do so). As to sufficiency of the evidence under 43-292(4), the Court of Appeals noted that most of the evidence around Michael’s alcohol and drug use was in a time period prior to Keisha’s birth. There was one arrest in June 2012 where Michael was in possession of marijuana and a generic form of Vicodin but he had not yet been convicted. The Court of Appeals cited In re Interest of Carrdale H., 18 Neb. App. 350, 781 N.W.2d 622 (2010)(finding that drug possession alone can’t be sole ground for adjudication without a showing of the connection to risk of harm to the child) and found a similar circumstance here. The Court of Appeals noted a few other incidents but stated there was no showing how those incidents were detrimental to Keisha (citing a few cases requiring the nexus with the conduct and the risk of harm). It concluded that there was not clear and convincing evidence that Michael’s drug use made him unfit to parent Keisha and that termination was therefore improper.