SUMMARY: Even though the father left the termination hearing, he was afforded procedural due process given he had notice, was read and understood the petition and his rights, was represented by an attorney and GAL, and had initially been present at the hearing. As the caseworker had contact with the child and was most familiar with the father’s lack of participation, she was qualified to testify as to the child’s best interests. Denial of the father’s motion for new trial was proper because he did not establish that the newly discovered evidence was not just the exercise of belated diligence.
Khrystofer, DOB 11/4/02, was removed from the father on March 1, 2006 due to the father’s incarceration. The child was adjudicated within 43-247(3)(a) on July 20, 2006, and disposition was held on October 25, 2006. The father was ordered to obtain safe and stable housing and legal and stable income, to complete psychological and psychiatric evaluations, and to attend supervised visitation.
A motion to terminate parental rights was filed on November 8, 2007. Trial was held on June 13 and 16, 2008. The father appeared at the hearing but left after the judge admonished him for slouching in his chair. The caseworker testified that in September 2006 the father refused the referred names of individuals to conduct the evaluations and requested a particular individual. Three appointments were arranged by the caseworker and the father missed all of them. The caseworker made additional referrals in 2007 and 2008, all not followed through by the father. The father was inconsistent with weekly visitation and the visitation facility decided not to continue providing the service to the father. The father never provided proof of housing and at one point indicated he was living in a van. The father visited the caseworker’s office weekly, often having inappropriate, aggressive behavior. On Jun 18, 2008, the court terminated the father’s rights. On June 26, 2008, the father filed a motion for new trial on the basis that he learned new evidence of possible suspension of the caseworker. The court denied the motion. The father appealed.
The Court of Appeals affirmed the juvenile court’s termination. It held that parental presence at a hearing is not required if procedural due process is given, which it was in this case based on the notice provided to the father, his presence at the beginning, his representation by counsel and the advisement of rights. The caseworker was qualified to testify as to the child’s best interests because she had regular contact with Khrsytofer and was in the best position to testify as to the father’s lack of compliance. Termination was in the child’s best interests because the father’s made little to no progress in accomplishing goals that would return his son to his home, even after being given many opportunities.