In re Interest of Leland B.

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In re Interest of Leland B.

Caselaw No.
19 Neb. App. 17
Filed on
Tuesday, May 10, 2011

SUMMARY: Incarceration, standing alone, cannot be grounds for termination of parental rights 

Leland, DOB 12/05, entered the child welfare court system in October 2008 after his mother was unable to care for her children due to a mental health issue. Leland’s father, Ronald, was incarcerated in May 2008 for possession and intent to distribute cocaine. In April 2009, Leland’s mother died. After her death, DHHS sent Ronald a letter notifying him of Leland’s custody, and Ronald responded requesting placement of Leland with Ronald’s sister. On June 24, 2009, the State filed a supplemental petition alleging Leland to be within the meaning of N.R.S. 43-247(3)(a) due to Ronald’s incarceration. In August 2009, Ronald admitted to the allegations. On June 15, 2010, the State filed a motion to terminate Ronald’s parental rights. On August 16, 2010, a hearing on the motion to terminate was held. Leland’s caseworker and his therapist testified that Leland had behavioral issues and that termination was in Leland’s best interest to provide him with a stable, consistent living environment. Ronald testified that he could be released to a halfway house as early as March 2011 and could live with Leland’s grandmother. The only evidence submitted at trial in support of the statutory ground for termination was related to Ronald’s incarceration and the reasons for his incarceration. After trial, the juvenile court terminated Ronald’s parental rights. Ronald appealed.

The Nebraska Court of Appeals reversed the termination of parental rights. It noted that incarceration cannot be the sole statutory grounds for termination and, in this case, it was. The Court of Appeals noted that the therapist and caseworker’s opinions that termination was in Leland’s best interests were based solely on the incarceration and not on Roland’s ability to parent, and that many concerns were speculative. The Court of Appeals also noted that Ronald had consistently followed through on his only opportunity to contact Leland through letters. Because the Court of Appeals found that incarceration could not solely satisfy grounds for termination, it did not address the issue of best interests.