In re Interest of Lorenzo S. and Lillian S.

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In re Interest of Lorenzo S. and Lillian S.

Caselaw No.
A-13-513 and A-14-019
Filed on
Friday, June 13, 2014

SUMMARY: Termination of parental rights was proper where the mother did not make notable progress in her case plan and continued to use methamphetamine daily. It was not a conflict of interest for the relative adoptive parent to work in the child support section of the county attorney office.

Lorenzo and Lillian were born in January 2011. In August 2011, the DHHS hotline received two calls alleging their mother, Elizabeth, was abusing drugs, not taking medication and not properly caring for the children. Upon investigation, Elizabeth admitted to using methamphetamine and tested positive for methamphetamine and amphetamine. The children were voluntarily placed with Elizabeth’s grandmother. After a few days of Elizabeth living with her grandmother, her grandmother asked that she and the children move somewhere else. Elizabeth asked her aunt, Gina, who agreed to take the children. Elizabeth attended a drug and alcohol class but left after 3 weeks. On January 6, 2012, a 3a petition was filed alleging Elizabeth’s drug use and inability to care for the children. On January 10, an amended petition was filed alleging ICWA and notice was sent to the Oglala Sioux Tribe. The children were formally placed in the custody of DHHS and on February 14, 2012, Elizabeth pled no contest to allegations of a history of using meth, testing positive for meth and being unable to stay sober. In March, Elizabeth began inpatient treatment at St. Monica’s in Lincoln but did not complete the first 30 days and was released. A dispositional hearing was held on March 27, 2012, and a review hearing on June 26th. Elizabeth was accepted into an inpatient drug treatment in Omaha in August but left after 3 days and spent 3 weeks at a homeless shelter in Omaha. Elizabeth regularly tested positive for meth, lived in more than 7 homes during the case, and missed a substantial number of visits with the children. At a permanency hearing on September 27, the permanency goal was set as adoption with a concurrent goal of reunification. On December 7, 2012, the State filed motions to terminate Elizabeth’s parental rights pursuant to N.R.S. 43-292(2), (4), (6) and (7). On January 22, 2013 filed a motion to disqualify the county attorney’s office from the proceedings because Gina worked in the child support department. After a hearing, the court denied the motion. The TPR trial was held on March 5, 2013. At trial, an ICWA expert testified and Elizabeth admitted that she took meth daily, including the morning of the trial, and was currently under the influence. On April 19, 2013, the court terminated Elizabeth’s parental rights. Elizabeth appealed.

The Nebraska Court of Appeals affirmed the termination of parental rights. As to grounds under 43-292, the Court of Appeals noted that Elizabeth’s continued and regular drug use has kept her from putting herself in a position to parent her children and concluded there was clear and convincing that Elizabeth was “unfit by reason of debauchery, habitual use of intoxicating liquor or narcotic drugs” under subsection 4. As to best interests, the Court of Appeals found that Elizabeth had not made sufficient progress and has not shown a willingness to put herself in a position to care for her children. As to Elizabeth’s argument that the use of evidence from the voluntary part of the case violated her due process, the Court of Appeals concluded that very little evidence was used from the voluntary stage and that there was no evidence that her due process rights were violated. Finally, the Court of Appeals found no error in the court overruling Elizabeth’s motion to disqualify the county attorney’s office because there was no evidence of bias or evidence that Gina had knowledge of the proceedings and that, in fact, Elizabeth had asked the children to be placed with Gina initially.