In re Interest of L.V.

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In re Interest of L.V.

Caselaw No.
240 Neb. 404
Filed on
Friday, April 3, 1992

SUMMARY: The physical presence of a parent at the hearing to terminate parental rights is unnecessary so long as the parent has been provided procedural due process. Parental incarceration may be considered in reference to abandonment as a basis for termination of parental rights under 43-292(1).

L.V., DOB 8/10/77, was removed from the mother’s home in 1988. On August 31, 1990, the State filed a petition terminate the parental rights of W.V., the father, on the basis of abandonment under Neb. Rev. Stat. section 43-292(1) and failure to provide care and protection under 43-292(2). W.V. had sporadic presence in L.V.’s life. He was in and out of prison in Nebraska for several years and when not incarcerated had very little contact with L.V. and provided very little financial support. W.V. moved to Texas in October 1982 without providing contact information to the mother. He was soon convicted of aggravated sexual assault of a 6-year-old and sentenced to 25 years imprisonment, to be released in 2007. While L.V. was in foster care, W.V. sent L.V. occasional gifts and letters. L.V. testified that she does not know W.V. and does not want him in her life. L.V.’s therapist testified that it was in L.V.’s best interests that any relationship with her father be discontinued. Trial began on December 20, 1990. Because W.V. was in jail, the court ordered that a complete transcript of the December 20th hearing be sent to W.V., that W.V. be allowed to recall any state witnesses for cross-examination and that W.V. attend the hearing by phone. Trial was completed on May 13, 1991, and the court terminated W.V.’s parental rights. W.V. appealed.

The Nebraska Supreme Court affirmed the termination of parental rights. First, it held that W.V.’s physical absence from the trial was not unconstitutional so long as procedural due process was followed, and it is within the discretion of the juvenile court to determine whether the parent should attend. In deciding whether to allow the parent to attend, the court can consider the probable delay, the need for disposition in the immediate future, the elapsed time the case has been pending, the expense to the state, the inconvenience or detriment to the parties, the potential danger, the availability of alternative means of testimony and the best interests of the child. In this case, the Supreme Court held that due process was provided to W.V. in that he was notified of the allegations, represented by counsel, and given the opportunity to cross-examine and call witnesses on his behalf. The Supreme Court also noted that the procedure afforded W.V. in this case surpassed the requirements of procedural due process and should not be construed as a standard. Finally, the Supreme Court held that parental incarceration, while not the sole factor, may be considered in reference to abandonment as a basis for termination of parental rights under 43-292(1). In this case, W.V’s incarceration, the seriousness of the crime and the character of the victim, the repeated incarcerations and absence from L.V’s life, the paltry child support and the move to Texas without notice establish that W.V. abandoned L.V.