In re Interest of Nery V. et. al

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In re Interest of Nery V. et. al

Caselaw No.
Filed on
Tuesday, April 22, 2014

SUMMARY: A court’s denial to reinstate visitation when the TPR was set for four months later is temporary and not final and appealable.

In November 2010, Nery was removed from the family home pursuant to N.R.S. 43-247(3)(a). On December 8, 2010, a motion to terminate parental rights was filed as to both parents, Ida and Mario, which was then amended several times. Several motions were filed by Ida and Mario for posttermination visitation, which the court overruled in June 2012, but clarifying that “[v]isitation, if any, after an order of termination of parental rights in this case would be at the sole discretion of [the Department of Health and Human Services].” Shortly after, the court terminated the parents’ parental rights. The parents appealed and the order was reversed in May 2013. On July 26, 2013, the State filed another motion to terminate parental rights. On September 11, 2013, Ida and Mario filed motions to reinstate visitation, and a hearing was held on September 19 where only the Guardian ad Litem submitted evidence that opposed reinstating visitation. On October 10, 2013, the court denied reinstating visitation. The termination of parental rights trials were scheduled for February 18, 2014, but Ida and Mario both appealed the October 10th order.

The Nebraska Court of Appeals dismissed the appeals. In considering whether the order was final and appealable, it reviewed several appellate cases, noting that one factor is the length of time the parent-child relationship might be disturbed. In several appellate cases reviewed, the appellate court had found the denial would not impact the relationship for a long period of time because there was an upcoming proceeding or the rehabilitation plan still allowed for regaining visitation. In this case, the Court of Appeals noted the motions were denied on October 10, 2013, and that the termination trials were to start on February 18, 2014. Therefore, the denial was temporary since the TPR trials would start in 4 months, and therefore not final and appealable.