In re Interest of Presten O.

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In re Interest of Presten O.

Caselaw No.
18 Neb. App. 259
Filed on
Tuesday, February 9, 2010

SUMMARY: Termination of parental rights was improper because one of the bases was N.R.S. 43-292(5) relating to the parent’s mental condition, which requires the appointment of a guardian ad litem to the parent. 

Presten O., DOB 12/05, and Porsha O., DOB 5/07, are the children of Crystal and were removed from her care in April and May 2007 due to concerns about Crystal’s mental health. In September 2007, the children were adjudicated under N.R.S. 43-247(3)(a) and on January 7, 2009, a motion to terminate her parental rights as to both children was filed. Prior to the motion, Crystal completed a competency evaluation, which found that she was competent to proceed to trial. After trial, on April 28 and May 20, 2009, the court terminated parental rights. Crystal appealed.

The Nebraska Court of Appeals reversed the termination on the sole basis that a guardian ad litem was not appointed for Crystal. N.R.S. 43-292.01 requires that a guardian ad litem for the parent be appointed whenever termination is sought under 43.292(5), that is, the parent is unable to discharge parental responsibilities due to a mental condition. In In re Interest of M.M., C.M., D.M., 230 Neb. 388, 431 N.W.2d 611 (1988), the Court held that failure to comply with this statutory provision is plain error and requires reversal of the termination of parental rights. In this case, because a guardian ad litem was not appointed for Crystal, the Court of Appeals reversed the termination.

Judge Irwin filed a concurring opinion that noted the statutory language and caselaw in In re M.M., et. al., but concluded that he did not believe Crystal was prejudiced in any way by the failure to appoint a guardian ad litem given her competent counsel and the conclusion of the competency evaluation.