Summary:
This is appeal from the Separate Juvenile Court of Lancaster County. Candice D. appeals the juvenile court’s order terminating her parental rights to her children, Serenity A. and Canjerrica D. The Court of Appeals reversed the juvenile court’s order terminating Candice’s parental rights and remanded the cause for further proceedings.
A juvenile petition was filed alleging that Serenity and Canjerrica lacked proper parental care by reason of the faults or habits of their mother Candice. It was alleged that Candice attempted to pick up the children from school, but was too intoxicated to care for them. Candice admitted to drinking and was transported to a detoxification center. The juvenile court adjudicated Serenity and Canjerrica as children within the meaning of § 43-247(3)(a) based upon Candice’s admission to the allegations. As part of a dispositional plan, Candice was ordered to participate in a residential substance abuse program, among other things. Candice had periods of compliance with court orders and services, followed by periods in which she was unable to gain stability or maintain sobriety.
The State eventually filed a motion to terminate Candice’s parental rights pursuant to § 43-292(2), (6), and (7). After difficulty serving Candice with a copy of the motion to terminate her parental rights, the court allowed Candice to be served by publication. The termination hearing, which was originally scheduled for January 22, 2021, was continued to March 10, then continued again to April 2021.
At the start of the April 2021 termination hearing, the court granted a recess requested by Candice’s counsel because Candice had not yet arrived. Following the recess, a deputy informed the court that Candice had been taken into custody on an outstanding warrant upon entering the courthouse for the hearing and would not be available for the hearing. After receiving this information, Candice’s counsel requested a continuance which was denied by the court on the bases that the termination hearing had been continued at least once previously and that the court did not believe Candice had appeared at any of the prior hearings or multiple docket calls.
After the termination hearing, the juvenile court issued an order terminating Candice’s parental rights pursuant to § 43-292(2), (6), and (7) and found that termination was in the minor children’s best interests. The court specifically found that Candice had substantially and continuously or repeatedly neglected and refused to give the children necessary parental care and protection, that reasonable efforts to preserve and reunify the family had failed to correct the conditions which led to adjudication, and that the children had been in out-of-home placement for more than 15 of the past 22 months. The court further found that the termination was in the minor children’s best interests in order for them to obtain permanency, specifically finding that Candice was unfit due to her failure to gain stability or maintain sobriety, placing her children at risk; the children went 3 months without any contact from Candice; the children needed a permanent, stable, and loving caregiver; and the court had not been presented with any evidence that Candice had made continued improvement in her parenting skills or maintained a beneficial relationship with her children. Candice timely appealed the juvenile court’s order.
Candice assigns that the juvenile court erred in (1) overruling her motion to continue the termination hearing; (2) terminating her parental rights pursuant to § 43-292(2), (6), and (7); and (3) finding that the termination was in the children’s best interests.
Candice first argues that the juvenile court’s refusal to continue the termination hearing following her arrest at the courthouse violated her due process rights and was an abuse of the court’s discretion. It is well-settled law in Nebraska that an incarcerated parent’s physical presence is not necessary at a hearing to terminate parental rights, provided that the parent has been afforded procedural due process. Generally, it is within the juvenile court’s discretion to determine how an incarcerated parent may meaningfully participate in the hearing on the termination of his or her parental rights consistent with due process. However, when a juvenile court knows that a parent is incarcerated or confined nearby, it should take steps, without request, to afford the parent due process before adjudicating a child or terminating the parent’s parental rights.
In this case, Candice was not personally served with summons in connection with the termination proceedings due to her unknown location at that time. Instead, notice of the proceeding was provided through publication and, after Candice eventually reached out to the DHHS caseworker, who provided Candice with actual notice of the termination hearing 4 days before its scheduled date. Candice attempted to attend the termination hearing; however, she was arrested on an outstanding warrant when she arrived at the courthouse. The court’s awareness of Candice’s situation was captured on the record.
The Court of Appeals acknowledged that the timing of counsel’s motion to continue the termination hearing in this case presents unusual circumstances. In deciding whether to allow a parent’s attendance at a hearing to terminate parental rights notwithstanding the parent’s incarceration or confinement, the court is normally examining a case of confinement which predated the date of the hearing. The Court of Appeals also notes that despite the juvenile court’s statement, in support of denial of the motion to continue, which indicated that Candice had not appeared at any of the prior hearings or multiple docket calls, this statement was not an accurate account of the record. The record demonstrates that Candice was present at the adjudication hearing, the dispositional hearing, and 2 review hearings. Most importantly, Candice attempted to attend the termination hearing and was arrested upon entering the courthouse.
When analyzing whether an incarcerated parent has been afforded due process at a hearing to terminate parental rights, an appellate court looks to the steps taken by the juvenile court to ensure the incarcerated individual could meaningfully participate in the trial despite his physical absence from the proceedings. In this case, no such accommodation was made, in large measure because Candice’s confinement took place only minutes before the termination hearing began. Instead of focusing on the impact of that confinement as it related to Candice’s ability to participate in the termination hearing, the juvenile court appeared more concerned with prior delays and the need to move forward with the proceeding. And although prior delays are relevant considerations in balancing due process rights associated with attendance at a termination hearing, it must be considered in connection with the children’s best interests in reference to a parent’s actual attendance at trial and the parents’ due process rights to meaningfully participate at a termination hearing, including the reasonable opportunity to refute or defend against the allegations.
Although Candice had missed some, but not all, of the court’s prior hearings, she attempted to attend the termination hearing. This was not a case of a parent’s unknown whereabouts or failure to appear. The court was aware Candice was detained upon arrival while attempting to appear. Under these circumstances, the juvenile court should have afforded Candice an opportunity to participate in the termination hearing. Although Candice’s counsel was present and able to participate in some ways, that participation did not include a meaningful opportunity to arrange for Candice to testify if she chose to.
Based upon the facts present in this case, the Court of Appeals found the juvenile court abused its discretion in not granting Candice’s counsel’s motion for a continuance to allow Candice an opportunity to meaningfully participate in the proceedings. Having determined that the order of the juvenile court must be reversed and that the cause must be remanded for further proceedings, the Court of Appeals chose not to address Candice’s remaining assignments of error.