SUMMARY: Because it must be determined that termination is in the best interests of the child which requires a consideration of the child’s current situation, 43-292(2) is not unconstitutional just because the factual basis for it may be focused primarily on prior neglect of siblings. In this case, the mother’s prior neglect of her children, inability to abstain from alcohol or parent her children unsupervised, her failure to attend many random urinalysis tests and the special needs required to care for two of the children support termination of her parental rights.
Sir Messiah, DOB 7/99, Mirage, DOB 12/00, Crystasia, DOB 2/05, and Carlieon, DOB 4/06, were removed from the mother’s home on September 9, 2007, after the mother, Yolanda, was arrested and police found the children home alone with a knife stabbed in the door to prevent their escape. Yolanda’s parental rights to three older children had been terminated in 2003. On November 1, 2007, the children were adjudicated within the meaning of N.R.S. 43-247(3)(a) and Yolanda was order to comply with a rehabilitation plan. Yolanda had been enrolled in 3 chemical dependency programs since 2007 but had 5 positive uses of alcohol since March 2008. She failed to attend scheduled urinalysis testing and once showed up to a visit drunk and acting out. The two older children have special needs and both stated that Yolanda had physically abused them. Yolanda also continued a relationship with the father of the youngest two children even though he engaged in domestic violence with Yolanda. Several of the therapists and the case manager emphasized the children’s need for stability. On October 2, 2008, the State filed a termination of parental rights pursuant to N.R.S. 43-292(2) and (6). After trial on April 27, 2009, the court terminated Yolanda’s parental rights as to all 4 children. Yolanda appealed, challenging the constitutionality of 43-292(2) and the sufficiency of evidence for termination.
The Nebraska Supreme Court affirmed the termination. The Supreme Court rejected the claim that 32-292(2) was unconstitutional because it permitted termination on the basis of prior neglect of siblings and not on current parental conduct, finding that prior neglect can be a basis for termination only in conjunction with proof of best interests of the children which requires evidence regarding the parent’s current circumstances. The Supreme Court noted that prior neglect and terminations are relevant to future proceedings and cannot be ignored, stating “one’s history as a parent speaks to one’s future as a parent.” 279 Neb. at 909. Finally, the Supreme Court upheld the sufficiency of the evidence for termination, noting the prior neglect, physical abuse of the children, exposure to domestic violence, continued alcohol use, inability to care for her children especially as testified to by the family’s therapists and the case manager.