In re Interest of Wendy A.

SUMMARY: Pursuant to N.R.S. 43-292.02, when deciding whether to terminate parental rights, a court should not consider than an adoptive family has been identified.

The children, Vincent R., Destiny A. and Antonio A., were removed from the mother’s custody based on positive drug tests at birth of one of the children, Destiny, and the mother’s admission to marijuana use during her pregnancy. The guardian ad litem filed a second petition to terminate the mother’s parental rights after the State dismissed its first petition one year earlier. Antonio’s foster mother testified at trial about their willingness to adopt Antonio. Both foster mothers of Destiny and Antonio testified about the children’s attitudes and reaction to visitation with the mother. The children’s daycare director and case manager also testified as to the children’s reactions and attitudes to visitation with the mother. Other evidence was submitted regarding the mother’s compliance with the case plan, drug use and therapy attendance. On November 6, 2006, the court terminated the mother’s parental rights.

On appeal of the Nebraska Court of Appeals decision affirming the lower court, the Nebraska Supreme Court ruled that regardless of whether evidence of foster parents willingness to adopt is relevant to the children’s best interests, N.R.S. 43-292.02(2) precludes such consideration at trial in a termination of parental rights. 43-292.02(2), which provides in part “[t]he fact that a qualified family for an adoption…has been identified…shall have no bearing on whether parental rights shall be terminated”, is ambiguous due to its legislative placement in a section of the statute that addresses instances when the State is not to join as a party to a petition. After considering legislative history, the Court concluded that the legislature did not intend to limit the provision’s application to those cases falling under 43-292.02(2) but that the provision applies to all cases involving termination of parental rights.

Nonetheless, the Court affirmed the ruling of the Nebraska Court of Appeals affirming the lower court’s order termination of parental rights. The Court found that the Court of Appeals did not err when it held that the foster mother’s testimony at trial about the child’s demeanor after visitation was harmless because other witnesses testified in similar matters and the court would have known of the child’s reactions regardless. The Court affirmed the Court of Appeals finding that termination of parental rights was in the children’s best interests even absent the evidence that the foster parents were willing to adopt.