In re Interest of Xaiden N.

Caselaw Number
30 Neb. App. 378
Filed On


John N., Xaiden’s father, appeals the order terminating his parental rights.  Reversed and remanded for further proceedings.

On June 7, 2019, Xaiden was put into the emergency temporary custody of the Nebraska Department of Health and Human Services (DHHS) due to both his parents having warrants out on them for second degree arson when they were stopped for a traffic violation.  The State filed a supplemental petition on June 10, 2019, alleging that Xaiden fell within Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016) because he lacked proper parental care by reason of the fault or habits of John. The State specifically alleged that John was currently incarcerated.  In September 2019, following a contested adjudication hearing, Xaiden was adjudicated as being within the meaning of § 43-247(3)(a) based on the fault or habits of John. The matter proceeded to immediate disposition. The juvenile court ordered John to undergo an initial diagnostic interview as arranged by DHHS. The court also ordered that John be allowed reasonable rights of agency-supervised visitation, when no longer incarcerated, obtain and maintain a stable and legal source of income; obtain and maintain safe, appropriate, and adequate housing for himself and his child; and not participate in any behaviors or activities that could or would result in incarceration or lengthening his time in incarceration. At a review hearing in August John N. was also ordered to complete Level 2 intensive outpatient treatment.  On September 23, 2020, the State filed a motion to terminate John’s parental rights to Xaiden pursuant to Neb. Rev. Stat. § 43-292(2), (6), and (7) (Reissue 2016). The State alleged that John substantially and continuously or repeatedly neglected and refused to give Xaiden necessary parental care and protection.  The hearing on the motion to terminate John’s parental rights was held on January 21, 2021. The State called two witnesses to testify. John appeared via videoconferencing and testified in his own behalf. Several exhibits were also received into evidence.  The case manager, Cassandra Bailey, testified that throughout the life of the case John N. had been incarcerated and not made any progress in reunifying with Xaiden.  She also said she wrote many letters to John N, that he at the beginning requested pictures, she also testified that no visits were set up for John N. and Xaiden. Of course this was in the middle of a pandemic so probably not surprising.  She testified as to other services John N couldn’t take advantage of because a said pandemic.  The foster mother also testified regarding length of time Xaiden had been in care with her and that John N. never called or sent anything for Xaiden to her.  John N. testified in his behalf.  He said he took a parenting class, was on a waiting list for treatment, asked for pictures and visits, among other things. 

In an order entered on January 28, 2021, the juvenile court terminated John’s parental rights to Xaiden after finding by clear and convincing evidence that statutory grounds for termination existed pursuant to § 43-292(2), (6), and (7) and that termination of parental rights was in Xaiden’s best interests. John appeals the juvenile court’s order.

John argued that the court erred in finding that statutory grounds existed to terminate his parental rights and that termination of his parental rights was in Xaiden’s best interests.

The Appellate Court relies on In re Interest of Mateo L. et al., 309 Neb. 565, 961 N.W.2d 516 (2021), for most of its analysis regarding Neb. Rev. Stat. § 43-292(2).  Xaiden was in foster care for 15 out of 22 months.  The Court reversed the juvenile court based on its analysis of best interests.  Basically finding that the State did not prove it was in Xaiden’s best interest to terminate rights and basically saying that in light of the pandemic, the fact John N. was getting out in less than 6 months that DHHS should have given him a chance to reunify.