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Kenneth C. v. Lacie H.

Supreme Court of Nebraska

November 8, 2013

Kenneth C., appellant,
v.
Lacie H., appellee.

Page 306

Appeal from the District Court for Madison County, ROBERT B. ENSZ, Judge.

Kathleen Koenig Rockey, of Copple, Rockey, McKeever & Schlecht, P.C., L.L.O., for appellant.

Mark A. Keenan, of Keenan Law, P.C., L.L.O., for appellee.

Wright, Connolly, Stephan, McCormack, Miller-Lerman, and Cassel ,JJ.

Syllabus

1. Juvenile Courts: Evidence: Appeal and Error. Juvenile cases are reviewed de novo on the record, and an appellate court is required to reach a conclusion

Page 307

independent of the juvenile court's findings. However, when the evidence is in conflict, an appellate court may consider and give weight to the fact that the district court observed the witnesses and accepted one version of the facts over the other.

2. Parental Rights: Evidence: Proof: Words and Phrases. The grounds for terminating parental rights must be established by clear and convincing evidence, which is that amount of evidence which produces in the trier of fact a firm belief or conviction about the existence of the fact to be proved.

3. Parental Rights: Abandonment: Intent: Proof. Whether a parent has abandoned a child within the meaning of Neb.Rev.Stat. § 43-292(1) (Cum.Supp.2012) is a question of fact and depends upon parental intent, which may be determined by circumstantial evidence.

4. Parental Rights: Abandonment: Words and Phrases. Abandonment is a parent's intentionally withholding from a child, without just cause or excuse, the parent's presence, care, love, protection, maintenance, and the opportunity for the display of parental affection for the child.

5. Parental Rights: Abandonment: Proof. To prove abandonment in determining whether parental rights should be terminated, the evidence must clearly and convincingly show that the parent has acted toward the child in a manner evidencing a settled purpose to be rid of all parental obligations and to forgo all parental rights, together with a complete repudiation of parenthood and an abandonment of parental rights and responsibilities.

6. Parental Rights: Abandonment: Time. The time period for calculating the 6-month period of abandonment specified in Neb.Rev.Stat. § 43-292(1) (Cum.Supp.2012) is determined by counting back 6 months from the date the juvenile petition was filed.

[286 Neb. 800] 7. Parental Rights: Abandonment. Abandonment is not an ambulatory thing the legal effects of which a parent may dissipate at will by token efforts at reclaiming a discarded child.

8. Parent and Child. Parental obligation requires a continuing interest in the child and a genuine effort to maintain communication and association with that child.

9. Juvenile Courts: Parental Rights. A juvenile's best interests are a primary consideration in determining whether parental rights should be terminated as authorized by the Nebraska Juvenile Code.

10. Parental Rights. Parental rights constitute a liberty interest.

11. Parental Rights. A parent's interest in the accuracy and justice of the decision to terminate his or her parental rights is a commanding one.

12. Parental Rights: Juvenile Courts: Pleadings. Because the primary consideration in determining whether to terminate parental rights is the best interests of the child, a court should have at its disposal the necessary information regarding the minor child's best interests, regardless of whether the information refers to a time period before or after the filing of the termination petition.

Page 308

Stephan, J.

This appeal from an order terminating a father's parental rights comes to us in an unusual context. It began as a paternity action initiated by the father, although there is no actual dispute regarding paternity. The child in question, K.H., was born in August 2007. His birth certificate identifies appellant Kenneth C. as his biological father and appellee Lacie H. as his biological mother. Kenneth and Lacie never married, and they lived together for only about 2 months after K.H. was born.

In 2011, Kenneth filed a paternity action in the district court for Madison County. He sought an order declaring him to be the biological father of K.H. and awarding him visitation with K.H. Lacie filed an answer alleging that Kenneth's paternity claim was barred by the statute of limitations. In [286 Neb. 801] a counterclaim, she asked the court to terminate Kenneth's parental rights based on abandonment. The court determined Kenneth's paternity claim was not barred by the statute of limitations and ultimately entered an order terminating Kenneth's parental rights. Kenneth perfected a timely appeal from that order, which we moved to our docket on our own motion pursuant to our statutory authority to regulate the caseloads of the appellate courts of this state.[1]

BACKGROUND

Actions to determine paternity and parental support are governed by Neb.Rev.Stat. §§ 43-1401 through 43-1418 (Reissue 2008). Section 43-1411.01(1) confers jurisdiction on the district courts to adjudicate such actions, but § 43-1411.01(2) provided at the time of the court's order that " [w]henever termination of parental rights is placed in issue in any case arising under sections 43-1401 to 43-1418, subsection (5) of section 42-364 and the Parenting Act shall apply to such proceedings." Neb.Rev.Stat. § 42-364 (Cum.Supp.2012) governs child support, child custody, and visitation in domestic relations actions.

Because the counterclaim sought termination of Kenneth's parental rights, the district court was initially required to follow the procedures outlined in § 42-364(5)(a), which provided in part that " [t]he court shall transfer jurisdiction to a juvenile court established pursuant to the Nebraska Juvenile Code unless a showing is made that the ... district court is a more appropriate forum." In an order entered on December 12, 2011, the district court determined that the statute of limitations set forth in § 43-1411 was not applicable to Kenneth's paternity claim and that because the case did " not appear to involve any of the resources normally used in the juvenile ...


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