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In re Austin G.

Court of Appeals of Nebraska

June 13, 2017

In re Interest of Austin G., a child under 18 years of age.State of Nebraska, appellee,
v.
Kayla S. appellant.

         1. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases de novo on the record and reaches its conclusions independently of the juvenile court's findings. When the evidence is in conflict, however, an appellate court may give weight to the fact that the lower court observed the witnesses and accepted one version of the facts over the other.

         2. Parental Rights: Proof. In order to terminate parental rights, a court must find clear and convincing evidence that one of the statutory grounds enumerated in Neb. Rev. Stat. § 43-292 (Reissue 2016) exists and that termination is in the child's best interests.

         3. Parental Rights: Abandonment: Words and Phrases. For purposes of Neb. Rev. Stat. § 43-292(1) (Reissue 2016), "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.

         4. Guardians and Conservators: Parental Rights. Guardianships give parents an opportunity to temporarily relieve themselves of the burdens involved in raising a child, thereby enabling parents to take those steps necessary to better their situation so they can resume custody of their child in the future.

         5. ___: ___. Although a guardian becomes the caretaker of the child during the appointment, the parent must still retain an interest in the child and maintain some sort of relationship with the child.

         6. Parental Rights: Abandonment: Intent. The failure of the parent to have any contact with the child for far longer than the 6 months required by Neb. Rev. Stat. § 43-292(1) (Reissue 2016) demonstrates the intent to [24 Neb.App. 774] withhold the parent's presence, care, love, protection, maintenance, and the opportunity for the display of parental affection for the child.

         7. Parental Rights: Proof. Only one statutory ground for termination need be proved in order for parental rights to be terminated.

         8. ___: ___. In addition to proving a statutory ground, the State must show that termination is in the best interests of the child.

         9. Constitutional Law: Parental Rights: Proof. A parent's right to raise his or her child is constitutionally protected; so before a court may terminate parental rights, the State must also show that the parent is unfit.

         10. Parental Rights: Presumptions: Proof. There is a rebuttable presumption that the best interests of a child are served by having a relationship with his or her parent. Based on the idea that fit parents act in the best interests of their children, this presumption is overcome only when the State has proved that the parent is unfit.

         11. Parental Rights: Statutes: Words and Phrases. The term "unfitness" is not expressly used in Neb. Rev. Stat. § 43-292 (Reissue 2016), but the concept is generally encompassed by the fault and neglect subsections of that statute, and also through a determination of the child's best interests.

         12. Constitutional Law: Parental Rights: Words and Phrases. In discussing the constitutionally protected relationship between a parent and a child, parental unfitness means a personal deficiency or incapacity which has prevented, or will probably prevent, performance of a reasonable parental obligation in child rearing and which has caused, or probably will result in, detriment to a child's well-being.

         13. Parental Rights. The best interests analysis and the parental fitness analysis are fact-intensive inquiries. And while both are separate inquiries, each examines essentially the same underlying facts as the other.

         14. ___. The best interests of a child require termination of parental rights when a parent is unable or unwilling to rehabilitate himself or herself within a reasonable time.

         15. ___. Children cannot, and should not, be made to await uncertain parental maturity.

         Appeal from the County Court for Wayne County: Ross A. Stoffer, Judge. Affirmed.

          Kyle C. Dahl for appellant. Eric W. Knutson, Deputy Wayne County Attorney, for appellee.

         [24 Neb.App. 775] Mark D. Alb in, guardian ad litem.

          Pirtle, Bishop, and Arterburn, Judges.

          ...


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