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In re Lizabella R.

Court of Appeals of Nebraska

January 9, 2018

In re Interest of Lizabella R., a child under 18 years of age.
v.
Elizabeth L., appellant. State of Nebraska, appellee,

         1. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases de novo on the record and reaches conclusions independently of the juvenile court's findings.

         2. Evidence: Appeal and Error. When the evidence is in conflict, 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.

         3. Appeal and Error. Plain error is error plainly evident from the record and of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process.

         4. __ . Plain error may be asserted for the first time on appeal or be noted by an appellate court on its own motion.

         5. Parental Rights: Proof. Parental rights may be terminated pursuant to a showing of best interests of the child and by establishing, through clear and convincing evidence, one of the 11 statutory bases for termination under Neb. Rev. Stat. § 43-292 (Reissue 2016).

         6. Evidence: Words and Phrases. Clear and convincing evidence is the amount of evidence that produces in the trier of fact a firm belief or conviction about the existence of the fact to be proved.

         7. Parental Rights. Neb. Rev. Stat. § 43-292(2) (Reissue 2016) provides for termination when the parents have substantially and continuously or repeatedly neglected and refused to give the juvenile or a sibling of the juvenile necessary parental care and protection.

         8. __.A parent's incarceration, standing alone, does not provide a ground for termination of parental rights.

         9. Parental Rights: Abandonment. In a termination of parental rights case, parental incarceration may properly be considered along with other [25 Neb.App. 422] factors in determining whether parental rights should be terminated based on neglect.

         10. Parental Rights. Although incarceration itself may be involuntary, the underlying criminal conduct that resulted in incarceration is voluntary.

         11. __. Neb. Rev. Stat. § 43-292(6) (Reissue 2016) provides for termination when, following a determination that a juvenile is one as described in Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016), reasonable efforts to preserve and reunify the family under the direction of the court have failed to correct the conditions leading to the determination.

         12. __ . A court order to complete relinquishment counseling is, by its very nature, not an effort intended to preserve and reunify the family.

         13. Appeal and Error. An appellate court is not obligated to engage in an analysis which is not necessary to adjudicate the case and controversy before it.

         14. Parental Rights: Proof. Neb. Rev. Stat. § 43-292(7) (Reissue 2016) states that the statutory grounds for termination are met if the juvenile has been in an out-of-home placement for 15 or more months of the most recent 22 months.

         15. __:__.In addition to proving a statutory ground, the State must also show that termination of parental rights is in the best interests of the child.

         16. Constitutional Law: Parental Rights. A parent's right to raise his or her child is constitutionally protected.

         17. Parental Rights: Presumptions: Proof. There is a rebuttable presumption that the best interests of the 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.

         18. Constitutional Law: Parental Rights: Words and Phrases. In the context of 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 caused, or probably will result in, detriment to a child's well-being.

         19. Parent and Child. The law does not require perfection of a parent; rather, courts should look for the parent's continued improvement in parenting skills and a beneficial relationship between parent and child.

         Appeal from the Separate Juvenile Court of Douglas County: Elizabeth Crnkovich, Judge. Reversed and remanded for further proceedings.

          Maureen K. Monahan for appellant.

         [25 Neb.App. 423] Donald W. Kleine, Douglas County Attorney, Jennifer C. Clark, and Laura Elise Lemoine, Senior Certified Law Student, for appellee.

          PIRTLE, RIEDMANN, AND ARTERBURN, JUDGES.

          RLEDMANN, JUDGE.

         I. INTRODUCTION

         Elizabeth L. appeals from an order of the separate juvenile court of Douglas County terminating her parental rights. For the reasons that follow, we reverse the order and remand the cause for further proceedings.

         II. BACKGROUND

         Elizabeth is the biological mother of Lizabella R., born in January 2015, and Jose R., born in February 2016. The children have different biological fathers. The juvenile court terminated the parental rights of Lizabella's biological father, and Jose's biological father has indicated that he would like to relinquish his parental rights. This ...


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