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In re J'Endlessly F.

Court of Appeals of Nebraska

October 30, 2018

In re Interest of J'Endlessly F. et al.,
v.
Julia M., Appellant. Children Under 18 Years of Age. State of Nebraska, Appellee,

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

         2. Constitutional Law: Due Process. The determination of whether the procedures afforded an individual comport with constitutional requirements for procedural due process presents a question of law.

         3. Appeal and Error. On a question of law, an appellate court reaches a conclusion independently of the court below.

         4. Parental Rights: Proof. Under Neb. Rev. Stat. § 43-292 (Reissue 2016), in order to terminate parental rights, the State must prove, by clear and convincing evidence, that one or more of the statutory grounds listed in this section have been satisfied and that termination is in the child's best interests.

         5. Constitutional Law: Parental Rights. The proper starting point for legal analysis when the State involves itself in family relations is always the fundamental constitutional rights of a parent.

         6. Parental Rights: Proof. Before the State attempts to force a breakup of a natural family, over the objections of the parents and their children, the State must prove parental unfitness.

         7. __:__. A court may not properly deprive a parent of the custody of his or her minor child unless the State affirmatively establishes that such parent is unfit to perform the duties imposed by the relationship, or has forfeited that right.

         8. __:__. It is always the State's burden to prove by clear and convincing evidence that the parent is unfit and that the child's best interests are served by his or her continued removal from parental custody.

         [26 Neb.App. 498] 9. 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.

         10. Parental Rights: Evidence: Proof. Generally, when termination of parental rights is sought, the evidence adduced to prove the statutory grounds for termination will also be highly relevant to the best interests of the juvenile, as it would show abandonment, neglect, unfitness, or abuse.

         11. Parental Rights: Parent and Child. In proceedings to terminate parental rights, the law does not require perfection of a parent; instead, courts should look for the parent's continued improvement in parenting skills and a beneficial relationship between parent and child.

         12. Parental Rights. Although incarceration alone cannot be the sole basis for terminating parental rights, it is a factor to be considered.

         13. __ . Children cannot, and should not, be suspended in foster care or be made to await uncertain parental maturity.

         14. Constitutional Law: Due Process. Procedural due process includes notice to the person whose right is affected by the proceeding; reasonable opportunity to refute or defend against the charge or accusation; reasonable opportunity to confront and cross-examine adverse witnesses and present evidence on the charge or accusation; representation by counsel, when such representation is required by the Constitution or statutes; and a hearing before an impartial decisionmaker.

          Appeal from the Separate Juvenile Court of Douglas County: Douglas F. Johnson, Judge. Affirmed.

          Judith A. Wells, of Law Office of Judith A. Wells, for appellant.

          Donald W. Kleine, Douglas County Attorney, Jennifer C. Clark, Natalie J. Killion, and Joseph Fabian, Senior Certified Law Student, for appellee.

          Pirtle, Riedmann, and Welch, Judges.

          RIEDMANN, JUDGE.

         INTRODUCTION

         Julia M. appeals the order of the separate juvenile court of Douglas County which terminated her parental rights to [26 Neb.App. 499] her minor children. ...


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