In re Interest of Denzel D. , 314 Neb. 631 ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/07/2023 09:08 AM CDT
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
IN RE INTEREST OF DENZEL D.
Cite as 314 Neb. 631In re Interest of Denzel D., Jr.,
a child under 18 years of age.
State of Nebraska, appellee, v.
Denzel D., Sr., appellant.
___ N.W.2d ___
Filed July 7, 2023. No. S-22-312.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juve-
nile cases de novo on the record and reaches its conclusions indepen-
dently of the findings made by the juvenile court below.
2. Juvenile Courts: Evidence: Appeal and Error. When the evidence is
in conflict, an appellate court may consider and give weight to the fact
that the juvenile court observed the witnesses and accepted one version
of the facts over another.
3. Parental Rights: Proof. Any of the 11 separate subsections of Neb.
Rev. Stat. § 43-292 (Reissue 2016) can serve as a basis for termination
of parental rights when coupled with evidence that termination is in the
best interests of the child.
4. ____: ____. To terminate parental rights, the State has the burden to
show by clear and convincing evidence both that one of the statutory
bases enumerated in Neb. Rev. Stat. § 43-292 (Reissue 2016) exists and
that termination is in the child’s best interests.
5. Parental Rights. Whereas the statutory grounds for termination of
parental rights are based on a parent’s past conduct, the best interests
inquiry focuses on the future well-being of the child.
6. Constitutional Law: Due Process: Parental Rights: Proof. Showing
that termination of parental rights is in the best interests of the child is
necessarily a particularly high bar, since a parent’s right to raise his or
her children is constitutionally protected. The Due Process Clause of the
U.S. Constitution would be offended if a state were to attempt to force
the breakup of a natural family, over the objections of the parents and
their children, without some showing of unfitness.
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IN RE INTEREST OF DENZEL D.
Cite as 314 Neb. 6317. Constitutional Law: Parental Rights: Presumptions. In light of the
constitutionally protected nature of the parent-child relationship, there is
a rebuttable presumption that it is in the child’s best interests to share a
relationship with his or her parents.
8. Parental Rights: Presumptions: Proof. The presumption that it is in
the child’s best interests to share a relationship with his or her parent can
only be overcome by a showing that the parent either is unfit to perform
the duties imposed by the relationship or has forfeited that right.
9. Parental Rights: Words and Phrases. Parental unfitness means a
personal deficiency or incapacity that has prevented, or will probably
prevent, performance of a reasonable parental obligation in child rear-
ing and that has caused, or probably will result in, detriment to a child’s
well-being.
10. Parental Rights. The best interests and parental unfitness analyses in
the context of a termination of parental rights case require separate,
fact-intensive inquiries, but each examines essentially the same under-
lying facts.
11. Juvenile Courts: Minors. Nebraska law requires the creation of perma-
nency plans for every juvenile placed in out-of-home care and requires
the juvenile courts to hold a hearing on the plan.
12. Juvenile Courts: Judgments: Parental Rights: Adoption: Guardians
and Conservators. The juvenile court’s order on a permanency plan
must include whether the objective is for the juvenile to be returned to
the parent, referred for a termination-of-parental-rights filing, placed for
adoption, or referred for a guardianship.
Petition for further review from the Court of Appeals,
Moore, Riedmann, and Bishop, Judges, on appeal thereto
from the County Court for Hall County, Alfred E. Corey III,
Judge. Judgment of Court of Appeals affirmed as modified.
Sonya K. Poland, of Poland Law Office, for appellant.
Christopher J. Harroun, Deputy Hall County Attorney, for
appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
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314 Nebraska Reports
IN RE INTEREST OF DENZEL D.
Cite as 314 Neb. 631Miller-Lerman, J.
NATURE OF CASE
The county court for Hall County, sitting as a juvenile
court, terminated the parental rights of Denzel D., Sr. (Denzel
Sr.), to his son, Denzel D., Jr. (Denzel Jr.), and declined to
impose a guardianship for the child. The Nebraska Court of
Appeals reversed the termination of Denzel Sr.’s parental
rights because it could not find that the termination was
in Denzel Jr.’s best interests. The Court of Appeals further
vacated the juvenile court’s order regarding the guardian-
ship. The State successfully petitioned for further review.
The State argued that it carried its burden to show that ter-
mination of Denzel Sr.’s parental rights under Neb. Rev. Stat.
§ 43-292 (Reissue 2016) is in the best interests of Denzel Jr.
and that additionally, the Court of Appeals failed to appreci-
ate that guardianship with the child’s paternal grandmother
was not possible under Neb. Rev. Stat. § 43-1312.01(1)
(Reissue 2016) because there was no existing placement in
the grandmother’s home. We conclude that the State and
the guardian ad litem did not present clear and convincing
evidence that terminating Denzel Sr.’s parental rights is in
Denzel Jr.’s best interests. We affirm the decision of the
Court of Appeals that concluded that terminating Denzel
Sr.’s parental rights is not in Denzel Jr.’s best interests and
reversed the juvenile court’s order, but modify the decision
of the Court of Appeals to the extent that its opinion can be
read as suggesting that Denzel Jr. should be placed with his
paternal grandmother as guardian at this time.
STATEMENT OF FACTS
Denzel Sr. is the father of Denzel Jr., who was born in
February 2018. Denzel Jr.’s mother has two other children,
each of whom has a different father and neither of whom is
Denzel Sr.’s child. Although proceedings in the juvenile court
also involve Denzel’s mother and siblings, the present appeal
focuses on the termination of Denzel Sr.’s parental rights
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IN RE INTEREST OF DENZEL D.
Cite as 314 Neb. 631to Denzel Jr., and Denzel’s mother and siblings are referred to
herein only as relevant to the proceedings involving Denzel Sr.
and Denzel Jr.
In February 2020, Denzel Jr. was adjudicated pursuant to
Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016). In September
2021, the State and the guardian ad litem filed a motion to
terminate Denzel Sr.’s parental rights. As statutory grounds
for termination under § 43-292, the State asserted that under
subsection (2), Denzel Sr. had substantially and continuously
or repeatedly neglected and refused to give Denzel Jr. neces-
sary parental care and protection, and that under subsection (7),
Denzel Jr. had been in out-of-home placement for 15 or more
months of the most recent 22 months.
1. Termination Hearing
The following facts were shown by evidence at the termina-
tion hearing held in March 2022. In May 2018, shortly after
Denzel Jr.’s birth in February 2018, Denzel Sr. was arrested
and placed in jail on a charge of possession of a firearm by
a prohibited person. He was later convicted and sentenced to
imprisonment for 8 to 12 years in the Nebraska Department
of Correctional Services. He will be eligible for parole in
November 2023, and his discharge date is in January 2026.
Although Denzel Sr. was aware of Denzel Jr.’s birth shortly
after he was born, Denzel Sr.’s paternity of Denzel Jr. was not
confirmed by a DNA test until February or March 2019.
Evidence at the termination hearing showed that during
most of the time prior to the termination hearing, the correc-
tional facility in which Denzel Sr. was housed did not allow
inmates to have in-person visits because of the COVID-19
pandemic. At the time of the termination hearing, Denzel Sr.
had had one in-person visit with Denzel Jr. since his arrest, but
had virtual visits and phoned weekly to speak with Denzel Jr.
at his foster home. Denzel Jr.’s foster mother testified that the
phone calls between Denzel Sr. and Denzel Jr. went well.
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IN RE INTEREST OF DENZEL D.
Cite as 314 Neb. 631The Department of Health and Human Services (DHHS)
caseworker at the time of the termination hearing testified that
Denzel Sr. had expressed a desire to be involved in Denzel Jr.’s
life and to be able to talk with him and watch him grow up.
Denzel Sr.’s case plan goals were to follow the directives of the
correctional facility, to have phone calls with Denzel Jr. when
allowed, to maintain communications with the caseworker, and
to participate in any programming that was available to him.
The caseworker testified that Denzel Sr. met all his goals, but
was still incarcerated.
Denzel Sr. expressed to the caseworker that he would like
for his mother, Gabrielle H. (Gabby), to be Denzel Jr.’s guard-
ian. Although Gabby lives in Chicago, Illinois, she was actively
involved with the case and had weekly virtual visits with
Denzel Jr. and sometimes with Denzel Jr.’s siblings, as well as
in-person visits when she traveled to Nebraska for court hear-
ings related to the case. Gabby expressed a strong desire for
Denzel Jr. to be placed with her, but because the initial primary
permanency goal for Denzel Jr. was reunification with his
mother, DHHS had declined to place him with Gabby at that
time. Gabby informed the caseworker that if the permanency
goal was changed to guardianship, she would be willing to
have Denzel Jr. and his siblings placed with her.
In May 2021, DHHS recommended changing Denzel Jr.’s
primary permanency goal to guardianship with Gabby. Because
Gabby lived in a different state, certain procedures, including
a home study, were completed, and Gabby was approved to
have placement of Denzel Jr. Although at the time of the ter-
mination hearing, Denzel Jr. remained in the foster home, the
caseworker testified that DHHS was still actively looking into
a placement with Gabby.
2. Trial Court Order
Following the termination hearing, the juvenile court
filed an order in which it made certain findings and termi-
nated Denzel Sr.’s parental rights to Denzel Jr. The court
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IN RE INTEREST OF DENZEL D.
Cite as 314 Neb. 631specifically found that Denzel Sr. had met the requirements
of his case plan. Nevertheless, the court found clear and
convincing evidence to support the asserted statutory bases
for termination. In addition to finding that under § 43-292(7)
Denzel Jr. had been in out-of-home placement for the most
recent 25 months, the court found that under § 43-292(2),
Denzel Sr. had neglected Denzel Jr. because his own actions
had caused him to be incarcerated and therefore unable to
meet Denzel Jr.’s basic needs.
The court also found that termination of Denzel Sr.’s paren-
tal rights was in Denzel Jr.’s best interests. In this regard, the
court noted that because of his incarceration, Denzel Sr. had
not been able to parent Denzel Jr., and that although Denzel Sr.
would be eligible for parole in late 2023, he could remain in
prison until 2026. The court further reasoned that guardianship
is intended to be only a temporary placement to allow a parent
to address issues and that Denzel Jr. should not be required to
languish in the court system indefinitely. For that reason, in
addition to terminating Denzel Sr.’s parental rights, the court
denied the request for a guardianship for Denzel Jr.
3. Court of Appeals Opinion
Denzel Sr. appealed to the Court of Appeals. He claimed
that the juvenile court erred when it (1) terminated his parental
rights and (2) denied his request for a guardianship.
First addressing the statutory basis for termination of Denzel
Sr.’s parental rights, the Court of Appeals determined that the
evidence showed that under § 43-292(7), Denzel Jr. had been
in out-of-home placement for 15 or more months of the most
recent 22 months. However, it found that the State and the
guardian ad litem had not proved by clear and convincing evi-
dence that termination of Denzel Sr.’s parental rights was in
Denzel Jr.’s best interests.
Recognizing that incarceration alone cannot be the sole
basis for termination of parental rights, the Court of Appeals
stated that “[a]lmost the entirety of the State’s evidence
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IN RE INTEREST OF DENZEL D.
Cite as 314 Neb. 631related to best interests and unfitness focused on Denzel Sr.’s
incarceration.” In re Interest of Denzel D., 31 Neb. App. 547,
554, 985 N.W.2d 45, 51 (2023). It noted that the best interests
inquiry focuses on the future well-being of the child, as well
as the rebuttable presumption that it is in the child’s best inter-
ests to maintain a relationship with his or her parent. Upon
review of all the evidence, the Court of Appeals stated that it
could not find that termination of Denzel Sr.’s parental rights
was in Denzel Jr.’s best interests, and it reversed the juvenile
court’s order terminating Denzel Sr.’s parental rights.
The Court of Appeals then considered the juvenile court’s
denial of Denzel Sr.’s request for a guardianship for Denzel
Jr. The Court of Appeals first rejected the State’s argument
that the issue of a guardianship was not properly presented
to the juvenile court because no motion was filed under Neb.
Rev. Stat. § 43-1312.01 (Reissue 2016). The Court of Appeals
reasoned that the statute authorized the juvenile court to make
a guardianship placement but did not require that a specific
motion for guardianship be made in order for the juvenile court
to consider placing an adjudicated child in a guardianship.
Instead, the Court of Appeals reasoned, DHHS determines
the permanency plan for children in its custody and presents
the plan to the juvenile court for approval; if the plan recom-
mends a guardianship and DHHS has identified a potential
guardian, then the issue has been presented to the juvenile
court. The Court of Appeals noted that in this case, DHHS
had recommended changing the permanency plan for Denzel
Jr. to a guardianship in May 2021 and the court had approved
the change. DHHS took steps to facilitate a guardianship and
had approved Gabby for placement of Denzel Jr. The Court of
Appeals determined, therefore, that the permanency plan of a
guardianship with Gabby had been presented to the juvenile
court throughout the case.
The Court of Appeals further determined that the juve-
nile court erred when it denied the guardianship. The Court
of Appeals noted that the juvenile court characterized
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314 Nebraska Reports
IN RE INTEREST OF DENZEL D.
Cite as 314 Neb. 631a guardianship as a temporary placement that allowed a parent
to address issues and that the juvenile court therefore declined
to impose a guardianship because it determined that Denzel
Jr.’s best interests required permanency. The Court of Appels
stated, however, that terminating a parent’s rights is not a pre-
requisite to achieving permanency for an adjudicated child and
that § 43-1312.01(3) specifically provides that a “guardian-
ship placement shall be considered permanent for the child.”
The Court of Appeals noted evidence in this case that Gabby
had been approved for the guardianship and that she had par-
ticipated since the inception of this case, including weekly
virtual visits with Denzel Jr. The Court of Appeals further
noted that the children’s therapist opined that Denzel Jr. and
his siblings should remain together and that Gabby was will-
ing to take all three into her home. The Court of Appeals also
noted DHHS’ support for the establishment of a guardianship
and the caseworker’s testimony that it was in Denzel Jr.’s best
interests to be placed in a guardianship with Gabby. The Court
of Appeals concluded:
The record indicates that DHHS supports placing
Denzel Jr. in a guardianship with Gabby, she was willing
and able to take in Denzel Jr. and his siblings in order
to keep them together, and she could provide the perma-
nency that Denzel Jr. needs while he could remain in a
relative placement with his paternal grandmother.
In re Interest of Denzel D., 31 Neb. App. 547, 560, 985 N.W.2d
45, 55 (2023).
Based on this, the Court of Appeals determined that “the
juvenile court erred in denying the request for guardianship.”
Id. It therefore vacated the juvenile court’s order and remanded
the cause “for further proceedings consistent with this opin-
ion.” Id.We granted the State’s petition for further review.
ASSIGNMENTS OF ERROR
On further review, the State claims, inter alia, that the
Court of Appeals erred when it (1) reversed the order of the
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IN RE INTEREST OF DENZEL D.
Cite as 314 Neb. 631juvenile court that had terminated the parental rights of Denzel
Sr. and (2) vacated the order of the juvenile court that had
denied Denzel Sr.’s request for a guardianship.
STANDARDS OF REVIEW
[1,2] An appellate court reviews juvenile cases de novo
on the record and reaches its conclusions independently of
the findings made by the juvenile court below. In re Interest
of Mateo L. et al., 309 Neb. 565, 961 N.W.2d 516 (2021).
However, when the evidence is in conflict, an appellate court
may consider and give weight to the fact that the juvenile
court observed the witnesses and accepted one version of the
facts over another. Id.ANALYSIS
1. Termination of Parental Rights
The State claims on further review that the Court of Appeals
erred when it reversed the order of the juvenile court that
had terminated the parental rights of Denzel Sr. Upon our
de novo review, we conclude that the record shows that the
parental rights of Denzel Sr. should not have been terminated
and therefore affirm the decision of the Court of Appeals in
this regard.
(a) Statutory Basis For Termination
[3,4] The grounds for terminating parental rights are codified
in § 43-292. Any of the 11 separate subsections of § 43-292
can serve as a basis for termination when coupled with evi-
dence that termination is in the best interests of the child. In
re Interest of Mateo L. et al., supra. The State has the burden
to show by clear and convincing evidence both that one of the
statutory bases enumerated in § 43-292 exists and that termina-
tion is in the child’s best interests. Id.
There is no dispute that § 43-292(7) provided such a
basis for termination in this case. Section 43-292(7) allows
for termination when “[t]he juvenile has been in an out-
of-home placement for fifteen or more months of the most
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IN RE INTEREST OF DENZEL D.
Cite as 314 Neb. 631recent twenty-two months.” As the juvenile court found and
the record shows, Denzel Jr. was removed from his mother’s
care and placed in foster care in February 2020, where he
remained placed for the duration of the proceedings in the
juvenile court. At the time of the termination hearing in March
2022, Denzel Jr. had been in out-of-home placement continu-
ously for 25 months. Based on our de novo review, the State
and the guardian ad litem met their burden to show by clear
and convincing evidence that grounds for termination under
§ 43-292(7) were satisfied.
Section 43-292 requires that the State prove only one of
the enumerated statutory grounds for termination of parental
rights. In re Interest of Mateo L. et al., supra. Thus, we need
not address whether the evidence was sufficient to support ter-
mination under § 43-292(2) and proceed to the forward-looking
question of whether termination was also in the best interests
of Denzel Jr.
(b) Best Interests of Denzel Jr.
[5,6] The State also challenges the Court of Appeals’ con-
clusion that it would not be in the best interests of Denzel
Jr. to terminate Denzel Sr.’s parental rights. As stated above,
under § 43-292, it is the State’s burden by clear and con-
vincing evidence to show that there not only exists a statu-
tory basis for termination but that termination is in the best
interests of the child. In re Interest of Mateo L. et al., supra.
Whereas the statutory grounds for termination of parental
rights are based on a parent’s past conduct, the best interests
inquiry focuses on the future well-being of the child. Id. This
second hurdle is a high bar for the State, since a parent’s right
to raise his or her children is constitutionally protected. Id. In
this regard, we have emphasized that the Due Process Clause
of the U.S. Constitution would be offended “[i]f a State were
to attempt to force the breakup of a natural family, over the
objections of the parents and their children, without some
showing of unfitness.” Id. at 582, 961 N.W.2d at 529 (internal
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
IN RE INTEREST OF DENZEL D.
Cite as 314 Neb. 631quotation marks omitted) (quoting Quilloin v. Walcott, 434
U.S. 246, 98 S. Ct. 549, 54 L. Ed. 2d 511 (1978)).
The opinion of the Court of Appeals recites the following
facts, which support Denzel Sr.’s parental fitness:
While incarcerated, Denzel Sr. completed three parent-
ing courses, a class dealing with the victim impact of
his offense, and classes through a community college
to further his education. He also completed an intensive
outpatient program that dealt with issues such as improv-
ing his chances of not reoffending, emotional intelli-
gence, integrating back into society, and creating a better
future for himself. At the time of the termination hearing,
Denzel Sr. was housed at a work ethic camp and working
toward a work-release program for which he could be
eligible the following month. He explained that he was
on the waiting list for a forklifting certification class and
that if he was able to be transferred to the work-release
center in Lincoln, Nebraska, there was a forklifting posi-
tion available. He testified that he has followed all of the
rules at the correctional facility and maintained employ-
ment while incarcerated, including cooking, cleaning,
and assisting in the library.
Furthermore, Denzel Sr. kept in consistent contact with
Denzel Jr. throughout the case. According to the case-
worker, Denzel Sr. showed a desire to maintain a relation-
ship with his son while being incarcerated and an interest
in playing a role in his son’s life and in keeping up to
date with his development. He made weekly phone calls
to speak with his son during the time the correctional
facility would not allow in-person visits and maintained
consistent contact with the caseworkers. During the only
in-person visit he had with Denzel Jr., which occurred in
November 2021, the foster mother reported that Denzel
Sr. interacted very well with his son, provided for his
needs, and read him a book.
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IN RE INTEREST OF DENZEL D.
Cite as 314 Neb. 631In re Interest of Denzel D., 31 Neb. App. 547, 555, 985 N.W.2d
45, 52 (2023).
[7-10] In light of the constitutionally protected nature of the
parent-child relationship, in this case, the State and the guard-
ian ad litem must overcome the rebuttable presumption that
it is in Denzel Jr.’s best interests to share a relationship with
his parents. In re Interest of Mateo L. et al., 309 Neb. 565,
961 N.W.2d 516 (2021). That presumption can only be over-
come by a showing that the parent either is unfit to perform
the duties imposed by the relationship or has forfeited that
right. Id. In this context, parental unfitness means a personal
deficiency or incapacity that has prevented, or will probably
prevent, performance of a reasonable parental obligation in
child rearing and that has caused, or probably will result in,
detriment to a child’s well-being. Id. The best interests and
parental unfitness analyses require separate, fact-intensive
inquiries, but each examines essentially the same underlying
facts. Id.We agree with the analysis of the Court of Appeals that
stated, “Almost the entirety of the State’s evidence related to
best interests and unfitness focused on Denzel Sr.’s incarcera-
tion.” In re Interest of Denzel D., 31 Neb. App. at 554, 985
N.W.2d at 51. While Denzel Sr.’s incarceration presently limits
his ability to provide for Denzel Jr., he is not unfit to parent.
Since Denzel Sr.’s paternity was confirmed, he has remained in
Denzel Jr.’s life as feasible and has not reoffended. Compare In
re Interest of Jahon S., 291 Neb. 97, 864 N.W.2d 228 (2015)
(stating parent chose to use and sell marijuana while sole cus-
todial parent of other children and was charged with assaulting
another inmate during incarceration).
Since learning of his paternity, Denzel Sr. has been will-
ing and interested in performing parental duties. He has
completed three parenting classes, stayed in contact with
caseworkers, and consistently stayed in communication with
Denzel Jr. via weekly phone calls, as well as video visits
and one in-person visit. Prior to his incarceration, while in
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IN RE INTEREST OF DENZEL D.
Cite as 314 Neb. 631a relationship with Denzel Jr.’s mother, Denzel Sr. had per-
formed parental duties for Denzel Jr.’s older sister, including
dressing her and singing to her. The foster mother testified
that Denzel Sr. was attentive and good to Denzel Jr.’s sister
and opined that he has parenting skills and knowledge of how
to take care of a young child.
Denzel Sr. has maintained employment within the cor-
rectional facility, and he is working toward participating in a
work-release program. He also completed a program aimed at
improving his chances of not reoffending, building his emo-
tional intelligence, integrating back into society, and creating
a better future for himself. He also testified that he is seeking
a forklift certification.
In this regard, the juvenile court specifically found that
Denzel Sr. met the requirements of his court reports and
case plans. Under these plans, his goal was to safely par-
ent and protect his son, and his strategies were to follow the
requirements at the state penitentiary, have calls with his son
and the caseworker, and participate in any programming at
the facility.
The juvenile court raised a sincere and serious concern
that Denzel Jr. would languish in the foster care system and
be denied permanency unless Denzel Sr.’s parental rights
were terminated. We have explained that the best interests
of the child would not be served where the child would lan-
guish in the system because an incarcerated parent continued
to offend or had not demonstrated the ability to parent, or
where it was unclear when or whether the parent would be
able to perform parenting duties in the future. See, e.g., In re
Interest of DeWayne G. & Devon G., 263 Neb. 43, 638 N.W.2d
510 (2002).
[11,12] But, as the Court of Appeals observed, under the
Nebraska Juvenile Code recited below, an adjudicated child
can achieve permanency without terminating a parent’s rights
if the juvenile court grants a guardianship. Nebraska law
requires the creation of permanency plans for every juvenile
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IN RE INTEREST OF DENZEL D.
Cite as 314 Neb. 631placed in out-of-home care and requires the juvenile courts to
hold a hearing on the plan. In re Interest of LeVanta S., 295
Neb. 151, 887 N.W.2d 502 (2016). The court’s order on a
permanency plan must include whether the objective is for the
juvenile to be returned to the parent, referred for a termination-
of-parental-rights filing, placed for adoption, or referred for a
guardianship. Id. If the permanency plan for a child who has
been adjudicated under § 43-247(3)(a) does not recommend
return of the child to his or her parent or that the child be
placed for adoption, the juvenile court may place the child in
a guardianship as long as certain statutory requirements have
been met. See § 43-1312.01.
Section 43-1312.01(3) specifically provides that notwith-
standing the fact that the juvenile court retains jurisdiction
over the child for modification or termination of the guardian-
ship order, “the guardianship placement shall be considered
permanent for the child.” When a guardianship is created,
§ 43-1312.01(3) provides that “[t]he court shall discontinue
permanency reviews and case reviews and shall relieve [DHHS]
of the responsibility of supervising the placement of the child.”
Consistent with the goal of permanency, Denzel Sr. requested
a guardianship with Gabby, which we discuss below. Thus,
termination of Denzel Sr.’s parental rights is not necessary to
achieve permanency for Denzel Jr.
In view of the foregoing, we determine that the State and
the guardian ad litem failed to prove that Denzel Sr. is unfit or
that termination of Denzel Sr.’s parental rights was in Denzel
Jr.’s best interests, and we reject the State’s assignment of error
made on further review and affirm the decision of the Court of
Appeals that reversed the order of the juvenile court terminat-
ing Denzel Sr.’s parental rights. See In re Interest of Lizabella
R., 25 Neb. App. 421, 907 N.W.2d 745 (2018).
(c) Guardianship
The State generally reads the Court of Appeals deci-
sion as prematurely weighing in favorably on the merits of
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IN RE INTEREST OF DENZEL D.
Cite as 314 Neb. 631Denzel Sr.’s request for a guardianship. The State contends
that the Court of Appeals directed the juvenile court to place
Denzel Jr. with Gabby as guardian. Although we do not com-
pletely agree with the State’s reading of the opinion of the
Court of Appeals, we modify the opinion to the extent it can be
read as suggesting that Denzel Jr. should be placed with Gabby
as his guardian at this time.
In its opinion, the Court of Appeals stated:
The record indicates that DHHS supports placing
Denzel Jr. in a guardianship with Gabby, she was willing
and able to take in Denzel Jr. and his siblings in order to
keep then together, and she could provide the permanency
that Denzel Jr. needs while he could remain in a relative
placement with his paternal grandmother. Based on the
foregoing, we conclude that the juvenile court erred in
denying the request for guardianship.
In re Interest of Denzel D., 31 Neb. App. 547, 560, 985 N.W.2d
45, 55 (2023).
We do not read the opinion of the Court of Appeals as
prematurely evaluating the guardianship question, and more
importantly, under the relevant statutes, a guardianship was not
presently available at the time of the termination hearing.
The juvenile court can place a child in a guardianship
according to statutes. The statutes relevant to our analysis are
recited below.
Section 43-1312.01(1)(a) through (d) provide, inter alia:
(1) If the permanency plan for a child established pur-
suant to section 43-1312 does not recommend return of
the child to his or her parent or that the child be placed
for adoption, the juvenile court may place the child in
a guardianship in a relative home as defined in sec-
tion 71-1901, in a kinship home as defined in section
71-1901, or with an individual as provided in section
43-285 if:
(a) The child is a juvenile who has been adjudged to be
under subdivision (3)(a) of section 43-247;
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Cite as 314 Neb. 631(b) The child has been in the placement for at least
six months;
(c) The child consents to the guardianship, if the child
is ten years of age or older; and
(d) The guardian:
(i) Is suitable . . . .
A “[r]elative home,” as defined by Neb. Rev. Stat.
§ 71-1901(9) (Reissue 2018), is
a home where a child or children receive foster care and
at least one of the primary caretakers is related to the
child or children, or to a sibling of such child or children
pursuant to section 43-1311.02, in his or her care by
blood, marriage, or adoption or, in the case of an Indian
child, at least one of the primary caretakers is an extended
family member as defined in section 43-1503[.]
A “[k]inship home,” as defined by 71-1901(7), is
a home where a child or children receive foster care and
at least one of the primary caretakers has previously lived
with or is a trusted adult that has a preexisting, significant
relationship with the child or children or a sibling of such
child or children pursuant to section 43-1311.02.
Neb. Rev. Stat. § 43-285(1) (Cum. Supp. 2022) identifies an
“individual” eligible to be a guardian as follows:
When the court awards a juvenile to the care of [DHHS],
an association, or an individual in accordance with the
Nebraska Juvenile Code, the juvenile shall, unless other-
wise ordered, become a ward and be subject to the legal
custody and care of the department, association, or indi-
vidual to whose care he or she is committed.
Because Gabby has not provided foster care, under
§ 43-1312.01 she is not eligible for a guardianship as having
been a “[r]elative home” or “[k]inship home.” Although she
is an “individual” under § 43-285, Denzel Jr. has not been
in placement with her for at least 6 months as required by
§ 43-1312.01(1)(b). On this record, Gabby was not eligible
for a guardianship. See In re Interest of LeVanta S., 295 Neb.
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Cite as 314 Neb. 631151, 887 N.W.2d 502 (2016) (stating that requirements of
§ 43-1312.01(1) are conjunctive and all must be met). To the
extent the opinion of the Court of Appeals suggested that the
juvenile court should place Denzel Jr. with Gabby as guardian,
we disapprove of the suggestion at this time and modify the
opinion of the Court of Appeals accordingly.
CONCLUSION
For the reasons recited above, we affirm the decision of the
Court of Appeals that concluded that terminating Denzel Sr.’s
parental rights is not in Denzel Jr.’s best interests and reversed
the juvenile court’s order, but modify the decision of the Court
of Appeals to the extent that its opinion can be read as suggest-
ing that Denzel Jr. should be placed with Gabby as guardian at
this time.
Affirmed as modified.
Funke, J., dissenting.
Because I would determine that clear and convincing evi-
dence supported the juvenile court’s order terminating Denzel
Sr.’s parental rights to Denzel Jr., I respectfully dissent from
the majority opinion in this matter.
The State and guardian ad litem have the burden of prov-
ing by clear and convincing evidence that one of the grounds
enumerated in Neb. Rev. Stat § 43-292 (Reissue 2016) exists
and that termination is in Denzel Jr.’s best interests. 1 Because
there is no dispute that Denzel Jr. has been in out-of-home
placement for 15 or more months of the last 22 months,
which is an independent ground for termination of parental
rights under § 43-292(7), the only remaining issue is whether
termination of Denzel Sr.’s parental rights is in Denzel Jr.’s
best interests.
There is a rebuttable presumption that it is in the child’s
best interests to share a relationship with his or her parent,
which can only be overcome by a showing that the parent
1
Cf. In re Interest of Mateo L. et al., 309 Neb. 565, 961 N.W.2d 516 (2021).
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Cite as 314 Neb. 631either is unfit to perform the duties imposed by the relation-
ship or has forfeited that right. 2 The majority opinion properly
notes that parental unfitness means a personal deficiency
or incapacity that has prevented, or will probably prevent,
perform­ance of a reasonable parental obligation in child rear-
ing that has caused, or probably will result in, detriment to a
child’s well-being. 3 The best interests and parental unfitness
analyses in the context of termination of parental rights cases
require separate, fact-intensive inquiries, but each examines
essentially the same underlying facts. 4
The Court of Appeals and majority have both expressed
concern that “[a]lmost the entirety of the State’s evidence
related to best interests and unfitness focused on Denzel Sr.’s
incarceration.” It is true that incarceration cannot be the “sole
factual basis” for termination of parental rights. 5 However,
when termination is grounded in a child’s out-of-home place-
ment, as is true in this case, incarceration is not the sole fac-
tual basis for termination. 6 Incarceration does not insulate an
inmate from the termination of his or her parental rights if the
record contains the clear and convincing evidence that would
support the termination of the rights of any other parent. 7
On the contrary, the law implores us to consider the effects
Denzel Sr.’s incarceration and resulting inability to perform
his parental obligations will have on Denzel Jr. We have held
that while incarceration alone cannot be the sole basis for
terminating parental rights, it is a factor to be considered. 8
2
Id.3
Id.4
Id.5
See Neb. Rev. Stat. § 43-292.02(2) (Cum. Supp. 2022).
6
In re Interest of Mateo L. et al., supra note 1.
7
In re Interest of Gabriella H., 289 Neb. 323, 855 N.W.2d 368 (2014).
8
In re Interest of Jahon S., 291 Neb. 97, 864 N.W.2d 228 (2015). See
§ 43-292.02(2)(b).
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Cite as 314 Neb. 631In a case involving termination of parental rights, it is proper
to consider a parent’s inability to perform his or her parental
obligations due to imprisonment. 9 Although incarceration itself
may be involuntary as far as a parent is concerned, the criminal
conduct causing the incarceration is voluntary. 10 Thus, on mul-
tiple occasions, this court has determined that circumstances
including a parent’s confinement have warranted termination
of parental rights. 11
For example, in In re Interest of DeWayne G. & Devon G., 12
we concluded that termination of an incarcerated father’s rights
was in the best interests of his two sons when he had never
cared for them prior to his incarceration and when one son had
been in foster care for more than 4 years and the other for more
than 2 years. We reached this conclusion despite the father’s
testimony that he was scheduled for parole approximately 3
months after the termination hearing. 13
Again, in In re Interest of Gabriella H., 14 we concluded
that the evidence clearly and convincingly established that
termination of a father’s parental rights was in the child’s
best interests. There, the child had never lived with her father
and had continuously lived in a foster home since she was
approximately 3 days old. The child, who was 20 months
old at the time of the termination hearing, last saw her father
when she was less than 3 months old. The father had not been
involved in the child’s life since that time. The caseworker
testified that the father was in a detention facility “‘for
an undetermined amount of time,’” that the child deserved
9
In re Interest of Jahon S., supra note 8.
10
Id.11
See, e.g., id.; In re Interest of Gabriella H., supra note 7; In re Interest of
DeWayne G. & Devon G., 263 Neb. 43, 638 N.W.2d 510 (2002).
12
In re Interest of DeWayne G. & Devon G., supra note 11.
13
Id.14
In re Interest of Gabriella H., supra note 7.
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Cite as 314 Neb. 631permanency sooner rather than later, and that the child
“‘need[ed] to get out of the foster care system.’” 15
And yet again, in In re Interest of Jahon, S., 16 we affirmed
the termination of parental rights of a father who was eligible
for parole within a month following the termination hearing.
In doing so, we stated that the father’s past criminal actions
demonstrated voluntary conduct that prevented him from func-
tioning as a fit parent. 17 We further noted that the father was
incarcerated at the time of the child’s birth, did not intend to
cooperate with the Department of Health and Human Services,
and “‘would make it very difficult’” for that department to
reunify him with his children. 18
Here, the record indicates that Denzel Sr. was convicted of
a charge of possession of a firearm by a prohibited person. He
was sentenced to a term of imprisonment for 8 to 12 years in
the Nebraska Department of Correctional Services. He will
be eligible for parole in November 2023, and his official dis-
charge date is in January 2026.
Denzel Sr.’s past criminal actions demonstrate voluntary
conduct that has prevented him from functioning as a fit
parent. He illegally possessed a firearm after the birth of
Denzel Jr., when he knew that he was potentially the father
of the child and that by doing so, he faced possible incar-
ceration. The only evidence as to his future ability to parent
is that while incarcerated, Denzel Sr. has completed parent-
ing classes and an intensive outpatient program, furthered
his education, and worked toward a work-release program.
Additionally, Denzel Sr. has kept in consistent contact with
Denzel Jr. through weekly phone calls and has shown a desire
to maintain a relationship with his son.
15
Id. at 334-35, 855 N.W.2d at 377.
16
In re Interest of Jahon S., supra note 8.
17
Id.18
Id. at 106, 864 N.W.2d at 235.
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Cite as 314 Neb. 631However, the record also indicates that Denzel Jr. has previ-
ously exhibited behavioral issues such as tantrums, noncompli-
ance, and separation anxiety, which are all common behav-
ioral problems associated with trauma. Denzel Jr.’s behavioral
issues have improved as a result of therapy and being part
of a foster care setting that has provided structure, routine,
consistency, and predictability. Denzel Jr.’s therapist opined
that weekly telephone communications between the child and
Denzel Sr. were a “routine of communication,” but were not a
“parenting routine,” and that an incarcerated individual would
be unable to provide a “parenting routine” because they are not
with their child.
A caseworker for the Department of Health and Human
Services testified that one in-person visit occurred between
Denzel Sr. and Denzel Jr. in November 2021. However, based
on Denzel Jr.’s behavior after that visit, no further in-person
visits were scheduled. Additionally, the facility in which Denzel
Sr. was incarcerated offered a “daddy day” visitation 1 day per
month, and it was the responsibility of the inmate to put his
name on the list. However, each time the caseworker checked
with the facility, Denzel Sr.’s name was not on the list. Thus,
no “daddy day” visits occurred.
Children cannot, and should not, be suspended in foster care
or be made to await uncertain parental maturity. 19 As a result
of decisions made by Denzel Sr., which adversely reflect upon
his parental fitness, Denzel Jr. has been in foster care since
the age of 2, and there is no basis on this record to conclude
that permanency could be achieved in the foreseeable future
if Denzel Sr.’s parental rights remain intact. Denzel Jr. has
never lived with Denzel Sr. Denzel Jr. has languished in fos-
ter care for years as a result of Denzel Sr.’s actions. At the
time of the termination proceedings, Denzel Jr. had been in
foster care for approximately 2 years 2 months. By the time
19
In re Interest of Jahon S., supra note 8.
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Cite as 314 Neb. 631Denzel Sr. will have reached mandatory release from prison,
Denzel Jr. will have been in foster care for 5 years 11 months.
Additionally, there is no basis to conclude that Denzel Sr. will
be prepared to be a parent to Denzel Jr. immediately upon
his release from incarceration. It is not uncommon for par-
ents who have been apart from their children for an extended
period to have supervised visitation and/or stepped-up visita-
tion to ensure the parent/child relationship is reestablished
or, as would be the case here, established. As such, Denzel
Jr. will most likely remain in foster care or guardianship well
into the future.
The juvenile court observed the witnesses and determined
that the evidence clearly and convincingly established that
termination of Denzel Sr.’s parental rights was in Denzel Jr.’s
best interests. Denzel Jr. should not be required to languish
in the court system indefinitely because Denzel Sr. is unable
to perform his parental obligations. Therefore, I would con-
clude that the juvenile court did not err in finding that ter-
mination of Denzel Sr.’s parental rights was in Denzel Jr.’s
best interests.
Heavican, C.J., and Cassel, J., join in this dissent.