In re Interest of Joezia P.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/26/2021 01:07 AM CDT
- 281 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
IN RE INTEREST OF JOEZIA P.
Cite as 30 Neb. App. 281In re Interest of Joezia P., a child
under 18 years of age.
State of Nebraska, appellee, v.
Jeremy H., appellant.
___ N.W.2d ___
Filed October 19, 2021. No. A-21-156.
1. Parental Rights: Due Process: Appeal and Error. Whether a parent
who is incarcerated or otherwise confined in custody has been afforded
procedural due process for a hearing to terminate parental rights is
within the discretion of the trial court, whose decision on appeal will be
upheld in the absence of an abuse of discretion.
2. 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 juvenile court’s findings. When the evidence is in con-
flict, however, an appellate court may give weight to the fact that the
juvenile court observed the witnesses and accepted one version of facts
over another.
3. Appeal and Error. To be considered by an appellate court, an alleged
error must be both specifically assigned and specifically argued in the
brief of the party asserting the error.
4. Parental Rights: Due Process. An incarcerated parent does not need to
be physically present at a hearing to terminate parental rights, so long as
the parent is afforded procedural due process.
5. Due Process: Words and Phrases. The fundamental requirement of
due process is the opportunity to be heard at a meaningful time and in a
meaningful manner.
6. Parental Rights: Due Process. The juvenile court may consider the
following factors when determining whether to allow an incarcerated
parent to be present at a hearing to terminate parental rights: (1) the
anticipated delay, (2) the need for prompt disposition, (3) the length
of time during which the case has been pending, (4) the expense of
- 282 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
IN RE INTEREST OF JOEZIA P.
Cite as 30 Neb. App. 281transportation, (5) the inconvenience or detriment to the parties or wit-
nesses, (6) the potential danger or security risk, (7) the availability of
the parent’s testimony through means other than physical attendance,
and (8) the best interests of the child.
7. Juvenile Courts: Parental Rights. Whether an incarcerated parent was
afforded a meaningful opportunity to participate in the hearing on the
termination of his or her parental rights is a matter left to the discretion
of the juvenile court.
8. Parental Rights: Proof. To terminate parental rights under Neb. Rev.
Stat. § 43-292 (Reissue 2016), the State must prove, by clear and con-
vincing evidence, that one or more of the statutory grounds is satisfied
and that termination is in the best interests of the child.
9. Parental Rights: Abandonment. While incarceration alone is not a
basis for termination of parental rights, a parent’s incarceration may
be considered along with other factors in determining whether parental
rights can be terminated based on neglect.
10. ____: ____. Although incarceration itself may be involuntary, the crimi-
nal conduct causing incarceration is voluntary.
11. ____: ____. In termination of parental rights cases, it is proper to
consider a parent’s inability to perform his or her parental obligations
because of imprisonment, the nature of the crime committed, as well as
the person against whom the criminal act was perpetrated.
12. Parental Rights. When a parent is unable or unwilling to rehabilitate
himself or herself within a reasonable time, the best interests of the child
require termination of parental rights.
13. ____. A child cannot, and should not, be suspended in foster care or be
made to await uncertain parental maturity.
14. Constitutional Law: Parental Rights: Proof. Because a parent has a
constitutionally protected right to raise his or her child, the State must
show that a parent is unfit before terminating parental rights.
15. Parental Rights: Words and Phrases. Parental unfitness means a per-
sonal deficiency or incapacity which has prevented, or will probably
prevent, performance of a reasonable parental obligation in child rear-
ing and which caused, or probably will result in, detriment to a child’s
well-being.
Appeal from the Separate Juvenile Court of Lancaster
County: Roger J. Heideman, Judge. Affirmed.
Angelica W. McClure, of Kotik & McClure Law, for
appellant.
- 283 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
IN RE INTEREST OF JOEZIA P.
Cite as 30 Neb. App. 281Patrick F. Condon, Lancaster County Attorney, and Maureen
E. Lamski for appellee.
Pirtle, Chief Judge, and Moore and Welch, Judges.
Pirtle, Chief Judge.
INTRODUCTION
Jeremy H. appeals from an order of the separate juvenile
court of Lancaster County terminating his parental rights to his
minor child, Joezia P. For the reasons that follow, we affirm.
BACKGROUND
Jeremy is the father of Joezia (born 2017). Jacara P. is the
mother of Joezia. However, Jacara is not part of the appeal
before us and thus will be discussed only as necessary to
address Jeremy’s assigned errors.
In April 2017, Jeremy pled no contest to and was con-
victed of third degree domestic assault in relation to an inci-
dent of domestic violence committed against Jacara on or about
January 9, while Jacara was pregnant with Joezia. In December,
Jeremy pled no contest to and was convicted of third degree
domestic assault in relation to an incident of domestic violence
committed against Jacara on or about November 10, while
Joezia was present in the home.
On March 29, 2019, the State filed a petition alleging
that Joezia was a juvenile as defined by Neb. Rev. Stat.
§ 43-247(3)(a) (Reissue 2016). Count I of the petition alleged
Joezia lacks proper parental care by reason of the faults or
habits of his father, Jeremy, or that Joezia is in a situation
dangerous to life or limb or injurious to his health or mor-
als. Specifically, the petition alleged the following: (1) on or
about November 10, 2017, Jeremy was involved in a domes-
tic confrontation with Joezia’s mother, Jacara, while Joezia
was present; (2) Jeremy has a history of assaultive behavior,
including assaulting Jacara while she was pregnant with Joezia;
(3) Jeremy was incarcerated from November 12, 2017, until
- 284 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
IN RE INTEREST OF JOEZIA P.
Cite as 30 Neb. App. 281September 24, 2018, and Jacara reports that Jeremy contin-
ued to engage in assaultive behavior after his release; (4) the
actions of Jeremy or said situation places Joezia at risk of
harm; and (5) all the events took place in Lancaster County,
Nebraska.
Jeremy was personally served with the petition and summons
on June 13, 2019, while he was incarcerated at the Lancaster
County jail. Jeremy appeared before the juvenile court and
denied the allegations in the petition on June 25. On July 24,
the State filed an amended petition containing substantially
the same allegations as the March 29 petition. After a formal
hearing, the court found the allegations in the amended petition
true by a preponderance of the evidence. The court adjudicated
Joezia as a juvenile under § 43-247(3)(a) on the grounds that
he lacks proper parental care by reason of the fault or habits
of his father, Jeremy, and he is in a situation dangerous to life
or limb or injurious to his health or morals. Thereafter, on July
25, Jeremy pled no contest to two unrelated criminal charges
and was sentenced to a total of 42 months of incarceration.
On September 6, 2019, the court placed Joezia in the tem-
porary legal custody of the Nebraska Department of Health
and Human Services (DHHS) and initially permitted Joezia
to remain physically placed in the home of Jacara. The court
ordered Jeremy to participate in supervised visitation with
Joezia, to maintain a legal means of support for himself and
Joezia, to maintain a safe and stable home free of domestic
violence, to participate in random drug testing, and to com-
plete a men’s domestic violence class for batterers. The court
ordered DHHS to provide any treatment or services recom-
mended by Jeremy’s evaluations. Joezia was removed from
Jacara’s home on September 25, 2019, and has been placed in
foster care continuously since.
In December 2019, following a hearing for review of dis-
position on the amended petition, the court entered an order
of review finding that Jeremy had made poor progress toward
alleviating the causes of the court’s adjudication and Joezia’s
- 285 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
IN RE INTEREST OF JOEZIA P.
Cite as 30 Neb. App. 281out-of-home placement. Accordingly, the court ordered Joezia
to remain in the temporary legal custody of DHHS and to
remain physically placed in a kinship foster home. The court
reiterated its prior orders directed at the parties and also
ordered Jeremy to participate in individual counseling to
address long-term issues with anger management, violence,
and criminal thinking.
In February 2020, the court once again entered an order of
review finding that Jeremy had made poor progress toward
alleviating the causes of the court’s adjudication and Joezia’s
out-of-home placement. The court ordered Joezia to remain in
the temporary legal custody of DHHS and to remain physically
placed in a kinship foster home. In addition to reiterating its
previous orders, the court ordered Jeremy to participate in child
parent psychotherapy (CPP) with Joezia.
In May 2020, the court entered an order of review again
finding Jeremy had made poor progress toward alleviating the
causes of the court’s adjudication and Joezia’s out-of-home
placement. The court sustained a motion to eliminate the
requirement of reasonable efforts to preserve and reunify the
family on the grounds that Jeremy previously had his paren-
tal rights involuntarily terminated with respect to a sibling of
Joezia. See Neb. Rev. Stat. § 43-283.01(4)(c) (Reissue 2016).
On June 23, 2020, the State filed a motion to terminate
Jeremy’s parental rights to Joezia on the grounds that Jeremy
has substantially and continuously or repeatedly neglected and
refused to give necessary parental care and protection and that
termination of Jeremy’s parental rights is in the best interests
of Joezia. On June 24, the court entered yet another order of
review finding Jeremy had made poor progress toward alleviat-
ing the causes of the court’s adjudication and Joezia’s out-of-
home placement. The court also approved a permanency plan
of adoption for Joezia.
On July 8, 2020, the State filed an amended motion to termi-
nate Jeremy’s parental rights to correct the spelling of Joezia’s
name in the petition. Jeremy filed a written denial of the
- 286 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
IN RE INTEREST OF JOEZIA P.
Cite as 30 Neb. App. 281allegations in the amended motion for termination of parental
rights on July 14. The court scheduled a formal hearing on the
amended motion for November 17.
On October 8, 2020, the State charged Jeremy with one count
of escape when under arrest on a felony charge in violation of
Neb. Rev. Stat. § 28-912(5)(a) (Reissue 2016). On October 13,
the State filed an amended information charging Jeremy with
one count of attempted escape. Jeremy pled no contest to the
charge in the amended information and was sentenced to an
additional 18 months of incarceration, extending his expected
release date from March 2021 to December 2021.
On December 9, 2020, the court entered an order of review
finding that Jeremy had made “no progress” toward alleviat-
ing the causes of the court’s adjudication and Joezia’s out-of-
home placement.
Hearing on November 17, 2020
Prior to the November 17, 2020, hearing, all the parties
stipulated to the hearing’s being conducted by videoconference
in light of the COVID-19 pandemic. Jeremy was incarcerated
at the Tecumseh State Correctional Institution in Tecumseh,
Nebraska, and due to limitations at that facility, Jeremy attended
the hearing telephonically rather than by video­conference.
Jeremy objected to the hearing on the grounds that he could
not see the witnesses or communicate with counsel using the
private “chat” function. As Jeremy was no longer willing to
stipulate to a trial by videoconference, the court continued the
matter to the December trial term. In doing so, the court noted
the matter had already been pending “for a significant amount
of time.” The court also referred to case law suggesting the
formal hearing could proceed without Jeremy’s presence upon
proper procedural safeguards.
Hearing on Jeremy’s Motion to Continue
On December 3, 2020, the court entered an order for trans-
port to allow Jeremy to be physically present at the trial
scheduled for December 18. However, the court vacated the
- 287 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
IN RE INTEREST OF JOEZIA P.
Cite as 30 Neb. App. 281order for transport on December 11, because the Tecumseh
State Correctional Institution advised the court that Jeremy was
under quarantine and could not be transported. On December
14, Jeremy filed a motion to continue the trial on the grounds
that his quarantine would prevent him from attending the trial
by any means and prevent him from communicating with
counsel.
After a hearing on the matter, the court overruled Jeremy’s
motion to continue, noting that the trial had already been con-
tinued once. The court directed the parties to In re Interest of
L.V., 240 Neb. 404, 482 N.W.2d 250 (1992), “which indicates
in these motions to terminate parental rights, the presence of
the parent is not necessary so long as their procedural due
process rights can be afforded.” The court explained the State
would present its case as scheduled, after which the matter
would be continued to provide an opportunity for Jeremy to
review the transcript and consult with counsel prior to pre-
senting his case. The court intimated this procedure would
adequately protect Jeremy’s due process rights and eliminate
the need for transportation during the COVID-19 pandemic.
Formal Hearing Day One:
December 18, 2020
The juvenile court convened for a formal hearing on the
amended motion for termination of parental rights on December
18, 2020. Jeremy was represented by counsel, but he was not
present at the hearing. The State called four witnesses, includ-
ing the owner of Associates in Counseling and Treatment
(ACT), Jeremy’s case manager from the period of time when
he was incarcerated at the Community Corrections Center-
Lincoln (CCCL), the DHHS case manager assigned to the case
during the period of time after March 16, and the therapist
who provided CPP services to Joezia from October 2019 to
October 2020.
Joezia’s therapist testified that Joezia first attended CPP
in October 2019 with his foster parent at that time. Joezia
cried during the entire session and refused to play with the
- 288 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
IN RE INTEREST OF JOEZIA P.
Cite as 30 Neb. App. 281toys made available to him. Joezia attended a second session in
November with the same foster parent. At the second session,
Joezia played independently with some toys, but he remained
nonverbal and once again cried a lot. The foster parent also
reported to the therapist that Joezia “just cried all the time”
and was physically aggressive with the foster parent’s bio-
logical child. The therapist testified that young children who
experience domestic violence often struggle to “regulate” their
emotional responses. She also testified to the importance of
stability and permanency for a child of Joezia’s age.
Joezia attended a third CPP session in January 2020, after
being placed in a new foster home. The therapist testified that
Joezia “was absolutely a different kid” at the January session.
Joezia played with toys and appeared happy and joyful. He
was more interactive and able to “self-regulate” better than
during the previous sessions. The therapist testified that Joezia
and the new foster parent successfully completed the full
course of CPP in October 2020. At that point, Joezia was “very
bonded and attached” to the foster parent, and he was able to
self-regulate.
The therapist testified that she attempted to schedule a CPP
parent assessment with Jeremy; however, he failed to attend the
session due to a “transportation glitch.” The record reflects that
a CPP appointment was made for March 18, 2020, but Jeremy
was not made aware of the appointment and thus failed to
attend. While the therapist was not able to observe Jeremy with
Joezia, she testified that based on Joezia’s age and the length
of time since Jeremy’s last contact with him, Joezia “probably
does not have any memory” of Jeremy.
The evidence adduced at the hearing revealed that Jeremy
enrolled in a 30-week batterer’s intervention class at ACT on
July 20, 2020. Jeremy completed one intake session and two
weekly classes prior to being terminated from the class for
leaving the property without permission and verbally abus-
ing his case manager at CCCL. Jeremy’s case manager at
CCCL testified that Jeremy’s electronic monitor showed him
- 289 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
IN RE INTEREST OF JOEZIA P.
Cite as 30 Neb. App. 281leaving ACT when he was supposed to be in the class. The
owner of ACT testified that Jeremy would not be allowed to
re-enroll in the ACT batterer’s intervention class and would
instead need to complete a 36-week program through a differ-
ent facility to comply with the court’s order.
Jeremy’s case manager at CCCL also testified that Jeremy
attempted to obtain free mental health services at a facility called
CenterPointe. The case manager explained that CenterPointe
offers free mental health counseling on a first-come-first-serve
basis. Jeremy was allowed to seek services at CenterPointe on
three or four occasions, but the case manager testified that he
never actually obtained services due to lack of availability. On
one occasion, after being transported to CenterPointe, Jeremy
cut his electronic monitor and fled from custody. Jeremy was
eventually found, convicted of attempted escape, and sentenced
to an additional 18 months of incarceration.
The DHHS case manager testified that Jeremy sent Joezia
a “doll-type toy” in August 2020. Aside from that gift, Jeremy
had not had any contact with Joezia since May or June 2019
due to Jeremy’s incarceration. The case manager ultimately
expressed the opinion of DHHS that termination of Jeremy’s
parental rights is in Joezia’s best interests. In expressing this
position, the case manager noted Joezia’s behavioral challenges
since being placed in foster care, Jeremy’s lengthy criminal
history, and Jeremy’s continued incarceration.
When the State rested its case, the court reiterated the
intended procedure to recess until Jeremy had an opportunity
to review a transcript of the State’s evidence and consult with
counsel before proceeding. The court indicated it would also
provide Jeremy’s counsel with a digital media file of the evi-
dence “in the event” that Jeremy had a computer available to
him. Counsel noted that she had a conversation with Jeremy
prior to the hearing in which he advised that he did not have
access to a computer. Accordingly, counsel stated that “we will
just wait for the transcript.”
- 290 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
IN RE INTEREST OF JOEZIA P.
Cite as 30 Neb. App. 281Formal Hearing Day Two:
January 27, 2021
The juvenile court convened for a second hearing on the
amended motion for termination of parental rights on January
27, 2021. Jeremy was once again represented by counsel, but he
was not initially present at the hearing. Jeremy later appeared
via videoconference for approximately 30 minutes of the hear-
ing. Counsel for Jeremy called three witnesses, including the
DHHS case manager assigned to the case during the period of
time before March 16, 2020; the Licensed Independent Mental
Health Practitioner (LIMHP), who conducted a co-occurring
evaluation on Jeremy and provided individual therapy services
to Jeremy from December 2019 to March 2020; and Joezia’s
foster parent from September 25 to December 2, 2019.
The DHHS case manager testified that she arranged for a
co-occurring evaluation of Jeremy to be completed by a LIMHP.
The LIMHP testified that she completed the ­co-occurring
evaluation in August 2019. She diagnosed Jeremy with “early
remission . . . prior amphetamine dependence” and “antisocial
personality disorder.” Based on the evaluation, the LIMHP
recommended that Jeremy participate in intensive individual
therapy, complete “domestic violence classes,” and receive a
psychiatric medication assessment.
The LIMHP testified that she provided twice-weekly indi-
vidual therapy services to Jeremy beginning in December
2019. She described Jeremy as being “participative and will-
ing” to cooperate with individual therapy. In March 2020,
the LIMHP ceased providing in-person therapy services for
personal health reasons related to the COVID-19 pandemic. At
that time, Jeremy was incarcerated at CCCL, and Jeremy’s case
manager at CCCL testified that CCCL was unable to facilitate
virtual services when Jeremy was at the facility.
After all other witnesses had testified, the court asked coun-
sel for Jeremy whether Jeremy intended to testify. Counsel
stated, “No, Your honor. It’s my understanding that [Jeremy]
did not want to testify today . . . unless he had changed
- 291 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
IN RE INTEREST OF JOEZIA P.
Cite as 30 Neb. App. 281his mind from when I had spoken with him before.” Counsel
added, “I have not had an opportunity to discuss any of
the testimony that happened today or whether there was any
­follow-up that [Jeremy] wanted from today’s testimony.” The
court then stated the following:
In fairness to [Jeremy], given these are allegations as to
him, I think we had also set additional time on Friday,
had we not, for conclusion of the matter? If we resume
the matter at that point in time, that will afford [counsel]
the opportunity to at least contact [Jeremy], determine if
he wishes to testify. My understanding is the video ability
is limited but he may have more of an extended ability
to appear by telephone, so I think we could accommo-
date that.
Formal Hearing Day Three:
January 29, 2021
The court reconvened on January 29, 2021. Jeremy was
represented by counsel but was not present. The court asked
counsel for Jeremy whether she had any additional evidence, to
which question she responded as follows: “No, Your Honor. I
would state that I did have an opportunity to discuss the matter
with [Jeremy] and he has elected not to testify in regards to this
case. So with that information, we would rest.”
The court heard closing arguments and took the matter under
advisement. On January 29, 2021, the court entered an order
terminating Jeremy’s parental rights to Joezia. The court found
that Jeremy
has failed to put himself in a position to parent his child
throughout the entirety of the case, and with knowledge
of his child being in foster care and a pending motion to
terminate his parental rights, chose to engage in further
criminal activity thereby making himself unavailable to
parent his child for an extended period of incarceration.
The court noted Jeremy was afforded an opportunity to work
in the community and engage in court-ordered services, but
- 292 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
IN RE INTEREST OF JOEZIA P.
Cite as 30 Neb. App. 281“he failed to refrain from criminal acts resulting in his incar-
ceration and continued removal from his child.” On these
grounds, the court found that Jeremy had engaged in neglect
under Neb. Rev. Stat. § 43-292(2) (Reissue 2016).
The court went on to find that termination of Jeremy’s
parental rights was in Joezia’s best interests in light of Joezia’s
need for permanency and Jeremy’s relative inability to provide
a stable and secure environment. Based on his history of incar-
ceration and inability to provide a basic means of support for
Joezia, the court found that the State had rebutted the presump-
tion that Jeremy is a fit parent.
ASSIGNMENTS OF ERROR
Jeremy assigns that the juvenile court erred in (1) over­
ruling Jeremy’s motion to transport, (2) finding that the State
proved by clear and convincing evidence that Jeremy substan-
tially and continuously or repeatedly neglected and refused
to give Joezia necessary parental care and protection, and (3)
finding that the State proved by clear and convincing evidence
that termination of Jeremy’s parental rights was in Joezia’s
best interests.
STANDARD OF REVIEW
[1] Whether a parent who is incarcerated or otherwise con-
fined in custody has been afforded procedural due process for
a hearing to terminate parental rights is within the discretion of
the trial court, whose decision on appeal will be upheld in the
absence of an abuse of discretion. In re Interest of Taeson D.,
305 Neb. 279, 939 N.W.2d 832 (2020).
[2] 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
juvenile court observed the witnesses and accepted one version
of facts over another. In re Interest of Becka P. et al., 27 Neb.
App. 489, 933 N.W.2d 873 (2019).
- 293 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
IN RE INTEREST OF JOEZIA P.
Cite as 30 Neb. App. 281ANALYSIS
Motion to Transport
[3] In his first assignment of error, Jeremy asserts “[t]he
juvenile court erred in overruling [his] motion to transport
Jeremy to the trial in this matter thus not allowing him to
meaningfully participate in his defense.” However, in the body
of his argument on appeal, Jeremy asserts multiple due process
violations, including the following: (1) the decision to over-
rule Jeremy’s motion to continue filed on December 14, 2020;
(2) the decision to overrule the motion to transport filed on
January 21, 2021; (3) the inability of counsel to communicate
with Jeremy “in real time during the trial”; (4) the failure to
provide Jeremy with a transcript of the evidence presented on
his behalf at the second hearing on January 27; and (5) the
failure to provide “an unlimited amount of time” for Jeremy to
decide whether to testify in his own defense. Brief for appel-
lant at 15. The only alleged error which was both specifically
assigned and specifically argued was with regard to the juve-
nile court’s overruling Jeremy’s motion to transport filed on
January 21. To be considered by an appellate court, an alleged
error must be both specifically assigned and specifically argued
in the brief of the party asserting the error. Fetherkile v.
Fetherkile, 299 Neb. 76, 907 N.W.2d 275 (2018). Accordingly,
we do not address the alleged errors that were argued but
not assigned.
[4,5] It is well settled in Nebraska that an incarcerated parent
does not need to be physically present at a hearing to terminate
parental rights, so long as the parent is afforded procedural due
process. See, In re Interest of Taeson D., supra; In re Interest of
L.V., 240 Neb. 404, 482 N.W.2d 250 (1992). The fundamental
requirement of due process is the opportunity to be heard at a
meaningful time and in a meaningful manner. Id.[6] The juvenile court may consider the following factors
when determining whether to allow an incarcerated parent to
be present at a hearing to terminate parental rights: (1) the
anticipated delay, (2) the need for prompt disposition, (3) the
- 294 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
IN RE INTEREST OF JOEZIA P.
Cite as 30 Neb. App. 281length of time during which the case has been pending, (4) the
expense of transportation, (5) the inconvenience or detriment
to the parties or witnesses, (6) the potential danger or secu-
rity risk, (7) the availability of the parent’s testimony through
means other than physical attendance, and (8) the best interests
of the child. See In re Interest of L.V., supra. Whether a parent
who is incarcerated or otherwise confined in custody has been
afforded procedural due process is a matter within the discre-
tion of the juvenile court whose decision will be upheld on
appeal in the absence of an abuse of discretion. In re Interest of
Taeson D., 305 Neb. 279, 939 N.W.2d 832 (2020).
In In re Interest of Taeson D., a parent was incarcerated
out-of-state and did not appear in any manner for a hearing
on a motion to terminate his parental rights. The parent was
represented by counsel throughout the proceedings and had an
opportunity to consult with counsel prior to the hearing. On
appeal, the parent argued he was entitled to a telephonic or
video hearing and the failure to provide such a hearing violated
due process.
The court observed that some jurisdictions
require juvenile courts to either give incarcerated parents
the opportunity to participate by telephone in the entire
hearing . . . or offer an alternative procedure by which the
incarcerated parent may review a transcript of the record
of the evidence presented against him or her and testify
later at a bifurcated hearing.
Id. at 286, 939 N.W.2d at 837-38 (emphasis supplied). However,
the court also noted the juvenile court’s “relative inability to
compel an out-of-state correctional facility to allow an incar-
cerated parent to participate in an entire hearing.” Id. at 286,
939 N.W.2d at 838. Thus, the court declined to adopt a rigid
requirement of telephonic participation and decided instead to
“leave it to the juvenile courts’ discretion to determine how an
incarcerated parent may meaningfully participate in the hearing
on the termination of his or her parental rights consistent with
due process.” Id.
- 295 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
IN RE INTEREST OF JOEZIA P.
Cite as 30 Neb. App. 281In this case, Jeremy was aware that Joezia was adjudicated
as a juvenile under § 43-247(3)(a). Jeremy was aware of the
pending motion to terminate his parental rights and filed a
written denial to the allegations therein. Jeremy was repre-
sented by counsel throughout the proceedings, and the juvenile
court held a bifurcated hearing, allowing Jeremy to review a
transcript of the evidence against him and consult with counsel
before presenting his case. After the close of all the evidence,
the court continued the matter for a third hearing to afford
Jeremy additional time to consult with counsel prior to resting
his case.
[7] Jeremy argues the juvenile court’s decision to overrule
his motion to transport violated due process because there
was no hearing on the matter, and “[t]here is no evidence in
the record as to why the Motion to transport by counsel for
Jeremy was overruled.” Brief for appellant at 24. However, the
court clearly explained its plan to hold a bifurcated hearing to
permit Jeremy an opportunity to review the evidence against
him and consult with counsel before presenting his case. The
court stated this procedure was designed to protect Jeremy’s
due process rights and “eliminate the issue of transporta-
tion during the COVID-19 pandemic.” Whether Jeremy was
afforded a meaningful opportunity to participate in the hearing
is a matter left to the discretion of the juvenile court. See In re
Interest of Taeson D., supra. In light of the significant amount
of time during which the case had been pending, the potential
inconvenience to the parties and witnesses of requiring trans-
port, and the heightened security risk related to the COVID-19
pandemic, it was not an abuse of discretion for the court to
overrule Jeremy’s motion to transport.
Termination of Parental Rights
[8] To terminate parental rights under § 43-292, the State
must prove, by clear and convincing evidence, that one or more
of the statutory grounds is satisfied and that termination is in
the best interests of the child. See In re Interest of Becka P.
- 296 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
IN RE INTEREST OF JOEZIA P.
Cite as 30 Neb. App. 281et al., 27 Neb. App. 489, 933 N.W.2d 873 (2019). An appellate
court reviews juvenile cases de novo on the record; however,
an appellate court may give weight to the fact that the juvenile
court observed the witnesses and accepted one version of facts
over another. See id.Jeremy assigns that the juvenile court erred in finding clear
and convincing evidence of statutory grounds to terminate his
parental rights under § 43-292(2). This section permits termi-
nation of parental rights 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.
[9-11] While incarceration alone is not a basis for termina-
tion of parental rights, a parent’s incarceration may be consid-
ered along with other factors in determining whether parental
rights can be terminated based on neglect. In re Interest of
Kalie W., 258 Neb. 46, 601 N.W.2d 753 (1999); In re Interest
of L.V., 240 Neb. 404, 482 N.W.2d 250 (1992). “We have often
noted that although incarceration itself may be involuntary as
far as a parent is concerned, the criminal conduct causing the
incarceration is voluntary.” In re Interest of Kalie W., 258 Neb.
at 50, 601 N.W.2d at 756. In In re Interest of Kalie W., the
court declared “it is proper to consider a parent’s inability to
perform his parental obligations because of imprisonment, the
nature of the crime committed, as well as the person against
whom the criminal act was perpetrated.” 258 Neb. at 51, 601
N.W.2d at 757 (internal quotation marks omitted).
The record reflects that Jeremy was continuously incarcer-
ated from November 2017 to September 2018 in relation to an
incident of domestic violence between Jeremy and Jacara while
Joezia was present in the home. Jacara reported that Jeremy
continued to engage in assaultive behavior after his release,
which behavior eventually led to Joezia’s being adjudicated
under § 43-247(3)(a) as a juvenile who lacks proper parental
care through the fault or habits of Jeremy.
- 297 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
IN RE INTEREST OF JOEZIA P.
Cite as 30 Neb. App. 281Jeremy was subsequently incarcerated from June 2019 to
August 2020. In August 2020, Jeremy escaped from custody
while on pass to obtain court-ordered mental health services.
Jeremy was eventually found and convicted of additional
criminal charges related to his escape, resulting in an addi-
tional 18 months of incarceration. Jeremy was aware that
Joezia was adjudicated under § 43-247(3)(a) and placed in
foster care. Jeremy was also aware of the pending petition to
terminate his parental rights. Nevertheless, Jeremy voluntarily
engaged in further criminal conduct that resulted in an addi-
tional term of incarceration, thereby extending the period of
time during which Jeremy would be unable to perform paren-
tal obligations.
Jeremy points out that he actively pursued court-ordered
serv­ices but was prevented from completing them through
no fault of his own. It is true that precautions related to
the COVID-19 pandemic and limitations at CCCL prevented
Jeremy from obtaining a number of court-ordered services that
were only offered online at the time. However, when Jeremy
was allowed to seek in-person services in the community, he
cut his electronic monitor and escaped from custody. Jeremy
also argues he was terminated from the ACT batterer’s inter-
vention class due to “a misunderstanding.” Brief for appellant
at 26. However, the evidence adduced at the hearings indi-
cates that Jeremy was terminated from the class for leaving
the building without permission and verbally abusing his case
manager at CCCL. Having been terminated from the 30-week
class, Jeremy would have needed to complete the longer
36-week class to comply with the court’s order.
Based on our de novo review, we find clear and convinc-
ing evidence that Jeremy has substantially and continuously or
repeatedly neglected Joezia and has refused to provide neces-
sary parental care and protection. Accordingly, we conclude
that the juvenile court did not err in finding that the State
proved by clear and convincing evidence that Jeremy’s parental
rights may be terminated under § 43-292(2).
- 298 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
IN RE INTEREST OF JOEZIA P.
Cite as 30 Neb. App. 281Jeremy next assigns that the juvenile court erred in finding
clear and convincing evidence that termination of Jeremy’s
parental rights was in Joezia’s best interest. The court also
found the State met its burden to rebut the presumption that
Jeremy is a fit parent.
[12-15] When a parent is unable or unwilling to rehabilitate
himself or herself within a reasonable time, the best interests
of the child require termination of parental rights. In re Interest
of Ryder J., 283 Neb. 318, 809 N.W.2d 255 (2012). Moreover,
a child cannot, and should not, be suspended in foster care or
be made to await uncertain parental maturity. In re Interest
of Jahon S., 291 Neb. 97, 864 N.W.2d 228 (2015). Because
a parent has a constitutionally protected right to raise his or
her child, the State must show that a parent is unfit before
terminating parental rights. See id. Parental unfitness means a
personal deficiency or incapacity which has prevented, or will
probably prevent, performance of a reasonable parental obliga-
tion in child rearing and which caused, or probably will result
in, detriment to a child’s well-being. Id.In this case, Joezia was placed into foster care in September
2019. Joezia’s therapist testified that Joezia was nonverbal and
struggled to regulate his emotions at CPP sessions that took
place in October and November 2019. The therapist testified
that this behavior was consistent with children who have expe-
rienced domestic violence. Joezia was placed with a new foster
family in December 2019, and by January 2020, Joezia had
made substantial improvement. The therapist testified to the
importance of permanency and stability in Joezia’s life, which
was demonstrated by Joezia’s improvement once placed in a
stable environment.
Jeremy failed to provide a basic means of support and stable
housing. The therapist indicated that Joezia likely would have
no memory of Jeremy due to Joezia’s age and the length of
time since Jeremy had contact with Joezia. Throughout the
proceedings, Jeremy failed to rehabilitate himself and engaged
- 299 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
IN RE INTEREST OF JOEZIA P.
Cite as 30 Neb. App. 281in further criminal conduct that resulted in his continued
removal from Joezia.
Based on our de novo review, we find clear and convinc-
ing evidence that termination of Jeremy’s parental rights is in
Joezia’s best interests. Accordingly, we conclude that the juve-
nile court did not err in finding that the State proved by clear
and convincing evidence that termination of Jeremy’s parental
rights was in Joezia’s best interests.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
juvenile court terminating Jeremy’s parental rights to Joezia.
Affirmed.