State v. Samuel T. (In re Interest of Taeson D.)
| Decision Date | 13 March 2020 |
| Docket Number | No. S-19-382.,S-19-382. |
| Citation | 305 Neb. 279,939 N.W.2d 832 |
| Parties | IN RE Interest of TAESON D., a child under 18 years of age. State of Nebraska, appellee, v. Samuel T., appellant. |
| Court | Nebraska Supreme Court |
Troy J. Bird, of Hoppe Law Firm, L.L.C., for appellant.
Pat Condon, Lancaster County Attorney, Mary Norrie, and Danielle M. Kerr, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
Samuel T. appeals the termination of his parental rights to his minor child, Taeson D. During the pendency of these proceedings, Samuel became incarcerated in South Carolina, serving a 30-year sentence. Following a termination hearing at which Samuel was represented by counsel but not present, the separate juvenile court of Lancaster County determined that (1) Samuel substantially neglected to give Taeson necessary parental care; (2) Taeson was a juvenile as described by Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016) and reasonable efforts have failed to correct conditions; (3) Taeson was in an out-of-home placement for 15 or more months of the most recent 22 months; (4) it was in the best interests of Taeson to terminate Samuel’s parental rights; and (5) Samuel was unfit to parent Taeson. The juvenile court terminated Samuel’s parental rights to Taeson on three statutory bases as more fully described below. Samuel appeals. He claims that his procedural due process rights were violated and that the juvenile court erred when it terminated his parental rights to Taeson. We affirm.
Taeson was born in July 2017. The Nebraska Department of Health and Human Services (DHHS) took custody of Taeson at the hospital shortly after his birth because his biological mother had admitted to methamphetamine use during pregnancy and the meconium fluid had tested positive for methamphetamine. Taeson’s biological mother relinquished her parental rights in late 2018. Taeson was placed with Lachrisha T., Samuel’s adult daughter, who has cared for Taeson since birth.
Samuel was present at the hospital for Taeson’s birth. Samuel and the child apparently had almost no further contact after this point. Samuel became incarcerated in November 2017 on what the record suggests was a drug-related offense.
In December 2017, a paternity test showed that Samuel was the biological father of Taeson. Candace Sturgeon, a caseworker with DHHS, unsuccessfully attempted to contact Samuel through Lachrisha and other means. Sturgeon eventually located Samuel through a DHHS computer system search and visited him at the jail in Saline County, Nebraska, in June 2018. She testified at the termination hearing that she informed Samuel that the result of the paternity test he had taken showed he was Taeson’s biological father. According to Sturgeon, Samuel stated that he had assumed he probably was Taeson’s father, that he was aware Taeson was living with Lachrisha, and that he had personally recommended that Taeson be placed with her after the child was removed from his biological mother’s care.
According to Sturgeon, Samuel had indicated he supported Lachrisha’s potentially adopting Taeson. According to Sturgeon, Samuel stated "something to the effect of well I obviously am not an option since I'm going to be in prison for 30 years, so I understand that." Sturgeon testified that she advised Samuel that he needed to keep her updated on his whereabouts, because it would be very difficult for her to know where he was if he was transferred.
Samuel asked Lachrisha to bring the child to county jail one time, but before arrangements could be made, Samuel was transferred to federal prison in South Carolina on a 30-year sentence. After the transfer, Samuel did not communicate with Sturgeon or DHHS to update them on his whereabouts or to contact Taeson. Sturgeon testified that she made largely unsuccessful efforts to contact Samuel multiple ways at least once a month.
Turner attended a paternity hearing on June 6, 2018, at which he was declared Taeson’s legal father. In October 2018, the State moved to terminate Samuel’s and the biological mother’s parental rights. The motion to terminate alleged three grounds under Neb. Rev. Stat. § 43-292 (Reissue 2016), which states:
On November 19, 2018, Samuel was served in prison in South Carolina with a copy of the motion to terminate his parental rights and a summons to appear before the court for a hearing on the matter. In December, Samuel denied the allegations in the motion to terminate and the termination hearing was continued.
In December 2018, Sturgeon left a message with a caseworker at the South Carolina prison and Samuel called her back. During that telephone call, Sturgeon explained to Samuel that the State was moving to terminate his parental rights. Samuel stated that he did not want his parental rights terminated and that he no longer approved of Taeson’s being placed with Lachrisha. He explained that Lachrisha was not "put[ting] any money on his books" and had stopped communicating with him. Samuel stated that he hoped he would be successful in the appeal of his criminal conviction and that his intent was to win his appeal and parent Taeson.
Sturgeon testified that Samuel did not make further contact with DHHS after December 2018. At the time of the termination hearing in March 2019, Samuel had been in prison in South Carolina for 8 months. Taken as a whole, the testimony showed that Samuel had not attempted to be involved in Taeson’s life either before or after his incarceration. Samuel had not requested photographs of Taeson and had not contacted him after his birth. Sturgeon explained that the service DHHS typically offers to parents who are incarcerated is visitation with the child; however, it is very difficult to offer services if someone is placed out of state and it is impossible to offer services to someone that DHHS is unable to contact. She testified that, in her view, Samuel’s parental rights should be terminated even if he wins his appeal on his criminal case because it is unclear how long it would take him to work through a case with DHHS and ensure he could care for a child.
The termination hearing was held on March 13, 2019. The child was represented by a guardian ad litem, and counsel appeared for the State.
Samuel was represented throughout the termination hearing by an attorney. Samuel did not appear physically or telephonically. The juvenile court recognized that Samuel denied the allegations in the motion to terminate. Samuel’s counsel was asked to address Samuel’s nonappearance, and Samuel’s counsel stated as follows:
Well, Your Honor, he’s incarcerated in North [sic] Carolina penitentiary system. I've had communication with him be [sic] email on and off throughout the last six weeks or so. I know that he does object to what — having his rights terminated. I've also tried to communicate with him regarding relinquishment, which he’s been unable to or unwilling to sign a relinquishment, and so you know, I can't imagine the Court is going to continue this out for 30 years 'til he can put himself in a place where he can parent, so I see no other alternative but moving forward today.
Following the hearing, the juvenile court filed an order which found that the allegations of the motion for termination of parental rights were true by clear and convincing evidence. The court enumerated its findings that (1) regarding § 43-292(2), Samuel substantially neglected to give Taeson necessary parental care; (2) regarding § 43-292(6), Taeson was a juvenile as described by § 43-247(3)(a) and reasonable efforts have failed to correct conditions; (3) regarding § 43-292(7), Taeson was in an out-of-home placement for 15 or more months of the most recent 22 months; (4) it was in the best interests of Taeson to terminate Samuel’s parental rights; and (5) Samuel was unfit to parent Taeson now and in the future. The juvenile court terminated Samuel’s parental rights to Taeson.
Samuel appeals.
On appeal, Samuel claims, summarized and restated, that (1) he was denied procedural due process rights at the termination hearing and (2) the juvenile court erred when it terminated his parental rights because DHHS had failed to make reasonable efforts to reunite him and Taeson.
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. See In re Interest of Mainor T. & Estela T. , 267 Neb. 232, 674 N.W.2d 442 (2004).
Juvenile cases are reviewed de novo on the record, and an appellate court is required to reach a conclusion independent of the juvenile court’s findings. See In re Interest of Zoie H. , 304 Neb. 868, 937 N.W.2d 801 (2020).
Samuel, who was incarcerated in South Carolina, had his parental rights to Taeson terminated at a hearing at which he was represented by counsel; he was not physically present nor did he participate...
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