SUMMARY: The State’s amending the petition to add the 15/22 ground for termination immediately prior to trial was not improper where the father alleged no prejudice he suffered as a result. Termination of the father’s parental rights was improper because there was not sufficient evidence that showed how his alcohol relapse affected his ability to parent, and there was no evidence showing what he did after the relapse or whether it was an isolated incident or a pattern of behavior.
Jacob, DOB 8/03, and Madison, Megan and Morgan, DOB 10/04, were removed from the parents’ home in October 2009 after a domestic assault in which the father, Brett, was arrested. The children revealed that the parents often fought in front of them and consumed alcohol. In January 2010, Brett admitted the allegations and the children were adjudicated pursuant to 43-247(3)(a). At the disposition hearing in February 2010, Brett was ordered to complete inpatient treatment and a DV program. By the time of a review hearing in May 2010, Brett was complying with all recommendations and visits were relaxed to “monitored.” On September 10, the children were returned to Brett’s home. Shortly after a review hearing in December 2010, the children were removed after DHHS discovered Brett was consuming alcohol. After the removal, Brett was allowed to visit with the children every other week. On April 22, 2011, the State filed a motion to terminate Brett’s parental rights. Brett initially indicated he wanted to relinquish his rights and DHHS stopped visits. However, by December 2011, Brett had decided he wanted to attempt to reunify but DHHS did not reinstate visits. At the beginning of trial on March 29, 2012, the State requested to amend the petition to include the 15 out of 22 months out of home ground after the court asked for clarification about whether that ground was included, which the court then granted. After trial, the court terminated Brett’s parental rights to all children. Brett appealed.
The Nebraska Court of Appeals reversed the termination of parental rights. It first concluded that the court did not err in allowing the additional ground for termination because Brett did not allege any prejudice as a result of the amendment, noting Brett was given additional time to prepare for the trial and the length of time in out of home care was very relevant to the case and should have been anticipated. It also rejected Brett’s argument that the court should have recused itself as the situation did not call into question the court’s impartiality. As to the termination, after finding the children were out of home for 15 of the past 22 months the Court of Appeals noted Brett’s progress initially in the case which was then followed by an alcohol relapse. It noted that Brett had initially agreed to relinquish because he thought he would be able to maintain relationships with the children but changed his mind when he realized that would not be a certainty. The court concluded that there was no evidence establishing how Brett’s relapse affected his ability to parent, what Brett did after the relapse or whether it was an isolated event or a pattern, and therefore there was insufficient evidence to establish termination was in the children’s best interests.