In re Interest of Xavier H.

Caselaw Number
274 Neb. 331
Filed On


SUMMARY: The Nebraska Supreme Court overturned a Court of Appeals decision upholding termination of a mother’s rights even though the medical condition that had prompted the initial adjudication had resolved. The Court stated that the fact a child has been in out of home placement for 15 of the most recent 22 months does not demonstrate parental unfitness and still leaves in place the rebuttable presumption that reunification in the child’s best interests. That presumption is overcome only by demonstrating parental unfitness.

Xavier was born on May 12, 2004. Soon after Xavier was born, he was placed on a nasogastric feeding tube to treat a food allergy. Xavier’s mother, Katianne, began suffering from postpartum depression, which she did not immediately seeking professional help. As Katianne’s depression worsened, she contacted DHHS for assistance, and eventually DHHS and Katianne agreed to a 1 month voluntary placement outside the home. Xavier’s condition improved in foster care. However, to resolve a few remaining issues DHHS asked Katianne and Xavier’s father to sign a voluntary extension of placement, which the father refused. Thus, Xavier was adjudicated “to be under the jurisdiction of the juvenile court due to the parents’ failure to provide proper care.”

Although Xavier’s special needs have largely resolved, the adjudication led to a case plan for reunification developed by DHHS for Katianne. Katianne was not to be reunited with Xavier until the goals of the case plan had been met, including: “maintaining steady employment, attending therapy, submitting to random urinalysis testing, attending parenting classes, presenting a budget and receipts for the timely payment of her bills, enhancing her time management skills, maintaining a healthy lifestyle, maintaining her home in a condition suitable for visits, engaging in positive family activities, maintaining communication with service providers, and cooperating with a family support worker to set up visitation with Xavier.”

Due to ongoing missed and cancelled visits, Katianne’s visitation was slowly reduced from 4 visits per week to 1 visit per week by January 2005. Katianne completed the recommended 12 week program for substance abuse, and had fairly regularly attended appointments with her therapist. However, Katianne had some trouble maintaining her program with Lutheran Family Services, and was discharged from the program on two separate occasions for a series of late cancellations. Although it took her some time, Katianne did complete the parenting program. However, Katianne did not have much success in mastering personal budgeting skills.

Home visits to Katianne’s home ranged from very pleasant to very chaotic. There were some questions about the effectiveness and consistency of discipline for Katianne’s two older daughters. Generally, however, Katianne was attentive to Xavier and his sisters. The home was generally clean and ready for them to visit; however, there was at least one occasion when the house was in complete disarray. Although the case worker did note that Katianne had met some of the goals in the case plan, she still testified that, in her opinion, Katianne had “generally not followed through with” the case plan.
A clinical parenting evaluation was conducted, by a clinical psychologist, with generally positive results. The psychologist noted that Katianne “could take care of and relate to her children in an appropriate manner.” Counseling services were ongoing.

After Xavier had been in foster care for 15 months, DHHS sought to terminate Katianne’s rights. Xavier’s father voluntarily relinquished his rights before the proceedings. The juvenile court terminated Katianne’s parental rights under subsection (7) of the statute, but did not state why it was in Xavier’s best interests. The Court of Appeals affirmed the termination.

The Supreme Court reversed the judgment of the Court of Appeals and juvenile court stating that the State failed to prove that termination was in Xavier’s best interests. “The interest of the parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by the U.S. Supreme Court.” The fact that Xavier had been placed outside the home for 15 or more months of the past 22 months “does not demonstrate parental unfitness.” This timeline “‘merely provides a guideline’ for what would be a reasonable time for parents to rehabilitate themselves.” There is still a “rebuttable presumption that the best interests of a child are served by reuniting the child with his or her parents.” This presumption is only overcome when the parent is proved to be unfit.

The State failed to show that Katianne was unfit in this case. Xavier’s medical needs, which were the sole basis for original adjudication, have resolved. Katianne is working, sober, and has attended most of the scheduled visits with Xavier. There is also no evidence that Katianne would not provide for Xavier’s basic needs or would subject him to abuse or neglect. Katianne’s shortcomings do not make her an unfit parent, as the law does not require parental perfection. The Court was most concerned that the State seemingly contended that Katianne could parent two, but not three, children, which “invite[es] the arbitrary removal of one.” Xavier can obtain permanency with Katianne. Finally, the alleged deficiencies in Katianne’s parenting would have been insufficient to maintain a separate action to remove Xavier from the family home. Since the reasons for Xavier’s removal have resolved, and Xavier should not be held hostage to compel Katianne’s compliance with a case plan when reunification will no longer endanger the child.