Notice to Parents: You Cannot Excuse Your Voluntary Actions. in in Re Interest of Dustin H., the Supreme Court of Nebraska Finds No Excuse for Abandonment in a No-visitation Order

• Publication year: 2022
• Citation: Vol. 34

34 Creighton L. Rev. 283. NOTICE TO PARENTS: YOU CANNOT EXCUSE YOUR VOLUNTARY ACTIONS. IN IN RE INTEREST OF DUSTIN H., THE SUPREME COURT OF NEBRASKA FINDS NO EXCUSE FOR ABANDONMENT IN A NO-VISITATION ORDER

Creighton Law Review

Vol. 34

Richard D. Vroman - '02

INTRODUCTION

Nearly eighty years ago, in 1923, the United States Supreme Court decided Meyer v. Nebraska,(fn1) a landmark case from the State of Nebraska.(fn2) In Meyer, Justice James McReynolds of the Supreme Court gave liberty a broad meaning and included the rights to marry and raise children as some of the essential privileges owed to a free man.(fn3) Since that day, courts have continued to support the notion that parental rights constitute a fundamental liberty interest, which is protected by the Due Process Clause of the Fourteenth Amendment.(fn4)

Consequently, the termination of parental rights is one of the most sensitive actions a state can take.(fn5) A parent's constitutional right to raise their child must be protected unless the state has a compelling interest.(fn6) The best interest of a child is such a compelling state interest.(fn7) In the State of Nebraska, the Nebraska Supreme Court is concerned with the best interests of the child, and therefore does not allow the corrective actions of the state to excuse the responsibilities of the parent.(fn8)

In In re Interest of Dustin H.,(fn9) Tonya H. ("Tonya"), appealed a juvenile court order terminating her parental rights on the grounds that she had abandoned her children for a period of not less than six months immediately preceding the filing of the petition.(fn10) Seven weeks prior to the petition for termination, the juvenile court hadplaced a no-visitation order on Tonya.(fn11) Since the court order effectively prohibited Tonya from seeing her children, Tonya felt the sixmonth statutory period for abandonment should have been tolled.(fn12) On appeal, the Supreme Court of Nebraska concluded the juvenile court order barring Tonya from visiting her children did not toll the statutory six-month period required for finding abandonment.(fn13) The court reasoned that, although Tonya was prohibited from seeing her children, she could have shown her intent to parent in other ways.(fn14) The dissent, however, argued:

[I]t is fundamentally unfair under the Due Process Clause of both the federal and state Constitutions to allow the machinery of the State to impede visitation between a parent and child and then to allow the termination of parental rights on the sole basis of abandonment, utilizing evidence from the period of time that the parent was court ordered to have no visitation with his or her children.(fn15)

This Note will begin by discussing the facts and holding of Dustin H.(fn16) This Note will then discuss background cases concerning both Due Process and no-visitation orders in the area of termination of parental rights based on abandonment.(fn17) Next, this Note will examine two arguments made by the dissent in Dustin H., which the majority correctly disregarded.(fn18) The discussion in the analysis section of this Note will detail how precedent not only supports the decision by the majority, but also exposes the following two misconceptions on the part of the dissent.(fn19)

The first misconception is that the lack of physical presence is the main, if not the only, requirement for the finding of abandonment.(fn20) The majority correctly disregarded this argument, recognizing that the process due in a parental rights proceeding requires the court to use the clear and convincing evidence standard when looking at "all the facts and circumstances" involved.(fn21) The second misconception on the part of the dissent is that the state, rather than the parent, causes a no-visitation order.(fn22) Again, the majority correctly disregarded thissecond argument by the dissent.(fn23) Precedent dictates that a court may correctly determine the parent's intentional actions leading to a state corrective action as intentional actions to abandon their child.(fn24)

The analysis will also point out that the use of incarceration, or a no-visitation order, during the statutory period for the finding of abandonment is constitutional, so long as the court examines all of the present facts and circumstances.(fn25) Finally, the conclusion of this Note will contain a short discussion of why, contrary to the dissent's opinion, the majority decision by the Supreme Court of Nebraska in Dustin H. does not violate the parent's Due Process rights.(fn26) Instead, the majority's decision should be applauded, as it sends notice to all parents that the State of Nebraska will hold them responsible for their own actions.(fn27)

FACTS AND HOLDING

On March 24, 1998, the State of Nebraska filed a petition alleging Tonya H's ("Tonya") children, Dustin H., Brandon H., Lacie H., Brooke C., and Tara C. (collectively "the children"), came under the purview of Nebraska Revised Statute section 43-247(3)(a) because the children were (1) under the age of 18, and (2) without proper parental care due to Tonya's habits.(fn28) On June 24, 1998, the Douglas County Juvenile Court held an adjudication hearing.(fn29) Tonya did not attend the hearing, but was represented by counsel.(fn30) Evidence presented at the hearing showed Tonya left three of her children with Jane Holm on March 19, 1998, but never returned for them as promised.(fn31) Around the same time, Tonya's other two children were found alone in her home.(fn32) The State of Nebraska provided evidence that Tonya's home was "in a filthy, unwholesome condition."(fn33) Evidence further showed, as of April 27, Tonya had still failed to return for, or inquire about, thechildren.(fn34) The juvenile court decided "the children were at risk" and should stay in the custody of the Nebraska Department of Health and Human Services ("DHHS").(fn35)

On August 27, 1998, the juvenile court held a dispositional hearing, finding, that after unsuccessful reunification attempts, it "would be contrary to the health, safety, or welfare of the children" to place them back in Tonya's home.(fn36) The court ordered Tonya to undergo a chemical dependency evaluation, a psychological evaluation, and to pay the costs of both evaluations.(fn37) Among other restrictions, Tonya was to inform the court, the DHHS, and her attorney of her whereabouts at all times.(fn38) The court also ordered Tonya to have no visitation rights to the children.(fn39)

On October 13, 1998, the State of Nebraska filed a supplemental petition to terminate Tonya's parental rights based upon abandonment as defined in Nebraska Revised Statute section 43-292(1).(fn40) On December 9, 1998, a hearing was held in the Douglas County Juvenile Court regarding the termination of Tonya's parental rights.(fn41) Lacie H.'s father, Michael S. ("Michael"), was also a participant in the hearing.(fn42) The State's purpose was to terminate all parental rights to the children, including Michael's.(fn43) In Michael's case, however, the court granted leave so counsel could present Michael's defense at a later date.(fn44) After the court granted Michael's counsel leave, the court turned its attention to the evidence against Tonya.(fn45)

Michelle Hemphill, a case manager for the DHHS, testified Tonya did not visit the children and only called the department twice in overseven months.(fn46) Testimony from Hemphill indicated Tonya made no contact with the DHHS concerning her children's welfare from March 20 through October 13, 1998.(fn47) Hemphill further testified that Tonya had failed to complete her psychological or chemical dependency evaluations as required by the court.(fn48) Hemphill stated she could not discuss visitation between Tonya and the children because Tonya could not be found.(fn49) According to Hemphill, the children's interests would be best served by terminating Tonya's parental rights.(fn50)

Linda Rider-Hunt, the children's therapist, provided more testimony.(fn51) She testified Tonya "never made contact or visited with the children in the [six] months preceding the filing of the supplemental petition."(fn52) Rider-Hunt also testified the foster parents were meeting all of the children's needs that Tonya had failed to provide.(fn53) Bob Owens, a risk assessment investigator for the DHHS, who had been working on the case since the beginning, provided further testimony.(fn54) He testified Tonya had failed to keep her appointments with him and only called once to inquire if she was in trouble.(fn55) On January 6, 1999, the juvenile court found, by clear and convincing evidence, that it was in the children's best interests to terminate Tonya's parental rights.(fn56)

On February 9, 1999, the Douglas County Juvenile Court continued the matter concerning the termination of Michael's parental rights, but there was no record of a final order by the juvenile court upon which an appeal could be granted.(fn57) The Supreme Court of Nebraska consolidated Michael and Tonya's appeals.(fn58) The Supreme Court subsequently dismissed Michael's appeal for the lack of a final appealable order, leaving only Tonya's appeal to be considered.(fn59)

Tonya appealed the order of the juvenile court to the Supreme Court of Nebraska arguing the no-visitation order of August 27, 1998 tolled the six-month requirement for abandonment under section 43- 292(1), and the juvenile court, therefore, had erred in...