In re Interest Dylan Z.

Caselaw Number
A-04-722
Filed On


SUMMARY: Termination of a father’s parental rights on the basis that he had abandoned the child for 6 months or more was in error where there was no evidence that the lack of contact was intentional and was directly attributable to the father’s lack of knowledge that he was the child’s father. 

Dylan Z. (DOB 7/17/2002) was removed from his mother’s care shortly after testing positive for methamphetamines at birth. Dylan’s mother completed an affidavit of paternity on August 22, 2002 indicating Roy was Dylan’s father. The mother’s parental rights as to Dylan were terminated on September 4, 2003. The State filed a supplemental petition against Roy and a motion to terminate Roy’s parental rights on February 10, 2004. At the termination hearing, the safety worker testified she left a message with a woman who identified herself as Roy’s mother in August of 2002 and again with a woman who identified herself as Roy’s sister in December of 2002, but was never able to reach Roy. The protection worker never attempted to visit Roy or to contact Roy by mail, even though she was able to obtain a mailing address in the telephone book and knew where Roy was incarcerated. Roy presented testimony that the telephone number provided to the safety worker was incorrect. Roy testified that he was aware that Dylan’s mother had given birth to a child and that the State had taken custody of that child, but a relative of Dylan’s mother told Roy that Roy was not the father. After being served with the petition, Roy contacted DHHS and sought but was denied visitation. The protection worker testified that termination was in Dylan’s best interests because Dylan had special needs because of his mother’s drug use during pregnancy, Dylan was doing well in his current foster home, Roy did not have independent housing, and Roy was convicted of harboring a dangerous animal after his dog bit another child of Dylan’s mother. The juvenile court terminated adjudicated Dylan and terminated Roy’s parental rights on June 8, 2004.

The Nebraska Court of Appeals affirmed the juvenile court’s adjudication because the evidence indicated Roy had not had any contact with Dylan or had provided any support or parental care. However, termination of Roy’s parental rights based on the allegations Roy abandoned Dylan was in error. There was no evidence that Roy intentionally abandoned Dylan, but there was evidence that Roy’s lack of contact was directly attributable to Roy’s lack of knowledge that he was Dylan’s father. In addition, it would be fundamentally unfair to allow Roy’s parental rights to be terminated based on Dylan’s having been in an out-of-home placement for 15 of the most recent 22 months when Roy was unaware that Dylan is his child. Termination was not in Dylan’s best interest because there was no evidence that Roy was unwilling or unable to provide for Dylan’s special needs, that Roy’s housing was inadequate for Dylan, or that the single incident with another child was sufficient to terminate his parental rights.