SUMMARY: The time a parent spends incarcerated shall not be excluded from the determination of whether a child has been out-of-home 15 of the most recent 22 months. As the father did not take steps to undergo sex offender treatment in the two months prior to incarceration or immediately after his release, and, after commencing, stopped undergoing treatment after 4 sessions after learning he had to take a polygraph test, thus choosing to delay compliance with therapy required for reunification, there was sufficient evidence for termination of his parental rights.
Kenna, DOB 7/26/99, is the child of David. The maternal parental rights were terminated prior to this proceeding. Kenna was removed from David’s care on January 5, 2006, after allegations that David had sexually assaulted his 11-year-old stepdaughter and view child pornography. She was adjudicated under 43-247(3)(a) in November 2006. At disposition in January 2007, the court ordered David to participate in sex-offender treatment or therapy. In February 2007, David pled guilty in criminal court to sexual assault and child pornography charges, and was incarcerated until June 2007. At a disposition hearing in June 2007, the court ordered David to participate in the R-SAFE sex-offender therapy program. David contacted the program, attended 3 sessions in July 2007 and refused to continue with the program when he learned he would have to submit to a polygraph test. On August 9, 2007, the State filed for termination of David’s parental rights. Prior to the hearing on the termination of parental rights, David set up an appointment with another provider and completed a psychological evaluation.
Trial was held on November 16, 2007. Closing arguments were provided, and the court allowed the parties to brief the case. The court indicated it would revisit the case in less than 90 days and noted to David that he should continue treatment. Additional hearings were held on March 19, June 25, and July 16, 2008. Evidence was presented as to treatment progress. On July 16, the court dismissed the State’s motion to terminate. The State appealed.
The Nebraska Court of Appeals reversed the juvenile court’s dismissal and ordered the court to terminate David’s parental rights. The child had been in out-of-home care 15 of the most recent 22 months. The Court held that the time that David spent incarcerated should not be deducted from the 15/22 calculation, but should rather be a factor in the consideration of best interests. The Court found that David did not take steps to enter treatment between January and February 2007 prior to being incarcerated, or take steps to inquire about how to set up a treatment program while he was in jail. Neither did David immediately seek treatment upon his release in early June 2007, and only attended 3 sessions in July 2007 before stopping. The Court therefore noted that “David continually put off the court’s order concerning sex offender treatment.” The Court rejected David’s contention that participating in the program would violate the right against self-incrimination, noting that David procrastinated in seeking any sex offender treatment and had already pled guilty to criminal charges. Kenna had been out-of-home for almost 2 years at the termination hearing, and with sex offender treatment often taking 2 years David would not regain custody of Kenna for a substantial amount of time. The Court found that Kenna cannot wait indefinitely for David to rehabilitate and that termination is in her best interests.
A dissenting opinion filed by Judge Irwin noted a lack of evidence suggesting David intentionally delaying participating in a treatment program, as adjudication took 10 months and David was incarcerated for 4 more months, thus giving him 3 months to undergo treatment. David’s search for alternate treatment programs was not consistent with a refusal to participate.