In re Interest Marcus W et. al.

Caselaw Number
A-01-1287, A-01-1295, A-01-1296
Filed On


SUMMARY: State could properly file a subsequent motion to terminate a mother’s parental rights due to the mother’s mental illness or deficiency when a prior motion to terminate her parental rights based on repeated neglect was overturned on appeal. Termination was in the children’s best interests where evidence showed the mother would need constant help in parenting.

On December 3, 1997, the juvenile court adjudicated Gabriella (DOB 3/1/1996), and on October 1, 1998 adjudicated Asia (DOB 6/27/1998). The State subsequently filed a motion to terminate the parental rights of Angela and Greg, the children’s parents, alleging Angela and Greg substantially and continuously or repeatedly neglected the children. The court granted the motion to terminate the parental rights, but on appeal the Nebraska Court of Appeals held that the State did not prove by clear and convincing evidence that Angela and Greg neglected and refused to provide necessary parental care. Angela and Greg had another child, Marcus, on May 10, 2000; Marcus was adjudicated on November 8. The State filed motions to terminate Angela’s parental rights as to all three children on July 24, 2001 alleging that termination was proper because Angela was unable to discharge parental responsibilities because of a mental illness or deficiency. At the termination hearing, a psychologist testified that Angela had cognitive dysfunction, generalized anxiety disorder, and a mood disorder, with a history of difficulty with mental health issues. The psychologist testified that Angela would need assistance for daily living activities such as financial responsibilities and parenting and would not be able to actively attend to her own safety or the safety of others. In addition, Angela’s clinical examination indicated a very weak level of attention and concentration, severe impairment on higher level problem solving, and anxiety and paranoia. However, the psychologist did testify that some test results were inconsistent with a diagnosis of frontal lobe dysfunction and that Angela could learn simple repetitive tasks in a low-stress environment. The juvenile court terminated Angela’s parental rights as to Gabriella, Asia, and Marcus on October 26, 2001.

The Nebraska Court of Appeals affirmed the termination of Angela’s parental rights. The State’s second motion to terminate Angela’s parental rights was not barred because different grounds for termination were involved in the first motion to terminate and different proof was required to support the allegations. The evidence in the second termination hearing was largely based on Angela’s neuropsychological evaluation, which took place over a year after the appeal of the first motion for termination. The juvenile court erred in excluding evidence that there was no pending motion to terminate Greg’s parental rights. However, termination of Angela’s parental rights was proper because the State proved clear and convincing evidence that Angela suffered from a mental defect, even though this was due to no fault of Angela’s and Angela truly loved her children and consistently complied with juvenile court orders. Termination was in the children’s best interests because Angela did not make any progress in implementing and using her parenting skills and in safety issues and the children had spent most of their lives in foster care.