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IN RE INTEREST OF JOEZIA P.

Cite as 30 Neb. App. 281

In re Interest of Joezia P., a child 

under 18 years of age.

State of Nebraska, appellee, v. 

Jeremy H., appellant.

___ N.W.2d ___

Filed October 19, 2021. No. A-21-156.

1. Parental Rights: Due Process: Appeal and Error. Whether a parent 

who is incarcerated or otherwise confined in custody has been afforded 

procedural due process for a hearing to terminate parental rights is 

within the discretion of the trial court, whose decision on appeal will be 

upheld in the absence of an abuse of discretion.

2. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases de novo on the record and reaches its conclusions independently of the juvenile court’s findings. When the evidence is in conflict, however, an appellate court may give weight to the fact that the 

juvenile court observed the witnesses and accepted one version of facts 

over another.

3. Appeal and Error. To be considered by an appellate court, an alleged 

error must be both specifically assigned and specifically argued in the 

brief of the party asserting the error.

4. Parental Rights: Due Process. An incarcerated parent does not need to 

be physically present at a hearing to terminate parental rights, so long as 

the parent is afforded procedural due process.

5. Due Process: Words and Phrases. The fundamental requirement of 

due process is the opportunity to be heard at a meaningful time and in a 

meaningful manner.

6. Parental Rights: Due Process. The juvenile court may consider the 

following factors when determining whether to allow an incarcerated 

parent to be present at a hearing to terminate parental rights: (1) the 

anticipated delay, (2) the need for prompt disposition, (3) the length 

of time during which the case has been pending, (4) the expense of 

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transportation, (5) the inconvenience or detriment to the parties or witnesses, (6) the potential danger or security risk, (7) the availability of 

the parent’s testimony through means other than physical attendance, 

and (8) the best interests of the child.

7. Juvenile Courts: Parental Rights. Whether an incarcerated parent was 

afforded a meaningful opportunity to participate in the hearing on the 

termination of his or her parental rights is a matter left to the discretion 

of the juvenile court.

8. Parental Rights: Proof. To terminate parental rights under Neb. Rev. 

Stat. § 43-292 (Reissue 2016), the State must prove, by clear and convincing evidence, that one or more of the statutory grounds is satisfied 

and that termination is in the best interests of the child.

9. Parental Rights: Abandonment. While incarceration alone is not a 

basis for termination of parental rights, a parent’s incarceration may 

be considered along with other factors in determining whether parental 

rights can be terminated based on neglect.

10. ____: ____. Although incarceration itself may be involuntary, the criminal conduct causing incarceration is voluntary.

11. ____: ____. In termination of parental rights cases, it is proper to 

consider a parent’s inability to perform his or her parental obligations 

because of imprisonment, the nature of the crime committed, as well as 

the person against whom the criminal act was perpetrated.

12. Parental Rights. When a parent is unable or unwilling to rehabilitate 

himself or herself within a reasonable time, the best interests of the child 

require termination of parental rights.

13. ____. A child cannot, and should not, be suspended in foster care or be 

made to await uncertain parental maturity.

14. Constitutional Law: Parental Rights: Proof. Because a parent has a 

constitutionally protected right to raise his or her child, the State must 

show that a parent is unfit before terminating parental rights.

15. Parental Rights: Words and Phrases. Parental unfitness means a personal deficiency or incapacity which has prevented, or will probably 

prevent, performance of a reasonable parental obligation in child rearing and which caused, or probably will result in, detriment to a child’s 

well-being.

Appeal from the Separate Juvenile Court of Lancaster 

County: Roger J. Heideman, Judge. Affirmed.

Angelica W. McClure, of Kotik & McClure Law, for 

appellant.
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IN RE INTEREST OF JOEZIA P.

Cite as 30 Neb. App. 281

Patrick F. Condon, Lancaster County Attorney, and Maureen 

E. Lamski for appellee.

Pirtle, Chief Judge, and Moore and Welch, Judges.

Pirtle, Chief Judge.

INTRODUCTION

Jeremy H. appeals from an order of the separate juvenile 

court of Lancaster County terminating his parental rights to his 

minor child, Joezia P. For the reasons that follow, we affirm.

BACKGROUND

Jeremy is the father of Joezia (born 2017). Jacara P. is the 

mother of Joezia. However, Jacara is not part of the appeal 

before us and thus will be discussed only as necessary to 

address Jeremy’s assigned errors.

In April 2017, Jeremy pled no contest to and was convicted of third degree domestic assault in relation to an incident of domestic violence committed against Jacara on or about 

January 9, while Jacara was pregnant with Joezia. In December, 

Jeremy pled no contest to and was convicted of third degree 

domestic assault in relation to an incident of domestic violence 

committed against Jacara on or about November 10, while 

Joezia was present in the home.

On March 29, 2019, the State filed a petition alleging 

that Joezia was a juvenile as defined by Neb. Rev. Stat. 

§ 43-247(3)(a) (Reissue 2016). Count I of the petition alleged 

Joezia lacks proper parental care by reason of the faults or 

habits of his father, Jeremy, or that Joezia is in a situation 

dangerous to life or limb or injurious to his health or morals. Specifically, the petition alleged the following: (1) on or 

about November 10, 2017, Jeremy was involved in a domestic confrontation with Joezia’s mother, Jacara, while Joezia 

was present; (2) Jeremy has a history of assaultive behavior, 

including assaulting Jacara while she was pregnant with Joezia; 

(3) Jeremy was incarcerated from November 12, 2017, until 
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September 24, 2018, and Jacara reports that Jeremy continued to engage in assaultive behavior after his release; (4) the 

actions of Jeremy or said situation places Joezia at risk of 

harm; and (5) all the events took place in Lancaster County, 

Nebraska.

Jeremy was personally served with the petition and summons 

on June 13, 2019, while he was incarcerated at the Lancaster 

County jail. Jeremy appeared before the juvenile court and 

denied the allegations in the petition on June 25. On July 24, 

the State filed an amended petition containing substantially 

the same allegations as the March 29 petition. After a formal 

hearing, the court found the allegations in the amended petition 

true by a preponderance of the evidence. The court adjudicated 

Joezia as a juvenile under § 43-247(3)(a) on the grounds that 

he lacks proper parental care by reason of the fault or habits 

of his father, Jeremy, and he is in a situation dangerous to life 

or limb or injurious to his health or morals. Thereafter, on July 

25, Jeremy pled no contest to two unrelated criminal charges 

and was sentenced to a total of 42 months of incarceration.

On September 6, 2019, the court placed Joezia in the temporary legal custody of the Nebraska Department of Health 

and Human Services (DHHS) and initially permitted Joezia 

to remain physically placed in the home of Jacara. The court 

ordered Jeremy to participate in supervised visitation with 

Joezia, to maintain a legal means of support for himself and 

Joezia, to maintain a safe and stable home free of domestic 

violence, to participate in random drug testing, and to complete a men’s domestic violence class for batterers. The court 

ordered DHHS to provide any treatment or services recommended by Jeremy’s evaluations. Joezia was removed from 

Jacara’s home on September 25, 2019, and has been placed in 

foster care continuously since.

In December 2019, following a hearing for review of disposition on the amended petition, the court entered an order 

of review finding that Jeremy had made poor progress toward 

alleviating the causes of the court’s adjudication and Joezia’s 
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out-of-home placement. Accordingly, the court ordered Joezia 

to remain in the temporary legal custody of DHHS and to 

remain physically placed in a kinship foster home. The court 

reiterated its prior orders directed at the parties and also 

ordered Jeremy to participate in individual counseling to 

address long-term issues with anger management, violence, 

and criminal thinking.

In February 2020, the court once again entered an order of 

review finding that Jeremy had made poor progress toward 

alleviating the causes of the court’s adjudication and Joezia’s 

out-of-home placement. The court ordered Joezia to remain in 

the temporary legal custody of DHHS and to remain physically 

placed in a kinship foster home. In addition to reiterating its 

previous orders, the court ordered Jeremy to participate in child 

parent psychotherapy (CPP) with Joezia.

In May 2020, the court entered an order of review again 

finding Jeremy had made poor progress toward alleviating the 

causes of the court’s adjudication and Joezia’s out-of-home 

placement. The court sustained a motion to eliminate the 

requirement of reasonable efforts to preserve and reunify the 

family on the grounds that Jeremy previously had his parental rights involuntarily terminated with respect to a sibling of 

Joezia. See Neb. Rev. Stat. § 43-283.01(4)(c) (Reissue 2016).

On June 23, 2020, the State filed a motion to terminate 

Jeremy’s parental rights to Joezia on the grounds that Jeremy 

has substantially and continuously or repeatedly neglected and 

refused to give necessary parental care and protection and that 

termination of Jeremy’s parental rights is in the best interests 

of Joezia. On June 24, the court entered yet another order of 

review finding Jeremy had made poor progress toward alleviating the causes of the court’s adjudication and Joezia’s out-ofhome placement. The court also approved a permanency plan 

of adoption for Joezia.

On July 8, 2020, the State filed an amended motion to terminate Jeremy’s parental rights to correct the spelling of Joezia’s 

name in the petition. Jeremy filed a written denial of the 
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allegations in the amended motion for termination of parental 

rights on July 14. The court scheduled a formal hearing on the 

amended motion for November 17.

On October 8, 2020, the State charged Jeremy with one count 

of escape when under arrest on a felony charge in violation of 

Neb. Rev. Stat. § 28-912(5)(a) (Reissue 2016). On October 13, 

the State filed an amended information charging Jeremy with 

one count of attempted escape. Jeremy pled no contest to the 

charge in the amended information and was sentenced to an 

additional 18 months of incarceration, extending his expected 

release date from March 2021 to December 2021.

On December 9, 2020, the court entered an order of review 

finding that Jeremy had made “no progress” toward alleviating the causes of the court’s adjudication and Joezia’s out-ofhome placement.

Hearing on November 17, 2020

Prior to the November 17, 2020, hearing, all the parties 

stipulated to the hearing’s being conducted by videoconference 

in light of the COVID-19 pandemic. Jeremy was incarcerated 

at the Tecumseh State Correctional Institution in Tecumseh, 

Nebraska, and due to limitations at that facility, Jeremy attended 

the hearing telephonically rather than by videoconference. 

Jeremy objected to the hearing on the grounds that he could 

not see the witnesses or communicate with counsel using the 

private “chat” function. As Jeremy was no longer willing to 

stipulate to a trial by videoconference, the court continued the 

matter to the December trial term. In doing so, the court noted 

the matter had already been pending “for a significant amount 

of time.” The court also referred to case law suggesting the 

formal hearing could proceed without Jeremy’s presence upon 

proper procedural safeguards.

Hearing on Jeremy’s Motion to Continue

On December 3, 2020, the court entered an order for transport to allow Jeremy to be physically present at the trial 

scheduled for December 18. However, the court vacated the 
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Cite as 30 Neb. App. 281

order for transport on December 11, because the Tecumseh 

State Correctional Institution advised the court that Jeremy was 

under quarantine and could not be transported. On December 

14, Jeremy filed a motion to continue the trial on the grounds 

that his quarantine would prevent him from attending the trial 

by any means and prevent him from communicating with 

counsel.

After a hearing on the matter, the court overruled Jeremy’s 

motion to continue, noting that the trial had already been continued once. The court directed the parties to In re Interest of 

L.V., 240 Neb. 404, 482 N.W.2d 250 (1992), “which indicates 

in these motions to terminate parental rights, the presence of 

the parent is not necessary so long as their procedural due 

process rights can be afforded.” The court explained the State 

would present its case as scheduled, after which the matter 

would be continued to provide an opportunity for Jeremy to 

review the transcript and consult with counsel prior to presenting his case. The court intimated this procedure would 

adequately protect Jeremy’s due process rights and eliminate 

the need for transportation during the COVID-19 pandemic.

Formal Hearing Day One: 

December 18, 2020

The juvenile court convened for a formal hearing on the 

amended motion for termination of parental rights on December 

18, 2020. Jeremy was represented by counsel, but he was not 

present at the hearing. The State called four witnesses, including the owner of Associates in Counseling and Treatment 

(ACT), Jeremy’s case manager from the period of time when 

he was incarcerated at the Community Corrections CenterLincoln (CCCL), the DHHS case manager assigned to the case 

during the period of time after March 16, and the therapist 

who provided CPP services to Joezia from October 2019 to 

October 2020.

Joezia’s therapist testified that Joezia first attended CPP 

in October 2019 with his foster parent at that time. Joezia 

cried during the entire session and refused to play with the 
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Cite as 30 Neb. App. 281

toys made available to him. Joezia attended a second session in 

November with the same foster parent. At the second session, 

Joezia played independently with some toys, but he remained 

nonverbal and once again cried a lot. The foster parent also 

reported to the therapist that Joezia “just cried all the time” 

and was physically aggressive with the foster parent’s biological child. The therapist testified that young children who 

experience domestic violence often struggle to “regulate” their 

emotional responses. She also testified to the importance of 

stability and permanency for a child of Joezia’s age.

Joezia attended a third CPP session in January 2020, after 

being placed in a new foster home. The therapist testified that 

Joezia “was absolutely a different kid” at the January session. 

Joezia played with toys and appeared happy and joyful. He 

was more interactive and able to “self-regulate” better than 

during the previous sessions. The therapist testified that Joezia 

and the new foster parent successfully completed the full 

course of CPP in October 2020. At that point, Joezia was “very 

bonded and attached” to the foster parent, and he was able to 

self-regulate.

The therapist testified that she attempted to schedule a CPP 

parent assessment with Jeremy; however, he failed to attend the 

session due to a “transportation glitch.” The record reflects that 

a CPP appointment was made for March 18, 2020, but Jeremy 

was not made aware of the appointment and thus failed to 

attend. While the therapist was not able to observe Jeremy with 

Joezia, she testified that based on Joezia’s age and the length 

of time since Jeremy’s last contact with him, Joezia “probably 

does not have any memory” of Jeremy.

The evidence adduced at the hearing revealed that Jeremy 

enrolled in a 30-week batterer’s intervention class at ACT on 

July 20, 2020. Jeremy completed one intake session and two 

weekly classes prior to being terminated from the class for 

leaving the property without permission and verbally abusing his case manager at CCCL. Jeremy’s case manager at 

CCCL testified that Jeremy’s electronic monitor showed him 
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Cite as 30 Neb. App. 281

leaving ACT when he was supposed to be in the class. The 

owner of ACT testified that Jeremy would not be allowed to 

re-enroll in the ACT batterer’s intervention class and would 

instead need to complete a 36-week program through a different facility to comply with the court’s order.

Jeremy’s case manager at CCCL also testified that Jeremy 

attempted to obtain free mental health services at a facility called 

CenterPointe. The case manager explained that CenterPointe 

offers free mental health counseling on a first-come-first-serve 

basis. Jeremy was allowed to seek services at CenterPointe on 

three or four occasions, but the case manager testified that he 

never actually obtained services due to lack of availability. On 

one occasion, after being transported to CenterPointe, Jeremy 

cut his electronic monitor and fled from custody. Jeremy was 

eventually found, convicted of attempted escape, and sentenced 

to an additional 18 months of incarceration.

The DHHS case manager testified that Jeremy sent Joezia 

a “doll-type toy” in August 2020. Aside from that gift, Jeremy 

had not had any contact with Joezia since May or June 2019 

due to Jeremy’s incarceration. The case manager ultimately 

expressed the opinion of DHHS that termination of Jeremy’s 

parental rights is in Joezia’s best interests. In expressing this 

position, the case manager noted Joezia’s behavioral challenges 

since being placed in foster care, Jeremy’s lengthy criminal 

history, and Jeremy’s continued incarceration.

When the State rested its case, the court reiterated the 

intended procedure to recess until Jeremy had an opportunity 

to review a transcript of the State’s evidence and consult with 

counsel before proceeding. The court indicated it would also 

provide Jeremy’s counsel with a digital media file of the evidence “in the event” that Jeremy had a computer available to 

him. Counsel noted that she had a conversation with Jeremy 

prior to the hearing in which he advised that he did not have 

access to a computer. Accordingly, counsel stated that “we will 

just wait for the transcript.”
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Formal Hearing Day Two: 

January 27, 2021

The juvenile court convened for a second hearing on the 

amended motion for termination of parental rights on January 

27, 2021. Jeremy was once again represented by counsel, but he 

was not initially present at the hearing. Jeremy later appeared 

via videoconference for approximately 30 minutes of the hearing. Counsel for Jeremy called three witnesses, including the 

DHHS case manager assigned to the case during the period of 

time before March 16, 2020; the Licensed Independent Mental 

Health Practitioner (LIMHP), who conducted a co-occurring 

evaluation on Jeremy and provided individual therapy services 

to Jeremy from December 2019 to March 2020; and Joezia’s 

foster parent from September 25 to December 2, 2019.

The DHHS case manager testified that she arranged for a 

co-occurring evaluation of Jeremy to be completed by a LIMHP. 

The LIMHP testified that she completed the co-occurring 

evaluation in August 2019. She diagnosed Jeremy with “early 

remission . . . prior amphetamine dependence” and “antisocial 

personality disorder.” Based on the evaluation, the LIMHP 

recommended that Jeremy participate in intensive individual 

therapy, complete “domestic violence classes,” and receive a 

psychiatric medication assessment.

The LIMHP testified that she provided twice-weekly individual therapy services to Jeremy beginning in December 

2019. She described Jeremy as being “participative and willing” to cooperate with individual therapy. In March 2020, 

the LIMHP ceased providing in-person therapy services for 

personal health reasons related to the COVID-19 pandemic. At 

that time, Jeremy was incarcerated at CCCL, and Jeremy’s case 

manager at CCCL testified that CCCL was unable to facilitate 

virtual services when Jeremy was at the facility.

After all other witnesses had testified, the court asked counsel for Jeremy whether Jeremy intended to testify. Counsel 

stated, “No, Your honor. It’s my understanding that [Jeremy] 

did not want to testify today . . . unless he had changed 
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his mind from when I had spoken with him before.” Counsel 

added, “I have not had an opportunity to discuss any of 

the testimony that happened today or whether there was any 

follow-up that [Jeremy] wanted from today’s testimony.” The 

court then stated the following:

In fairness to [Jeremy], given these are allegations as to 

him, I think we had also set additional time on Friday, 

had we not, for conclusion of the matter? If we resume 

the matter at that point in time, that will afford [counsel] 

the opportunity to at least contact [Jeremy], determine if 

he wishes to testify. My understanding is the video ability 

is limited but he may have more of an extended ability 

to appear by telephone, so I think we could accommodate that.

Formal Hearing Day Three: 

January 29, 2021

The court reconvened on January 29, 2021. Jeremy was 

represented by counsel but was not present. The court asked 

counsel for Jeremy whether she had any additional evidence, to 

which question she responded as follows: “No, Your Honor. I 

would state that I did have an opportunity to discuss the matter 

with [Jeremy] and he has elected not to testify in regards to this 

case. So with that information, we would rest.”

The court heard closing arguments and took the matter under 

advisement. On January 29, 2021, the court entered an order 

terminating Jeremy’s parental rights to Joezia. The court found 

that Jeremy

has failed to put himself in a position to parent his child 

throughout the entirety of the case, and with knowledge 

of his child being in foster care and a pending motion to 

terminate his parental rights, chose to engage in further 

criminal activity thereby making himself unavailable to 

parent his child for an extended period of incarceration.

The court noted Jeremy was afforded an opportunity to work 

in the community and engage in court-ordered services, but 
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“he failed to refrain from criminal acts resulting in his incarceration and continued removal from his child.” On these 

grounds, the court found that Jeremy had engaged in neglect 

under Neb. Rev. Stat. § 43-292(2) (Reissue 2016).

The court went on to find that termination of Jeremy’s 

parental rights was in Joezia’s best interests in light of Joezia’s 

need for permanency and Jeremy’s relative inability to provide 

a stable and secure environment. Based on his history of incarceration and inability to provide a basic means of support for 

Joezia, the court found that the State had rebutted the presumption that Jeremy is a fit parent.

ASSIGNMENTS OF ERROR

Jeremy assigns that the juvenile court erred in (1) over

ruling Jeremy’s motion to transport, (2) finding that the State 

proved by clear and convincing evidence that Jeremy substantially and continuously or repeatedly neglected and refused 

to give Joezia necessary parental care and protection, and (3) 

finding that the State proved by clear and convincing evidence 

that termination of Jeremy’s parental rights was in Joezia’s 

best interests.

STANDARD OF REVIEW

[1] Whether a parent who is incarcerated or otherwise confined in custody has been afforded procedural due process for 

a hearing to terminate parental rights is within the discretion of 

the trial court, whose decision on appeal will be upheld in the 

absence of an abuse of discretion. In re Interest of Taeson D., 

305 Neb. 279, 939 N.W.2d 832 (2020).

[2] An appellate court reviews juvenile cases de novo on 

the record and reaches its conclusions independently of the 

juvenile court’s findings. When the evidence is in conflict, 

however, an appellate court may give weight to the fact that the 

juvenile court observed the witnesses and accepted one version 

of facts over another. In re Interest of Becka P. et al., 27 Neb. 

App. 489, 933 N.W.2d 873 (2019).
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ANALYSIS

Motion to Transport

[3] In his first assignment of error, Jeremy asserts “[t]he 

juvenile court erred in overruling [his] motion to transport 

Jeremy to the trial in this matter thus not allowing him to 

meaningfully participate in his defense.” However, in the body 

of his argument on appeal, Jeremy asserts multiple due process 

violations, including the following: (1) the decision to overrule Jeremy’s motion to continue filed on December 14, 2020; 

(2) the decision to overrule the motion to transport filed on 

January 21, 2021; (3) the inability of counsel to communicate 

with Jeremy “in real time during the trial”; (4) the failure to 

provide Jeremy with a transcript of the evidence presented on 

his behalf at the second hearing on January 27; and (5) the 

failure to provide “an unlimited amount of time” for Jeremy to 

decide whether to testify in his own defense. Brief for appellant at 15. The only alleged error which was both specifically 

assigned and specifically argued was with regard to the juvenile court’s overruling Jeremy’s motion to transport filed on 

January 21. To be considered by an appellate court, an alleged 

error must be both specifically assigned and specifically argued 

in the brief of the party asserting the error. Fetherkile v. 

Fetherkile, 299 Neb. 76, 907 N.W.2d 275 (2018). Accordingly, 

we do not address the alleged errors that were argued but 

not assigned.

[4,5] It is well settled in Nebraska that an incarcerated parent 

does not need to be physically present at a hearing to terminate 

parental rights, so long as the parent is afforded procedural due 

process. See, In re Interest of Taeson D., supra; In re Interest of 

L.V., 240 Neb. 404, 482 N.W.2d 250 (1992). The fundamental 

requirement of due process is the opportunity to be heard at a 

meaningful time and in a meaningful manner. Id.

[6] The juvenile court may consider the following factors 

when determining whether to allow an incarcerated parent to 

be present at a hearing to terminate parental rights: (1) the 

anticipated delay, (2) the need for prompt disposition, (3) the 
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length of time during which the case has been pending, (4) the 

expense of transportation, (5) the inconvenience or detriment 

to the parties or witnesses, (6) the potential danger or security risk, (7) the availability of the parent’s testimony through 

means other than physical attendance, and (8) the best interests 

of the child. See In re Interest of L.V., supra. Whether a parent 

who is incarcerated or otherwise confined in custody has been 

afforded procedural due process is a matter within the discretion of the juvenile court whose decision will be upheld on 

appeal in the absence of an abuse of discretion. In re Interest of 

Taeson D., 305 Neb. 279, 939 N.W.2d 832 (2020).

In In re Interest of Taeson D., a parent was incarcerated 

out-of-state and did not appear in any manner for a hearing 

on a motion to terminate his parental rights. The parent was 

represented by counsel throughout the proceedings and had an 

opportunity to consult with counsel prior to the hearing. On 

appeal, the parent argued he was entitled to a telephonic or 

video hearing and the failure to provide such a hearing violated 

due process.

The court observed that some jurisdictions

require juvenile courts to either give incarcerated parents 

the opportunity to participate by telephone in the entire 

hearing . . . or offer an alternative procedure by which the 

incarcerated parent may review a transcript of the record 

of the evidence presented against him or her and testify 

later at a bifurcated hearing.

Id. at 286, 939 N.W.2d at 837-38 (emphasis supplied). However, 

the court also noted the juvenile court’s “relative inability to 

compel an out-of-state correctional facility to allow an incarcerated parent to participate in an entire hearing.” Id. at 286, 

939 N.W.2d at 838. Thus, the court declined to adopt a rigid 

requirement of telephonic participation and decided instead to 

“leave it to the juvenile courts’ discretion to determine how an 

incarcerated parent may meaningfully participate in the hearing 

on the termination of his or her parental rights consistent with 

due process.” Id.
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In this case, Jeremy was aware that Joezia was adjudicated 

as a juvenile under § 43-247(3)(a). Jeremy was aware of the 

pending motion to terminate his parental rights and filed a 

written denial to the allegations therein. Jeremy was represented by counsel throughout the proceedings, and the juvenile 

court held a bifurcated hearing, allowing Jeremy to review a 

transcript of the evidence against him and consult with counsel 

before presenting his case. After the close of all the evidence, 

the court continued the matter for a third hearing to afford 

Jeremy additional time to consult with counsel prior to resting 

his case.

[7] Jeremy argues the juvenile court’s decision to overrule 

his motion to transport violated due process because there 

was no hearing on the matter, and “[t]here is no evidence in 

the record as to why the Motion to transport by counsel for 

Jeremy was overruled.” Brief for appellant at 24. However, the 

court clearly explained its plan to hold a bifurcated hearing to 

permit Jeremy an opportunity to review the evidence against 

him and consult with counsel before presenting his case. The 

court stated this procedure was designed to protect Jeremy’s 

due process rights and “eliminate the issue of transportation during the COVID-19 pandemic.” Whether Jeremy was 

afforded a meaningful opportunity to participate in the hearing 

is a matter left to the discretion of the juvenile court. See In re 

Interest of Taeson D., supra. In light of the significant amount 

of time during which the case had been pending, the potential 

inconvenience to the parties and witnesses of requiring transport, and the heightened security risk related to the COVID-19 

pandemic, it was not an abuse of discretion for the court to 

overrule Jeremy’s motion to transport.

Termination of Parental Rights

[8] To terminate parental rights under § 43-292, the State 

must prove, by clear and convincing evidence, that one or more 

of the statutory grounds is satisfied and that termination is in 

the best interests of the child. See In re Interest of Becka P. 
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et al., 27 Neb. App. 489, 933 N.W.2d 873 (2019). An appellate 

court reviews juvenile cases de novo on the record; however, 

an appellate court may give weight to the fact that the juvenile 

court observed the witnesses and accepted one version of facts 

over another. See id.

Jeremy assigns that the juvenile court erred in finding clear 

and convincing evidence of statutory grounds to terminate his 

parental rights under § 43-292(2). This section permits termination of parental rights when the parents have substantially 

and continuously or repeatedly neglected and refused to give 

the juvenile or a sibling of the juvenile necessary parental care 

and protection.

[9-11] While incarceration alone is not a basis for termination of parental rights, a parent’s incarceration may be considered along with other factors in determining whether parental 

rights can be terminated based on neglect. In re Interest of 

Kalie W., 258 Neb. 46, 601 N.W.2d 753 (1999); In re Interest 

of L.V., 240 Neb. 404, 482 N.W.2d 250 (1992). “We have often 

noted that although incarceration itself may be involuntary as 

far as a parent is concerned, the criminal conduct causing the 

incarceration is voluntary.” In re Interest of Kalie W., 258 Neb. 

at 50, 601 N.W.2d at 756. In In re Interest of Kalie W., the 

court declared “it is proper to consider a parent’s inability to 

perform his parental obligations because of imprisonment, the 

nature of the crime committed, as well as the person against 

whom the criminal act was perpetrated.” 258 Neb. at 51, 601 

N.W.2d at 757 (internal quotation marks omitted).

The record reflects that Jeremy was continuously incarcerated from November 2017 to September 2018 in relation to an 

incident of domestic violence between Jeremy and Jacara while 

Joezia was present in the home. Jacara reported that Jeremy 

continued to engage in assaultive behavior after his release, 

which behavior eventually led to Joezia’s being adjudicated 

under § 43-247(3)(a) as a juvenile who lacks proper parental 

care through the fault or habits of Jeremy.
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Jeremy was subsequently incarcerated from June 2019 to 

August 2020. In August 2020, Jeremy escaped from custody 

while on pass to obtain court-ordered mental health services. 

Jeremy was eventually found and convicted of additional 

criminal charges related to his escape, resulting in an additional 18 months of incarceration. Jeremy was aware that 

Joezia was adjudicated under § 43-247(3)(a) and placed in 

foster care. Jeremy was also aware of the pending petition to 

terminate his parental rights. Nevertheless, Jeremy voluntarily 

engaged in further criminal conduct that resulted in an additional term of incarceration, thereby extending the period of 

time during which Jeremy would be unable to perform parental obligations.

Jeremy points out that he actively pursued court-ordered 

services but was prevented from completing them through 

no fault of his own. It is true that precautions related to 

the COVID-19 pandemic and limitations at CCCL prevented 

Jeremy from obtaining a number of court-ordered services that 

were only offered online at the time. However, when Jeremy 

was allowed to seek in-person services in the community, he 

cut his electronic monitor and escaped from custody. Jeremy 

also argues he was terminated from the ACT batterer’s intervention class due to “a misunderstanding.” Brief for appellant 

at 26. However, the evidence adduced at the hearings indicates that Jeremy was terminated from the class for leaving 

the building without permission and verbally abusing his case 

manager at CCCL. Having been terminated from the 30-week 

class, Jeremy would have needed to complete the longer 

36-week class to comply with the court’s order.

Based on our de novo review, we find clear and convincing evidence that Jeremy has substantially and continuously or 

repeatedly neglected Joezia and has refused to provide necessary parental care and protection. Accordingly, we conclude 

that the juvenile court did not err in finding that the State 

proved by clear and convincing evidence that Jeremy’s parental 

rights may be terminated under § 43-292(2).
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Jeremy next assigns that the juvenile court erred in finding 

clear and convincing evidence that termination of Jeremy’s 

parental rights was in Joezia’s best interest. The court also 

found the State met its burden to rebut the presumption that 

Jeremy is a fit parent.

[12-15] When a parent is unable or unwilling to rehabilitate 

himself or herself within a reasonable time, the best interests 

of the child require termination of parental rights. In re Interest 

of Ryder J., 283 Neb. 318, 809 N.W.2d 255 (2012). Moreover, 

a child cannot, and should not, be suspended in foster care or 

be made to await uncertain parental maturity. In re Interest 

of Jahon S., 291 Neb. 97, 864 N.W.2d 228 (2015). Because 

a parent has a constitutionally protected right to raise his or 

her child, the State must show that a parent is unfit before 

terminating parental rights. See id. Parental unfitness means a 

personal deficiency or incapacity which has prevented, or will 

probably prevent, performance of a reasonable parental obligation in child rearing and which caused, or probably will result 

in, detriment to a child’s well-being. Id.

In this case, Joezia was placed into foster care in September 

2019. Joezia’s therapist testified that Joezia was nonverbal and 

struggled to regulate his emotions at CPP sessions that took 

place in October and November 2019. The therapist testified 

that this behavior was consistent with children who have experienced domestic violence. Joezia was placed with a new foster 

family in December 2019, and by January 2020, Joezia had 

made substantial improvement. The therapist testified to the 

importance of permanency and stability in Joezia’s life, which 

was demonstrated by Joezia’s improvement once placed in a 

stable environment.

Jeremy failed to provide a basic means of support and stable 

housing. The therapist indicated that Joezia likely would have 

no memory of Jeremy due to Joezia’s age and the length of 

time since Jeremy had contact with Joezia. Throughout the 

proceedings, Jeremy failed to rehabilitate himself and engaged 
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in further criminal conduct that resulted in his continued 

removal from Joezia.

Based on our de novo review, we find clear and convincing evidence that termination of Jeremy’s parental rights is in 

Joezia’s best interests. Accordingly, we conclude that the juvenile court did not err in finding that the State proved by clear 

and convincing evidence that termination of Jeremy’s parental 

rights was in Joezia’s best interests.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the 

juvenile court terminating Jeremy’s parental rights to Joezia.

Affirmed.