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IN RE INTEREST OF TAESON D.

Cite as 305 Neb. 279

In re Interest of Taeson D., a child 

under 18 years of age.

State of Nebraska, appellee, v. 

Samuel T., appellant.

___ N.W.2d ___

Filed March 13, 2020. No. S-19-382.

1. Parental Rights: Due Process. 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. Juvenile cases are reviewed de 

novo on the record, and an appellate court is required to reach a conclusion independent of the juvenile court’s findings.

3. Parental Rights: Due Process. An incarcerated parent’s physical presence is not necessary at a hearing to terminate parental rights, provided 

that the parent has been afforded procedural due process.

4. ____: ____. The initiative is properly placed on the parent or the parent’s attorney to notify the court of the parent’s incarceration and to 

request to appear telephonically at the hearing to terminate parental rights.

5. Juvenile Courts: Parental Rights: Due Process. The juvenile court 

has 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.

Appeal from the Separate Juvenile Court of Lancaster 

County: Reggie L. Ryder, Judge. Affirmed.

Troy J. Bird, of Hoppe Law Firm, L.L.C., for appellant.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

03/20/2020 09:07 AM CDT
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IN RE INTEREST OF TAESON D.

Cite as 305 Neb. 279

Pat Condon, Lancaster County Attorney, Mary Norrie, and 

Danielle M. Kerr for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Miller-Lerman, J.

NATURE OF CASE

Samuel T. appeals the termination of his parental rights 

to his minor child, Taeson D. During the pendency of these 

proceedings, Samuel became incarcerated in South Carolina, 

serving a 30-year sentence. Following a termination hearing 

at which Samuel was represented by counsel but not present, 

the separate juvenile court of Lancaster County determined 

that (1) Samuel substantially neglected to give Taeson necessary parental care; (2) Taeson was a juvenile as described by 

Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016) and reasonable 

efforts have failed to correct conditions; (3) Taeson was in an 

out-of-home placement for 15 or more months of the most 

recent 22 months; (4) it was in the best interests of Taeson 

to terminate Samuel’s parental rights; and (5) Samuel was 

unfit to parent Taeson. The juvenile court terminated Samuel’s 

parental rights to Taeson on three statutory bases as more fully 

described below. Samuel appeals. He claims that his procedural due process rights were violated and that the juvenile 

court erred when it terminated his parental rights to Taeson. 

We affirm.

FACTS

Taeson was born in July 2017. The Nebraska Department of 

Health and Human Services (DHHS) took custody of Taeson at 

the hospital shortly after his birth because his biological mother 

had admitted to methamphetamine use during pregnancy and 

the meconium fluid had tested positive for methamphetamine. 

Taeson’s biological mother relinquished her parental rights in 

late 2018. Taeson was placed with Lachrisha T., Samuel’s adult 

daughter, who has cared for Taeson since birth.
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IN RE INTEREST OF TAESON D.

Cite as 305 Neb. 279

Samuel was present at the hospital for Taeson’s birth. Samuel 

and the child apparently had almost no further contact after this 

point. Samuel became incarcerated in November 2017 on what 

the record suggests was a drug-related offense.

In December 2017, a paternity test showed that Samuel 

was the biological father of Taeson. Candace Sturgeon, a 

caseworker with DHHS, unsuccessfully attempted to contact 

Samuel through Lachrisha and other means. Sturgeon eventually located Samuel through a DHHS computer system search 

and visited him at the jail in Saline County, Nebraska, in June 

2018. She testified at the termination hearing that she informed 

Samuel that the result of the paternity test he had taken showed 

he was Taeson’s biological father. According to Sturgeon, 

Samuel stated that he had assumed he probably was Taeson’s 

father, that he was aware Taeson was living with Lachrisha, 

and that he had personally recommended that Taeson be placed 

with her after the child was removed from his biological 

mother’s care.

According to Sturgeon, Samuel had indicated he supported Lachrisha’s potentially adopting Taeson. According to 

Sturgeon, Samuel stated “something to the effect of well I 

obviously am not an option since I’m going to be in prison 

for 30 years, so I understand that.” Sturgeon testified that she 

advised Samuel that he needed to keep her updated on his 

whereabouts, because it would be very difficult for her to know 

where he was if he was transferred.

Samuel asked Lachrisha to bring the child to county jail 

one time, but before arrangements could be made, Samuel was 

transferred to federal prison in South Carolina on a 30-year 

sentence. After the transfer, Samuel did not communicate with 

Sturgeon or DHHS to update them on his whereabouts or to 

contact Taeson. Sturgeon testified that she made largely unsuccessful efforts to contact Samuel multiple ways at least once 

a month.

Turner attended a paternity hearing on June 6, 2018, at 

which he was declared Taeson’s legal father. In October 2018, 
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Cite as 305 Neb. 279

the State moved to terminate Samuel’s and the biological 

mother’s parental rights. The motion to terminate alleged 

three grounds under Neb. Rev. Stat. § 43-292 (Reissue 2016), 

which states:

The court may terminate all parental rights between 

the parents or the mother of a juvenile born out of wedlock and such juvenile when the court finds such action 

to be in the best interests of the juvenile and it appears 

by the evidence that one or more of the following conditions exist:

. . . .

(2) 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;

. . . .

(6) Following a determination that the juvenile is one 

as described in subdivision (3)(a) of section 43-247, 

reasonable efforts to preserve and reunify the family if 

required under section 43-283.01, under the direction of 

the court, have failed to correct the conditions leading to 

the determination;

(7) The juvenile has been in an out-of-home placement 

for fifteen or more months of the most recent twenty-two 

months.

On November 19, 2018, Samuel was served in prison in 

South Carolina with a copy of the motion to terminate his 

parental rights and a summons to appear before the court for a 

hearing on the matter. In December, Samuel denied the allegations in the motion to terminate and the termination hearing 

was continued.

In December 2018, Sturgeon left a message with a caseworker at the South Carolina prison and Samuel called her 

back. During that telephone call, Sturgeon explained to 

Samuel that the State was moving to terminate his parental 

rights. Samuel stated that he did not want his parental rights 
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IN RE INTEREST OF TAESON D.

Cite as 305 Neb. 279

terminated and that he no longer approved of Taeson’s being 

placed with Lachrisha. He explained that Lachrisha was not 

“put[ting] any money on his books” and had stopped communicating with him. Samuel stated that he hoped he would be 

successful in the appeal of his criminal conviction and that his 

intent was to win his appeal and parent Taeson.

Sturgeon testified that Samuel did not make further contact 

with DHHS after December 2018. At the time of the termination hearing in March 2019, Samuel had been in prison in 

South Carolina for 8 months. Taken as a whole, the testimony 

showed that Samuel had not attempted to be involved in 

Taeson’s life either before or after his incarceration. Samuel 

had not requested photographs of Taeson and had not contacted 

him after his birth. Sturgeon explained that the service DHHS 

typically offers to parents who are incarcerated is visitation 

with the child; however, it is very difficult to offer services 

if someone is placed out of state and it is impossible to offer 

services to someone that DHHS is unable to contact. She testified that, in her view, Samuel’s parental rights should be terminated even if he wins his appeal on his criminal case because it 

is unclear how long it would take him to work through a case 

with DHHS and ensure he could care for a child.

The termination hearing was held on March 13, 2019. The 

child was represented by a guardian ad litem, and counsel 

appeared for the State.

Samuel was represented throughout the termination hearing 

by an attorney. Samuel did not appear physically or telephonically. The juvenile court recognized that Samuel denied the 

allegations in the motion to terminate. Samuel’s counsel was 

asked to address Samuel’s nonappearance, and Samuel’s counsel stated as follows:

Well, Your Honor, he’s incarcerated in North [sic] 

Carolina penitentiary system. I’ve had communication 

with him be [sic] email on and off throughout the last six 

weeks or so. I know that he does object to what — having 

his rights terminated. I’ve also tried to communicate with 
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IN RE INTEREST OF TAESON D.

Cite as 305 Neb. 279

him regarding relinquishment, which he’s been unable to 

or unwilling to sign a relinquishment, and so you know, 

I can’t imagine the Court is going to continue this out 

for 30 years ’til he can put himself in a place where he 

can parent, so I see no other alternative but moving forward today.

Following the hearing, the juvenile court filed an order 

which found that the allegations of the motion for termination of parental rights were true by clear and convincing evidence. The court enumerated its findings that (1) regarding 

§ 43-292(2), Samuel substantially neglected to give Taeson 

necessary parental care; (2) regarding § 43-292(6), Taeson 

was a juvenile as described by § 43-247(3)(a) and reasonable efforts have failed to correct conditions; (3) regarding 

§ 43-292(7), Taeson was in an out-of-home placement for 15 

or more months of the most recent 22 months; (4) it was in the 

best interests of Taeson to terminate Samuel’s parental rights; 

and (5) Samuel was unfit to parent Taeson now and in the 

future. The juvenile court terminated Samuel’s parental rights 

to Taeson.

Samuel appeals.

ASSIGNMENTS OF ERROR

On appeal, Samuel claims, summarized and restated, that 

(1) he was denied procedural due process rights at the termination hearing and (2) the juvenile court erred when it terminated 

his parental rights because DHHS had failed to make reasonable efforts to reunite him and Taeson.

STANDARDS 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. See In re Interest 

of Mainor T. & Estela T., 267 Neb. 232, 674 N.W.2d 442 

(2004).
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IN RE INTEREST OF TAESON D.

Cite as 305 Neb. 279

[2] Juvenile cases are reviewed de novo on the record, and 

an appellate court is required to reach a conclusion independent of the juvenile court’s findings. See In re Interest of Zoie 

H., 304 Neb. 868, 937 N.W.2d 801 (2020).

ANALYSIS

Due Process.

Samuel, who was incarcerated in South Carolina, had his 

parental rights to Taeson terminated at a hearing at which he 

was represented by counsel; he was not physically present nor 

did he participate telephonically. In Samuel’s brief, he contends 

that he was denied due process generally because he did not 

appear “in some fashion,” brief for appellant at 12, and, in particular, he was denied a “telephonic or video hearing,” brief for 

appellant at 9. We determine that under the facts of this case, 

Samuel was not denied due process.

[3] It is settled in Nebraska, and Samuel agrees, that an 

incarcerated parent’s physical presence is not necessary at a 

hearing to terminate parental rights, provided that the parent 

has been afforded procedural due process. See, In re Interest of 

Mainor T. & Estela T., 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.’” Mathews v. Eldridge, 424 

U.S. 319, 333, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). We have 

explained that a juvenile court must consider several factors in 

determining whether to allow a parent’s attendance, which factors are as follows:

the delay resulting from prospective parental attendance, 

the need for disposition of the proceeding within the 

immediate future, the elapsed time during which the 

proceeding has been pending before the juvenile court, 

the expense to the State if the State will be required to 

provide transportation for the parent, the inconvenience or 

detriment to parties or witnesses, the potential danger or 

security risk which may occur as a result of the parent’s 
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Cite as 305 Neb. 279

release from custody or confinement to attend the hearing, the reasonable availability of the parent’s testimony 

through a means other than parental attendance at the 

hearing, and the best interests of the parent’s child or 

children in reference to the parent’s prospective physical 

attendance at the termination hearing.

In re Interest of L.V., 240 Neb. at 416, 482 N.W.2d at 258-59.

[4] With respect to the participation of the incarcerated parent, we have stated that in most situations, in order to trigger 

the requirements of In re Interest of L.V., the initiative is properly placed on the parent or the parent’s attorney to notify the 

court of the parent’s incarceration and to request attendance. 

See In re Interest of Mainor T. & Estela T., supra. We logically apply this principle to an incarcerated parent’s request to 

appear telephonically. In the present case, no such request was 

made and, to the contrary as seen in the material quoted above, 

such appearance was waived.

[5] We are aware of jurisdictions which require juvenile 

courts to either give incarcerated parents the opportunity to 

participate by telephone in the entire hearing, e.g., In Interest 

of M.D., 921 N.W.2d 229 (Iowa 2018) (amended Mar. 5, 2019), 

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. See, E.J.S. v. Dept. of Health & Soc. Serv., 754 P.2d 

749 (Alaska 1988); In re Randy Scott B., 511 A.2d 450 (Me. 

1986). However, in light of a juvenile court’s relative inability to compel an out-of-state correctional facility to allow 

an incarcerated parent to participate in an entire hearing, we 

decline to require juvenile courts to follow a rigid procedure of 

telephonic participation for the entire hearing in all cases. Like 

several other jurisdictions that have thoroughly considered the 

issue, we 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. See, In re C.G., 954 N.E.2d 910 (Ind. 
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Cite as 305 Neb. 279

2011) (cases collected); In re D.C.S.H.C., 733 N.W.2d 902 

(N.D. 2007); State ex rel. Jeanette H. v. Pancake, 207 W. Va. 

154, 529 S.E.2d 865 (2000).

In this case, Samuel was aware that Taeson was adjudicated 

as a juvenile under § 43-247(3)(a). Samuel received notice of 

the termination hearing, filed a pleading denying the allegations, and was represented by counsel throughout the termination proceeding. Compare In re Interest of Davonest D. et 

al., 19 Neb. App. 543, 809 N.W.2d 819 (2012) (concluding 

due process violated for inmate who was neither present nor 

represented by counsel at termination hearing). The record 

shows that Samuel had been communicating with counsel and 

that Samuel’s counsel cross-examined the witness and had the 

opportunity to present evidence, which he declined. Samuel did 

not request to be present or telephonically participate at the termination hearing and did not request a continuance. The hearing on parental termination had already been continued twice, 

and the juvenile court properly exercised its discretion when it 

conducted the hearing with Samuel’s interests represented by 

counsel. Samuel was not denied procedural due process under 

the circumstances.

Termination.

Samuel contends that the juvenile court erred when it terminated his parental rights under § 43-292(6) because the State 

did not make reasonable efforts to reunite him with Taeson. 

See Neb. Rev. Stat. § 43-283.01 (Cum. Supp. 2018) and 

§ 43-292(6). We reject this assignment of error.

The juvenile court found sufficient evidence existed under 

§ 43-292(2), (6), and (7) to support a termination of Samuel’s 

parental rights. We have held that any one of the bases for termination of parental rights codified by § 43-292 can serve as 

the basis for the termination of parental rights when coupled 

with evidence that termination is in the best interests of the 

child. In re Interest of Sir Messiah T. et al., 279 Neb. 900, 782 

N.W.2d 320 (2010).
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Cite as 305 Neb. 279

Samuel has not raised a challenge to the sufficiency of the 

evidence establishing that under § 43-292(2), he substantially 

and continuously or repeatedly neglected and refused to give 

Taeson necessary parental care and protection, or that under 

§ 43-292(7), Taeson had been in an out-of-home placement 

for 15 or more months of the most recent 22 months. Each of 

these subsections is a statutory basis for termination. See In re 

Interest of Sir Messiah T. et al., supra. We find support in the 

record establishing grounds for termination under § 43-292(2) 

and (7). In addition, the evidence demonstrates that termination 

of Samuel’s parental rights is in the best interests of Taeson. At 

the time of the proceedings, Samuel had virtually no relationship with Taeson and there was no evidence that Samuel had 

taken steps to establish a relationship. Samuel was sentenced 

on a drug-related offense to be incarcerated for the entirety of 

Taeson’s juvenile years. Further, the juvenile court’s finding 

that Samuel was unfit was supported by the record.

Because the State needed to prove only one basis for termination, and did so here, we need not further analyze Samuel’s 

claim that the State made insufficient efforts to preserve and 

reunify the family under § 42-292(6). See In re Interest of Sir 

Messiah T. et al., supra.

CONCLUSION

The juvenile court did not deny Samuel procedural due 

process, and it did not err when it determined that terminating Samuel’s parental rights to Taeson was appropriate under 

§ 43-292(2) and (7) and was in the best interests of Taeson. 

Accordingly, we affirm.

Affirmed.