In re Interest of Leyton C. & Landyn C. ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/20/2020 08:08 AM CST
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF LEYTON C. & LANDYN C.
Cite as 307 Neb. 529
In re Interest of Leyton C. and Landyn C.,
children under 18 years of age.
State of Nebraska, appellee, v.
Madison C., appellant.
___ N.W.2d ___
Filed October 23, 2020. No. S-19-423.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juve-
nile cases de novo on the record and reaches its conclusions indepen-
dently of the juvenile court’s findings. When the evidence is in conflict,
however, an appellate court may give weight to the fact that the lower
court observed the witnesses and accepted one version of the facts over
the other.
2. Parental Rights: Proof. In order to terminate an individual’s parental
rights, the State must prove by clear and convincing evidence that one of
the statutory grounds enumerated in Neb. Rev. Stat. § 43-292 (Reissue
2016) exists and that termination is in the children’s best interests.
3. Juvenile Courts: Minors. The foremost purpose and objective of the
Nebraska Juvenile Code is to promote and protect the juvenile’s best
interests, and the juvenile code must be construed to assure the rights of
all juveniles to care and protection.
4. Parental Rights: Presumptions: Proof. A child’s best interests are pre-
sumed to be served by having a relationship with his or her parent. This
presumption is overcome only when the State has proved that the parent
is unfit.
5. Parental Rights: Parent and Child. In proceedings to terminate paren-
tal rights, the law does not require perfection of a parent; instead, courts
should look for the parent’s continued improvement in parenting skills
and a beneficial relationship between parent and child.
6. Parental Rights. Last-minute attempts by parents to comply with the
rehabilitation plan do not prevent termination of parental rights.
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF LEYTON C. & LANDYN C.
Cite as 307 Neb. 529
7. ____. When a parent is unable or unwilling to rehabilitate himself or
herself within a reasonable period of time, the child’s best interests
require termination of parental rights.
8. Parental Rights: Time. The 15-month condition contained in Neb. Rev.
Stat. § 43-292(7) (Reissue 2016) provides a reasonable timetable for
parents to rehabilitate themselves.
9. Courts: Appeal and Error. Upon reversing a decision of the Nebraska
Court of Appeals, the Nebraska Supreme Court may consider, as it
deems appropriate, some or all of the assignments of error the Court of
Appeals did not reach.
10. Parental Rights. One need not have physical possession of a child to
demonstrate the existence of neglect contemplated by Neb. Rev. Stat.
§ 43-292(2) (Reissue 2016).
11. Parent and Child: Child Custody. A parent’s failure to provide an
environment to which his or her children can return can establish sub-
stantial, continual, and repeated neglect.
12. Parental Rights: Proof. Any one of the bases for termination of paren-
tal rights codified by Neb. Rev. Stat. § 43-292 (Reissue 2016) 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.
Petition for further review from the Court of Appeals,
Pirtle, Riedmann, and Welch, Judges, on appeal thereto
from the Separate Juvenile Court of Lancaster County, Linda
S. Porter, Judge. Judgment of Court of Appeals reversed, and
cause remanded with direction.
Melanie A. Kirk, of Johnson, Flodman, Guenzel & Widger,
for appellant.
Patrick F. Condon, Lancaster County Attorney, Maureen
Lamski, and Thomas Gage, Senior Certified Law Student, for
appellee.
Joy Shiffermiller, of Shiffermiller Law Office, P.C., L.L.O.,
guardian ad litem.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF LEYTON C. & LANDYN C.
Cite as 307 Neb. 529
Cassel, J.
INTRODUCTION
The juvenile court terminated a mother’s parental rights
to her children. The Nebraska Court of Appeals reversed,
concluding that the State failed to prove that termination was
in the children’s best interests. 1 We granted the petitions for
further review of the children’s guardian ad litem (GAL) and
the State. Because clear and convincing evidence supported
termination of parental rights, we reverse the Court of Appeals’
decision and remand the cause with direction.
BACKGROUND
Madison C. is the mother of Leyton C., born in August
2015, and Landyn C., born in February 2017. The children’s
father has relinquished his parental rights and is not involved
in this appeal.
Procedural Background
In July 2016, the State filed a petition seeking to adjudicate
Leyton. 2 The petition alleged that Madison left Leyton in the
care of Madison’s mother in November 2015 without making
proper provisions for his care, that Madison tested positive for
methamphetamine in June 2016, that Madison failed to con-
sistently provide a safe and stable home for Leyton, and that
Leyton was at risk of harm.
In September 2016, the juvenile court adjudicated Leyton
following Madison’s plea of no contest to the allegations in
the petition. The court ordered Madison not to remove Leyton
from his maternal grandparents’ home, where Madison and
Leyton were residing. It further ordered Madison to refrain
from using or possessing controlled substances and to submit
to random drug testing.
1
In re Interest of Leyton C. & Landyn C., 28 Neb. Ct. App. 95, 940 N.W.2d 288
(2020).
2
See Neb. Rev. Stat. § 43-247(3)(a) (Supp. 2015).
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF LEYTON C. & LANDYN C.
Cite as 307 Neb. 529
In a December 1, 2016, dispositional order, the court removed
Leyton from Madison’s care. The court placed Leyton’s physi-
cal custody with Madison’s mother and allowed Madison to
reside with them. The court noted that Madison failed to enter
outpatient substance abuse treatment.
In January 2017, the court prohibited any contact between
Leyton and Madison’s boyfriend, Jaden R. In February, the State
moved for an emergency placement change because Madison’s
mother, while accompanied by Leyton, gave Jaden a ride. The
court subsequently placed Leyton with Madison’s sister.
In March 2017, the State filed a supplemental petition,
seeking to adjudicate Landyn, Madison’s newborn baby, as
a juvenile under § 43-247(3)(a) (Reissue 2016). The petition
alleged that Landyn was in a situation dangerous to life or
limb or injurious to his health or morals because his meconium
tested positive for amphetamines, Madison tested positive for
methamphetamine, and Madison failed to comply with orders
to correct the adjudicated issues regarding Leyton.
In April 2017, the court adjudicated Landyn after Madison
pled no contest to the allegations of the supplemental petition.
The court placed Landyn in a nonrelative foster home. Leyton
joined Landyn at that foster home in July.
In November 2017, after Madison began cooperating with
services, the court ordered that she have monitored parent-
ing time with the children. The State later moved for an order
approving a change in placement. On January 3, 2018, the
court approved placing the children with Madison.
On July 3, 2018, the court entered an order directing place-
ment of the children outside Madison’s home. It referenced
Madison’s “failure to participate in virtually all court ordered
serv­ices over the last three months, including individual
­counseling/treatment, random drug testing, and family support.”
On October 11, 2018, the State filed a motion for termina-
tion of Madison’s parental rights. It alleged that termination
of such rights was in the children’s best interests, and it set
forth several statutory grounds for termination under Neb. Rev.
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF LEYTON C. & LANDYN C.
Cite as 307 Neb. 529
Stat. § 43-292(2), (4), and (6) (Reissue 2016). As to Leyton
only, it alleged the ground enumerated in § 43-292(7).
Termination Hearing
The juvenile court conducted a hearing over several dates
beginning on December 14, 2018, and concluding on February
26, 2019.
The evidence established that at the time of Leyton’s birth,
Madison was 181⁄2 years old and living with her parents.
Approximately 1 month later, in September 2015, Madison
met Jaden. Their relationship moved quickly. In November,
Madison accompanied Jaden to South Dakota for 3 days. Upon
her return, she was cited for child abandonment and unlawful
use of a motor vehicle. At trial, Madison did not recall admit-
ting to a police officer that she had left Leyton for approxi-
mately 18 days.
Jaden became controlling. Madison testified that he would
not let her return home to see Leyton or call her family. When
she was allowed to see her family, it was usually for “30 min-
utes at max” and in Jaden’s presence. Madison testified that
starting in 2016, she would be “lucky [to] see [Leyton] at all
during the week.” Because remarks by Jaden caused Madison
to be concerned for Leyton’s safety, she left Leyton with
her family.
In January 2016, Jaden began physically abusing Madison.
He punched and kicked her and used other implements to hurt
her. He threatened her life at knifepoint. One witness charac-
terized Jaden’s abuse of Madison as “horrific” and “severe.”
Madison testified that Jaden hurt her several times a week until
May 2017, when he became incarcerated.
According to Madison, Jaden made her use methamphet-
amine starting in 2016. But she admitted that not all of the
methamphetamine she used with Jaden was against her will.
After she tested positive for methamphetamine in June, she
claimed that she had been forced to use the drug. When both
Madison and Landyn tested positive for methamphetamine
in approximately March 2017, Madison maintained that a
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF LEYTON C. & LANDYN C.
Cite as 307 Neb. 529
friend had put something in her drink. Madison’s case man-
ager from July 2016 to May 2017 testified that Madison never
admitted to “knowingly” using methamphetamine.
In June 2016, Madison completed a substance abuse eval­
uation which recommended “Level One Outpatient Therapy.”
Madison did not engage in the recommended outpatient treat-
ment or in individual therapy. According to Madison’s case
manager, Madison “wanted to get through the pregnancy and
ensure that Landyn would be born safely before engaging in
services.” Her cooperation with drug testing was inconsistent.
Madison’s case manager testified that she missed many tests
between November 2016 and April 2017.
Emily Goodman, a licensed independent mental health prac-
titioner, initially met with Madison in March 2017 to engage in
outpatient drug and alcohol treatment. Goodman set up recur-
ring appointments to meet with Madison twice per week, but
Madison did not attend between March 10 and June 20. As of
July 14, when weekly therapy was recommended, Madison
maintained regular attendance, not missing an appointment
until September 29. Goodman believed Madison had one of
the most severe cases of post-traumatic stress disorder (PTSD)
that Goodman had seen. Goodman last met with Madison in
March 2018.
Madison agreed that she did not engage in any services until
the fall of 2017. She explained that “Jaden was still around so,
I mean, it was kind of difficult and I didn’t know what was
going on.” After Madison’s parenting time was reduced to once
per week in August 2017, Madison’s participation improved
and she began attending visits. Her parenting time was then
increased to twice per week. In November, the Department of
Health and Human Services recommended monitored parenting
time because of Madison’s compliance with services.
After placement of the children with Madison in January
2018, Madison’s participation in services waned. She met with
Goodman once in January, even though it was recommended
that they meet weekly. She ceased regularly submitting to
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF LEYTON C. & LANDYN C.
Cite as 307 Neb. 529
drug testing and attending team meetings. When Goodman
brought up Madison’s noncompliance with drug testing,
Madison replied that she was tired of others being involved in
her life and “just wanted to be done with all of it.” Madison
relapsed using methamphetamine in approximately March,
explaining that she feared losing her children and wanted to
“numb [her] feelings.”
In approximately April 2018, Madison began a relationship
with Riley S. She was not honest with her caseworker or her
treatment team about the relationship. At trial, she admitted
using drugs with him. Because Riley “had a warrant out for
assault, . . . he was not allowed to be around the [children].”
Madison admitted that Riley was in her apartment during
a visit.
Gay Malone, a child and family service specialist with
the Department of Health and Human Services, began work-
ing on Madison’s case in May 2017. At that time, services
implemented for Madison included random drug screening,
supervised visitation, and individual therapy. Madison did not
consistently participate in those services. Malone testified that
Madison either was unavailable for visits or was emotionally
upset at such visits about trying to pay rent and having the
case ongoing. In May 2018, “drop-ins” were implemented in
an effort to ensure the children’s safety, but Madison did not
cooperate with the drop-ins.
On July 2, 2018, the children were removed from Madison’s
care. Hair follicle testing on the children completed on July 6
revealed that Leyton tested positive for exposure to metham-
phetamine and marijuana and Landyn tested positive for expo-
sure to marijuana. Madison denied using methamphetamine,
but stated that her friends had used the drug in her apart-
ment. At the termination trial, however, Madison admitted that
Leyton tested positive for methamphetamine because she used
the drug in her residence.
In July 2018, Sarah Worley began providing individual
therapy to Madison, focusing on PTSD and substance use.
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF LEYTON C. & LANDYN C.
Cite as 307 Neb. 529
Madison initially missed four sessions in July and August and
did not attend on a consistent basis. Madison began drug test-
ing on July 24, but she participated infrequently in August.
Worley completed an updated substance abuse evaluation,
which recommended residential treatment. Upon Madison’s
arrival for residential treatment in August, she tested positive
for methamphetamine, amphetamines, marijuana, and opiates.
Madison ultimately left residential treatment after a few days,
because someone she knew at the time of her abuse was at the
program. Worley believed that having such a person present
would have made treatment more difficult. At trial, Madison
also testified that she left that treatment because it “wasn’t
[her] niche,” explaining that residential treatment “was too
much.” Worley helped Madison find an alternative way to
address her substance abuse needs. Approximately a week after
Madison left residential treatment, she began intensive outpa-
tient treatment. The record is unclear whether she began that
treatment in August or September.
The court received recordings of September 2018 telephone
calls between Madison and Riley while he was in jail and
of a jail visit with Riley. At the time of the telephone calls,
Madison had told Worley that she was no longer dating Riley.
In the recordings, Madison and Riley expressed their love
for one another and their desire to move out of state and be
together forever.
The conversations between Madison and Riley concerned
Malone. One telephone call occurred during a visit, and Malone
believed she could hear Leyton’s voice. Malone was disturbed
that Madison’s mother—who had supported Madison’s rela-
tionship with Jaden—was aware that Madison accepted a jail
telephone call from Riley. Malone noted that Madison and
Riley talked as though he had stayed in Madison’s apartment
since the spring of 2018. Malone was troubled that Madison
would not sign a release to allow her most recent evaluator to
talk to Madison’s parents—with whom Madison was report-
edly living at the time. Malone questioned whether Madison
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF LEYTON C. & LANDYN C.
Cite as 307 Neb. 529
was truly living with her parents because Madison said during
one of the calls that she needed to get her belongings from
Riley’s grandmother’s house. Malone testified that when she
viewed the jail video between Riley and Madison, she “d[id]
not see a stress — [PTSD] reaction” when Madison was telling
Riley about Jaden’s claims of being violent in prison.
In September 2018, Madison tested positive for metham-
phetamine. In October, Madison twice tested positive for clo­
nazepam, a medication for which she did not have a prescription.
Worley was troubled that Madison did not take responsibility
for the clonazepam result. At trial, Madison attributed testing
positive for clonazepam to taking one of Riley’s medications.
She explained that although she “broke up with him after he
got outta jail,” she “hung out with him” in October. Worley
testified that Madison told her in September that she had bro-
ken up with Riley “because of his drug use and [because] he
wasn’t a good influence in her life.” Madison tested positive for
morphine in December. Worley believed that the low level of
drug detected was consistent with Madison’s report of having
eaten poppyseeds.
Worley testified that Madison had made excellent progress
in the 3 months prior to trial. Worley explained that Madison
had been “continuously attending treatment,” had been partici-
pating fully, and had been honest about what had happened to
her. Worley noted that Madison had completed intensive out-
patient treatment and that Madison continued to engage with
relapse prevention services. Worley felt that Madison’s progno-
sis was “good.” Although Madison had made progress during
individual therapy, Worley testified that Madison still had work
to do with regard to her PTSD.
A registered nurse who has worked extensively in the area
of domestic violence offered general testimony. She testified
that victims of domestic violence sometimes deny or minimize
what is occurring or want to disbelieve that someone could
do such things to them. Recovery takes time, and substance
abuse is often seen along with domestic violence because drug
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF LEYTON C. & LANDYN C.
Cite as 307 Neb. 529
usage is a coping mechanism. According to the registered
nurse, if there are coexisting issues of domestic violence and
substance abuse, it is expected that the recovery time would
be longer. Recovery from domestic violence can be manifested
in different ways, including the ability to function on a daily
basis, obtaining employment, managing emotional or psycho-
logical symptoms from the violence, or managing substance
abuse. The registered nurse was not familiar with Madison
aside from “very limited information” and had no knowledge
whether any of her testimony applied to Madison.
Obtaining employment had long been a goal set for Madison.
A November 2017 order directed her to work with family sup-
port services regarding gaining employment. But Madison
did not take advantage of the services offered. Malone was
unaware of Madison’s having any job prior to the filing of
the motion to terminate parental rights in October 2018. That
month, Madison obtained a job, working 2 days a week. She
was unemployed at the time of the February 2019 hearing.
The evidence regarding Madison’s parenting of the children
was positive. Goodman testified that Madison was able to
adequately and appropriately parent her children, and she did
not observe anything leading her to believe that Madison was
a safety concern or a risk to the children. A family support
worker similarly testified that she never had to intervene due
to safety concerns. About the only concern expressed by any
witness was that Madison “wasn’t fully parenting the children”
because her family often attended visits and interacted with
the children.
Madison believed that she had changed and that she would
no longer endanger her children. Madison testified that she
knows how to ask for help and that she does not use drugs. She
recognized that Riley was not a good influence and should not
be around her children.
Malone believed termination of Madison’s parental rights
was in the children’s best interests. She explained that the
children deserve the stability that comes from permanency and
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF LEYTON C. & LANDYN C.
Cite as 307 Neb. 529
that both children had been out of Madison’s care for 16 months
of the most recent 22 months. Malone testified that Madison
had been unable to demonstrate the sustained change that was
necessary for her to provide a stable and permanent home for
the children. Malone recognized that Madison demonstrated
a change from August 2017 through February 2018, but that
Madison then stopped participating in services, resulting in the
children’s removal from her care. Malone did not believe that
survivors of domestic violence should be given extra time to
reunify with their children. She explained that “children don’t
understand that the reason that they’re not reunified . . . is
because their mother was a survivor of domestic violence, or
used substances to delay her recovery.”
Other witnesses provided insight on the children’s interests.
Goodman testified that “the more removals from a primary
caregiver[,] the increase of traumatic response for children.”
Worley testified that being in foster care for an extended
period can damage a child’s “sense of self and . . . belonging.”
Leyton’s therapist testified that it was “especially harmful for
younger children to move back and forth between home envi-
ronments because . . . the time of attachment and significant
development for most children occurs between those ages of
zero and five.” Disruption may cause a young child to believe
that he or she is unsafe or that the world is unsafe. She testi-
fied that Leyton needed permanency “as immediately as pos-
sible,” noting that he had been removed twice and that he was
very young.
Juvenile Court’s Decision
In April 2019, the court entered an order terminating
Madison’s parental rights. The court observed that Madison
“has struggled with honesty when it comes to her own use
of controlled substances and her relationships with violent
partners” throughout this case. It stated that the testimony of
Madison and Riley that they had ended their relationship “did
not appear credible and appeared to be situationally moti-
vated by the pending termination of parental rights rather than
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF LEYTON C. & LANDYN C.
Cite as 307 Neb. 529
any honest recognition by [Madison] that he was an unhealthy
influence for her or for her children.”
The court found that the State proved by clear and convinc-
ing evidence that termination of Madison’s parental rights was
warranted. It found the State proved grounds for termination
under § 43-292(2), (4), and (6) as to both children and under
§ 43-292(7) as to Leyton. The court also found that termination
of parental rights was in the children’s best interests.
Court of Appeals’ Decision
Upon Madison’s appeal, a majority of the Court of Appeals
determined that the juvenile court erred in concluding that
termination of Madison’s parental rights was in the children’s
best interests. Because the majority’s resolution on that issue
was dispositive, it did not consider whether the State proved a
statutory ground for termination.
The majority found that Madison demonstrated a continued
improvement in her parenting skills and had established a
beneficial relationship with her children. The majority recog-
nized that it would have been in the children’s best interests
for Madison to end her relationship with Jaden and engage
in services, but stated that “her inability or unwillingness to
do so must be viewed in consideration of her young age and
the abusive relationship in which she was transfixed.” 3 After
evaluating Madison’s progress “in the context of the situation
in which the parent exists,” the majority found that termina-
tion of Madison’s parental rights “came too quickly.” 4 The
majority reasoned that “[g]iven Madison’s young age and
trauma experience, we cannot find that the timeline of this
case provides her with a ‘reasonable time’ in which to reha-
bilitate herself.” 5
3
In re Interest of Leyton C. & Landyn C., supra note 1, 28 Neb. Ct. App. at
107, 940 N.W.2d at 296.
4
Id. at 109, 940 N.W.2d at 297.
5
Id. at 110, 940 N.W.2d at 298.
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307 Nebraska Reports
IN RE INTEREST OF LEYTON C. & LANDYN C.
Cite as 307 Neb. 529
The dissenting judge noted that the juvenile court specifically
recognized Madison had struggled with honesty throughout the
case. The judge found “particularly concerning . . . Madison’s
inability to separate herself from the type of unhealthy relation-
ships that precipitated many of her problems.” 6
We granted the petitions for further review of the GAL and
the State.
ASSIGNMENTS OF ERROR
The GAL assigns that the Court of Appeals erred in (1) find-
ing that Madison had made “‘continued progress’” in correct-
ing the conditions that led to the adjudication, (2) finding that
the State failed to prove by clear and convincing evidence that
Madison was unable or unwilling to rehabilitate herself within
a reasonable time, and (3) finding that the State failed to prove
by clear and convincing evidence that the children’s best inter-
ests were served by terminating Madison’s parental rights.
The State assigns that the Court of Appeals erred in (1) fail-
ing to follow the long line of cases establishing that juveniles
should not have to wait for uncertain parental maturity 7 and (2)
failing to give deference to the trial judge’s assessment of cred-
ibility and relying heavily on the testimony of Madison.
STANDARD OF REVIEW
[1] 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
lower court observed the witnesses and accepted one version of
the facts over the other. 8
6
Id. at 115, 940 N.W.2d at 301 (Pirtle, Judge, dissenting).
7
In re Interest of Alec S., 294 Neb. 784, 884 N.W.2d 701 (2016); In re
Interest of Jahon S., 291 Neb. 97, 864 N.W.2d 228 (2015); In re Interest
of Octavio B. et al., 290 Neb. 589, 861 N.W.2d 415 (2015).
8
In re Interest of Vladimir G., 306 Neb. 127, 944 N.W.2d 309 (2020).
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF LEYTON C. & LANDYN C.
Cite as 307 Neb. 529
ANALYSIS
[2] In order to terminate an individual’s parental rights, the
State must prove by clear and convincing evidence that one of
the statutory grounds enumerated in § 43-292 exists and that
termination is in the children’s best interests. 9 The Court of
Appeals began with the best interests component, finding it to
be dispositive. We likewise begin our analysis by considering
the children’s best interests.
Best Interests
[3] The GAL and the State collectively assign five errors
which essentially challenge the Court of Appeals’ determi-
nation that the juvenile court erred in finding that the State
proved by clear and convincing evidence that terminating
Madison’s parental rights was in the children’s best interests.
We are mindful that the foremost purpose and objective of the
Nebraska Juvenile Code is to promote and protect the juve-
nile’s best interests, and the juvenile code must be construed to
assure the rights of all juveniles to care and protection. 10
[4] A child’s best interests are presumed to be served by
having a relationship with his or her parent. This presumption
is overcome only when the State has proved that the parent is
unfit. 11 In the context of the constitutionally protected relation-
ship between a parent and a child, 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 has caused, or probably
will result in, detriment to a child’s well-being. 12 The best
interests analysis and the parental fitness analysis are separate
9
In re Interest of Donald B. & Devin B., 304 Neb. 239, 933 N.W.2d 864
(2019).
10
In re Interest of Veronica H., 272 Neb. 370, 721 N.W.2d 651 (2006).
11
In re Interest of Alec S., supra note 7.
12
Id.
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IN RE INTEREST OF LEYTON C. & LANDYN C.
Cite as 307 Neb. 529
inquiries, but each examines essentially the same underlying
facts as the other. 13
The children’s best interests and Madison’s fitness to parent
them were affected by her drug use and her choice of inti-
mate partners. There is no dispute that Madison began using
methamphetamine in 2016, that Landyn’s meconium tested
positive for amphetamines, and that hair follicle testing of the
children in July 2018 showed that Leyton had been exposed
to methamphetamine and marijuana and that Landyn had been
exposed to marijuana. Goodman testified that parents who are
actively under the influence of methamphetamine typically
show difficulty providing a safe environment for their children.
At the termination trial, evidence was adduced regarding three
of Madison’s relationships with men. All three men had used
drugs and had spent time in jail. Such relationships put the
children’s safety at risk.
[5] We have stated that in proceedings to terminate parental
rights, the law does not require perfection of a parent; instead,
courts should look for the parent’s continued improvement in
parenting skills and a beneficial relationship between parent
and child. 14 The GAL assigns that the Court of Appeals erred in
finding that “Madison has made continued progress” 15 and that
“the State has failed to prove by clear and convincing evidence
that Madison is unable or unwilling to rehabilitate herself
within a reasonable time.” 16 We agree.
[6] Madison had been formally under the juvenile court’s
jurisdiction since Leyton’s adjudication in September 2016.
It was not until approximately a year later that she began
complying with services implemented to correct the condi-
tions leading to the adjudication. Her compliance lasted for
13
Id.
14
In re Interest of Joseph S. et al., 291 Neb. 953, 870 N.W.2d 141 (2015).
15
In re Interest of Leyton C. & Landyn C., supra note 1, 28 Neb. Ct. App. at
111, 940 N.W.2d at 298.
16
Id. at 112, 940 N.W.2d at 299.
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
IN RE INTEREST OF LEYTON C. & LANDYN C.
Cite as 307 Neb. 529
roughly 5 months and resulted in the return of her children to
her care. Madison then independently cared for the children
for approximately 6 months—from January to July 2018—
and became overwhelmed after 2 months. Her progress and
participation following the children’s return was short lived,
and the children were removed in July. The Court of Appeals
focused on Madison’s progress from September, when she
began substance abuse treatment, through the termination hear-
ing that concluded in February 2019. But Madison began that
substance abuse treatment 1 month before the filing of the
termination motion. Since at least February 1, 2017, she had
been ordered by the court to complete outpatient treatment
for substance abuse. Last-minute attempts by parents to com-
ply with the rehabilitation plan do not prevent termination of
parental rights. 17
The Court of Appeals excused Madison’s initial inability
to progress due in part to her abusive relationship with Jaden.
The court stated that Madison made “overall progress” after
ending that relationship. 18 But it took Madison several months
after ending her relationship with Jaden to begin participating
with services. And, as we noted above, shortly after the chil-
dren were placed with Madison, her progress went downhill.
She used methamphetamine. She stopped cooperating with
drug tests and other services. She avoided communication
with her caseworker. Rather than showing continued progress,
Madison’s involvement in services has fluctuated. At the time
of trial, she was on an upward trend, but her history makes it
difficult to believe she is committed to make sustained prog-
ress. While we are sensitive to the abuse suffered by Madison,
our focus is on the children’s best interests.
The Court of Appeals also downplayed Madison’s “ques-
tionable choices,” stating that “most of these choices occurred
17
In re Interest of Alec S., supra note 7.
18
In re Interest of Leyton C. & Landyn C., supra note 1, 28 Neb. Ct. App. at
108, 940 N.W.2d at 297.
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Cite as 307 Neb. 529
before she engaged in mental health and substance abuse
treatment.” 19 We have trouble reconciling that statement with
the evidence that Madison tested positive for methamphet-
amine in September 2018, tested positive for a nonprescribed
medication twice in October, and was still spending time with
Riley in October following his release from jail.
The State contends that the Court of Appeals erred by taking
Madison’s testimony at face value and failing to consider the
juvenile court’s assessment of credibility. The juvenile court
specifically stated that Madison had “struggled with honesty”
regarding her drug use and intimate partners. Even so, the
Court of Appeals expressed reluctance to “discredit” Madison’s
denial of any drug use after early September 2018. 20
The evidence warrants deferring to the juvenile court’s
assessment of Madison’s credibility. According to Goodman,
honesty is pivotal to having a positive outcome in a therapeu-
tic relationship. It appears that after Madison told Goodman
that she “wanted to find somebody who wasn’t involved in
any criminal activity, that did not use any drugs,” Madison
became involved with Riley—somebody involved in crimi-
nal activity who used drugs. At trial, Madison admitted that
she was not honest with her caseworker or her treatment
team about her relationship with Riley. Worley discussed the
importance of being honest in treatment. Although there was
evidence that Madison and Riley discussed living together and
exchanging rings, Madison had not shared that information
in therapy with Worley. Madison lied about Riley’s being in
her apartment during a visit with the children. She admitted
lying to the court about using drugs with Riley and lying to
her family about her drug use. Worley believed that Madison
was honest with her as far as drug use. Thus, Worley did not
think that Madison voluntarily used drugs prior to March
2018. But at trial, Madison admitted that some of her drug use
with Jaden was voluntary. And Madison told an evaluator in
19
Id. at 109, 940 N.W.2d at 297.
20
Id. at 110, 940 N.W.2d at 298.
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Cite as 307 Neb. 529
November that she relapsed on methamphetamine in August,
but the evidence showed that she used in March, April,
and May.
Although the Court of Appeals highlighted Madison’s youth
and expressed awareness that “children should not be sus-
pended in foster care awaiting uncertain parental maturity,” 21
we agree with the State that this is not a case where the chil-
dren should be forced to forgo permanency and linger in foster
care. Leyton has been placed with Madison’s mother, then
with Madison’s sister, then with a nonrelative foster family,
then with Madison, and then back to the foster family. Landyn
has been placed with the nonrelative foster family, then with
Madison, and then back to the foster family. Goodman testi-
fied that “the more removals from a primary caregiver[,] the
increase of traumatic response for children.” Leyton’s therapist
testified that Leyton was experiencing anxiety and had a his-
tory of nightmares and night terrors.
[7,8] We have stated that when a parent is unable or unwill-
ing to rehabilitate himself or herself within a reasonable period
of time, the child’s best interests require termination of paren-
tal rights. 22 The 15-month condition contained in § 43-292(7)
provides a reasonable timetable for parents to rehabilitate
themselves. 23 Madison has failed to do so. Upon our de novo
review of the record, we conclude that the Court of Appeals
erred in finding that the State failed to prove by clear and
convincing evidence that the termination of Madison’s parental
rights was in the children’s best interests. We reverse the Court
of Appeals’ decision in that regard.
21
Id. at 112, 940 N.W.2d at 299.
22
See, e.g., In re Interest of Walter W., 274 Neb. 859, 744 N.W.2d 55 (2008);
In re Interest of Destiny A. et al., 274 Neb. 713, 742 N.W.2d 758 (2007);
In re Interest of Phoenix L., 270 Neb. 870, 708 N.W.2d 786 (2006),
disapproved on other grounds, In re Interest of Destiny A. et al., supra
note 22.
23
See In re Interest of Alec S., supra note 7.
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Statutory Grounds
[9] Upon reversing a decision of the Court of Appeals, we
may consider, as we deem appropriate, some or all of the
assignments of error the Court of Appeals did not reach. 24 Due
to its conclusion that the State failed to prove termination was
not in the children’s best interests, the Court of Appeals did not
address whether statutory grounds for termination existed.
The juvenile court determined that the State proved grounds
as to both children under § 43-292(2), (4), and (6), and as to
Leyton under § 43-292(7). We begin with consideration of
whether the State proved by clear and convincing evidence
that Madison “substantially and continuously or repeatedly
neglected and refused to give the juvenile or a sibling of the
juvenile necessary parental care and protection.” 25
[10] The evidence presented at the termination hearing dem-
onstrated that Madison failed to provide her young children
with necessary parental care and protection for a prolonged
period of time. We recognize that one need not have physical
possession of a child to demonstrate the existence of neglect
contemplated by § 43-292(2). 26 During Madison’s relationship
with Jaden, which lasted over 11⁄2 years, she left Leyton with
her parents, visiting him infrequently. Landyn was placed out
of Madison’s care for nearly the first year of his life. He has
spent a mere 6 months in Madison’s care.
[11] A parent’s failure to provide an environment to which
his or her children can return can establish substantial, con-
tinual, and repeated neglect. 27 Madison’s drug use has impeded
the ability to return the children to her care. She began using
methamphetamine prior to Leyton’s adjudication and contin-
ued using the drug up until the month prior to the filing of
the motion to terminate parental rights. She continued using
24
McEwen v. Nebraska State College Sys., 303 Neb. 552, 931 N.W.2d 120
(2019).
25
See § 43-292(2).
26
See In re Interest of Joseph S. et al., supra note 14.
27
Id.
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Cite as 307 Neb. 529
this drug even though services were offered to help her and
even after beginning substance abuse treatment. Further, she
exposed the children to drugs as evidenced by Landyn’s meco-
nium testing positive and by the results of their hair follicle
tests. She also subjected the children to individuals who posed
a danger and who used methamphetamine and other drugs.
Madison failed to consistently participate in family services
offered to help her reunite with her children.
[12] The State proved by clear and convincing evidence
that Madison neglected to provide necessary parental care and
protection for her children. Any one of the bases for termina-
tion 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. 28
Having determined that the State proved a statutory ground
enumerated in § 43-292, we need not consider the sufficiency
of the evidence concerning the other statutory grounds for ter-
mination identified by the juvenile court. 29 Because the State
proved both that a statutory ground existed for termination of
Madison’s parental rights and that termination of such rights
was in the children’s best interests, the Court of Appeals erred
by reversing the juvenile court’s judgment.
CONCLUSION
Upon our de novo review of the record, we conclude that
the State adduced clear and convincing evidence that termina-
tion of Madison’s parental rights was in the children’s best
interests. Because we also determine that the State proved a
statutory ground for termination, we reverse the decision of the
Court of Appeals and remand the cause with direction to affirm
the judgment of the juvenile court.
Reversed and remanded with direction.
28
In re Interest of Noah C., 306 Neb. 359, 945 N.W.2d 143 (2020).
29
See id.