In re Interest of Mateo L. , 309 Neb. 565 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/30/2021 08:09 AM CDT
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE INTEREST OF MATEO L. ET AL.
Cite as 309 Neb. 565In re Interest of Mateo L. et al., children
under 18 years of age.
State of Nebraska, appellant, v. Juana L., appellee
and cross-appellee, and Lucinda K. Bauer,
guardian ad litem, for Mateo L. et al.,
appellee and cross-appellant.
___ N.W.2d ___
Filed June 25, 2021. No. S-20-626.
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 findings made by the juvenile court below.
2. Juvenile Courts: Evidence: Appeal and Error. When the evidence is
in conflict, an appellate court may consider and give weight to the fact
that the juvenile court observed the witnesses and accepted one version
of the facts over another.
3. Parental Rights: Proof. Neb. Rev. Stat. § 43-292 (Reissue 2016) con-
tains 11 separate subsections, any one of which can serve as a basis for
terminating parental rights when coupled with evidence that termination
is in the best interests of the child.
4. ____: ____. To terminate parental rights, it is the State’s burden to show
by clear and convincing evidence both that one of the statutory bases
enumerated in Neb. Rev. Stat. § 43-292 (Reissue 2016) exists and that
termination is in the child’s best interests.
5. Statutes. Statutory language is to be read according to its plain and
ordinary meaning.
6. Parental Rights: Time. The period of out-of-home placement set in
Neb. Rev. Stat. § 43-292(6) (Reissue 2016) as a ground for termination
of parental rights was set by the Legislature as a guideline for what
would be a reasonable time for parents to rehabilitate themselves to a
minimum degree of fitness.
7. Parental Rights: Proof. Neb. Rev. Stat. § 43-292(7) (Reissue 2016)
operates mechanically and, unlike the other subsections of the statute,
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309 Nebraska Reports
IN RE INTEREST OF MATEO L. ET AL.
Cite as 309 Neb. 565does not require the State to adduce evidence of any specific fault on the
part of a parent.
8. Parental Rights: Legislature. Out-of-home placement is itself defined
by the Legislature as an independent ground for termination, since chil-
dren cannot, and should not, be suspended in foster care or be made to
await uncertain parental maturity.
9. Parental Rights: Juvenile Courts. Reasonable efforts to reunify a fam-
ily are required under the juvenile code only when termination is sought
under Neb. Rev. Stat. § 43-296(6) (Reissue 2016).
10. Parental Rights. Whereas statutory grounds are based on a parent’s past
conduct, the best interests inquiry focuses on the future well-being of
the child.
11. Constitutional Law: Due Process: Parental Rights: Proof. Showing
that termination of parental rights is in the best interests of the child is
necessarily a particularly high bar, since a parent’s right to raise his or
her children is constitutionally protected. The Due Process Clause of the
U.S. Constitution would be offended if a state were to attempt to force
the breakup of a natural family, over the objections of the parents and
their children, without some showing of unfitness.
12. Parental Rights: Presumptions. There is a rebuttable presumption
that it is in the child’s best interests to share a relationship with his or
her parent.
13. Parental Rights: Presumptions: Proof. The presumption that it is in
the child’s best interests to share a relationship with his or her parent can
only be overcome by a showing that the parent is either unfit to perform
the duties imposed by the relationship or has forfeited that right.
14. Parental Rights: Statutes: Words and Phrases. Although the term
“unfitness” is not expressly stated in Neb. Rev. Stat. § 43-292 (Reissue
2016), it derives from the fault and neglect subsections of that statute
and from an assessment of the child’s best interests.
15. Parental Rights: Words and Phrases. Parental unfitness means a
personal deficiency or incapacity that has prevented, or will probably
prevent, performance of a reasonable parental obligation in child rear-
ing and that has caused, or probably will result in, detriment to a child’s
well-being.
16. Parental Rights. The best interests and parental unfitness analyses in
the context of a termination of parental rights case require separate,
fact-intensive inquiries, but each examines essentially the same under­
lying facts.
17. Parent and Child: Time. Neb. Rev. Stat. § 43-292(7) (Reissue 2016)
serves the purpose of providing a reasonable timetable for parents to
rehabilitate themselves.
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IN RE INTEREST OF MATEO L. ET AL.
Cite as 309 Neb. 56518. ____: ____. Termination based on the ground that a child has been in
out-of-home placement for 15 of the past preceding 22 months is not
in a child’s best interests when the record demonstrates that a parent is
making efforts toward reunification and has not been given a sufficient
opportunity for compliance with a reunification plan.
19. Parent and Child. Parental obligation requires a continuing interest in
the children and a genuine effort to maintain communication and asso-
ciation with the children.
20. Constitutional Law: Parent and Child. That the foster parents might
provide a higher standard of living does not defeat the parent’s right to
maintain the constitutionally protected relationship with his or her child.
Appeal from the County Court for Madison County: Donna
F. Taylor, Judge. Affirmed.
Gail Collins and Nathan Eckstrom, Deputy Madison County
Attorneys, for appellant.
Bradley C. Easland, of Egley, Fullner, Montag, Morland &
Easland, P.C., for appellee Juana L.
Lucinda K. Bauer, of Law Offices of Lucinda K. Bauer,
guardian ad litem.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Per Curiam.
This appeal concerns the State’s petition to terminate a
mother’s parental rights based on one proven instance of
neglect, her actions in escaping an abusive boyfriend and
obtaining work to support her children, and her children’s out-
of-home placement after her arrest. The juvenile court denied
termination, finding that the State had failed to clearly and con-
vincingly show that a statutory basis for termination existed or
that termination was in the children’s best interests.
We agree that the State has fallen short of carrying its heavy
burden for termination. Accordingly, we affirm.
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IN RE INTEREST OF MATEO L. ET AL.
Cite as 309 Neb. 565FACTS
Arrival in United States
Juana L. was 16 years old when she came to this country
from Guatemala with her two children, Mateo L. and Pedro
L. She had grown up speaking K’iche’, a Mayan language
common in Guatemala’s central highlands, and knew almost
no Spanish or English. She had little money. She eventually
settled with her children in Norfolk, Nebraska, where she met
and began dating Carlos P. She and the children moved in with
Carlos. About a year later, when Juana was 17 years old, she
gave birth to her third child, Bryan L.
Around the time of Bryan’s birth, various nongovernmental
service providers spent time with the family, providing aid.
They transported Juana as needed, interpreted at her prenatal
appointments, provided supplies for the new baby, and even
called an ambulance to Juana’s house when she went into
premature labor. From their experience working with Juana
during this period, the service providers stated that while she
appeared to lack resources and to be overworked babysitting
other children in addition to her own, she was adequately car-
ing for her children.
Proven Instance of Neglect
The Nebraska Department of Health and Human Services
(DHHS) became involved, however, when Bryan was approxi-
mately 1 month old. Juana and Carlos were taking Bryan
to a doctor’s appointment when a service provider who had
accompanied them determined that Mateo and Pedro, who
were respectively 4 and 2 years old, had been left at home
alone. The service provider called police, who found the boys
unharmed at the house. A man who lived in the basement of the
house was sleeping downstairs. But because the children were
unsupervised, Juana was cited with neglect.
Since Juana, then 17 years old, was still a minor, the
charge was filed as a juvenile court matter under Neb. Rev.
Stat. § 43-247(1) (Reissue 2016). According to the charging
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IN RE INTEREST OF MATEO L. ET AL.
Cite as 309 Neb. 565petition, “officers responded to the home of the juveniles as
the mother had left the two oldest children home alone while
she went to a medical appointment with the youngest juve-
nile.” While the petition further averred that “[t]his was not the
first time the mother [had] left her children home alone while
she went to appointments,” the State offered no evidence at the
hearing of any other such instances.
Juana admitted to the charge, stating, through an interpreter:
Well, what happened was in that time it was the only time
that I have left them alone. See, the thing what happened
that I had to go, and usually [Carlos] stays with them, but
this — this time I had to take [Carlos] with me, but that
was the only time that I have been done this.
Again, when pressed as to whether she admitted to the charge
of neglect, Juana confessed through an interpreter, “Yes. I
admit that, that I left them alone, but only once.”
Accepting that admission, the county court for Madison
County, sitting as a juvenile court, dismissed the § 43-247(1)
charge against Juana and adjudicated her children as neglected
under § 43-247(3)(a). As a factual basis, the juvenile court
found that “at least on . . . August 24th, 2017, [the children]
were in a situation dangerous to their health or morals.” While
physical custody over the children remained with Juana, the
juvenile court transferred legal custody over the children to
DHHS. A guardian ad litem was also appointed to represent
the children.
At a hearing a short time later, the parties agreed that
Juana appeared to be making progress, but there were some
concerns. For instance, a few social workers stated that Juana
did not seem properly “attached” to the children. There were
also reports of medical issues, including bedbugs, scabies,
cavities in Mateo’s teeth, and Bryan’s “flat head,” which doc-
tors believed was due to his lack of “tummy time.” Several
social workers expressed concern about Carlos’ relationship
with the family. Carlos tended to dominate conversations with
Juana and would follow her throughout the house to listen
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IN RE INTEREST OF MATEO L. ET AL.
Cite as 309 Neb. 565and interject when social workers attempted to speak with her
in private. At least one social worker expressed concern that
Juana might be a human trafficking victim.
Still, the social workers generally concurred in reporting that
their services were helping and that Juana’s children appeared
happy and well cared for. Based on these reports, the juvenile
court maintained the above arrangement of physical custody
with Juana and legal custody with DHHS.
Relocation to Minnesota
Approximately 3 months after the adjudication and transfer
of legal custody over the children, DHHS discovered that Juana
and her children had left the Norfolk area. Although she told
social workers over the phone that they were merely traveling
the short distance to Grand Island, Nebraska, DHHS traced
Juana’s phone calls to Willmar, Minnesota. Since her relocation
out of state was in violation of the children’s custody arrange-
ment, the juvenile court issued a warrant for Juana’s arrest.
The juvenile court also issued an ex parte order authorizing the
children to be taken into DHHS custody.
Juana was eventually arrested by Willmar police, and her
children were placed into temporary foster care. Police learned
that Juana’s mother and father also lived in Willmar. With the
help of her parents and a friend who could watch the children
during the day, Juana had taken a job at a turkey processing
facility. However, since she lacked legal documentation, she
had used a false name and falsified driver’s license, Social
Security card, and birth certificate to apply for the job. She
was charged with felony counts of forgery and using false
identification.
While in the custody of Willmar police, Juana disclosed
that her relocation from Norfolk had been an escape from
Carlos. She said that Carlos had physically and sexually
abused her and had physically abused the children. Questioned
why she had not disclosed Carlos’ abuse sooner, Juana stated
that she had not thought the police could help. She said that
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IN RE INTEREST OF MATEO L. ET AL.
Cite as 309 Neb. 565it was not something that people typically did in her culture
because police there would unlikely help anyway. Based on
this account, Juana began working with an immigration attor-
ney to apply for asylum and a visa.
In the Willmar criminal case, Juana ultimately pled guilty
to one felony count of forgery. Pursuant to a plea deal, the
remaining charge was dismissed. She was discharged based on
time served and ordered to complete probation. She was then
extradited to Nebraska to face the felony charge for violation
of custody. And because she was undocumented, a hold was
placed on her by U.S. Immigration and Customs Enforcement
(ICE) authorities.
21 Months in Custody
When Juana was returned to Nebraska, her children had
already been back in the state for approximately 2 months.
From their temporary foster care in Willmar, they had been
picked up by a DHHS social worker and returned to the
Norfolk area. Much of Juana’s family was apparently not
considered for placement due to DHHS’ refusal to place the
children with family members who were undocumented. The
record indicates Juana supplied at least one name of an indi-
vidual who was documented, but the record does not indicate
that DHHS considered that individual for placement. It is also
unclear whether Juana understood that if she had provided the
names of other documented relatives, DHHS would have been
required to prioritize placement with them over agency based
foster parents. 1 Regardless, the children were placed with
agency based foster parents.
The foster parents were particularly chosen because the
foster mother could speak Spanish. DHHS believed that she
would thus help the children maintain the ability to commu-
nicate with Juana, who herself had learned some Spanish. All
1
See In re Interest of Karlie D., 283 Neb. 581, 811 N.W.2d 214 (2012).
See, also, Neb. Rev. Stat. § 43-246(5) (Cum. Supp. 2020); Neb. Rev. Stat.
§ 43-533(4) (Reissue 2016).
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE INTEREST OF MATEO L. ET AL.
Cite as 309 Neb. 565reports indicate that the foster parents generally provided good
care for the children. However, the foster mother did not speak
Spanish with the children. According to the foster mother, this
was because the children did not want to speak Spanish. As
a result, the children were soon able to speak and understand
only English.
Due in part to the language barrier that quickly developed,
and due to the lack of contact that Juana was afforded with
her children, communication between Juana and her children
faltered. For approximately the next 10 months, Juana was held
in the Madison County jail awaiting resolution of the viola-
tion of custody charge. During this time, she was allowed no
­in-person visits with her children and few phone calls. Only
non­contact visits separated by a glass window were allowed
under the jail’s policy, and despite Juana’s requests for such
visits, DHHS social workers stated they “d[id] not like to do
that, especially with babies.” Accepting that rationale, the juve-
nile court stated multiple times that due to Juana’s incarcera-
tion, reasonable efforts toward visitation that might otherwise
be put in place were not available. The children’s permanency
goal remained reunification with Juana.
Because of concerns about Juana’s competency to stand trial
on the violation of custody charge, she was transferred to the
Lincoln Regional Center, a psychiatric hospital, for evaluation.
There, Juana was found not to have innate cognitive delays
or mental illness. It was determined that she instead suffered
from a lack of basic understanding about the court process,
likely due to differences in culture, language, and education.
After approximately 4 months of treatment, Juana was deemed
restored to competence.
Although the Lincoln Regional Center did not limit visita-
tion during those 4 months, visits there between Juana and
her children proved a point of contention between the par-
ties. Upon arrival, Juana promptly moved for visitation that
was then resisted by the State; the children’s new guardian ad
litem, who had been appointed to replace the initial one; and
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IN RE INTEREST OF MATEO L. ET AL.
Cite as 309 Neb. 565the foster parents. Nevertheless, the juvenile court ordered that
Juana be allowed to visit the children:
I understand that there’s a policy that [DHHS] doesn’t
like to bring children into the jail to have noncontact
visits or to visit their parents through a glass screen, but
at this point in time there is now an offer by the Lincoln
Regional Center to provide a supervised in-person visit,
and to not consider that I think would be to indicate
that we have no intention of providing any reunification
efforts toward this family.
Still, during her time at the Lincoln Regional Center, Juana
was permitted only three in-person visits with the children. The
children’s permanency plan during this time was changed to
concurrent goals of reunification and adoption.
Juana was next returned to the Madison County jail. She
remained there for 1 month, again without any in-person visits
with the children. The State and the new guardian ad litem for
the children renewed their resistance to any in-person visits,
with the State arguing, “They’re a maximum half an hour. It’s
through the glass. It — and I think only one child can be pres-
ent at a time. I am not quite certain. That’s my understanding.
So it — [DHHS] opposes any visits in jail given the nature of
the its noncontact.”
Juana’s violation of custody charge was ultimately resolved
pursuant to a plea deal. In exchange for the State’s reducing
the felony charge to a misdemeanor, Juana agreed to plead
guilty. She was sentenced to time served and discharged from
Madison County’s custody. However, due to the hold placed on
her by ICE, she was transported from jail to an ICE detention
facility in Grand Island, where she remained for 2 months, still
without visitations. She was finally released from ICE deten-
tion in February 2020, during the trial in this case.
Petition to Terminate Parental Rights
In September 2019, with the fathers’ parental rights already
terminated, the State filed a petition to terminate Juana’s
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ing Juana’s parental rights under Neb. Rev. Stat. § 43-292(Reissue 2016).
Trial on the State’s petition was held over 7 days from
February to July 2020. During trial, the juvenile court heard
testimony from approximately 40 witnesses and received
almost 80 exhibits. Most of the State’s evidence concerned the
procedural history discussed above, with social workers and
police recounting the proven instance of neglect, Juana’s crimi-
nal conduct that led to her incarceration and detention, and the
children’s ensuing out-of-home placement in foster care.
Juana then provided her own account of the above events.
According to her testimony, she had grown up in a poor
Guatemalan community. Pregnant at age 12, she had been
abandoned by her then-boyfriend 2 months into her pregnancy.
He had immigrated to the United States, leaving her with his
family. They had “treated [her] like a slave” and had even
attempted to steal Mateo from her once he was born. She had
fought to keep Mateo; to protect him, she had run away and
begun living in a nearby town with her grandmother, who
could watch Mateo while she worked.
Juana stated that one day while she was walking to work
from her grandmother’s house, she had been attacked and
raped. Her attacker had threatened to kill her family if she
reported anything to police, and she had known that even if
she reported what had happened, local police would unlikely
take action to help her. Then, on a second occasion, the same
attacker had raped her again, and this time, she had become
pregnant as a result. Upon the birth of her second child, Pedro,
she had realized the need to escape Guatemala to make a bet-
ter, safer life for her children. Accordingly, at age 16, she had
made the dangerous trip north through Mexico and had hired
a “coyote” to smuggle her and her children across the border
into Texas.
Soon after reaching American soil, Juana and the children
had been apprehended by ICE agents, Juana explained. ICE
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE INTEREST OF MATEO L. ET AL.
Cite as 309 Neb. 565apparently had given her a notice to appear in court, but she
had not understood the notice. Instead, with money sent by
her parents, she had bought tickets and, with the children, had
boarded a bus to Norfolk, where her parents were living.
Juana said that after arriving in Norfolk, she had begun
dating Carlos. He had initially been kind to her and her chil-
dren, but he had changed after they had moved in with him. A
heavy drinker, he would physically and sexually abuse Juana
and physically abuse her children. According to Juana, he
would “hit me on the nose,” “pull me by my hair,” “grab me
by my throat,” “hit me in the back [and] on my back with an
electric[al] cord,” “hit my children,” and “take [the children]
to the bathroom and put them in cold water” before throwing
them outside into the snow and then “beat[ing] them a lot.”
Juana had become pregnant with Bryan, she said, but Carlos
had demanded that she not disclose to anyone that the baby
was his. He had ordered Juana to refer to him as her “cousin”
and had said that if she told anyone about his abuse, he
would hurt her and the children. When Carlos went to work,
he would typically lock Juana and the children inside a room.
He would only allow her to have what she termed a “dumb
phone,” meaning that it could not access the internet and allow
her to contact relatives for help.
According to Juana, one day after she had attended a pre­
natal appointment, Carlos had raped her. She had warned him
of her doctor’s urging to abstain from sex at this stage of preg-
nancy, but Carlos, saying that he did not care what the doctor
said, had forced himself upon her. As a result of being raped,
Juana had gone into premature labor and had given birth to
Bryan in her house before an ambulance could arrive to bring
her to a hospital.
Juana explained that the basis for her children’s initial
adjudication—that she had neglected them by leaving them at
home unsupervised—had not been due to her choice. She had
scheduled a ride to Bryan’s doctor’s appointment and had been
readying the children to go with her. But Carlos, apparently
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Cite as 309 Neb. 565in a hurry, had pulled Juana’s hair and pushed her, insisting
that they would be late. He had urged her to leave Mateo and
Pedro in the house alone, watching television. Even though
Juana had protested, he had threatened her and had ordered
her to do as he said. It was that incident, prompted by Carlos’
coercion, that had led to the neglect charge and had resulted in
the children’s adjudication.
Juana also elaborated on what she had previously reported
regarding her relocation to Minnesota. She said she had been
driven to escape upon witnessing Carlos, without provocation,
hurl a toy at Mateo’s head. After tending to Mateo’s injury, she
had taken Carlos’ “smartphone” and, using its internet connec-
tion, had contacted her cousin in Willmar, asking him to help
her and the children flee from Carlos. The cousin had done so,
and she and the children had arrived in Willmar where she had
gained employment at a turkey processing facility. She had
been proud of that job because it had allowed her to provide
for her children. She said that she hoped to provide for them in
the future, too.
Juana acknowledged having lied to social workers about
where she had gone, but she said that she had done so out of
fear that Carlos might find where she and the children were
living. Despite conceding that she had made certain mistakes,
Juana concluded by stating that since Mateo’s birth, all of her
actions had been motivated by her desire to protect her children
and make a better life for them.
By the time Juana testified at the end of trial, she had
been discharged from jail and from ICE detention. Her immi-
gration attorney testified that based on her narrative of the
above events, Juana had recently appeared before an immi-
gration judge and had been granted asylum to remain in the
United States. Her deportation proceedings were ended, and
she would soon be granted legal authorization to work in the
United States. She would also soon be eligible for lawful per-
manent resident status. Several other witnesses for Juana also
emphasized that she was stable, living in a safe home with
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Cite as 309 Neb. 565one of the service providers she had first met upon her arrival
in Norfolk, and that she was eager to deepen her bonds with
her children.
Some of the facts alleged in Juana’s testimony were disputed
by the State. For example, while at least one witness remem-
bered seeing the lock on Juana’s bedroom door that Carlos had
allegedly used to keep her and the children in the room, several
other witnesses stated they did not remember seeing any such
lock. The State used this testimony to question whether Juana
and the children had, in fact, been locked in the room by Carlos
and deprived of the ability to seek help or contact police. The
State also suggested that Juana’s allegations of rape and abuse
were false and nothing more than convenient vehicles to obtain
leniency in her criminal and immigration cases. However, most
of Juana’s testimony went undisputed.
Order Dismissing Petition to
Terminate Parental Rights
After hearing the above evidence, the juvenile court issued
an order denying termination. The order began by summarizing
the relevant facts, including those stated in Juana’s testimony.
Based on its observation of Juana on the stand, the juvenile
court found her testimony highly credible:
Her testimony has not been controverted in any major
way. The County Attorney has attempted to impeach her
testimony by questioning the reasonableness of it. She
was impeached as to prior statements she had made to
the service providers concerning where her parents lived
at the outset of the case, and what Carlos’ relation to her
family was, and the identity of the fathers of her children.
Those inconsistencies are concerning. . . .
. . . While there have been some inconsistent statements
made to others, the court finds Juana to be a credible wit-
ness when she described her life both in Guatemala and
in Norfolk. I watched her imperceptible head jerk when
she testified that Carlos grabbed her by her hair when
he was angry. The testimony that he locked her in the
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were observed on the outside of the door.
Then, upon addressing each of the four statutory bases for
termination alleged in the State’s petition, the juvenile court
concluded that each was unfounded. It also found that the
State had failed to show that termination was in the children’s
best interests. The juvenile court thus dismissed the State’s
petition to terminate and ordered the children’s permanency
plan amended so that reunification with Juana would be the
children’s sole permanency goal, with “robust reunification
efforts” being made. Visitation was ordered to begin within
2 weeks.
The State timely appealed, and the children’s guardian ad
litem filed a cross-appeal, joining the State’s arguments in
support of termination. On the guardian ad litem’s motion, we
moved this appeal to our docket.
ASSIGNMENTS OF ERROR
At issue in this appeal is whether Juana’s parental rights
should be terminated. The State assigns, restated, that the juve-
nile court erred in denying the State’s petition to terminate. The
guardian ad litem on cross-appeal joins the State’s assignment
of error and further assigns, restated, that the juvenile court
erred in finding the mother’s testimony credible.
STANDARD OF REVIEW
[1,2] We begin by setting forth the legal backdrop for this
case. An appellate court reviews juvenile cases de novo on the
record and reaches its conclusions independently of the find-
ings made by the juvenile court below. 2 However, when the
evidence is in conflict, an appellate court may consider and
give weight to the fact that the juvenile court observed the
witnesses and accepted one version of the facts over another. 3
2
See In re Interest of Prince R., 308 Neb. 415, 954 N.W.2d 294 (2021).
3
See id.- 579 -
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IN RE INTEREST OF MATEO L. ET AL.
Cite as 309 Neb. 565ANALYSIS
[3,4] In Nebraska, the grounds for terminating parental
rights are codified in § 43-292. That statute contains 11 sepa-
rate subsections, any one of which can serve as a basis for
termination when coupled with evidence that termination is in
the best interests of the child. 4 It is the State’s burden to show
by clear and convincing evidence both that one of the statutory
bases enumerated in § 43-292 exists and that termination is in
the child’s best interests. 5
Statutory Basis for Termination
We turn to the statutory bases alleged here. In its petition,
the State sought to terminate Juana’s parental rights under
§ 43-292(2), (3), (6), and (7). The juvenile court, however,
found all four unavailing. For the reasons set forth below, we
find that the State met its burden with respect to § 43-292(7).
Section 43-292(7) allows for termination when “[t]he juve-
nile has been in an out-of-home placement for fifteen or more
months of the most recent twenty-two months.” The juvenile
court, despite acknowledging that “[o]n its face, the State
certainly prevails on this allegation,” concluded that the
§ 43-292(7) criteria were unsatisfied because of two “excep-
tions” to the statute. First, the juvenile court found that it was
improper under Neb. Rev. Stat. § 43-292.02(2)(b) (Cum. Supp.
2020) for Juana’s term of incarceration to be “the sole factual
basis” for the 15 months’ out-of-home placement. And second,
the juvenile court reasoned, since DHHS had failed to make
reasonable efforts to reunify, termination was forbidden by
§ 43-292.02(3)(c). We disagree with both rationales.
[5-7] While we obviously consider other factors during our
assessment of the child’s best interests, 6 we are not free to
4
See, § 43-292; In re Interest of Leyton C. & Landyn C., 307 Neb. 529, 949
N.W.2d 773 (2020).
5
See In re Interest of Leyton C. & Landyn C., supra note 4.
6
See, In re Interest of Kendra M. et al., 283 Neb. 1014, 814 N.W.2d 747(2012); In re Interest of Angelica L. & Daniel L., 277 Neb. 984, 767
N.W.2d 74 (2009).
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Cite as 309 Neb. 565do so during our analysis under § 43-292(7). That is because
statutory language is to be read according to its plain and
ordinary meaning. 7 And by the plain and ordinary meaning
of the language in § 43-292(7), there are no exceptions to the
condition of 15 out of 22 months’ out-of-home placement.
That period of time was set by the Legislature as a guideline
for what would be a reasonable time for parents to rehabilitate
themselves to a minimum degree of fitness. 8 Accordingly,
we have said that “[§] 43-292(7) operates mechanically and,
unlike the other subsections of the statute, does not require the
State to adduce evidence of any specific fault on the part of a
parent.” 9 In other words, if the 15-out-of-22 formula is met,
§ 43-292(7) is met.
In this case, the children were placed out of Juana’s home
when she was arrested in May 2018. They remained in
out-of-home placement with foster parents through at least
May 2020, when trial ended. That period easily satisfies the
15-out-of-22 formula.
[8] The supposed “exceptions” to § 43-292(7) relied on
by the juvenile court do not alter application of this formula.
It is true, as the juvenile court noted, that § 43-292.02(2)(b)
prohibits incarceration from being relied upon as “the sole
factual basis” for termination. 10 But where, as here, termina-
tion is grounded in § 43-292(7), incarceration is not being
relied upon as “the sole factual basis”; instead, the children’s
out-of-home placement is being relied upon. Out-of-home
7
See Wayne L. Ryan Revocable Trust v. Ryan, 308 Neb. 851, 957 N.W.2d
481 (2021).
8
See, In re Interest of Leyton C. & Landyn C., supra note 4; In re Interest
of Nicole M., 287 Neb. 685, 844 N.W.2d 65 (2014).
9
In re Interest of Aaron D., 269 Neb. 249, 260, 691 N.W.2d 164, 173
(2005). Accord In re Interest of Justin H. et al., 18 Neb. App. 718, 791
N.W.2d 765 (2010).
10
See, In re Adoption of Micah H., 301 Neb. 437, 918 N.W.2d 834 (2018);
In re Interest of Jahon S., 291 Neb. 97, 864 N.W.2d 228 (2015); In re
Interest of Zanaya W. et al., 291 Neb. 20, 863 N.W.2d 803 (2015).
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Cite as 309 Neb. 565placement is itself defined by the Legislature as an indepen-
dent ground for termination, since “[c]hildren cannot, and
should not, be suspended in foster care or be made to await
uncertain parental maturity.” 11 The juvenile court’s reliance on
§ 43-292.02(2)(b) in this case as an exception to § 43-292(7)
is therefore misplaced.
The juvenile court’s reliance on § 43-292.02(3)(c) fares no
better. While § 43-292.02(1) mandates that a petition to ter-
minate “shall be filed” by the State if certain conditions are
met, § 43-292.02(3)(c) tempers that mandate. It clarifies that
the State “is not required” to file such a petition “if . . . [t]he
family of the juvenile has not had a reasonable opportunity to
avail themselves of the services deemed necessary in the case
plan or permanency plan approved by the court if reasonable
efforts to preserve and reunify the family are required under
section 43-283.01.” 12
[9] Contrary to the juvenile court’s interpretation, however,
that clarifying language does not prohibit the State from filing
a petition to terminate. Rather, § 43-292.02(3) states only that
when a family has not been provided a reasonable opportunity
for reunification, the State “is not required” to seek termina-
tion. In a similar context, we have stated that “reasonable
efforts to reunify a family are required under the juvenile
code only when termination is sought under § 43-296(6).” 13
It would not offend § 43-292.02(3)(c) that the State moved
to terminate under § 43-292(7), even assuming arguendo that
DHHS had not made reasonable efforts to reunify Juana and
the children.
11
In re Interest of Alec S., 294 Neb. 784, 797-98, 884 N.W.2d 701, 709
(2016). Accord, In re Interest of Jahon S., supra note 10; In re Interest of
Nicole M., supra note 8.
12
§ 43-292.02(3)(c).
13
In re Interest of Hope L. et al., 278 Neb. 869, 891, 775 N.W.2d 384, 400
(2009) (emphasis supplied), citing In re Interest of DeWayne G. & Devon
G., 263 Neb. 43, 638 N.W.2d 510 (2002). Accord In re Interest of Ky’Ari
J., 29 Neb. App. 124, 952 N.W.2d 715 (2020).
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Cite as 309 Neb. 565The juvenile court’s analysis under § 43-292(7) was there-
fore in error. The State has shown clearly and convincingly that
there exists a statutory basis for termination in this case. And
since any one of the bases for termination codified in § 43-292
can serve as the basis for termination, we need not consider the
sufficiency of the evidence concerning the State’s other statu-
tory bases for termination. 14
Best Interests of Child
We next consider whether termination is in the children’s
best interests. In light of Juana’s circumstances, her relation-
ship with her children, and her consistent efforts to reunify with
them, we conclude on our de novo review that it is not.
[10,11] Under § 43-292, it is the State’s burden by clear and
convincing evidence to show that there not only exists a statu-
tory basis for termination but that termination is in the best
interests of the child. 15 Whereas statutory grounds are based
on a parent’s past conduct, the best interests inquiry focuses
on the future well-being of the child. 16 This second hurdle is
a high one for the State, since a parent’s right to raise his or
her children is constitutionally protected. 17 As we have stated
before, “the Due Process Clause of the U.S. Constitution would
be offended ‘“[i]f a State were to attempt to force the breakup
of a natural family, over the objections of the parents and their
children, without some showing of unfitness . . . .”’” 18
[12,13] As such, we apply a rebuttable presumption that it
is in the child’s best interests to maintain a relationship with
14
See, In re Interest of Leyton C. & Landyn C., supra note 4; In re Interest
of Noah C., 306 Neb. 359, 945 N.W.2d 143 (2020).
15
See In re Interest of Leyton C. & Landyn C., supra note 4.
16
See Kenneth C. v. Lacie H., 286 Neb. 799, 839 N.W.2d 305 (2013).
17
See In re Interest of Leyton C. & Landyn C., supra note 4.
18
In re Interest of Xavier H., 274 Neb. 331, 348, 740 N.W.2d 13, 24 (2007),
quoting Quilloin v. Walcott, 434 U.S. 246, 98 S. Ct. 549, 54 L. Ed. 2d 511(1978).
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Cite as 309 Neb. 565his or her parent. 19 That presumption can only be overcome by
a showing that the parent is either unfit to perform the duties
imposed by the relationship or has forfeited that right. 20 Here,
because Juana has consistently fought any attempts to termi-
nate her relationship with her children, the question is whether
she is unfit to perform her duties as a parent.
[14-16] Although the term “unfitness” is not expressly stated
in § 43-292, we have said that it derives from the fault and
neglect subsections of that statute and from an assessment of
the child’s best interests. 21 In this context, parental unfitness
means a personal deficiency or incapacity that has prevented,
or will probably prevent, performance of a reasonable parental
obligation in child rearing and that has caused, or probably will
result in, detriment to a child’s well-being. 22 The best interests
and parental unfitness analyses require separate, fact-intensive
inquiries, but each examines essentially the same underly-
ing facts. 23
Upon its analysis of those facts, the juvenile court found
that the State had “not prove[d] that Juana is an unfit parent.
While she may have some intense work to do, it appears she
has the ability and willingness to so rehabilitate herself if she
is provided with the rehabilitation tools generally provided to
parents.” The juvenile court thus concluded that termination is
not in the best interests of the children. We agree.
The State’s involvement in this case began when police
discovered that Juana had left two of her children, then ages
2 and 4, unsupervised at home. At the adjudication hearing in
2017, Juana admitted to having neglected her children on that
one occasion, but no more, and neither the State nor guardian
19
See In re Interest of Leyton C. & Landyn C., supra note 4.
20
See id.
21
See, In re Interest of Nicole M., supra note 8; In re Interest of Ky’Ari J.,
supra note 13.
22
See In re Interest of Leyton C. & Landyn C., supra note 4.
23
See id.
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Cite as 309 Neb. 565ad litem objected to the juvenile court’s acceptance of that lim-
ited admission.
The State now alleges that prior to that hearing, Juana had
“repeatedly” left the children unsupervised at home while she
went to appointments. 24 But that allegation was not factually
supported at the adjudication hearing in 2017. And if indeed
the State had believed that Juana was making a practice of
leaving her children unsupervised at home and that such con-
duct warranted termination, the State could have moved to
terminate Juana’s parental rights at the hearing. It did not.
The State did not even deem the circumstances dire enough to
necessitate the children’s out-of-home placement. We are thus
left with evidence of only one instance of Juana’s leaving her
children unsupervised at home. This does not amount to paren-
tal unfitness warranting termination.
The State and guardian ad litem also direct us to other evi-
dence of neglect in our record. They cite Juana’s failure to
expediently meet her children’s health needs. They also cite
the 21 months she spent in jail and immigration detention away
from her children. We are not persuaded that our record reveals
unfitness regarding either issue.
In In re Interest of Angelica L. & Daniel L., 25 we character-
ized an immigrant mother’s arrest and failure to expediently
seek attention for her children’s medical needs as “obvious
mistakes” in judgment. Yet, we still held that those mis-
takes were “insufficient lapses to establish her unfitness to
parent.” 26 After all, “the law does not require the perfection
of a parent.” 27 In assessing her fitness, we considered such
24
Brief for appellant at 26.
25
In re Interest of Angelica L. & Daniel L., supra note 6, 277 Neb. at 1008,
767 N.W.2d at 93.
26
Id.27
Id. at 1007, 767 N.W.2d at 93, citing In re Interest of Xavier H., supra note
18, and In re Interest of Aaron D., supra note 9. Accord In re Interest of
Leyton C. & Landyn C., supra note 4.
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Cite as 309 Neb. 565factors as the gravity of lapses in her judgment, the sincerity
of those lapses, her willingness to learn about how to avoid
similar mistakes in the future, and whether she appeared likely
to recidivate. 28
Applying those factors here, we acknowledge that, for rea-
sons not clearly available in the record, Juana was slow to seek
medical treatment for her children. As a result, the children
faced medical issues, including Bryan’s “flat head,” Mateo’s
dental problems, and all three children’s bedbugs and scabies.
And those issues needed attention. We have found in other
cases that a parent’s failure to seek appropriate medical care
for a child, under certain circumstances, demonstrated paren-
tal unfitness. 29
But unlike in those other cases, where, for example, par-
ents had actively disconnected their child’s feeding tube to
the point that he entered a starvation state, 30 Juana’s lapses in
judgment were not the result of apathy toward her children or
selfishness. To the contrary, our record suggests that she was
sincere in wanting the best for her children. As a DHHS social
worker acknowledged, “[Juana] didn’t understand” much of
the English language, how to use U.S. money, or that the medi-
cal treatment the children needed was available in Norfolk.
And her lack of comprehension was only compounded by
Carlos’ coercion, which frustrated her ability to reach out for
help. Still, Juana did, when possible, seek and accept help,
including from DHHS social workers, and even before their
involvement, from various service providers. With their help,
Juana scheduled appointments for her children and was regu-
larly attending appointments until she and the children left for
Minnesota. In contrast to cases in which we have found a
28
See, In re Interest of Angelica L. & Daniel L., supra note 6; In re Interest
of Elijah P. et al., 24 Neb. App. 521, 891 N.W.2d 330 (2017).
29
See, e.g., In re Interest of Hope L. et al., supra note 13; In re Interest of
J.B. and A.P., 235 Neb. 74, 453 N.W.2d 477 (1990).
30
See, e.g., In re Interest of Hope L. et al., supra note 13.
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Cite as 309 Neb. 565parent responsible for allowing a child to remain in an abusive
situation, 31 Juana claimed that her relocation to Minnesota was
for the purpose of removing her children from Carlos’ abuse.
The trial court credited Juana’s testimony on this point, and
the State has provided no compelling reason for us not to do
the same.
In addition, the State does not allege that the children’s
medical issues will continue to seriously affect the children
in the future. While the bedbugs and scabies were apparently
severe, the record indicates that Juana tried to remedy the
problem by moving with her children to a different house and
discarding household items that she believed were dirty and
infested. Those efforts were met “with some, but not complete
success,” the juvenile court found. And the issues with Bryan’s
“flat head” appear to have been resolved. Even Mateo’s dental
issues, the longest-lasting medical problem faced by any of
the children, have been remedied by a surgery to remove two
teeth and place “caps” on numerous others. It is true that this
procedure was performed while Mateo was in the care of the
foster parents, not Juana; nevertheless, the fact that his dental
issues could be remedied by one relatively common procedure
suggests to us that the issues were not so severe that they will
affect him throughout his life. Thus, as we said in In re Interest
of Angelica L. & Daniel L., “[w]hile we recognize and express
concern over [this mother’s] medical judgment, we disagree
that such error in judgment warranted termination of her paren-
tal rights.” 32
We recognize also that Juana’s actions that led to her
arrest, incarceration, and detention were wrong. She entered
the United States illegally, failed to appear for her hearing
before an immigration judge, violated a custody order, and
used falsified documentation to obtain a job. Each of those
31
See, e.g., In re Interest of J.B. and A.P., supra note 29.
32
In re Interest of Angelica L. & Daniel L., supra note 6, 277 Neb. at 1007,
767 N.W.2d at 93.
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Cite as 309 Neb. 565actions was voluntary and in violation of the law. As the State
observes, such actions may be considered in a termination pro-
ceeding, insofar as they reflect on the child’s best interests and
parental fitness. 33 In considering a parent’s arrest and incar-
ceration in this way, we generally take note of the nature of the
crimes committed, as well as the parent’s conduct before and
during incarceration. 34
In this case, our assessment of Juana’s criminal conduct
depends on how much credence we give Juana’s testimony.
The guardian ad litem contests the veracity of Juana’s narrative
in whole based on discrepancies in her testimony regarding
her and her children’s dates of birth, her destination when she
left Norfolk, and whether she was, in fact, repeatedly raped
and abused.
However, the guardian ad litem fails to show that these
minor discrepancies undermine the whole of Juana’s testi-
mony, which, as noted above, went largely undisputed at trial.
Moreover, the juvenile court, having observed Juana’s testi-
mony, found her to have been a “credible witness when she
described her life both in Guatemala and in Norfolk.” On our
de novo review, we give weight to that finding and thus to
Juana’s testimony. 35
According to Juana’s testimony, she was 16 years old, a
juvenile herself, when she crossed the U.S. border illegally,
hoping to make a better, safer life for her children. She said
that her failure to appear for immigration court was because
she did not understand the notice to appear. After some time
spent in Norfolk, where she said that she and her children
were abused, they fled to Minnesota. She was arrested there
for forgery and using false identification. According to Juana’s
testimony, both charges were the result of her desire to obtain
work to support her children.
33
See, In re Adoption of Micah H., supra note 10; In re Interest of Jahon S.,
supra note 10.
34
See, e.g., In re Adoption of Micah H., supra note 10.
35
See In re Interest of Prince R., supra note 2.
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Cite as 309 Neb. 565In considering Juana’s offenses against the context she pro-
vided by her testimony, we do not diminish the seriousness of
her actions. We merely note that those actions do not reflect the
likelihood of future criminality so much as they signal her rea-
sonably held belief that at the time, she had no good options.
We are also encouraged that Juana has now served her time
for those offenses and is in a safe living situation with one of
her previous service providers. She has been granted asylum
to stay in the country legally and is on a path toward working
legally and contributing to society. As we said before, “we do
not conclude that [this immigrant mother’s] attempt to bring
herself and her child[ren] into the United States, in the belief
that they would have a better life here, shows an appreciable
absence of care, concern, or judgment.” 36
The State argues that this case is distinguishable from In
re Interest of Angelica L. & Daniel L., 37 because, unlike in
that case, “criminal charges were [actually] pursued” against
Juana. 38 But the State fails to support that distinction with an
explanation as to its import. To the extent the State implies that
Juana’s offenses were more serious, we counter by observing
that the result of her offenses is far less consequential to the
analysis we must perform. Because at this stage of inquiry we
are concerned with the future well-being of the children, the
result of Juana’s offenses is highly relevant here. 39 Whereas in
In re Interest of Angelica L. & Daniel L., the mother’s charge
resulted in her deportation, Juana has been granted asylum
and will soon have authorization to work. 40 Therefore, while
she was alleged to have committed more offenses than the
36
In re Interest of Angelica L. & Daniel L., supra note 6, 277 Neb. at 1007,
767 N.W.2d at 93.
37
Id.38
Brief for appellant at 39.
39
Kenneth C. v. Lacie H., supra note 16.
40
See In re Interest of Angelica L. & Daniel L., supra note 6.
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Cite as 309 Neb. 565mother in In re Interest of Angelica L. & Daniel L., Juana’s
charges have less bearing on her future fitness as a mother. 41
In other words, as noted below, Juana is now here in Nebraska
with support services available for any parental shortcomings
she may have. Her lengthy stay in jail and detention was at
least partially due to her vigorous defense of her right to remain
in this country with her children, and we do not fault her for
the vigor of that defense. While Juana’s criminal offenses were
serious, they appear to be behind her and do not overcome our
constitutionally informed presumption of parental fitness.
[17,18] We are left to consider the children’s out-of-home
placement that resulted from Juana’s arrest, incarceration, and
detention. As noted above, the State has shown clearly and con-
vincingly that the children’s period of out-of-home placement
meets the statutory basis for termination under § 43-292(7).
Yet, while § 43-292(7) generally “‘serves the purpose of
providing a reasonable timetable for parents to rehabilitate
themselves,’” 42 we have observed that
“termination based on the ground that a child has been in
out-of-home placement for 15 of the past preceding 22
months is not in a child’s best interests when the record
demonstrates that a parent is making efforts toward reuni-
fication and has not been given a sufficient opportunity
for compliance with a reunification plan.” 43
Here, despite the children’s out-of-home placement, the
record indicates that Juana has made progress as a parent. The
juvenile court went so far as to say that “enormous strides
have been made” by Juana. No longer is she incarcerated. No
­longer is she in an abusive relationship. No longer is she at
risk of deportation. Instead, she has been granted asylum and
41
See id.
42
In re Interest of Aaron D., supra note 9, 269 Neb. at 261, 691 N.W.2d at
173, quoting In re Interest of Mainor T. & Estela T., 267 Neb. 232, 674
N.W.2d 442 (2004).
43
Id. Accord In re Interest of Alec S., supra note 11.
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Cite as 309 Neb. 565is living in a secure home with a friend, who is a positive influ-
ence and is teaching her English and any previously lacking
parenting skills.
[19] Parental obligation requires a continuing interest in
the children and a genuine effort to maintain communica-
tion and association with the children. 44 Since her children’s
out-of-home placement, Juana has taken every opportunity
afforded her to reengage face-to-face and to speak with them.
This is not a case of “[]last-minute attempts by [a] parent[] to
comply with the rehabilitation plan . . . .” 45 While her interac-
tions may have not always been meaningful, that has not been
for a lack of her continuing interest or genuine effort.
And moreover, the State has failed to show that Juana is any
longer leaving her children unsupervised. Nor has the State
shown any evidence of a condition, such as addiction, 46 that is
likely to remain with Juana and continuously affect her ability
to parent. The State has not shown that absent termination, the
children will likely be “suspended in foster care or . . . made
to await uncertain parental maturity.” 47
[20] We are aware that the children have been well cared
for by the foster parents. But that “the foster parents in this
country might provide a higher standard of living does not
defeat [the parent’s] right” to maintain the constitutionally
protected relationship with his or her child. 48 Indeed, our best
interests analysis is centered on a premise that absent parental
unfitness, preserving the relationship between a parent and
44
In re Interest of Isabel P. et al., 293 Neb. 62, 875 N.W.2d 848 (2016).
45
See In re Interest of Alec S., supra note 11, 294 Neb. at 796, 884 N.W.2d
at 709.
46
See, e.g., In re Interest of Leyton C. & Landyn C., supra note 4.
47
In re Interest of Alec S., supra note 11, 294 Neb. at 797-98, 884 N.W.2d
at 709. Accord, In re Interest of Jahon S., supra note 10; In re Interest of
Nicole M., supra note 8.
48
In re Interest of Angelica L. & Daniel L., supra note 6, 277 Neb. at 1012,
767 N.W.2d at 96.
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Cite as 309 Neb. 565child will be in the child’s best interests. 49 We are expressly
forbidden by statute from considering the foster parents’ fit-
ness in that assessment. Under § 43-292.02, the foster parents’
fitness and willingness to adopt “shall have no bearing on
whether parental rights shall be terminated.” 50
Accordingly, while we commend the foster parents for their
care of Juana’s children, we are not swayed from our con-
clusion that the State has failed to meet its heavy burden of
clearly and convincingly proving her unfitness as a mother.
Termination of her parental rights is not in her children’s
best interests.
CONCLUSION
We affirm the juvenile court’s order dismissing the State’s
petition to terminate Juana’s parental rights.
Affirmed.
49
See, In re Interest of Leyton C. & Landyn C., supra note 4; In re Interest
of Noah C., supra note 14.
50
See § 43-292.02(2).
Heavican, C.J., concurring.
I concur with the majority’s opinion affirming the juvenile
court’s denial of the State’s petition to terminate Juana’s paren-
tal rights. As the opinion notes, the State alleged four statutory
bases for termination and proved the mathematical formula of
Neb. Rev. Stat. § 43-292(7) (Reissue 2016). As such, it was not
necessary for the majority to reach the State’s other statutory
bases alleged for termination. I write separately, however, to
discuss one of them and to express my concern over the fail-
ings of the Department of Health and Human Services (DHHS)
in this case.
One of the State’s bases for termination, § 43-292(6), allows
for termination when, “[f]ollowing 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
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Cite as 309 Neb. 565the court, have failed to correct the conditions leading to the
determination.”
Due to the children’s adjudication in 2017 for the instance of
neglect, it is undisputed that at all times relevant to this appeal,
Juana’s children were subject to Neb. Rev. Stat. § 43-247(3)(a)
(Reissue 2016) and DHHS was required to provide “reason-
able efforts . . . to preserve and reunify the family” under
Neb. Rev. Stat. § 43-283.01 (Cum. Supp. 2020). Accordingly,
to meet its burden for termination under § 43-292(6), the
State needed to prove, by clear and convincing evidence, that
DHHS had provided such efforts and that such efforts had
failed to correct the conditions that had led to the children’s
2017 adjudication. 1
Contrary to the State’s assertion in its petition, however,
the juvenile court found that DHHS had not provided rea-
sonable efforts to reunify Juana with her children. The court
distinguished between the time before and after the children’s
out-of-home placement. Before out-of-home placement, the
court acknowledged that through in-home services and the like,
DHHS’ efforts had been reasonable in trying to prevent the
children’s removal from Juana’s home. But after the children’s
removal, the court found that DHHS’ efforts to reunify had
been “insufficient or non-existent.” I agree that DHHS’ efforts
to reunify were insufficient.
The children’s out-of-home placement began in May 2018,
when Juana was arrested and her children were taken into
temporary foster care. From that time until June 2018, Juana
remained in the custody of Willmar police. She then spent 10
months in the Madison County jail, 4 months at the Lincoln
Regional Center, another month at the Madison County jail,
and finally 4 months in a U.S. Immigration and Customs
Enforcement (ICE) detention facility. At the beginning of
trial, Juana had been held, with her children in foster care, for
1
See In re Interest of Leyton C. & Landyn C., 307 Neb. 529, 949 N.W.2d
773 (2020).
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309 Nebraska Reports
IN RE INTEREST OF MATEO L. ET AL.
Cite as 309 Neb. 565a total of 21 months. Reasonable efforts to reunify the fam-
ily were required throughout those 21 months, 2 yet DHHS
provided Juana only three in-person visits with her children
and minimal other meaningful contact, due in no small part to
DHHS’ failure to encourage the children to maintain a common
language and culture with their mother.
As an initial matter, I note that the best thing DHHS
could have done at the start of out-of-home placement would
likely have been to place the children with Juana’s relatives.
Our record evidence indicates that Juana had relatives in the
United States, including her parents. The children’s placement
with them might have eased many of the challenges of coordi-
nating visits and contact between Juana and her children, and
it would have allowed the children to maintain their under-
standing of the K’iche’ language and of their mother’s culture.
Indeed, for these reasons among others, DHHS is required to
prioritize placement with approved relatives over other fos-
ter parents. 3
But DHHS apparently refused to place the children with
undocumented family members. DHHS cites no specific policy
or rule forbidding such placement, and I question that refusal,
especially in cases like this one. Moreover, despite Juana’s
acknowledgment that many of her family members are undocu-
mented, we have record evidence that she provided DHHS
with the name of at least one relative who “has papers . . .
so he’s of some kind of legal status,” yet our record does not
indicate that DHHS followed up about placing the children
with him. I emphasize that placement with a relative of Juana’s
could have aided Juana’s reunification with her children, and
DHHS’ apparent reluctance to facilitate such placement is the
first moment at which I question whether reasonable efforts to
reunify were provided.
2
See § 43-292(6).
3
See In re Interest of Karlie D., 283 Neb. 581, 811 N.W.2d 214 (2012).
See, also, Neb. Rev. Stat. § 43-246(5) (Cum. Supp. 2020); Neb. Rev. Stat.
§ 43-533(4) (Reissue 2016).
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE INTEREST OF MATEO L. ET AL.
Cite as 309 Neb. 565Next, I question DHHS’ resistance to visitation. At oral
argument, Juana’s attorney acknowledged that at several of the
facilities in which Juana had been housed, there may not have
been “anything else that [DHHS] could have done” regarding
visitation. With the children already back in Nebraska, visita-
tion was not practical while Juana was being held at the jail in
Willmar. The ICE detention facility also did not allow visita-
tion. The Madison County jail limited visitation to noncontact
visits separated by a glass window. I note the juvenile court’s
statement that “[e]veryone agree[s] that visits through the glass
at the jail would not be good for the children.” Still, consid-
ering that Juana spent a total of 11 months at the Madison
County jail, it is difficult to reconcile DHHS’ resistance to
any in-person visits with its requirement to provide reasonable
efforts to reunify Juana and the children.
Sometimes accommodations must be made when such efforts
would be reasonable for purposes of “mak[ing] it possible for a
juvenile to safely return to the juvenile’s home.” 4 Here, consid-
ering the children’s ages, a reasonable accommodation would
have been a request for the juvenile court to order in-person
visits in the Madison County jail without the use of a glass
window. But DHHS, opposed to any in-person visitation, made
no such request.
Even when Juana was housed for 4 months at the Lincoln
Regional Center, a facility that would not have limited
in-person contact, DHHS, the second guardian ad litem, and
the foster parents all expressed hostility to any visits, even
supervised ones. A social worker for DHHS speculated that
since Juana might not remain at the Lincoln Regional Center
for long before either being returned to the Madison County
jail or turned over to ICE for deportation, it might make the
children feel “abandon[ed]” if they met her once or twice but
then no more. The foster mother expressed fear that it would
be “confusing” for the children to visit their mother. The State
4
See § 43-283.01(2).
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE INTEREST OF MATEO L. ET AL.
Cite as 309 Neb. 565ventured further, stating that “[i]t would seem more likely than
not that this mother will be deported, and the opportunity to
reunify her with her children seems very bleak.”
By these statements, I am left with the impression that
DHHS had prejudged Juana’s parental fitness based on its
uninformed prediction about her immigration status and that
preparation was underway to discourage any further bond-
ing between Juana and her children. But the State points
to no statute under which reasonable efforts to reunify are
excused when a mother’s immigration status is uncertain. That
is because there is none. To the contrary, Juana’s permanency
objective remained reunification with the children, and under
§ 43-283.01(7), even when reunification and adoption are
concurrent permanency objectives, “priority shall be given to
preserving and reunifying the family.” That does not appear to
have been done here. I thus find the above statements difficult
to reconcile with DHHS’ duty under § 43-283.01 to make rea-
sonable efforts to reunify the family.
Even less reconcilable is DHHS’ lack of efforts to find other
methods of communication between Juana and her children.
Given the children’s ages at the beginning of their out-of-home
placement, their initial guardian ad litem expressed alarm at
the lack of meaningful contact between Juana and her children.
Concerned that DHHS was “[i]mpeding/impairing mother’s
ability to communicate with the children,” the guardian ad
litem issued a report identifying some of the ways in which
DHHS was not making reasonable efforts to reunify Juana with
her children.
According to the report:
I was advised that the only way for mother to contact the
boys was by collect calls since she was moved, and the
foster family was told either not to take the calls, or that
they would not be re-imbursed. I question whether there
can be reasonable efforts if contact is not being actively
encouraged (and in fact, actually impaired), if the goal is
indeed reunification.
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309 Nebraska Reports
IN RE INTEREST OF MATEO L. ET AL.
Cite as 309 Neb. 565. . . The children are very young and I fear they will
soon lose [their] mother’s native language which could
impact their ability to communicate with their mother
and/or other family members.
Yet, even as that report was highlighting DHHS’ lack of
reasonable efforts to reunify, DHHS was making few, if any,
improvements to those efforts. DHHS instead proceeded to
permit Juana to communicate with her children only by phone.
And those calls grew strained for the very reasons flagged in
the guardian ad litem’s report. As indicated by the report, phone
calls continued to be required to be dialed collect and charged
to the foster parents, with the cost of those calls discouraging
the foster parents from picking up. And because inadequate
efforts were made to ensure that the children maintained an
understanding of K’iche’ or Spanish, the two languages in
which they could have conversed with Juana, dialogue between
Juana and her children continued to become less meaningful by
the day.
An interpreter was sometimes provided during phone calls,
but that occasional effort did not reverse the children’s quickly
closing opportunity to remain capable of themselves com-
municating with their mother. Not only did this weaken the
children’s bond with their mother, but it severed their connec-
tion to the culture into which they had been born. This court
and others have recognized the value that children might find
in remaining attached to their parents’ cultural heritage. 5 Yet,
5
See, e.g., In re Guardianship of Eliza W., 304 Neb. 995, 1004, 938 N.W.2d
307, 314 (2020) (recognizing that both the federal Indian Child Welfare Act
of 1978, 21 U.S.C. §§ 1901 to 1963 (2018), and the Nebraska Indian Child
Welfare Act, Neb. Rev. Stat. §§ 43-1501 to 43-1517 (Reissue 2016), are
guided by general policy of protecting Indian children from being removed
from their families and being placed “in homes lacking an appreciation for
Native American culture”). See, also, Christine P. Costantakos, Juvenile
Court Law and Practice § 5:14 at 355 (2020) (noting that child’s future
well-being may be aided by “the juvenile’s identification with his or her
family and cultural heritage, and his or her ability to form and maintain
relationships with extended family members, where appropriate”).
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IN RE INTEREST OF MATEO L. ET AL.
Cite as 309 Neb. 565in this case, it appears the children’s mother—and her cul-
ture—were given short shrift by DHHS.
I recognize that DHHS social workers are often overbur-
dened with caseloads and that their jobs are trying. But in
my view, what was allowed to happen here is perplexing
and unacceptable, given DHHS’ duty under § 43-283.01. The
foster parents were chosen because the foster mother spoke
Spanish, and it was anticipated she could continue to speak
that language with the children. But the foster mother’s abil-
ity to speak Spanish proved unhelpful to the situation, because
she stopped communicating with the children in Spanish soon
after their placement in her home. According to her testimony,
she stopped speaking Spanish with the children as soon as they
expressed that they wished to speak English instead. While
the foster mother may not herself have owed a duty under
§ 43-283.01 to speak Spanish with the children, it was DHHS’
duty, when she declined to do so, to make reasonable efforts to
protect communication and thus the bond between Juana and
the children. DHHS did not meet that duty.
Consequently, just as would be expected, Juana’s commu-
nication with the children deteriorated. According to DHHS
social workers and the foster parents, Juana would phone at
every opportunity provided to her. When she phoned the foster
parents, they would ask the children whether they wished to
speak with Juana. The children would often decline. That is
hardly surprising considering their ages, that they had barely
seen their mother since out-of-home placement, and that they
could no longer communicate with her since their K’iche’ and
Spanish language abilities had been allowed to lapse. When
the children declined to speak, there was no encouragement
from the foster parents that the children should speak with
their mother; nor were there followup evaluations from DHHS
inquiring how to make the interaction more meaningful for
Juana and her children.
To this point, the juvenile court noted that it had considered
video entered into evidence of a typical phone call between
Juana and her children:
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
IN RE INTEREST OF MATEO L. ET AL.
Cite as 309 Neb. 565The video was captured by the [guardian ad litem] who
was present at the foster home to observe and record the
visits. The Court notes that the video production starts
with some wrestling and fun rough housing with the fos-
ter dad and the boys. Then, the foster mom comes into
the room, looks at her watch or phone[,] and waits for the
expected call from Juana (who never missed an opportu-
nity to exercise the meager visitation opportunities she
had). When the call came in, foster mom announced that
the mom was on the phone. She took her phone into the
dining room which adjoined the living room and laid it
face up on the table and left to return to the children in
the living room. The children, distracted by the fun play
they were enjoying before the call, and maybe further
by the presence of the [guardian ad litem] filming their
behaviors, did not engage with the mother[,] and her
“visitation” provided her the opportunity to stare only at
the [foster parents’] ceiling. She called out to the children
when she recognized a voice in the background. There
was no family support worker, no engagement or encour-
agement by the foster parents or the [guardian ad litem].
Just 5 minutes of Juana, hoping to get a glimpse of her
children and perhaps an opportunity to talk to them. If
[that video] is truly characteristic of the effectiveness of
the FaceTime visits, the court finds those efforts to be
unreasonable, ineffective and token.
Further, as the juvenile court noted, beyond these phone calls,
“[t]here were no services provided to the mother to maintain
contact with the children.” For example, even after a service
provider recommended family therapy to address the traumatic
effects of domestic violence, DHHS failed to provide therapy
to either the children or Juana. I am again left with the impres-
sion that DHHS had prejudged Juana’s fitness as a parent
and that it was thus making no more than half-hearted efforts
toward reunification. This was in violation of DHHS’ duty
under § 43-283.01. The State cannot now claim § 43-292(6) as
a basis for terminating Juana’s parental rights.
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309 Nebraska Reports
IN RE INTEREST OF MATEO L. ET AL.
Cite as 309 Neb. 565In arguing that DHHS’ efforts were in fact reasonable,
the State takes issue with the juvenile court’s statement that
“[i]n retrospect, this Court regrets the finding that reasonable
efforts were being made [by DHHS].” According to the State,
that language evinces a “misunderst[anding] [of] the mean-
ing of reasonable efforts” and diminishes the juvenile court’s
own role in encouraging the reunification efforts that were
provided. 6
I disagree that the juvenile court’s order evinced any misun-
derstanding about the nature of reasonable efforts. As described
above, critical efforts were lacking to protect the bond between
Juana and her children and to facilitate their reunification.
Thus, if anyone evinced a misunderstanding of reasonable
efforts, it was DHHS. Once again, I acknowledge the difficult
job of a DHHS social worker. But that does not excuse non-
compliance with § 43-283.01. DHHS is responsible for provid-
ing reasonable efforts under that statute, not the juvenile court
or anyone else.
For the above reasons, I am persuaded that DHHS failed
to provide reasonable efforts to reunify Juana with her chil-
dren in this case. Although that fact was not necessary to the
court’s main opinion in this case, I write separately to express
my concern and to implore DHHS to do better. Not only does
§ 43-283.01 require it, but the parents and children in this State
deserve it.
Miller-Lerman, J., joins in this concurrence.
6
Brief for appellant at 31.