In re Interest of Michael L. ( 2022 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
IN RE INTEREST OF MICHAEL L.
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
IN RE INTEREST OF MICHAEL L., A CHILD UNDER 18 YEARS OF AGE.
STATE OF NEBRASKA, APPELLEE,
V.
BERNARD P., APPELLANT.
Filed February 8, 2022. No. A-21-539.
Appeal from the Separate Juvenile Court of Douglas County: CANDICE J. NOVAK, Judge.
Affirmed.
Mark F. Jacobs, of Bressman, Hoffman & Jacobs, P.C., L.L.O., for appellant.
Cara Stirts, Deputy Douglas County Attorney, and Traemon Anderson, Senior Certified
Law Student, for appellee.
MOORE, ARTERBURN, and WELCH, Judges.
ARTERBURN, Judge.
I. INTRODUCTION
Bernard P. appeals from an order of the separate juvenile court of Douglas County, which
terminated his parental rights to his son, Michael L. Upon our de novo review of the record, we
affirm the juvenile court’s order.
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II. BACKGROUND
1. PROCEDURAL BACKGROUND
Bernard is the biological father of Michael, born in April 2017. Michael’s biological
mother is Crystal L. Crystal’s parental rights to Michael were terminated in May 2019, and we
only discuss Crystal as necessary to the resolution of the current appeal by Michael.
Michael was removed from Crystal’s care immediately after his birth in April 2017,
because Crystal tested positive for cocaine and amphetamines and because Crystal had previously
been involved with the juvenile court regarding her older children. The State filed a petition
alleging that Michael was a child within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue
2016) as to Crystal. The State also filed an ex parte motion requesting that Michael be placed in
the immediate custody of the Department of Health and Human Services (Department). Upon his
release from the hospital, Michael was placed in a foster home. He has remained in foster care
since that time.
In June 2017, approximately 2 months after the State filed the petition regarding Crystal,
Bernard submitted to DNA testing to prove he was Michael’s biological father. At that time,
Bernard was involved in a relationship with Crystal and resided in Crystal’s home. The DNA
testing revealed that Bernard was, in fact, Michael’s biological father.
Despite being established as Michael’s biological father, Bernard was not immediately
made a party to the juvenile court proceedings. And, while Bernard was permitted to attend family
team meetings, he was not permitted to have any parenting time with Michael until he established
himself as Michael’s “legal” father. The family’s caseworker at that time encouraged Bernard to
take steps to formally establish his paternity, so as to become Michael’s legal father. However,
Bernard did not take immediate action and his paternity was not formally established until October
2018, 18 months after Michael’s birth, when an order of paternity and support was entered by the
district court.
Bernard was first permitted to attend Crystal’s parenting time with Michael in November
2018. Around the time of Bernard’s first visit with Michael, the State filed a supplemental petition
alleging that Michael was a child within the meaning of § 43-247(3)(a) as to Bernard. Specifically,
the supplemental petition alleged that Michael was at risk for harm because Bernard continued to
reside with Crystal, who was not following through with the tenets of the rehabilitation plan
designed to help her achieve reunification with Michael. The supplemental petition also alleged
that Bernard was unable to provide support or safe and stable housing for Michael.
On December 14, 2018, less than 1 month after filing the supplemental petition, the State
filed an amended supplemental petition and a motion to terminate parental rights as to Bernard.
The amended supplemental petition again alleged that Michael was at risk for harm because
Bernard continued to reside with Crystal and because Bernard was unable to provide Michael with
proper support or safe and stable housing. The motion to terminate Bernard’s parental rights
alleged that termination was appropriate pursuant to Neb. Rev. Stat. § 43-292(2) and (7) (Reissue
2016). The motion also alleged that termination was in Michael’s best interests. A motion to
terminate Crystal’s parental rights was also filed.
A termination trial was held over 2 days in February and March 2019. In an order entered
on May 9, 2019, the juvenile court terminated Crystal’s parental rights to Michael. However, in a
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separate order entered that same day, the juvenile court declined to terminate Bernard’s parental
rights to Michael. The court noted that despite proving he was the biological father of Michael,
Bernard was “inexplicably” denied any visitation with Michael for approximately 17 months until
he established himself as the legal father. The court did place some of the blame of the delay with
Bernard, finding, “It is clear that the father, for seventeen months after becoming aware that he
was the biological father of the minor child, failed to take measures to involve himself with his
son’s case.” The court ultimately concluded as follows:
It is the Court’s determination that this father must be accorded an opportunity to
participate with a reunification plan, and to demonstrate that he is able to parent this very
young child, and that he can and will do so independent of Crystal [], whose parental rights
are terminated this date by concurrent Order of the Court.
In the May 2019 order, the juvenile court did adjudicate Michael as a child within the
meaning of § 43-247(3)(a) as to Bernard. The court then ordered Bernard to participate with a
rehabilitation plan designed to reunify him with Michael. The tenets of such plan included
participating with an initial diagnostic interview, submitting to random drug and alcohol testing,
maintaining safe and appropriate housing, completing a parenting class, maintaining a stable and
legal source of income, and participating in supervised visitations with Michael. We note that by
the time the juvenile court entered the May 2019 adjudication and dispositional order, Bernard was
incarcerated after his probation was revoked due to him violating the conditions of that probation.
According to Bernard, he had been on probation for felony driving under revocation. He was
sentenced to a period of 18 months in jail.
As a result of Bernard’s incarceration, he could not adhere to many of the tenets of his
rehabilitation plan. He was, initially, afforded the opportunity to have visits with Michael at the
correctional facility. However, on the day of his first scheduled visit with Michael in October 2019,
2-year old Michael would not cooperate with getting in the visitation worker’s vehicle in order to
travel from Omaha to Lincoln where Bernard was incarcerated. According to Michael’s foster
mother, Loretta Wells, on the morning of the scheduled October 2019 visit:
[she] tried to put [Michael] in the car seat, and he was stiff, crying, kicking. And [the
visitation worker] called her supervisor and didn’t feel comfortable with taking him. He
was kicking the back of the seat. We did have him in the car in the car seat, he was kicking
the back of the seat. She called her supervisor . . . and she said don’t force him to go.
Wells indicated that she had never seen Michael behave like this prior to the morning of the
October 2019 visit. After this incident, Michael’s court-appointed guardian ad litem filed a motion
to suspend Bernard’s visitation while he remained incarcerated. The district court declined to
suspend Bernard’s visits entirely. However, the court indicated that Bernard was only permitted to
have supervised visits with Michael when he was able to travel to Omaha on a scheduled furlough.
Ultimately, Bernard was able to visit with Michael in Omaha one time per month in the
months of January, February, and March 2020. Bernard was then unable to visit with Michael from
April until his release from incarceration in September 2020, due to restrictions established by his
correctional facility as a result of the COVID-19 pandemic.
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During his incarceration, Bernard was able to complete a parenting class and an outpatient
treatment program for drug and alcohol abuse. He participated in a work release program and was
employed as a brick layer. As a part of this employment, he submitted to two drug tests, one in
May 2020 and one in September 2020. Each test was negative for the presence of alcohol. During
his incarceration, Bernard also regularly wrote letters to Michael and arranged for Michael to
receive birthday and holiday gifts.
Prior to Bernard’s release from incarceration, the State filed a second motion for
termination of his parental rights in April 2020. Such motion alleged that termination was
appropriate pursuant to § 43-292(1), (2), (6), (7), and (9). The motion also alleged that termination
was in Michael’s best interests.
Bernard was released from incarceration on September 28, 2020. The State filed a motion
seeking a 4-month continuance of the termination proceedings in order to give Bernard “an
opportunity to reunify with his son.” The court granted the request for a continuance. However,
during the 4-month continuance, the court supplemented Bernard’s rehabilitation plan to provide
that, in addition to the orders delineated in the May 2019 order, Bernard needed to comply with
the tenets of his parole and be assessed for the appropriateness of child-parent psychotherapy
services.
2. TERMINATION TRIAL
The trial on the State’s second motion for termination of Bernard’s parental rights began
on January 27, 2021. On this first day of trial, the State called four witnesses to testify, including
Bernard.
Bernard testified that since his release from incarceration in September 2020, he had been
living with his adult son and was employed full time. Bernard testified that he was having
supervised visits with Michael three times per week. Each visit lasted 4 or 5 hours. During these
visits, 3-year-old Michael and Bernard would color, play with toy cars, play with the dogs living
at Michael’s son’s home, and play basketball. Bernard was unable to provide the names of
Michael’s doctor, teacher, or daycare.
In November 2020, Bernard participated in an initial diagnostic interview pursuant to the
juvenile court’s order. The results of this assessment revealed that Bernard suffered from an
alcohol use disorder which was currently in sustained remission. Bernard admitted that alcohol
had been his “drug of choice.” During his lifetime, Bernard had been convicted of driving under
the influence on four separate occasions.
At the time of his testimony in January 2021, Bernard remained on parole. Bernard
admitted that he was no longer complying with urinalysis testing and that he was not attending any
type of mental health therapy or AA meetings. He indicated that he had been sober since 2014 or
2015, but was unsure of his specific date of sobriety. He had attended outpatient treatment in July
2018 and during his incarceration, in February 2020. Bernard had not yet completed the assessment
to determine if child parent psychotherapy would be beneficial, but indicated he had been unable
to find a provider who was able to do such an assessment.
Testimony from Bernard’s assigned drug tester confirmed his failure to comply with drug
and alcohol testing. By the time of the termination trial on January 27, 2021, Bernard had not
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complied with requests for urinalysis testing for 30 days. The last time he submitted to a test was
December 22, 2020.
During the State’s direct examination, Bernard was unable to explain why it had taken him
so long to establish himself as Michael’s legal father, when he had been told what steps he needed
to take. Bernard blamed his caseworkers for many of the delays in the case and for his sporadic
visitation with Michael early on. Bernard indicated that his current caseworker, Pearl Lackner, has
never visited with him in person, even after his release from incarceration. He claimed to have
only spoken with Lackner on the telephone on “a few” occasions.
Wells, Michael’s foster mother, also testified on the first day of the termination hearing in
January 2021. She had been Michael’s foster parent for more than 2 years by the time of her
testimony. Wells indicated that in September 2020, when Bernard was released from incarceration
and began having more visits with Michael, Michael would resist attending the visits. Michael
would cry before the visits and would try to hide from the visitation worker so he did not have to
leave Wells’ home. When Michael returned from visits with Bernard, Wells described him as
acting “clingy” and tired. By the time of the trial, Wells believed that Michael’s resistance to visits
had lessened somewhat. However, she testified that Michael is not bothered by cancelled visits.
Jaclyn Rahaman also testified on the first day of the termination trial. She acted as
Bernard’s family support worker and visitation supervisor through January 2021. Rahaman
testified that Bernard successfully completed a family support program in June 2020. Bernard was
fairly consistent in attending visits with Michael from October through December 2020. However,
Bernard had become less consistent in his attendance in January 2021. In fact, between January 1
and January 11, Bernard cancelled four out of six scheduled visits with Michael. Of the two visits
he did attend during that time period, Bernard decided to end the visits early. Rahaman indicated
that during visitations, there were no safety concerns nor any “major” concerns regarding
Bernard’s parenting skills. Rahaman recalled that Michael had referred to Bernard as “dada”
during at least one visit.
The trial was continued until February 12, 2021. On this second day of trial, Bernard did
not appear in court. His counsel indicated that he was not aware of why Bernard was not present.
Counsel also indicated that he had tried contacting Bernard that morning, but had received no
response. Counsel requested a continuance, but such request was denied by the juvenile court, as
Bernard had been notified of the continued trial date at the close of the previous day of trial.
On the second day of the trial, the State called the current caseworker assigned to the
family, Lackner, to testify. Lackner was assigned as the family’s caseworker in October 2019,
when Bernard was still incarcerated. She testified that as long as Bernard remained incarcerated,
there was not much in the way of services she could offer to him, particularly during the COVID-19
pandemic. However, Lackner indicated that during Bernard’s incarceration, she spoke with him
over the telephone at least one time per month. In addition, she made efforts to arrange some
visitation between Bernard and Michael. Unfortunately, due to issues with scheduling, with
obtaining approvals from the corrections facility, and with Michael’s resistance to visits, only a
handful of visits were possible from October 2019 through the time of Bernard’s release from
incarceration in September 2020. In fact, no visits occurred for the last 6 months of Bernard’s
incarceration. The few visits that did occur were a result of Bernard using a furlough to travel to
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Omaha to see Michael. Lackner indicated that during the supervised visits, there were no safety
concerns or parenting issues reported.
Lackner confirmed that during his incarceration, Bernard was able to complete a parenting
class and outpatient chemical dependency treatment, both programs which were offered to
inmates. In addition, he sent letters to Michael on a regular basis and arranged for Michael to
receive some holiday and birthday gifts. Bernard told Lackner that he had even started a college
fund for Michael with some of his earnings from the work-release program.
Shortly after Bernard was released from his incarceration and placed on parole, a team
meeting was held with him. At this meeting, Lackner informed Bernard that now was the time to
be “completely compliant” with his court ordered rehabilitation plan, given the pending motion to
terminate his parental rights and given that Michael had been in an out-of-home placement for well
over 3 years. In particular, Lackner told Bernard that he needed to comply with the drug and
alcohol testing and to fully participate in visitations with Michael.
Lackner testified that the juvenile court ordered Bernard to participate with urinalysis
testing given his history of alcohol abuse. Bernard was to start such testing immediately upon his
release from incarceration. For a few months, Bernard was compliant with requests for the
urinalysis testing. And, his tests were negative for the presence of alcohol. However, toward the
end of December 2020, Bernard stopped responding to requests for urinalysis testing. He did not
test for a period of 30 days and was, as a result, terminated as a client by his service provider.
Bernard never reached out to Lackner to request that a new service provider be found.
After Bernard’s release from incarceration, he was permitted three visits with Michael per
week. These visits continued to be fully supervised, because of the limited amount of time that
Bernard was able to spend with Michael during his incarceration. Visitation workers reported no
concerns with Bernard’s parenting during visits. In fact, Bernard reached his “visitation goals”
after only 1 month. Lackner did report that Michael continues to express resistance to attending
visits with Bernard. Lackner was concerned that Michael’s behavior indicated that Michael did
not have a secure and positive attachment with Bernard.
While Bernard was initially fairly consistent in attending the visits, in January 2021, his
attendance declined. Bernard cancelled his visits on January 2, 3, and 4. He attended visits on
January 9 and 10, but ended each of those visits an hour early. On January 11, Bernard failed to
call to confirm his visit, so the visit was again cancelled. Lackner believed that in the last few
weeks prior to her testimony, Bernard had started attending visits more consistently again.
Lackner testified that after being released from incarceration, Bernard was not consistent
in communicating with her. While Bernard had regularly communicated with Lackner using text
messaging, in December 2020, he stopped responding to Lackner’s messages. Lackner attempted
to communicate with Bernard about his missed urinalysis tests, his housing situation, and his
status, but Bernard did not respond to Lackner’s efforts at communication.
While Bernard has reported to Lackner that he is employed, he has not provided any pay
stubs to demonstrate a stable source of income. Upon Bernard’s release from incarceration, he was
residing with his adult son. However, in late December 2020, Bernard was apparently asked to
leave his son’s home. Lackner was unaware of Bernard’s living situation after that, indicating he
was living with an unknown friend. Lackner explained that within the last few weeks, Bernard
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reached out to her to seek help with his housing situation, which she believed, suggested his current
housing situation was unstable.
Lackner reported that Bernard completed an initial diagnostic interview in November 2020
and that such evaluation did not recommend any further treatment at that time. Bernard has not
attended an initial interview for child-parent psychotherapy. However, the evidence revealed that
there has been difficulties with finding an appropriate provider for this type of therapy. Lackner
did not believe that Bernard could move from supervised visits until it was learned whether
child-parent psychotherapy would be appropriate for Bernard and Michael.
Ultimately, Lackner opined that termination of Bernard’s parental rights is in Michael’s
best interests. Lackner explained that Michael had been in an out-of-home placement for almost 4
years by the time of the second day of the termination trial. Despite the length of time that Michael
had been out of the home, Bernard had demonstrated less than complete compliance and
motivation toward reunification in the months leading up to the trial. Lackner believed that while
Bernard had made some progress toward reunification, he was still struggling to demonstrate his
ability to be a full-time parent for Michael. Additionally, Lackner was concerned about the weak
attachment between Bernard and Michael. Finally, Lackner noted troubling issues from Bernard’s
history which were cause for concern. These included his history of criminal behavior, his delay
in establishing a legal relationship with Michael, and his noncompliance with probation which
resulted in his most recent prison term. These issues, particularly when considered with both his
recent history of noncompliance in the 4 to 6 weeks immediately prior to trial and Michael’s almost
4 years in foster care, were bases for termination.
3. JUVENILE COURT ORDER
Following the termination trial, the juvenile court entered a short order on May 26, 2021,
terminating Bernard’s parental rights to Michael. In the order, the court without stating any
rationale therefor, made the following findings. The court found that the State had met its burden
of proving abandonment, substantial and continuous neglect, and that Michael had been in an
out-of-home placement for 15 or more months out of the most recent 22 months pursuant to
§ 43-292(1), (2), and (7). The court also found that pursuant to § 43-292(6), Bernard failed to
correct the conditions that led to Michael being adjudicated under § 43-247(3)(a). The court further
found that it was in the best interests of Michael to have Bernard’s parental rights terminated.
Bernard appeals from the juvenile court’s order.
III. ASSIGNMENTS OF ERROR
Bernard asserts that the juvenile court erred in finding that (1) statutory grounds existed to
terminate his parental rights and (2) termination of his parental rights was in Michael’s best
interests.
IV. STANDARD OF REVIEW
An appellate court reviews juvenile cases de novo on the record and reaches its conclusions
independently of the findings made by the juvenile court below. In re Interest of Mateo L. et al.,
309 Neb. 565, 961 N.W.2d 516 (2021). However, when the evidence is in conflict, an appellate
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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. Id.V. ANALYSIS
In Nebraska, the grounds for terminating parental rights are codified in § 43-292. That
statute contains 11 separate 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. In re Interest of
Mateo L. et al., supra. 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. In re Interest of Mateo L. et al., supra.
1. STATUTORY GROUNDS FOR TERMINATION
We turn to the statutory bases alleged here. In its second motion for termination of parental
rights, the State sought to terminate Bernard’s parental rights under § 43-292(1), (2), (6), (7), and
(9). The juvenile court found clear and convincing evidence to terminate Bernard’s parental rights
pursuant to § 43-292(1), (2), (6), and (7).
Section 43-292(7) allows for termination when “[t]he juvenile has been in an out-of-home
placement for fifteen or more months of the most recent twenty-two months.” 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. In re Interest of Mateo L. et al., supra. Section 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. In re Interest of Mateo L. et al., supra.
In other words, if the 15-out-of-22 formula is met, § 43-292(7) is met. In re Interest of Mateo L.
et al., supra.
In this case, Michael was placed in agency-based foster care immediately after his birth in
April 2017, and he remained with foster parents through at least February 12, 2021, when the
termination trial ended. As such, Michael has been in an out-of-home placement for almost 4 years,
which equates to his entire life. Such period clearly satisfies the 15-out-of-22 formula.
The State has shown clearly and convincingly that § 43-292(7) exists as a statutory basis
for termination of parental rights 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 other statutory bases for termination. See In re Interest of Mateo L.
et al., supra. We next consider whether termination is in Michael’s best interests.
2. BEST INTERESTS
Bernard asserts that the juvenile court erred in finding that he was an unfit parent and that
it was in Michael’s best interests to terminate his parental rights. In addition to proving a statutory
ground, the State must show that termination of parental rights is in the best interests of the
children. § 43-292; In re Interest of Isabel P. et al., 293 Neb. 62, 875 N.W.2d 848 (2016). Because
the parent’s right to raise his or her children is constitutionally protected, the court may terminate
parental rights only when the State shows that the parent is unfit. In re Interest of Isabel P. et al.,
supra. There is a rebuttable presumption that the best interests of the children are served by having
a relationship with their parent. Id. This presumption is overcome only when the State has proved
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that the parent is unfit. Id. Parental unfitness means a personal deficiency or incapacity which has
prevented, or will probably prevent, performance of a reasonable parental obligation in child
rearing and which caused, or probably will result in, detriment to the child’s well-being. Id. The
best interests analysis and the parental fitness analysis are fact-intensive inquiries. In re Interest of
Jahon S., 291 Neb. 97, 864 N.W.2d 228 (2015). While both are separate inquiries, each examines
essentially the same underlying facts. Id. 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. In re
Interest of Becka P. et al., 27 Neb. App. 489, 933 N.W.2d 873 (2019). In cases where termination
of parental rights is based on § 43-292(7), appellate courts must be particularly diligent in their de
novo review of whether termination of parental rights is in fact in the child’s best interests. In re
Interest of Becka P. et al., supra.
Bernard argues that the juvenile court determined that termination of his parental rights
was warranted based solely on his being incarcerated for 18 months in 2019 and 2020. He also
places blame on the Department and on his caseworkers for the lack of progress he made toward
reunification throughout the pendency of the case. He believes that he is a good father who is
capable of caring for Michael.
Our review of the record conflicts with Bernard’s characterization of the evidence
presented at trial. First, Bernard’s lengthy incarceration during the pendency of the proceedings
was not the only evidence presented to support termination of his parental rights. While the State
filed the motion to terminate when Bernard was still incarcerated, the State also moved to continue
the termination proceedings after Bernard’s release in September 2020 in order to give him time
to demonstrate his ability and willingness to be a parent. In fact, at the November team meeting,
Lackner specifically informed Bernard that he needed to demonstrate complete compliance with
his reunification plan in the coming months. Bernard simply failed to do so. Beginning in
December, Bernard’s participation with his rehabilitation plan tapered off. He stopped submitting
to urinalysis testing, he lost his housing, and his attendance at visitations dwindled. He never
supplied any proof of employment. In addition, Bernard stopped replying to messages left by
Lackner. Perhaps most notably, Bernard failed to even attend the last day of the termination trial
in February 2021.
Bernard’s lengthy incarceration during the pendency of the juvenile court proceedings is
also a factor we must consider in analyzing the juvenile court’s decision to terminate his parental
rights. When Bernard was arrested after a traffic stop, he was on felony probation and was in the
middle of litigating the first motion to terminate his parental rights. Bernard’s decision to violate
the law at this time placed him in a situation where he was unable to parent Michael in any
meaningful capacity for 18 months. It also came at a time when Michael had already been in an
out-of-home placement for 2 years. In the juvenile court’s order denying the State’s first motion
to terminate Bernard’s parental rights, it is clear that the court wanted Bernard to have more time
and opportunity to prove that he could be a capable parent for Michael. Unfortunately, Bernard’s
decision to violate the law and the consequences of that decision, including having his probation
revoked and being incarcerated, impeded his ability to make use of the opportunity given to him
by the juvenile court.
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In examining all of the evidence presented at the termination trial, we do not ignore the
unusual circumstances which occurred at the outset of this case. Despite a DNA test clearly
demonstrating Bernard to be Michael’s biological father a few months after Michael’s birth,
Bernard was not permitted to have visits with Michael until he could establish himself as the legal
father. We do not understand why the Department placed such a hurdle before Bernard. However,
we are also puzzled about why Bernard failed to take the steps necessary to become involved in
the juvenile court proceedings and in Michael’s life for so long. Our record reveals that as early as
June 2017, Bernard was informed and encouraged to establish himself as Michael’s legal father
by formally establishing his paternity in court. Bernard did not accomplish this task for a period
of 16 months. By the time Bernard did establish his paternity of Michael, Michael was a year and
a half old and had been in a foster home his whole life. We agree with the juvenile court’s findings
in its order denying the State’s first motion to terminate Bernard’s parental rights. The court found
that Bernard should be given an opportunity to participate in a reunification plan. However, the
court also placed responsibility on Bernard: “It is clear that [Bernard], for 17 months after
becoming aware that he was the biological father of [Michael], failed to take measures to involve
himself with his son’s case.”
Unfortunately, Bernard punted his opportunity 18 months down the road by violating the
terms of his probation. At the point he emerged from prison, time was of the essence. Bernard
needed to become actively involved in performing the requirements of the case plan and in
Michael’s life. Unfortunately, Bernard did not do so. While he did make some progress, he failed
to follow many of the court’s orders, failed to communicate with his caseworker, and failed to
have consistency in his attendance at visitations. He stopped submitting to testing for alcohol. He
moved out of his residence at the request of his adult son and had not reestablished approved
housing. He did not appear for the second day of the termination trial. Additionally, Bernard has
not attended any doctor appointments with Michael or attended a school related function. Bernard
was unaware of who Michael’s doctor was or where he went to school. There are still a number of
questions surrounding Michael’s bond with Bernard. In other words, after nearly 4 years, there
remain many goals to be accomplished and little basis to believe that Bernard is willing to make a
concerted long term commitment to be a stable and consistent parent with whom Michael can
establish a beneficial relationship.
This court has often stated that children cannot, and should not, be suspended in foster care
or be made to await uncertain parental maturity. See, e.g., In re Interest of Octavio B. et al., 290
Neb. 589, 861 N.W.2d 415 (2015). Michael has been in foster care his whole life, he deserves
stability and permanency, which Bernard has been unable to demonstrate that he can provide in
the long term. Accordingly, we agree with the juvenile court’s determination that there was clear
and convincing evidence to show that Bernard is currently an unfit parent for Michael and that his
parental rights should be terminated.
VI. CONCLUSION
We conclude the State proved by clear and convincing evidence that grounds for
termination of Bernard’s parental rights existed under § 43-292(7) and that termination of his
parental rights is in Michael’s best interests. Accordingly, the juvenile court’s order is affirmed.
AFFIRMED.
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