In re Interest of Lizabella R. , 25 Neb. Ct. App. 421 ( 2018 )

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IN RE INTEREST OF LIZABELLA R.
Cite as 25 Neb. Ct. App. 421
In re I nterest of Lizabella R., a child
under 18 years of age.
State of Nebraska, appellee, v.
Elizabeth L., appellant.
___ N.W.2d ___
Filed January 9, 2018. No. A-17-401.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juve-
nile cases de novo on the record and reaches conclusions independently
of the juvenile court’s findings.
2. Evidence: Appeal and Error. When the evidence is in conflict, an
appellate court may give weight to the fact that the lower court observed
the witnesses and accepted one version of the facts over the other.
3. Appeal and Error. Plain error is error plainly evident from the record
and of such a nature that to leave it uncorrected would result in damage
to the integrity, reputation, or fairness of the judicial process.
4. ____. Plain error may be asserted for the first time on appeal or be noted
by an appellate court on its own motion.
5. Parental Rights: Proof. Parental rights may be terminated pursuant to a
showing of best interests of the child and by establishing, through clear
and convincing evidence, one of the 11 statutory bases for termination
under Neb. Rev. Stat. § 43-292 (Reissue 2016).
6. Evidence: Words and Phrases. Clear and convincing evidence is the
amount of evidence that produces in the trier of fact a firm belief or
conviction about the existence of the fact to be proved.
7. Parental Rights. Neb. Rev. Stat. § 43-292(2) (Reissue 2016) provides
for termination when the parents have substantially and continuously or
repeatedly neglected and refused to give the juvenile or a sibling of the
juvenile necessary parental care and protection.
8. ____. A parent’s incarceration, standing alone, does not provide a
ground for termination of parental rights.
9. Parental Rights: Abandonment. In a termination of parental rights
case, parental incarceration may properly be considered along with other
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factors in determining whether parental rights should be terminated
based on neglect.
10. Parental Rights. Although incarceration itself may be involuntary, the
underlying criminal conduct that resulted in incarceration is voluntary.
11. ____. Neb. Rev. Stat. § 43-292(6) (Reissue 2016) provides for termina-
tion when, following a determination that a juvenile is one as described
in Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016), reasonable efforts to
preserve and reunify the family under the direction of the court have
failed to correct the conditions leading to the determination.
12. ____. A court order to complete relinquishment counseling is, by its
very nature, not an effort intended to preserve and reunify the family.
13. Appeal and Error. An appellate court is not obligated to engage in an
analysis which is not necessary to adjudicate the case and controversy
before it.
14. Parental Rights: Proof. Neb. Rev. Stat. § 43-292(7) (Reissue 2016)
states that the statutory grounds for termination are met if the juvenile
has been in an out-of-home placement for 15 or more months of the
most recent 22 months.
15. ____: ____. In addition to proving a statutory ground, the State must
also show that termination of parental rights is in the best interests of
the child.
16. Constitutional Law: Parental Rights. A parent’s right to raise his or
her child is constitutionally protected.
17. Parental Rights: Presumptions: Proof. There is a rebuttable presump-
tion that the best interests of the child are served by having a relation-
ship with his or her parent. Based on the idea that fit parents act in the
best interests of their children, this presumption is overcome only when
the State has proved that the parent is unfit.
18. Constitutional Law: Parental Rights: Words and Phrases. In the
context of the constitutionally protected relationship between a parent
and a child, parental unfitness means a personal deficiency or incapacity
which has prevented, or will probably prevent, performance of a reason-
able parental obligation in child rearing and which caused, or probably
will result in, detriment to a child’s well-being.
19. Parent and Child. The law does not require perfection of a parent;
rather, courts should look for the parent’s continued improvement in
parenting skills and a beneficial relationship between parent and child.
Appeal from the Separate Juvenile Court of Douglas County:
Elizabeth Crnkovich, Judge. Reversed and remanded for fur-
ther proceedings.
Maureen K. Monahan for appellant.
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Donald W. Kleine, Douglas County Attorney, Jennifer C.
Clark, and Laura Elise Lemoine, Senior Certified Law Student,
for appellee.
Pirtle, R iedmann, and A rterburn, Judges.
R iedmann, Judge.
I. INTRODUCTION
Elizabeth L. appeals from an order of the separate juvenile
court of Douglas County terminating her parental rights. For
the reasons that follow, we reverse the order and remand the
cause for further proceedings.
II. BACKGROUND
Elizabeth is the biological mother of Lizabella R., born
in January 2015, and Jose R., born in February 2016. The
children have different biological fathers. The juvenile court
terminated the parental rights of Lizabella’s biological father,
and Jose’s biological father has indicated that he would like to
relinquish his parental rights. This appeal, however, involves
only the termination of Elizabeth’s parental rights to the
two children.
In August 2015, the State of Nebraska filed a petition to
adjudicate Lizabella pursuant to Neb. Rev. Stat. § 43-247(3)(a)
(Reissue 2016) based upon the fault or habits of Elizabeth.
The State subsequently filed an amended petition adding a
second count, which alleged improper support through no fault
of Elizabeth. The petitions arose from an incident wherein
Lizabella, who was in the care of Elizabeth’s sister and her
boyfriend, was found “unresponsive . . . unclean, and with
a yeast infection on her skin.” At the time of this incident,
Elizabeth was incarcerated on federal drug charges. The juve-
nile court granted an ex parte order for immediate temporary
custody and placed Lizabella in foster care. Lizabella has
remained in foster care since that time.
Elizabeth was released from her pretrial incarceration in
November 2015 on the condition that she enter residential
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treatment. She remained out of custody until trial on her fed-
eral charges in late May 2016.
Jose was born in February 2016, while Elizabeth was out
of custody. The State did not file for his removal immediately
following his birth.
The juvenile court adjudicated Lizabella in April 2016 and,
the following month, entered a dispositional order in which it
ordered Elizabeth to have unsupervised visitation that could
transition to overnight visits, to abide by the rules and regu-
lations of her federal probation, and to maintain safe, stable
housing and a source of legal income.
In late May 2016, after entry of the dispositional order,
Elizabeth was found guilty of two federal drug charges and
was thereafter sentenced to 10 years’ imprisonment on each of
two convictions, with the sentences to be served concurrently.
She was remanded into custody at the end of May.
Following Elizabeth’s incarceration, the State filed a second
supplemental petition, in June 2016, to adjudicate Jose pursu-
ant to § 43-247(3)(a) based upon the fault or habits of Elizabeth
and Jose’s biological father. The juvenile court granted an ex
parte order for immediate temporary custody and placed Jose
in foster care.
The juvenile court adjudicated Jose in September 2016.
Elizabeth was subsequently ordered to complete relinquish-
ment counseling as to both children. In November, the State
filed a motion to terminate Elizabeth’s parental rights to the
children, and trial was held on March 8, 2017.
At trial, the State presented testimony from Allison
McElderry and Kati Caniglio, each of whom had worked with
Elizabeth and her children as a family permanency specialist
(FPS). McElderry, the FPS who worked with the family from
the inception of the case through August 2016, testified that
Elizabeth was originally incarcerated on her federal charges
but was released from jail in early November 2015 to enter
residential treatment. McElderry stated that Elizabeth suc-
cessfully completed that program. She also testified as to the
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voluntary services that Elizabeth participated in while out
of custody, which included working with her family support
worker, early development network services, and a children’s
respite care center; working with Lizabella’s doctor’s regard-
ing her special needs; and receiving support from her licensed
alcohol and drug counselor and therapist through her residen-
tial treatment facility.
In a court memorandum from November 2015, McElderry
recommended a number of services for Elizabeth. McElderry
testified that Lizabella is blind, immobile, uses a “G-tube” for
feeding, has permanent brain damage, and will be a paraplegic
for the rest of her life. As a result of these conditions, one
of her recommendations was for Elizabeth to participate in
training to learn how to provide for Lizabella’s special needs.
McElderry’s other recommendations for Elizabeth included
participating in supervised visitation, following the recom-
mendations through the residential program, participating in
drug testing, completing a parenting assessment, and obtaining
appropriate housing and employment. At trial, McElderry testi-
fied that Elizabeth completed each of these recommendations
other than the parenting assessment, which she did not set up
for Elizabeth. McElderry further testified that Elizabeth never
had a positive drug test, she consistently participated in visita-
tion with Lizabella three to five times a week for 3 hours at a
time, and she never missed a visit.
After Jose was born in February 2016, McElderry did not
file an affidavit for his removal because she believed that
Elizabeth was an appropriate care provider for him at the
time and that Elizabeth had been making progress through
the services offered. At the time of Jose’s birth, Elizabeth had
stable, appropriate housing and was working through a staff-
ing agency. McElderry testified that the only change that later
made Elizabeth an inappropriate care provider was the fact that
she was incarcerated.
Following Elizabeth’s federal convictions, McElderry
asked Elizabeth if she had any information regarding her
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final sentencing and Elizabeth stated that “she was facing ten
years.” Due to Lizabella’s health conditions, McElderry testi-
fied that Lizabella would not be able to travel to visit Elizabeth
while incarcerated.
The State also presented the testimony of Caniglia, the FPS
who worked with Elizabeth and her children from August
2016 through the time of the termination hearing. Caniglia
testified that Elizabeth is currently incarcerated in a federal
prison in Minnesota and that although she has not had visita-
tion with either child since her incarceration, she maintains
telephone contact with both children. Caniglia further testified
that Elizabeth has a “very open relationship with the foster
parent[s].” She stated that she believed Elizabeth “had done
very well” prior to incarceration and that Elizabeth was a good
caretaker when not in custody. However, Caniglia testified that
she believed it was in the children’s best interests to terminate
Elizabeth’s parental rights due to the length of time Elizabeth
will be incarcerated and the resulting inability to provide them
with a safe, stable placement.
The juvenile court found, by clear and convincing evidence,
that the State had established the statutory grounds set forth
in Neb. Rev. Stat. § 43-292(2), (6), and (7) (Reissue 2016).
Furthermore, the court concluded that it was in the children’s
best interests to terminate Elizabeth’s parental rights. Elizabeth
now appeals.
III. ASSIGNMENTS OF ERROR
Elizabeth assigns, restated, that the juvenile court erred
in (1) finding her children to come within the meaning of
§ 43-292(2), (2) finding her children to come within the mean-
ing of § 43-292(6), and (3) determining that it would be in the
best interests of the children to terminate her parental rights.
IV. STANDARD OF REVIEW
[1,2] An appellate court reviews juvenile cases de novo
on the record and reaches conclusions independently of the
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juvenile court’s findings. In re Interest of Noah B. et al., 295
Neb. 764, 891 N.W.2d 109 (2017). When the evidence is in
conflict, an appellate court may give weight to the fact that the
lower court observed the witnesses and accepted one version of
the facts over the other. In re Interest of LeVanta S., 295 Neb.
151, 887 N.W.2d 502 (2016).
V. ANALYSIS
1. Jose
Elizabeth assigns that the juvenile court erred in terminat-
ing her parental rights to both of her children. However, we
find that the analysis for each child differs due to the fact
that Lizabella was removed in August 2015 and Jose was not
removed until June 2016. Accordingly, we address each child
in turn.
[3,4] We note that the juvenile court found that both chil-
dren came within the meaning of § 43-292(7), which provides
for termination when the juvenile has been in an out-of-home
placement for 15 or more months of the most recent 22
months. However, it is clear from the record that Jose had
been in an out-of-home placement for approximately 9 months
as of the time of the termination hearing. The juvenile court’s
finding that Jose came within the meaning of § 43-292(7)
constitutes plain error. Plain error is error plainly evident
from the record and of such a nature that to leave it uncor-
rected would result in damage to the integrity, reputation, or
fairness of the judicial process. In re Interest of Mainor T. &
Estela T., 267 Neb. 232, 674 N.W.2d 442 (2004). Plain error
may be asserted for the first time on appeal or be noted by
an appellate court on its own motion. Id. Finding that Jose
did not come within the meaning of § 43-292(7), we turn to
subsections (2) and (6).
(a) § 43-292(2)
Elizabeth argues that the juvenile court erred in finding that
Jose came within the meaning of § 43-292(2) because she was
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found to be an appropriate caretaker for Jose from his birth
until she was incarcerated on her federal charges. She claims
that her parental rights were terminated solely due to her incar-
ceration and that incarceration alone cannot constitute a ground
for termination. We agree.
[5-7] Parental rights may be terminated pursuant to a show-
ing of best interests of the child and by establishing, through
clear and convincing evidence, one of the 11 statutory bases
for termination under § 43-292. Clear and convincing evidence
is the amount of evidence that produces in the trier of fact a
firm belief or conviction about the existence of the fact to be
proved. In re Interest of Kalie W., 258 Neb. 46, 601 N.W.2d
753 (1999). Section 43-292(2) provides for termination when
the parents have substantially and continuously or repeatedly
neglected and refused to give the juvenile or a sibling of the
juvenile necessary parental care and protection.
[8-10] The Nebraska Supreme Court has held that a parent’s
incarceration, standing alone, does not provide a ground for
termination of parental rights. See In re Interest of Kalie W.,
supra. However, in a termination case, parental incarceration
may properly be considered along with other factors in deter-
mining whether parental rights should be terminated based
on neglect. Id. Similarly, a parent’s inability to perform his
or her parental obligations due to imprisonment may likewise
be considered. Id. Although incarceration itself may be invol-
untary, the underlying criminal conduct that resulted in incar-
ceration is voluntary. See id.
The State argues that Elizabeth’s voluntary conduct resulted
in her incarceration and has now put her in a position where
she is unable to provide for the needs of her children. The
State claims that if Elizabeth’s rights are not terminated, her
children will spend the majority of their lives in foster care
awaiting permanency. On this basis, the State argues that
it is appropriate to consider her incarceration and 10-year
sentence in finding that Jose comes within the meaning of
§ 43-292(2).
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In this case, the State’s evidence concentrated on Elizabeth’s
federal convictions and sentences. The court received into
evidence a certified copy of the indictment and judgment in
Elizabeth’s federal criminal case. The judgment states that
Elizabeth was sentenced to 120 months’ imprisonment for
each of two convictions, with the sentences to be served
concurrently.
At the termination hearing, the State presented evidence
from each FPS who worked with Elizabeth and her children.
That testimony with respect to neglect focused on Elizabeth’s
incarceration and her subsequent inability to provide for her
children. The State presented no additional evidence to prove
that Elizabeth neglected either Jose or Lizabella pursuant to
§ 43-292(2).
The State correctly argues that a parent’s incarceration as
well as the voluntary conduct that resulted in incarceration
may be considered when determining whether that parent has
neglected his or her child. However, it is well established that
incarceration alone does not provide a sufficient ground for ter-
mination. See, In re Interest of Leland B., 19 Neb. Ct. App. 17, 797
N.W.2d 282 (2011); In re Interest of Josiah T., 17 Neb. Ct. App.
919, 773 N.W.2d 161 (2009). In this case, the State focused
solely on Elizabeth’s incarceration and her resulting inability
to provide for her children while imprisoned. Without other
evidence that Elizabeth has neglected Jose or Lizabella, we
cannot find that her incarceration alone justifies termination of
her parental rights under § 43-292(2).
Each FPS testified that Elizabeth’s incarceration was the
primary obstacle preventing her from being able to provide
for and take care of her children. Caniglia testified that she
believed Elizabeth’s rights should be terminated based on the
length of time Elizabeth will be incarcerated and the resulting
inability to provide stable placement for Jose and Lizabella.
However, she also testified that Elizabeth was a very good
caretaker when not incarcerated. Similarly, McElderry testified
that when she was assigned to the case, she did not file for
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Jose’s removal following his birth in February 2016 because,
at that time, Elizabeth was an appropriate care provider for
him. She testified that the only change that subsequently made
Elizabeth an inappropriate care provider was that “[Elizabeth]
was incarcerated.” Neither FPS testified to any neglect of the
children aside from Elizabeth’s inability to provide for them
while incarcerated.
While it is undisputed that Elizabeth is currently incarcer-
ated and that she was sentenced to a total term of 10 years’
imprisonment, we find nothing in the record indicating how
much of that sentence Elizabeth will likely serve before being
paroled. McElderry testified that when she asked Elizabeth
if she had any information on her final sentencing, Elizabeth
indicated only that “she was facing ten years.” Given the lack
of evidence regarding an expected release date, we cannot say
with precision how long Elizabeth will be away from her chil-
dren. See In re Interest of Josiah T., supra.
The State also presented evidence that Elizabeth has shown
a desire to maintain contact with her children while incarcer-
ated. Caniglia testified that since Elizabeth has been incarcer-
ated, she has maintained telephone contact with both children
and has a “very open” and “very good” relationship with the
children’s foster parents. Furthermore, Caniglia stated that she
would support continued telephone contact pending any appeal
of the termination of Elizabeth’s parental rights. While it is
clear that Elizabeth has not been able to care for and provide
for her children since she has been incarcerated, she has shown
a continued desire and interest in playing a role in their lives
and keeping up to date with their development.
We also note that the State presented no evidence indicat-
ing that Elizabeth had previously been incarcerated or had
prior involvement with the Department of Health and Human
Services. From the record before us, it appears that this family
first came to the attention of the department in August 2015
when Lizabella was injured by her aunt’s boyfriend while in
the care of the aunt during Elizabeth’s pretrial incarceration.
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There is nothing in the record to indicate that, prior to that inci-
dent, Elizabeth had failed to provide Lizabella with necessary
care and protection.
We recognize that incarceration has played a role in sup-
porting termination of parental rights. For example, in In re
Interest of Zanaya W. et al., 291 Neb. 20, 863 N.W.2d 803
(2015), the Nebraska Supreme Court upheld the termination
of a father’s parental rights based, in part, upon his incarcera-
tion. However, in In re Interest of Zanaya W. et al., the father
admitted the allegations of the petition that he had substan-
tially, continuously, and repeatedly neglected his children; that
he refused to give them parental care and treatment; and that
termination would be in their best interests. The factual basis
presented by the State to support the allegations involved
more than the fact that he was incarcerated. According to the
Supreme Court, the State also showed that the father com-
mitted an additional crime while incarcerated, thus extend-
ing his sentence. It also showed that he used marijuana daily
while the children were in his custody. The court concluded
that these factual bases were sufficient to support the father’s
admission to the allegation that he had substantially and con-
tinuously or repeatedly refused to give the children proper
parental care.
While in the present case the State presented evidence
of Elizabeth’s crimes and the anticipated length of her sen-
tences, it did not present any additional evidence similar to
that in In re Interest of Zanaya W. et al., supra. We have no
evidence that she used drugs while Jose was in her custody,
nor do we have any admission by Elizabeth that she neglected
and refused to provide parental care to Jose prior to her
incarceration.
Upon our de novo review of the record, we find that the State
failed to present clear and convincing evidence that Elizabeth
has neglected Jose pursuant to § 43-292(2). The State’s evi-
dence focused solely on Elizabeth’s current incarceration, and
a parent’s incarceration, standing alone, does not provide a
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ground for termination of parental rights. Accordingly, we
reverse the juvenile court’s order finding that Jose came within
the meaning of § 43-292(2).
(b) § 43-292(6)
Elizabeth claims that the juvenile court erred in finding
that Jose came within the meaning of § 43-292(6) because she
voluntarily participated in a number of services while she was
out of custody and the additional services that were ordered
postadjudication could not be completed or offered through the
juvenile court. We agree.
[11] As stated above, parental rights may be terminated fol-
lowing a showing of best interests and establishing, by clear
and convincing evidence, the existence of one of the statu-
tory grounds for termination in § 43-292. Section 43-292(6)
provides for termination when, following a determination that
a juvenile is one as described in § 43-247(3)(a), reasonable
efforts to preserve and reunify the family under the direction
of the court have failed to correct the conditions leading to
the determination.
In this case, Lizabella was removed in August 2015 but
was not adjudicated until April 2016. From the time Elizabeth
was released from pretrial custody in November until she was
convicted in late May 2016, she underwent a number of vol-
untary services, including residential treatment. She further
participated in services, which included working with her fam-
ily support worker, early development network services, and a
children’s respite care center; working with Lizabella’s doctors
regarding her special needs; and receiving support from her
licensed alcohol and drug counselor and therapist through her
residential treatment placement.
Elizabeth participated in and completed all of the recom-
mendations made by her FPS, with the exception of a parent-
ing assessment because the FPS failed to set one up. She never
tested positive on a drug test and visited her children three to
five times a week without missing a visit. By the time Jose was
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born in February 2016, Elizabeth had obtained stable, appro-
priate housing and soon thereafter obtained employment.
Following Elizabeth’s incarceration in May 2016, McElderry
stated that she was no longer able to provide Elizabeth with
services. McElderry testified that she did not request visitation
for the children with Elizabeth because it was not clear whether
Elizabeth was allowed to have visits and Lizabella’s health
prohibited her from traveling to visit Elizabeth.
Both McElderry and Caniglia testified that Elizabeth had
made progress with the services she was participating in
when she was out of custody. McElderry stated that it was
because of this progress that she did not file for Jose’s removal
immediately following his birth. She testified that, at that
time, Elizabeth was an appropriate care provider for Jose.
Additionally, Caniglia testified that Elizabeth had been doing
very well prior to her incarceration and that she was a very
good caretaker when not incarcerated.
The juvenile court adjudicated Lizabella pursuant to
§ 43-247(3)(a) in April 2016. The following month, the court
entered a dispositional order in which it ordered Elizabeth to
have unsupervised visitation with Lizabella; to maintain safe,
stable housing and a source of legal income; and to abide by
the rules and regulations of her federal probation. However, at
that time, Elizabeth had not yet been sentenced on her federal
convictions. Several days later, Elizabeth was sentenced to
prison, rather than probation. She was subsequently taken into
custody and has remained incarcerated since then. Because
Elizabeth was sentenced to prison rather than probation, which
the juvenile court appears to have anticipated, she could not
comply with the court’s order to abide by the rules of fed-
eral probation.
Jose was adjudicated pursuant to § 43-247(3)(a) in September
2016. Thereafter, the juvenile court ordered Elizabeth to com-
plete relinquishment counseling for Jose and Lizabella. It is
undisputed that Elizabeth never participated in relinquishment
counseling for either child.
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In its motion for termination of Elizabeth’s parental rights,
the State asserted that Elizabeth had been ordered to comply
with various rehabilitation plans, which included the disposi-
tional orders wherein she was ordered to have unsupervised
visitation with Lizabella, to maintain housing and a source
of income, to abide by the rules of her federal probation, and
to complete relinquishment counseling. At the time that the
first dispositional order was entered, Elizabeth had stable,
appropriate housing and was employed. She had also been
consistently participating in supervised visitation. However,
Elizabeth was sentenced to 10 years’ imprisonment after the
juvenile court entered this order, which prevented her from
complying with its orders. In particular, we note that she could
not abide by the rules of her federal probation because, as of
the date of the order, she had not yet been sentenced and was
subsequently sentenced to incarceration rather than probation.
Elizabeth also did not complete relinquishment counseling
because she did not wish to relinquish her parental rights to
either child.
The evidence presented by the State shows that Elizabeth
voluntarily participated in many services prior to the adjudi-
cation of either child. Each FPS testified that Elizabeth was
making progress and doing well with those services, so much
so that McElderry found her to be an appropriate caretaker and
did not file for removal following Jose’s birth until Elizabeth
was sentenced and incarcerated on her federal convictions.
McElderry testified that Elizabeth successfully complied with
all of her recommendations except for completing a parenting
assessment, which McElderry failed to set up.
[12] We do not find Elizabeth’s failure to comply with the
court’s orders to abide by the rules of her federal probation
and to complete relinquishment counseling to be indicative of
the failure of reasonable efforts to preserve and reunify her
with her children. A court order to complete relinquishment
counseling is, by its very nature, not an effort intended to pre-
serve and reunify the family. Additionally, it was not possible
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for Elizabeth to comply with the court’s order to abide by the
rules of federal probation when she was not sentenced to fed-
eral probation; therefore, we find Elizabeth’s failure to comply
with such a provision to be outside of her control.
Upon our de novo review of the record, we find that the State
failed to present clear and convincing evidence that reasonable
efforts failed to correct the conditions leading to the adjudica-
tion of Jose pursuant to § 43-292(6). Elizabeth participated in
an extensive number of services, demonstrating her commit-
ment to improving her parenting skills and regaining custody
of her children, and she complied with every court order that
she could. We therefore reverse the order of the juvenile court
terminating Elizabeth’s parental rights to Jose and remand the
cause for further proceedings.
(c) Best Interests
[13] Elizabeth also argues that the juvenile court erred in
determining that termination of her parental rights is in her
children’s best interests. However, because we conclude that
the State failed to provide sufficient evidence to prove that
termination of Elizabeth’s parental rights to Jose was warranted
pursuant to § 43-292(2) or (6), and because we accordingly
remand the cause for further proceedings, we do not address
this assignment of error with respect to Jose. An appellate court
is not obligated to engage in an analysis which is not necessary
to adjudicate the case and controversy before it. In re Interest
of Darryn C., 295 Neb. 358, 888 N.W.2d 169 (2016).
2. Lizabella
We turn next to whether the juvenile court erred in terminat-
ing Elizabeth’s parental rights to Lizabella.
(a) Statutory Grounds
for Termination
[14] While Elizabeth argues that the juvenile court erred in
terminating her parental rights under § 43-292(2) and (6), she
does not assign as error the termination of her parental rights
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under § 43-292(7). Section 43-292(7) states that the statutory
grounds for termination are met if the juvenile has been in an
out-of-home placement for 15 or more months of the most
recent 22 months. Here, it is undisputed that Lizabella was
removed in August 2015 and remained in foster care through
the time of the termination hearing in March 2017. Therefore,
it is clear that the statutory grounds under § 43-292(7) are met
with respect to Lizabella.
(b) Best Interests
Elizabeth argues that the juvenile court erred in finding that
it was in Lizabella’s best interests to terminate Elizabeth’s
parental rights. She claims that the court’s finding rests solely
on the fact that she is incarcerated and is contrary to evidence
that she continues to have a relationship and telephone contact
with her children. Elizabeth argues that incarceration alone
does not make her an unfit parent. We agree.
[15-19] In addition to proving a statutory ground, the State
must also show that termination of parental rights is in the best
interests of the child. In re Interest of Jahon S., 291 Neb. 97,
864 N.W.2d 228 (2015). A parent’s right to raise his or her
child is constitutionally protected. Therefore, before a court
may terminate parental rights, the State must show that the
parent is unfit. Id. There is a rebuttable presumption that the
best interests of the child are served by having a relationship
with his or her parent. Based on the idea that fit parents act in
the best interests of their children, this presumption is over-
come only when the State has proved that the parent is unfit.
Id. In the context of the constitutionally protected relation-
ship between a parent and a child, parental unfitness means
a personal deficiency or incapacity which has prevented, or
will probably prevent, performance of a reasonable parental
obligation in child rearing and which caused, or probably
will result in, detriment to a child’s well-being. Id. The best
interests analysis and the parental fitness analysis are fact-
intensive inquiries, and while they are separate, each examines
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essentially the same underlying facts. Id. The law does not
require perfection of a parent; rather, courts should look for
the parent’s continued improvement in parenting skills and a
beneficial relationship between parent and child. In re Interest
of Aaron D., 269 Neb. 249, 691 N.W.2d 164 (2005).
As addressed above, incarceration is a factor that may be
considered in determining whether parental rights should be
terminated, but incarceration alone cannot be the sole basis
for termination. In re Interest of Jahon S., supra. However, it
is proper to consider a parent’s inability to perform his or her
parental obligations due to incarceration. Id.
The evidence presented by the State with regard to Lizabella’s
best interests focused on Elizabeth’s inability to provide for
Lizabella while Elizabeth is incarcerated. Caniglia testified
that based on the length of time Elizabeth will be incarcerated
and the resulting inability to provide stable placement, she
believed termination of Elizabeth’s parental rights was in the
children’s best interests. However, she conceded that Elizabeth
had been doing very well and had made progress toward reha-
bilitating herself as a parent prior to her incarceration.
As addressed above, the evidence presented by the State
indicates that during the pendency of this case, Elizabeth has
participated in numerous voluntary services. The testimony
presented indicated that she was a good caretaker and an
appropriate parent to Jose while she was not incarcerated.
Elizabeth regularly participated in visitation with Lizabella
three to five times per week for 3 hours at a time. Immediately
prior to her incarceration, the juvenile court ordered unsuper-
vised visitation that could transition to overnight visits. Since
Elizabeth has been incarcerated, she has maintained contact
with her children by telephone and keeps up to date with their
lives through their foster parents and caseworker.
The record shows that Elizabeth parented Lizabella from
the time of her birth in January 2015 until Elizabeth’s ini-
tial incarceration on her federal charges. Since then, she
has actively worked to improve her parenting skills and to
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maintain a relationship with Lizabella. The progress that she
made is reflected in the juvenile court’s order immediately
prior to her incarceration wherein she was allowed to have
unsupervised visitation transitioning into overnight visits. Due
to Lizabella’s health conditions, she requires a substantial
amount of special care. Elizabeth voluntarily participated in all
recommended services to obtain the training necessary to be
able to properly provide such care for Lizabella. Furthermore,
Elizabeth has demonstrated her commitment to a continuing
relationship with Lizabella despite Elizabeth’s incarceration.
Upon consideration of the above, we cannot find that it is
in Lizabella’s best interests to terminate Elizabeth’s parental
rights despite the fact that she is incarcerated. We therefore
reverse the order of the juvenile court terminating Elizabeth’s
parental rights to Lizabella and remand the cause for fur-
ther proceedings.
VI. CONCLUSION
Based upon our de novo review of the record, we reverse the
juvenile court’s order terminating Elizabeth’s parental rights
and remand the cause for further proceedings.
R eversed and remanded for
further proceedings.