In re Interest of Mya C. ( 2015 )

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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
IN RE INTEREST OF MYA C. ET AL.
Cite as 23 Neb. Ct. App. 383
In re I nterest of
Mya C. et al.,
children under 18 years of age.
State of Nebraska, appellee, v.
David M., Sr., appellant.
___ N.W.2d ___
Filed November 17, 2015. No. A-15-204.
1. Juvenile Courts: Evidence: Appeal and Error. Juvenile cases are
reviewed de novo on the record, and an appellate court is required to
reach a conclusion independent of the juvenile court’s findings.
2. Parental Rights: Evidence: Appeal and Error. In a termination of
parental rights case, when the evidence is in conflict, an appellate court
may consider and give weight to the fact that the trial court observed the
witnesses and accepted one version of the facts over the other.
3. Parental Rights: Evidence: Proof. Before parental rights may be ter-
minated, the evidence must clearly and convincingly establish the exis-
tence of one or more of the statutory grounds permitting termination and
that termination is in the juvenile’s best interests.
4. Parent and Child. The court may terminate all parental rights when the
court finds such action to be in the best interests of the juvenile and it
appears by the evidence that one or more of the following conditions
exist: 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; following a determination that
the juvenile is one as described in Neb. Rev. Stat. § 43-247(3)(a) (Cum.
Supp. 2014), reasonable efforts to preserve and reunify the family if
required under Neb. Rev. Stat. § 43-283.01 (Cum. Supp. 2014), under
the direction of the court, have failed to correct the conditions leading
to the determination; and the juvenile has been in an out-of-home place-
ment for 15 or more months of the most recent 22 months.
5. Parental Rights: Evidence: Proof: Words and Phrases. The grounds
for terminating parental rights must be established by clear and convinc-
ing evidence, which is that amount of evidence which produces in the
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
IN RE INTEREST OF MYA C. ET AL.
Cite as 23 Neb. Ct. App. 383
trier of fact a firm belief or conviction about the existence of the fact to
be proved.
6. Parental Rights. Parental rights may only be terminated if the court
finds that termination is in the child’s best interests.
7. Parental Rights: Words and Phrases. A termination of parental rights
is a final and complete severance of the child from the parent.
8. Parental Rights. Because termination of parental rights has such severe
and final consequences, parental rights should be terminated only in the
absence of any reasonable alternative and as the last resort.
9. Parental Rights: Presumptions: Proof. There is a rebuttable presump-
tion that the best interests of a 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 overcome only when the
State has proved that a parent is unfit.
10. Parental Rights: Proof. 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.
11. ____: ____. A court may not properly deprive a parent of the custody
of a minor child unless it is affirmatively shown that such parent is
unfit to perform the duties imposed by the relationship, or has forfeited
that right.
12. Parental Rights. A determination of unfitness is distinct from the
determination of whether statutory grounds for termination of parental
rights exist.
13. Parental Rights: Evidence. While it may be relevant, the evidence
supporting the statutory grounds for termination of parental rights is not
always sufficient to demonstrate parental unfitness.
14. Parental Rights: Proof. While the burden remains with the parent to
rehabilitate himself within a reasonable time, the guideline of 15 or
more months of the most recent 22 months is merely a guideline of a
reasonable time for parental rehabilitation and the passage of time itself
does not demonstrate parental unfitness.
15. Parental Rights: Evidence: Proof. Generally, when termination of
parental rights is sought under subsections of Neb. Rev. Stat. § 43-292
(Cum. Supp. 2014) other than subsection (7), the evidence adduced to
prove the statutory grounds for termination will also be highly relevant
to the best interests of the juvenile, as it would show abandonment,
neglect, unfitness, or abuse.
16. Parental Rights. Statutory grounds for termination of parental rights
are based on a parent’s past conduct, but the best interests of the
child requirement for termination focuses on the future well-being of
the child.
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
IN RE INTEREST OF MYA C. ET AL.
Cite as 23 Neb. Ct. App. 383
17. Parental Rights: Parent and Child. The law does not require perfec-
tion of a parent.
18. Parent and Child: Appeal and Error. In determining whether the
continuation of a parent-child relationship is in the best interests of the
child, an appellate court should look for the parent’s continued improve-
ment in parenting skills and a beneficial relationship between parent
and child.
19. Parental Rights: Parent and Child. Although the law does not require
a child to await uncertain parental maturity, that rule should not be used
to trod upon the rights of the parent or the children.
20. Parental Rights. The State needs to provide reasonable efforts to
reunify a family only when terminating parental rights under Neb. Rev.
Stat. § 43-292(6) (Cum. Supp. 2014).
Appeal from the Separate Juvenile Court of Lancaster
County: R eggie L. Ryder, Judge. Reversed and remanded for
further proceedings.
Laura A. Lowe, P.C., for appellant.
Joe Kelly, Lancaster County Attorney, and Lory A. Pasold
for appellee.
Irwin, Inbody, and R iedmann, Judges.
R iedmann, Judge.
INTRODUCTION
David M., Sr. (David), appeals from the order of the juvenile
court for Lancaster County, Nebraska, terminating his paren-
tal rights to his minor children, LaToya M. and David M., Jr.
(David Jr.). After our de novo review of the record, we reverse,
and remand for further proceedings.
BACKGROUND
This case began as an educational neglect case against
David’s partner, Ann B., because her oldest daughter, Mya
C., had missed an impermissible number of days of school.
When the educational neglect case began in the fall of 2012,
Ann and David lived together with Ann’s two children from a
prior relationship, Mya and Tyrone C., and the couple’s young
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
IN RE INTEREST OF MYA C. ET AL.
Cite as 23 Neb. Ct. App. 383
daughter, LaToya. After “Intensive Family Preservation” work-
ers with the Department of Health and Human Services (the
Department) began observing the home, they became con-
cerned that both Ann and David were neglecting all three
children. The affidavit for temporary custody noted that dur-
ing drop-in visits, the children wore the same dirty clothes
for multiple days in a row, David yelled and used threaten-
ing language toward the children, and the parents left Mya
in timeouts for extended periods of time. Personnel from the
Department observed the home to be very dirty. They also
received reports that Mya did not have enough food and had to
sleep on the floor.
Removal of Children.
On February 14, 2013, the juvenile court granted tempo-
rary custody of Mya, Tyrone, and LaToya to the Department
and ordered that the children be removed from the home.
LaToya was 18 months old at the time of her removal. The
next day, the State filed a supplemental petition adding alle-
gations against David. The supplemental petition alleged in
relevant part that on one or more occasions since at least
December 2012:
a) [David] failed to provide a safe, suitable, and stable
living environment for the minor children;
b) . . . [T]he minor children ha[d] been observed to
be wearing the same dirty clothes multiple days in a
row; [and]
c) [David had] been verbally, emotionally and/or physi-
cally abusive to the minor children or a sibling of the
minor children.
Ann and David pleaded no contest to the charges.
In April 2013, David Jr. was born to Ann and David. The
State immediately removed him from his parents’ care and
placed him in the temporary custody of the Department. Ann
ultimately relinquished her parental rights to all four children.
Accordingly, this appeal pertains only to David’s parental
rights to LaToya and David Jr.
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
IN RE INTEREST OF MYA C. ET AL.
Cite as 23 Neb. Ct. App. 383
Case Plan.
At a review hearing in June 2013, the court ordered in rel-
evant part that David participate in mental health counseling
to address anger issues, that he participate in family therapy
with Ann to address relationship and coparenting issues, that
he participate in a budget management course, and that Ann
and David have reasonable rights of supervised parenting
time as arranged by the Department. The court order also
allowed for monitored parenting time to be arranged with 10
days’ notice.
The Department chose Dr. James Carmer for David’s ther-
apy. Due to coordination issues between the Department’s pro-
viders, his therapy did not begin until September 2013. At the
termination hearing, Dr. Carmer testified that David partici-
pated in 27 individual sessions and that his therapy was ongo-
ing. Dr. Carmer stated that David has made good progress on
issues, including anger management, coping skills, emotional
management, and appreciating other people’s perspectives. Dr.
Carmer opined that David has become more cooperative, less
threatened by authority, and better able to manage his emo-
tions and “problem solve” in a parenting context. Dr. Carmer
explained that David has benefited from a parenting approach
called Common Sense Parenting that he learned from his “fam-
ily parenting partner.” Although Dr. Carmer has not person-
ally observed David with the children and has only reviewed
visitation notes, he testified based on the notes and David’s
progress in therapy that in his professional opinion, David is
capable of being a competent parent. Dr. Carmer also provided
seven sessions of couple’s counseling to Ann and David, which
ceased when the couple’s relationship ended around June or
July 2014.
The State also provided David with a parenting partner to
assist him with parenting skills. David completed a 6-week
parenting class and testified that he learned useful skills
from it. David also worked on budgeting with his parent-
ing partner.
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
IN RE INTEREST OF MYA C. ET AL.
Cite as 23 Neb. Ct. App. 383
In June 2014, David’s court plan was amended to include
an order that he follow recommendations set by LaToya’s and
David Jr.’s doctors. Both LaToya and David Jr. experienced
ongoing medical conditions. LaToya was diagnosed with fail-
ure to thrive, and she was given strict dietary guidelines and
enrolled in occupational therapy at a local agency. LaToya’s
doctor required that each of her meals contain a fruit, veg-
etable, and meat. David Jr. suffers from allergies and must
maintain a gluten-free and dairy-free diet.
David maintained employment as a dishwasher at a hotel
throughout the case. While David initially worked the night
shift, he has moved to a Monday­ -through-Friday daytime
schedule and generally works from 7:30 a.m. to 3:30 p.m.
However, David will frequently be asked to work late, come in
on weekends, or work a split shift to accommodate hotel traf-
fic, often without prior warning.
Supervised visitation has generally occurred at David’s
home, except for a brief time while Ann and David dealt with
a bedbug issue at the beginning of the case and a 1-month gap
when the couple ended their relationship and David searched
for new housing. On the final day of the termination hearing
in January 2015, David was living in a small home that would
have been appropriate for reunification.
Barriers to Reunification.
David’s caseworkers testified as to several ongoing issues
throughout the case. One of David’s initial caseworkers char-
acterized him as “rude” and stated that he was disengaged and
at times volatile during family team meetings. She also noted
times when David was angry or confrontational with visita-
tion workers while she managed the case. In some instances,
David refused to bathe the children when he believed it would
take too much of the visitation time. On a few occasions, visits
were canceled or ended early because Ann or David did not
have children’s Tylenol or David Jr.’s nonallergenic formula
and could not afford to buy some before a visit. Recently,
David had to end visits early because his bathroom was too
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
IN RE INTEREST OF MYA C. ET AL.
Cite as 23 Neb. Ct. App. 383
cold for bathing the children in the winter. Additionally, David
Jr. needed surgery to remove an abscess around the time of the
termination hearing. David did not visit him in the hospital,
stating that he, himself, was ill and that he did not want to
expose David Jr. to additional illness. Visitation after the sur-
gery was canceled because David failed to procure the Epsom
salts and gauze necessary to bathe David Jr.
David’s work schedule often conflicted with his ability to
timely arrive at visitation or attend at all, and it has caused
him to miss the children’s daytime doctor and therapy appoint-
ments. This issue is compounded by the fact that David does
not own a vehicle and must rely on the bus for much of his
transportation. David testified that when he and Ann were
a couple, he was the sole wage earner, and that Ann was to
attend the appointments when he could not. He further testified
that he was frustrated when she failed to do so.
Not all of the barriers to reunification came from David.
LaToya and David Jr. were removed from their first foster
home because the foster mother was referring to the children
as her children and was at times preventing David’s access to
them. The case managers also changed visitation supervision
companies because the visitation workers at the first company
were not giving accurate feedback about their observations and
concerns. David expressed frustration when workers failed to
give him any direction or constructive criticism.
Visitation.
Visitation never progressed beyond the “fully supervised”
level. Ann and David initially had visitation with LaToya and
David Jr. four times each week. Following the end of their
relationship, the two divided their visitation days, with David
having visitation alone with the children 2 days per week and
Ann taking visitation the other 2 days.
Since David began visitation without Ann in June 2014,
his visitation worker has been John Peterson. Peterson testi-
fied that visitation occurs in David’s home and that David
keeps his home clean and free of clutter. Throughout the visits
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
IN RE INTEREST OF MYA C. ET AL.
Cite as 23 Neb. Ct. App. 383
that Peterson has supervised, David has provided for all of
LaToya’s and David Jr.’s basic needs, including clean clothes,
diapers, and “pull-ups.” David was complying with David
Jr.’s feeding restrictions before the caseworker and doctor
decided that the foster mother would provide the food while
the children were being tested for allergies. David provides
LaToya with a fruit, a vegetable, and some type of main dish
on each visit, in accordance with the doctor’s instructions.
Peterson testified that David generally has LaToya’s food
prepared before the children arrive, so that he only needs to
reheat it along with David Jr.’s food, which is provided by the
foster parents.
Peterson said that David’s routine is to play with both chil-
dren after dinner. David engages with them well and plays on
the floor with them. He gives them both baths, dresses them
in clean diapers or pull-ups and clean pajamas, and buckles
them into their car seats with a kiss and hug. Peterson testified
that David is a loving father and that the children also appear
to love David. He stated that he has never seen David become
agitated or upset. Peterson observed David with the children
utilizing appropriate parenting skills, including calm redirec-
tion of LaToya’s toddler tantrums and whining. When David
needs to discipline LaToya, he uses age-appropriate methods,
including a short timeout, calming and redirection strategies,
and instruction on proper apologies. Peterson opined that David
is meeting all of the goals that are in the service referral. He
believes that David exhibits the parenting skills that he would
need to parent the children on his own.
David’s visitation attendance has not been perfect. Between
August and the first week of November 2014, David missed
13 of the 28 scheduled visits. The majority of these cancel-
lations have been because of work, and David’s supervisor
testified that October was a particularly busy month at the
hotel, but David also missed a few visitations because he did
not have adequate supplies on hand for the children. David’s
current caseworker initially testified that David was having
issues correcting the originally adjudicated issues, but when
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
IN RE INTEREST OF MYA C. ET AL.
Cite as 23 Neb. Ct. App. 383
she testified again at the continuation of the termination hear-
ing in January 2015, she stated that the only factor preventing
her from decreasing the level of supervision or increasing the
amount of visitation was David’s failure to be completely con-
sistent in visitation attendance.
Termination Order.
The juvenile court terminated David’s parental rights. The
court found that statutory grounds to terminate David’s rights
existed under Neb. Rev. Stat. § 43-292(2), (6), and (7) (Cum.
Supp. 2014). It also found that termination was in the best
interests of the children and that David was an unfit parent.
ASSIGNMENTS OF ERROR
David assigns that the juvenile court erred in (1) finding
that statutory grounds existed for the termination of his paren-
tal rights, (2) finding that termination was in the children’s
best interests, (3) finding that the Department had exercised
reasonable efforts to preserve and reunify the family, and (4)
finding that he failed to make sufficient progress in court-
ordered services to regain custody of his children.
STANDARD OF REVIEW
[1,2] Juvenile cases are reviewed de novo on the record,
and an appellate court is required to reach a conclusion
independent of the juvenile court’s findings. In re Interest of
Karlie D., 283 Neb. 581, 811 N.W.2d 214 (2012). However,
when the evidence is in conflict, an appellate court may con-
sider and give weight to the fact that the trial court observed
the witnesses and accepted one version of the facts over the
other. Id.
ANALYSIS
[3] Before parental rights may be terminated, the evi-
dence must clearly and convincingly establish the existence
of one or more of the statutory grounds permitting termina-
tion and that termination is in the juvenile’s best interests.
In re Interest of Aaron D., 269 Neb. 249, 691 N.W.2d 164
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Decisions of the Nebraska Court of A ppeals
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IN RE INTEREST OF MYA C. ET AL.
Cite as 23 Neb. Ct. App. 383
(2005). Although we find that statutory grounds for termina-
tion existed, we determine that the State did not prove by
clear and convincing evidence that termination was in the
children’s best interests. Therefore, we reverse, and remand
for further proceedings.
Statutory Grounds for Termination.
[4,5] David’s first assignment of error is that the juvenile
court erred in finding that statutory grounds for termina-
tion exist. The State sought to terminate David’s parental
rights under § 43-292(2), (6), and (7), which provides in rel-
evant part:
The court may terminate all parental rights . . . when
the court finds such action to be in the best interests of
the juvenile and it appears by the evidence that one or
more of the following conditions exist:
....
(2) The parents have substantially and continuously
or repeatedly neglected and refused to give the juvenile
or a sibling of the juvenile necessary parental care and
protection;
....
(6) Following a determination that the juvenile is one
as described in subdivision (3)(a) of section 43-247,
reasonable efforts to preserve and reunify the family if
required under section 43-283.01, under the direction of
the court, have failed to correct the conditions leading to
the determination; [and]
(7) The juvenile has been in an out-of-home placement
for fifteen or more months of the most recent twenty-
two months.
The grounds for terminating parental rights must be established
by clear and convincing evidence, which is that amount of evi-
dence which produces in the trier of fact a firm belief or con-
viction about the existence of the fact to be proved. Kenneth C.
v. Lacie H., 286 Neb. 799, 839 N.W.2d 305 (2013).
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
IN RE INTEREST OF MYA C. ET AL.
Cite as 23 Neb. Ct. App. 383
The juvenile court terminated David’s rights under all three
of the above subsections of § 43-292. After our de novo review
of the record, we determine that statutory grounds existed for
termination under subsections (7) and (2), but not under (6).
Subsection (7)—Amount of Time
in Out-of-Home Placement.
Under § 43-292(7), statutory grounds for termination exist
if the juvenile has been in an out-of-home placement for 15
or more months of the most recent 22 months. LaToya was
removed from the home on February 14, 2013, and David Jr.
was removed to the Department’s custody immediately fol-
lowing his birth in April of that same year. The children were
never returned to the home during the pendency of the case.
The State’s amended petition asserted that LaToya had been
in an out-of-home placement for more than 15 consecutive
months at the time of the petition filing in June 2014 and
that David Jr. would have been in an out-of-home placement
for 15 or more months of the prior 22 months as of August
5. Therefore, there is sufficient evidence in the record to
show that the children were in out-of-home placement for
15 or more months of the most recent 22 months under
§ 43-292(7).
Subsection (2)—Neglect of Child
or Sibling of Child.
We also find that clear and convincing evidence sup-
ports a finding that § 43-292(2) was satisfied in this case.
Subsection (2) provides for termination where “[t]he 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.” Court reports in
evidence document that when Intensive Family Preservation
services began conducting home visits following the com-
mencement of the educational neglect case, on more than one
occasion workers found that the children were wearing the
same dirty pajamas multiple days in a row. The workers noted
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
IN RE INTEREST OF MYA C. ET AL.
Cite as 23 Neb. Ct. App. 383
that David used angry, aggressive, and threatening language
toward the children during their visits on at least six occasions
in a 2-month span. In addition, the oldest daughter, Mya, was
in a corner in her bedroom in timeout “more often than not”
when they dropped in to visit. David admitted in testimony at
the termination hearing that at the inception of the case, he
kept Mya in timeout for longer periods than were age appro-
priate. Mya’s school reported that she was constantly hungry.
A visitation worker witnessed David yell at Mya for eating off
the floor.
This evidence from a series of visits establishes clearly
and convincingly that during the time period at the inception
of the case, David substantially and repeatedly neglected the
juveniles at issue or a sibling of those juveniles and refused to
give them necessary parental care and protection. Therefore,
the statutory grounds for termination under § 43-292(2) are
also satisfied.
Subsection (6)—Failure to Correct
Adjudicated Conditions.
The record does not, however, provide clear and convincing
evidence that § 43-292(6) is satisfied. Subsection (6) involves
a failure to correct the adjudicated conditions. The conditions
underlying the adjudication in this case are outlined above and
include David’s neglecting to give the children a clean home,
clean clothes, and proper food; being unable to control his
anger; yelling at the children; and disciplining them inappro-
priately. David has attended therapy to work on his anger and
difficulty with authority. He has completed a parenting class.
David’s current visitation worker testified at trial that David
has a tidy home; keeps proper clean clothes, food, and supplies
for the children’s visits; has always been a calm parent dur-
ing visits; has never raised his voice; and uses age-appropriate
and effective redirection techniques to discipline his toddler.
Accordingly, the record does not contain clear and convincing
evidence that the adjudicated issues have not been corrected
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IN RE INTEREST OF MYA C. ET AL.
Cite as 23 Neb. Ct. App. 383
and therefore does not support finding that statutory grounds
for termination exist under subsection (6).
Best Interests of Children.
[6-8] Although we find that statutory grounds for termina-
tion exist, parental rights may only be terminated if the court
finds that termination is in the child’s best interests. § 43-292.
A termination of parental rights is a final and complete sever-
ance of the child from the parent. In re Interest of Crystal C.,
12 Neb. Ct. App. 458, 676 N.W.2d 378 (2004). Therefore, with
such severe and final consequences, parental rights should be
terminated only in the absence of any reasonable alternative
and as the last resort. Id.
[9] There is a rebuttable presumption that the best interests
of a child are served by having a relationship with his or her
parent. In re Interest of Nicole M., 287 Neb. 685, 844 N.W.2d
65 (2014). 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 a parent is unfit. Id.
[10-14] “[T]he U.S. Supreme Court has been clear that 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 . . . .”’” 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). A court may not properly deprive a par-
ent of the custody of a minor child unless it is affirmatively
shown that such parent is unfit to perform the duties imposed
by the relationship, or has forfeited that right. In re Interest of
Xavier H., supra. A determination of unfitness is distinct from
the determination of whether statutory grounds for termina-
tion exist. While it may be relevant, the evidence supporting
the statutory grounds for termination is not always sufficient
to demonstrate parental unfitness. For instance, adjudication
under subsection (7), which looks only at the amount of time
in which a child has been in an out-of-home placement, does
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IN RE INTEREST OF MYA C. ET AL.
Cite as 23 Neb. Ct. App. 383
not provide evidence of unfitness. In re Interest of Aaron D.,
269 Neb. 249, 691 N.W.2d 164 (2005). While the burden
remains with the parent to rehabilitate himself within a rea-
sonable time, the guideline of 15 or more months of the most
recent 22 months is merely a guideline of a reasonable time
for parental rehabilitation and the passage of time itself does
not demonstrate parental unfitness. In re Interest of Kendra M.
et al., 283 Neb. 1014, 814 N.W.2d 747 (2012).
[15,16] Generally, when termination is sought under other
subsections of § 43-292, the evidence adduced to prove the
statutory grounds for termination will also be highly rel-
evant to the best interests of the juvenile, as it would show
abandonment, neglect, unfitness, or abuse. In re Interest of
Aaron D., supra. However, this is not always the case, as
statutory grounds are based on a parent’s past conduct, but
the best interests element focuses on the future well-being of
the child. Kenneth C. v. Lacie H., 286 Neb. 799, 839 N.W.2d
305 (2013).
Above, we find statutory grounds for termination met under
§ 43-292(2) and (7). While evidence of neglect under subsec-
tion (2) will often be relevant to a determination of unfitness,
in this case it is not, because the conditions of neglect that
support grounds for termination under subsection (2) existed
only at the initiation of this case and David has since cor-
rected those conditions. Our finding of repeated neglect is
based upon reports that the children were dirty, hungry, and
subject to inappropriate discipline during several Intensive
Family Preservation worker visits before the children were
removed from the home. As David’s current visitation worker
testified, David now has a clean home and clean clothing for
the children, provides them with nutritious food during visits,
has learned to manage his anger and is always calm during
visits, and demonstrates effective and age-appropriate redirec-
tion methods for his toddler. Therefore, the evidence of neglect
from the inception of the case is not sufficient to show that
David is presently an unfit parent.
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IN RE INTEREST OF MYA C. ET AL.
Cite as 23 Neb. Ct. App. 383
[17,18] The State’s evidence presented at the termina-
tion hearing also fails to establish clearly and convincingly
that David is an unfit parent and that termination is in the
children’s best interests. We are mindful that the State’s
evidence does present concern about David’s financial and
organizational abilities to be a consistent parent. The State’s
only witnesses were the three caseworkers who have man-
aged David’s case. They noted several problems that David
encountered throughout the case. David encountered diffi-
culty trusting and cooperating with authority figures from the
Department. David missed some of the children’s medical
appointments. At times, David lacked supplies or the funds
to procure supplies, such as allergen-free cans of formula for
David Jr., children’s Tylenol, or sufficient healthy food for
LaToya. David has consistently had problems with missing
or arriving late to visitation when he was required to remain
at work beyond the end of his scheduled shift. However, the
law does not require perfection of a parent. In re Interest of
Aaron D., 269 Neb. 249, 691 N.W.2d 164 (2005). Instead,
we should look for the parent’s continued improvement in
parenting skills and a beneficial relationship between parent
and child. Id.
The State did not elicit a straightforward opinion from any
of its witnesses as to whether termination at this time is in
the best interests of the children. David’s current caseworker
stated that reunification would not be in the best interests of
the children “at this time”; that she believed that permanency
was in the best interests of any child, especially LaToya and
David Jr.; and that she does not believe that languishing in
the system is in any child’s best interests. However, this testi-
mony falls short of clear evidence that termination is in these
children’s best interests. Further, the caseworker testified on
the final day of the termination hearing that the only basis for
not moving toward increased visitation or decreased levels of
supervision during visitation was David’s inconsistency with
visitation attendance.
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The Nebraska Supreme Court has noted the limits of case-
worker testimony, given that caseworkers spend relatively
little time in the home with the families, and often serve as
proxies for the visitation workers and therapists who have
closer family contact. See, e.g., In re Interest of Aaron D.,
supra. In contrast, David presented the testimony of his cur-
rent visitation worker and his therapist, both of whom testi-
fied positively about David’s parenting, problem-solving, and
anger management skills. The visitation worker testified that
David has good parenting skills, that he communicates appro-
priately when his work schedule conflicts with visitation, and
that David is meeting all of the parenting goals set out for
him in the visitation referral. The visitation worker believes
that David exhibits the kind of parenting skills necessary to
parent on his own. He has had no safety concerns for the chil-
dren during any of the visits. He also testified that he believes
that David loves his children and that the children love David
based on the interactions he has witnessed. Although the visi-
tation worker has not been with David throughout the entire
case, he has been the worker during the most relevant time
period, from June 2014 to the present, which is the period
after David ended his relationship with Ann and began visita-
tion independently. This time period is most relevant to under-
standing how David would parent on his own if the children
were eventually returned to his custody. This recent evidence
shows that David’s parenting skills are improving and that his
relationship with his children is beneficial. See In re Interest
of Aaron D., supra.
Nebraska appellate courts have reversed orders terminating
parental rights where the parents are substantially complying
with court orders and are improving as parents. See, id; In re
Interest of Hill, 207 Neb. 233, 298 N.W.2d 143 (1980); In re
Interest of Justin H. et al., 18 Neb. Ct. App. 718, 791 N.W.2d 765
(2010). Termination may be improper in light of continuing
parental progress even where lingering visitation issues exist.
See In re Interest of Xavier H., 274 Neb. 331, 740 N.W.2d
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13 (2007) (reversing termination of parental rights where
mother had improved parenting skills, obtained employment,
and maintained sobriety despite her visitation having been
decreased to one time per week because of missed visits). See,
also, In re Interest of Aaron D., 269 Neb. 249, 691 N.W.2d 164
(2005) (reversing termination where mother had progressed on
case plan despite continuing deficiencies in her employment,
living situation, and visitation consistency).
[19] The evidence here reflects that David is struggling
with balancing his employment and visitation commitments.
This difficulty is compounded because David does not have
access to a vehicle and must rely on bus transportation avail-
able only at set times. However, he has substantially complied
with court plans, including signing releases of information,
participating in mental health counseling, participating in
family therapy, working on a budget with his parenting part-
ner, completing parenting classes, utilizing parenting skills
taught through State services, and following doctor’s orders
to provide appropriate food for the children. His parenting
skills are improving and have been described as “good” by
his most recent visitation worker. Although the law does not
require a child to await uncertain parental maturity, that rule
should not be used to trod upon the rights of the parent or
the children. In re Interest of L.J., J.J., and J.N.J., 220 Neb.
102, 368 N.W.2d 474 (1985). In light of David’s improv-
ing parenting skills, stable job and residence, and beneficial
relationship with his children, we cannot say that the record
before us shows that David is unfit or that termination is in
the best interests of the children at this time. See In re Interest
of Aaron D., supra. Accordingly, we reverse, and remand for
further proceedings.
Reasonable Efforts.
[20] David’s third assignment of error alleges that the State
failed to provide the requisite reasonable efforts to achieve
reunification. However, the State needs to provide reasonable
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IN RE INTEREST OF MYA C. ET AL.
Cite as 23 Neb. Ct. App. 383
efforts to reunify a family only when terminating parental
rights under § 43-292(6). In re Interest of Hope L. et al., 278
Neb. 869, 775 N.W.2d 384 (2009). Because we determined
above that subsection (6) was not satisfied in this case, we
need not address this assignment of error.
Progress on Regaining Custody.
David’s final assignment of error is that the juvenile court
erred in determining that he had not made sufficient progress
in court-ordered services to regain custody of his children. We
note that in ordering termination, the juvenile court necessarily
determined David was not in a position to regain custody of
his children. While we agree with the juvenile court that David
is not currently in a position to regain custody, we disagree to
the extent that the trial court determined that David could not,
within a reasonable time, be in a position to have custody of
his children returned to him.
CONCLUSION
Because the evidence does not show clearly and convinc-
ingly that David is an unfit parent or that termination of
David’s parental rights is in the best interests of the children at
this time, we reverse, and remand for further proceedings.
R eversed and remanded for
further proceedings.