In re Interest of Jordana H. ( 2014 )

Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF JORDANA H. ET AL. 19
Cite as 22 Neb. Ct. App. 19
In re I nterest of
Jordana H. et al.,
18 years of age.
children under
State of Nebraska, appellee, v. Carlos H.,
appellant, and Jennifer H., appellee.
___ N.W.2d ___
Filed May 27, 2014. Nos. A-12-1067 through A-12-1070.
1. Parental Rights: Pleadings. Under Neb. Rev. Stat. § 43-291 (Reissue 2008),
facts may be set forth in an original petition, a supplemental petition, or a motion
filed with the court alleging that grounds exist for the termination of paren-
tal rights.
2. Juvenile Courts: Jurisdiction: Parental Rights. The juvenile court shall have
jurisdiction of the proceedings for termination of parental rights.
3. ____: ____: ____. The juvenile court properly acquires jurisdiction over an origi-
nal action to terminate parental rights as provided in the Nebraska Juvenile Code
without prior juvenile court action, including adjudication.
4. Juvenile Courts: Jurisdiction: Parental Rights: Pleadings. The juvenile court
acquires jurisdiction to terminate parental rights when a motion to terminate con-
taining the grounds for termination is filed, without prior juvenile court action,
including adjudication.
5. Juvenile Courts: Parental Rights: Pleadings. The grounds contained in Neb.
Rev. Stat. § 43-292(1) through (5) (Cum. Supp. 2012) do not require, imply, or
contemplate juvenile court involvement, including adjudication, prior to the filing
of the petition for termination of parental rights.
6. Due Process: Juvenile Courts: Parental Rights. When a juvenile court pro-
ceeds with a hearing on a termination of parental rights without a prior adjudica-
tion, the proceedings must be accompanied by due process safeguards.
7. Juvenile Courts: Jurisdiction: Parental Rights. A juvenile court has exclusive
original jurisdiction as to a proceeding for termination of parental rights.
8. Rules of Evidence: Parental Rights. The Nebraska Rules of Evidence apply
in adjudication proceedings but not in proceedings for termination of paren-
tal rights.
9. Juvenile Courts: Expert Witnesses: Pretrial Procedure: Pleadings. In an
adjudication hearing, an opponent of expert testimony is required to file a con-
cise pretrial motion to challenge the expert’s testimony on the basis of Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L.
Ed. 2d 469 (1993), and Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d
862 (2001).
10. Parental Rights: Rules of Evidence: Expert Witnesses. In a termination of
parental rights hearing, where the rules of evidence do not apply, neither do the
standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Schafersman v. Agland
Coop, 262 Neb. 215, 631 N.W.2d 862 (2001).
11. Due Process: Parental Rights: Proof. In termination of parental rights cases,
due process controls and requires that fundamentally fair procedures be used by
Decisions of the Nebraska Court of Appeals
20 22 NEBRASKA APPELLATE REPORTS
the State in an attempt to prove that a parent’s rights to his or her child should
be terminated.
12. Parental Rights: Proof. Neb. Rev. Stat. § 43-292 (Cum. Supp. 2012) provides
11 separate conditions, any one of which can serve as the basis for the termina-
tion of parental rights when coupled with evidence that termination is in the best
interests of the child.
13. ____: ____. A finding of abuse or neglect may be supported where the record
shows (1) that a parent had control over the child during the period when the
abuse or neglect occurred and (2) that multiple injuries or other serious impair-
ment of health have occurred which ordinarily would not occur in the absence of
abuse or neglect.
14. Parental Rights: Circumstantial Evidence: Proof. Circumstantial evidence
may be used in a disposition proceeding in which the burden of proof is “clear
and convincing.”
15. Circumstantial Evidence: Proof. A fact proved by circumstantial evidence is
nonetheless a proven fact.
16. Circumstantial Evidence. Circumstantial evidence is not inherently less proba-
tive than direct evidence.
17. Parental Rights: Circumstantial Evidence: Proof. In many cases of child
neglect or child abuse, the only proof available is circumstantial evidence.
18. Parental Rights. Parental rights can be terminated only when the court finds that
termination is in the child’s best interests.
19. ____. Statutory grounds for termination of parental rights as contained in Neb.
Rev. Stat. § 43-292 (Cum. Supp. 2012) are based on a parent’s past conduct, but
the best interests element focuses on the future well-being of the child.
20. ____. A court may not simply assume that the existence of a statutory ground for
termination of parental rights necessarily means that termination would be in the
best interests of the child.
21. Parental Rights: Right to Counsel. A parent in a juvenile court case has the
right to appointed counsel if unable to hire a lawyer.
22. Appeal and Error. It is not the duty of a reviewing court to search the record for
the purpose of ascertaining whether there is error, and any error must be specifi-
cally pointed out.
Appeal from the County Court for Scotts Bluff County:
James M. Worden, Judge. Affirmed.
David S. MacDonald, Deputy Scotts Bluff County Public
Defender, for appellant.
Tiffany Wasserburger, Deputy Scotts Bluff County Attorney,
for appellee State of Nebraska.
Jeremy C. Jorgenson for appellee Jennifer H.
Audrey M. Elliott, of Kovarik, Ellison & Mathis, P.C.,
guardian ad litem.
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF JORDANA H. ET AL. 21
Cite as 22 Neb. Ct. App. 19
Inbody, Chief Judge, and Pirtle and Riedmann, Judges.
Riedmann, Judge.
I. INTRODUCTION
Carlos H. appeals from the order of the county court for
Scotts Bluff County, sitting as a juvenile court, terminating
his parental rights to his four minor children. The cases have
been consolidated for consideration on appeal. We note that the
children’s mother, Jennifer H., also filed a notice of appeal, but
failed to file a brief. Thus, we grant her no affirmative relief.
We find no merit to Carlos’ assignments of error and therefore
affirm the decision of the juvenile court.
II. BACKGROUND
Carlos and his wife, Jennifer, are the parents of three
daughters: Skylar H., born in October 2004; Taylor H., born
in February 2009; and Jordana H., born in December 2011.
They also have one son, Ashton H., born in November 2005.
When the juvenile court terminated Carlos’ parental rights to
the minor children, it also terminated Jennifer’s parental rights.
Jennifer filed a notice of appeal after Carlos perfected his
appeal, and thus, pursuant to Neb. Ct. R. App. P. § 2-101(C)
(rev. 2010), Jennifer is considered an appellee. In order to seek
affirmative relief, Jennifer was required to file an appellee’s
brief containing a cross-appeal, but she failed to file a brief.
Therefore, we cannot grant her any affirmative relief, and we
will limit our discussion of her involvement to information
necessary to address Carlos’ arguments.
1. Events Leading to
R emoval in 2011
In October 2011, the Nebraska Department of Health and
Human Services (DHHS) received several telephone calls
regarding Ashton’s welfare. The caller expressed concerns
about Ashton’s small size, multiple bruises on his body, obses-
sion with food, and absences from school. Based on the tele-
phone calls, Nichole Kihlthau, a child and family services
specialist with DHHS, attempted to locate Ashton to do a
welfare check. She contacted Ashton’s school on October 10
and learned that Carlos had informed the school that Ashton
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22 22 NEBRASKA APPELLATE REPORTS
was home sick because he had had an allergic reaction to a
flu shot.
On October 12, 2011, Kihlthau learned that Ashton had
never received a flu shot. Because Ashton had not yet returned
to school, Kihlthau and a Scottsbluff police officer went to
Carlos and Jennifer’s house around 11 a.m. to look for him.
Jennifer told them Ashton had gone on a trip with Carlos and
would return in a few days. After checking on Taylor, who was
asleep upstairs in the home, Kihlthau and the officer left. They
went back to Carlos and Jennifer’s home around 3 or 4 p.m.
to gather more information about Ashton’s whereabouts from
Jennifer. They then left the home again and returned a third
time, that evening, with two additional police officers.
While the officers searched the home for Ashton, Kihlthau
went upstairs to talk to Skylar and Taylor. She observed two
bedrooms upstairs at the house. One was Carlos and Jennifer’s
bedroom. The other bedroom was pink and contained only
one bed and solely girls’ clothes and toys. Kihlthau asked
Skylar and Taylor where Ashton’s things were, and they
both said “downstairs.” Skylar said Ashton’s clothes were
dirty because the girls were allowed to “spit and poop” on
them. Kihlthau did not see any indication that a boy lived in
Skylar’s bedroom. When Kihlthau went to the basement of
the home, she observed a rack and a laundry basket contain-
ing boys’ clothes.
Finally, around 7:30 or 8 p.m., Jennifer admitted that Ashton
had a large scrape across his face and that Carlos had taken
him so that it did not look like Carlos and she had abused him.
She said Ashton was with Carlos at Carlos’ parents’ house.
Ashton was located there a short while later.
Subsequently, Investigator Joe Rohrer, one of the police
officers who was involved in the search for Ashton, received
a telephone call from Carlos. Carlos agreed to meet Rohrer at
the police station. Carlos initially told Rohrer the same story
that Jennifer had told: that he had taken Ashton on a trip. But
when confronted with the truth, Carlos admitted that he got
scared because Ashton’s injuries “looked really bad” and he
was afraid DHHS would take his children away. He claimed
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF JORDANA H. ET AL. 23
Cite as 22 Neb. Ct. App. 19
that Ashton’s injuries were the result of a fall down the stairs
into the basement of Carlos and Jennifer’s house.
Photographs taken of Ashton that night depict a large red
mark on the right side of his face, a bump on his forehead, a
black eye, a rash all over his skin, and a distended abdomen.
The large mark on Ashton’s face and a mark on his shoulder
contained a similar, linear pattern. Kihlthau, Rohrer, and a
Scottsbluff police captain observed that the imprint on Ashton’s
face was consistent with a shoe print. Police confiscated sev-
eral pairs of “flip-flop” sandals from Carlos and Jennifer’s
house. Subsequent forensic testing concluded that one of the
“flip-flops” could have caused the injuries to Ashton’s face and
shoulder, but the testing did not rule out other potential items
as the cause.
Ashton was taken to the hospital the night of October 12,
2011, for examination. The nurse who examined him said that
if he had not already been in DHHS’ custody when he was
brought in, she would have reported his condition because she
suspected his injuries were caused by abuse. Her suspicions
were raised because of the extent of the bruises and scratches
on his body and his overall condition. She also noticed that
his size was very small for a 5-year-old, his abdomen was
distended, and his arms and legs were very skinny. Skylar,
Ashton, and Taylor were removed from Carlos and Jennifer’s
custody that night and placed in foster care. Jordana had not
yet been born, but upon her birth in December 2011, DHHS
immediately removed her from Carlos and Jennifer.
2. P rior Concerns of Abuse
and R emoval of Children
The 2011 incident was not the first time the children had
been removed from Carlos and Jennifer; nor was it the first
time Carlos and Jennifer had been suspected of child abuse.
In 1998, Carlos pled no contest to felony child abuse from
an incident involving the 6-month-old child of his former
wife. In December 2004, when Carlos and Jennifer lived
in Kansas, 2-month-old Skylar was taken to a hospital by
ambulance because she was unconscious and not breathing.
Carlos and Jennifer provided conflicting stories about what
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24 22 NEBRASKA APPELLATE REPORTS
happened to her. The physician at the hospital suspected
child abuse but could not substantiate it because of a lack of
visible injuries.
A year later, in December 2005, Carlos and Jennifer took
2-month-old Ashton to the hospital, where it was discovered
that he had a broken femur. He was also found to have older
injuries that were in the process of healing, including a frac-
tured rib and fractured elbow. Carlos and Jennifer explained
that they had pulled Ashton out of the bathtub, causing his
leg injury, but three physicians involved in Ashton’s care
agreed that the injuries were likely caused by abuse. As a
result of Ashton’s injuries, Skylar and Ashton were removed
from Carlos and Jennifer’s care and adjudicated through the
Kansas juvenile court. Carlos moved out of the home for
several months while he and Jennifer completed services as
part of their case plan. Eventually, the children and Carlos
were reintegrated into the home, and the case was closed
in November 2007. The family moved back to Nebraska
shortly thereafter.
In May 2009, Carlos took Ashton to a hospital emergency
room with a laceration on the back of his head that required
staples. The nurse who examined Ashton also noticed several
areas of bruising on Ashton, including large bruises on his
back and bruises in various stages of healing all over his body.
The extent of the injuries was concerning to the nurse, so she
reported it to the hospital’s social worker. She was also con-
cerned about Carlos’ demeanor, because he was sitting 3 feet
away from Ashton while Ashton was holding a dressing on his
own head and because Carlos was on his cell phone through-
out the entire examination. Carlos told the nurse that one of
Ashton’s sisters had caused the bruises on Ashton, but Ashton
told the social worker that Carlos was the cause. Carlos also
said to the nurse, “‘I know you’re suspecting abuse and you’re
not going to find anything.’”
Concerns about Ashton’s welfare were also reported in
January 2010. Scottsbluff police received a report that although
Ashton was 4 years old, he could speak only a few words,
appeared very skinny for his age, and had bruising on his
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF JORDANA H. ET AL. 25
Cite as 22 Neb. Ct. App. 19
back, collarbone, and shoulders. An officer went to Carlos
and Jennifer’s home and observed bruises on Ashton’s back
and noted that he looked skinny and sickly with sunken eyes.
However, Ashton was allowed to remain in his parents’ care at
that time.
3. Current Juvenile
Court P roceedings
On October 14, 2011, the State filed petitions alleging
that Skylar, Ashton, and Taylor came within the meaning of
Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2008). On December
14, the State filed motions to terminate the parental rights of
Carlos and Jennifer to Skylar, Ashton, Taylor, and Jordana.
Amended petitions were filed on May 8, 2012. The termina-
tion hearing was held in August 2012 and took place over the
course of 7 days.
(a) School Personnel’s
Testimony
Several personnel from Ashton’s school testified at the hear-
ing. A school social worker testified that she made two reports
to DHHS voicing her concerns that Ashton was being abused
or neglected. Her concerns were based on numerous marks on
Ashton’s body, the fact that he was often hungry and seemed
preoccupied with food, and his frequent absences from school.
In the first 2 months of kindergarten, Ashton missed 10 days of
school. Several teachers at the school also testified that Ashton
would often miss school and come to school with scratches,
bumps, and bruises on his body.
The school personnel also noticed Ashton’s fixation with
food. One teacher observed that Ashton always seemed hungry
and would eat all of his food and ask for more. If he dropped
any of it on the floor, he would pick it up and eat it off the
floor. Another teacher testified that Ashton had been found
going through other students’ backpacks looking for food and
trying to catch food that other children were dumping in the
garbage. Carlos and Jennifer told the school that Ashton had
to be on a special, limited diet because he had numerous,
severe food allergies. But when the school asked them to sign
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26 22 NEBRASKA APPELLATE REPORTS
a release of information so the school could verify Ashton’s
allergies with a doctor, they refused.
(b) Skylar’s Testimony
Skylar testified at the termination hearing. She described
Carlos and Jennifer as “mean” because they would spank
Ashton. She testified that Jennifer spanked Ashton with a belt
on the back, arms, legs, and head. She said that he would cry
when Jennifer hit him with the belt and that that made Skylar
sad. Skylar also testified that she saw Jennifer spank Ashton
with a “flip-flop” on his arms, legs, belly, and head and that the
large mark on the right side of Ashton’s face that was visible
when the children were removed from the home was caused by
Jennifer’s hitting him with a “flip-flop.” Skylar said that she
also saw Carlos spank Ashton on the back, arms, and legs with
a belt and a boot.
Skylar testified that she did not like how Carlos and Jennifer
treated her either. According to Skylar, they spanked her with
a belt on her back, arms, and legs and it hurt. Skylar said they
also used their hands to hit Taylor.
Skylar explained that she slept upstairs in her bedroom and
Taylor slept upstairs with Carlos and Jennifer, but that Ashton
slept in a dog kennel in the basement. She stated Carlos and
Jennifer would put Ashton in the kennel and close the door
after he was inside. According to Skylar, no one would stay
downstairs with Ashton and no lights were left on for him.
Skylar said that Carlos and Jennifer also denied Ashton
food. According to Skylar, she, Taylor, Carlos, and Jennifer sat
at a table in the kitchen to eat, but Ashton was at a separate
table where he had to stand and eat by himself. Ultimately,
Skylar said that she did not feel safe when she was living with
Carlos and Jennifer because they were “mean” and that she did
not want to go back and live with them.
(c) Expert Testimony
The court also heard testimony from Dr. Bruce Buehler, a
physician board certified in pediatrics, clinical and biochemi-
cal genetics, and endocrinology. Dr. Buehler has worked with
a genetics clinic, which specializes in working with people
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF JORDANA H. ET AL. 27
Cite as 22 Neb. Ct. App. 19
who have special genetic, motoric, or educational needs, for
31 years. He saw Ashton on two occasions in 2010 when
Carlos brought him in due to Ashton’s short stature and devel-
opmental delays. Dr. Buehler noticed that Ashton was very
delayed with his motor skills and speech and that he was
very shy and withdrawn. He also noticed numerous bruises
all over Ashton’s body and a calcified area on Ashton’s skull,
which were not consistent with falling down. At that time,
Dr. Buehler suggested to Ashton’s pediatrician that Ashton
was possibly being abused. He also expressed concern about
psychosocial issues and was concerned that the cause of
Ashton’s delays was situational. Dr. Buehler conducted exten-
sive genetic testing on Ashton to try to determine the cause
of his delays, but he was unable to identify any underlying
genetic conditions.
When Dr. Buehler saw Ashton again after he had been
removed from Carlos and Jennifer’s care, he observed that
Ashton was “psycho-socially an amazingly different child.”
Ashton exhibited no autistic behaviors, he was very warm and
friendly, he was trying to speak and joke, and he was much
more interactive and played with toys. He had also grown
approximately 3 inches in height, which was very notable and
showed that his growth hormone had “turned on.” The next
time Dr. Buehler saw him, Ashton had grown several more
inches in height and seemed friendlier yet with people.
Dr. Buehler opined to a reasonable degree of medical cer-
tainty that Ashton suffered from “psycho-social dwarfism.”
He explained that psychosocial dwarfism occurs when a child
lives in an abusive environment and the environment depresses
the growth hormone, causing the child to stop growing. Dr.
Buehler’s diagnosis was based on the fact that changing
Ashton’s environment caused Ashton to grow without any
added growth hormone. A psychosocial dwarfism diagnosis
is reached by ruling out other causes of lack of growth, and
Dr. Buehler’s conclusion came as an “evolution of [his] test-
ing,” because genetically he ruled out all possible conditions
for Ashton’s lack of growth. Dr. Buehler testified that he
did testing as extensive as he knows how to do and that he
Decisions of the Nebraska Court of Appeals
28 22 NEBRASKA APPELLATE REPORTS
had two other doctors look at Ashton, but no one could find
another diagnosis.
Dr. Buehler testified that it is in Ashton’s best interests to
remain in the environment he is currently in because it has
caused him to grow and improve and has changed his social
ability. Because Ashton is delayed, he is at risk for potential
abuse, as are all children who are delayed, and therefore, it is
even more important that Ashton’s home be safe and stable.
According to Dr. Buehler, the cause of psychosocial dwarfism
is abuse, but it does not have to be physical abuse; it can be
anything that a child perceives as a danger. Factors such as a
lack of bonding, a lack of parenting, a fear, or someone in the
house who frightens the child have all been shown to decrease
the growth hormone.
Ashton’s pediatrician, Dr. Cynthia Guerue, also testified. In
the past, she had found that Ashton has allergies and eczema
and that he appeared developmentally delayed. Based on his
delays, she referred him to physical therapy, occupational
therapy, and early intervention. She saw him on October 17,
2011, a few days after he had been removed from Carlos and
Jennifer’s care. She was concerned about his distended abdo-
men, and testing revealed that his liver enzymes were elevated
but decreased quickly, which indicated some sort of trauma to
his liver. At that time, she suspected he may have psychosocial
dwarfism. She consulted with a child abuse expert, who also
suggested looking into psychosocial dwarfism.
When Ashton presented for a followup appointment with
Dr. Guerue in June 2012, he had grown significantly and his
demeanor was much different. Dr. Guerue testified that Ashton
was talkative, interactive, and playful. He had grown 43⁄4 inches
in the previous 71⁄2 months, whereas he had grown only 31⁄2
inches in the previous 4 years when he was living with Carlos
and Jennifer. Dr. Guerue also noticed that all of Ashton’s
eczema was gone, when it “was almost always present” at his
previous visits. To a reasonable degree of medical certainty,
Dr. Guerue diagnosed Ashton with psychosocial dwarfism
based on his improved growth and social change. Dr. Guerue
opined that it was important for Ashton’s physical well-being
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF JORDANA H. ET AL. 29
Cite as 22 Neb. Ct. App. 19
that he be maintained in the environment that caused him to
achieve his current growth and progress.
Psychologist Dr. Alan Smith began seeing Ashton in
November 2011 and saw him two to four times per month
between November and August 2012. At Dr. Smith’s first
home visit with Ashton, Ashton needed assistance walking up
two steps in the foster home; his legs were tremulous, which
suggested muscle weakness; and he had an “odd gait.” Dr.
Smith noted that Ashton was also very small with a distended
abdomen, he was obsessed with food and had to have it in his
physical possession at all times, and he could not be sepa-
rated from his foster mother for more than a few seconds. Dr.
Smith observed that when Ashton would talk about innocu-
ous topics, he was calm and self-contained, but if Carlos or
Jennifer was mentioned, Ashton’s breathing became shallow,
his muscles became tense, and he “had to sit on [his] foster
mother’s lap.”
During Dr. Smith’s second home visit with Ashton, he
noticed that Ashton dissociated when talking about his prior
homelife, meaning that in addition to the above-mentioned
shallow breathing and muscle tension, the amount of time it
took him to respond increased considerably and he started talk-
ing in a very childlike tone of voice, using simple vocabulary,
and talking about irrelevant things. He also looked “spacey,”
which is an emotional numbing that happens when someone
dissociates. When Dr. Smith switched to a more neutral topic
of discussion, Ashton’s behaviors became more typical.
Two or three weeks later, Dr. Smith went to the foster home
for a third visit. At that time, he noticed additional improve-
ment in Ashton’s food obsession and separation anxiety. Dr.
Smith made a fourth visit to the foster home in January
2012, and at that time, he noticed continued improvement
in Ashton’s preoccupation with food. Ashton was also run-
ning through the house and showed Dr. Smith that he could
pull himself into the bathtub and get out by himself. Ashton
was also engaging in sustained play with his foster siblings.
Ashton had spontaneously mentioned to his foster mother that
he had to stay in the basement at home and was hit with a
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30 22 NEBRASKA APPELLATE REPORTS
shoe. But when Dr. Smith asked Ashton about those topics,
he saw Ashton moving into a dissociative state and quickly
changed the topic.
At Dr. Smith’s most recent visit with Ashton, which occurred
a week or two prior to the termination hearing, Ashton showed
further improvement. He made eye contact, spoke to Dr.
Smith’s wife, initiated conversation, engaged in imaginative
play without needing adult reassurance, and engaged in spon-
taneous play. He had also grown about 6 inches overall, and
his abdomen was more proportionate to his body. In addition,
Ashton’s gait had improved considerably and he could run,
jump, and tumble. His ability to communicate had improved,
but he still lagged behind for his age. Dr. Smith testified that
there are many things that the school will need to work on with
Ashton’s language skills and that therefore, it is very important
that he have consistent school attendance.
Dr. Smith diagnosed Ashton with posttraumatic stress disor-
der and intermittent explosive disorder. In children, a diagnosis
of posttraumatic stress disorder essentially means the fight-or-
flight system is oversensitized to an event where an individual
feels at risk for his or her safety or well-being or that of
another. A diagnosis of intermittent explosive disorder means
that the episodes of emotional disregulation are significant
and severe. When asked for his recommendations for Ashton
based on these diagnoses, Dr. Smith stated that Ashton needs a
“care giver setting” and settings within the school system that
re-create the type of environment that he needed when he was
very young to develop a healthy, functional, and adaptive emo-
tional system. It appeared to Dr. Smith that Ashton is currently
in the setting that he needs. Dr. Smith opined that it would
be in Ashton’s best interests to remain where he is to allow
him to continue to grow and reach a positive sense of security
and safety.
Dr. Smith stated that Ashton also needs permanency. In Dr.
Smith’s opinion, Ashton’s history was not indicative of his
having had a secure, consistent place; his home was indicative
of a neglectful and abusive home environment. Dr. Smith was
concerned because even a discussion of having contact with
Carlos or Jennifer caused Ashton to dissociate and because
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF JORDANA H. ET AL. 31
Cite as 22 Neb. Ct. App. 19
Ashton experienced fear about returning home and did not
want to return home. Dr. Smith also noted that Ashton referred
to his parents by their names—Carlos and Jennifer—instead of
calling them “Dad” and “Mom.” Anytime Ashton was exposed
to the possibility of testifying in court or having any possible
contact with Carlos or Jennifer, with their house, or with any-
thing that reminds him of it, he had “huge explosions.” The
topics which were the most significant triggers for Ashton
were the beliefs that he will have contact with his parents, that
he is going to be removed from his foster parents, and that he
will be returned home and the discussion of events that bother
him that happened in his home, such as those involving the dog
kennel and being hit.
Jeanna Townsend is a licensed mental health practitioner
and certified professional counselor. She began seeing Skylar
and Taylor in November 2011 and saw them a total of 10 to
15 times. Initially, Skylar had a hard time making eye contact,
she muttered, and she was very withdrawn and did not initi-
ate conversation. She also had a “strange . . . vocal inflection”
when asked about Carlos and Jennifer or her situation at home.
Townsend said that the inflection was hard to describe, but
that it was almost as though Skylar was swallowing her words
and holding herself back from being able to finish her answer.
When discussing her parents or homelife, she would also give
very short answers, answer very quietly, and give only one- or
two-syllable answers. Townsend also stated that when Skylar
would discuss stories about Ashton, Skylar exhibited very
little empathy, which Townsend said was not a normal sibling
relationship, and that children Skylar’s age are usually able to
express empathy.
More recently, Skylar had stopped her verbal “halting” when
discussing her home or parents. She also engaged in conversa-
tion more easily, she appeared to have a bond with the people
that brought her to sessions with Townsend, and she acted
more age appropriately.
Townsend testified that permanency is very important for
Skylar because it is a fundamental need for children so they
can further develop. In addition, because Skylar may have been
exposed to some very negative situations, as she forms her
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32 22 NEBRASKA APPELLATE REPORTS
identity in the next few years, it is going to be very important
for her to have a “healthy” female role model.
Townsend has concerns if Skylar were to be returned to
Carlos and Jennifer’s home. When she first met Skylar, Skylar
was “shutting down emotionally” regarding empathy and did
not demonstrate feelings of worry or empathy for Ashton,
which indicated to Townsend that there might be a lifelong
coping issue developing, because children who have been
traumatized and do not have any sort of intervention have
lifelong issues. However, Townsend has seen improvement in
Skylar since Skylar has been in an out-of-home placement, and
Skylar’s progress has continued in the time that Townsend has
seen her.
Taylor was only 21⁄2 years old when Townsend first saw
her, so Taylor was “kind of oblivious to everything”; how-
ever, when talking about “things at home,” especially in the
presence of Skylar, Taylor exhibited the same vocal inflection
that Skylar did. Townsend believes that permanence is also
important for Taylor, because it is such a fundamental need for
a child. Townsend expressed concern if Taylor were returned
to Carlos and Jennifer’s home, because children who are in
an abusive environment will identify with either the abused or
the abuser.
Townsend also had concerns about Jordana’s being in a
home that was abusive to one of the other children, for the
same reason, but even more so because a baby would be unable
to verbalize any issues.
Dr. Suzanne Haney, a board-certified child abuse pedia-
trician, was contacted to consult and review Ashton’s case.
After reviewing medical records, school records, law enforce-
ment reports, DHHS reports, and photographs, Dr. Haney
had concerns that Ashton was subjected to abuse on at least
two separate occasions and that he had significant enough
neglect that he had stopped growing. She concluded that the
injuries Ashton suffered when he was 2 months old resulted
from abuse, because such a young child is not capable of
sustaining those injuries on his or her own and there was no
appropriate history to account for the injuries. The fact that
Ashton had old and new injuries indicated multiple episodes
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Cite as 22 Neb. Ct. App. 19
of injury, which indication is “more concerning for repeti-
tive abuse.”
Dr. Haney was also concerned about Ashton’s injuries when
Ashton was taken into DHHS custody in October 2011, par-
ticularly his facial injury, which was consistent with being hit
with a shoe. She reviewed the photographs of Ashton’s head
depicting multiple locations without hair growth, which are
consistent with his having previously received injury signifi-
cant enough that it scarred.
Ashton’s growth was also a significant concern for Dr.
Haney. Ashton had essentially stopped growing from age 21⁄2
to age 6, which, according to Dr. Haney, medically indicates
something is very wrong. She observed that testing was unable
to find a genetic cause and noted the “catch-up growth” he
experienced after he was placed in foster care. To Dr. Haney,
this indicated that solely the environmental change between
Carlos and Jennifer’s house and his foster home was enough to
get him to start growing.
Ultimately, Dr. Haney concluded that Ashton was the victim
of multiple instances of physical abuse and had psychosocial
dwarfism. She believes the consequences of these diagnoses
will be permanent and lifelong. As a result, Ashton needs a sta-
ble environment with caregivers understanding of what he has
been through, and he needs long-term, ongoing therapy with
a therapist who understands trauma. Part of the stable envi-
ronment that Ashton needs means attending school regularly
and being “a normal child as much as possible.” Dr. Haney
expressed concern that if Ashton were returned to his previous
environment, his condition would continue and he would be
left even more severely disabled.
(d) Parents’ Denials
Throughout this case, Carlos and Jennifer continually denied
ever abusing or neglecting Ashton. They insisted his injuries
in 2005 were an accident caused by pulling him out of the
bathtub, despite doctors’ indications that such a high-force
injury in such a young child could not have been an accident.
Carlos and Jennifer also insisted that the injuries observed
on Ashton in October 2011 were the result of a fall down the
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stairs into their basement. However, forensic testing on a car-
pet sample from their stairs refuted their claim when it defini-
tively excluded the carpet as the source of Ashton’s injuries.
They claimed that Ashton’s numerous bumps, scrapes, and
bruises were not caused by abuse, but, rather, that Ashton was
easily injured, fell down more often than most children, and
bruised easily.
Carlos and Jennifer denied making Ashton sleep in the
basement, despite Skylar’s and Ashton’s claims to the con-
trary, and Carlos and Jennifer alleged that he slept on a mat-
tress on the floor in Skylar’s bedroom. Kihlthau observed a
mattress standing up in the upstairs bathroom, but not until
the third time she went to Carlos and Jennifer’s house on
October 12, 2011; Kihlthau testified that the mattress was not
there when she was at the house earlier that day, and evidence
established that Jennifer purchased a new toddler bed at 5 p.m.
on October 12.
Carlos and Jennifer claimed that they had to limit Ashton’s
diet because of severe food allergies and because he suffered
from a disorder where he could not recognize when he was
full. However, after Ashton was placed in foster care, he was
able to eat almost any food without having an allergic reaction
to it, and a caseworker observed him walk away from food
when he got full.
Carlos and Jennifer also claimed that Skylar had been
coached to disclose the information that she did, but Townsend
testified that Skylar’s disclosures always remained consistent
and that there was no evidence suggesting that she had been
coached. In fact, when asked during her testimony if any-
one had told her what to say, Skylar replied that Carlos and
Jennifer told her not to tell the truth about what happened at
their house.
Carlos and Jennifer admitted they lied to Ashton’s school
and to law enforcement when they said Ashton had an allergic
reaction to a flu shot. Carlos acknowledged having kept Ashton
home from school for fear of being suspected of child abuse
due to Carlos’ previous conviction in the 2005 case in Kansas
and the incident where Ashton received staples for a laceration
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Cite as 22 Neb. Ct. App. 19
on his head. They admitted they hid Ashton from DHHS for
the same reason.
4. Juvenile Court’s Order
The juvenile court entered an order on October 11, 2012,
terminating Carlos’ and Jennifer’s parental rights to Skylar,
Ashton, Taylor, and Jordana. The court concluded that Carlos’
and Jennifer’s explanations of Ashton’s facial injury were
unbelievable and that they covered up his injuries without
regard to his safety. The court noted that Ashton was in “ter-
rible physical condition” when he was brought into the police
station and that Carlos and Jennifer had no reasonable expla-
nation for his condition. Accordingly, the court found that the
State established by clear and convincing evidence that Ashton
had been the victim of chronic abuse and neglect.
The court also determined that Carlos and Jennifer had
failed to provide the necessary care and protection Ashton
needs and deserves and that therefore, it is in the best inter-
ests of Ashton that their parental rights be terminated. The
court noted that the significant abuse and maltreatment a child
must experience before he or she is a victim of psychosocial
dwarfism are substantial, continual, and repeated and that both
Carlos and Jennifer actively contributed to the maltreatment
that resulted in Ashton’s suffering from a condition that has
caused physical and mental wounds that may never heal. Based
on the foregoing, the court found that Carlos’ parental rights
to Ashton should be terminated pursuant to Neb. Rev. Stat.
§ 43-292(2) and (9) (Cum. Supp. 2012) and that termination
was in Ashton’s best interests.
The court also concluded that Skylar, Taylor, and Jordana
came within the meaning of § 43-292(2) and (9) due to the
abuse and neglect of Ashton and that termination was in their
best interests as well. Carlos timely appealed.
III. ASSIGNMENTS OF ERROR
Carlos assigns, summarized, restated, and renumbered, that
(1) the juvenile court never acquired jurisdiction over Jordana;
(2) the court erred in finding that if the petitions to ter-
minate parental rights were granted, the allegations under
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§ 43-247(3)(a) would become moot; (3) the court erred in
allowing physicians, a psychologist, mental health workers,
and caseworkers to testify as experts as to psychosocial dwarf-
ism without conducting a hearing under Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786,
125 L. Ed. 2d 469 (1993), and Schafersman v. Agland Coop,
262 Neb. 215, 631 N.W.2d 862 (2001) (Daubert/Schafersman);
(4) the court erred in accepting Dr. Buehler’s diagnosis that
Ashton suffered from psychosocial dwarfism; (5) the evidence
did not sustain findings by clear and convincing evidence suf-
ficient to terminate Carlos’ parental rights under § 43-292; (6)
the court erred in finding aggravating circumstances based on
Dr. Haney’s testimony; (7) the evidence did not sustain a find-
ing that termination of Carlos’ parental rights was in the chil-
dren’s best interests; and (8) the court erred in denying Carlos’
request for an expert witness at the State’s expense. Carlos also
requests a review of the record for plain error.
IV. STANDARD OF REVIEW
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 Sir Messiah
T. et al., 279 Neb. 900, 782 N.W.2d 320 (2010). 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.
V. ANALYSIS
1. Jurisdiction Over Jordana
Carlos argues that the juvenile court never acquired juris-
diction over Jordana because a petition under § 43-247(3)(a)
was not filed until nearly 3 months after the original motion
to terminate Carlos’ parental rights to Jordana was filed. This
argument lacks merit because a juvenile court can acquire
jurisdiction over a child via the filing of a motion to terminate
parental rights.
[1-3] Neb. Rev. Stat. § 43-291 (Reissue 2008) states in
part, “Facts may also be set forth in the original petition, a
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Cite as 22 Neb. Ct. App. 19
supplemental petition, or motion filed with the court alleg-
ing that grounds exist for the termination of parental rights.”
Section 43-247(6) provides that the juvenile court shall have
jurisdiction of “[t]he proceedings for termination of parental
rights . . . .” In In re Interest of Joshua M. et al., 256 Neb. 596,
608-09, 591 N.W.2d 557, 565 (1999), the Nebraska Supreme
Court concluded that these two sections, taken together, “indi-
cate that the juvenile court properly acquires jurisdiction over
an original action to terminate parental rights as provided in
the Nebraska Juvenile Code without prior juvenile court action,
including adjudication.”
[4] A motion to terminate parental rights is included in the
relevant language of § 43-291. Thus, the juvenile court also
acquires jurisdiction to terminate parental rights when a motion
to terminate containing the grounds for termination is filed,
without prior juvenile court action, including adjudication. In
the instant case, the State filed a motion to terminate Carlos’
parental rights to Jordana the day Jordana was born, prior to
an adjudication.
[5,6] In In re Interest of Joshua M. et al., supra, the
Supreme Court examined § 43-292(1) through (7) to determine
upon what grounds a juvenile court may terminate parental
rights without a prior adjudication. The court found that the
grounds contained in § 43-292(1) through (5) do not “require,
imply, or contemplate juvenile court involvement, including
adjudication, prior to the filing of the petition for termination
of parental rights.” In re Interest of Joshua M. et al., 256 Neb.
at 609, 591 N.W.2d at 566. The court cautioned, however, that
when a juvenile court proceeds with a hearing on a termination
of parental rights without a prior adjudication, the proceedings
must be accompanied by due process safeguards. In re Interest
of Joshua M. et al., supra.
In this case, the State’s motion to terminate Carlos’ parental
rights to Jordana was based upon § 43-292(2) and (9). We note
that subsection (9) was not in effect at the time In re Interest
of Joshua M. et al. was decided. Because we find that the State
sufficiently proved subsection (2), as we explain in greater
detail below, we need not address whether a prior adjudica-
tion was required under subsection (9). We must, however,
Decisions of the Nebraska Court of Appeals
38 22 NEBRASKA APPELLATE REPORTS
determine whether the requirements of due process were satis-
fied in the present case.
The first hearing held after the motion to terminate parental
rights was filed was on December 20, 2011. Carlos and his
counsel were present at the hearing. The court informed Carlos
that the State had directly filed a motion to terminate parental
rights and that the State had the burden of proving the alle-
gations by clear and convincing evidence. The court advised
Carlos of his rights, including the right to confront and ques-
tion the State’s witnesses; the right to present his own defense
by calling witnesses, presenting his own testimony, and using
the subpoena power of the court; and the right to appeal and
obtain a record of the proceedings. Carlos indicated that he
did not have any questions after the court explained his rights.
The court asked Carlos if he wanted the motion to terminate
read aloud in court, and Carlos responded, “No, I know what
it says.” This advisement occurred at the first court appearance
on the State’s motion to terminate. This was 8 months prior to
the termination hearing, at which Carlos was represented by
counsel, presented his own witnesses, and cross-examined the
State’s witnesses.
We have previously found that a similar rights advisement
was sufficient to ensure that the parents were accorded their
due process rights after the State filed a motion to terminate
parental rights. See In re Interest of Brook P. et al., 10 Neb.
App. 577, 634 N.W.2d 290 (2001). Accordingly, we find that
the content of the December 20, 2011, hearing was adequate
to safeguard Carlos’ due process rights. Therefore, the juvenile
court had jurisdiction to terminate Carlos’ parental rights to
Jordana under § 43-292(2) without a prior adjudication via the
motion to terminate parental rights filed on December 14.
2. Mootness of Allegations
Under § 43-247(3)(a)
Carlos asserts that the juvenile court erred in finding that
if it granted the petitions to terminate parental rights, the
§ 43-247(3)(a) allegations would become moot. He claims that
the juvenile court lacked authority to extend its jurisdiction to
the disposition phase without first proving the allegations in
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Cite as 22 Neb. Ct. App. 19
the § 43-247(3)(a) petitions. We disagree because, as we deter-
mined above, a juvenile court may also obtain jurisdiction via
the filing of a motion to terminate parental rights.
[7] Section 43-247 provides that “[t]he juvenile court shall
have exclusive original jurisdiction as to . . . the parties and
proceedings provided in subdivisions (5), (6), and (8) of this
section.” Subsection (6) includes the proceedings for termi-
nation of parental rights. A prior adjudication is not required
in every instance where the State files a motion to terminate
parental rights, and we determined that none was required in
this case. See In re Interest of Joshua M. et al., 256 Neb. 596,
591 N.W.2d 557 (1999).
A termination of parental rights is a final and complete
severance of the child from the parent and removes the entire
bundle of parental rights. In re Interest of Angelina G. et al.,
20 Neb. Ct. App. 646, 830 N.W.2d 512 (2013). The practical
application of terminating a parent’s rights is that no services
will be provided by DHHS in an attempt to reunify the par-
ent and child. Thus, when a juvenile court grants a motion to
terminate, there is no need to address any allegations under
§ 43-247(3)(a). Accordingly, it was not erroneous for the
juvenile court to grant the petitions to terminate without a
prior adjudication under § 43-247(3)(a) and determine that the
§ 43-247(3)(a) allegations were moot.
3. Allowing Expert Testimony
[8] Carlos assigns that the juvenile court erred in allow-
ing several witnesses to testify as experts as to psychosocial
dwarfism without conducting a Daubert/Schafersman hearing.
We note that Carlos does not argue that he requested such a
hearing, and our review of the record does not indicate that one
was requested. The procedural posture of this case as described
above creates somewhat of an anomaly because in adjudication
cases, the Nebraska Rules of Evidence apply, but in termina-
tion cases, they do not. Compare In re Interest of Ashley W.,
284 Neb. 424, 821 N.W.2d 706 (2012), with In re Interest of
Rebecka P., 266 Neb. 869, 669 N.W.2d 658 (2003). The trial
court in the instant case recognized this difference as indicated
in its order:
Decisions of the Nebraska Court of Appeals
40 22 NEBRASKA APPELLATE REPORTS
Thus, under a Motion to Terminate Parental Rights the
burden of proof is higher than an adjudication hearing.
However, the [c]ourt does not have to apply the rules of
evidence during a Motion to Terminate Parental Rights,
but does have to apply the rules of evidence during an
adjudication hearing.
The trial court’s order indicates that it properly applied
the differing evidentiary standards, stating: “During trial, the
[c]ourt ruled on objections based on the rules of evidence,
unless otherwise indicated. All evidence received, over objec-
tion, was considered by the [c]ourt for purposes of the [ter-
mination of parental rights] issues.” Thus, it is presumed that
the trial judge disregarded any evidence which should not
have been admitted for purposes of adjudication, while giving
proper consideration to it for purposes of termination. See In
re Interest of Ty M. & Devon M., 265 Neb. 150, 655 N.W.2d
672 (2003).
[9-11] In an adjudication hearing, an opponent of expert
testimony is required to file a concise pretrial motion to
challenge the expert’s testimony on the basis of Daubert/
Schafersman. See In re Interest of Christopher T., 281 Neb.
1008, 801 N.W.2d 243 (2011). Carlos did not do so. And in
a termination hearing, where the rules of evidence do not
apply, neither do the Daubert/Schafersman standards. See In
re Interest of Rebecka P., supra. Instead, due process controls
and requires that fundamentally fair procedures be used by the
State in an attempt to prove that a parent’s rights to his or her
child should be terminated. Id.
In In re Interest of Rebecka P., the Nebraska Supreme
Court determined that the father’s due process rights were
not violated by the testimony of a witness, because the father
received notice of the termination hearing, he appeared at the
hearing and was represented by counsel, and his counsel cross-­
examined the witness and raised several objections to the wit-
ness’ testimony. The same is true in the present case. Carlos
received notice of the termination hearing and the witnesses
the State was going to question, he appeared at the hearing and
was represented by counsel, and his counsel cross-examined
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF JORDANA H. ET AL. 41
Cite as 22 Neb. Ct. App. 19
each witness and objected numerous times during the wit-
nesses’ testimonies. Carlos knew that the State was going to
present evidence on psychosocial dwarfism, and he had the
opportunity to prepare for the testimony prior to the termina-
tion hearing. We therefore find that due process requirements
were satisfied and that the juvenile court did not err in allowing
testimony regarding psycho­ ocial dwarfism.
s
4. Dr. Buehler’s Diagnosis
Carlos claims that “Dr. Buehler’s certainty that Ashton suf-
fered from psychosocial dwarfism is nothing more than post
hoc, ergo propter hoc, a logical fallacy.” Brief for appellant
at 37. He complains that Dr. Buehler rendered a diagnosis of
Ashton without investigating the home or using “basic diag-
nostic techniques to narrow down what in the environment was
causing Ashton’s medical problems.” Id. at 35.
Carlos is essentially challenging the reliability of Dr.
Buehler’s diagnosis. Whether Dr. Buehler’s testimony was
credible was an issue for the juvenile court’s determination,
because Dr. Buehler’s testimony regarding psychosocial dwarf-
ism was properly admitted into evidence, as we concluded
above. We note that even if Dr. Buehler’s diagnosis was erro-
neous or unreliable, Drs. Guerue and Haney also diagnosed
Ashton with psychosocial dwarfism. Thus, there was sufficient
evidence beyond Dr. Buehler’s testimony upon which the
juvenile court could rely to find that Ashton did, in fact, suf-
fer from psychosocial dwarfism. We therefore find this argu-
ment meritless.
5. Statutory Grounds
for Termination
[12] Carlos argues that the evidence was not clear and
convincing to terminate his parental rights under § 43-292.
The bases for termination of parental rights are codified in
§ 43-292. Section 43-292 provides 11 separate conditions,
any one of which can serve as the basis for the termination of
parental rights when coupled with evidence that termination is
in the best interests of the child. In re Interest of Sir Messiah
T. et al., 279 Neb. 900, 782 N.W.2d 320 (2010).
Decisions of the Nebraska Court of Appeals
42 22 NEBRASKA APPELLATE REPORTS
In its order terminating Carlos’ parental rights, the juvenile
court found that the State had proved § 43-292(2) and (9) by
clear and convincing evidence. Under § 43-292(2), the court
may terminate parental rights when the parent has “substan-
tially and continuously or repeatedly neglected and refused to
give the juvenile or a sibling of the juvenile necessary parental
care and protection.”
[13] Carlos argues that Ashton’s disabilities were misdiag-
nosed as abuse. A finding of abuse or neglect may be supported
where the record shows (1) that a parent had control over the
child during the period when the abuse or neglect occurred
and (2) that multiple injuries or other serious impairment of
health have occurred which ordinarily would not occur in the
absence of abuse or neglect. In re Interest of Sarah C. & Jason
C., 10 Neb. Ct. App. 184, 626 N.W.2d 637 (2001).
[14-17] The fact that only circumstantial evidence of abuse
or neglect exists is not fatal to the State’s allegations in this
case, because circumstantial evidence may be used in a dispo-
sition proceeding in which the burden of proof is “clear and
convincing.” See In re Interest of Ethan M., 15 Neb. Ct. App. 148,
723 N.W.2d 363 (2006). A fact proved by circumstantial evi-
dence is nonetheless a proven fact. Id. Circumstantial evidence
is not inherently less probative than direct evidence. Id. We
have previously noted:
In endorsing the use of circumstantial evidence to
establish child neglect or child abuse, it has been stated
that “[l]earned commentators have pointed out that in
many such cases the only proof available is circumstan-
tial evidence since abusive actions usually occur within
the privacy of the home, the child is either intimidated
or too young to testify, and the parents tend to protect
each other.”
In re Interest of McCauley H., 3 Neb. Ct. App. 474, 480-81, 529
N.W.2d 77, 82 (1995).
In the present case, we conclude the State proved by clear
and convincing evidence that Carlos substantially and con-
tinuously or repeatedly neglected and refused to give Ashton
necessary parental care and protection. Although Carlos and
Jennifer never admitted to abusing or neglecting Ashton, their
Decisions of the Nebraska Court of Appeals
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Cite as 22 Neb. Ct. App. 19
explanations for Ashton’s injuries were disproved by medical
evidence and the circumstantial evidence suggests they did so.
Various medical personnel expressed concerns about physi-
cal abuse of Skylar in 2004 and of Ashton in 2005 and 2009
through 2011. Ashton’s numerous bruises and scrapes caused
concern in his teachers at school, so much so that they notified
DHHS about his condition.
In addition, three doctors diagnosed Ashton with psycho­
social dwarfism, which is a result of serious, sustained neglect
to the extent that it caused Ashton to stop growing. This is
not something that occurs overnight, but, rather, is a condition
that occurs after repeated, long-term neglect. Medical evidence
refuted Carlos’ explanation for how Ashton sustained the mark
on his face in October 2011 when it was found that a fall
down carpeted stairs could not have caused his injuries. Even
more concerning is that Carlos failed to seek medical treat-
ment for Ashton’s injuries in October 2011 and instead chose
to hide him from police and DHHS in order to protect himself
and Jennifer.
Not only did the circumstantial evidence suggest abuse
and neglect, Skylar and Ashton disclosed that they had been
abused and neglected. Skylar described the “spanking[s]”
that she and Ashton received from Carlos and Jennifer using
belts and shoes. She explained that while the rest of the fam-
ily slept upstairs in beds, Carlos and Jennifer made Ashton
sleep in a dog kennel in the basement, alone and in the dark.
Ashton was not even allowed to eat at the same table as the
rest of the family, and his diet was so severely limited that
he tried to eat food that his classmates were throwing in
the garbage.
The evidence presented at the termination hearing clearly
and convincingly establishes that Ashton was the victim of
repeated abuse and neglect. Accordingly, the court properly
found that termination of Carlos’ parental rights was appro-
priate under § 43-292(2). Because subsection (2) also allows
for termination of parental rights based on continuous neglect
of a juvenile’s sibling, the court correctly determined that
Carlos’ parental rights to Skylar, Taylor, and Jordana should
be terminated.
Decisions of the Nebraska Court of Appeals
44 22 NEBRASKA APPELLATE REPORTS
Although we find that the State also sufficiently proved
grounds for termination under § 43-292(9), we decline to spe-
cifically address that subsection. See In re Interest of Justin H.
et al., 18 Neb. Ct. App. 718, 791 N.W.2d 765 (2010) (if appellate
court determines that lower court correctly found that termina-
tion of parental rights is appropriate under one of statutory
grounds set forth in § 43-292, appellate court need not further
address sufficiency of evidence to support termination under
any other statutory ground).
6. Aggravated Circumstances
Carlos asserts that the juvenile court erred in finding aggra-
vated circumstances based on Dr. Haney’s testimony. Because
we find that termination under § 43-292(2) was proper, we
need not address the evidence the juvenile court relied on to
terminate Carlos’ parental rights under § 43-292(9).
7. Best Interests
[18] Carlos argues that the court erred in finding that ter-
minating his parental rights was in the best interests of the
children. Section 43-292 requires that parental rights can be
terminated only when the court finds that termination is in
the child’s best interests. See Kenneth C. v. Lacie H., 286
Neb. 799, 839 N.W.2d 305 (2013). It is well established
that a juvenile’s best interests are a primary consideration
in determining whether parental rights should be terminated
as authorized by the Nebraska Juvenile Code. Kenneth C. v.
Lacie H., supra.
[19,20] As we have noted, termination of parental rights
requires proof of two elements: (1) that one or more statutory
grounds for termination exist and (2) that termination would be
in the best interests of the child. Statutory grounds are based on
a parent’s past conduct, but the best interests element focuses
on the future well-being of the child. Id. While proof of the
former will often bear on the latter, a court may not simply
assume that the existence of a statutory ground for termination
necessarily means that termination would be in the best inter-
ests of the child. Id. Rather, that element must be proved by
clear and convincing evidence. Id.
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF JORDANA H. ET AL. 45
Cite as 22 Neb. Ct. App. 19
The record in this case was replete with evidence as to
why the children’s future well-being would be best served
by terminating Carlos’ parental rights. Townsend and Drs.
Buehler, Guerue, and Smith all testified about the dangers of
placing the children back in the environment from which they
were removed. Skylar and Ashton both expressed fear at the
thought of being returned to Carlos’ and Jennifer’s care. Not
only did Carlos and Jennifer make excuses for all of Ashton’s
injuries and never accept any responsibility for his condition,
they actively concealed him and never sought medical treat-
ment for injuries that caused concern in everyone else who
observed them.
The improvements that Skylar and Ashton made in a brief
period of time were remarkable to the caseworker and medical
professionals. Thankfully, Taylor and Jordana were too young
to be significantly impacted by their parents’ actions. The
above-described evidence overwhelmingly supports the juve-
nile court’s conclusion that terminating Carlos’ parental rights
would be in the children’s best interests.
8. Expert Witness at
State’s Expense
Carlos claims that the juvenile court erred in denying his
request for an expert witness at the State’s expense. He cites no
Nebraska authority to support his argument, except the general
propositions of law that parents have a fundamental liberty
interest in the care and custody of their children. He claims that
fundamental fairness to defend against termination of parental
rights is so paramount that a parent is disadvantaged by the
inability to retain expert assistance. He also notes that other
states have enacted statutes or court rules requiring the state to
pay for an expert witness for an indigent parent and urges us to
“make that fundamentally fair procedure available to Nebraska
parents.” Brief for appellant at 34.
[21] We are unable to locate any Nebraska authority allow-
ing a parent who hires private counsel to retain an expert wit-
ness at the State’s expense. Nebraska law provides that a par-
ent in a juvenile court case has the right to appointed counsel
if unable to hire a lawyer. Neb. Rev. Stat. § 43-279.01(1)(b)
Decisions of the Nebraska Court of Appeals
46 22 NEBRASKA APPELLATE REPORTS
(Reissue 2008); In re Interest of N.M. and J.M., 240 Neb.
690, 484 N.W.2d 77 (1992). And, in fact, the juvenile court
appointed backup counsel for Carlos at the initial hearing
because he had not yet formally retained an attorney for repre-
sentation at that point. However, Carlos thereafter hired coun-
sel at his own expense, which he maintained throughout the
juvenile court proceedings. As a result, we cannot find that the
juvenile court erred in refusing to require the State to pay for
an expert witness on Carlos’ behalf.
9. P lain Error
[22] Carlos requests that we review the record for plain
error. It is not the duty of a reviewing court to search the
record for the purpose of ascertaining whether there is error,
and any error must be specifically pointed out. In re Interest
of N.L.B., 234 Neb. 280, 450 N.W.2d 676 (1990). However,
we have conducted a de novo review of the record as required
by our standard of review in juvenile cases and found no
plain error.
VI. CONCLUSION
We conclude that the juvenile court did not err in ter-
minating Carlos’ parental rights to Skylar, Ashton, Taylor,
and Jordana. Therefore, the decision of the juvenile court
is affirmed.
Affirmed.
In re I nterest of
Nathaniel P., a child
18 years of age.
under
State of Nebraska, appellee, v.
Ashley P., appellant.
___ N.W.2d ___
Filed May 27, 2014. No. A-13-620.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases
de novo on the record and reaches its conclusions independently of the juvenile
court’s findings.
2. Jurisdiction: Appeal and Error. A jurisdictional question which does not
involve a factual dispute is determined by an appellate court as a matter of law.