In re Interest of Jacob H. , 20 Neb. Ct. App. 680 ( 2013 )

Decisions of the Nebraska Court of Appeals
680 20 NEBRASKA APPELLATE REPORTS
CONCLUSION
In sum, we conclude that at the inception of the case,
Meredith and Robert had the legal right to seek grandpar-
ent visitation and were entitled to invoke the jurisdiction of
the court. However, as a result of the subsequent marriage of
Bobbie and Paul, in accordance with the grandparent visitation
statutes, the issue of grandparent visitation is moot. Therefore,
we reverse the judgment and remand the matter to the district
court with directions to deny Meredith and Robert’s motion for
grandparent visitation as moot.
R eversed and remanded with directions.
In re I nterest of Jacob H. et al.,
children under 18 years of age.
State of Nebraska, appellee,
v. Brett H., appellant.
___ N.W.2d ___
Filed April 9, 2013. No. A-12-491.
1. Pleadings: Appeal and Error. Permission to amend a pleading is addressed to
the discretion of the trial court, and an appellate court will not disturb the trial
court’s decision absent an abuse of discretion.
2. Judges: Recusal: Appeal and Error. A motion to disqualify a trial judge on
account of prejudice is addressed to the sound discretion of the trial court.
3. Juvenile Courts: 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.
4. Pleadings. When a party seeks leave to amend a pleading in a civil proceeding,
the general rule is that leave shall be freely given when justice so requires.
5. ____. A court’s denial of a request to amend pleadings is appropriate only in
those limited circumstances in which undue delay, bad faith on the part of the
moving party, futility of the amendment, or unfair prejudice to the nonmoving
party can be demonstrated.
6. Judges: Recusal: Proof. In order to demonstrate that a trial judge should have
recused himself or herself, the moving party must demonstrate that a reason-
able person who knew the circumstances of the case would question the judge’s
impartiality under an objective standard of reasonableness, even though no actual
bias or prejudice was shown.
7. Judges: Recusal: Presumptions. A party seeking to disqualify a judge on the
basis of bias or prejudice bears the heavy burden of overcoming the presumption
of judicial impartiality.
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF JACOB H. ET AL. 681
Cite as 20 Neb. App. 6808. Parental Rights: Proof. For a juvenile court to terminate parental rights under
Neb. Rev. Stat. § 43-292 (Cum. Supp. 2012), it must find that one or more of the
statutory grounds listed in that section have been satisfied and that termination is
in the child’s best interests.
9. Parental Rights. A termination of parental rights is a final and complete sev-
erance of the child from the parent and removes the entire bundle of parental
rights; therefore, given such severe and final consequences, parental rights
should be terminated only in the absence of any reasonable alternative and as the
last resort.
10. Parent and Child. The law does not require perfection of a parent; instead,
courts should look for the parent’s continued improvement in parenting skills and
a beneficial relationship between parent and child.
Appeal from the County Court for Otoe County: Robert B.
O’Neal, Judge. Reversed and remanded for further proceedings.
Diane L. Merwin, Deputy Otoe County Public Defender, for
appellant.
Timothy S. Noerrlinger, Deputy Otoe County Attorney, for
appellee.
Irwin, Moore, and Pirtle, Judges.
Irwin, Judge.
I. INTRODUCTION
Brett H. appeals from the order of the county court which
terminated his parental rights to his four minor children, Jacob
H., Madison H., Megan H., and Morgan H. On appeal, Brett
challenges the statutory basis for termination of his parental
rights and the county court’s finding that termination is in
the children’s best interests. In addition, Brett argues that the
county court erred in allowing the State to amend its motion
to terminate his parental rights and erred in not recusing
itself from the termination proceedings. Upon our de novo
review of the record, we conclude that the county court did
not err in allowing the State to amend its motion to terminate
Brett’s parental rights or in failing to recuse itself from the
termination proceedings. In addition, we find that there was
a sufficient statutory basis for terminating Brett’s parental
rights. However, we also find that the State failed to adduce
sufficient evidence to clearly and convincingly demonstrate
Decisions of the Nebraska Court of Appeals
682 20 NEBRASKA APPELLATE REPORTS
that termination of Brett’s parental rights is in the children’s
best interests. Accordingly, we reverse, and remand for fur-
ther proceedings.
II. BACKGROUND
Brett’s appeal involves his four minor children: Jacob, born
in August 2003, and Madison, Megan, and Morgan, triplets
born in October 2004. The children’s mother, Lisa H., relin-
quished her parental rights to all four of the children and is not
a party to this appeal. In addition, Alexandria H., the fifth child
named in the lower court proceedings, is not a subject of this
appeal. Alexandria is Lisa’s daughter and Brett’s stepdaughter.
Because Alexandria is not Brett’s biological child, her involve-
ment in this case will not be discussed further.
In October 2009, Jacob, Madison, Megan, and Morgan were
removed from Brett and Lisa’s home after police were called
to the home due to a report of domestic violence. Ultimately,
Brett was arrested on a charge of domestic assault, and sub-
sequent interviews with the children revealed that Brett and
Lisa often fought in front of the children and regularly con-
sumed alcohol.
On October 9, 2009, the State filed a petition and an accom-
panying affidavit alleging that the children were within the
meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2008).
Specifically, the State alleged that the children were at risk for
harm because Brett had recently been arrested for domestic
assault, there was a history of domestic violence in the home,
both Brett and Lisa consume alcohol in the children’s presence,
and the children were afraid to be in the home.
On the same day the petition was filed, the county court
entered an order placing the children in the custody of the
Nebraska Department of Health and Human Services (the
Department). The order stated that placement of the children
was not to include Brett’s home.
In January 2010, Brett admitted to the allegations in the
petition. As a result of his admissions, the children were adju-
dicated to be within the meaning of § 43-247(3)(a).
In February 2010, approximately 1 month after Brett entered
his admission to the allegations in the petition, a disposition
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF JACOB H. ET AL. 683
Cite as 20 Neb. App. 680hearing was held. At this hearing, Brett was ordered to com-
plete inpatient chemical dependency treatment and a domestic
violence education program. In addition, he was permitted to
have supervised visitation with the children.
In May 2010, another disposition hearing was held. By the
time of this hearing, Brett had completed inpatient chemical
dependency treatment and had attended substance abuse group
meetings daily for approximately 3 months. In addition, he
had regularly submitted to drug testing which revealed he was
not using controlled substances. Brett was actively participat-
ing in supervised visitation with the children, and visits were
going well. As a result of Brett’s progress, the court ordered
that Brett was to have “monitored” visitation with the children
and that if Brett continued to make progress during the next
30 to 45 days, he was to be permitted overnight visitation with
the children.
In August 2010, a third disposition hearing was held. At this
hearing, the court ordered that the children may be transitioned
back into Brett’s home. All four children returned to Brett’s
home on September 10.
In December 2010, a fourth disposition hearing was held. At
this hearing, the county court ordered Brett to complete a par-
enting education program and to continue to attend substance
abuse group meetings. Shortly after this hearing, on December
28, the children were removed from Brett’s home after the
Department discovered that Brett was consuming alcohol in
the home.
After the children were removed from Brett’s home, he was
permitted only supervised visitation. Visitations were held once
a week and were scheduled such that Brett visited with Jacob
one week and with the triplets the next week. As a result, Brett
saw each child only once every other week.
In February 2011, Brett enrolled in another substance abuse
treatment program; however, he did not successfully complete
the program. Despite Brett’s failure to complete the treatment
program, there is no indication that Brett continued to use or
abuse alcohol or controlled substances after January 2011.
On April 22, 2011, the State filed a motion to termi-
nate Brett’s parental rights to Jacob, Madison, Megan, and
Decisions of the Nebraska Court of Appeals
684 20 NEBRASKA APPELLATE REPORTS
Morgan. In the motion, the State alleged that termination
was warranted pursuant to Neb. Rev. Stat. § 43-292(2) (Cum.
Supp. 2012) because Brett substantially and continuously or
repeatedly neglected and refused to give the children neces-
sary parental care and protection; § 43-292(4) because Brett
was unfit by reason of debauchery, habitual use of intoxicat-
ing liquor or narcotic drugs, or repeated lewd and lascivious
behavior, which conduct was seriously detrimental to the
health, morals, or well-being of the children; and § 43-292(6)
because following a determination that the children were as
described in § 43-247(3)(a), reasonable efforts to preserve
and reunify the family failed to correct the conditions lead-
ing to the determination. In addition, the State alleged that
termination of Brett’s parental rights was in the children’s
best interests.
At some point after the State filed its motion to terminate
Brett’s parental rights, but before a hearing was held on the
motion, Brett indicated to the Department that he wanted to
relinquish his parental rights to the children. As a result of
Brett’s decision, the Department stopped providing Brett visita-
tion with the children in October 2011. However, Brett never
finalized the relinquishment process. And, in December 2011,
Brett changed his mind and decided he wanted to resume his
efforts toward reunification with the children after learning that
if he relinquished his parental rights, he would have no further
contact with any of his children. After Brett changed his mind
regarding the relinquishment, the Department did not reinstate
his visitation with the children.
On March 29, 2012, a hearing on the State’s motion to ter-
minate Brett’s parental rights began. At the start of the hearing,
the State asked for leave to amend the motion to terminate
in order to include an allegation that termination of Brett’s
parental rights was also warranted pursuant to § 43-292(7)
because the children had been in an out-of-home placement for
15 or more months of the most recent 22 months. The State’s
request was apparently prompted by the court’s asking the
State to clarify if the original motion alleged that termination
was warranted pursuant to § 43-292(7). Brett objected to such
an amendment, arguing that the State’s request was made too
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF JACOB H. ET AL. 685
Cite as 20 Neb. App. 680close in time to the start of the hearing and that the court’s
prompting the State about the absence of an allegation regard-
ing § 43-292(7) was improper. The court ultimately granted the
State’s request to amend the motion, but decided to give Brett
additional time to prepare for the termination hearing.
The termination hearing resumed on April 3, 2012. While
we have reviewed the evidence presented at the termination
hearing in its entirety, we do not set forth the specifics of the
voluminous testimony and exhibits here. Instead, we will set
forth more specific facts as presented at the hearing as neces-
sary in our analysis below.
After the termination hearing, the county court entered an
order finding that the State proved by clear and convincing
evidence that grounds for termination of Brett’s parental rights
existed under § 43-292(2), (4), (6), and (7). The county court
found that Brett was an unfit parent and that termination of
his parental rights was in the children’s best interests. The
court then terminated Brett’s parental rights to Jacob, Madison,
Megan, and Morgan.
Brett appeals from the county court’s order.
III. ASSIGNMENTS OF ERROR
On appeal, Brett alleges, restated and consolidated, that the
county court erred in (1) finding a sufficient statutory basis to
terminate his parental rights pursuant to § 43-292, (2) finding
that termination of his parental rights was in the children’s best
interests, (3) permitting the State to amend its motion to termi-
nate his parental rights, and (4) failing to recuse itself from the
termination proceedings.
IV. ANALYSIS
1. Standard of R eview
[1] Permission to amend a pleading is addressed to the
discretion of the trial court, and an appellate court will not
disturb the trial court’s decision absent an abuse of discretion.
Intercall, Inc. v. Egenera, Inc., 284 Neb. 801, 824 N.W.2d
12 (2012).
[2] A motion to disqualify a trial judge on account of preju-
dice is addressed to the sound discretion of the trial court. In
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686 20 NEBRASKA APPELLATE REPORTS
re Interest of Kendra M. et al., 283 Neb. 1014, 814 N.W.2d
747 (2012).
[3] Juvenile cases are reviewed de novo on the record, and
an appellate court is required to reach a conclusion indepen-
dent of the juvenile court’s findings. In re Interest of Jagger
L., 270 Neb. 828, 708 N.W.2d 802 (2006). When the evidence
is in conflict, however, an appellate court may give weight
to the fact that the lower court observed the witnesses and
accepted one version of the facts over the other. Id.
2. Amendment to Motion to
Terminate Parental Rights
Before we address Brett’s specific assertions concerning
the termination of his parental rights, we first address his
assignments of error which relate to the amendment to the
motion to terminate his parental rights. Brett alleges that
the county court erred in permitting the State to amend the
motion by adding an allegation that termination of Brett’s
parental rights was warranted pursuant to § 43-292(7). In par-
ticular, Brett alleges that the court erred in permitting such an
amendment on the day the termination hearing was to begin.
However, because Brett does not allege he was prejudiced by
the court’s decision to permit the amendment, his assertion
has no merit.
The State filed its original motion to terminate Brett’s paren-
tal rights on April 22, 2011. In that motion, the State alleged
that termination was warranted pursuant to § 43-292(2), (4),
and (6) and was in the children’s best interests.
The termination hearing was scheduled to begin on March
29, 2012. At the start of the hearing, the county court asked
the parties to make an opening statement. At the end of the
State’s opening statement, the prosecutor made the follow-
ing remarks:
The [S]tate believes that the children are — have been
out of the home for 15 of the last 22 months, that the evi-
dence will show that [Brett] is an unfit parent and that he
also failed to comply with the court plan fully and creat-
ing a basis for his — the reason that we’re here today for
termination of his parental rights.
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF JACOB H. ET AL. 687
Cite as 20 Neb. App. 680Based on the State’s comments, the court indicated that “it
[did not] appear that there [had] been an allegation of the 15
out of 22 months” on the original motion to terminate Brett’s
parental rights. The State told the court that it was correct,
but that the absence of such an allegation was a mistake
because “it [was] one of the main bases for proceeding.” The
State then requested to amend the motion to terminate Brett’s
parental rights in order to include an allegation that termina-
tion was also warranted pursuant to § 43-292(7) because the
children had been in an out-of-home placement for 15 or more
months of the most recent 22 months. Brett objected to the
State’s request to amend the motion “at th[at] late stage in
the process.”
The court and the parties discussed the issue of the amend-
ment of the motion to terminate Brett’s parental rights off the
record and in the court’s chambers. When the parties returned
to the courtroom, the court indicated on the record that it was
going to permit the State to amend the motion to terminate.
The court also indicated that it was going to give Brett addi-
tional time to prepare for the hearing. The court continued the
termination hearing for approximately 5 days until April 3,
2012. The court explained its decision:
[A]s I discussed in chambers, while certainly [Brett] has
been aware of the fact that the children have been in out-
of-home care for [at least 15 of the most recent 22 months
pursuant to § 43-292(7)], regardless of whether there was
an allegation, the other required elements regarding unfit-
ness and best interests would likely have been — would
likely have been discussed and there would be evidence
presented on the — because of the remain — the remain-
ing or the existing allegations.
So I — it’s my belief and determination that there’s
no prejudice that arises to [Brett] as a — as a result,
particularly since we’re going to give additional time for
preparation.
After the close of the March 29, 2012, hearing, Brett filed
a written objection to the amendment to the motion to termi-
nate his parental rights. At the start of the termination hearing
on April 3, the court again found that the amendment to the
Decisions of the Nebraska Court of Appeals
688 20 NEBRASKA APPELLATE REPORTS
motion to terminate was proper and that Brett had been given
sufficient time for preparation.
[4,5] On appeal, Brett alleges that the county court erred
in permitting the State to amend the motion to terminate his
parental rights by adding an allegation that termination was
warranted pursuant to § 43-292(7) so close in time to the start
of the termination hearing. When a party seeks leave to amend
a pleading in a civil proceeding, the general rule is that leave
shall be freely given when justice so requires. See InterCall,
Inc. v. Egenera, Inc., 284 Neb. 801, 824 N.W.2d 12 (2012).
In fact, a court’s denial of a request to amend pleadings is
appropriate only in those limited circumstances in which undue
delay, bad faith on the part of the moving party, futility of the
amendment, or unfair prejudice to the nonmoving party can be
demonstrated. See id.Brett does not allege that he was prejudiced in any way by
the amendment to the motion to terminate his parental rights.
And, as the record reflects, the court provided Brett additional
time to prepare for the termination hearing due to the amend-
ment, although it is clear that the length of time the children
had been in an out-of-home placement was extremely relevant
to the termination hearing and Brett should have been prepared
to defend against such an assertion even without the specific
allegation pursuant to § 43-292(7). In addition, we note, as
we discuss more thoroughly below, that the amendment to the
motion was appropriate because there was uncontradicted evi-
dence presented at the termination hearing that the children had
been in an out-of-home placement for at least 15 of the most
recent 22 months as is required by § 43-292(7).
Because Brett does not allege, nor does the evidence reveal,
that he was prejudiced in any way by the State’s amendment
to the motion to terminate his parental rights, we find that
the county court did not abuse its discretion in permitting the
State to amend the motion. Brett’s assertion to the contrary has
no merit.
3. R ecusal
Brett also alleges that the county court judge erred in fail-
ing to recuse himself from the termination proceedings after he
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF JACOB H. ET AL. 689
Cite as 20 Neb. App. 680acted impartially by “directing the attention of the [S]tate [to]
the failure on the pleadings to make a specific allegation” pur-
suant to § 43-292(7). Brief for appellant at 32. Because we find
that no reasonable person would have questioned the judge’s
impartiality when he asked the State about the allegations in
the motion to terminate, we conclude that Brett’s assertion has
no merit.
[6,7] Under the Nebraska Revised Code of Judicial Conduct,
a judge must recuse himself or herself from a case if the
judge’s impartiality might reasonably be questioned. In re
Interest of Kendra M. et al., 283 Neb. 1014, 814 N.W.2d 747(2012). In order to demonstrate that a trial judge should have
recused himself or herself, the moving party must demon-
strate that a reasonable person who knew the circumstances
of the case would question the judge’s impartiality under an
objective standard of reasonableness, even though no actual
bias or prejudice was shown. Id. In addition, a party seeking
to disqualify a judge on the basis of bias or prejudice bears
the heavy burden of overcoming the presumption of judicial
impartiality. Id.We first note that Brett never asked the county court
judge to recuse himself from the termination proceedings. In
fact, at the start of the hearing on April 3, 2012, the judge
asked Brett’s counsel, “Do you wish me to recuse myself?”
Counsel indicated to the judge that she “did not ask for that in
the motion.”
Moreover, contrary to Brett’s assertions, the record reveals
that the county court judge did not encourage the State to
amend the motion to terminate or explicitly question the State
about the absence of an allegation pursuant to § 43-292(7).
Instead, the court asked a clarification question of the State
after the State included in its opening statement language
about the length of time the children had been in an out-of-
home placement. The court’s question apparently prompted the
State to review its motion to terminate, and at that point, the
State realized it had mistakenly omitted the allegation concern-
ing § 43-292(7).
Based on our reading of the record, we cannot say that a rea-
sonable person would have questioned the court’s impartiality
Decisions of the Nebraska Court of Appeals
690 20 NEBRASKA APPELLATE REPORTS
in the termination proceedings. As such, we find that the
court did not err in failing to recuse itself from the juvenile
court case.
4. Termination of Parental Rights
We now turn to Brett’s assignments of error which con-
cern the county court’s decision to terminate his parental
rights to his four minor children. On appeal, Brett challenges
the county court’s finding that there is a sufficient statutory
basis for termination of his parental rights and its finding
that termination is in the children’s best interests. Upon our
de novo review, we conclude that there is clear and convinc-
ing evidence to support the statutory basis for termination
of Brett’s parental rights. However, we find that the court
erred in finding sufficient evidence that termination is in the
children’s best interests. As such, we reverse, and remand for
further proceedings.
[8] For a juvenile court to terminate parental rights under
§ 43-292, it must find that one or more of the statutory
grounds listed in that section have been satisfied and that ter-
mination is in the child’s best interests. See In re Interest of
Jagger L., 270 Neb. 828, 708 N.W.2d 802 (2006). The State
must prove these facts by clear and convincing evidence. Id.Clear and convincing evidence is that amount of evidence
which produces in the trier of fact a firm belief or conviction
about the existence of the fact to be proven. Id.(a) Statutory Basis for Termination
In this case, the State alleged and the county court found
that termination of Brett’s parental rights to Jacob, Madison,
Megan, and Morgan was warranted pursuant to § 43-292(2),
(4), (6), and (7). Upon our de novo review of the record, we
find that the evidence presented at the termination hearing
clearly and convincingly demonstrated that all four of the chil-
dren were in an out-of-home placement for at least 15 of the
most recent 22 months, pursuant to § 43-292(7). As such, we
need not specifically address whether or not there was suffi-
cient evidence to support termination pursuant to § 43-292(2),
(4), or (6).
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF JACOB H. ET AL. 691
Cite as 20 Neb. App. 680The evidence presented at the termination hearing revealed
that Jacob, Madison, Megan, and Morgan were removed from
Brett’s home in October 2009. The children remained in an
out-of-home placement until September 2010, when they were
transitioned back into Brett’s home. In December 2010, how-
ever, the children were again removed from Brett’s home. After
December 2010, they remained in an out-of-home placement
through April 2011, when the State filed its motion to termi-
nate Brett’s parental rights, and through March 2012, when
the termination proceedings began. As such, at the time of the
termination hearing, the children had been in an out-of-home
placement for 18 of the most recent 22 months. And, not-
withstanding the 4 months the children lived with Brett from
September to December 2010, the children had been in an out-
of-home placement for more than 2 years by the time of the
termination hearing.
Based on these facts, we conclude that there is clear and
convincing evidence that termination of Brett’s parental rights
is appropriate pursuant to § 43-292(7). In light of this fact, we
need not, and do not, further address the sufficiency of the evi-
dence to demonstrate that such termination was also appropri-
ate pursuant to § 43-292(2), (4), or (6).
(b) Best Interests
Brett also asserts that the county court erred in deter-
mining that termination of his parental rights is in the best
interests of the children. Specifically, Brett argues that he
has made progress toward reunification with his children;
that he has a strong bond with his children; that his only set-
back toward the goal of reunification occurred in December
2010, when he began to consume alcohol again for a brief
period of time; that after December 2010, the Department
stopped providing him assistance and eventually stopped pro-
viding him visitation with the children; and that but for the
Department’s termination of efforts, he would have been able
to achieve reunification.
Upon our review of the record, we find insufficient evidence
to demonstrate that terminating Brett’s parental rights to Jacob,
Madison, Megan, and Morgan is in the children’s best interests.
Decisions of the Nebraska Court of Appeals
692 20 NEBRASKA APPELLATE REPORTS
As such, we reverse the juvenile court’s order terminating
Brett’s parental rights to these four children.
[9,10] A termination of parental rights is a final and com-
plete severance of the child from the parent and removes the
entire bundle of parental rights; therefore, given such severe
and final consequences, parental rights should be terminated
only in the absence of any reasonable alternative and as the last
resort. See, In re Interest of Justin H. et al., 18 Neb. App. 718,
791 N.W.2d 765 (2010); In re Interest of Crystal C., 12 Neb.
App. 458, 676 N.W.2d 378 (2004). The law does not require
perfection of a parent; instead, courts should look for the par-
ent’s continued improvement in parenting skills and a benefi-
cial relationship between parent and child. Id.The evidence presented by the State at the termination hear-
ing revealed that the children were removed from Brett’s care
in October 2009 after he was arrested and charged with assault-
ing Lisa. These charges were eventually dropped.
Shortly after the children were removed from Brett’s care,
he entered inpatient treatment to address his substance abuse
issues. Brett’s treatment revealed that he had a severe back
problem that caused him a great deal of pain. Brett had a his-
tory of abusing alcohol and controlled substances as a way of
dealing with his pain. Brett successfully completed the inpa-
tient treatment program and went on to maintain his sobriety
after his release from the program. Brett began seeing a new
doctor who adjusted Brett’s pain medication in order to help
him manage his condition without abusing alcohol or con-
trolled substances.
Brett’s visitation with his children went well, and he was
quickly given the opportunity to have unsupervised, overnight
visitation with all four of the children. In September 2010, less
than 1 year after the initial removal, the children were returned
to Brett’s home. With the help of Brett’s family, he was
able to appropriately care for the children until approximately
November or December 2010, when Brett began to again con-
sume alcohol in order to help manage his pain. During this
time, Brett was transitioning to a new pain medication, and as
a result, he was apparently undermedicated. Instead of asking
his doctor for help, Brett turned to alcohol to self-medicate. He
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF JACOB H. ET AL. 693
Cite as 20 Neb. App. 680admitted to his mistake, and the children were removed from
his home.
After the children were removed from Brett’s home in
December 2010, the Department permitted him to have weekly
visitation with the children. This visitation was scheduled such
that Brett visited with Jacob one week and with the triplets
the next week. This schedule was a result of Brett’s and the
Department’s concerns that Jacob often did not receive much
attention during the short group visitations because of the
attention demanded by the triplets.
Visitation with the children was terminated in the fall of
2011, when Brett expressed an interest in relinquishing his
parental rights to the children. Brett was under the impression
that if he relinquished his parental rights, the children’s foster
parents would permit him to maintain contact and a relation-
ship with the children. Brett changed his mind about the relin-
quishment after learning that he would not be entitled to any
contact with the children. The Department never reinstated
his visitation.
Additionally, after the children were removed from Brett’s
home in December 2010, the Department terminated the serv­
ices it had previously provided to Brett to help him achieve
reunification. As a result, at the termination hearing, the
Department caseworkers provided very little, if any, testimony
about Brett’s circumstances from January 2011 through the
time of the hearing in April 2012. The caseworkers did not
know whether Brett maintained his sobriety, where he was
residing, whether he was employed, or anything else about his
current circumstances.
Brett did provide some evidence about his circumstances in
the 16 months prior to the termination hearing. Such evidence
revealed that he did not complete further substance abuse treat-
ment, but that he had maintained his sobriety with no further
“relapses” with the help of his doctor. He had maintained a
stable residence and continued to have a desire to be reunited
with his children. In addition, he attended almost every visit
with the children that was offered to him and he attempted to
maintain contact with the Department even though the case-
workers did not seek out any contact with him.
Decisions of the Nebraska Court of Appeals
694 20 NEBRASKA APPELLATE REPORTS
Upon our de novo review of the record, we find that a
large portion of the evidence offered both by the State and by
Brett revealed that Brett made strong efforts toward reunifica-
tion with his children during the early stages of this case. He
submitted to inpatient substance abuse treatment and appeared
to maintain a safe and stable lifestyle. The positive changes
Brett made to his life facilitated the return of the children to
his home. Unfortunately, Brett experienced some setbacks with
his sobriety once his children were returned to his care and
the children were returned to an out-of-home placement. Of
course, Brett’s actions while his children were in his care are
concerning. The children were not in Brett’s home for a ter-
ribly long period of time before he began to consume alcohol
again. And, such a rapid setback could indicate that he is sim-
ply unable to appropriately parent his children while maintain-
ing his sobriety.
However, it is not entirely clear exactly what this setback
meant in terms of Brett’s ability to parent, because after his
relapse, the Department’s efforts to reunify Brett with his chil-
dren dramatically decreased and eventually ended altogether.
As a result, we do not have much information about what Brett
did after the relapse or whether this relapse was an isolated
event or a pattern of behavior. As we mentioned above, we do
not expect perfection in a parent, but, rather, a continued effort
to become a better and more appropriate parent. And, because
termination of parental rights is such a severe consequence, we
must be sure that it is used as a last resort.
Based on the evidence presented at the termination hear-
ing, we cannot say that there is sufficient evidence to dem-
onstrate that termination of Brett’s parental rights is in the
children’s best interests. Evidence that Brett had one setback
on his road toward reunification with the children is simply
insufficient to demonstrate that termination is the last resort
available for this family. There was insufficient evidence to
demonstrate that Brett’s relapse in December 2010 was a pat-
tern of behavior rather than an isolated event and that Brett is
currently incapable of appropriately parenting the children. The
Department’s unilateral decision to terminate services to Brett
and to terminate his visitation with the children produced a
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF JACOB H. ET AL. 695
Cite as 20 Neb. App. 680lack of evidence about Brett’s circumstances for the 16 months
prior to the termination hearing.
Due to this insufficiency in the evidence, we reverse the
county court’s order terminating Brett’s parental rights to
Jacob, Madison, Megan, and Morgan, and remand the matter
to the county court for further proceedings consistent with
this opinion.
V. CONCLUSION
Upon our review of the record, we conclude that the county
court did not err in permitting the State to amend its motion
to terminate Brett’s parental rights or in failing to recuse itself
from the termination proceedings. In addition, we conclude
that there is clear and convincing evidence to demonstrate that
the children have been in an out-of-home placement for 15 of
the most recent 22 months pursuant to § 43-292(7). However,
we also conclude that there is insufficient evidence to demon-
strate that termination of Brett’s parental rights is in the best
interests of Jacob, Madison, Megan, and Morgan. Accordingly,
we reverse the order terminating Brett’s parental rights and
remand the matter to the county court for further proceedings
consistent with this opinion.
R eversed and remanded for
further proceedings.