In re Interest of Seth K. & Dinah K. ( 2014 )

Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF SETH K. & DINAH K. 349
Cite as 22 Neb. Ct. App. 349
Brekk presented no opinion on the matter at trial. She testi-
fied generally that she had looked into an elementary school
in Gretna, but she never indicated that she wanted Cohen to
attend school there.
The evidence shows that the parties agreed to move to
Lincoln and resided there together until they separated, at
which point Brekk moved to Gretna. Troy has a developing
law practice in Lincoln, while Brekk has no employment tying
her to Gretna. In fact, Brekk acknowledged that there was no
reason she could not relocate to Lincoln. Given these facts, we
find that there is a greater potential for permanency in Lincoln,
as opposed to Gretna.
Because the parties could not agree on where Cohen would
attend school, the court made the decision that it was in
Cohen’s best interests to attend school in Lincoln, and the court
allowed Troy to determine which specific school Cohen would
attend. We find no abuse of discretion in this decision.
VI. CONCLUSION
The district court did not err in determining that removal
of the children from Nebraska to Utah would not be in the
children’s best interests and that it would be in Cohen’s best
interests to attend school in Lincoln. We affirm the district
court’s judgment in all respects.
Affirmed.
In re I nterest of
Seth K. and Dinah K.,
children under18 years of age.
State of Nebraska, appellee, v.
Deborah P., appellant.
___ N.W.2d ___
Filed September 2, 2014. No. A-14-002.
1. Juvenile Courts: Evidence: Appeal and Error. Juvenile cases are reviewed de
novo on the record, and an appellate court is required to reach a conclusion inde-
pendent of the juvenile court’s findings. When the evidence is in conflict, how-
ever, 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.
Decisions of the Nebraska Court of Appeals
350 22 NEBRASKA APPELLATE REPORTS
2. Parental Rights: Evidence: Proof. A court will terminate a parent’s natural
right to the custody of his or her child when the two requirements of Neb. Rev.
Stat. § 43-292 (Cum. Supp. 2012) have been met: First, there must be clear
and convincing evidence of one of the conditions prescribed in subsections (1)
through (11) of § 43-292, and second, there must be an additional showing that
termination of parental rights is in the child’s best interests by clear and convinc-
ing evidence.
3. Evidence: Proof: Words and Phrases. 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.
4. Parental Rights: Words and Phrases. 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; therefore, given such severe and final consequences,
parental rights should be terminated only in the absence of any reasonable alter-
native and as the last resort.
5. 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 Separate Juvenile Court of Douglas County:
Douglas F. Johnson, Judge. Reversed and remanded for fur-
ther proceedings.
Anne E. Troia, P.C., L.L.O., for appellant.
Donald W. Kleine, Douglas County Attorney, and Amy
Schuchman for appellee.
Inbody, Chief Judge, and Irwin and Bishop, Judges.
Irwin, Judge.
I. INTRODUCTION
Deborah P. appeals from the order of the juvenile court
which terminated her parental rights to her two children. On
appeal, Deborah challenges the juvenile court’s findings that
her parental rights should be terminated pursuant to Neb. Rev.
Stat. § 43-292(2) (Cum. Supp. 2012) and that termination of
her parental rights is in the children’s best interests. Upon
our de novo review of the record, we reverse the juvenile
court’s order which terminated Deborah’s parental rights. We
do not find clear and convincing evidence that termination of
Deborah’s parental rights is in the children’s best interests.
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF SETH K. & DINAH K. 351
Cite as 22 Neb. Ct. App. 349
II. BACKGROUND
These juvenile court proceedings involve two children: Seth
K., born in July 2009, and Dinah K., born in December 2010.
Deborah is the children’s biological mother. The children’s
biological father, Matthew K., is not a party to this appeal. His
parental rights to both children were terminated by the juve-
nile court during previous proceedings. As such, Matthew’s
involvement in the children’s lives will be discussed only to
the extent necessary to provide context.
The current juvenile court proceedings were initiated in
March 2013. However, this is not the first time that the family
has been involved in the juvenile court system. The family’s
history with the juvenile court is relevant to the current pro-
ceedings because such history provides insight into Deborah’s
ability to independently parent the children. As a result, we
briefly recount that history here.
In September 2009, Seth, who was then about 2 months
old, was removed from Deborah and Matthew’s home after
Matthew admitted to subjecting Seth to inappropriate physi-
cal contact which resulted in a fracture to Seth’s arm and
bruising on his ankles. As a result of Matthew’s actions and
Deborah’s failure to protect Seth from Matthew’s actions, Seth
was adjudicated as a child within the meaning of Neb. Rev.
Stat. § 43-247(3)(a) (Reissue 2008) and placed in foster care.
While the juvenile court proceedings were still pending, Dinah
was born. Immediately after her birth, Dinah was removed
from Deborah and Matthew’s custody and placed in foster care
with Seth.
Shortly after Dinah’s birth, the juvenile court terminated
Matthew’s parental rights to both Seth and Dinah. At this
time, Deborah and Matthew were, apparently, no longer resid-
ing together. The juvenile court and the Department of Health
and Human Services (the Department) continued to assist
Deborah in obtaining reunification with the children. Deborah
was provided with various services, including those of a
family support worker, individual therapy, parenting classes,
domestic violence classes, and supervised visitation with
the children.
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352 22 NEBRASKA APPELLATE REPORTS
In April 2012, Seth and Dinah were returned to Deborah’s
home, and a few months later, in September 2012, the juve-
nile court case involving the family was closed. At that time,
Deborah declined any further services from the Department to
assist her with the children.
In January 2013, approximately 4 months after the previ-
ous juvenile court case was closed, the Department received
information that Deborah’s home was unsanitary and inappro-
priate for the children. Department workers visited Deborah’s
home and observed that the house was very dirty and clut-
tered and had a strong odor. In addition, the workers observed
a baggie of marijuana on Deborah’s couch. This baggie was
within the reach of Seth and Dinah. Deborah admitted to the
workers that she was struggling and needed help caring for
the children. She also admitted that she used marijuana on a
daily basis.
As a result of the condition of Deborah’s home and her
admission that she was struggling, the Department created
a safety plan to assist Deborah. As a part of this plan, the
children were temporarily placed in the care of their paternal
grandparents while Deborah cleaned up her home. A few days
later, after Deborah cleaned the home, Seth and Dinah were
returned to Deborah’s care. At that point, Deborah agreed to
allow the children’s paternal grandparents to assist her in tak-
ing care of the children and agreed to participate in such serv­
ices as intensive family preservation, a pretreatment assess-
ment, and a chemical dependency evaluation.
Shortly after this safety plan was initiated, Deborah was
evicted from her home due to nonpayment of rent. A new
safety plan was then created. Deborah and the children moved
in with the children’s paternal grandparents. Deborah agreed
that she would continue to voluntarily participate in serv­
ices to assist her with her parenting and with her substance
abuse problem.
In March 2013, Deborah was asked to leave the home of
the children’s paternal grandparents because the grandpar-
ents believed that she was not properly caring for the chil-
dren when she was not working. Deborah would not get up
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF SETH K. & DINAH K. 353
Cite as 22 Neb. Ct. App. 349
with the children in the mornings and often would not come
home on the weekends after her work shift ended. Deborah
left the home, but Seth and Dinah remained with their
grandparents.
On March 20, 2013, the State filed a petition alleging that
the children were within the meaning of § 43-247(3)(a) due
to the faults or habits of Deborah. Specifically, the petition
alleged that the children were at risk for harm because of,
among other things, Deborah’s use of alcohol or controlled
substances and Deborah’s failure to provide safe, stable, or
appropriate housing.
After the petition was filed, the juvenile court entered an
order continuing the children’s placement outside of Deborah’s
home. The children remained in the home of their paternal
grandparents. In this same order, the court “invited” Deborah
to voluntarily participate in the following services: supervised
visitation with the children, parenting classes, intensive outpa-
tient substance abuse treatment, random drug testing, family
support, and a psychological evaluation.
On April 29, 2013, the State filed an amended petition. This
petition again alleged that the children were within the mean-
ing of § 43-247(3)(a) due to the faults or habits of Deborah.
However, the amended petition also alleged provisions con-
cerning termination of Deborah’s parental rights to Seth and
Dinah. Specifically, the amended petition alleged that the chil-
dren were within the meaning of § 43-292(2) because Deborah
had substantially and continuously or repeatedly neglected and
refused to provide the children necessary parental care or pro-
tection and that termination of Deborah’s parental rights was in
the children’s best interests.
A hearing on the State’s amended petition began in August
2013 and continued in December. During the first portion of
the hearing, the State presented its case about Deborah’s par-
enting abilities and her minimal efforts to achieve reunifica-
tion with the children. Then, 4 months later, during the second
portion of the hearing, Deborah presented her case about the
recent progress she had made toward reunification and about
her bond with the children.
Decisions of the Nebraska Court of Appeals
354 22 NEBRASKA APPELLATE REPORTS
1. State’s Evidence
During the August 2013 hearing, the State presented evi-
dence to demonstrate that Deborah was not making sufficient
efforts to take care of herself or improve her circumstances
and, as such, was not making sufficient efforts to obtain reuni-
fication with the children.
The State presented evidence that between March and
August 2013, Deborah did not make any effort toward manag-
ing her substance abuse or mental health issues. She did not
enroll in any type of treatment program, she did not participate
in an individual therapy program, she did not participate in a
Narcotics Anonymous group, and she was not compliant with
drug testing. In fact, the State offered evidence to indicate that
during this period of time, on the few occasions that Deborah
had submitted to a drug test, she tested positive for marijuana
four times. Deborah stopped submitting to any drug tests in
June 2013.
The State presented evidence that at the time of the August
2013 hearing, Deborah was not employed. In fact, there was
evidence that Deborah had lied to the Department workers
about having employment, when she was actually unemployed.
In August 2013, Deborah was living with her boyfriend and
his two children in a two-bedroom apartment. The family’s
caseworker testified that this housing was problematic for
two reasons: First, there was “no room for” Seth and Dinah
to live there with Deborah. Second, Deborah did not want
the Department to perform a background check on her boy-
friend, so the children were not permitted to have any contact
with him.
The State presented evidence that initially, in March 2013,
Deborah did not want to participate in supervised visitations
with the children. Deborah indicated that she did not have time
for such visitations and that she did not want to see the chil-
dren if someone was going to be watching her. There was also
evidence that when Deborah did decide to participate in visita-
tions, she managed the children appropriately for short periods
of time; however, she could not care for the children for longer
periods of time.
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF SETH K. & DINAH K. 355
Cite as 22 Neb. Ct. App. 349
The Department caseworker testified that during their lives,
both Seth and Dinah had spent more time in foster care
than they had with Deborah. The caseworker also opined that
Deborah was in a worse place in August 2013 than she had
been in when the case was initiated in March 2013.
2. Deborah’s Evidence
In December 2013, Deborah presented evidence that she
had made beneficial progress toward achieving reunifica-
tion with the children and that she had a strong bond with
the children.
Deborah’s evidence revealed that during the fall of 2013,
she successfully completed an intensive outpatient treatment
program for her substance abuse. Deborah’s treating therapist
testified that Deborah attended and actively participated in her
program. In addition, Deborah completed a relapse prevention
program and passed all of the drug tests given to her during the
program. The same therapist testified that Deborah’s prognosis
was “excellent.”
Deborah also presented evidence to demonstrate that by
the time of the December 2013 hearing, she had acquired
full-time employment. This employment provided Deborah
with benefits.
Finally, Deborah presented evidence that she had success-
fully completed a parenting class in August 2013 and that
her parenting skills had improved after that class. Visitation
workers who supervised visits between Deborah and the chil-
dren testified that Deborah was attentive to the children and
would develop and implement age-appropriate activities for
the children during visits. Deborah also had appropriate meals
and “supplies” for the children, and the children appeared to
love Deborah very much. Both Seth and Dinah were happy to
see Deborah during visits, and Deborah was very affectionate
with them.
At the close of all the evidence, the juvenile court entered
an order finding that “all counts of the amended petition” filed
herein “are true . . . by clear and convincing evidence.” The
court adjudicated Seth and Dinah to be within the meaning of
§ 43-247(3)(a) as a result of the faults or habits of Deborah.
Decisions of the Nebraska Court of Appeals
356 22 NEBRASKA APPELLATE REPORTS
The court also found that Seth and Dinah were within the
meaning of § 43-292(2) and that termination of Deborah’s
parental rights was in their best interests. The court then termi-
nated Deborah’s parental rights to Seth and Dinah.
Deborah appeals from the juvenile court’s order.
III. ASSIGNMENTS OF ERROR
On appeal, Deborah challenges the juvenile court’s find-
ing that her parental rights should be terminated pursuant to
§ 43-292(2) and the court’s finding that termination of her
parental rights is in the children’s best interests.
IV. STANDARD OF REVIEW
[1] 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.
V. ANALYSIS
[2,3] A court will terminate a parent’s natural right to the
custody of his or her child when the two requirements of
§ 43-292 have been met. See In re Interest of Crystal C., 12
Neb. Ct. App. 458, 676 N.W.2d 378 (2004). First, there must
be clear and convincing evidence of one of the conditions
prescribed in subsections (1) through (11) of § 43-292, and
second, there must be an additional showing that termination
of parental rights is in the child’s best interests by clear and
convincing evidence. See In re Interest of Crystal C., supra.
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. See In re Interest
of Jagger L., supra.
In this case, the juvenile court determined that both of
the requirements of § 43-292 had been met. The court found
that Seth and Dinah were within the meaning of § 43-292(2)
because Deborah had substantially and continuously or repeat-
edly neglected and refused to give them necessary parental
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF SETH K. & DINAH K. 357
Cite as 22 Neb. Ct. App. 349
care and protection. The court also found that termination of
Deborah’s parental rights was in the children’s best interests.
On appeal, Deborah asserts that both of these findings of
the juvenile court were in error. We first address her assertions
concerning whether the juvenile court erred in determining that
termination of her parental rights was in the children’s best
interests, because our ultimate resolution of this issue is dis-
positive of Deborah’s appeal.
Deborah asserts that the juvenile court erred in determining
that termination of her parental rights was in the best interests
of the children. Specifically, Deborah argues that she has made
progress toward reunification with the children, that she has a
strong bond with the children, and that she is willing to con-
tinue to work to become a better parent.
Upon our review of the record, we conclude that Deborah’s
assertions have merit. We find insufficient evidence to dem-
onstrate that terminating Deborah’s parental rights to Seth and
Dinah is in the children’s best interests. As such, we reverse
that portion of the juvenile court’s order which terminated
Deborah’s parental rights to these two children.
[4,5] 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; 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. Ct. App. 718,
791 N.W.2d 765 (2010); In re Interest of Crystal C., supra.
The law does not require perfection of a parent; instead, courts
should look for the parent’s continued improvement in parent-
ing skills and a beneficial relationship between parent and
child. Id.
The current juvenile court proceedings were initiated in
March 2013 when the State filed a petition alleging that the
children were within the meaning of § 43-247(3)(a) as a result
of the faults or habits of Deborah. However, 1 month after the
initial petition was filed and before the children could even
be adjudicated pursuant to that petition, the State filed an
amended petition which included allegations that Deborah’s
parental rights should be terminated. Four months after the
Decisions of the Nebraska Court of Appeals
358 22 NEBRASKA APPELLATE REPORTS
amended petition was filed, the hearing on the amended peti-
tion began. The hearing was both an adjudication proceeding
and a termination proceeding.
At the August 2013 hearing, the State presented evidence
that since March 2013, when the initial petition was filed,
Deborah had not made sufficient efforts toward achieving
reunification with the children. Deborah had not made any
effort toward managing her substance abuse or mental health
issues. Specifically, she had not enrolled in a treatment pro-
gram, she had not participated in therapy, and she was not com-
pliant with requested drug testing. Deborah was not employed
and did not have suitable housing for the children. Deborah
also exhibited an inability to appropriately care for Seth and
Dinah for extended periods of time.
During the State’s case, it conceded that because Seth and
Dinah had not yet been adjudicated at the time of the August
2013 hearing, Deborah’s participation in any of the services
offered to her was entirely voluntary. She had not yet been
ordered by the court to participate in any specific rehabilita-
tion plan.
The hearing on the amended petition continued in December
2013. At that time, Deborah presented evidence that she
had made substantial progress toward achieving reunifica-
tion with the children and that she had a strong bond with
the children. Deborah presented evidence that during the fall
of 2013, she successfully completed an intensive outpatient
treatment program for her substance abuse. As a part of
that program, Deborah cooperated with and passed regular
drug tests. Deborah’s prognosis for maintaining her sobriety
was considered “excellent.” Deborah had obtained full-time
employment, and such employment provided Deborah with
benefits. In addition, Deborah had completed a parenting
class in August 2013 and was successfully applying the les-
sons she learned from this class to her interactions with Seth
and Dinah. Visitation workers who supervised visits between
Deborah and the children testified that Deborah was good
with the children, always had fun activities for the three of
them to engage in together, and always provided the children
with appropriate food and other supplies. In addition, these
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF SETH K. & DINAH K. 359
Cite as 22 Neb. Ct. App. 349
workers observed a bond between Deborah and the children.
The children appeared to enjoy spending time with Deborah,
and the family members exhibited a lot of affection with
each other.
Clearly, the evidence presented by Deborah at the December
2013 portion of the hearing is in stark contrast to the evidence
presented by the State at the August portion of the hearing. The
reason for such a disparity in the evidence appears to be due
to Deborah’s failure to make sufficient efforts toward reuni-
fication in the early stages of the juvenile court proceedings.
However, we must note that only 5 months passed between
the filing of the initial petition and the August hearing. And,
we must also note that during those 5 months, Deborah’s
participation in any sort of rehabilitation plan was considered
voluntary. As such, we find Deborah’s situation distinguish-
able from those cases where last-minute attempts by parents
to comply with a rehabilitation plan did not prevent termina-
tion of parental rights. See, e.g., In re Interest of Kassara M.,
258 Neb. 90, 601 N.W.2d 917 (1999) (last-minute efforts of
mother were not sufficient to prevent termination where 21⁄2
years passed between initial rehabilitation plan order and ter-
mination proceedings); In re Interest of V.M., 235 Neb. 724,
457 N.W.2d 288 (1990) (last-minute efforts of mother were
not sufficient to prevent termination where child had been in
out-of-home placement for over 21⁄2 years).
When we view as a whole the evidence presented at
both the August and December 2013 portions of the hear-
ing, we conclude that Deborah has made notable progress
toward achieving reunification with the children. She has
made active efforts toward taking care of herself and improv-
ing her circumstances and, in addition, has made efforts to
improve her parenting skills and her relationship with the
children. Deborah clearly loves the children, and the children
love Deborah.
In its brief on appeal and during oral arguments, the State
dismissed Deborah’s recent efforts toward reunification as
inconsequential because Deborah has exhibited a pattern of
making progress when she is involved with the juvenile court
and then reverting back to harmful behavior once there is
Decisions of the Nebraska Court of Appeals
360 22 NEBRASKA APPELLATE REPORTS
no longer court involvement. Clearly, the State’s argument
references the previous juvenile court proceedings involving
Deborah and the children. During that previous case, Deborah
successfully achieved reunification with Seth and Dinah, but
then, approximately 4 months after the case was closed, the
Department began receiving reports that Deborah was neglect-
ing the children. The State argues that Deborah is simply
unable to sustain the progress she has made when not under the
constant supervision of the juvenile court.
We recognize that “‘one’s history as a parent speaks to
one’s future as a parent.’” See In re Interest of Sir Messiah
T. et al., 279 Neb. 900, 908, 782 N.W.2d 320, 328 (2010).
However, one’s history does not alone determine his or her
future. Deborah’s past involvement with the juvenile court sys-
tem is relevant to her ability to appropriately and effectively
parent the children and, accordingly, relevant to the children’s
best interests. Nevertheless, in this case, we do not find that
Deborah’s past history with the juvenile court is dispositive of
her future as a parent.
There is no evidence to suggest that the improvements
Deborah has made during the pendency of the current juvenile
court proceedings are only temporary in nature. Deborah’s
prognosis for maintaining her sobriety is considered excellent.
She worked to obtain stable, full-time employment. And, after
completing her parenting class, she has consistently utilized
positive and appropriate parenting skills with the children.
Deborah appears motivated and committed to achieving and
maintaining reunification with the children. We cannot assume
that she will revert to her previous, harmful behaviors if given
the chance simply because this has happened once before. As
we stated above, we cannot turn a blind eye to the severe con-
sequences of finally and completely severing a child from the
parent. See In re Interest of Crystal C., 12 Neb. Ct. App. 458, 676
N.W.2d 378 (2004).
We appreciate that Deborah still has work to do before
achieving reunification with Seth and Dinah. In particular, we
point to the need for Deborah to obtain appropriate and safe
housing and the requirement that she demonstrate the ability
to maintain her sobriety and stability. However, we do not
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Cite as 22 Neb. Ct. App. 349
require perfection of a parent when deciding whether termina-
tion of parental rights is appropriate.
We conclude that there is insufficient evidence to prove that
termination of Deborah’s parental rights to Seth and Dinah is
in the children’s best interests. We reverse that portion of the
juvenile court’s order which terminated Deborah’s parental
rights to Seth and Dinah.
VI. CONCLUSION
We find that the juvenile court erred when it found that
the State had proven, by clear and convincing evidence, that
terminating Deborah’s parental rights would be in Seth’s and
Dinah’s best interests. Accordingly, we reverse that portion of
the juvenile court’s order which terminated Deborah’s parental
rights and remand the matter for further proceedings.
R eversed and remanded for
further proceedings.