In re Interest of Bella S. ( 2020 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
IN RE INTEREST OF BELLA S.
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
IN RE INTEREST OF BELLA S., A CHILD UNDER 18 YEARS OF AGE.
STATE OF NEBRASKA, APPELLEE,
V.
STACY S., APPELLANT.
Filed February 18, 2020. No. A-19-511.
Appeal from the County Court for Scotts Bluff County: JAMES M. WORDEN, Judge.
Affirmed.
Bernard J. Straetker, Deputy Scotts Bluff County Public Defender, for appellant.
Danielle Larson, Deputy Scotts Bluff County Attorney, for appellee.
Katy A. Reichert, of Chaloupka, Holyoke, Snyder, Chaloupka & Longoria, P.C., L.L.O.,
guardian ad litem.
MOORE, Chief Judge, and ARTERBURN and WELCH, Judges.
WELCH, Judge.
INTRODUCTION
Stacy S., natural mother of Bella S., appeals the order of the Scotts Bluff County Court,
sitting as a juvenile court, terminating her parental rights. Stacy contends that the court erred in
terminating her parental rights pursuant to Neb. Rev. Stat. § 43-292(2) and (4) (Reissue 2016),
finding beyond a reasonable doubt through a qualified expert that Stacy’s continued custody of
Bella, an Indian child, is likely to result in serious emotional or physical damage to Bella, and
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finding that termination was in Bella’s best interests. Based upon the analysis set forth herein, we
affirm.
STATEMENT OF FACTS
Stacy and Michael F. are the parents of Bella, who was born out of wedlock in February
2016. Michael is an enrolled member of the Ninilchik Tribal Village in Alaska. In 2016, a paternity
action established Michael was Bella’s father, and in March 2017, a court placed temporary legal
custody of Bella with the court and granted Stacy temporary physical custody with Michael having
visitation rights. In April 2017, the court ordered Bella be taken into temporary custody of the
Nebraska Department of Health and Human Services (DHHS) and later adjudicated Bella in June
2017. By January 2018, a bridge order was entered giving Michael sole legal and physical custody
with parenting time for Stacy and also transferring jurisdiction to the District Court of Scotts Bluff
County. In March 2018, Stacy filed a motion to modify custody and visitation. From August 2018
to November 2018, Michael kept Bella away from Stacy and eventually moved with Bella to
Alaska. Subsequently, in November 2018, the court granted Stacy legal and physical custody of
Bella.
Since Bella’s birth, several intakes have been opened with DHHS involving Stacy’s use of
drugs. In December 2016, an intake was opened with DHHS regarding Stacy and Bella based on
allegations that Stacy was using drugs with Bella in her care. A January 2017 hair follicle test on
Bella resulted in a positive indication for methamphetamine with levels around 4,008 pg/mg, and
an April hair follicle test was 760 pg/mg higher than her January level. Additionally, Bella’s hair
follicle tests indicated positive results for THC, which is the “chief intoxicant in marijuana.”
Merriam-Webster’s Collegiate Dictionary 1217 (10th ed. 2001). However, testing performed on
Stacy did not indicate a corresponding positive result for marijuana or THC. Thereafter, the case
closed, and Bella was placed with Michael.
In April 2017, a second intake occurred with DHHS based on concerns that Stacy was
using methamphetamine and her use prevented Stacy from removing Bella from her car seat
without assistance. A May 2017 hair follicle test performed on Stacy showed positive results for
amphetamine and methamphetamine. In May 2017, a hair follicle test performed on Bella showed
positive results for methamphetamine and, according to Anna Harberts, a DHHS child protective
services initial assessment worker, this test result was the highest level for a child the DHHS office
had encountered. Bella was adjudicated in June 2017, and by January 2018, a bridge order was
entered giving Michael sole legal and physical custody with parenting time for Stacy and also
transferring jurisdiction to the District Court of Scotts Bluff County.
In December 2018, DHHS received another intake regarding Stacy alleging that Stacy was
using drugs. Also in December, law enforcement conducted two drug busts at the home of her
friend Robert Turner and at the Spring Creek Ranch in which Stacy was implicated and of which
we will provide greater detail later in this opinion. When Kortni Zeiler, a DHHS children and
family specialist, met with Stacy in January 2019, Zeiler noted that Stacy was speaking rapidly
and would not make eye contact with her, which Zeiler’s training indicated was indicative of drug
use.
The following month, in February 2019, the State filed a motion for temporary custody of
Bella. In connection with the motion, the State filed an affidavit stating that DHHS received an
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intake alleging that Stacy was using methamphetamine; that this was the third time the State had
filed a request for custody concerning Bella; and that initial contact was made with Stacy who
appeared very erratic, was talking fast, and not always tracking well, but that her demeanor was
different during the second contact. The affidavit also alleged that Michael had contact with Bella
and that Bella’s hair had been cut and Stacy’s hair had been cut and dyed and noted that hair cutting
and dying are commonly used when people suspect a hair follicle test will be conducted. Bella was
placed in Michael’s custody on February 8, 2019.
In February 2019, the State filed an amended motion to terminate parental rights under
§ 43-292(2) and (4). During the hearing held in April, the court considered adjudication under
Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016) and the termination of Stacy’s parental rights.
During the hearing, testimony was adduced from witnesses including Michael; Caroline Teeple, a
DHHS case manager; Zeiler, a DHHS children and family specialist; Scotts Bluff County Sheriff’s
Investigator Bryan Martinez; and Nebraska State Patrol Lieutenant Brian Eads. The court also
received deposition testimony from Richard Encelewski, a member of the Ninilchik tribe and
president and chairman of the Ninilchik Traditional Council. At the time of the hearing, Bella
remained in Michael’s custody.
MICHAEL
Michael testified that he suspected Stacy was using methamphetamine and that there were
times he believed Bella had been sick due to exposure to drugs. Michael testified that during one
of his overnight visits in December 2016, when Bella was about 7 months old, Bella did not sleep
and “puk[ed] white stuff out of her nose and scream[ed] like she was on fire.” When Michael
discussed the incident with Stacy, she claimed Bella was teething, but Michael testified he had
experienced withdrawal and it was “pretty bad.” Michael also testified that Bella’s hearing tested
at 30 percent, leading to a diagnosis of hearing loss, which was consistent with a child who has
been exposed to high levels of methamphetamine.
Michael also testified that he became concerned in April 2018 on a day when he was to
pick up Bella for visitation. On that day, he was concerned when he saw Shaun Turner’s car at the
apartment where Stacy and Bella were staying because he knew that Turner was using
methamphetamine. When he went to Stacy’s apartment to pick up Bella after he got off work,
pursuant to the terms of the parties’ visitation agreement, he stated that Stacy was high because
she was jumping around and fidgety. Michael’s concern that Stacy was using methamphetamine
continued throughout April, May, and June 2018 because when Stacy dropped Bella off with
Michael for his visitation, Stacy was “super hyper, eyes dilated, sweaty.” Additionally, Michael
testified he saw Turner’s car “on various pick-ups [and] drop-offs.” Michael testified Stacy would
brag about falsifying drug tests by using fake urine. Around September 2018, Stacy refused
Michael’s request to take a hair follicle test.
CAROLINE TEEPLE
Teeple provided testimony that included Stacy’s recovery efforts following her second
intake but before her third intake. Teeple testified that DHHS provided services to Stacy including
parenting time, drug testing, and weekly counseling with a substance abuse counselor and that
Stacy completed a psychological and parenting evaluation, a substance use evaluation, and a
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healthy communications class, all between May 2017 and January 2018. Teeple testified the
psychological and parenting evaluation noted Stacy was diagnosed with methamphetamine use
disorder, in early remission, and an unspecified adjustment disorder. Teeple testified the substance
use evaluation was used in creating a case plan for Stacy, which included participation in weekly
counseling and 12-step meetings, sobriety monitoring, and involvement with narcotics anonymous
(NA). Teeple testified Stacy was actively involved in a Celebrate Recovery group and a 12-step
program.
Teeple testified Stacy was very good at doing what she needed to do, was always willing
to meet with Teeple, and made use of the supervised parenting time. A bridge order was entered
in January 2018 that continued Bella’s placement with Michael. Later, in April 2018, the district
court modified Bella’s custody to joint custody.
KORTNI ZEILER
Zeiler testified she received a December 2018 intake alleging Stacy was using drugs. At
that time, Zeiler noticed recent criminal activity involving Stacy. Zeiler first met with Stacy in
January 2019, and during that meeting, she noted Stacy was speaking rapidly and would not make
eye contact with her. Zeiler testified she is trained to look for physical indicators of drug use and
that rapid speech and lack of eye contact are indicators of drug use. Zeiler testified she met with
Stacy later in January and they put a safety plan in place which included conditions that Stacy was
not to be alone with her children and contact was to be monitored by Stacy’s mother, which Stacy
agreed to for that weekend. Although Zieler offered Stacy a voluntary plan with DHHS, Stacy
refused that offer.
DRUG BUSTS
In December 2018, members of law enforcement executed a search warrant on a house
owned by one of Stacy’s friends, Newton, and a later search at a property known as the Spring
Creek Ranch involving Turner, who Stacy had previously dated. Members of law enforcement
involved in one or both of these searches were Scotts Bluff County Sheriff’s Investigator Bryan
Martinez and Lieutenant Eads, the task force commander for WING Drug Task Force, who had
participated in over 5,000 hours of continuing education training with approximately 1,000 hours
of that dedicated to drugs and was certified as a drug recognition expert.
The search of Newton’s home revealed a marijuana growing operation in a potato cellar on
the property as well as methamphetamine, LSD, firearms, and cell phones. Additionally, officers
discovered texts between Newton and Stacy on one of the cell phones and also discovered images
of child pornography on Newton’s cell phone. This drug bust led to another drug bust on a property
commonly called the Spring Creek Ranch which also took place in December 2018.
Officers conducting a search of the Spring Creek Ranch located a locked camper on the
property. An individual, Turner, exited the camper. Eads testified that Turner had a “pretty decent
amount of U.S. currency” and a weapons magazine in his pockets. Eads searched the camper
locating drug paraphernalia, methamphetamine, marijuana, and approximately 47 firearms, most
of which were loaded and without child locks. Eads testified there is a correlation between large
amounts of firearms and illegal drugs because people are protecting “either themselves or their
product from rival drug dealers or from people just trying to steal the product when they don’t
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have enough money to pay for it.” Martinez corroborated this testimony stating that Turner had
$3,000 cash on his person and that the cash combined with the items found in the camper, such as
reams of small baggies, over 211 grams of methamphetamine, and digital scales, indicated Turner
was involved in narcotics dealing.
Martinez further testified that after Turner was arrested, Martinez listened in on a telephone
call that Turner placed to Stacy and heard Turner ask Stacy to go to the Spring Creek Ranch and
destroy flash drives and hard drives, to which Stacy responded that it was already taken care of.
Martinez further testified that, based on that phone call, he arrested Stacy and searched her
residence locating flash drives, SIM cards, property from the Spring Creek residence, and
marijuana inside a marijuana pipe. Martinez testified Bella was present when Stacy was arrested.
Martinez also testified he saw fake urine and a pill inside Stacy’s residence which, in his training
and experience, are used to throw off drug tests. Martinez also testified Turner’s debit card was
located in Stacy’s car. Martinez testified that Stacy told him she had previously dated Turner but
they were not currently dating. Martinez testified that while Stacy said she and Turner were not
currently dating, Martinez did not get that sense from reading text messages on Stacy’s phone
including her request for marijuana and a discussion about LSD. Martinez further testified the
Spring Creek property was the address listed on Stacy’s driver’s license and that Stacy told him
she had previously lived at the Spring Creek property.
RICHARD ENCELEWSKI
The court received deposition testimony from Encelewski, who is an elder of the Ninilchik
Tribe. Encelewski had previously testified as a qualified Indian expert in other cases and provided
testimony about life as a member of the Ninilchik Tribe as well as the impact narcotics have on
families and children.
Encelewski testified that
as an elder of the tribe we participate in a lot of the social events, so as an elder they have
the -- you know, participate in cultural camps: Fish camps, elders in youth programs, we
have a lot of programs we do from preschool all on up to native youth Olympics, different
things that I attend the functions and support the kids and their role in the tribe here, so just
all-around involvement with the tribe.
Encelewski testified about the effects of a family member’s use or caregiver’s use of
methamphetamine on children and explained methamphetamine use destroys families, children,
puts them in depression, and leads to physical and emotional harm. Encelewski further testified
physical harm included “abuse, nothing being taken care of, messy diapers, clothes, everything
else, living in a condition that you wouldn’t put your dog in, I mean, bad stuff.” Regarding
emotional harm to children, Encelewski testified children suffer from aggression, “they go into
their shell,” and he has seen very ill effects and behavioral affects. Encelewski testified children
are impacted by methamphetamine use but the community is also affected, which is why he works
to “teach the right things to do and with membership bring [children] up with elders and uncles
that raise people and different things and good mentors that will get them on a good course.”
Encelewski testified cultural programs for children who have family members using
methamphetamine include fish camps, moose camps, hunting, and survival classes. Encelewski
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testified that individuals of his tribe who relapse on methamphetamine are offered medical
treatment programs as well as one-on-one counseling services. When asked if he reviewed
documents pertaining to Bella, Encelewski testified that he knew “a little bit” and knew there were
problems but was not deeply involved in the case.
COURT ORDER
The court noted that because Bella is an Indian child, active efforts, as required by the
Indian Child Welfare Act (ICWA), is the standard for terminating parental rights, which requires
more than the reasonable efforts standard. The court articulated that at least some efforts should
be culturally relevant. The court found the alleged statutory grounds to terminate Stacy’s parental
rights existed and that additional ICWA requirements were satisfied. The court ultimately
determined that terminating Stacy’s parental rights were in Bella’s best interests.
More specifically, the court found the State established by clear and convincing evidence
that the conditions set forth in § 43-292(2) and (4) existed due to Stacy repeatedly placing Bella in
dangerous contact with her drug related lifestyle. When analyzing active efforts, the court observed
that the State provided numerous services to Stacy, but the only service she requested was help
from DHHS in retrieving her older child’s birth certificate; that the State attempted to ensure
Bella’s continued connection with Native American culture and heritage by placing her with her
Native American parent; and that the testimony established by clear and convincing evidence that
further efforts to rehabilitate Stacy from her drug-related lifestyle would be futile. The court
determined expert witness testimony governing the devastation to children located in the home of
a methamphetamine user and trafficker established beyond a reasonable doubt that continued
custody of Bella by Stacy was likely to result in serious emotional or physical damage to Bella.
Finally, the court then determined terminating Stacy’s parental rights was in the best interests of
Bella due to Stacy’s drug use and drug related associations putting Bella in constant harm.
ASSIGNMENTS OF ERROR
Stacy argues, renumbered and restated, that the court erred in (1) adjudicating Bella as a
child within the meaning of § 43-247(3)(a), (2) finding the State established by clear and
convincing evidence that Stacy had substantially and continuously or repeatedly neglected or
refused to provide the juvenile necessary parental care or protection and did not prove the statutory
ground of debauchery, (3) finding terminating Stacy’s parental rights were in the best interest of
her daughter, and (4) finding the State established beyond a reasonable doubt through a qualified
expert that continued custody of an Indian child by Stacy is likely to result in serious emotional or
physical damage to the child.
STANDARD OF REVIEW
An appellate court reviews juvenile cases de novo on the record and reaches a conclusion
independently of the juvenile court’s findings. In re Interest of Robert W., 27 Neb. Ct. App. 11, 925
N.W.2d 714 (2019). When the evidence is in conflict, however, an appellate court may give weight
to the fact that the juvenile court observed the witnesses and accepted one version of facts over
another. In re Interest of LeVanta S., 295 Neb. 151, 887 N.W.2d 502 (2016); In re Interest of Becka
P. et al., 27 Neb. Ct. App. 489, 933 N.W.2d 873 (2019).
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ANALYSIS
ADJUDICATION
Stacy’s first assignment of error suggests the court committed error when it adjudicated
Bella. In the Summary of the Argument section, Stacy argues the State did not establish by the
greater weight of the evidence that her daughter should be adjudicated within § 43-247(3)(a), but
she did not address this assigned error in the argument section of her brief. Because Stacy did not
specifically argue this error, we do not address it other than to ensure this court has jurisdiction
over this case. See U.S. Pipeline v. Northern Natural Gas Co., 303 Neb. 444, 930 N.W.2d 460
(2019) (to be considered by appellate court, alleged error must be both specifically assigned and
specifically argued in brief of party asserting error).
Although we note that the court’s termination order does not appear to contain findings
governing the State’s separate request for adjudication in connection with its request for
termination, we find that an adjudication order was not necessary in connection with the specific
request for termination here. In In re Interest of Joshua M. et al., 256 Neb. 596, 591 N.W.2d 557
(1999), the Nebraska Supreme Court addressed when a juvenile court must adjudicate a child prior
to terminating parental rights. The Nebraska Supreme Court observed:
Unlike § 43-292(6) and (7), § 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. Instead, subsections (1) through (5) each concern historical
actions or conditions of the parents such as abandonment, neglect, unfitnesses, and mental
deficiency. There is no requirement of longitudinal involvement of the juvenile court under
§ 43-292(1) through (5), much less a prior adjudication.
In re Interest of Joshua M. et al., 256 Neb. at 609-10, 591 N.W.2d 557 at 566.
Accordingly, although the court in the present action did not make a specific finding
regarding the adjudication of Bella pursuant to § 43-247(3)(a), the court did not lack jurisdiction
to proceed with the State’s request to terminate Stacy’s parental rights pursuant to § 43-292(2) and
(4), and this court likewise has jurisdiction to proceed with this appeal.
STATUTORY GROUNDS FOR TERMINATION
Stacy contends that the court erred in terminating her parental rights pursuant to
§ 43-292(2) and (4) because these statutory grounds were not established by clear and convincing
evidence and no evidence was presented suggesting Bella had been exposed to methamphetamine
following the closure of the previous juvenile case in January 2018.
In Nebraska statutes, 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 Elizabeth S., 282 Neb. 1015, 809 N.W.2d 495 (2012).
In its order terminating Stacy’s parental rights to Bella, the court found that two separate
statutory grounds for termination existed: § 43-292(2) (parent has substantially and continuously
or repeatedly neglected and refused to give juvenile necessary parental care and protection), and
§ 43-292(4) (parent unfit by reason of debauchery, habitual use of narcotic drugs, or repeated lewd
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and lascivious behavior, which conduct is found by court to be seriously detrimental to health,
morals, or well-being of juvenile). Both grounds relate to the court’s penultimate statement that
“[Stacy] has continuously and repeatedly placed Bella in dangerous situations involving illegal
drug use and sales.”
The Nebraska Supreme Court has discussed neglect in the following context:
Because of the [mother’s] lack of insight and her lack of motivation to place the interests
of her children ahead of her own, the court did not err in finding there was clear and
convincing evidence to establish that the [mother] had substantially, continuously, and
repeatedly neglected her children and had refused to give them the necessary parental care
and protection.
In re Interest of B.B. et al., 239 Neb. 952, 956, 479 N.W.2d 787, 791 (1992). Additionally, more
recently in In re Interest of Brooklyn T. & Charlotte T., 26 Neb. Ct. App. 669, 922 N.W.2d 240 (2018),
this court found that the State’s factual basis was sufficient to show that the mother had
substantially and continuously or repeatedly neglected to give her children necessary parental
protection and care where the factual basis established that the mother’s drug use prevented her
from providing adequate parental care to a child which led to the removal of her two children from
the mother’s home and the mother had not adequately addressed her drug use at the time of the
termination hearing.
A similar situation exists in the present case. Bella was previously removed from Stacy’s
care on three occasions due to Stacy’s use of methamphetamine. In connection with those
removals, Bella tested positive for methamphetamine at the highest level for a child that the DHHS
workers had ever seen. Despite the State’s repeated attempts to provide services and rehabilitate
Stacy, she persisted in her conduct and then attempted to conceal it. In fact, Stacy has bragged
about faking drug tests to achieve negative results despite still using illegal drugs. Further, the
record indicates Stacy has maintained relationships with individuals who are involved in drug
trafficking. As law enforcement personnel testified, drug trafficking is very dangerous because any
interruption in the selling of drugs usually incites violence and possibly murder. Newton, who was
linked to Stacy as depicted in texts found on his phone during a drug bust, was found with a
marijuana growing operation on his property along with methamphetamine, LSD, firearms, and a
cell phone with images of child pornography. Turner, who was similarly arrested for drug
trafficking in December 2018, specifically called Stacy requesting that she destroy evidence of the
operation to which she responded that she complied. It is clear that by persisting in her drug use
and continuing relationships with individuals like Newton and Turner, Stacy has continuously
neglected Bella and has refused to give her necessary parental care and protection.
Separately, § 43-292(4) provides a separate basis for termination when a parent is found
unfit by reason of debauchery, habitual use of narcotic drugs, or repeated lewd and lascivious
behavior, which conduct is found by a court to be seriously detrimental to the health, morals, or
well-being of the juvenile. This record is replete with examples of Stacy’s lack of fitness in relation
to her habitual drug abuse and drug-related lifestyle. In addition to Bella’s being removed on three
occasions and Stacy and Bella’s testing positive for methamphetamine on one occasion, Stacy
admitted to methamphetamine use spanning a period of 7 to 10 years. Due to Stacy’s lifestyle,
Bella has been exposed to methamphetamine on multiple occasions; one exposure leading to
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Bella’s having one of the highest hair follicle test results ever seen by the DHHS workers. Michael
testified Bella exhibited signs of being exposed to methamphetamine because after being dropped
off by Stacy for visits, Bella would be more restless than normal for her and on one occasion did
not sleep for 2 days. Michael testified Bella “puk[ed] white stuff out of her nose and scream[ed]
like she was on fire” and did not sleep, and when Michael discussed the incident with Stacy, she
said it was teething. However, Michael testified that as a former methamphetamine user, he had
experienced withdrawal, and it was “pretty bad.” Bella’s hearing tested at 30 percent, leading to a
diagnosis of hearing loss, which Michael testified was consistent with a child who has been
exposed to methamphetamine at high levels. According to Michael, Stacy has driven Bella while
high to drop her off for Michael’s parenting time. Based upon evidence of Stacy faking drug tests,
Stacy’s removal of her own and Bella’s hair, and Stacy’s own admissions in the record, the
evidence is clear and convincing that Stacy’s drug abuse persists. In addition, Stacy’s insistence
on associating with persons like Newton and Turner place Bella at risk of imminent harm. Based
upon our de novo review, there is clear and convincing evidence to support the court’s findings
that grounds for termination were present pursuant to § 43-292(2) and (4).
ICWA
Stacy next argues that the State did not establish beyond a reasonable doubt through a
qualified expert that continued custody by Stacy would lead to serious emotional or physical
damage to Bella as required by ICWA before the court may terminate parental rights.
Regarding termination of parental rights, we have previously stated:
To terminate parental rights, the State must prove by clear and convincing evidence
that one or more of the statutory grounds listed in § 43-292 have been satisfied and that
termination is in the child’s best interests. In re Interest of Walter W., 274 Neb. 859, 744
N.W.2d 55 (2008). NICWA adds two additional elements the State must prove before
terminating parental rights in cases involving Indian children. Id. First, the State must prove
by clear and convincing evidence that active efforts have been made to prevent the breakup
of the Indian family and that these efforts have proved unsuccessful. See § 43-1505(4).
See, also, In re Interest of Walter W., supra. Second, the State must prove by evidence
beyond a reasonable doubt, “including testimony of qualified expert witnesses, that the
continued custody of the child by the parent or Indian custodian is likely to result in serious
emotional or physical damage to the child.” See § 43-1505(6).
....
. . . This evidence must be established by qualified expert testimony provided by a
professional person having substantial education and experience in the area of his or her
specialty. In re Interest of Shayla H. et al., 17 Neb. Ct. App. 436, 764 N.W.2d 119 (2009).
In re Interest of Audrey T., 26 Neb. Ct. App. 822, 832-33, 924 N.W.2d 72, 81 (2019).
We first note that Stacy did not separately assign that the court erred in finding that there
was clear and convincing evidence that active efforts have been made to prevent the breakup of
the Indian family and that those efforts proved unsuccessful. Nevertheless, we briefly address the
determination given its bearing on Stacy’s assignment concerning the court’s finding that
continued custody will result in serious emotional and physical damage to Bella.
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Stacy was provided services from May 2017 to January 2018 and included supervised
parenting time, drug testing, and weekly counseling with a substance abuse counselor. Stacy also
completed a psychological and parenting evaluation, a substance use evaluation, and a healthy
communications class. The psychological and parenting evaluation noted Stacy was diagnosed
with a methamphetamine use disorder, in early remission, and an unspecified adjustment disorder.
The substance use evaluation was used to create a case plan for Stacy, which included participation
in weekly counseling and 12-step meetings, sobriety monitoring, and involvement with Narcotics
Anonymous. Encelewski testified that members of his tribe who repeatedly relapse on
methamphetamine are offered drug testing and one-on-one counseling. These services are similar
to the services and programs offered to Stacy. Despite Stacy’s protracted struggles with drug
addiction, we note the only service Stacy requested was help from DHHS in retrieving her older
child’s birth certificate.
While Stacy was active with the Celebrate Recovery group and a 12-step program in 2017,
her statement made to Michael and text messages sent to Turner suggest she has not made progress.
Stacy told Michael she can fake drug tests and fake urine, and masking agents were in fact
discovered at her residence. According to Michael, Stacy has driven Bella while high to drop her
off for Michael’s parenting time.
Text messages to Turner also suggest Stacy is using drugs and is involved in drug
trafficking. On November 11, 2018, Stacy texted: “Michael. I did seek treatment during our
juvenile cade [sic]. I have proudly maintained my recovery. I took advantage of every single option
that the courts made available to me. I have a new life and a new way of living.” However, a few
days later on November 18, 2018, Turner texted Stacy: “You were out here getting high a week
and a half ago. . . . while I’m trying to support you to get your babies back (one of them you had
with a dude you cheated on me with).” As part of an ongoing fight with Turner, Stacy informed
him, “Duck [sic] seriously Shaun your [sic] a major reason I don’t stay clean. Your [sic] always
ducking [sic] talking shit, putting me down, making me feel like shit. Going on and on and on till
[sic] I can’t ducking [sic] stand it.” These text messages show that while Stacy tells others she has
stopped using drugs, she actually continues to get high and continues a relationship with Turner,
who sells narcotics. In short, despite the State’s active efforts here, those efforts have proven
unsuccessful. When taken together with the State’s efforts to place Bella with her Native American
parent, and Encelewski’s testimony that the State’s efforts were culturally appropriate in
connection with Stacy’s condition, we find the State proved by clear and convincing evidence that
efforts to separate Bella from Stacy and her drug addiction were culturally relevant active efforts
to prevent the breakup of the Indian family.
Next, we turn our attention to the second Indian Child Welfare Act requirement that
continued custody of the child by the parent is likely to result in serious emotional or physical
damage to the child. This requirement must be supported by evidence beyond a reasonable doubt
and include testimony of qualified expert witnesses. Neb. Rev. Stat. § 43-1505 (Reissue 2016).
Qualified expert witness is defined in Neb. Rev. Stat. § 43-1503(15) (Reissue 2016) which lists
five categories of experts in descending priority order, with the highest priority being, “[a] member
of the Indian child’s tribe or tribes who is recognized by the tribal community as knowledgeable
in tribal customs as they pertain to family and childrearing practices” and with the last category
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consisting of “[a]ny other professional person having substantial education in the area of his or her
specialty.”
Encelewski fits the first definition of a qualified expert witness because he is a member of
the Ninilchik tribe who is recognized by the tribal community as knowledgeable in tribal customs
as they pertain to family and childrearing practices. Encelewski testified that he is the president
and chairman of the Ninilchik Traditional Council and stated he helps to rear children in his
community through outreach programs including fish camps, elders in youth programs, preschool
programs, and native youth Olympics. Encelewski testified generally of the harm that occurs when
children are left with methamphetamine users including putting them in depression and “in high
danger risk.”
Lieutenant Eads meets the definition of a qualified expert witness due to his substantial
training in his area of drug enforcement. Eads testified drug dealing is dangerous and often results
in physical violence, sexual violence, and death. Taken together, Encelewski and Eads established
the danger to Bella in being exposed to a chronic methamphetamine abuser who associates with
known drug dealers. Accordingly, based on the qualified expert witnesses’ testimonies, the State
proved beyond a reasonable doubt that Stacy’s continued custody of Bella would expose Bella to
the dangers associated with drug abuse, drug dealers, and a violent and turbulent lifestyle that is
likely to result in serious emotional or physical damage to Bella. Thus, this assigned error fails.
BEST INTERESTS
Stacy’s final assignment of error is that the State failed to meet its burden of proving
termination of parental rights was in Bella’s best interests because no direct evidence was
presented regarding best interests.
In In re Interest of Becka P. et al., 27 Neb. Ct. App. 489, 508-09, 933 N.W.2d 873, 887-88
(2019), this court recently stated:
In addition to proving a statutory ground, the State must show that termination of parental
rights is in the best interests of the child. See In re Interest of Jahon S., 291 Neb. 97, 864
N.W.2d 228 (2015). A parent’s right to raise his or her child is constitutionally protected;
so before a court may terminate parental rights, the State must show that the parent is unfit.
Id. There is a rebuttable presumption that the best interests of the child are served by having
a relationship with his or her parent. Based on the idea that fit parents act in the best
interests of their children, this presumption is overcome only when the State has proved
that the parent is unfit. Id. In the context of the constitutionally protected relationship
between a parent and a child, parental unfitness means a personal deficiency or incapacity
which has prevented, or will probably prevent, performance of a reasonable parental
obligation in child rearing and which caused, or probably will result in, detriment to the
child’s well-being. Id.
The best interests analysis and the parental fitness analysis are fact-intensive
inquiries. And while both are separate inquiries, each examines essentially the same
underlying facts. Id. In proceedings to terminate parental rights, 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. In re Interest of
Joseph S. et al., 291 Neb. 953, 870 N.W.2d 141 (2015).
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The term “unfitness” is not expressly used in § 43-292, but the concept is generally
encompassed by the fault and neglect subsections of the statute, and is also through a determination
of the child’s best interests. In re Interest of Nicole M., 287 Neb. 685, 844 N.W.2d 65 (2014).
Parental unfitness means a personal deficiency or incapacity which has prevented, or will probably
prevent performance of a reasonable parental obligation in child rearing and which caused, or
probably will result in, detriment to a child’s well-being. Id.
In the present case, there has been no improvement despite the State providing services to
Stacy. Hair follicle testing was performed on Stacy in May 2017 and showed positive results for
amphetamines and methamphetamines, and Bella also underwent a hair follicle test in May 2017,
which showed positive for methamphetamines and was the highest level for a child the DHHS
office had seen. Stacy received services from May 2017 to January 2018, which included
supervised parenting time, drug testing, and weekly counseling with a substance abuse counselor.
Stacy also completed a psychological and parenting evaluation, a substance use evaluation, and a
healthy communications class. The psychological and parenting evaluation noted Stacy was
diagnosed with a methamphetamine use disorder, in early remission, and an unspecified
adjustment disorder. The substance use evaluation was used in creating a case plan for Stacy,
which included participation in weekly counseling and 12-step meetings, sobriety monitoring, and
involvement with NA. Stacy was active with the Celebrate Recovery group and a 12-step program.
Stacy was ordered to be tested for drug use via sweat patch and urinalysis, which results showed
she tested negative for all illicit substances. Teeple testified Stacy was very good at doing what
she needed to do, was always willing to meet with Teeple, and made use of the supervised
parenting time.
However, as we stated in the previous section, Stacy’s actions, admissions, and text
messages contradict any assessment that she is making progress. Furthermore, notwithstanding the
State providing services to Stacy, her only request for assistance from DHHS was help in locating
the birth certificate of another child. Taken together with the evidence of Bella’s exposure to
methamphetamine because of her association with Stacy, Stacy’s attempts to conceal her continued
drug abuse and association with drug traffickers, and the experts’ testimony governing the
continued threat of harm to Bella due to Stacy’s chronic drug use and dangerous associations, the
record demonstrates clear and convincing evidence that Stacy is an unfit parent and terminating
her parental rights is in Bella’s best interests. Therefore, the court did not err in finding termination
was in the best interests of Bella and this assigned error fails.
CONCLUSION
For the reasons stated above, we affirm the court’s order terminating Stacy’s parental rights
to Bella.
AFFIRMED.
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