In re Interest of Leyton C. & Landyn C. , 28 Neb. Ct. App. 95 ( 2020 )

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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
IN RE INTEREST OF LEYTON C. & LANDYN C.
Cite as 28 Neb. App. 95In re Interest of Leyton C. and Landyn C.,
children under 18 years of age.
State of Nebraska, appellee,
v. Madison C., appellant.
___ N.W.2d ___
Filed March 3, 2020. No. A-19-423.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juve-
nile cases de novo on the record and reaches a conclusion independently
of the juvenile court’s findings.
2. Parental Rights. The foremost purpose and objective of the Nebraska
Juvenile Code is the protection of a juvenile’s best interests, with pres-
ervation of the juvenile’s familial relationship with his or her parents
where the continuation of such parental relationship is proper under
the law.
3. Minors: Evidence. To determine the child’s best interests, the court
must look at the evidence and assess the weight to be given that
evidence.
4. Parental Rights. Children cannot, and should not, be allowed to linger
in foster care while waiting to see if the parent will mature.
5. Constitutional Law: Parental Rights. Whether termination of parental
rights is in a child’s best interests is not simply a determination that
one environment or set of circumstances is superior to another, but it
is instead subject to the overriding recognition that the relationship
between parent and child is constitutionally protected.
6. Parental Rights: Parent and Child. In determining whether it is in a
child’s best interests for the court 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 the parent and child.
7. Parental Rights. Where a parent is unable or unwilling to rehabilitate
himself or herself within a reasonable time, the best interests of the child
require termination of the parental rights.
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Nebraska Court of Appeals Advance Sheets
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IN RE INTEREST OF LEYTON C. & LANDYN C.
Cite as 28 Neb. App. 958. Parental Rights: Evidence. When determining whether parental rights
should be terminated, it is proper to consider relevant evidence of facts
that have transpired since the date of the filing of a termination petition,
including parental efforts and behavior.
Appeal from the Separate Juvenile Court of Lancaster
County: Linda S. Porter, Judge. Reversed and remanded for
further proceedings.
Melanie A. Kirk, of Johnson, Flodman, Guenzel & Widger,
for appellant.
Patrick F. Condon, Lancaster County Attorney, Maureen
Lamski, and Thomas Gage, Senior Certified Law Student, for
appellee.
Joy Shiffermiller, of Shiffermiller Law Office, P.C., L.L.O.,
guardian ad litem.
Pirtle, Riedmann, and Welch, Judges.
Riedmann, Judge.
INTRODUCTION
Madison C. appeals the order of the separate juvenile court
of Lancaster County which terminated her parental rights to
her minor children, Leyton C. and Landyn C. Upon our de
novo review of the specific facts contained within the record,
we find that the State failed to prove by clear and convinc-
ing evidence that terminating Madison’s parental rights was
in the best interests of the children. We therefore reverse the
decision of the juvenile court and remand the cause for fur-
ther proceedings.
BACKGROUND
Madison, who was born in 1997, is the mother of Leyton,
born in August 2015, and Landyn, born in February 2017.
The father of the children has relinquished his parental rights;
therefore, we do not address him in this appeal.
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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
IN RE INTEREST OF LEYTON C. & LANDYN C.
Cite as 28 Neb. App. 95On July 19, 2016, the State filed a petition alleging
that Leyton was a juvenile as defined by Neb. Rev. Stat.
§ 43-247(3)(a) (Supp. 2015). The petition specifically alleged
that Leyton lacked proper parental care by reason of the
fault or habits of Madison in that between November 4 and
24, 2015, Madison left him in the care of her mother with-
out making proper provisions for his care; on or about June
8, 2016, Madison tested positive for methamphetamine; and
Madison had failed to consistently provide a safe and stable
home for Leyton. Upon Madison’s admission to the allegations
in the petition, the juvenile court adjudicated Leyton under
§ 43-247(3)(a). Leyton was allowed to remain at his maternal
grandparents’ home where he and Madison had been living.
In a subsequent order, the juvenile court, among other
things, prohibited contact between Leyton and Madison’s
then-boyfriend, Jaden R., due to Jaden’s criminal history. In
March 2017, the court approved a placement change, remov-
ing Leyton from his grandparents’ home and placing him with
Madison’s sister, after Madison and her mother gave Jaden a
ride to his sister’s home while Leyton was in the car. After
Landyn was born, he was adjudicated under § 43-247(3)(a)
(Reissue 2016) and was placed in a nonrelative foster home.
In July, Leyton was moved to the foster home providing care
for Landyn.
Madison moved into her own apartment in the fall of 2017,
and the children were placed back with her in January 2018.
They were removed again, however, in July, and placed back
in their previous foster home. On October 11, the State filed a
motion to terminate Madison’s parental rights to Leyton and
Landyn. The motion alleged that termination was appropri-
ate under Neb. Rev. Stat. § 43-292(2), (4), and (6) (Reissue
2016) for both children and under § 43-292(7) with respect to
Leyton. The motion also alleged that termination of Madison’s
parental rights was in the best interests of the children.
A hearing on the termination motion was held on December
14, 2018; January 3, 9, 25, and 29, 2019; and February 5, 8,
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IN RE INTEREST OF LEYTON C. & LANDYN C.
Cite as 28 Neb. App. 95and 26, 2019. The evidence revealed that Madison was 18
years old and living with her parents when Leyton was born.
When Leyton was approximately 1 month old, Madison began
a relationship with Jaden. Jaden quickly became controlling,
preventing her from contacting her family and encouraging
her to stay with him. By January 2016, the emotional and
mental abuse escalated, and Jaden began physically abusing
Madison. By this time, he had taken her cell phone, and she
had to “be good” in order to earn the chance to see Leyton and
her family. Madison testified that around this same time, Jaden
began forcing her to use methamphetamine by either making
her smoke it or putting it inside her vagina. Madison had not
previously used methamphetamine and did not use any drugs
while she was pregnant with Leyton.
Over the course of the relationship, Jaden would punch
and kick Madison and use “extension cords, brass knuckles,
mace, flashlights, [and] metatarsal boots” to abuse her. He
also stapled her with a staple gun and kicked her in the stom-
ach while she was pregnant with Landyn. On one occasion, he
sprayed a fire extinguisher in a bedroom and shut Madison in
the room. When she began to pass out, he pulled her out of
the room until she was able to catch her breath and asked her
questions about who she had talked to and if she had hidden
“any phones around the house.” If he thought she was lying,
he pushed her back into the room and repeated the events
again. This incident occurred while Madison was pregnant
with Landyn. On another occasion while she was pregnant,
Jaden hit Madison in the face, laid her on the floor on her
stomach, and “put a crowbar around [her] neck and pulled
[her] up backwards.”
Two additional incidents occurred in April and May 2017.
During one incident, Jaden whipped Madison with an exten-
sion cord, sprayed her in the face with mace, and put her
in a scalding hot bath. On the other occasion, he physically
assaulted her, burned her knees with a torch, and threatened
her with a knife, putting it to her neck and threatening to kill
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IN RE INTEREST OF LEYTON C. & LANDYN C.
Cite as 28 Neb. App. 95her. Photographs of Madison’s injuries from this incident were
received into evidence at the termination hearing. As a result
of these two assaults, Jaden was arrested and ultimately went
to prison. At the time he was arrested in May, Madison ended
the relationship, and she sought and obtained a protection order
against him.
Madison explained that she never told anyone about the
abuse because she was afraid of the repercussions from Jaden.
She attempted to escape at times, but either she was unable to
do so or, if she was, Jaden would come back for her. There
were times during the relationship that she could not get away
because she was locked in a closet. She explained that begin-
ning in 2016 through the end of the relationship, there were
periods of time where she was prohibited from even seeing
daylight. Madison acknowledged that during her relationship
with Jaden, she did not participate in the services provided
by the Nebraska Department of Health and Human Services
(DHHS), explaining that Jaden was still around so it was dif-
ficult for her to do so.
Beginning in the fall of 2017, however, after Jaden was
incarcerated and the relationship was over, Madison began
engaging in services and focusing on making progress in
the case. She had attended outpatient drug and alcohol treat-
ment with a licensed independent mental health practitioner,
Emily Goodman, on just two occasions in March 2017. But
Goodman recommended an updated evaluation, which resulted
in an updated diagnosis of major depressive disorder and a
recommendation of individual therapy rather than substance
use treatment.
Madison began attending individual therapy with Goodman
regularly in July 2017. Goodman testified at the termination
hearing that as a result of the domestic violence Madison
endured, she had one of the most severe cases of post-traumatic
stress disorder (PTSD) that Goodman had seen. Madison
suffered from daily nightmares, struggling to even sleep at
night, and flashbacks that were some of the most detailed
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IN RE INTEREST OF LEYTON C. & LANDYN C.
Cite as 28 Neb. App. 95and physiologically affective that Goodman had encountered.
Goodman explained that PTSD is not something that can be
“cured,” and she said it will be something that will challenge
Madison for the rest of her life. In Goodman’s experience
working with individuals with PTSD, there are times where
things are going very well and times that are more difficult,
and there are things that can trigger more struggles and flash-
backs. With Madison specifically, because her trauma disorder
was so greatly ingrained into her environment, Goodman would
highly expect struggles and flashbacks. Madison’s flashbacks
and symptoms associated with her trauma disorder increased
and decreased over the year that she worked with Goodman.
Despite Madison’s trauma, as of March 2018, Goodman
believed that she was able to adequately and appropriately par-
ent her children. Madison’s treatment with Goodman ended in
March when Goodman left on maternity leave. DHHS was to
locate a new therapist, but our record does not indicate that one
was immediately found.
As a result of Madison’s progress in attending therapy,
having visits with the children several times per week, and
testing negative for drugs, the children were placed back with
her on January 2, 2018. Thereafter, she began to feel over-
whelmed and eventually relapsed with methamphetamine in
March and stopped engaging in services. She also became
involved in a relationship with a man with a criminal his-
tory and with whom she used drugs. The children were
removed from Madison’s care on July 2 and placed back
in their previous foster home. They underwent hair follicle
testing. Leyton tested positive for exposure to methamphet-
amine and marijuana, and Landyn tested positive for exposure
to marijuana.
Shortly after the children were removed from Madison’s
care, she began attending individual therapy with Sarah Worley.
An updated substance abuse evaluation was completed at that
time. We note that prior to this date, Madison had not received
any substantial substance abuse treatment because Goodman
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IN RE INTEREST OF LEYTON C. & LANDYN C.
Cite as 28 Neb. App. 95had recommended individual therapy for her mental health
instead. As her mental health progressed, her drug and alcohol
screenings were all negative, so she was no longer appropri-
ate for substance abuse treatment according to Goodman. The
subsequent evaluation revealed that Madison was now “on
the borderline” between needing residential treatment and
intensive outpatient treatment. She initially elected to do resi-
dential treatment, and when she entered treatment in August
2018, she tested positive for methamphetamine—admitting
that she had used drugs prior to entering. She was at treatment
for only a few days before leaving against medical advice, in
part because of another patient in the program whom she had
known during her relationship with Jaden. Within a week of
leaving the residential program, however, she began an inten-
sive outpatient treatment program upon the recommendation
of Worley.
Madison tested positive for methamphetamine in early
September 2018, but thereafter, she completed the intensive
outpatient program as well as a “step down” to the outpatient
program. Madison tested positive in October for clonazepam,
a drug for which she does not have a prescription, and for
morphine in December. Madison denied using any drugs at any
time after September and blamed the positive test in December
on having eaten poppyseeds. According to Worley, the level of
morphine in Madison’s system was “[v]ery low” and consist­
ent with her report of eating poppyseeds.
At the time of the termination hearing in February 2019,
Madison was still attending weekly individual therapy with
Worley, as well as attending a weekly group session and a
domestic violence support group. She continued to have two
visits per week with the children and to test clean for drugs.
She obtained employment in October 2018 and was working 2
days per week until January 2019, when her employer cut her
hours and told her she was no longer needed. She had ended
her unhealthy relationship in September 2018, thereafter tell-
ing Worley that “they had broken up because of his drug use
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IN RE INTEREST OF LEYTON C. & LANDYN C.
Cite as 28 Neb. App. 95and that he wasn’t a good influence in her life.” Several group
sessions in October and November were facilitated by Worley,
who testified that Madison had been very forthcoming about
her struggles with relapse prevention, triggers, and staying
away from people who were not good for her. Worley testified
that over the previous 3 months, Madison had made “excel-
lent” progress, that she had continuously attended therapy
without missing any sessions, and that she had participated
fully and had been honest about what happened to her and her
responsibility. Worley’s prognosis for Madison was “good.”
She testified that when she observed Madison with her chil-
dren in the summer of 2017, Madison appeared to have a
very secure bond with them, and that based on her work with
Madison, Worley believed Madison was capable of parenting
her children.
In general, the evidence revealed that the children are
healthy and doing well. Leyton originally had issues with
speech development, but an evaluation concluded that he did
not qualify for services. In November 2018, he began seeing a
therapist due to nightmares and night terrors, as well as being
anxious and sad. Landyn was born with methamphetamine in
his system; thus, he automatically qualified for services and
meets with an early childhood education teacher once per
month regarding his development.
The visitation supervisor testified that the children were
well behaved and always very happy to see Madison. Leyton
had difficulty leaving Madison at the end of visits and would
often cry and demand that the visitation supervisor take him
back to Madison. There were never safety concerns during
visits, and Madison provided food and toys for the children
and was very attentive—playing with them, interacting with
them, and making sure their needs were being met. The visita-
tion supervisor said that by the time she stopped working with
Madison in December 2018, Madison had reached all of her
goals except for obtaining housing (Madison was living with
her parents).
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IN RE INTEREST OF LEYTON C. & LANDYN C.
Cite as 28 Neb. App. 95Madison continued to live with her parents at the time of
the termination hearing and testified that her relationship with
them was “[g]ood,” despite having issues in the past due to
her drug use and her dishonesty about it. Worley testified that
Madison’s parents and sister are her support system to assist her
in continuing to make progress. According to the caseworker, it
is acceptable for parents to live with family when they get their
children back. Despite this, the caseworker opined that termi-
nating Madison’s parental rights to Leyton and Landyn was in
the children’s best interests because Madison has been unable
to demonstrate a sustained change necessary for her to pro-
vide a stable and permanent home for the children. Similarly,
Leyton’s therapist testified that Leyton needs permanency and
that she encourages permanency as quickly as possible for
children up to the age of 5 because the longer a child at this
critical developmental age stays in foster care, the greater the
risk for emotional and social damage.
Susan Michalski also testified at the termination hearing.
Michalski is a registered nurse who has worked with the issue
of domestic violence for 37 years and was the training and edu-
cation director for the domestic violence coordinating council
for 12 years. She explained that domestic violence, or intimate
partner violence, is an intimate relationship where there is a
definite power imbalance, and the key components are trau-
matic bonding through that imbalance and methodic isolation.
Domestic violence occurs on an emotional, psychological,
physical, sexual, and financial level and is very insidious.
The trauma that occurs early in the relationship instills fear
and anxiety in the victim as to what will happen to the victim
when they try to get out of the relationship or once they have
left the relationship. Michalski described victims of domestic
violence as “living in a fog,” and she said that sometimes they
deny or minimize what is occurring or disbelieve that someone
could or would do these kinds of things to them. Power and
control are the core of domestic violence. Michalski explained
that even if a victim is able to leave an abusive relationship, it
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IN RE INTEREST OF LEYTON C. & LANDYN C.
Cite as 28 Neb. App. 95is common for the victim to go back to the abuser. Oftentimes
the victim returns because of fear, but the choice to return
could be financially driven, child driven, due to limited other
support systems, or for other reasons.
According to Michalski, recovery from domestic violence
takes time and the trauma from it can seep into every area
of the victim’s life. Substance abuse is often seen along
with domestic violence because the violence causes significant
“internal trauma,” and drugs are used as a coping mechanism.
Drugs are also a tactic abusers often use, by either getting
the victim addicted to drugs or using drugs against the victim
in some other way. If there are coexisting issues of domestic
violence and substance abuse, it is expected that the recov-
ery time would be longer. Recovery from domestic violence
can be manifested in different ways, including the ability to
function on a daily basis, securing employment, managing
any emotional or psychological symptoms from the violence,
or managing substance abuse; it can also mean having a bet-
ter sense of self, having more information, and having better
boundaries. Michalski related that age plays a role in overcom-
ing trauma and that she had worked with very young people
who have matured and grown over time. She opined that
victims of domestic violence are able to successfully parent
their children.
To this end, at the termination hearing, Madison testified
that she used to take prescription anxiety medication but no
longer needs it and that she had not recently had any flash-
backs. She explained that learning to trust people and be hon-
est has been difficult for her, but she believed that she was
making progress. She also said that she has “found [her] voice”
and learned how to ask for help. At the time of the final hear-
ing, Madison was 21 years old.
After the conclusion of the termination hearing, the juvenile
court entered a written order. Therein, without mention of the
effects that Madison’s PTSD may have had on her behavior,
the court found that the allegations of the motion to terminate
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IN RE INTEREST OF LEYTON C. & LANDYN C.
Cite as 28 Neb. App. 95Madison’s parental rights were true by clear and convincing
evidence and that termination was in the best interests of the
children. The court therefore terminated Madison’s parental
rights to Leyton and Landyn. Madison appeals.
ASSIGNMENTS OF ERROR
Madison assigns, restated, that the juvenile court erred in
finding that (1) statutory grounds exist to terminate her paren-
tal rights and (2) termination of her parental rights was in the
children’s best interests.
STANDARD OF REVIEW
[1] 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 Isabel P. et al., 293 Neb. 62,
875 N.W.2d 848 (2016).
ANALYSIS
The juvenile court found that the State established grounds
for termination under § 43-292(2), (4), and (6) for both chil-
dren and subsection (7) with respect to Leyton and that ter-
mination was in the best interests of the children. Madison
asserts that the court erred when it determined that the State
had presented sufficient evidence to terminate her parental
rights. We agree. We first address whether the juvenile court
erred in determining that termination of Madison’s paren-
tal rights was in the children’s best interests, because our
resolution of this issue is dispositive of the appeal. See In re
Interest of Seth K. & Dinah K., 22 Neb. App. 349, 853 N.W.2d
217 (2014).
[2,3] Section 43-292 requires that parental rights can be
terminated only when the court finds that termination is in the
child’s best interests. The foremost purpose and objective of
the Nebraska Juvenile Code is the protection of a juvenile’s
best interests, with preservation of the juvenile’s familial rela-
tionship with his or her parents where the continuation of such
parental relationship is proper under the law. In re Interest of
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IN RE INTEREST OF LEYTON C. & LANDYN C.
Cite as 28 Neb. App. 95Rebecka P., 266 Neb. 869, 669 N.W.2d 658 (2003). The law
is clear that in a termination of parental rights case, the State
must prove by clear and convincing evidence that termination
is in the best interests of the child. Id. To determine the child’s
best interests, the court must look at the evidence and assess
the weight to be given that evidence. Id.[4] The appellate courts of Nebraska have repeatedly cau-
tioned that children cannot, and should not, be allowed to
linger in foster care while waiting to see if the parent will
mature. See, In re Interest of Destiny A. et al., 274 Neb. 713,
742 N.W.2d 758 (2007); In re Interest of DeWayne G. &
Devon G., 263 Neb. 43, 638 N.W.2d 510 (2002); In re Interest
of Chloe C., 20 Neb. App. 787, 835 N.W.2d 758 (2013); In
re Interest of Kenna S., 17 Neb. App. 544, 766 N.W.2d 424(2009). Similarly, where a parent is unable or unwilling to
rehabilitate himself or herself within a reasonable time, the
best interests of the child require termination of the parental
rights. In re Interest of Ryder J., 283 Neb. 318, 809 N.W.2d
255 (2012).
[5,6] However, whether termination of parental rights is in
a child’s best interests is not simply a determination that one
environment or set of circumstances is superior to another, but
it is instead subject to the overriding recognition that the rela-
tionship between parent and child is constitutionally protected.
In re Interest of Xavier H., 274 Neb. 331, 740 N.W.2d 13(2007). There is a rebuttable presumption that the best interests
of a child are served by reuniting the child with his or her par-
ent. Id. In determining whether it is in a child’s best interests
for the court to terminate parental rights, it is important to
remember that the law does not require perfection of a parent.
See In re Interest of Seth K. & Dinah K., supra. Instead, courts
should look for the parent’s continued improvement in parent-
ing skills and a beneficial relationship between the parent and
the child. Id.
Based on our de novo review of the record, we find that
Madison has demonstrated a continued improvement in her
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Cite as 28 Neb. App. 95parenting skills and has established a beneficial relationship
with her children. We consider Madison’s initial lack of prog-
ress in light of her age and the abusive relationship she was
in at the time. According to the evidence presented at the
termination hearing, she began a relationship with Jaden in
September 2015, when she was 18 years old and Leyton was
1 month old. Jaden quickly became controlling and, eventu-
ally, abusive, prohibiting her from even seeing the light of day
at times. Michalski explained that perpetrators of domestic
violence isolate their victims and that the abuse occurs on an
emotional, psychological, physical, sexual, and financial level
and is very insidious. The trauma that occurs early on in such a
relationship instills fear and anxiety in the victim of what will
happen if the victim tries to end the relationship or what will
happen once the victim has left the relationship.
According to Michalski, abusers often get their victims
addicted to drugs or use drugs against the victim in some way,
and she said substance abuse is often seen as a coping mecha-
nism for the internal trauma experienced by victims of domes-
tic violence. So, while it would have been in the children’s
best interests for Madison to end her relationship with Jaden
and engage in services at the outset of this case, her inability
or unwillingness to do so must be viewed in consideration
of her young age and the abusive relationship in which she
was transfixed.
Madison was involved with Jaden until May 2017, when
he was sent to prison for assaulting her. At that time, she was
struggling to deal with the aftermath of the abuse. She admit-
ted that she had not participated in the services designed to
help her up until that time, explaining that Jaden was still
around so it was difficult to do so.
Around the fall of 2017, however, Madison began to engage
in services and focus on her case plan goals. At that time, her
therapist, Goodman, decided that Madison needed individual
therapy to address her mental health issues related to her
PTSD rather than substance abuse treatment. Madison made
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Cite as 28 Neb. App. 95such progress that the children were returned to her care in
January 2018. She quickly became overwhelmed with living
in her own apartment, caring for the children on her own, and
maintaining her sobriety from drugs, and she relapsed. This
coincided with the time period when Goodman was leaving
on maternity leave and a new therapist was to be assigned.
The record is not clear on whether Madison failed to engage
with a new therapist or if one was not immediately provided.
Regardless, according to Worley, it is not unusual for some-
one suffering from PTSD or domestic violence trauma and
substance abuse to relapse during recovery. Goodman testi-
fied similarly that because Madison’s trauma disorder was so
greatly ingrained into her environment, struggles and flash-
backs were expected. And significantly, at that time, Madison
had not received any substance abuse treatment from which
she could learn coping skills without turning back to drugs or
unhealthy relationships.
Since the children were removed from Madison’s care
in July 2018, Madison has completed intensive outpatient
treatment and a “step down” to outpatient treatment. At the
time of the last termination hearing, she continued to attend
weekly therapy with Worley, group sessions, and a domestic
violence support group. Worley testified in January 2019 that
Madison had made excellent progress during the previous 3
months. She participated in several group sessions facilitated
by Worley in October and November 2018 and was very forth-
coming about her struggles. She also consistently attended
therapy, without missing any sessions, and participated fully
and honestly. Worley’s prognosis for Madison was “good,”
and based on her work with Madison and her observations of
Madison with her children, Worley believed, as of the time of
the termination hearing, that Madison was capable of parent-
ing her children.
While we acknowledge that there is evidence to the con-
trary, the totality of the evidence indicates that after Madison
ended her relationship with Jaden, she made overall progress.
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IN RE INTEREST OF LEYTON C. & LANDYN C.
Cite as 28 Neb. App. 95This is not to suggest that Madison is a perfect parent, and we
recognize she continued to make some questionable choices
throughout the case. However, most of these choices occurred
before she engaged in mental health and substance abuse treat-
ment. She has since engaged in individual therapy, and her
drug test results have been negative for all substances—mak-
ing such progress that the children were placed back with
her. She relapsed, but since that time, she has completed two
substance abuse programs, participated in therapy, attended a
domestic violence support group, secured employment, and
ended an unhealthy relationship. In addition, she has begun
learning about self-improvement, such as learning to be more
open and vulnerable, knowing her worth and what her children
deserve, learning how to ask for help, and learning to trust and
be honest. Accordingly, the evidence establishes Madison’s
continued improvement in parenting skills, and we find her
relapse understandable in light of her circumstances.
[7] We recognize that case law provides that “‘where a
parent is unable or unwilling to rehabilitate himself or her-
self within a reasonable time, the best interests of the child
require termination of the parental rights.’” In re Interest of
Ryder J., 283 Neb. 318, 328, 809 N.W.2d 255, 263 (2012).
And our Supreme Court has found on numerous occasions
that a parent’s last minute efforts are “too little, too late.” See,
e.g., In re Interest of S.C., S.J., and B.C., 232 Neb. 80, 91,
439 N.W.2d 500, 507 (1989). Accord In re Interest of Z.R.,
226 Neb. 770, 415 N.W.2d 128 (1987). However, we must
evaluate a parent’s progress in the context of the situation in
which the parent exists to determine whether he or she has
been unable or unwilling to rehabilitate within a “reasonable
time.” See, e.g., In re Interest of Chloe C., 20 Neb. App. 787,
795, 835 N.W.2d 758, 764 (2013). In doing so, we find that
the termination of Madison’s parental rights to her children
came too quickly.
Madison received mental health treatment to address her
severe PTSD from March 2017 until March 2018. When the
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stance abuse treatment, and Michalski explained that it is
not uncommon for a victim of domestic violence to revert to
known coping mechanisms in stressful situations. In Madison’s
case, these were substance abuse and poor choices in rela-
tionships. However, after the children were removed from
Madison’s care, she began substance abuse treatment in earnest
in September 2018. She admits to a lapse in early September,
but denies any further drug use. Even if we were to discredit
this testimony and find that she had taken a nonprescribed
medication once in October and ingested an illegal substance
once in December, she was still in the early stages of treat-
ment. The termination petition was filed in October, and trial
began in December.
Given Madison’s young age and trauma experience, we
cannot find that the timeline of this case provides her with
a “reasonable time” in which to rehabilitate herself. This is
particularly true when Goodman prioritized the type of treat-
ment offered to her, beginning with mental health therapy.
Although substance abuse services were offered to her at
the beginning of the case, that was at a time when she
was involved in a relationship in which nearly her every
move was controlled by her abusive partner. Goodman deter-
mined Madison first needed to address that relationship and
her mental health before engaging in substance abuse treat-
ment. Therefore, she received no substantial substance abuse
treatment until just a few months prior to the filing of the
termination petition.
In In re Interest of Chloe C., supra, we reversed the termi-
nation of a mother’s parental rights based upon her continued
progress. We recognized that although she lacked progress at
the beginning of her case, she was in a “‘cycle of violence’”
that hampered her ability to do so. Id. at 796, 835 N.W.2d at
764. Once she engaged in therapy, she was able to break the
cycle and made efforts toward meeting her case plan goals.
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Cite as 28 Neb. App. 95[8] Similarly, herein, the evidence at the termination hear-
ing supports a finding that Madison’s inability to progress at
the beginning of her case was largely due to being a victim of
domestic violence. Once she began mental health treatment,
she progressed to the point at which DHHS recommended
return of her children to her. And although she relapsed there-
after, she began substance abuse treatment in September 2018,
prior to the filing of the termination petition. And her progress
continued throughout the termination hearing, which ended in
February 2019. It is proper to consider relevant evidence of
facts that have transpired since the date of the filing of a termi-
nation petition, including parental efforts and behavior. See In
re Interest of Aaron D., 269 Neb. 249, 691 N.W.2d 164 (2005).
Again, we are reminded that we do not require perfection of a
parent when deciding whether termination of parental rights is
appropriate. See In re Interest of Justin H. et al., 18 Neb. App.
718, 791 N.W.2d 765 (2010) (reversing termination of parental
rights based on mother’s progress despite need for additional
improvement); In re Interest of Eden K. & Allison L., 14 Neb.
App. 867, 882, 717 N.W.2d 507, 518 (2006) (reversing termi-
nation of mother’s parental rights due to having made positive
strides despite prior “terrible decisions,” use of methamphet-
amine, and incarceration). Having found that Madison has
made continued progress, we turn to the relationship between
her and her children.
The evidence reveals that Madison has a beneficial rela-
tionship with her children. It is undisputed that there is a
strong bond between Madison and the children and that
visits between them go very well. Prior to the filing of the
termination petition, Madison had visits with the children
three times per week; however, when the motion was filed,
DHHS decreased the visits to twice a week, despite the fact
that Madison was in compliance with all of the recommended
services. The caseworker testified that it was her supervisor’s
policy to reduce visitation when a termination petition is
filed. Madison consistently attended visits, particularly during
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Cite as 28 Neb. App. 95the latter part of the case. The children were always excited
to see her and sad to leave her at the end of the visits. She
brought food and toys for them; attended to their needs; was
very attentive, playing and interacting with them; was affec-
tionate with them; comforted them; and told them that she
loves them.
We appreciate that Madison still has work to do before
achieving reunification with Leyton and Landyn. However,
this fact does not prohibit this court from finding that the State
failed to prove that termination of Madison’s parental rights
was in the best interests of the children. See, e.g., In re Interest
of Rebecka P., 266 Neb. 869, 669 N.W.2d 658 (2003); In re
Interest of Seth K. & Dinah K., 22 Neb. App. 349, 853 N.W.2d
217 (2014); In re Interest of Athina M., 21 Neb. App. 624, 842
N.W.2d 159 (2014); In re Interest of Justin H. et al., supra.
In its order, the juvenile court did not discuss how Madison’s
PTSD or her young age may have affected her decisionmaking
ability, despite Michalski’s testimony on the effects of PTSD.
While we are aware that children should not be suspended in
foster care awaiting uncertain parental maturity, we find that
given Madison’s progress and the testimony of both Michalski
and Worley, we are not convinced that she cannot put herself
in a position to be reunified with her children within a reason-
able amount of time with continued therapy and maturity. In
the meantime, the children are in a loving foster family envi-
ronment and the foster parents have a close and supportive
relationship with Madison.
Upon our de novo review of the record, we conclude that the
State has failed to prove by clear and convincing evidence that
Madison is unable or unwilling to rehabilitate herself within a
reasonable time and that the children’s best interests are served
by terminating her parental rights.
CONCLUSION
We find that the juvenile court erred when it determined
that the State proved by clear and convincing evidence that
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Cite as 28 Neb. App. 95terminating Madison’s parental rights to Leyton and Landyn
was in the children’s best interests. Accordingly, the judgment
of the juvenile court is reversed and the cause is remanded for
further proceedings.
Reversed and remanded for
further proceedings.
Pirtle, Judge, dissenting.
I respectfully dissent from the conclusion of the majority
that the State has failed to demonstrate by clear and con-
vincing evidence that the termination of Madison’s parental
rights is in the best interests of Leyton and Landyn. Rather,
I would affirm the judgment of the juvenile court terminating
Madison’s parental rights.
Juvenile cases are reviewed de novo on the record, and an
appellate court is required to reach a conclusion independent
of the juvenile court’s findings. In re Interest of Jordana H. et
al., 22 Neb. App. 19, 846 N.W.2d 686 (2014). However, when
the evidence is in conflict, an appellate court may consider
and give weight to the fact that the trial court observed the
witnesses and accepted one version of the facts over the other.
Id. In this case, the juvenile court observed witnesses over 8
days of trial on the State’s motion to terminate parental rights.
Among those testifying was Madison, whom the juvenile court
specifically recognized has struggled with honesty throughout
the duration of the case. Accordingly, where the evidence is
in conflict, I would not disregard the juvenile court’s observa-
tions across this extensive trial.
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 termi-
nation is in the child’s best interests. In re Interest of Audrey
T., 26 Neb. App. 822, 924 N.W.2d 72 (2019). The majority
opinion does not reach the statutory grounds for termina-
tion, because it finds the best interests analysis dispositive of
Madison’s appeal. I would find that the State met its burden of
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Cite as 28 Neb. App. 95showing both that a statutory basis exists under § 43-292 and
that termination is in the children’s best interests.
STATUTORY GROUNDS FOR
TERMINATION
I agree with the juvenile court that at least one of the statu-
tory bases for termination alleged by the State was met. Under
§ 43-292(2), termination is appropriate when “[t]he parents
have substantially and continuously or repeatedly neglected
and refused to give the juvenile or a sibling of the juvenile
necessary parental care and protection.”
From the time the State first filed a juvenile petition in
July 2016, up to the final order of the juvenile court terminat-
ing Madison’s parental rights in April 2019, there have been
ongoing issues that cause concern over the ability of Madison
to raise these children. The July 2016 petition was filed, in
part, because Madison left Leyton in the care of her mother
without making proper provision for his care. There were
additional concerns regarding Madison’s use of methamphet-
amine. After the birth of Landyn, a supplemental petition was
filed in March 2017, indicating that Landyn tested positive for
amphetamines at birth and that Madison tested positive for
opiates, oxycodone, and methamphetamine earlier that month.
The record reflects that these concerns have not subsided over
the duration of this case.
Despite the opportunity to correct the circumstances that
led to the adjudication of her children, Madison has failed to
show that she is able to provide them the necessary paren-
tal care and protection. A dispositional plan was entered on
January 26, 2017, ordering Madison to participate in outpa-
tient treatment for substance abuse, to abstain from the use
of controlled substances and submit to random drug testing,
to prevent any contact between Leyton and her boyfriend at
the time, Jaden, and to pay $50 in monthly child support.
Other dispositional hearings set similar goals for Madison,
and included additional goals of participating in counsel-
ing to address healthy relationships, committing to provide
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with family support services. However, as the juvenile court
noted in its order, these goals have largely gone unmet
throughout the duration of this case.
Madison admitted to relapsing into use of methamphet-
amine in March 2018. At the time, Madison had been liv-
ing on her own with the two children, but quickly became
overwhelmed, leading to her relapse. Additional drug tests in
August, September, October, and December 2018 came back
positive for methamphetamine and other controlled substances
for which Madison did not have a prescription. Madison admit-
ted she was “unmotivated” to find full-time employment, and
she was only employed between October 2018 and January
2019, working 2 days per week during that time.
Madison also has not shown that she is able to maintain the
level of support and care necessary for her children. While
there have been periods of consistency with her visitation, and
the children appear to have a close bond with Madison, my
concerns persist. Madison was forced to abandon the apart-
ment she briefly maintained on her own, due to her failure to
pay rent. Madison also became overwhelmed at times after the
children had been temporarily returned to her care, and she
relied on the foster parents for respite care for the children. On
more than one occasion, Madison failed to pick up the children
at the agreed-upon time and was difficult to reach by the fos-
ter parents.
What is particularly concerning is Madison’s inability to
separate herself from the type of unhealthy relationships that
precipitated many of her problems. I do not downplay the level
of abuse in this case—nor the amount of control an abuser can
exert over an innocent victim—but Madison has continued to
surround herself with the wrong crowd, even after Jaden was
imprisoned and their relationship ended. She resumed a rela-
tionship with Leyton’s birth father after he was released from
prison, resulting in her pregnancy with Landyn. She also began
a relationship with Riley S. in April 2018. Madison admitted
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Cite as 28 Neb. App. 95in her testimony that she used drugs with Riley and that he
was not a good influence on her. Nevertheless, this is someone
she allowed to be near her children. The juvenile court spe-
cifically found that the testimony of Riley and Madison “did
not appear credible and appeared to be situationally motivated
by the pending termination of parental rights rather than any
honest recognition by [Madison] that [Riley] was an unhealthy
influence for her or for her children.”
I simply do not believe Madison has shown that she is
able to put the needs of the children above her own, nor that
she is able to provide Leyton and Landyn the necessary care
and protection required of a parent. Based upon my de novo
review of the record, I would find that the State met its burden
under § 43-292(2) and that a statutory basis for termination of
Madison’s parental rights exists.
BEST INTERESTS
Based on the facts of this case, and the arguments set forth
by both the State and the guardian ad litem, I believe the State
has shown by clear and convincing evidence that it is in the
best interests of the children that Madison’s parental rights be
terminated. While I recognize the severity of the horrendous
abuse in this case, the primary focus of the best interests analy-
sis is on the children, not the parent. While evidence to prove
the statutory grounds for termination will often be “highly rel-
evant to the best interests of the juvenile . . . statutory grounds
are based on a parent’s past conduct, but the best interests
element focuses on the future well-being of the child.” In re
Interest of Mya C. et al., 23 Neb. App. 383, 396, 872 N.W.2d
56, 67 (2015).
The majority concludes that “Madison’s initial lack of prog-
ress in light of her age and the abusive relationship she was
in” is grounds to find that termination came too quickly. I
disagree. The first petition was filed in July 2016. A supple-
mental petition in regard to Landyn was filed in March 2017.
In November 2016, Leyton was permitted to remain in his
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Cite as 28 Neb. App. 95maternal grandparents’ home, where Madison was living at
the time, but was later removed in February 2017. Landyn
was immediately placed in a nonrelative foster home follow-
ing his discharge from the hospital after his birth. Leyton was
later placed in the same foster home. Despite being tempo-
rarily reunited with Madison in January 2018, the children
were again removed in July and have remained in foster care
ever since.
Furthermore, this is a case where an experienced lawyer was
appointed as guardian ad litem, who was involved through-
out the duration of the case. I find it particularly telling that
the guardian ad litem filed a 54-page brief in this matter and
appeared at oral argument, strongly advocating that the juve-
nile court’s decision was correct in all respects. In a case such
as this, where our decision may very well determine the future
of these two young boys, I simply cannot disregard the profes-
sional observations of the guardian ad litem and her unwaver-
ing opinion that termination of Madison’s parental rights was
in the best interests of these children.
I believe this is precisely the type of case the majority
describes as “too little, too late.” See, e.g., In re Interest of
S.C., S.J., and B.C., 232 Neb. 80, 91, 439 N.W.2d 500, 507
(1989). Nebraska courts have recognized that children cannot,
and should not, be suspended in foster care or made to await
uncertain parental maturity. In re Interest of Becka P. et al., 27
Neb. App. 489, 933 N.W.2d 873 (2019) (citing In re Interest
of Octavio B. et al., 290 Neb. 589, 861 N.W.2d 415 (2015)).
The record suggests that the children are doing well under the
care of their foster parents and that the foster parents have
been able to provide a stable home for the children. Based
upon my de novo review of the record, I believe the State
has shown by clear and convincing evidence that termination
of Madison’s parental rights is in the best interests of Leyton
and Landyn, and I would have affirmed the judgment of the
juvenile court.
For these reasons, I respectfully dissent.