In re Interest of Keisha G. ( 2013 )

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472 21 NEBRASKA APPELLATE REPORTS
filing of an appeal shall vest in an appellee the right to a cross-
appeal against any other party to the appeal. The cross-appeal
need only be asserted in the appellee’s brief as provided by
§ 2-109(D)(4).”
Based upon our court rules, Joseph, as an appellee, was
required to identify his cross-appeal on the cover of his brief
and in a separate section in compliance with § 2-109(D)(4).
As in In re Interest of Natasha H. & Sierra H., supra, we
decline to waive the rules on his behalf and to award him
affirmative relief. Because Susan and Joseph both assigned
as error the court’s decision adjudicating Chloe, however, we
consider Joseph’s argument on this issue in addressing Susan’s
assigned error.
VII. CONCLUSION
We conclude that the State sufficiently proved that Chloe
was within the meaning of § 43-247(3)(a) because there was a
definite risk that her parents would not provide for her needs,
resulting in harm. Because Joseph did not properly designate
his brief as a cross-appeal, we do not address his assigned
errors. Accordingly, we affirm the county court’s order.
Affirmed.
In re I nterest of
K eisha G., a child
under18 years of age.
State of Nebraska, appellee, v.
Michael G., appellant.
___ N.W.2d ___
Filed December 3, 2013. No. A-12-1203.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases
de novo on the record and reaches its conclusions independently of the juvenile
court’s findings. 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.
2. Statutes: Appeal and Error. To the extent an appeal calls for statutory interpre-
tation or presents questions of law, an appellate court must reach an independent
conclusion irrespective of the determination made by the court below.
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF KEISHA G. 473
Cite as 21 Neb. Ct. App. 472
3. Juvenile Courts: Parental Rights: Notice. Neb. Rev. Stat. § 43-279.01(2)
(Reissue 2008), which governs juveniles in need of assistance or termination of
parental rights, requires that adequate notice of the possibility of the termination
of parental rights be given in adjudication hearings before the juvenile court may
accept an in-court admission from a parent as to all or any part of the allegations
of the petition before the juvenile court.
4. Juvenile Courts: Final Orders: Appeal and Error. Generally, it has been held
that adjudication and disposition orders are final, appealable orders.
5. Final Orders: Time: Appeal and Error. An appeal of a final order must be
made within 30 days after the entry of such order.
6. Juvenile Courts: Parental Rights: Jurisdiction: Appeal and Error. In the
absence of a direct appeal from an adjudication order, a parent may not question
the existence of facts upon which the juvenile court asserted jurisdiction.
7. Juvenile Courts: Parental Rights: Due Process. A defective adjudication does
not preclude a termination of parental rights under Neb. Rev. Stat. § 43-292(1)
through (5) (Cum. Supp. 2012), since no adjudication is required to terminate
pursuant to those subsections, as long as due process safeguards are met.
8. Parental Rights: Proof. In Nebraska statutes, the bases for termination of paren-
tal rights are codified in Neb. Rev. Stat. § 43-292 (Cum. Supp. 2012). 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 termina-
tion is in the best interests of the child.
9. Juvenile Courts: Parental Rights. Neb. Rev. Stat. § 43-292(4) (Cum. Supp.
2012) provides that a juvenile court may terminate parental rights when the
parent is unfit by reason of debauchery, habitual use of intoxicating liquor or
narcotic drugs, or repeated lewd and lascivious behavior, which conduct is found
by the court to be seriously detrimental to the health, morals, or well-being of
the juvenile.
Appeal from the County Court for Hall County: Arthur S.
Wetzel, Judge. Reversed.
Jerry Fogarty for appellant.
Martin R. Klein, Deputy Hall County Attorney, for appellee.
Tanya J. Hansen, of Leininger, Smith, Johnson, Baack,
Placzek & Allen, guardian ad litem.
Moore, Pirtle, and Bishop, Judges.
Bishop, Judge.
INTRODUCTION
Michael G. appeals from an order of the county court for
Hall County, sitting as a juvenile court, terminating his parental
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474 21 NEBRASKA APPELLATE REPORTS
rights to his daughter, Keisha G., pursuant to Neb. Rev. Stat.
§ 43-292(4) and (6) (Cum. Supp. 2012). On appeal, Michael
alleges deficiency of the pleadings, improper admission of evi-
dence, failure to properly advise him of his rights, and insuf-
ficiency of evidence. We agree that Michael was not given a
proper advisement of rights at the adjudication hearing before
entering his plea of no contest. This defect during the adjudica-
tion phase excludes consideration of termination pursuant to
§ 43-292(6) and limits this court’s review of the termination
proceeding to the one remaining statutory ground for which
we find insufficient evidence to terminate Michael’s parental
rights. We reverse.
PROCEDURAL BACKGROUND
Keisha was born in October 2010 and removed from her
mother’s care on September 19, 2011. Michael was incarcer-
ated at the time of the removal and never had custody of
Keisha. On February 8, 2012, Keisha was adjudicated as a
child within the meaning of Neb. Rev. Stat. § 43-247(3)(a)
(Reissue 2008). Both parents attended the adjudication hearing
and entered pleas of no contest after being advised of certain
rights. Before entering his plea, Michael was not advised that
the termination of his parental rights was a potential conse-
quence of the proceeding.
A dispositional hearing was conducted on March 29, 2012.
Michael attended. The juvenile court ordered a case plan.
On June 25, 2012, the guardian ad litem filed a motion to
terminate Michael’s parental rights. Although the statute was
not cited, the motion alleged grounds for termination consistent
with § 43-292(4) and (6):
1. [Michael] is unfit by reason of debauchery, habitual
use of intoxicating liquor or narcotic drugs, or repeated
lewd and lascivious behavior, which conduct is seriously
detrimental to the health, morals, or well-being of the
juvenile; and
2. Following the determination that the juvenile
was one as described in subdivision (3)(a) of section
43-247, reasonable efforts to preserve and reunify the
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IN RE INTEREST OF KEISHA G. 475
Cite as 21 Neb. Ct. App. 472
family have failed to correct the conditions leading to
the determination.
The motion did not allege that termination of parental rights
was in the child’s best interests.
The mother relinquished her parental rights to Keisha on
July 24, 2012. On the same date, Michael was present at
the initial hearing on the motion to terminate his parental
rights. The juvenile court advised Michael of certain rights,
and Michael confirmed that he understood those rights. The
juvenile court further advised Michael of the allegations in
the motion to terminate, which advisement did not include a
reference to Keisha’s best interests. Michael did not attend any
of the three subsequent hearings that took place, but he was
represented by counsel.
On November 8, 2012, the juvenile court conducted a ter-
mination hearing. Witnesses testified, inter alia, whether ter-
mination of Michael’s parental rights would be in Keisha’s
best interests. Michael’s counsel had the opportunity to object
and cross-examine witnesses on the issue. Michael’s coun-
sel objected on various grounds to all testimony concerning
Keisha’s best interests but did not raise any deficiency in the
pleadings. Michael’s counsel addressed Keisha’s best interests
during closing arguments.
The juvenile court terminated Michael’s parental rights in an
order entered on November 26, 2012. The juvenile court found
sufficient grounds for termination consistent with § 43-292(4)
and (6). The juvenile court made the following finding con-
cerning best interests:
This Court finds, based on the evidence presented, that it
is in the best interest of [Keisha] for [Michael’s] paren-
tal rights to be terminated. Specifically, this Court finds
that there is no reasonable expectation that [Michael]
will be in a position to provide permanency or stability
to [Keisha] and that [Keisha] cannot, and should not, be
suspended in foster care or be made to await uncertain
parental maturity.
Michael appeals. We summarize additional relevant facts in the
analysis portion of this opinion.
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476 21 NEBRASKA APPELLATE REPORTS
ASSIGNMENTS OF ERROR
Michael assigns, condensed and restated, that the trial court
erred in (1) determining that termination of his parental rights
was in Keisha’s best interests when the motion to terminate
made no such allegation, (2) finding that it had jurisdiction
to hear allegations under § 43-292(4) and (6), (3) admitting
certain evidence over Michael’s objections, and (4) finding suf-
ficient evidence to terminate Michael’s parental rights.
STANDARD OF REVIEW
[1] An appellate court reviews juvenile cases de novo on
the record and reaches its conclusions independently of the
juvenile court’s findings. 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. In re Interest of Kendra M. et al., 283
Neb. 1014, 814 N.W.2d 747 (2012).
[2] To the extent an appeal calls for statutory interpretation
or presents questions of law, an appellate court must reach an
independent conclusion irrespective of the determination made
by the court below. Id.
ANALYSIS
Insufficient Advisement of Rights at
Adjudication Phase and Impact
on Termination Pursuant
to § 43-292(6).
Michael claims that the juvenile court did not have juris-
diction to terminate his parental rights under § 43-292(6),
because he was not properly advised prior to entering his
no contest response to the State’s adjudication petition. He
alleges that he was not advised that his parental rights could
be terminated. At the adjudication hearing, the juvenile court
advised Michael:
A juvenile petition has been filed alleging that your
child is within the jurisdiction of the juvenile court.
Because of the nature of these allegations, you’re entitled
to certain rights. . . .
....
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF KEISHA G. 477
Cite as 21 Neb. Ct. App. 472
Today you may be asked to either admit or deny the
allegations contained in the juvenile petition. If you deny
those allegations, you’re entitled to a speedy adjudication
hearing. We call that a trial. And that’s what was origi-
nally scheduled for today’s date.
At that hearing the state’s required to prove the alle-
gation of this petition by a preponderance of the evi-
dence. . . .
If the state’s able to prove the allegations of the peti-
tion or if you should admit those allegations, the court
would find your child is within the jurisdiction of the
juvenile court and we would proceed to the next stage of
those proceedings.
And that second stage is called the disposition stage. In
other words, we decide how to dispose of the case or to
— how to make proper decisions regarding the care and
custody of your child.
The court has a wide variety of options available to it.
For example, the court can permit your child to remain in
the home subject to supervision or make an order com-
mitting the child to the care of a suitable institution, to the
care of a reputable citizen of good moral character.
We can make placements to the care of an associa-
tion willing to receive the child, to the care of a suitable
family, or we can commit the child more — which is the
common scenario, to the care and custody of the depart-
ment of health and human services.
If you’re unsatisfied with any decision that the court
makes, you have a right to appeal that decision to the
Court of Appeals and to have a record made for purposes
of that appeal.
Michael confirmed that he understood these rights.
According to Neb. Rev. Stat. § 43-279.01 (Reissue 2008):
(1) When the petition alleges the juvenile to be within
the provisions of subdivision (3)(a) of section 43-247 . . .
the court shall inform the parties of the:
(a) Nature of the proceedings and the possible con-
sequences or dispositions pursuant to sections 43-284,
43-285, and 43-288 to 43-295 [sections 43-288 to 43-295
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478 21 NEBRASKA APPELLATE REPORTS
address orders as to juveniles, including possible termina-
tion of parental rights];
(b) Right to engage counsel of their choice at their own
expense or to have counsel appointed if unable to afford
to hire a lawyer;
(c) Right to remain silent as to any matter of inquiry
if the testimony sought to be elicited might tend to prove
the parent or custodian guilty of any crime;
(d) Right to confront and cross-examine witnesses;
(e) Right to testify and to compel other witnesses to
attend and testify;
(f) Right to a speedy adjudication hearing; and
(g) Right to appeal and have a transcript or record of
the proceedings for such purpose.
(2) After giving the parties the information prescribed
in subsection (1) of this section, the court may accept an
in-court admission . . . .
[3] In In re Interest of Brook P. et al., 10 Neb. Ct. App.
577, 583, 634 N.W.2d 290, 297 (2001), we said: “Section
43-279.01(2) means that a juvenile court should accept a par-
ent’s in-court admission only after informing the parties as to
the nature of the proceedings and the possible consequences
or dispositions, including termination of parental rights.” And
in In re Interest of N.M. and J.M., 240 Neb. 690, 696, 484
N.W.2d 77, 81 (1992), the Nebraska Supreme Court said
that “adequate notice of the possibility of the termination of
parental rights must be given in adjudication hearings before
the juvenile court may accept an in-court admission . . . from
a parent as to all or any part of the allegations of the petition
before the juvenile court.”
[4-6] At the adjudication hearing, Michael was not informed
that termination of his parental rights was a potential conse-
quence of the court’s finding that Keisha was a juvenile
within the provisions of § 43-247(3)(a). Therefore, if he had
appealed the original adjudication, the juvenile court’s fail-
ure to inform Michael of the potential consequences of the
juvenile proceeding before accepting his admission to the
allegations would have been fatal to the adjudication, as the
adjudication was based on Michael’s no contest response. See
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF KEISHA G. 479
Cite as 21 Neb. Ct. App. 472
In re Interest of Brook P. et al., supra. However, Michael did
not appeal the juvenile court’s initial adjudication. Generally,
it has been held that adjudication and disposition orders are
final, appealable orders. See In re Interest of Ty M. & Devon
M., 265 Neb. 150, 655 N.W.2d 672 (2003). An appeal of a
final order must be made within 30 days after the entry of
such order. See, Neb. Rev. Stat. § 25-1912 (Reissue 2008);
Neb. Rev. Stat. § 43-2,106.01 (Cum. Supp. 2012). Further, in
the absence of a direct appeal from an adjudication order, a
parent may not question the existence of facts upon which the
juvenile court asserted jurisdiction. In re Interest of Brook P.
et al., supra.
In In re Interest of Brook P. et al., supra, the parents were
not advised at the adjudication hearing of the potential conse-
quences of the juvenile proceeding before the court accepted
their admission to the allegations. However, the parents did not
file a direct appeal from the adjudication order. Therefore, on
appeal, this court determined that the parents were unable to
question the existence of facts upon which the juvenile court
asserted jurisdiction. Nevertheless, we then proceeded to deter-
mine whether the juvenile court had jurisdiction to terminate
parental rights without a prior advisement at the adjudication
phase of the proceedings. We said: “Due to the defect in the
adjudication proceedings, we treat the first proceeding as the
functional equivalent of ‘no prior adjudication’ . . . .” In re
Interest of Brook P. et al., 10 Neb. Ct. App. at 586, 634 N.W.2d
at 298.
[7] A defective adjudication does not preclude a termination
of parental rights under § 43-292(1) through (5), since no adju-
dication is required to terminate pursuant to those subsections,
as long as due process safeguards are met. See In re Interest
of Joshua M. et al., 256 Neb. 596, 591 N.W.2d 557 (1999).
We note:
Unlike § 43-292(6) and (7), § 43-292(1) through (5) do
not require, imply, or contemplate juvenile court involve-
ment, including adjudication, prior to the filing of the
petition for termination of parental rights. Instead, sub-
sections (1) through (5) each concern historical actions or
conditions of the parents such as abandonment, neglect,
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unfitnesses, and mental deficiency. There is no require-
ment of longitudinal involvement of the juvenile court
under § 43-292(1) through (5), much less a prior adjudi-
cation. Under § 43-291, an original petition may be filed
seeking termination of parental rights and the juvenile
court acquires jurisdiction of the termination proceed-
ing brought on by an original action under § 43-247(6)
without prior juvenile court involvement, except where
required by the Nebraska Juvenile Code.
In re Interest of Joshua M. et al., 256 Neb. at 609-10, 591
N.W.2d at 566.
Accordingly, while § 43-292(6) requires a prior adjudica-
tion, subsection (4) does not. In this case, the State sought
to terminate parental rights based upon both subsections (4)
and (6). We conclude the adjudication was deficient because
Michael was not advised that his parental rights could be ter-
minated, and we thus treat it as the functional equivalent of no
prior adjudication, depriving the juvenile court of jurisdiction
to terminate Michael’s parental rights pursuant to § 43-292(6).
However, a termination pursuant to § 43-292(4) is permitted as
an original action and is discussed below.
Advisement of Rights at
Termination Proceeding.
Michael argues that the juvenile court did not have juris-
diction to terminate his parental rights under § 43-292(4),
because his due process rights were violated by the juvenile
court’s failure to properly advise him at the termination
phase that termination of his parental rights was a possible
consequence.
Section 43-247(6) states that the juvenile court shall have
jurisdiction of the proceedings for termination of parental
rights as provided in the Nebraska Juvenile Code. Section
43-279.01(1) states that when “termination of parental rights
is sought pursuant to subdivision (6) . . . of section 43-247,”
the juvenile court “shall” inform the parties of the nature of
the proceedings and the possible consequences or disposi-
tions, including termination of parental rights, as well as their
rights (e.g., right to counsel, right to remain silent, right to
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF KEISHA G. 481
Cite as 21 Neb. Ct. App. 472
confront and cross-examine witnesses, right to testify and
to compel other witnesses to attend and testify, and right
to appeal).
At the initial hearing on the motion to terminate Michael’s
parental rights, the juvenile court advised him as follows:
THE COURT: All right. All right. [Michael], I want
to take a moment and visit with you about the rights
that you have in this motion. The petition has been filed
requesting the termination of your parental rights to the
above-named minor child. Because of that you have cer-
tain rights.
First and foremost amongst those you have the right
to be represented by an attorney, and in this matter [one]
has been appointed to represent you. You have a limited
right to remain silent. And what I mean by that is the state
can call you as a witness at these hearings. However, if
you are making statements that would constitute other
criminal violations, they can’t go into that, and you have
a right to basically remain silent as to that, but otherwise
they have a right to call you concerning matters such as
care given to Keisha and those types of things.
You have a right at the hearing, if you denied these
allegations, to confront and cross-examine all witnesses,
to compel the attendance of witnesses through use of
the subpoena power of the court. You have a right to
testify yourself at these proceedings. If the court enters
any orders that you disagree with, you have a right to
appeal those decisions to the Nebraska Court of Appeals.
You have a right to have a record made for purposes of
the appeal.
Michael confirmed that he understood these rights. The juve-
nile court also advised Michael of the allegations in the motion
to terminate:
THE COURT: All right. I would advise you at this
time, [Michael], the allegations contained in the motion
to terminate parental rights are as follows: The petition
alleges, comes now [the] Guardian ad Litem, and hereby
moves the court for an order terminating the parental
rights of Michael . . . to the above-named minor child for
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482 21 NEBRASKA APPELLATE REPORTS
the following reasons: Number one, [Michael] is unfit
by reason of debauchery, habitual use of intoxicating
liquor or narcotic drugs or repeated lewd or lascivious
behavior, which conduct is seriously detrimental to the
health, morals or well-being of the juvenile, and, two,
following the determination that the juvenile was one as
described in Subdivision (3)(a) of Section 43-247, rea-
sonable efforts to preserve and reunify the family have
failed and that’s failed to correct the conditions leading
to that original determination.
Wherefore, the guardian ad litem prays that a summons
be issued and a hearing be held upon the motion and
upon such hearing the court enter an order terminating the
parental rights of Michael . . . .
Do you understand the nature of the allegations con-
tained in this motion to terminate parental rights?
[Michael]: Honestly, I understand what it — what it
says, yeah. I understand what it means. I just . . . .
THE COURT: Yeah, and that’s all we’re trying to do
at this time, [Michael]. I’m not asking you whether you
agree with them.
[Michael]: Right.
THE COURT: I’m just asking you if you understand
what’s —
[Michael]: And, yes, I do understand.
THE COURT: — alleged.
[Michael]: I’m sorry, Your Honor. Yes, I understand,
yes, what’s been . . . .
THE COURT: Okay. All right. [Michael], I’ll ask you
at this time then, do the allegations contained in the
motion to terminate your parental rights, do you admit or
deny those allegations?
[Michael]: I deny that.
We conclude that Michael was adequately advised of the
nature of the proceedings and the possible consequences or
dispositions as required by Neb. Rev. Stat. § 43-247.01(1)
(Reissue 2008). The juvenile court advised Michael that a
petition had been filed seeking termination of his parental
rights and of the contents of that petition. See In re Interest of
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IN RE INTEREST OF KEISHA G. 483
Cite as 21 Neb. Ct. App. 472
A.D.S. and A.D.S., 2 Neb. Ct. App. 469, 471, 511 N.W.2d 208, 210
(1994) (mother was adequately advised of nature of proceed-
ings and possible consequences where juvenile court stated,
“‘we are going to decide whether or not your rights as mother
should be terminated’”). Further, the juvenile court advised
Michael of his right to counsel, right to remain silent, right
to confront and cross-examine witnesses, right to testify and
to compel other witnesses to attend and testify, and right to
appeal. Because Michael was given the required advisements
under § 43-247.01(1), he was accorded his statutory due proc­
ess rights, and therefore, we cannot say that the proceeding
to terminate Michael’s parental rights under § 43-292(4) was
improper on this basis.
Sufficiency of Evidence.
[8] Michael assigns that the juvenile court erred in find-
ing sufficient evidence to terminate his parental rights. 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 Sir Messiah T. et al., 279 Neb. 900, 782 N.W.2d
320 (2010).
The juvenile court based termination on § 43-292(4) and (6);
however, as previously noted, our review is limited to whether
there was sufficient evidence to terminate Michael’s parental
rights under the grounds set forth in § 43-292(4) and, if so,
whether such termination was in Keisha’s best interests.
[9] Section 43-292(4) provides that a juvenile court may
terminate parental rights when the parent is “unfit by reason
of debauchery, habitual use of intoxicating liquor or narcotic
drugs, or repeated lewd and lascivious behavior, which conduct
is found by the court to be seriously detrimental to the health,
morals, or well-being of the juvenile.”
The juvenile court received evidence of Michael’s crimi-
nal record of drug and alcohol offenses. At the time of
trial, Michael was 27 years old. The bulk of the evidence
of Michael’s drug and alcohol use occurred during the years
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484 21 NEBRASKA APPELLATE REPORTS
prior to Keisha’s birth in October 2010. Between 2002 and
2010, Michael had five convictions for minor in posses-
sion (September 2002, August 2002, March 2004, April 2006,
and June 2006); one conviction for possession of marijuana
(January 2007); three convictions for possession of drug para-
phernalia (January 2007 and two times in May 2008); and one
conviction for possession of “legend drugs” (September 2008).
Michael was also convicted of driving under the influence in
March 2011; however, the offense occurred prior to Keisha’s
birth, as evidenced by the fact that Michael’s bond was filed
in August 2010. As stated previously, the foregoing evidence
of Michael’s drug and alcohol use occurred during the years
prior to Keisha’s birth in October 2010 and thus could not
be seriously detrimental to the health, morals, or well-being
of Keisha.
Also received into evidence at the termination hearing was
an “Arrest/Detention Probable Cause Affidavit” showing that
in June 2012, Michael was arrested for driving under suspen-
sion. During the arrest, the officer found marijuana and “a
generic form of Vicodin.” Michael was subsequently charged
with possession of a controlled substance, driving under sus-
pension, possession of “K2” or marijuana less than 1 ounce,
and possession of drug paraphernalia. A bench warrant was
issued in October after Michael failed to appear at a pre-
liminary hearing related to the above charges. At the time of
the termination hearing on November 9, Michael had been
neither tried nor convicted of any offense stemming from his
June arrest.
In re Interest of Carrdale H., 18 Neb. Ct. App. 350, 781 N.W.2d
622 (2010), involved a juvenile court adjudication of a child
based upon the father’s possession of illegal drugs, and this
court reversed the adjudication order. We noted that the State
failed to adduce any evidence regarding whether the father
was charged with a crime, whether the father had any history
of drug use in or out of the child’s presence, whether the child
was present when the father possessed the drugs, or whether
the child was affected in any way by the father’s actions. We
held that the State failed to prove by a preponderance of the
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Cite as 21 Neb. Ct. App. 472
evidence the petition’s allegation that the father’s use of drugs
placed the child at risk for harm.
In In re Interest of Carrdale H., supra, we also noted that
the father’s offense, if he was in fact charged and convicted,
could result in imprisonment or probation. The same is true
in the instant case. Although Michael was charged with drug
offenses stemming from his June 2012 arrest, he had been
neither tried nor convicted at the time of the juvenile court
trial. Additionally, if Michael should be convicted, either incar-
ceration or probation is possible. The most serious of Michael’s
charged offenses is possession of a controlled substance, a
Class IV felony, which is punishable by up to 5 years’ impris-
onment. See Neb. Rev. Stat. § 28-105 (Cum. Supp. 2012).
Under the sentencing guidelines, should Michael be convicted
of possession of a controlled substance, he could be placed
on probation.
The only other evidence of Michael’s alcohol or drug
use during Keisha’s lifetime is (1) one positive drug test in
September 2012, wherein Michael tested positive for “Delta-9
Carboxy THC” (THC is the active component of marijuana
and cannabis), and (2) the testimony of a court-appointed
special advocate who testified that Michael admitted to com-
mencing intravenous drug use after he was released from jail
and had begun the proceedings to “get [Keisha] back.” There
was also some evidence that on one visit, a visitation worker
thought Michael was “under the influence.” However, that
report was based on Michael’s “odd” behavior of trying to put
a jacket on over a bookbag. The worker was not “able to smell
any alcohol or anything” on Michael. On the record before us,
the State failed to adduce any evidence as to how Michael’s
drug use was detrimental to Keisha. There was no evidence
that she was present during any drug use or that any drug use
affected Michael’s ability to care for Keisha.
In In re Interest of Brianna B. & Shelby B., 9 Neb. Ct. App.
529, 614 N.W.2d 790 (2000), the juvenile court adjudicated
the children because of a pattern of alcohol use by the parents.
This court concluded that the State failed to adduce evidence
to show that the children lacked proper parental care. Although
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486 21 NEBRASKA APPELLATE REPORTS
there was evidence that the parents had consumed alcohol in
the presence of the children, there was no evidence to show
that the children were impacted by the drinking.
In re Interest of Taeven Z., 19 Neb. Ct. App. 831, 812 N.W.2d
313 (2012), addressed a juvenile court adjudication where the
mother had ingested a morphine pill that was not prescribed to
her. This court found that there was no evidence that the child
was affected by the mother’s taking the nonprescribed pill or
any evidence that the mother’s taking the pill placed the child
at risk. We held that there was no evidentiary nexus between
the consumption of drugs by the mother and any definite risk
of future harm to the child.
In re Interest of Justine J. et al., 286 Neb. 250, 835 N.W.2d
674 (2013), involved a juvenile court adjudication for four
children because of the mother’s and stepfather’s drug use and
domestic violence. The two oldest children had been living
with the mother and stepfather, but the two youngest children
were living with grandparents. It was uncontested that the
State met its burden as to the adjudication of the two oldest
children. The Nebraska Supreme Court found that there was
no evidence that the two younger children were present for the
mother’s and stepfather’s drug use or domestic violence. The
court held that the State failed to prove by a preponderance of
the evidence an evidentiary nexus between the neglect suffered
by the older children and any definite risk of future harm to the
younger children.
In In re Interest of Joshua M. et al., 256 Neb. 596, 591
N.W.2d 557 (1999), the juvenile court terminated the mother’s
parental rights to her four children because of the mother’s
neglect and drug use. See § 43-292(2) and (4). The mother
had a long history of illegal drug use. She admitted using
“‘[c]rystal, meth, and cocaine’” since the age of 17. In re
Interest of Joshua M. et al., 256 Neb. at 600, 591 N.W.2d at
561. She tested positive for drugs on at least three separate
occasions while the juvenile proceedings were pending. She
was repeatedly incarcerated for her drug use. The Nebraska
Supreme Court held that the mother was unfit by reason of
her drug use and consequent incarceration to provide the care,
subsistence, and protection needed by her children and, in
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF KEISHA G. 487
Cite as 21 Neb. Ct. App. 472
fact, has neglected to provide for them. The court held that
the evidence established that the mother had neglected the
children and was unfit as defined by statute. See § 43-292(2)
and (4).
In In re Interest of Brook P. et al., 10 Neb. Ct. App. 577,
634 N.W.2d 290 (2001), the juvenile court terminated the
mother’s and father’s parental rights because they substan-
tially and continuously or repeatedly neglected their children
and because they were unfit to parent by reason of habitual
use of intoxicating liquor or narcotic drugs. See § 43-292(2)
and (4). The parents had a long history of drug use. The par-
ents’ drug use was associated with homelessness, joblessness,
and domestic violence. On one occasion, the father called
the State Patrol and said that he and the mother had used
methamphetamines for the past few months and did not think
they could care for the children. This court held the evidence
clearly and convincingly showed that the use of drugs ren-
dered the parents unfit and that it was in the children’s best
interests that parental rights be terminated. We held that the
parents’ insidious drug use substantially interfered with their
ability to care for their family, hold jobs, and maintain hous-
ing for the family.
Although most of the cases cited above are adjudication
cases, we still find them instructive. In adjudication cases
filed under § 43-247(3)(a), the State need only prove the alle-
gations in the petition by a preponderance of the evidence.
See In re Interest of Justine J. et al., 286 Neb. 250, 835
N.W.2d 674 (2013). But in termination cases, the burden of
proof is much greater. In order to terminate an individual’s
parental rights, the State must prove by clear and convinc-
ing evidence that one of the statutory grounds enumerated
in § 43-292 exists and that termination is in the children’s
best interests. See In re Interest of Sir Messiah T. et al., 279
Neb. 900, 782 N.W.2d 320 (2010). Thus, if the evidence of
a parent’s drug and alcohol use was insufficient to show that
the child was at risk of harm for purposes of adjudication as
described in some of the above-referenced cases, then that
same evidence would certainly be insufficient to show that the
parent’s drug and alcohol use was detrimental to the juvenile
Decisions of the Nebraska Court of Appeals
488 21 NEBRASKA APPELLATE REPORTS
for purposes of termination of parental rights given the higher
burden of proof.
In the instant case, the State failed to show how Michael’s
drug use was detrimental to Keisha. As noted previously,
most of Michael’s drug-related convictions occurred prior to
Keisha’s birth and therefore had no detrimental effect on her.
Michael has had one drug-related arrest since Keisha’s birth,
but at the time of the termination hearing, he had been neither
tried nor convicted of the charges stemming from his June
2012 arrest. A conviction and term of incarceration, while
possible, are not in the record before us and therefore do not
support a termination under § 43-292(4). Although the record
supports that Michael has tested positive for drugs and has
admitted to using drugs during the pendency of these juvenile
proceedings, the State has failed to adduce any evidence, much
less clear and convincing evidence, that Michael’s drug use has
affected or been detrimental to Keisha. Even the juvenile court
noted the lack of evidence on this issue when, at the conclusion
of the termination hearing, the judge stated: “[T]he evidence
doesn’t necessarily reflect that [Michael] has exposed this child
to direct risks of drugs or alcohol.” On our de novo review, we
find that the State failed to prove by clear and convincing evi-
dence that Michael’s drug use renders him unfit. We therefore
reverse the juvenile court’s order terminating Michael’s paren-
tal rights to Keisha.
Because we have concluded that there was insufficient evi-
dence to support termination of Michael’s parental rights pur-
suant to § 43-292(4), we need not determine whether termina-
tion of Michael’s parental rights is in Keisha’s best interests.
We also do not need to address Michael’s other assigned
errors regarding the absence of “best interests” language in the
motion to terminate and the admission of certain evidence. See
In re Trust Created by Hansen, 281 Neb. 693, 798 N.W.2d 398
(2011) (appellate court is not obligated to engage in analysis
that is not necessary to adjudicate case before it).
CONCLUSION
In summary, we find that the deficiency of the adjudi-
cation proceeding (failure to properly advise of potential
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF KEISHA G. 489
Cite as 21 Neb. Ct. App. 472
consequences) renders that proceeding the functional equiva-
lent of “no prior adjudication,” which eliminates consideration
of § 43-292(6) as a ground for termination. Our review of the
one remaining ground, § 43-292(4), reveals insufficient evi-
dence in the record to support termination. Accordingly, we
reverse the order of the juvenile court terminating Michael’s
parental rights to Keisha.
R eversed.