In re Interest of Brelynn E. ( 2022 )

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www.nebraska.gov/apps-courts-epub/
03/22/2022 08:06 AM CDT
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
IN RE INTEREST OF BRELYNN E.
Cite as 30 Neb. App. 723In re Interest of Brelynn E., a child
under 18 years of age.
State of Nebraska, appellee, v.
Cindy E., appellant.
___ N.W.2d ___
Filed March 15, 2022. No. A-21-166.
1. Juvenile Courts: Evidence: Appeal and Error. Juvenile cases are
reviewed de novo on the record, and an appellate court is required to
reach a conclusion independent of the juvenile court’s findings; how-
ever, 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.
2. Appeal and Error. An appellate court will not consider an issue on
appeal that was not presented to or passed upon by the trial court.
3. Pleadings: Parental Rights. The purpose of an exception hearing is
to determine whether the State may be excused from the mandatory
requirement of Neb. Rev. Stat. § 43-292.02(1) (Cum. Supp. 2020) that it
file a petition to terminate parental rights under certain circumstances.
4. ____: ____. Under certain circumstances, the State is generally required
to file a petition to terminate the parental rights of a child’s parents,
subject to the outcome of an exception hearing.
5. ____: ____. If a court determines that a statutory exception under Neb.
Rev. Stat. § 43-292.02 (Cum. Supp. 2020) does not exist, then the State
is required to file a petition to terminate parental rights.
6. ____: ____. If a statutory exception under Neb. Rev. Stat. § 43-292.02(Cum. Supp. 2020) exists, then the State is not required to file a petition
to terminate parental rights but may do so anyway.
7. Juvenile Courts: Parental Rights. For a juvenile court to terminate
parental rights under Neb. Rev. Stat. § 43-292 (Reissue 2016), it must
find that one or more of the statutory grounds listed in this section have
been satisfied and that such termination is in the child’s best interests.
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Nebraska Court of Appeals Advance Sheets
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IN RE INTEREST OF BRELYNN E.
Cite as 30 Neb. App. 7238. Parental Rights: Proof. Neb. Rev. Stat. § 43-292(7) (Reissue 2016)
allows for termination of parental rights when a juvenile has been in
an out-of-home placement for 15 or more months of the most recent 22
months. It operates mechanically and, unlike the other subsections of
the statute, does not require the State to adduce evidence of any specific
fault on the part of a parent.
9. Parental Rights. The proper application of Neb. Rev. Stat. § 43-292(7)
(Reissue 2016) consists of counting the most recent 22 months preced-
ing the filing of the petition to terminate parental rights, followed by
counting how many of those 22 months the child was in out-of-home
placement.
10. Parental Rights: Proof. Neb. Rev. Stat. § 43-292 (Reissue 2016) pro-
vides 11 separate conditions, any one of which can serve as the basis
for termination of parental rights when coupled with the evidence that
termination is in the best interests of the child.
11. ____: ____. In addition to proving a statutory ground, the State must
show that termination of parental rights is in the best interests of
the child.
12. Parental Rights: Words and Phrases. The term “unfitness” is not
expressly used in Neb. Rev. Stat. § 43-292 (Reissue 2016), but the con-
cept is generally encompassed by the fault and neglect subsections of
that statute, and also through a determination of the child’s best interests.
13. Constitutional Law: Parental Rights: Words and Phrases. 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 reason-
able parental obligation in child rearing and which caused, or probably
will result in, detriment to the child’s well-being.
14. Parental Rights: Parent and Child. In proceedings to terminate paren-
tal 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 a parent and a child.
Appeal from the County Court for Buffalo County: John P.
Rademacher, Judge. Affirmed.
Michele J. Romero, of Stamm Romero & Associates, P.C.,
L.L.O., for appellant.
Patrick M. Lee, Deputy Buffalo County Attorney, for
appellant.
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
IN RE INTEREST OF BRELYNN E.
Cite as 30 Neb. App. 723Jennifer N. Rowling, guardian ad litem.
Moore, Bishop, and Arterburn, Judges.
Arterburn, Judge.
INTRODUCTION
Cindy E. appeals from the order of the county court for
Buffalo County, sitting as a juvenile court, which terminated
her parental rights to her child Brelynn E. Based on the reasons
that follow, we affirm.
BACKGROUND
Cindy is the biological mother of Brelynn, who was born
in August 2015. Cindy has two older children, one of whom
resides with his paternal grandparents after she voluntarily
relinquished her parental rights to him and the other of whom
has been placed in a guardianship as a result of a prior juve-
nile court case involving Cindy. These two children were not
involved in the present juvenile court proceedings and, as a
result, are not part of this appeal. In addition, the fathers of
Cindy’s other children were not involved in the juvenile court
proceedings below and are not part of this appeal. Wesley E.
is the father of Brelynn; however, he relinquished his parental
rights to Brelynn on September 28, 2020, during the course of
the termination trial.
Brelynn has been removed from Cindy’s care by the
Department of Health and Human Services (the Department)
on two occasions prior to the filing of the present case. Cindy
had a voluntary case with the Department in May 2016, follow-
ing reports that Wesley sexually assaulted Brelynn. Wesley was
ultimately convicted of sexually assaulting Brelynn when she
was approximately 9 months old. Brelynn was not in Cindy’s
care for approximately 1 week. In June 2017, Brelynn was again
removed from the home. She was returned to Cindy’s home
in December 2017, but remained in the Department’s legal
custody until June 2018. This removal was due to concerns
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IN RE INTEREST OF BRELYNN E.
Cite as 30 Neb. App. 723regarding Cindy’s mental health and regarding Cindy’s leaving
Brelynn with inappropriate care­givers, including Cindy’s sister,
whose husband was a registered sex offender.
Because of the concerns about Cindy’s mental health, the
Department contacted Dr. John Meidlinger, a licensed clini-
cal psychologist, to complete an evaluation in July 2017.
Meidlinger diagnosed Cindy with adjustment disorder, anxious
mood, and post-traumatic stress disorder, as well as a person-
ality disorder with narcissistic and avoidant features. In his
evaluation, he expressed that he would want to see stability in
all aspects of Cindy’s life before he felt that Brelynn should be
placed with Cindy again. Specifically, he noted that if Cindy
did not have mental health stability and regulation in place,
Brelynn would not be able to trust Cindy and would develop
patterns of codependency. In addition, in his opinion, Brelynn
could become “[an] easy target[] for unscrupulous peers and
adults.” According to Meidlinger, Cindy would continue to
struggle with her mental health unless she worked more than
once a week on identifying and implementing coping strategies
for her mental health. In his opinion, Cindy does not have an
ability to experience adversity and then turn the adversity into
a useful path forward. He believes that it would be useful for
her to be placed in a 24-hour inpatient facility to teach her the
emotional skills that she needs. In addition, he expressed that
part of Cindy’s narcissistic tendencies would be to seek exces-
sive medical attention for a child as a way of getting attention
for herself.
Meidlinger noted his concerns about Cindy’s parenting abil-
ity. His evaluation noted that Cindy continued to see Wesley
after she was convinced Wesley was sexually abusing Brelynn
and that Cindy went on to have another child with Wesley.
Meidlinger testified that Cindy felt “justified” in leaving
Brelynn in the care of her sister and brother-in-law, despite
her brother-in-law’s also being a registered sex offender.
Meidlinger observed Cindy with Brelynn and observed that
Cindy did not engage well with Brelynn. He testified that
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IN RE INTEREST OF BRELYNN E.
Cite as 30 Neb. App. 723Cindy did not know “how to create space and interact with
[Brelynn].” He also noted that Cindy could not manage minor
tasks with Brelynn. Meidlinger expressed his concern that
when Cindy and Brelynn were at his office, Cindy did not
escort Brelynn to his office, despite Brelynn’s previously being
sexually assaulted by a male. He also observed that Cindy did
not appropriately interact with Brelynn in the way that she
talked with Brelynn and did not know how to structure play-
time with Brelynn. He was concerned about Cindy’s ability to
make good judgments about Brelynn.
Despite the involvement of the Department in Cindy’s and
Brelynn’s lives from 2016 to 2018, it was the death of Cindy
and Wesley’s other child, Kamdyn W., which precipitated the
current case. Kamdyn was born in September 2018. When
Kamdyn was approximately 2 months old, he suffered from
a cold. Kamdyn was sleeping on a “Boppy” style pillow in
Cindy’s bed, at a 45-degree angle, due to his cold, and he
rolled off of the pillow onto his stomach. He was transported to
the emergency room in an unresponsive condition. The cause
of death was determined to be asphyxiation.
Dr. Angela Kratochvil-Stava, a pediatrician who treated
both Brelynn and Kamdyn, testified about the instructions she
gave to Cindy about safe sleep for babies. She explained that
after a baby is born, the parents are required to watch videos
on safe sleep for babies. She testified that these videos instruct
parents on the appropriate way for a baby to sleep, specifically
that the baby is to be placed on his or her back in his or her
own bed. Kratochvil-Stava further testified that if a baby has
a cold, she advises the parents that the baby should remain
on a firm mattress but that the head can be elevated by lifting
up the mattress about 15 to 20 degrees by placing something
underneath one end. Kamdyn suffered a cold when he was
approximately 2 months old. Cindy told the officers inves-
tigating the death that her doctor had instructed her to have
Kamdyn sleep on a “Boppy” style pillow due to his cold and at
a 45-degree angle. According to Cindy, one night, when he was
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IN RE INTEREST OF BRELYNN E.
Cite as 30 Neb. App. 723sleeping on this style of pillow, he rolled off of the pillow onto
his stomach, which resulted in his death. ­Kratochvil-Stava
denied advising Cindy to use this style of pillow to prop
Kamdyn up.
As part of the investigation of Kamdyn’s death, law enforce-
ment investigated Cindy’s residence. Harley Amy, an investiga-
tor with the Buffalo County sheriff’s office, observed that there
were prescription medications in bottles, as well as loose medi-
cations, within Brelynn’s reach. He testified that there was a
bassinet in Cindy’s bedroom; however, the bassinet was full of
items, including a basket of prescription medications and toys.
In addition, there was cough medicine spilled in the bassinet
that had not been cleaned up. He also observed that there was
mold growing on items in the kitchen and that the residence
smelled of feces and urine. Amy authored an affidavit request-
ing removal of Brelynn based on the uncleanliness of the home
and Kamdyn’s death. The affidavit also noted that Brelynn had
been previously sexually abused.
On November 6, 2018, the State filed a petition request-
ing that Brelynn be adjudicated as a juvenile under Neb. Rev.
Stat. § 43-247(3)(a) (Reissue 2016). The State asserted that
Brelynn had previously been in the care and custody of the
Department from June 2017 to June 2018 following reports of
Cindy’s inability to leave Brelynn with appropriate caretakers,
an unsanitary home, and Cindy’s mental health issues which
placed Brelynn at risk of harm. In addition, it was noted that
Brelynn had been previously sexually assaulted by Wesley.
Brelynn was removed from Cindy’s residence and was
placed with her maternal grandmother, Carol Gaedeke, in
November 2018. However, after approximately 10 days,
Gaedeke requested that Brelynn be removed from her home.
According to Gaedeke, she requested that Brelynn be removed
in part due to conflict she was experiencing with Cindy along
with the grief she was experiencing due to Kamdyn’s death.
The Department then placed Brelynn into foster care. After a
couple of shorter-term placements, Brelynn was placed with
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IN RE INTEREST OF BRELYNN E.
Cite as 30 Neb. App. 723a foster family in July 2019 who would consider providing a
permanent home for Brelynn, should that be necessary. Later,
on April 4, 2019, Gaedeke wrote an email to the court request-
ing that if Cindy’s parental rights to Brelynn were to be ter-
minated and Brelynn was to be adopted, Gaedeke would want
to be considered for her adoption. The court noted that it did
not consider or review the email and forwarded the email to
the attorneys. Although Brelynn lived in more than one foster
home, she was not again placed with Gaedeke; nor did she
return to Cindy’s care. Cindy continued to have supervised
­visits with Brelynn throughout the pendency of the case.
On March 9, 2020, Cindy filed a motion for an exception.
She asked for the court to grant her an exception to the State’s
duty to file a petition for termination of parental rights under
Neb. Rev. Stat. § 43-292.02(3)(b) (Cum. Supp. 2020). She
asserted that although more than 15 months had passed since
Brelynn was in the care of a nonrelative, she had not had a
reasonable opportunity to avail herself of the services deemed
necessary in the case plan. The court did not hold a hearing on
Cindy’s motion.
Two days later, on March 11, 2020, the State filed a motion
for termination of Cindy’s parental rights. The State alleged that
Brelynn had been in the care and custody of the Department
since November 2018. The State asserted that Brelynn had
been previously removed from Cindy’s care from May 26 until
May 31, 2016, and June 2017 until December 2017. The State
asserted that the grounds for termination of Cindy’s parental
rights were based on Neb. Rev. Stat. § 43-292(5), (6), and (7)
(Reissue 2016). The State alleged that Cindy was unable to
discharge her parental responsibilities because of mental illness
or mental deficiency and that there were reasonable grounds
to believe that this condition would continue for a prolonged
indeterminate period; that reasonable efforts to preserve and
unify the family had failed to correct the conditions; and that
Brelynn had been placed in an out-of-home placement for 15
or more months of the most recent 22 months. On June 1,
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IN RE INTEREST OF BRELYNN E.
Cite as 30 Neb. App. 7232020, Gaedeke filed a complaint to intervene, stating that she
wished to have permanent placement of Brelynn if Cindy’s
parental rights were terminated.
Trial on the motion for termination began on September 10,
2020, and continued for 6 days over the next few months, end-
ing on December 10. Numerous witnesses testified, including
Meidlinger, Kratochvil-Stava, Gaedeke, and Amy. In addition,
Cindy testified. We note that when Amy testified at trial, Cindy
objected, citing the doctrine of oneness and affinity, because
he was married to the State’s prosecuting attorney. She argued
that Amy’s testimony should be stricken. The court overruled
the motion. Several other mental health practitioners and case-
workers, as well as Brelynn’s foster parents, also testified. In
addition to the testimony recounted earlier, the following evi-
dence germane to our decision was adduced:
Samantha Keim, a child and family services specialist with
the Department, testified that the Department received a phone
call regarding an unresponsive child in Cindy’s home. During
the course of the Department’s investigation, investigators
learned that the house was not clean, that there were medica-
tions within reach of Brelynn, and that further concerns existed
regarding Cindy’s mental health. Keim explained that after
Brelynn was removed from the home for the third time, in
November 2018, it was determined that the initial goal of the
case should be reunification. Keim testified that the unclean-
liness of the home was alleviated and that the concerns for
Cindy’s mental health were not “as extreme at that point.”
However, she also testified that Cindy’s actions prevented
reunification from occurring. Keim explained that in January
2019, Cindy and her boyfriend at the time, Nathan Wheeler,
began yelling and using profanities toward visitation super­
visors. Another incident occurred in March 2019 in which law
enforcement had to be called. Keim explained that the visita-
tion worker requested Cindy to put Brelynn into a car seat and
to adjust the car seat. Keim explained that Cindy then noticed
the car seat was not attached and pushed the car seat, which
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IN RE INTEREST OF BRELYNN E.
Cite as 30 Neb. App. 723made Brelynn fall into the back of the driver’s seat. Cindy and
Wheeler began yelling at the worker. Keim explained that law
enforcement was called because Cindy and Wheeler refused
to give Brelynn back to the visitation worker. The Department
made a determination, based in part on these incidents, that
Cindy needed to demonstrate an ability to act respectfully
and to appropriately communicate with others in a moment
of crisis.
Brelynn worked with Jordan McCoy, a child, adolescent, and
family counselor, beginning in August 2017, prior to the start
of the current county court proceedings. After the start of the
proceedings, from November 2018 until March 2019, McCoy
saw Cindy and Brelynn for child-parent psychotherapy (CPP).
McCoy explained that CPP is a therapy that focuses on the rela-
tionship between a child and a caretaker and how the parent’s
mental health impacts this relationship. McCoy observed that
Brelynn struggled with anxiety, a heightened amount of wor-
ries, and emotional dysregulation. In addition, Brelynn’s social
and emotional development was lagging. McCoy also observed
that Brelynn would attempt to control situations because she
did not feel safe. She provided an example, that Brelynn would
attempt to control getting her shoes on and what she wanted to
eat. McCoy diagnosed Brelynn with other specified trauma and
a stressor-related disorder. McCoy also explained that Brelynn
presented with significant symptoms related to the trauma that
arose from Wesley’s sexual abuse, as well as neglect and inse-
cure attachment patterns with respect to Cindy.
McCoy observed how Cindy’s mental health affected
Brelynn. In McCoy’s opinion, Brelynn initially believed that
adults were not safe or consistent. McCoy testified that when
Cindy was consistent, Brelynn’s symptoms would improve,
but that when Cindy was not consistent, Brelynn would strug-
gle. McCoy also explained that after the death of Kamdyn,
Brelynn’s mental health was linked to Cindy’s mental health,
such that when Cindy would have a good mental health day,
Brelynn would have a better mental health day. McCoy also
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IN RE INTEREST OF BRELYNN E.
Cite as 30 Neb. App. 723observed that Brelynn’s emotional needs were not being con-
sistently met. McCoy testified that when Cindy’s mental health
was not good, Brelynn would take on the role of caretaker in a
role reversal. McCoy did witness progress with Cindy’s mental
health at times but found that it was not consistent. McCoy
testified that although Cindy reported that she had taken par-
enting classes multiple times, she struggled with implementing
the concepts she learned on a consistent basis. Cindy’s ability
to parent and implement what she learned was dependent on
her mental health. Cindy stopped seeing McCoy in March 2019
after McCoy needed to redirect Cindy multiple times to focus
on Brelynn’s needs as opposed to Cindy’s needs.
Keim contacted Thomas Maxson, a mental health therapist,
about Cindy’s beginning individual therapy in March 2019.
Cindy testified that she did not like to work with Maxson
because Maxson previously worked with Wesley and she did
not believe his therapeutic style was beneficial to her. Maxson
testified that Cindy told him that he was too intrusive and
intense; however, Maxson also explained that this opinion
arose only after he told Cindy his concerns about her moving
to Hershey, Nebraska, in 2019, which would have required
her to change providers and the effects that change may have
regarding custody of Brelynn.
Maxson diagnosed Cindy with major depressive disorder,
borderline personality disorder, and post-traumatic stress dis-
order. Maxson explained that borderline personality disorder
is characterized by emotional dysregulation when relationships
are cyclical between things going well one day and poorly
the next. He also explained that typically, people who suffer
from borderline personality disorder often have suicidal and
self-harm ideation, difficulties with maintaining relationships,
and emotional upheaval. Maxson reported that these disorders
usually exist on a continuum and can be actively managed
through work and application of what was learned in dialectical
behavioral therapy (DBT). DBT is a specific type of interven-
tion specifically created for people with suicidal ideation and
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IN RE INTEREST OF BRELYNN E.
Cite as 30 Neb. App. 723for people with borderline personality disorder. According to
Maxson, DBT focuses on the skill deficits found in persons
who suffer from borderline personality disorder. The therapeu-
tic process is designed to teach the patient emotional regulation
skills, interpersonal effectiveness in how to ask for what the
patient needs, distress tolerance skills, and tolerating strong
emotion without causing harm, in addition to mindfulness
skills. Cindy provided a letter to Maxson in June 2019 that she
would no longer work with him.
Cindy began attending DBT with Jamie Babutzke, another
mental health therapist, in April 2019. Babutzke diagnosed
Cindy with major depressive disorder, recurrent; post-traumatic
stress disorder; and borderline personality disorder. Babutzke
testified that Cindy attended the DBT sessions and attempted
to use what she learned in her everyday life, but Babutzke
noted that it was a “process.” Babutzke explained that Cindy’s
mental health would be cyclical, where she would have periods
when she would do very well and periods that would not go
as well. Babutzke observed in Cindy what she described as a
“pervasive pattern of instability in interpersonal relationships,
self-image, and impulsivity.” She also observed “recurrent sui-
cidal behavior, gestures, and threats” that affected her instabil-
ity due to “marked reactivity of mood, and trouble controlling
anger.” She conceded that in the period nearest trial, Cindy
had been less able to use the skills from DBT than she had in
the past.
Babutzke stated that she has not observed Cindy with her
children and that her reports are based only on interactions
with Cindy, visitation notes from the Department, and col-
lateral contacts. She testified that she had conversations with
Samantha Byrns, a therapist whom Cindy and Brelynn also
worked with at the time, about addressing grief and loss so
that Byrns could have more effective CPP with Cindy and
Brelynn. After reviewing visitation notes, Babutzke conceded
that Cindy had not provided emotional safety to Brelynn on
several occasions.
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IN RE INTEREST OF BRELYNN E.
Cite as 30 Neb. App. 723Byrns, a therapist who specializes in trauma treatment, also
treated Cindy and Brelynn and engaged in CPP with them
beginning in September 2019. Cindy and Brelynn had switched
providers after ending the relationship with McCoy. However,
Byrns testified that there were numerous delays in starting
CPP. Byrns believed that Cindy did not trust her and that as a
result, Cindy did not complete an initial interview in a timely
fashion. According to Byrns, Cindy wanted Byrns neither to
have access to the Department’s case file and intake form
nor to communicate with the Department. Byrns testified that
Cindy frequently wanted to discuss personal issues with Byrns
which prevented them from completing CPP. Byrns expressed
her concerns that the issues that Meidlinger pointed out 3 years
earlier were still present.
Dr. Narayana Koduri, a psychiatrist, began seeing Cindy
in January 2020. Koduri diagnosed Cindy with post-traumatic
stress disorder, major depressive disorder, and borderline per-
sonality disorder. According to him, Cindy had a psychiatric
appointment approximately once per month and based on his
observations of the refill records, Cindy was taking her medi-
cine appropriately. He acknowledged that Cindy had 15 prior
hospitalizations due to mental health issues. While under his
care, Cindy was twice hospitalized in 2020, which hospital-
izations, in his opinion, were linked to grief- or stress-related
responses by Cindy. He noted that although it was concerning
that Cindy’s condition had on those occasions deteriorated
to the point of requiring hospitalization, he was encouraged
that Cindy recognized when she was experiencing symptoms,
which prompted her to seek inpatient help.
Kratochvil-Stava testified as to Cindy’s parenting when
Brelynn was younger. She explained that when Brelynn was
9 months old, she would need to cough a lot, and Kratochvil-
Stava’s observation was that Cindy and Wheeler were very
aggressive to get these “cough[s] out.” Kratochvil-Stava
testified that when Brelynn would cough while seated in
her car seat, Cindy and Wheeler would flip the car seat
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Cite as 30 Neb. App. 723over to get her “to cough out whatever was bothering her.”
­Kratochvil-Stava expressed some concerns over whether there
was proper supervision of Brelynn, because Brelynn needed to
get stitches after falling out of bed and suffered a burn from
touching a hot stove. Kratochvil-Stava also spent significant
time educating Cindy on what a healthy genital area looks like,
because Cindy asked Kratochvil-Stava to conduct an anatomy
check each time Cindy brought Brelynn in.
There was significant testimony regarding Cindy’s taking
Brelynn to excessive doctor appointments. Keim observed that
Cindy took Brelynn to the doctor very often for small things
and that often, the doctor would report that there was nothing
wrong. S.C., a foster parent for Brelynn, testified that during
the 7 months Brelynn was in her care, Brelynn had 14 differ-
ent doctor appointments, mostly regarding holding her stool.
Another foster parent, K.W., believed that the number of doc-
tor appointments that Cindy scheduled for Brelynn was exces-
sive. According to both of these foster parents, Brelynn would
struggle with attending doctor and dentist appointments only if
Cindy was also there. At doctor appointments, S.C. observed
Cindy express anger about issues that affected only Cindy and
were not relevant to Brelynn. All of the foster parents testified
that Cindy was not accurate in the reporting of health issues
to Brelynn’s doctor. Cindy would often give accounts regard-
ing Brelynn’s health conflicting with the reports given by the
foster parents.
Brelynn had constipation issues that necessitated doctor
appointments for her. Kratochvil-Stava testified that she treated
Brelynn with oral medication for constipation but that it was
often insufficient. At one point, Brelynn would need either
to take a suppository or to undergo an invasive procedure at
the hospital. S.C. and her husband were able to give Brelynn
a suppository without any issues. However, Cindy was not
able to do so, because Brelynn became agitated. Cindy called
­Kratochvil-Stava and stated that there would be no more sup-
positories for Brelynn. Because Cindy did not want to go
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IN RE INTEREST OF BRELYNN E.
Cite as 30 Neb. App. 723forward with the suppository, Brelynn needed to undergo an
invasive procedure. Before the procedure, Brelynn needed
to drink a certain liquid medicine that children are typically
not able to drink. Kratochvil-Stava explained that if a child is
unable to drink the medicine, a tube would need to be inserted
that would run from the child’s nose to the child’s stomach.
Brelynn was able to drink the medicine after Cindy was able
to convince her. Kratochvil-Stava opined that the constipation
issues were behavioral issues that had to do with Brelynn’s
controlling when she would stool. These issues largely resolved
during periods when visitation was suspended.
Both the caseworkers assigned to the case and the foster
parents who testified reported that Cindy had difficulties being
honest with them. Keim testified that she could not determine
if information she received from Cindy about her mental health
appointments and Brelynn’s medical condition was truthful or
accurate. Keim needed to contact the provider to confirm the
accuracy of information provided. She testified that informa-
tion she received from Cindy was often not accurate. Hope
Holmes, a child and family services specialist employed with
the Department, testified that during the time she was assigned
to the case, Cindy had difficulties maintaining honesty with
the Department.
The caseworkers employed with the Department had dif-
ficulties working with Cindy throughout the case. Keim had
­negative interactions with Cindy, including that Cindy would
yell at her, would call her supervisor to complain, and was dis-
honest with her. Holmes also explained that there were a number
of visitation workers assigned to the case because the workers
reported difficulties in working with Cindy. She also explained
that Cindy would make complaints to the Department about
caseworkers which would also necessitate changing the work-
ers involved with Cindy. Holmes also explained that she spent
time encouraging Cindy and the foster parents to be able to
communicate with each other, but was not successful.
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IN RE INTEREST OF BRELYNN E.
Cite as 30 Neb. App. 723There were concerns expressed about Cindy’s ability to
lead a stable lifestyle. From July 2019 until the time of trial,
Cindy had five different jobs. At times, she worked very few
hours per week, while at other times, she worked full time.
Cindy accounted for the frequent changes by saying that she
was prioritizing her visits with Brelynn as opposed to work-
ing. Holmes testified that Cindy’s pattern with parenting was
also one of instability. She noted that when the Department
worked with Cindy in 2017, there were concerns regarding the
cleanliness of the house, and that the cleanliness of the house
was also an issue in 2018. Holmes also testified that in her
opinion, she has concerns about Cindy’s ability to pay her rent
and bills without relying on community resources. She noted
that even though Cindy lives in subsidized housing where
her rent is low, she has still had to seek assistance paying for
utilities and transportation. Holmes also expressed concern that
despite having years of therapy and counseling, Cindy contin-
ued to experience events which exacerbated Cindy’s mental
health struggles.
Holmes also noted that whenever the Department lessened
its involvement in Cindy’s day-to-day life, her circumstances
would regress, often back to what things were like before any
Departmental involvement. Holmes expressed concern that
Cindy would be unable to maintain long-term stability. She
noted that Cindy was able to show stability in her mental
health and employment at various points during the pendency
of the case, but could not sustain her progress for a signifi-
cant period.
K.W., one of Brelynn’s prior foster parents, testified as to
her experience with Cindy and Brelynn. When Brelynn was
2 years old, she moved into K.W.’s home. K.W. testified that
Brelynn was fearful and anxious when Brelynn first moved
into her home and was toilet trained. However, when visita-
tions occurred with Cindy, Brelynn began to have regressions
with respect to using the restroom. K.W. testified that when
Brelynn would return from visitations with Cindy, Brelynn
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Cite as 30 Neb. App. 723was not always fed or clean. K.W. observed that Cindy pro-
vided inaccurate information at doctor appointments. In addi-
tion, at one doctor appointment when K.W. was the only one
in the room with Cindy and Brelynn, Cindy told Brelynn,
“[D]on’t worry, Brelynn, Mommy and Daddy won’t hurt you,
but someone in this room may.” K.W. testified that soon after
that, she decided not to be Brelynn’s foster parent any longer
because she was afraid of Cindy.
S.C. also testified as to her difficulties with Cindy and
Brelynn. When Brelynn came to live with S.C.’s family,
Brelynn needed to control her environment. S.C. explained that
when visits with Cindy stopped, Brelynn’s behavior changed.
According to S.C., Brelynn was “fixated on whether or not
Cindy was okay.” S.C. also testified that when Brelynn lived
with her, Cindy “tried to control our house.” Examples of
Cindy’s trying to control included stating what diapers to
use or what milk Brelynn could drink. S.C. also testified that
Cindy would report to the Department different information
from the doctor than she in fact received from the doctor. S.C.
testified that the reason she decided to not continue as a foster
parent for Brelynn was because she did not want to work with
Cindy over an extended period of time.
T.J., who was one of Brelynn’s foster parents at the time of
trial, testified as to her experience with Cindy. Brelynn began
living with T.J. when Brelynn was 3 years old. When Brelynn
began living with T.J., Brelynn was “afraid of everything.”
T.J. testified that Brelynn struggled when she saw Cindy,
especially with respect to using the restroom. Upon com-
ing to T.J.’s home, Brelynn expressed her desire to be potty
trained, which was accomplished within a week. However,
when Brelynn was returned from a visit with Cindy, she
would be wearing “Pull-ups.” Brelynn would demand to be
put back into underwear upon her return. T.J. explained that
she attempted to communicate with Cindy; however, Cindy
stopped communicating information to her. T.J. also observed
that Brelynn did not always want to visit with Cindy and that
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Cite as 30 Neb. App. 723since visitations with Cindy stopped, Brelynn was happier and
acting better.
Cindy’s mother, Gaedeke, testified as to her relationship
with Cindy and Brelynn. She explained that she was the
original placement for Brelynn in November 2018. However,
she explained that Cindy and she had a “breakdown in com-
munication” where Cindy was attempting to direct Gaedeke
how to take care of Brelynn. She believed that she was capable
of taking care of Brelynn. Gaedeke explained that during the
pendency of the case, she had not been contacted to have
placement again. She believed that Cindy’s mental health had
improved through the pendency of the case, and she had no
concerns about Cindy’s ability to parent Brelynn.
Cindy testified as to her own progress throughout the case.
She believes that the goals in the present case should be the
same as those in the last case, which ended in reunification.
She explained that in her opinion, she has met the goals of hav-
ing a clean home and healthy relationships. She believes that
her mental health has greatly improved since she completed
DBT. She also believes that Koduri is a much better fit for her
mental health and believes that he has provided “the best med
management [she had] ever had.” She also explained that she
has been on medication, consistently, throughout the pendency
of the case.
Cindy also addressed several issues regarding her mental
health. She conceded that her first mental-health-related hos-
pitalization occurred when she was 12 or 13 years old. She
also acknowledged that she has had auditory or visual hallu-
cinations for at least 12 years. She explained that she has had
numerous therapists or counselors during this case because she
has, at various points, believed that her right to confidential-
ity was not being upheld. She also questioned the accuracy of
some of the reporting to the Department. She explained that
she stopped seeing McCoy because she did not believe she
could trust McCoy but then, after transferring CPP to Byrns,
later requested McCoy to work with her again.
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Cite as 30 Neb. App. 723She acknowledged that she “was horrible” in her behavior
toward caseworkers and others at the beginning of the case,
but believes that her mental health has improved. She con-
ceded that she had an anxiety attack in April 2018 leading
to ­inpatient treatment. She also conceded that in 2019, she
became “very depressed and tried to commit suicide” and as a
result was hospitalized. According to Cindy, she was hospital-
ized three times in 2020 due to her mental health, with the last
time occurring in August 2020. Koduri explained that Cindy’s
hospitalizations were results of suicidal thinking with respect
to grief reactions. However, Koduri observed that these were
not suicidal attempts.
Cindy addressed the testimony that she took Brelynn to
doctor appointments too often. She testified that in her previ-
ous case, the Department believed that Cindy was not meeting
Brelynn’s medical needs adequately. She testified that Keim
previously told her that “it is better to take your child to the
doctor and have them tell you that it’s nothing and go home
than for it to be something and not have taken them in.” She
also believed that the Department and foster parents were
ignoring signs and symptoms of Brelynn’s having urinary tract
infections. According to Cindy, the tests for whether Brelynn
had such an infection was noninvasive and she would often
test positive.
Cindy also testified as to the impact of therapy with Brelynn.
According to Cindy, Brelynn preferred McCoy because the
style of therapy was more conducive to their relationship. She
explained that there were a number of cancellations for her
therapy appointments with Byrns. She explained about an inci-
dent where Byrns canceled the day of the appointment, which
upset Brelynn. Cindy explained that when the COVID-19 pan-
demic occurred, Byrns was unable to conduct therapy sessions
because of technology issues. She acknowledged that there
were difficulties in establishing her relationship with Byrns
after leaving McCoy as a therapist. However, she believed
these difficulties were because of Brelynn’s struggles to transi-
tion from McCoy to Byrns.
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Cite as 30 Neb. App. 723On January 29, 2021, the county court entered its exten-
sive order terminating Cindy’s parental rights to Brelynn. The
court determined that the State presented clear and convincing
evidence to substantiate terminating Cindy’s parental rights
pursuant to § 43-292(5), (6), and (7) and that termination was
in the best interests of Brelynn. The court noted that Cindy’s
testimony lacked credibility, based on its observations and on
Cindy’s having admitted to lying to individuals involved in this
case. The court also noted that numerous witnesses testified as
to Cindy’s lack of honesty during the case.
The court first determined that the State had proved that
Cindy is unable to discharge her parental responsibilities to
Brelynn because of mental illness which will continue for
a prolonged and indeterminate period. The court found that
Cindy’s mental health history led her to numerous inpatient
stays, suicidal thoughts, poor judgment, and abusive and unsta-
ble relationships. In so finding, the court noted the expert
testimony of Meidlinger and several of the therapists who had
provided counseling to Cindy. It noted their opinions which
indicated that given the severity of the mental health conditions
from which Cindy suffers together with her record of being
unable to sustain long-term progress, meaningful improvement
of her mental health condition could not be expected.
The court also found that reasonable efforts to preserve and
unify the family had been made. The court noted that three
primary goals were identified for Cindy to achieve, those
being a safe and suitable living environment characterized
by a clean home and healthy relationships, the maintenance
of mental health, and the acquisition of the ability to meet
Brelynn’s needs. The court found that Cindy struggled with
having healthy relationships, had not maintained stability in
her mental health, and had not been able to consistently meet
Brelynn’s needs. The court noted several instances of Cindy’s
engaging in behaviors contrary to Brelynn’s needs. Therefore,
despite significant efforts made by the Department to achieve
reunification, Cindy had not progressed satisfactorily. Finally,
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Cite as 30 Neb. App. 723the court also found that Brelynn had been placed out of her
parental home for over 16 of the past 22 consecutive months
at the time of the State’s filing of the motion for termination
of parental rights and had remained in out-of-home placement
since that filing.
The court found that it was in the best interests of Brelynn
for Cindy’s parental rights to be terminated. The court found
that Cindy engaged in a pattern of failing to make good deci-
sions for herself and Brelynn. After noting that Brelynn had
been out of Cindy’s care on three separate occasions, the court
concluded that Cindy had not shown improvement in her par-
enting skills and mental health. The court found that Cindy
had not established a beneficial relationship with Brelynn. The
court explained that Cindy struggled to compose herself in
engaging with professionals and that there were concerns she
did not focus on Brelynn’s needs. The court determined that
based on the testimony of Brelynn’s therapists, Brelynn’s emo-
tional development and social development were lagging due to
Cindy’s inability to find mental stability and appropriately pri-
oritize Brelynn’s needs. The court noted the opinions of McCoy
and Byrns, who testified they believed that Brelynn’s anxiety
and stressors would resolve with consistent support, but found
that Cindy was unwilling or unable to provide that support.
Cindy now appeals to this court.
ASSIGNMENTS OF ERROR
Cindy’s assignments of error, consolidated, reordered, and
restated, are that the county court erred when it denied Gaedeke
placement of Brelynn during the pendency of the case, when
it did not hold a hearing on Cindy’s motion for an excep-
tion, and when it allowed the testimony of Amy. In addition,
Cindy assigns that the county court erred when it found that
the State proved by clear and convincing evidence statutory
grounds to justify the termination of her parental rights and
that it was in the best interests of Brelynn for her rights to
be terminated.
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Cite as 30 Neb. App. 723STANDARD OF REVIEW
[1] 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; 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. In re Interest of A.A. et
al., 307 Neb. 817, 951 N.W.2d 144 (2020).
ANALYSIS
Denial of Placement.
Cindy argues that the county court erred in not plac-
ing Brelynn with Gaedeke during the pendency of the case,
because she requested placement of Brelynn and it is the
Department’s policy to prioritize placement of a child with
family members.
[2] However, we do not reach this assignment of error upon
appeal. After Gaedeke had asked for Brelynn to be removed
from her home, Gaedeke sent an email requesting only that
she be considered for placement in the event that Cindy’s
parental rights were terminated. Gaedeke later filed a com-
plaint to intervene; however, her complaint to intervene was
filed after the State sought termination and reiterated only
that should Cindy’s rights be terminated, she wished to be
considered for Brelynn’s permanent placement. She did not
request temporary placement of Brelynn during the pendency
of the case, nor did she petition the court for temporary place-
ment. There was no pending motion in front of the county
court asking the court to consider Gaedeke as a placement for
Brelynn. As such, the court was never asked to consider plac-
ing Brelynn with Gaedeke during the pendency of the proceed-
ings. An appellate court will not consider an issue on appeal
that was not presented to or passed upon by the trial court.
In re Guardianship & Conservatorship of J.F., 307 Neb. 452,
949 N.W.2d 496 (2020). Accordingly, we do not address this
assignment of error.
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Cite as 30 Neb. App. 723Exception Hearing.
Cindy argues that Brelynn was in the care of the State for
more than 15 of the most recent 22 months before the State
filed its petition and that she filed an exception because she
needed more time to accomplish the goals contained within her
case plan. She then argues she is entitled to a hearing on her
motion for an exception under Neb. Rev. Stat. § 43-292.03(1)
(Reissue 2016). Cindy is correct insofar as she argues that
the statutory language of § 43-292.03(1) mandates a hearing.
However, we find no prejudice to Cindy by the court’s not hav-
ing an exception hearing.
Briefly, we review the relevant statutory language regarding
an exception hearing. Under subsection (1) of § 43-292.02, a
petition shall be filed on behalf of the State to terminate the
parental rights of a juvenile’s parents if a juvenile has been
in foster care under the responsibility of the State for 15 or
more months of the most recent 22 months. Subsection (3) of
§ 43-292.02 provides that the petition is not required to be filed
if the child is being cared for by a relative; the Department has
documented in the case plan or permanency plan a compel-
ling reason for determining that filing the petition would not
be in the best interests of the child; or the family of the child
has not had a reasonable opportunity to avail themselves of
the services deemed necessary in the case plan or permanency
plan approved by the court if reasonable efforts to preserve and
reunify the family are required.
Section 43-292.03(1) states that within 30 days after the
15-month period under subsection (1) of section 43-292.02,
the court shall hold a hearing on the record and shall make a
determination on the record as to whether there is an exception
under subsection (3) of § 43-292.02 in the particular case. If
there is no exception, the State shall proceed as provided in
subsection (1) of § 43-292.02.
[3-6] The Nebraska Supreme Court has explained that the
purpose of an exception hearing is to determine whether the
State may be excused from the mandatory requirement of
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Cite as 30 Neb. App. 723§ 43-292.02(1) that it file a petition to terminate parental rights
under certain circumstances. In re Interest of Clifford M. et
al., 261 Neb. 862, 626 N.W.2d 549 (2001). Under certain cir-
cumstances, the State is generally required to file a petition
to terminate the parental rights of the child’s parents, subject
to the outcome of the exception hearing. See id. If the court
determines that a statutory exception does not exist under
§ 43-292.02, then the State is required to file the petition. See
id. However, if a statutory exception under § 43-292.01 exists,
then the State is not required to file the petition but may do
so anyway. See id. The Supreme Court further explained that
a parent’s due process rights are not deprived just because an
exception hearing has not been held. See id. Instead, when there
is a full opportunity to appear and present defenses at a hearing
regarding the termination petition, a court does not deprive the
parent’s due process rights. The court found that although an
exception hearing may afford a basis for relieving the State of
its statutory obligation to file a petition to ­terminate parental
rights, no language in either § 43-292.02 or § 43-292.03 pre-
vents the State from petitioning to terminate parental rights.
See In re Interest of Clifford M. et al., supra.
Cindy is correct insofar as there was no exception hearing in
the present case despite the mandatory directive of the statute.
However, the State may choose to file the termination petition
after the 15-month period regardless of the outcome of the
exception hearing. At the termination trial, the State presented
evidence that Cindy was unable to make progress on her case
plan goals despite the length of time the case was pending.
The State also asserted that termination of Cindy’s parental
rights was appropriate because Cindy was unable to discharge
her parental responsibilities due to her mental health or mental
deficiencies. It is reasonable to infer that even if there was an
exception hearing and an exception had been found, the State
would have chosen to file the termination petition rather than
allow Cindy additional time to work toward reunification.
Additionally, because, in the present case, there was a full
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Cite as 30 Neb. App. 723hearing on the termination petition and Cindy had an opportu-
nity to appear and present defenses, Cindy’s due process rights
were not implicated. Therefore, we find no error in the court’s
decision not to hold an exception hearing.
Investigator Amy’s Testimony.
Amy testified about the investigation that he and law enforce-
ment conducted with respect to Kamdyn’s death at Cindy’s
residence. Prior to his testimony, Cindy objected because the
deputy county attorney prosecuting the case was married to
Amy. Cindy asserted the doctrine of affinity and oneness as
a basis for her challenge. The county court took the objec-
tion under advisement and allowed Amy to testify. Cindy later
argued that the basis of her objection was that there was a
conflict of interest in having the prosecuting attorney question
her own husband. Cindy argued that Amy’s testimony should
have been stricken. The court found that the objection to the
testimony of the witness was not a proper remedy; rather, the
proper remedy would be a motion to disqualify the prosecutor.
The court also noted that a motion to disqualify the prosecut-
ing attorney was not made. As a result, the court overruled the
motion to exclude Amy’s testimony. On appeal, Cindy reiter-
ates her argument that there was a conflict when Amy testified
while married to the prosecuting attorney. She asserts that the
court erred when it allowed Amy to testify. However, she now
asserts in the alternative that the prosecuting attorney should
have been recused.
The issue of whether the prosecuting attorney should have
voluntarily recused herself is not properly before us. An appel-
late court will not consider an issue on appeal that was not pre-
sented to or passed upon by the trial court. In re Guardianship
& Conservatorship of J.F., 307 Neb. 452, 949 N.W.2d 496(2020). The initial objection and the argument before the
county court focused on whether the testimony was admis-
sible. Only upon appeal does Cindy now argue that the pros-
ecuting attorney should have recused herself from the case.
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Cite as 30 Neb. App. 723Accordingly, we do not address whether there was error in
that regard.
Cindy does not provide any case law to support her argu-
ment that Amy’s testimony was inadmissible due to his rela-
tionship with the prosecuting attorney. Our review of the case
law also does not reveal any authority on this issue. We focus
on whether Cindy’s due process rights were violated by allow-
ing the testimony of Amy. On the record before us in this case,
we cannot find that Cindy suffered prejudice based on the evi-
dence adduced. Amy’s testimony focused on the initial encoun-
ter with Cindy and an investigation of her residence following
Kamdyn’s death. This testimony was duplicative of evidence
received in the form of the Department intake reports that were
received which detailed the condition of the home and the
events surrounding Kamdyn’s death. In other respects, it was
duplicative of the testimony of the pediatrician who testified
about treating Kamdyn. Therefore, we do not find that Cindy
was prejudiced by allowing Amy to testify.
We are troubled by the fact that the attorney called her hus-
band to testify as a witness and more troubled by the fact that
according to the prosecuting attorney’s statements, this is not
the first case where she has called her husband to testify. The
Supreme Court has long held that there should not be anything
in the way of private interest to possibly sway the judgment of
a prosecutor in prosecuting persons whose guilt is so doubt-
ful or to tempt him or her to depart from a disinterested and
conscientious discharge of his or her duty. Ress v. Shepherd, 84
Neb. 268, 120 N.W. 1132 (1909). We also note that as early as
1993, an ethics advisory opinion for lawyers was issued stating
that a county attorney whose spouse is a police officer should
not personally prosecute any case in which his or her spouse
will be called as a witness. See Neb. Ethics Adv. Op. No. 93-5
(1993). Given the prosecuting attorney’s statements during the
case that she has worked on many cases where her husband has
testified, we note that it would be the better practice for the
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Cite as 30 Neb. App. 723attorney to recuse herself in such cases in order to foreclose
any questions of impropriety.
However, pursuant to the specific facts of this case, we do
not find that there was any prejudicial error to Cindy by virtue
of the court’s decision to receive Amy’s testimony. Therefore,
we find this assigned error to be without merit.
Statutory Grounds.
[7] Cindy argues that the county court erred in finding the
State proved by clear and convincing evidence that statutory
grounds existed to terminate her rights. For a juvenile court to
terminate parental rights under § 43-292, it must find that one
or more of the statutory grounds listed in this section have been
satisfied and that such termination is in the child’s best inter-
ests. In re Interest of Becka P. et al., 27 Neb. App. 489, 933
N.W.2d 873 (2019). The State must prove these facts by clear
and convincing evidence. Id.[8] The county court found that the State presented evidence
to satisfy § 43-292(5), (6), and (7). Section 43-292(7) allows
for termination when the juvenile has been in an out-of-home
placement for 15 or more months of the most recent 22 months.
It operates mechanically and, unlike the other subsections of
the statute, does not require the State to adduce evidence of
any specific fault on the part of a parent. In re Interest of Becka
P. et al., supra. In a case of termination of parental rights based
on § 43-292(7), the protection afforded the rights of the parent
comes in the best interests step of the analysis. In re Interest of
Becka P. et al., supra.
[9] Cindy concedes that Brelynn had been out of the home
for 15 of the most recent 22 months at the time the motion to
terminate parental rights was filed; nevertheless, she argues that
an exception should be provided to the “‘hard and fast’” cal-
culation of the timeframe. Brief for appellant at 40. However,
the proper application of § 43-292(7) consists of counting the
most recent 22 months preceding the filing of the petition to
terminate parental rights, followed by counting how many of
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Cite as 30 Neb. App. 723those 22 months the child was in out-of-home placement. In
re Interest of Kindra S., 14 Neb. App. 202, 705 N.W.2d 792(2005). Here, Brelynn was removed from Cindy’s residence in
November 2018. At no time was she returned to Cindy’s care.
The State filed its motion for termination of parental rights on
March 11, 2020, and the termination trial was held between
September 10 and December 10. When the motion for termina-
tion was filed, Brelynn had been out of the home for about 16
months. By the last day of trial, Brelynn had been out of the
home for over 24 months. Accordingly, we find no error in the
county court’s determination that the State had proved the nec-
essary elements of § 43-292(7).
[10] Section 43-292 provides 11 separate conditions, any
one of which can serve as the basis for termination when cou-
pled with the 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). Because we conclude that the
State presented clear and convincing evidence that grounds to
terminate existed under § 43-292(7), we need not address the
other statutory grounds.
Best Interests.
[11] Cindy also argues that the county court erred in find-
ing that it was in Brelynn’s best interests to terminate Cindy’s
parental rights. In addition to proving a statutory ground, the
State must show that termination of parental rights is in the
best interests of the child. In re Interest of Becka P. et al.,
supra. A parent’s right to raise his or her child is constitution-
ally 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.
[12,13] The term “unfitness” is not expressly used in
§ 43-292, but the concept is generally encompassed by the
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Cite as 30 Neb. App. 723fault and neglect subsections of that statute, and also through
a determination of the child’s best interests. In re Interest of
Kendra M. et al., 283 Neb. 1014, 814 N.W.2d 747 (2012).
In the context of the constitutionally protected relationship
between a parent and a child, parental unfitness means a per-
sonal deficiency or incapacity which has prevented, or will
probably prevent, performance of a reasonable parental obliga-
tion in child rearing and which caused, or probably will result
in, detriment to the child’s well-being. Id.[14] The best interests analysis and the parental fitness anal-
ysis are fact-intensive inquiries. And while both are separate
inquiries, each examines essentially the same underlying facts.
In re Interest of Becka P. et al., 27 Neb. App. 489, 933 N.W.2d
873 (2019). 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 a parent and a child.
Id. In cases where termination of parental rights is based on
§ 43-292(7), the Supreme Court has held that appellate courts
must be particularly diligent in their de novo review of whether
termination of parental rights is in fact in the child’s best inter-
ests. In re Interest of Becka P. et al., supra.
We first note that Brelynn has been removed from Cindy’s
care on three separate occasions, including the present case.
Following Wesley’s sexual abuse of Brelynn, Cindy volun-
tarily allowed removal of Brelynn from her residence. Despite
the fact that Cindy believed Wesley was sexually abusing
Brelynn, he continued to reside with Cindy for a period of
time thereafter. Brelynn was removed the second time because
there were concerns regarding an unsanitary home, Cindy was
leaving Brelynn with inappropriate individuals, and Cindy
was struggling with her mental health. Although the first two
removals resulted in reunification, the same issues surfaced
in the present case. Law enforcement reported an unsanitary
home, including that there was medicine in reach of Brelynn
and that the home smelled of feces and urine. One’s history
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Cite as 30 Neb. App. 723as a parent speaks to one’s future as a parent, and past parent-
ing outcomes should not be ignored. See In re Interest of Sir
Messiah T. et al., 279 Neb. 900, 782 N.W.2d 320 (2010).
The evidence demonstrated that Cindy continued to struggle
with her mental health. She reported that she has been suffer-
ing auditory and visual hallucinations for more than 12 years
and acknowledged recurring instances of deterioration requir-
ing hospitalization. Although she believes that she is making
progress in resolving her mental health issues, the county court
found that she lacked credibility, and the remaining evidence,
including the testimony of numerous mental health practition­
ers, showed that she continued to struggle. On appeal, we 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 Lisa W. & Samantha W., 258 Neb. 914, 606 N.W.2d
804 (2000).
Cindy has been hospitalized over 20 times regarding her
mental health issues, most recently in August 2020. These
hospitalizations have occurred due to anxiety attacks and,
more troubling, suicidal thoughts. The evidence at trial showed
that following Kamdyn’s death, Cindy’s and Brelynn’s mental
health became linked. When Cindy would struggle with main-
taining her mental health, Brelynn would likewise struggle.
Cindy understood the importance of the principles that she
learned in therapy but repeatedly struggled to implement these
principles. Brelynn would act as a caregiver to Cindy during
Cindy’s periods of decompensation, a scenario not healthy for
either Brelynn or Cindy.
The mental health struggles led to physical symptoms in
Brelynn. Cindy’s inability to have stability in her mental health
led Brelynn to demonstrate controlling behaviors. These con-
trolling behaviors included her being constipated to the point
where she needed to be in the hospital for an invasive proce-
dure. According to McCoy, if Brelynn had stability in her life,
her controlling behaviors would abate. This is corroborated by
the testimony of Brelynn’s foster parents, who testified that
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
IN RE INTEREST OF BRELYNN E.
Cite as 30 Neb. App. 723Brelynn’s controlling behaviors were tempered after not hav-
ing visitations with Cindy. In addition, Cindy’s mental health
issues, including narcissism, led her to take Brelynn to doctor
appointments more frequently than she should.
The testimony from the foster parents demonstrated that
Brelynn has thrived while outside of Cindy’s care. The foster
parents testified that when they took Brelynn to doctor or den-
tist appointments without Cindy, Brelynn would not be anx-
ious. It was only when Cindy also attended that Brelynn would
become agitated about attending these appointments. After
returning from visits with Cindy, Brelynn regressed in her abil-
ity to be toilet trained. She also returned from visits in dirty
clothes or inappropriately dressed. Although different thera-
pists testified that Cindy and Brelynn have a bond together,
they also testified that Cindy struggled with being able to care
for Brelynn or put Brelynn’s needs above her own.
Not all of the evidence is negative toward Cindy. Evidence
was adduced which demonstrated that Cindy made efforts
toward self-improvement and in her parenting skills. Unfortu­
nately, those efforts have not resulted in her becoming capable
of being able to satisfy her parental obligations and provide for
Brelynn’s well-being on a consistent basis. The testimony of
Cindy’s caseworkers, counselors, and support workers estab-
lished that Cindy would remain in need of significant assist­
ance for an indeterminate period of time and that she was not
appreciably closer to having the ability to meet her parental
obligations as of the time of trial. At the time of trial, Brelynn
had been out of the home for over 2 years. Children cannot,
and should not, be suspended in foster care or be made to
await uncertain parental maturity. In re Interest of Jahon S.,
291 Neb. 97, 864 N.W.2d 228 (2015). Termination of Cindy’s
parental rights, therefore, is in Brelynn’s best interests, as it
will prevent her from further languishing in foster care while
awaiting Cindy’s uncertain ability to attain the skills necessary
for parental maturity.
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
IN RE INTEREST OF BRELYNN E.
Cite as 30 Neb. App. 723CONCLUSION
Based on the foregoing, we conclude that the county court
did not err by not holding an exception hearing or by receiving
Amy’s testimony. Since there was no request during the pend­
ency of the case to have Brelynn placed with Gaedeke prior
to termination of Cindy’s parental rights, we do not address
this assignment of error. We also conclude that the State proved
that grounds for termination of her parental rights existed
under § 43-292(7) and that their termination was in the best
interests of Brelynn. Accordingly, we affirm the order of the
county court.
Affirmed.