In re Interest of Cameron L. & David L. , 32 Neb. Ct. App. 578 ( 2024 )

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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
IN RE INTEREST OF CAMERON L. & DAVID L.
Cite as 32 Neb. App. 578In re Interest of Cameron L. and David L.,
children under 18 years of age.
State of Nebraska, appellee,
v. Clarissa L., appellant.
___ N.W.2d ___
Filed January 23, 2024. No. A-23-377.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juve-
nile cases, including those under the Nebraska Indian Child Welfare Act,
de novo on the record and reaches its conclusions independently of the
juvenile court’s findings in a termination of parental rights case.
2. Parental Rights: Proof. To terminate parental rights, it is the State’s
burden to show by clear and convincing evidence both that one of the
statutory bases enumerated in Neb. Rev. Stat. § 43-292 (Reissue 2016)
exists and that termination is in the child’s best interests.
3. Indian Child Welfare Act: Parental Rights: Proof: Expert Witnesses.
The Nebraska Indian Child Welfare Act adds two additional elements
the State must prove before terminating parental rights in cases involv-
ing Indian children. First, the State must prove by clear and convincing
evidence that active efforts have been made to prevent the breakup
of the Indian family and that these efforts have proved unsuccessful.
Second, the State must prove by evidence beyond a reasonable doubt,
including testimony of qualified expert witnesses, that the continued
custody of the child by the parent or Indian custodian is likely to result
in serious emotional or physical damage to the child.
4. Trial: Evidence: Appeal and Error. To preserve a claimed error in
admission of evidence, a litigant must make a timely objection that
specifies the ground of the objection to the offered evidence.
5. Trial: Expert Witnesses: Appeal and Error. A trial court is allowed
discretion in determining whether a witness is qualified to testify as an
expert, and unless the court’s finding is clearly erroneous, such a deter-
mination will not be disturbed on appeal.
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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
IN RE INTEREST OF CAMERON L. & DAVID L.
Cite as 32 Neb. App. 5786. Parental Rights: Proof. Neb. Rev. Stat. § 43-292(7) (Reissue 2016)
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.
7. Parental Rights. In a case of termination of parental rights based on
Neb. Rev. Stat. § 43-292(7) (Reissue 2016), the protection afforded the
rights of the parent comes in the best interests step of the analysis.
8. Parental Rights: Evidence: Appeal and Error. If an appellate court
determines that the lower court correctly found that termination of
parental rights is appropriate under one of the statutory grounds set forth
in Neb. Rev. Stat. § 43-292 (Reissue 2016), the appellate court need not
further address the sufficiency of the evidence to support termination
under any other statutory ground.
9. Parental Rights: Proof. In addition to proving a statutory ground, the
State must show that termination of parental rights is in the best interests
of the children.
10. Constitutional Law: Parental Rights: Proof. A parent’s right to raise
his or her child is constitutionally protected; so before a court may ter-
minate parental rights, the State must show that the parent is unfit.
11. Parental Rights: Presumptions: Proof. There is a rebuttable presump-
tion that the best interests of a 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.
12. Parental Rights. The best interests analysis and the parental fitness
analysis are fact-intensive inquiries. And while both are separate inqui-
ries, each examines essentially the same underlying facts as the other.
13. 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 parent and child.
14. Parental Rights: Appeal and Error. Where termination of parental
rights is based on Neb. Rev. Stat. § 43-292(7) (Reissue 2016), 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 interests.
15. Parental Rights. Where a parent is unable or unwilling to rehabilitate
himself or herself within a reasonable time, the best interests of the child
require termination of the parental rights.
16. ____. Children cannot, and should not, be suspended in foster care or be
made to await uncertain parental maturity.
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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
IN RE INTEREST OF CAMERON L. & DAVID L.
Cite as 32 Neb. App. 578Appeal from the Separate Juvenile Court of Lancaster
County: Shellie D. Sabata, Judge. Affirmed.
Jonathan Seagrass, Jennifer Gaughan, Abby Kuntz, Patrick
Carraher, and Mark Bestul, of Legal Aid of Nebraska, for
appellant.
Tara A. Parpart, Deputy Lancaster County Attorney, for
appellee.
Joy Kathurima and Rose Godinez for amicus curiae ACLU
of Nebraska Foundation.
Pirtle, Chief Judge, and Moore and Arterburn, Judges.
Moore, Judge.
I. INTRODUCTION
Clarissa L. appeals from an order of the separate juvenile
court of Lancaster County, terminating her parental rights to
two of her children. Clarissa assigns that the State failed to
prove beyond a reasonable doubt, as required by the Indian
Child Welfare Act (ICWA) and the Nebraska Indian Child
Welfare Act (NICWA), through qualified expert witness testi-
mony, that the continued custody of the children by Clarissa
was likely to result in serious emotional or physical damage
to them. Clarissa also assigns that the termination of her
parental rights was not in the children’s best interests. Upon
our de novo review of the record, we affirm the juvenile
court’s order.
II. STATEMENT OF FACTS
1. Procedural Background
Clarissa is the biological mother of David L., born in
December 2014, and Cameron L., born July 2016. Clarissa
is also the mother of Qlani L., born in September 2005,
and Dazianna L., born in October 2007. Though Qlani and
Dazianna were removed from Clarissa’s care along with
David and Cameron and named in the petition, the motion
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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
IN RE INTEREST OF CAMERON L. & DAVID L.
Cite as 32 Neb. App. 578for termination of Clarissa’s parental rights and subsequent
order relate only to David and Cameron. All four children
share the same biological father. As discussed further below,
the father’s parental rights to David and Cameron were ter-
minated during these same proceedings, and we discuss him
only as necessary to the resolution of the current appeal
by Clarissa.
Qlani, Dazianna, David, and Cameron were removed from
Clarissa’s care by law enforcement on February 14, 2020,
after Clarissa was found intoxicated on a city bus and was
placed into a “detox” facility. There were additional reports
that Clarissa had hit either David or Cameron and frequently
left them unsupervised at a family homeless shelter. A petition
was filed on February 18 to adjudicate all four children pursu-
ant to Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016), based
on Clarissa’s subjecting the children to excessive physical
discipline and becoming so intoxicated that she was unable
or unwilling to provide adequate care to the children, placing
them at risk of harm. That same day, the juvenile court entered
an ex parte order for temporary emergency custody, placing
the four children in the care of the Nebraska Department of
Health and Human Services (the Department).
An order entered on February 19, 2020, reflects that at
a hearing held that day, the juvenile court inquired as to
whether Indian children were involved in the proceedings and
directed the State and the Department to give notice to the
appropriate identified tribe pursuant to NICWA. The order
lists the Oglala Sioux Tribe (the Tribe) as the tribe on record.
Also at this hearing, Clarissa was appointed a guardian ad
litem, though the reason for the appointment is unclear from
our record.
On March 2, 2020, the State filed an “ICWA Notice”
addressed to the ICWA administrator of the Tribe; the
Aberdeen, South Dakota, regional director of the Bureau of
Indian Affairs; Clarissa; and the father. The notice stated
that proceedings regarding the four children had begun in
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IN RE INTEREST OF CAMERON L. & DAVID L.
Cite as 32 Neb. App. 578the juvenile court and that it was believed both David and
Cameron were eligible for enrollment in the Tribe. Qlani and
Dazianna were already enrolled members. Both Clarissa and
the father were listed in the notice as enrolled members of the
Tribe. The notice further indicated that a temporary custody
hearing was scheduled for March 25. The State subsequently
filed affidavits evidencing that the notices had been mailed.
The adjudication hearing scheduled for March 2020 was
continued to April 29, due to the COVID-19 pandemic. On
March 27, the State filed another “ICWA Notice” addressed
to the same individuals, indicating the date of the continued
temporary custody hearing, and the State subsequently filed
affidavits of notice evidencing that the notices had been
mailed. The address and individual recipient listed by the
State for the Tribe in this second ICWA notice is different
than that included in the first.
An order entered on May 8, 2020, indicated that a tem-
porary custody and adjudication hearing was held on April
29. A bill of exceptions from this hearing does not appear in
our record on appeal. A representative of the Tribe appeared
telephonically at the hearing, and the juvenile court received
a “Certificate of Indian Blood” for both Qlani and Dazianna.
Clarissa entered a denial of the allegations contained in
the petition. The representative requested leave on behalf of
the Tribe to intervene in these proceedings as to Qlani and
Dazianna, which the court granted. The representative then
advised the court that the Tribe did not object to the tempo-
rary custody hearing proceedings and did not object to Shirley
Bad Wound providing qualified expert witness testimony, and
Bad Wound made statements to the court. The hearing was
continued to May 6.
In its May 8, 2020, order, the juvenile court found that
active efforts were being made to prevent continued removal
of Qlani, Dazianna, David, and Cameron from the parental
home, and to provide remedial services and rehabilitative
programs designed to prevent the breakup of the Indian
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Nebraska Court of Appeals Advance Sheets
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IN RE INTEREST OF CAMERON L. & DAVID L.
Cite as 32 Neb. App. 578family. Specifically, the court identified these efforts to
include an initial diagnostic interview, a substance use evalu-
ation, substance abuse treatment, drug and alcohol testing,
“an EDN assessment, CPP assessments, trauma assessments,
and a Smart Talk phone.” The court also found by clear and
convincing evidence, including the testimony of a qualified
expert witness, that returning legal and physical custody of
the four children to a parent would be contrary to the health,
safety, and welfare of the juveniles and likely result in “seri-
ous physical or emotional harm” to the children. The court
ordered the four children to remain in the temporary legal and
physical custody of the Department. The court further ordered
that the Department should investigate ICWA priority place-
ments in consultation with the Tribe.
A contested adjudication trial was held on June 22, 2020,
and an order was entered that same day. A bill of exceptions
from this hearing does not appear in our record on appeal.
The juvenile court found that the allegations of the petition
regarding Clarissa were true by a preponderance of evidence.
The court ordered that Clarissa cooperate with a co-occurring
evaluation, that she not possess or consume alcohol or con-
trolled substances and submit to random drug and alcohol
testing, and that the Department provide Clarissa with any
treatment and services recommended by her evaluations and
continue to investigate ICWA priority placements for the four
children in consultation with the Tribe.
The juvenile court entered a dispositional order for Clarissa
on August 8, 2020, adopting the case plan presented by
the Department as modified. This specific case plan is not
included in our record. The court ordered that Clarissa par-
ticipate in co-occurring residential treatment to address her
drug use and mental health needs, submit to random drug and
alcohol testing, not possess or consume alcohol or controlled
substances, maintain a legal means of support and a safe and
stable home for the children, and participate in supervised
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IN RE INTEREST OF CAMERON L. & DAVID L.
Cite as 32 Neb. App. 578parenting time with the children as arranged and approved by
the Department.
On October 21, 2020, the Department filed a motion to
suspend weekly visitation between Clarissa and the four chil-
dren. In an attached affidavit, the family’s caseworker at the
time described Clarissa’s inappropriate behavior during visita-
tion, including using profane language, expressing delusional
thinking, disparaging the children’s father, and coaching the
children to report abuse from their foster parent. Clarissa was
not able to be redirected. Additionally, she had threatened the
family support worker and was arrested after trespassing at
the foster parent’s home. The children’s therapist at the time
recommended to the caseworker a cessation of Clarissa’s vis-
its until Clarissa addressed her mental health and substance
use issues. An order entered by the juvenile court the same
day suspended Clarissa’s visitation until further order by
the court.
Several review hearings were held during the case, occurring
on October 5, 2020; January 5, February 26, May 3, November
2, and December 13, 2021; and January 26, February 9, May
17, August 2, and November 1, 2022. At the October 2020
review hearing, the juvenile court modified the dispositional
plan to order that the Department arrange sibling visitation,
because the four children had not been placed in the same
foster home. David and Cameron have been placed in the
same foster homes throughout the entirety of the case. At
the January 2021 review hearing, the juvenile court again
modified the dispositional plan to order that Clarissa have
only therapeutic contact with the children and complete a psy-
chological evaluation, with a substance use component, and
a parenting assessment. The rehabilitative case plan goals for
Clarissa have been consistent throughout the case, including
that she abstain from using alcohol and controlled substances
and participate in short-term residential treatment.
At the February 2021 review hearing, the juvenile court
found that a primary permanency plan for all four children
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IN RE INTEREST OF CAMERON L. & DAVID L.
Cite as 32 Neb. App. 578of guardianship, with a concurrent plan of reunification with
a parent, was appropriate. At the May 2021 review hearing,
the court found an exception to the statutory requirement that
the State file a motion for the termination of parental rights at
that point in the proceedings, as doing so would not be in the
best interests of the children given the primary permanency
plan of guardianship. In the order reflecting the February 2022
review hearing, the court listed the primary permanency plan
as “guardianship/adoption,” with a concurrent plan of reunifi-
cation, but in orders reflecting subsequent review hearings, the
primary permanency plan includes only guardianship.
On January 18, 2023, the State filed a supplemental peti-
tion, including an allegation against the children’s father, and
a motion for termination of Clarissa’s and the father’s rights
to David and Cameron, alleging statutory grounds to ter-
minate Clarissa’s rights existed pursuant to Neb. Rev. Stat.
§ 43-292(1), (2), (6), (7), and (9) (Reissue 2016) and to ter-
minate the father’s rights existed pursuant to § 43-292(1), (2),
(7), and (9). The motion alleged that termination of the parents’
rights was in the best interests of the children.
On February 2, 2023, the State sent an ICWA notice to
the Tribe, the Aberdeen regional director of the Bureau of
Indian Affairs, Clarissa, and the father. The notice attached the
supplemental petition and motion for termination of parental
rights, detailed the date of the termination trial, and stated
that David and Cameron may be eligible for membership in
the Tribe. The State filed an affidavit and notice on February
7, evidencing that the ICWA notice had been mailed to both
the Tribe and the Aberdeen regional director. In later affida-
vits, the State attached certified mail receipts showing that
the ICWA notice had been received by the Aberdeen regional
director on February 6 and the Tribe on February 9.
On March 3, 2023, Clarissa filed a notice of tribal eligibility
and attached a letter from the Tribe’s ICWA technician stating
that both David and Cameron were eligible for enrollment in
the Tribe.
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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
IN RE INTEREST OF CAMERON L. & DAVID L.
Cite as 32 Neb. App. 578An order entered on March 10, 2023, memorialized a
hearing held earlier that day. A bill of exceptions from this
hearing is not included in our record on appeal. At the hear-
ing, the juvenile court received the tribal eligibility letter
into evidence. Clarissa requested that the court find David
and Cameron to be “Indian children as defined by [ICWA].”
Based on the parties’ stipulation that the biological parents are
enrolled members of the Tribe and the tribal eligibility letter,
the court found that “the [ICWA] provisions apply to Cameron
and David from this date forward.” The court further noted
that because it was previously determined that ICWA applied
to Qlani and Dazianna, the court had made findings regarding
active efforts throughout the duration of the case. The Tribe
did not intervene on behalf of David and Cameron as it had
for their older siblings.
2. Trial
A termination trial was held on April 13, 2023. No represent­
ative from the Tribe appeared at trial. The following evidence
regarding Clarissa, David, and Cameron was adduced.
(a) Clarissa’s Case Progress
Connie Nemec, the family’s caseworker since May 2021,
testified to Clarissa’s progress with the dispositional plan.
Clarissa had several contacts with law enforcement through-
out the juvenile case. The Department’s case plans demon-
strate that from July 2020 to November 2021, Clarissa was
charged with concealing merchandise, loitering and trespass-
ing, and possession of a controlled substance, though it is
unclear whether these charges resulted in any convictions. In
December 2021, she was charged with entering a motor vehicle
without permission and “served fines” for her November 2021
possession conviction. In March 2022, Clarissa was charged
with possession of a controlled substance, criminal trespass,
and criminal mischief, for which convictions she was sen-
tenced to 60 days’ incarceration. In May 2022, Clarissa was
charged with possession of a controlled substance, for which
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IN RE INTEREST OF CAMERON L. & DAVID L.
Cite as 32 Neb. App. 578conviction she was sentenced to 40 days’ incarceration. In July
2022, Clarissa was charged with possession of a controlled
substance and burglary, for which convictions she was fined
$200 and sentenced to 40 days’ incarceration. At the time of
trial, Clarissa had a pending theft by unlawful taking charge
from October 2022.
Clarissa’s contact with Nemec was sporadic. Though when
Clarissa was incarcerated, she had frequent conversations
with Nemec where she asked for assistance in accessing
services and admitted to methamphetamine use and to her
need for residential treatment. Clarissa maintained consistent
contact with Nemec from October 2022 to March 2023, dur-
ing which Clarissa would ask about the well-being of David
and Cameron.
Clarissa completed a substance use evaluation at a psychi-
atric hospital in January 2021. The substance use evaluation
initially recommended that Clarissa attend a co-occurring
intensive outpatient treatment program. However, soon after
starting intensive outpatient treatment, Clarissa reported to
her provider that she was “hungover” and had recently used
substances. In a February 2021 letter to the Department,
Clarissa’s provider diagnosed her with “Social Anxiety
Disorder, Unspecified Trauma and Stressor Related Dis­order,”
and various substance use disorders, and the provider rec-
ommended that Clarissa participate in short-term residential
treatment. The evaluation and followup letter are attached to
the Department’s February 2021 case plan.
On October 10, 2022, Clarissa was jailed for her theft by
unlawful taking charge. Clarissa participated in a co-occurring
evaluation in February 2023 while she was incarcerated. The
evaluator found that Clarissa met the full diagnostic crite-
ria for having a stimulant use disorder and an alcohol use
disorder. The evaluation recommended that Clarissa partici-
pate in long-term residential treatment in which she could
remain in a supportive, sober environment to reduce the risk
of relapse and change behavioral and cognitive patterns that
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IN RE INTEREST OF CAMERON L. & DAVID L.
Cite as 32 Neb. App. 578reinforced her substance use. It was also recommended that,
following discharge, Clarissa should participate in a “step
down” treatment to maintain accountability and support. The
co-occurring evaluation was attached to the Department’s
March 2023 case plan.
Clarissa entered St. Monica’s for residential substance use
treatment in late February 2023. Nemec stated that though
Clarissa had an outstanding warrant connected to a controlled
substance charge, she was conditionally allowed to be released
from jail for treatment. However, Clarissa left treatment on
March 28 before being successfully discharged, and her where-
abouts were unknown by the Department at the time of trial.
Nemec understood that there was now a warrant out for
Clarissa’s arrest. Nemec believed that Clarissa was aware of
the consequences of prematurely leaving treatment, because
Nemec had discussed the matter with Clarissa in the 10 days
prior to Clarissa’s leaving St. Monica’s.
Nicole Lemke supervised the family’s caseworker since
October 2020. She testified to the Department’s concerns
that Clarissa had been using methamphetamine and to the
risk of harm for David and Cameron. Lemke stated that
caretakers that are using methamphetamine have challenges
making decisions and processing information clearly. They
often put their need for the drug above the needs of the chil-
dren. Methamphetamine users can be awake for days at a
time and then experience a “crashing” where they sleep for
several days, leaving the children functionally unattended.
Additionally, children could come into contact with the sub-
stance or ingest it.
Although Clarissa was ordered to complete a psychological
evaluation and parenting assessment, these evaluations were
not set up by the Department because Nemec was unaware
of Clarissa’s location during much of the case and because
of Clarissa’s erratic behavior during meetings while she was
incarcerated. It was always the Department’s priority to get
Clarissa into treatment so she could be sober. Nemec noted
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IN RE INTEREST OF CAMERON L. & DAVID L.
Cite as 32 Neb. App. 578that a clinician would want to have a baseline sobriety level
to ensure an accurate assessment.
Clarissa has not had parenting time with her children since
her visitation was suspended by court order in October 2020.
In January 2021, Clarissa was permitted by the juvenile court
to have therapeutic parenting time with David and Cameron
as arranged by the Department, as once recommended by the
children’s therapist. While Clarissa was in treatment, her thera-
pist at St. Monica’s was in communication with the children’s
respective therapists and established that Clarissa was sober
and mentally stable enough to participate in therapeutic visita-
tion. A meeting was scheduled for Clarissa to meet with the
children’s therapists and to be screened for therapeutic con-
tact with the children. However, this meeting never occurred,
because Clarissa left St. Monica’s a few days before the sched-
uled meeting.
Clarissa also had not acquired a residence or a legal means
of income, and the last time she participated in a drug test was
in April 2021.
(b) Placement Efforts
Clarissa expressed to Nemec her desire for the children to
be placed in a Native American home. Nemec asked Clarissa
for recommendations regarding David’s and Cameron’s place-
ment. Clarissa recommended her mother; however, Clarissa’s
mother was “on the central registry,” and the Department’s
policy prevented the placement of the children in the home of
someone on the registry. From the records Nemec reviewed,
it appeared that Clarissa’s mother had been provided with
information regarding how to have her central registry status
expunged, but she had not taken the steps to do so. Clarissa
also recommended that David and Cameron be placed with
her oldest daughter, Autumn L., who was 19 years old at the
time. However, Autumn’s home was too small to accommodate
placement of the children, and during a preplacement visit,
Autumn allowed unauthorized contact between Clarissa and
David and Cameron.
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IN RE INTEREST OF CAMERON L. & DAVID L.
Cite as 32 Neb. App. 578Nemec testified that at the time, the Department did not
have other Native American homes available for placement
of the children. Nemec stated that when the Department was
attempting to place Qlani and Dazianna in out-of-home care,
there was only one Native American home available. However,
this placement for Qlani and Dazianna did not last. Nemec
discussed with that Native American family whether they were
willing to take David and Cameron instead, but the placement
was primarily interested in having teenagers and had avail-
ability for only one more child at that time. The Department
case plan dated April 26, 2021, also details the Department’s
completing a “common referral” in search of Native American
placements for David and Cameron. The Department received
several responses regarding available placements, including
David and Cameron’s current foster home, but none were
Native American homes.
After the preplacement visit with Autumn, the Department
placed David and Cameron into a non-Native American foster
home. David and Cameron have been in their most recent non-
Native American foster home since May 2021. Nemec stated
that as time progressed and the children became increasingly
stable in that home, the Department did not consider moving
the children from that environment.
Since September 2022, Nemec emailed the “ICWA tribe”
monthly updates regarding the children and the juvenile case
but had not received any response. Except for “a few phone
calls that are random,” no other contact between Nemec and
the Tribe occurred.
(c) Children’s Needs and Services
Throughout the case, the children have participated in
therapeutic services. David has attended weekly individual
therapy with Jordan Graham since November 2021. Cameron
attended individual therapy with Olivia Christensen, a pro-
vider in the same office as Graham, from November 2021
until November 2022. Cameron then began to meet with
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IN RE INTEREST OF CAMERON L. & DAVID L.
Cite as 32 Neb. App. 578Suzanne Jouvenat in December 2022. Before Clarissa left
St. Monica’s, the Department was working with Graham and
Jouvenat to assess and prepare David and Cameron for thera-
peutic parenting time with their mother. Graham had been
willing to provide therapeutic visitation for the family.
Christensen, a licensed mental health practitioner, testified
that she provided weekly child-parent psychotherapy (CPP)
to Cameron for 1 year. Christensen described CPP as trauma-
based programming for children ages 5 and under that helps
children who have experienced any type of trauma or seri-
ous mental health concerns build a healthy attachment with a
caregiver. Christensen facilitated CPP with Cameron and her
foster parents.
When Christensen first began seeing Cameron, she was
hyperactive, had trouble concentrating, and was avoidant of
indicating any of the trauma she had suffered. Cameron also
exhibited an avoidant attachment style and was distant from
her foster parents in CPP sessions. Cameron often opted for
independent play and would not seek out connection with a
caregiver if she was experiencing any dysregulation. However,
toward the end of Christensen’s time treating Cameron, she
observed Cameron building more of a secure attachment.
Cameron began to seek out hugs and include the foster par-
ents in her play during sessions. Christensen also observed an
improvement in Cameron’s coregulation skills.
Christensen had never seen Cameron with Clarissa and was
unable to determine what kind of attachment style Cameron
had to her mother.
Nemec testified that David and Cameron were also par-
ticipating in sibling visitation with their older sisters: Qlani,
Dazianna, and Autumn. However, the sibling visitation was
challenging to facilitate because the Department had a sparsity
of providers who were able to accommodate the availability
and schedules of everyone involved in the visitation, including
the various foster parents.
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Nebraska Court of Appeals Advance Sheets
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IN RE INTEREST OF CAMERON L. & DAVID L.
Cite as 32 Neb. App. 578David and Cameron’s foster mother testified that the chil-
dren had been placed in her and her husband’s home for the
past 2 years. When the children first came into their care,
they had lice, poor dental health, and clothing filled with
holes. David and Cameron also struggled with following direc-
tions and respecting authority. The children’s behaviors later
improved after participating in therapy, and the foster parents
set behavioral boundaries and a routine. Both children were
presently doing well educationally and socially.
The foster mother testified to preparing a cultural plan prior
to taking placement of David and Cameron. The foster parents
sought out books and television shows that featured Native
American protagonists and storylines, went to museums and
Native American stage performances, and took a trip to South
Dakota so that the children could visit their place of birth.
The foster mother testified to her effort to maintain contact
between David and Cameron and their siblings, but she noted
that the visits had been challenging logistically and that the
children were highly emotional and experienced sleep disturb­
ances following the sibling visits.
Nemec testified that children need permanency, because
it develops their self-esteem and allows them to feel safe so
that they can continue to develop cognitively, emotionally,
and physically. Nemec believed that it would be in David’s
and Cameron’s best interests to achieve permanency as soon
as possible, given that they had been in an out-of-home
placement for over 3 years. Nemec testified that David’s and
Cameron’s permanency goal at the time of trial was “con-
current guardianship and adoption.” The Department’s most
recent case plan, dated March 22, 2023, stated that while the
primary permanency plan for David and Cameron was guard-
ianship, due to the pending motion to terminate Clarissa’s and
the father’s parental rights, the Department had “shifted the
goal to [a]doption given the children’s young ages.” Later in
the case plan, the Department refers to adoption as the “alter-
native plan.”
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IN RE INTEREST OF CAMERON L. & DAVID L.
Cite as 32 Neb. App. 578Nemec also believed that it was in David’s and Cameron’s
best interests to have Clarissa’s parental rights terminated.
Nemec noted that Clarissa had over 3 years to address her
substance abuse and mental health issues. Though Clarissa
had increasingly been able to articulate the reasons why she
needed to comply with the dispositional plan, she had not
been able to successfully complete any of its components.
According to Nemec, Clarissa understood the ramifications of
not doing so, and yet, she chose not to complete those services
to put herself in a better place to parent or have a relationship
with her children.
(d) Holly Burns’ Testimony
Holly Burns, a licensed mental health practitioner, testified
that she is a nationally registered child-parent psychotherapist,
parent-child interactive therapist, and trauma-focused cognitive
behavioralist. She is trained in dialectical behavioral therapy
and cognitive behavioral therapy. Burns described her ongoing
education and training and stated that she has been practicing
for over 10 years.
Regarding her specific experience with the application of
ICWA, Burns noted that she biannually “attend[s] ICWA train-
ings.” Burns’ resume was received into evidence and states
that Burns is a “Certified ICWA expert for the Lancaster
County Juvenile Courts.” She estimated that 10 percent of
her clients are Native American children. Burns has been
determined to be a qualified expert witness for ICWA pro-
ceedings more than five times in the separate juvenile court of
Lancaster County.
As to whether she has any particular tribal affiliation, Burns
stated that her great grandmother was a “Pascua [Yaqui]
Indian.” The Pascua Yaqui Tribe is a federally recognized
tribe, though Burns was not enrolled nor eligible for enroll-
ment. Burns explained that she was familiar with the customs
of the “Yuki natives” who originated in Mexico and then
migrated to New Mexico and Texas. Burns speaks “the native
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that “children are treasures.” Burns also has an aunt through
marriage whose grandfather was a member of the Tribe. When
asked on cross-examination whether Burns’ education and
training dealt specifically with the culture of the Tribe, Burns
responded that her aunt “was of the Oglala Sioux Nation so
I have personal experience and I think that far outweighs a
classroom experience in my opinion, humbly.”
Burns had never met David, Cameron, or Clarissa, though
she had been provided collateral information prior to trial,
including the Department’s court reports and risk assessments,
police reports, and the legal filings in the juvenile case. Burns
understood from the collateral sources that while David and
Cameron were not placed in a Native American foster home,
the Department had made efforts to locate a Native American
home for the children after their removal. However, Burns
understood that the children’s grandmother’s home was too
small to accommodate them and other family members who
were considered did not pass a background check. There was
also a general search for Native American placements, but
Burns could not recall how many Native American homes the
Department had explored for placement options.
Burns also received information provided by the children’s
foster mother regarding her and her husband’s efforts to con-
nect David and Cameron to their Native heritage. Burns testi-
fied that she believed the foster parents were doing their best
but may need further education to “understand that not all
Natives are the same, and that there needs to be more focus
and emphasis given to the [Tribe].” Burns recommended that
the children participate in “Native language courses” and
maintain sibling contact with their older sisters to stay con-
nected to their cultural identity. Burns also recommended
various organizations that could provide additional resources
to the foster parents.
Burns believed that, taking into account Native American
culture and standards as they pertain to the protection of
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family. However, Burns observed that “cultural emphasis” may
have been more effective with the parents, such as substance
use programming based on Native American traditions, for
example, “Red Road to Recovery” and the “Medicine Wheel”
programs. Burns testified that Clarissa’s suspected metham-
phetamine use and physical behavior that led to the children’s
removal is not condoned by Native American culture.
Regarding Clarissa’s engagement with the juvenile case,
Burns stated that Clarissa “participated in a level that she was
able to, however, I don’t know that it was at a standard that
could be seen as acceptable and involved.” Additionally, the
following exchange occurred:
[The State:] Have you developed an opinion as to
whether placing David and Cameron back in their home
environment would likely cause serious emotional and
physical damage to them?
[Burns:] Again, with the parents’ level of participation
and lack of participation in services, it would appear that
the core issues that resulted in the children being removed
would remain the same, and so therefore, I don’t know
that anyone can make an opinion other than there’s still
ongoing issues.
Q Okay, and is it your understanding that the where-
abouts of both parents are unknown at this time?
A Yes, that was my understanding.
Q So, placing David and Cameron back in their par-
ents’ care is not feasible at this moment, correct?
A Correct.
Q Okay, if they were, what would your concerns be
as far as the potential for emotional and physical damage
to them?
A Again, when I, when I look at children, I look at
the effects that trauma has on their development. Given
the acute generational and chronic trauma, we know that
there would be significant impact on their social and
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health and addiction issues given the family’s history.
Q And given that the events that led to the removal
were also [Clarissa’s] hitting or being aggressive to one or
more of the children, would that cause you concern that
physical damage may occur as well?
A Yes.
Q And you have not been —
A Actually, I should say physical harm, I don’t know
physical damage.
Burns further testified that she was aware that David and
Cameron had been in out-of-home placement since February
2020 and noted that a lack of permanency contributed to devel-
opmental trauma for children generally.
3. Order
At the conclusion of the termination trial, the juvenile
court stated that it found that the State had proved the counts
included in the motion to terminate parental rights by clear
and convincing evidence, “as well as beyond a reasonable
doubt as to the ICWA allegations.”
The juvenile court entered an order on April 19, 2023,
terminating Clarissa’s and the father’s rights to David and
Cameron. The court found that the State had met its burden
of proving that both parents had abandoned the children for
6 months or more immediately prior to the filing of the peti-
tion, that there was substantial and continuous neglect, and
that the children had been in out-of-home placement for 15
or more months out of the most recent 22 months, pursuant
to § 43-292(1), (2), and (7). The parents had also subjected
the children to the aggravated circumstance of abandonment
pursuant to § 43-292(9). The court also found that pursuant to
§ 43-292(6), Clarissa had failed to correct the conditions that
led to the children’s being adjudicated under § 43-247(3)(a).
The court further found that “as proven by qualified expert
testimony,” the continued custody by Clarissa and the father
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to the children. The court determined that Clarissa and the
father were unfit parents and that it was in the best interests of
David and Cameron to have Clarissa’s and the father’s parental
rights terminated.
Clarissa appeals from this order. An amicus curiae brief was
filed jointly by the Nebraska Indian Child Welfare Coalition
and the American Civil Liberties Union of Nebraska.
III. ASSIGNMENTS OF ERROR
Clarissa assigns, reordered, that the juvenile court erred by
(1) terminating her parental rights without a finding beyond a
reasonable doubt, supported by qualified expert testimony, that
the continued custody of the children by the parent was likely
to result in serious emotional or physical damage to the chil-
dren; and (2) finding that the termination of Clarissa’s parental
rights was in the children’s best interests.
IV. STANDARD OF REVIEW
[1] An appellate court reviews juvenile cases, including
those under NICWA, de novo on the record and reaches its
conclusions independently of the juvenile court’s findings in a
termination of parental rights case. See, In re Interest of Mateo
L. et al., 309 Neb. 565, 961 N.W.2d 516 (2021); In re Interest
of Phoebe S. & Rebekah S., 11 Neb. App. 919, 664 N.W.2d
470 (2003).
V. ANALYSIS
1. Qualified Expert Witness Testimony
Clarissa first assigns that the juvenile court erred by ter-
minating her parental rights without a finding beyond a
reasonable doubt, supported by qualified expert testimony,
that the continued custody of the children by the parent was
likely to result in serious emotional or physical damage to
the children. She argues that the State’s expert witness lacked
many of the qualifications required of an expert witness under
ICWA and NICWA. She also argues that the juvenile court
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the court’s order was vague as to the standard of evidence
applied to its various findings. Before addressing Clarissa’s
assigned error, we discuss the legal framework used to define
a qualified expert witness under ICWA.
[2] To terminate parental rights, it is the State’s burden to
show by clear and convincing evidence both that one of the
statutory bases enumerated in § 43-292 exists and that termina-
tion is in the child’s best interests. In re Interest of Mateo L.
et al., supra.
[3] NICWA adds two additional elements the State must
prove before terminating parental rights in cases involving
Indian children. In re Interest of Audrey T., 26 Neb. App. 822,
924 N.W.2d 72 (2019). First, the State must prove by clear
and convincing evidence that active efforts have been made
to prevent the breakup of the Indian family and that these
efforts have proved unsuccessful. Id. See Neb. Rev. Stat.
§ 43-1505(4) (Reissue 2016). Second, the State must prove
by evidence beyond a reasonable doubt, including testimony
of qualified expert witnesses, that the continued custody of
the child by the parent or Indian custodian is likely to result
in serious emotional or physical damage to the child. In re
Interest of Audrey T., supra. See § 43-1505(6).
We note that although Clarissa has not assigned any error
with respect to the juvenile court’s findings that the State
proved by clear and convincing evidence that active efforts
had been made to prevent the breakup of the Indian family
and that those efforts were unsuccessful, we have reviewed
the record and find no plain error as it relates to that element.
Thus, we turn to Clarissa’s specific alleged error.
Clarissa first argues that the State failed to present evi-
dence from a qualified expert under the ICWA standards.
Nebraska appellate courts have previously relied on guide-
lines promulgated by the federal Bureau of Indian Affairs
to determine whether a witness qualifies as an expert under
ICWA. See In re Interest of C.W. et al., 239 Neb. 817, 479
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Cite as 32 Neb. App. 578N.W.2d 105 (1992), overruled on other grounds, In re Interest
of Zylena R. & Adrionna R., 284 Neb. 834, 825 N.W.2d 173(2012). Those guidelines recognized the following categories
of individuals as likely to meet the requirements of ICWA:
“(i) A member of the Indian child’s tribe who is rec-
ognized by the tribal community as knowledgeable in
tribal customs as they pertain to family organization and
childrearing practices.
“(ii) A lay expert witness having substantial experience
in the delivery of child and family services to Indians,
and extensive knowledge of prevailing social and cul-
tural standards in childrearing practices within the Indian
child’s tribe.
“(iii) A professional person having substantial educa-
tion and experience in the area of his or her specialty.”
239 Neb. at 824, 479 N.W.2d at 111, quoting Guidelines for
State Courts; Indian Child Custody Proceedings, 44 Fed. Reg.
67,854, 67,593 (1979) (not codified).
NICWA was enacted in 1985 and most recently amended
in 2015. The purpose of NICWA is to clarify state policies
and procedures regarding the implementation of ICWA in
Nebraska. Neb. Rev. Stat. § 43-1502 (Reissue 2016). NICWA
includes a definition of “[q]ualified expert witness” that is
similar to these federal guidelines, including “[a]ny other
professional person having substantial education in the area
of his or her specialty.” See Neb. Rev. Stat. § 43-1503(15)(e)
(Reissue 2016).
In 2016, the Bureau of Indian Affairs issued formal regu-
lations and new guidelines discussing the implementation of
ICWA. With respect to the expert witness requirement, the
formal regulations provide as follows:
(a) A qualified expert witness must be qualified to tes-
tify regarding whether the child’s continued custody by
the parent or Indian custodian is likely to result in seri-
ous emotional or physical damage to the child and should
be qualified to testify as to the prevailing social and
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may be designated by the Indian child’s Tribe as being
qualified to testify to the prevailing social and cultural
standards of the Indian child’s Tribe.
(b) The court or any party may request the assistance
of the Indian child’s Tribe or the [Bureau of Indian
Affairs] office serving the Indian child’s Tribe in locating
persons qualified to serve as expert witnesses.
(c) The social worker regularly assigned to the Indian
child may not serve as a qualified expert witness in
child-custody proceedings concerning the child.
Indian Child Welfare Act Proceedings, 81 Fed. Reg. 38,778,
38,873 (June 14, 2016) (codified at 25 C.F.R. § 23.122 (2022)).
The Nebraska Supreme Court has held that these 2016 federal
ICWA regulations must be followed by Nebraska courts. See
In re Interest of Manuel C. & Mateo S., 314 Neb. 91, 988
N.W.2d 520 (2023), modified on denial of rehearing 314 Neb.
580, 991 N.W.2d 305.
[4] In her brief on appeal, Clarissa concedes that Burns’ tes-
timony was received “without objection.” Brief for appellant
at 33. Typically, to preserve a claimed error in admission of
evidence, a litigant must make a timely objection that speci-
fies the ground of the objection to the offered evidence. See
Richardson v. Children’s Hosp., 280 Neb. 396, 787 N.W.2d
235 (2010). Burns is presumably the only expert witness
whose testimony the State sought to qualify, as the two work-
ers from the Department are precluded from being qualified
expert witnesses under ICWA. See 25 C.F.R. § 23.122(c).
Nevertheless, in our de novo review, we must determine
whether there was sufficient evidence to support termination
of Clarissa’s parental rights under the more rigorous ICWA
standards, which require testimony from a qualified expert
witness. Thus, we must examine whether Burns was qualified
to present expert testimony in this case.
[5] A trial court is allowed discretion in determining whether
a witness is qualified to testify as an expert, and unless the
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not be disturbed on appeal. In re Interest of Ramon N., 18
Neb. App. 574, 789 N.W.2d 272 (2010). Burns testified that
she is a licensed mental health practitioner, nationally reg-
istered child-parent psychotherapist, parent-child interactive
therapist, and trauma-focused cognitive behavioralist. She has
been a clinician for over a decade and is trained in both dialec-
tical behavioral therapy and cognitive behavioral therapy. The
juvenile court’s termination order identified Burns as a quali-
fied expert witness and found, as proved by her testimony, that
continued custody by Clarissa was likely to result in serious
emotional or physical damage to the children.
Based on Burns’ professional credentials, which show that
she has “substantial education in the area of his or her spe-
cialty,” we cannot say that the district court abused its discre-
tion in finding Burns to be a qualified expert witness for the
purposes of ICWA. See, 25 C.F.R. § 23.122; § 43-1503(15)(e).
Clarissa argues that Burns was not qualified to be an expert
witness, because she has not interacted with David, Cameron,
or Clarissa. Clarissa points to the recent ICWA guidelines that
recommend the qualified expert witness “be someone familiar
with that particular child.” See U.S. Dept. of Interior, Bureau
of Indian Affairs, Guidelines for Implementing the Indian
Child Welfare Act G.2 at 55 (Dec. 2016).
While Burns had not met any family members in this case,
she had received and reviewed extensive collateral informa-
tion. Included in this collateral information was Clarissa’s
psychiatric diagnoses, criminal history, and parental chal-
lenges. Burns also reviewed the information concerning the
children’s diagnoses and therapy. While it may be a better
practice for an expert witness to be personally familiar with
the children at the center of a juvenile case, given that Burns
has a background in family systems and child trauma, and
had reviewed collateral information about these children, she
was qualified to provide expert testimony here. The Nebraska
Supreme Court has permitted clinicians who rely on collateral
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the basis of their testimony to be a qualified expert witness in
proceedings where ICWA applied. See In re Interest of Walter
W., 274 Neb. 859, 744 N.W.2d 55 (2008).
Clarissa also argues that Burns lacked the qualifications
to testify as to the prevailing social and cultural standards of
David and Cameron’s tribe. The State appears to argue in its
brief on appeal that Burns was qualified to speak to Native
American cultural customs but concedes that “[t]he only area
where [Burns] may be limited is specific knowledge regarding
[the Tribe].” Brief for appellee at 27.
As established above, the 2016 federal ICWA regulations
state that a qualified expert witness must be qualified to testify
regarding whether the child’s continued custody by the parent
or Indian custodian is likely to result in serious emotional or
physical damage to the child and should be qualified to testify
as to the prevailing social and cultural standards of the Indian
child’s Tribe. See 25 C.F.R. § 23.122(a).
David and Cameron are eligible for enrollment in the Tribe;
thus, only the prevailing social and cultural standards of that
tribe are relevant to this case. Though Burns testified to hav-
ing Pascua Yaqui Indian heritage and being raised with the
values of that tribe, she stated that her only experience with
the social and cultural standards of the Tribe came from a
personal relationship with an aunt through marriage whose
grandfather was a member of the Tribe. Burns testified that
she attends biannual ICWA trainings, and her resume noted
that she is a “Certified ICWA expert for the Lancaster County
Juvenile Courts”; however, no additional information regard-
ing these qualifications are in our record, such as the dates
of the trainings, topics covered, or the name of the certifying
organization. Though Burns testified that Clarissa’s suspected
methamphetamine use and reported hitting of the children was
not condoned by Native American culture generally, based
on the record before us, Burns is not qualified to testify to
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Cameron’s specific tribe.
However, in its more recent guidelines, the Bureau of Indian
Affairs provides, in part:
The rule does not, however, strictly limit who may
serve as a qualified expert witness to only those indi-
viduals who have particular Tribal social and cultural
knowledge. The rule recognizes that there may be certain
circumstances where a qualified expert witness need not
have specific knowledge of the prevailing social and cul-
tural standards of the Indian child’s Tribe in order to meet
the statutory standard.
U.S. Dept. of Interior, Bureau of Indian Affairs, Guidelines
for Implementing the Indian Child Welfare Act G.2 at 54
(Dec. 2016) (providing minimum federal standards regarding
compliance with 25 C.F.R. § 23.122 governing who may serve
as qualified expert witness). Given the circumstances of this
case, we find that Burns’ lack of specific knowledge of the
prevailing social and cultural standards of the Tribe did not
prevent her from providing expert testimony.
The Nebraska Indian Child Welfare Coalition and the
American Civil Liberties Union of Nebraska, in their amicus
brief, encourage this court to adopt the Alaska Supreme
Court’s holding that qualified expert witness testimony regard-
ing social and cultural standards is “a default requirement
rather than a mere suggestion.” See State v. Cissy A., 513 P.3d
999, 1012 (Alaska 2022).
The Bureau of Indian Affairs’ more recent guidelines note
that “ICWA displaces [s]tate laws and procedures that are
less protective,” but in the instances where states have passed
“their own laws applying to child welfare proceedings involv-
ing Indian children that establish protections beyond the
minimum [f]ederal standards,” the “more protective [s]tate
law applies.” U.S. Dept. of Interior, Bureau of Indian Affairs,
supra, A.1 at 7.
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Cite as 32 Neb. App. 578We decline to go beyond the plain language of the 2016
federal regulations that state a qualified expert witness as to
ICWA “must” be qualified to testify regarding the likelihood
of serious emotional or physical damage to the child and
“should” be qualified to testify as to the prevailing social and
cultural standards of the Indian child’s tribe. See 25 C.F.R.
§ 23.122. NICWA has not been amended since the codification
of the most recent federal ICWA regulations and contains no
mandatory provision regarding the expert witness’ qualifica-
tions to testify concerning the relevant tribal social and cul-
tural standards. Should Nebraska seek to establish protections
beyond the minimum federal standards, such is the purview of
our Legislature.
Clarissa next argues that Burns did not actually give an
opinion that continued custody of the child by the parents was
likely to result in “serious emotional or physical damage” to
the children involved, as required by ICWA and NICWA.
Burns testified to her concern that continued custody of the
children by Clarissa may cause the children physical harm,
rather than physical damage. However, when asked about the
likelihood of emotional damage, Burns testified that David
and Cameron had suffered acute generational and chronic
trauma and that continued custody by Clarissa would result
in a “significant impact on their social and emotional well-
being and propensity for their own mental health and addic-
tion issues.”
We conclude that Burns was properly qualified to provide
expert witness testimony and did so regarding whether David’s
and Cameron’s continued custody by Clarissa was likely to
result in serious emotional damage to the children.
Finally, Clarissa argues that the order terminating her paren-
tal rights to David and Cameron failed to make a finding
beyond a reasonable doubt that continued custody of the
children by the parent or Indian custodian was likely to result
in serious emotional or physical damage to the children.
While the termination order did not use the specific language
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were proved beyond a reasonable doubt. This assignment of
error fails.
2. Statutory Grounds
for Termination
The juvenile court found that the State had presented clear
and convincing evidence to satisfy § 42-292(1), (2), (6), (7),
and (9). Clarissa does not challenge the juvenile court’s finding
that statutory grounds to terminate have been met. However,
because our review is de novo, we address this requirement for
termination of parental rights.
[6,7] 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 mechani-
cally 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 Kenna S., 17 Neb.
App. 544, 766 N.W.2d 424 (2009). 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 Kenna S., supra.
Here, it is undisputed that the children have been in out-of-
home placement for 15 or more months of the most recent 22
months. David and Cameron were removed from Clarissa’s
care on February 14, 2020. The State filed its motion for ter-
mination of parental rights on January 18, 2023, and the termi-
nation trial was held in April 2023. The children remained out
of the home since their removal in February 2020. At the time
the State filed its motion for termination of parental rights,
the children had been out of the home for 35 months. See In
re Interest of Jessalina M., 315 Neb. 535, 997 N.W.2d 778(2023) (existence of statutory basis alleged under § 43-292(7)
should be determined as of date petition or motion to terminate
is filed). Thus, the statutory requirement for termination under
§ 43-292(7) has been met.
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Cite as 32 Neb. App. 578[8] If an appellate court determines that the lower court
correctly found that termination of parental rights is appropri-
ate under one of the statutory grounds set forth in § 43-292,
the appellate court need not further address the sufficiency of
the evidence to support termination under any other statutory
ground. In re Interest of Becka P. et al., 27 Neb. App. 489,
933 N.W.2d 873 (2019). Because the State presented clear
and convincing evidence that the children had been in an out-
of-home placement for 15 or more months of the most recent
22 months, statutory grounds for termination of Clarissa’s
parental rights exists.
3. Parental Unfitness and
Best Interests
Clarissa assigns that the juvenile court erred in finding that
she was an unfit parent and that it was in the children’s best
interests to terminate her parental rights. Clarissa asserts that
the termination of her parental rights was not necessary as
David’s and Cameron’s permanency goal throughout the case
had been guardianship.
[9-11] In addition to proving a statutory ground, the State
must show that termination of parental rights is in the best
interests of the children. See, § 43-292; In re Interest of Jahon
S., 291 Neb. 97, 864 N.W.2d 228 (2015). A parent’s right to
raise his or her child is constitutionally protected; so before a
court may terminate parental rights, the State must show that
the parent is unfit. In re Interest of Jahon S., supra. There is
a rebuttable presumption that the best interests of a child are
served by having a relationship with his or her parent. See
id. This presumption is overcome only when the State has
proved that the parent is unfit. Id. Parental unfitness means
a personal deficiency or incapacity which has prevented, or
will probably prevent, performance of a reasonable parental
obligation in child rearing and which caused, or probably will
result in, detriment to the child’s well-being. Id.
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Cite as 32 Neb. App. 578[12-14] The best interests analysis and the parental fitness
analysis are fact-intensive inquiries. And while both are sepa-
rate inquiries, each examines essentially the same underlying
facts as the other. Id. In proceedings to terminate parental
rights, the law does not require perfection of a parent; instead,
courts should look for the parent’s continued improvement in
parenting skills and a beneficial relationship between parent
and child. In re Interest of Becka P. et al., supra. In cases
where termination of parental rights is based on § 43-292(7),
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 interests. In re Interest of Becka P. et
al., supra.
Throughout the case, Clarissa’s greatest barriers to reuni-
fication were her mental health and substance use. Clarissa
completed a substance use evaluation at the psychiatric hospi-
tal in January 2021, while she was incarcerated, which recom-
mended that Clarissa attend a co-occurring intensive outpa-
tient treatment program. However, soon after starting intensive
outpatient treatment, Clarissa reported to her provider that
she was “hungover” and had recently used substances. In a
February 2021 letter to the Department, Clarissa’s provider
diagnosed her with social anxiety disorder, unspecified trauma
and stressor related disorder, and various substance use disor-
ders, and the provider recommended that Clarissa participate
in short-term residential treatment.
Clarissa did not address her substance use again until she
participated in a co-occurring evaluation in February 2023
while she was again incarcerated. Clarissa entered St. Monica’s
for residential substance use treatment in late February 2023,
per the recommendation of her co-occurring evaluation.
Clarissa had an outstanding warrant connected to a controlled
substance charge, and she was conditionally allowed to be
released from jail for treatment. Clarissa understood the con-
sequences of prematurely leaving treatment because Nemec
had discussed the matter with Clarissa. Nevertheless, Clarissa
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whereabouts were unknown by the Department at the time
of trial.
Clarissa’s decision to leave St. Monica’s was even more con-
sequential because while Clarissa was in treatment, her thera-
pist had been in communication with the children’s respective
therapists and established that Clarissa was sober and men-
tally stable enough to participate in therapeutic visitation with
David and Cameron. Clarissa had not had parenting time with
her children since her visitation was suspended by court order
in October 2020. A meeting had been scheduled for Clarissa
to meet with the children’s therapists and to be screened for
therapeutic contact with the children. However, this meeting
never occurred because Clarissa left St. Monica’s a few days
before the scheduled meeting.
Clarissa has failed to accomplish any part of her disposi-
tional plan. Clarissa has not successfully completed the recom-
mendations of her substance use evaluation or her co-occurring
evaluation. Clarissa was ordered to complete a psychological
evaluation and parenting assessment, but these evaluations
were not set up by the Department, because Nemec was
unaware of Clarissa’s location during much of the case and her
behavior was erratic when she was incarcerated. Clarissa also
has not acquired a residence or a legal means of income. She
has not participated in drug testing for the last 2 years.
Clarissa did not seek assistance for her addiction unless she
was incarcerated, and even still, she decided to leave treat-
ment early. She did so while the family’s therapists were in the
process of coordinating therapeutic visits between Clarissa,
David, and Cameron, and knowing that her premature exit
from treatment would result in a warrant for her arrest.
Clarissa lost not only her opportunity for treatment but also
an opportunity to see David and Cameron for the first time in
over 2½ years.
[15] Where a parent is unable or unwilling to rehabilitate
himself or herself within a reasonable time, the best interests
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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
IN RE INTEREST OF CAMERON L. & DAVID L.
Cite as 32 Neb. App. 578of the child require termination of the parental rights. In re
Interest of Zanaya W. et al., 291 Neb. 20, 863 N.W.2d 803(2015). Based on the evidence presented, there has been mini-
mal change in Clarissa’s behavior over the course of the case,
and based on Clarissa’s lack of engagement with the case and
her children, she is unlikely to change in the future. The case
plan goals have remained consistent throughout the case and
have not been met, and there has been no improvement in
Clarissa’s ability to parent.
[16] Further, Nebraska courts have recognized that children
cannot, and should not, be suspended in foster care or be made
to await uncertain parental maturity. In re Interest of Octavio
B. et al., 290 Neb. 589, 861 N.W.2d 415 (2015). David and
Cameron have been in foster care since February 2020. Burns
testified that a lack of permanency may contribute to their
developmental trauma. They deserve stability in their lives
and should not be suspended in foster care when Clarissa is
unable to rehabilitate herself. Accordingly, we find there was
clear and convincing evidence to show that Clarissa was unfit
and that terminating her parental rights was in the children’s
best interests.
VI. CONCLUSION
The juvenile court properly found that evidence existed
to support termination of Clarissa’s parental rights to David
and Cameron under § 43-292(7) and that termination of her
parental rights was in the children’s best interests. The State
established through evidence, including testimony of qualified
expert witnesses, beyond a reasonable doubt, that the contin-
ued custody of David and Cameron by Clarissa was likely to
result in serious emotional or physical damage to the children.
Accordingly, the juvenile court’s order is affirmed.
Affirmed.