Kenneth C. v. Lacie H.

Nebraska Advance Sheets
KENNETH C. v. LACIE H. 799
Cite as 286 Neb. 799minor children. We therefore vacate that portion of the sen-
tence of probation which prohibits Rieger from having any
contact with Vreeland and remand the cause to the district
court with directions to remand it to the county court with
instructions to resentence Rieger in conformity with this opin-
ion. The sentence is affirmed in all other respects.
Sentence vacated in part, and cause
remanded with directions.
K enneth C., appellant, v.
Lacie H., appellee.
___ N.W.2d ___
Filed November 8, 2013. No. S-12-1160.
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. However, when the evidence is in
conflict, an appellate court may consider and give weight to the fact that the
district court observed the witnesses and accepted one version of the facts over
the other.
2. Parental Rights: Evidence: Proof: Words and Phrases. The grounds for ter-
minating parental rights must be established by clear and convincing evidence,
which is that amount of evidence which produces in the trier of fact a firm belief
or conviction about the existence of the fact to be proved.
3. Parental Rights: Abandonment: Intent: Proof. Whether a parent has aban-
doned a child within the meaning of Neb. Rev. Stat. § 43-292(1) (Cum. Supp.
2012) is a question of fact and depends upon parental intent, which may be deter-
mined by circumstantial evidence.
4. Parental Rights: Abandonment: Words and Phrases. Abandonment is a par-
ent’s intentionally withholding from a child, without just cause or excuse, the
parent’s presence, care, love, protection, maintenance, and the opportunity for the
display of parental affection for the child.
5. Parental Rights: Abandonment: Proof. To prove abandonment in determining
whether parental rights should be terminated, the evidence must clearly and con-
vincingly show that the parent has acted toward the child in a manner evidencing
a settled purpose to be rid of all parental obligations and to forgo all parental
rights, together with a complete repudiation of parenthood and an abandonment
of parental rights and responsibilities.
6. Parental Rights: Abandonment: Time. The time period for calculating the
6-month period of abandonment specified in Neb. Rev. Stat. § 43-292(1) (Cum.
Supp. 2012) is determined by counting back 6 months from the date the juvenile
petition was filed.
Nebraska Advance Sheets
800 286 NEBRASKA REPORTS
7. Parental Rights: Abandonment. Abandonment is not an ambulatory thing the
legal effects of which a parent may dissipate at will by token efforts at reclaiming
a discarded child.
8. Parent and Child. Parental obligation requires a continuing interest in the child
and a genuine effort to maintain communication and association with that child.
9. Juvenile Courts: Parental Rights. A juvenile’s best interests are a primary
consideration in determining whether parental rights should be terminated as
authorized by the Nebraska Juvenile Code.
10. Parental Rights. Parental rights constitute a liberty interest.
11. ____. A parent’s interest in the accuracy and justice of the decision to terminate
his or her parental rights is a commanding one.
12. Parental Rights: Juvenile Courts: Pleadings. Because the primary consider-
ation in determining whether to terminate parental rights is the best interests of
the child, a court should have at its disposal the necessary information regarding
the minor child’s best interests, regardless of whether the information refers to a
time period before or after the filing of the termination petition.
Appeal from the District Court for Madison County: Robert
B. Ensz, Judge. Reversed and remanded for further proceedings.
Kathleen Koenig Rockey, of Copple, Rockey, McKeever &
Schlecht, P.C., L.L.O., for appellant.
Mark A. Keenan, of Keenan Law, P.C., L.L.O., for appellee.
Wright, Connolly, Stephan, McCormack, Miller-Lerman,
and Cassel, JJ.
Stephan, J.
This appeal from an order terminating a father’s parental
rights comes to us in an unusual context. It began as a pater-
nity action initiated by the father, although there is no actual
dispute regarding paternity. The child in question, K.H., was
born in August 2007. His birth certificate identifies appellant
Kenneth C. as his biological father and appellee Lacie H.
as his biological mother. Kenneth and Lacie never married,
and they lived together for only about 2 months after K.H.
was born.
In 2011, Kenneth filed a paternity action in the district
court for Madison County. He sought an order declaring him
to be the biological father of K.H. and awarding him visita-
tion with K.H. Lacie filed an answer alleging that Kenneth’s
paternity claim was barred by the statute of limitations. In
Nebraska Advance Sheets
KENNETH C. v. LACIE H. 801
Cite as 286 Neb. 799a counterclaim, she asked the court to terminate Kenneth’s
parental rights based on abandonment. The court determined
Kenneth’s paternity claim was not barred by the statute of limi-
tations and ultimately entered an order terminating Kenneth’s
parental rights. Kenneth perfected a timely appeal from that
order, which we moved to our docket on our own motion pur-
suant to our statutory authority to regulate the caseloads of the
appellate courts of this state.1
BACKGROUND
Actions to determine paternity and parental support are gov-
erned by Neb. Rev. Stat. §§ 43-1401 through 43-1418 (Reissue
2008). Section 43-1411.01(1) confers jurisdiction on the dis-
trict courts to adjudicate such actions, but § 43-1411.01(2)
provided at the time of the court’s order that “[w]henever
termination of parental rights is placed in issue in any case
arising under sections 43-1401 to 43-1418, subsection (5) of
section 42-364 and the Parenting Act shall apply to such pro-
ceedings.” Neb. Rev. Stat. § 42-364 (Cum. Supp. 2012) gov-
erns child support, child custody, and visitation in domestic
relations actions.
Because the counterclaim sought termination of Kenneth’s
parental rights, the district court was initially required to fol-
low the procedures outlined in § 42-364(5)(a), which provided
in part that “[t]he court shall transfer jurisdiction to a juve-
nile court established pursuant to the Nebraska Juvenile Code
unless a showing is made that the . . . district court is a more
appropriate forum.” In an order entered on December 12, 2011,
the district court determined that the statute of limitations set
forth in § 43-1411 was not applicable to Kenneth’s paternity
claim and that because the case did “not appear to involve any
of the resources normally used in the juvenile court system,”
the district court was the more appropriate forum for resolution
of the issues presented. Neither party has assigned error with
respect to this determination.
Section 42-364(5)(a) further required that if a district court
does not transfer an action seeking termination of parental
1
Neb. Rev. Stat. § 24-1106 (Reissue 2008).
Nebraska Advance Sheets
802 286 NEBRASKA REPORTS
rights, the court “shall appoint an attorney as guardian ad litem
to protect the interests of any minor child.” On December 12,
2011, the district court appointed attorney R.D. Stafford “as
guardian ad litem for the minor child to investigate the facts
and learn where the welfare of the minor child lies, and to
submit a report of these facts based on the best interests of the
minor child.”
Having completed these preliminary matters, the district
court conducted an evidentiary hearing on the issue of whether
Kenneth’s parental rights should be terminated. Pursuant to the
version of § 42-364(5)(a) then in effect, a court
may terminate the parental rights of one or both parents
after notice and hearing when the court finds such action
to be in the best interests of the minor child, as defined in
the Parenting Act, and it appears by the evidence that one
or more of the grounds for termination of parental rights
stated in section 43-292 exist[.]
Here, the only alleged statutory ground for termination was
that defined by Neb. Rev. Stat. § 43-292(1) (Cum. Supp. 2012),
i.e., that Kenneth had “abandoned [K.H.] for six months or
more immediately prior to the filing of the petition.” The hear-
ing focused on that allegation.
Kenneth testified that he grew up in a family in which he
and his siblings were neglected and abused by their parents
and that he spent time in foster care from the age of 14 until
he graduated from high school. He has received treatment for
mental health issues, including suicidal thoughts, anger, and
dealing with emotions. Kenneth and Lacie lived together in
Norfolk, Nebraska, in 2006. In December of that year, Lacie
told Kenneth she was pregnant. Although their relationship
was sporadic, they were living together when K.H. was born in
August 2007 and Kenneth was present for the birth. He testi-
fied that within 2 months of the birth, Lacie became distant and
did not want anything to do with him.
Lacie testified that in late October 2007, Kenneth pushed her
over a bed and held a knife to her in the presence of the baby.
Lacie left and went to stay with her mother. Kenneth contacted
her on October 29, and she told him the relationship was over.
When Lacie returned to the apartment on October 31, she
Nebraska Advance Sheets
KENNETH C. v. LACIE H. 803
Cite as 286 Neb. 799found Kenneth in the bathroom. He had shaved his head and
cut himself, carving out “‘I am sorry, Lacie’” on his leg. Lacie
stated that Kenneth had previously cut himself with kitchen
knives on several occasions. As Lacie started to drive away
from the apartment building, Kenneth grabbed the car door and
Lacie said she had to brake quickly to avoid running over him.
Kenneth claimed Lacie intentionally tried to hit him with the
car. On November 1 and 2, Kenneth sent Lacie text messages
threatening suicide if she did not call him.
Kenneth claimed he had attempted to keep in contact with
Lacie and K.H. and that he asked a family friend to give Lacie
some diapers and a Christmas tree in 2007. He testified that
when he asked to see K.H. early in 2008, Lacie told him he
would need to obtain a court order for visitation.
Several e-mail messages between Lacie and Kenneth were
introduced into evidence. On January 15, 2008, Lacie wrote
that she wanted K.H. to see Kenneth and be a part of his life,
“but mom said she will stop helping me if you have anything
to do with us.” She wrote, “If i [sic] let you see [K.H.] without
going to court my mom would kill me. . . . If you want [K.H.]
on the weekends that is fine with me if the courts will let you.”
On February 13, Kenneth wrote to Lacie that he had had a
heart attack and had asked for her and K.H. while he was in
the hospital. Lacie wrote to Kenneth on February 14 and asked
what had caused his heart attack. No response is included in
the record.
Lacie testified that in February 2008, she and Kenneth
agreed it would be best for him to terminate his parental rights
to K.H. and that Kenneth agreed to talk to a lawyer about sign-
ing a relinquishment of his parental rights. He apparently never
took any further action in this regard, and he disputes Lacie’s
assertion that he signed an informal relinquishment document.
No such document is in the record.
In March 2008, Lacie sought a protection order against
Kenneth, alleging that he had been sending her text messages
and telephoning her, threatening to commit suicide if she did
not call him back. Because he mentioned Christmas lights
she had on her balcony, Lacie believed he had been watching
her apartment, and she said she was afraid to go outside. The
Nebraska Advance Sheets
804 286 NEBRASKA REPORTS
order was entered on March 18 and was to be in effect for 1
year. At the same time, Kenneth filed for a protection order
against Lacie, but his complaint was dismissed.
Kenneth did not violate the protection order, and Lacie did
not hear from him for its duration of 1 year. Kenneth moved
to North Loup, Nebraska, where he lived with an uncle and
worked at a hog confinement facility. In March 2009, he
moved to Wyoming, where he worked in road construction.
He testified that while in Wyoming, he called Lacie’s mother
to ask what he needed to pay for child support and she told
him he should terminate his parental rights and “walk away.”
Kenneth offered telephone records to show that he contacted
Lacie’s mother on multiple occasions, but he often was able
to only leave a message. Kenneth also testified that he left
money or gifts for K.H. in Lacie’s mother’s mailbox or at
her home. In May 2009, 2 months after the protection order
expired, Kenneth called Lacie at work, but she refused to talk
to him.
Kenneth testified that in May 2009, he contacted the “child
support network” in Lincoln, Nebraska, to make arrangements
to pay child support but that he never submitted the forms pro-
vided by the “network.”
At the time of the hearing, Kenneth was living with a woman
who was in the process of obtaining a divorce. The woman tes-
tified that she has three young children and that Kenneth is “an
amazing person” around her children.
Lacie testified that she sought termination of Kenneth’s
parental rights due to his mental instability, inability to main-
tain employment, and failure to provide support. She stated
that K.H. does not know Kenneth but that K.H. has a “father
figure” in Lacie’s fiance, whom he calls “dad.” Lacie expressed
her opinion that termination of Kenneth’s parental rights was in
K.H.’s best interests.
Stafford, the guardian ad litem, testified that in his opin-
ion, termination of Kenneth’s parental rights was in K.H.’s
best interests, primarily due to the fact that there had been no
contact between Kenneth and K.H. for most of K.H.’s life.
Stafford based his opinion on interviews with Kenneth, Lacie,
Lacie’s mother, and other friends and relatives of both parties.
Nebraska Advance Sheets
KENNETH C. v. LACIE H. 805
Cite as 286 Neb. 799Stafford did not talk to K.H. or meet Lacie’s fiance, and he did
not observe any interaction between Lacie’s fiance and K.H.
Stafford had no opinion as to either parties’ parenting skills or
abilities. He said he could not make a psychological assessment
as to any potential harm to K.H. if he were to have contact with
Kenneth. Stafford based his opinion regarding the best interests
of K.H. solely upon the passage of time and Kenneth’s failure
to seek contact with Lacie and K.H. after expiration of the pro-
tection order in March 2009.
The district court entered an order terminating Kenneth’s
parental rights. The court found that Kenneth had had no
contact with K.H. since October 23, 2007, less than 2 months
after he was born, and that Kenneth had had no contact with
Lacie since May 2009. Regarding the conflicting evidence as
to Kenneth’s efforts to reestablish contact with K.H., the court
concluded that Kenneth had abandoned K.H., noting:
The clear evidence is that [Kenneth] had no contact,
and his efforts, even if made, were insubstantial. He
never followed through with anything that he claims to
have done, including completing and returning child sup-
port documents that he had received from the State at
his request.
....
The credible evidence is that for nearly two and a half
years prior to the filing of the complaint, [Kenneth] had
no contact with [K.H.], paid no child support, and did not
inquire as to [K.H.’s] well-being.
In concluding that termination of Kenneth’s parental rights
would be in the best interests of K.H., the district court rea-
soned that K.H. “has had no contact with [Kenneth] during
[K.H.’s] cognizant life. They have no relationship. The court
finds that the general health, welfare, and social behavior of
[K.H.] will be best served by not now injecting [Kenneth] into
[K.H.’s] life in which [Kenneth] has never existed.”
ASSIGNMENTS OF ERROR
Kenneth assigns that the district court abused its discre-
tion in finding that he had abandoned K.H., in determining
that his parental rights should be terminated, and in finding
Nebraska Advance Sheets
806 286 NEBRASKA REPORTS
that it was in the best interests of K.H. that Kenneth’s rights
be terminated.
STANDARD OF REVIEW
[1] Although this is not a typical juvenile case governed
exclusively by the Nebraska Juvenile Code,2 the district court
was required to apply the provisions of § 43-292 in order to
determine whether Kenneth’s parental rights should be termi-
nated. Accordingly, the standard of review applicable to juve-
nile cases is applicable here. 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.3
However, when the evidence is in conflict, an appellate court
may consider and give weight to the fact that the district court
observed the witnesses and accepted one version of the facts
over the other.4
ANALYSIS
[2] The grounds for terminating parental rights must be
established by clear and convincing evidence, which is that
amount of evidence which produces in the trier of fact a
firm belief or conviction about the existence of the fact to be
proved.5 With this principle in mind, we examine Kenneth’s
arguments that the evidence was insufficient to establish either
that he abandoned K.H. or that termination of his parental
rights would be in K.H.’s best interests.
Abandonment
[3-5] Whether a parent has abandoned a child within the
meaning of § 43-292(1) is a question of fact and depends upon
parental intent, which may be determined by circumstantial
2
See Neb. Rev. Stat. §§ 43-245 to 43-2,127 (Reissue 2008 & Cum. Supp.
2012).
3
In re Interest of Karlie D., 283 Neb. 581, 811 N.W.2d 214 (2012); In re
Interest of Chance J., 279 Neb. 81, 776 N.W.2d 519 (2009).
4
Id.5
In re Interest of Aaron D., 269 Neb. 249, 691 N.W.2d 164 (2005). See,
also, In re Interest of Shelby L., 270 Neb. 150, 699 N.W.2d 392 (2005).
Nebraska Advance Sheets
KENNETH C. v. LACIE H. 807
Cite as 286 Neb. 799evidence.6 Abandonment is a parent’s intentionally withholding
from a child, without just cause or excuse, the parent’s pres-
ence, care, love, protection, maintenance, and the opportunity
for the display of parental affection for the child.7 To prove
abandonment in determining whether parental rights should be
terminated, the evidence must clearly and convincingly show
that the parent has acted toward the child in a manner evidenc-
ing a settled purpose to be rid of all parental obligations and
to forgo all parental rights, together with a complete repu-
diation of parenthood and an abandonment of parental rights
and responsibilities.8
[6] In juvenile cases, the time period for calculating the
6-month period of abandonment specified in § 43-292(1) is
determined by counting back 6 months from the date the
juvenile petition was filed.9 Here, the district court computed
the 6-month period from October 5, 2011, the date on which
Kenneth filed his complaint, and neither party assigns or
argues that this is not the appropriate time period. The record
clearly shows that Kenneth had no personal contact with K.H.
during this time. In fact, his only direct contact with K.H. was
during the 2 months immediately after his birth, approximately
4 years before Kenneth filed his complaint. And Kenneth had
no contact with Lacie with regard to K.H. after May 2009,
almost 21⁄2 years before the complaint was filed.
[7,8] There is disputed evidence regarding Kenneth’s
attempts to establish contact with Lacie and K.H. after their
separation in October 2007. While Kenneth claims he made
a number of telephone calls to Lacie’s mother, sent money
to Lacie or her mother, and tried to provide gifts for K.H.,
Lacie and her mother testified that he made no such efforts.
It is undisputed that Kenneth has never paid child support,
despite obtaining the legal forms necessary to do so. We agree
with the observation of the district court that Kenneth’s efforts
6
See In re Interest of Chance J., supra note 3.
7
See id.
8
Id.
9
See id.
Nebraska Advance Sheets
808 286 NEBRASKA REPORTS
to establish contact with K.H., even if made, were insub-
stantial. In cases involving similar factual circumstances, we
have stated that abandonment is not an ambulatory thing the
legal effects of which a parent may dissipate at will by token
efforts at reclaiming a discarded child.10 Parental obligation
requires a continuing interest in the child and a genuine effort
to maintain communication and association with that child.11
Kenneth’s sporadic, insubstantial efforts to establish a relation-
ship with his son, coupled with his complete failure to provide
financial support, constitute clear and convincing evidence
of abandonment.
Best Interests
Even after properly finding grounds for abandonment, the
district court could not terminate Kenneth’s parental rights
unless such action was “in the best interests of the minor child,
as defined in the Parenting Act.”12 The Parenting Act13 defines
“[b]est interests of the child” as “the determination made tak-
ing into account the requirements stated in section 43-2923.”14
Section 43-2923 addresses the best interests of a child in
the context of parenting, visitation, and custody arrangements
within an intact parental relationship. It includes a list of five
nonexclusive factors which a court is to consider in making
this determination.
The first factor is “[t]he relationship of the minor child to
each parent prior to the commencement of the action . . . .”15
As noted, Kenneth and K.H. have had no relationship what-
soever since October 2007, when K.H. was approximately 2
months old. This was the principal basis for the opinion of the
10
In re Adoption of David C., 280 Neb. 719, 790 N.W.2d 205 (2010); In re
Interest of Sunshine A. et al., 258 Neb. 148, 602 N.W.2d 452 (1999).
11
See id.12
§ 42-364(5)(a). See, also, In re Interest of Sir Messiah T. et al., 279 Neb.
900, 782 N.W.2d 320 (2010).
13
Neb. Rev. Stat. §§ 43-2920 to 43-2943 (Reissue 2008 & Cum. Supp.
2012).
14
§ 43-2922(3).
15
§ 42-2923(6)(a).
Nebraska Advance Sheets
KENNETH C. v. LACIE H. 809
Cite as 286 Neb. 799guardian ad litem that termination of Kenneth’s parental rights
would be in K.H.’s best interests. In contrast, K.H. appears to
have a good relationship with Lacie.
The second factor is “[t]he desires and wishes of the minor
child, if of an age of comprehension but regardless of chrono-
logical age, when such desires and wishes are based on sound
reasoning.”16 The record provides no basis to evaluate this fac-
tor. Because K.H. is unaware of his biological father, he would
have no basis for expressing his “desires and wishes” regarding
a relationship with Kenneth.
The third factor is “[t]he general health, welfare, and social
behavior of the minor child.”17 The record shows that, at least
in Lacie’s opinion, K.H. is developing normally in her care,
despite Kenneth’s prolonged absence from his life. Lacie testi-
fied that K.H. is a well-behaved child with no ongoing medical
needs and that he is “on target educationally.” However, the
guardian ad litem did not talk to K.H. and there was no other
evidence as to his health, welfare, and behavior.
The fourth factor is “[c]redible evidence of abuse inflicted
on any family or household member.”18 And the fifth factor is
“[c]redible evidence of . . . domestic intimate partner abuse.”19
Kenneth’s conduct while he and Lacie lived together before
and after the birth of K.H. would constitute both domestic
intimate partner abuse and abuse inflicted on a household
member under the definitional provisions of the Parenting
Act.20 Lacie described the relationship as “terrifying.” She
described multiple incidents when Kenneth cut himself with
kitchen knives or wrapped a belt or strap around his neck as
if to strangle himself. These incidents occurred in or near the
parties’ apartment, both before and after the birth of K.H. She
also described an incident on October 23, 2007, when Kenneth
16
§ 42-2923(6)(b).
17
§ 42-2923(6)(c).
18
§ 43-2923(6)(d).
19
§ 43-2923(6)(e).
20
See § 43-2922(8) and (10). See, also, Neb. Rev. Stat. § 42-903(Cum. Supp. 2012) (incorporated by reference in §§ 43-2922(8) and
43-2923(6)(d)).
Nebraska Advance Sheets
810 286 NEBRASKA REPORTS
pushed her down and threatened her with a knife in the pres-
ence of K.H.
After Kenneth left foster care at the age of 18, he reunited
with his biological mother. She obtained a protection order
against him in 2006, so he moved in with Lacie and her mother
for about 1 month in the summer of 2006. He denied any self-
destructive behavior in Lacie’s presence. He claimed that Lacie
attempted to run him over with her vehicle, but Lacie denies
this allegation. Based upon our de novo review of the entire
record, we conclude that there is credible evidence of abusive
behavior on the part of Kenneth, including abuse directed
at Lacie, and little credible evidence of abusive behavior on
the part of Lacie. There is no evidence that Kenneth ever
abused K.H.
If this were a custody dispute, we would agree that con-
sideration of these factors and the evidence would support a
finding that it is in the best interests of K.H. to remain in the
sole legal and physical custody of Lacie. But Kenneth does not
seek custody. He seeks only visitation and the preservation of
his parental rights. In such a context, the nonexhaustive nature
of the factors listed in § 43-2923(6) is particularly relevant, and
we do not limit our analysis to only those factors.
[9-11] It is well established that a juvenile’s best interests
are a primary consideration in determining whether parental
rights should be terminated as authorized by the Nebraska
Juvenile Code.21 It is also well established that parental rights
constitute a liberty interest.22 As the U.S. Supreme Court has
noted, “When the State initiates a parental rights termination
proceeding, it seeks not merely to infringe that fundamental
liberty interest, but to end it.”23 Thus, “until the State proves
parental unfitness, the child and his parents share a vital
interest in preventing erroneous termination of their natural
21
In re Interest of Sir Messiah T. et al., supra note 12; In re Interest of Aaron
D., supra note 5.
22
See Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49(2000).
23
Santosky v. Kramer, 455 U.S. 745, 759, 102 S. Ct. 1388, 71 L. Ed. 2d 599(1982).
Nebraska Advance Sheets
KENNETH C. v. LACIE H. 811
Cite as 286 Neb. 799relationship.”24 That is no less true where, as here, one parent
asks a court to terminate the other parent’s rights with respect
to their child. A parent’s interest in the accuracy and justice of
the decision to terminate his or her parental rights is a com-
manding one.25
As we have noted, termination of parental rights requires
proof of two elements: (1) that one or more statutory grounds
for termination exist and (2) that termination would be in the
best interests of the child. Statutory grounds are based on a
parent’s past conduct, but the best interests element focuses on
the future well-being of the child. While proof of the former
will often bear on the latter, a court may not simply assume
that the existence of a statutory ground for termination neces-
sarily means that termination would be in the best interests of
the child. Rather, that element must be proved by clear and
convincing evidence.
There is ample evidence in the record that Kenneth has not
fulfilled his parental obligations to K.H. in the past. But there
is almost no evidence upon which we can make a principled
determination of whether the current circumstances are such
that termination of Kenneth’s parental rights would be in the
child’s best interests. For example, one reason Lacie sought
termination of Kenneth’s parental rights was because of his
“mental instability.” But she acknowledged at trial that this
was based on his behavior during and prior to their relation-
ship, and she had no information about his present men-
tal health. The record contains no professional psychological
assessment of Kenneth upon which to assess his current or
future parenting capability. Although Kenneth’s prior behavior
provides cause for concern, there is no clear and convincing
evidence that he is presently unfit as a parent due to “men-
tal instability.”
The opinion of the guardian ad litem that termination of
Kenneth’s parental rights would be in the best interests of
K.H. was based primarily upon the “passage of time” during
24
Id., 455 U.S. at 760.
25
In re Interest of Aaron D., supra note 5; In re Interest of Kassara M., 258
Neb. 90, 601 N.W.2d 917 (1999).
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812 286 NEBRASKA REPORTS
which Kenneth had no contact with the child. The guardian ad
litem was unable to render an opinion concerning the parenting
skills of either Kenneth or Lacie. Stafford did not interview
K.H. or Lacie’s fiance or observe the fiance’s interaction with
K.H. And Stafford specifically stated that he could not give a
psychological opinion about any impact on K.H. if Kenneth
is allowed into his life. Stafford did not visit Kenneth in his
current home, but based his opinion on a previous residence.
Stafford also acknowledged that if resources were available,
experts could be utilized to minimize any adverse effects of
visitation on a supervised basis. Although Kenneth is currently
a stranger to K.H., that fact alone does not establish that there
could not be a paternal relationship which would be benefi-
cial to K.H.
In cases where a child has been in foster care for an
extended period of time while a parent has unsuccessfully dealt
with issues of fitness, we have cited the child’s need for per-
manency as a basis for concluding that termination of parental
rights was in the child’s best interests.26 But that is not an issue
of the same magnitude in this case, because K.H. will have per-
manency with Lacie, regardless of whether Kenneth’s parental
rights are terminated. And Kenneth’s stated willingness to pro-
vide financial support to K.H., despite his past failure to do so,
can only be viewed as a factor which must be weighed against
termination of his parental rights.
[12] As we stated in In re Interest of Aaron D.,27 the
primary consideration in determining whether to terminate
parental rights is the best interests of the child. To make such
a determination, a court should have at its disposal the neces-
sary information regarding the minor child’s best interests,
regardless of whether the information refers to a time period
before or after the filing of the termination petition. In that
case, while there was evidence which raised doubt about a
mother’s ability to be an effective parent, we held that the
26
See, e.g., In re Interest of Kendra M. et al., 283 Neb. 1014, 814 N.W.2d
747 (2012); In re Interest of Ryder J., 283 Neb. 318, 809 N.W.2d 255(2012).
27
In re Interest of Aaron D., supra note 5.
Nebraska Advance Sheets
KENNETH C. v. LACIE H. 813
Cite as 286 Neb. 799State had failed to prove that termination of her parental
rights would be in the child’s best interests, noting that there
was no testimony from therapists, family support workers, or
other persons who were “most able to testify as to [the child’s]
condition, circumstances, and best interests, both before and
after the filing of the termination petition.”28 Indeed, we noted
that the “only expert testimony present in the record pertinent
to how termination would affect [the child] indicated that he
would be harmed by the termination of [the mother’s] paren-
tal rights.”29
In this case, the record discloses that K.H.’s unmarried
parents had a brief, stormy relationship followed by almost 4
years during which Kenneth had no contact with and provided
no financial support for K.H. But it provides no evidence that
Kenneth is currently unfit to be a parent and no explanation of
how K.H.’s interests would be served by judicial foreclosure
of any future relationship with and support from Kenneth,
both of which Kenneth now says he is ready to provide.
Nor is there any evidence of a likelihood that K.H. would
be harmed by the relationship and visitation which Kenneth
now seeks. Accordingly, we conclude that Lacie did not meet
her burden of presenting clear and convincing evidence that
termination of Kenneth’s parental rights would be in the best
interests of K.H.
CONCLUSION
For the reasons discussed herein, the judgment of the dis-
trict court is reversed and the cause is remanded for fur-
ther proceedings.
R eversed and remanded for
further proceedings.
Heavican, C.J., not participating.
28
Id. at 263, 691 N.W.2d at 175.
29
Id. at 266, 691 N.W.2d at 177.