In re Interest of Ky'Ari J.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/17/2020 09:05 AM CST
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Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
IN RE INTEREST OF KY’ARI J.
Cite as 29 Neb. Ct. App. 124
In re Interest of Ky’Ari J., a child
under 18 years of age.
State of Nebraska, appellee, v.
Kwamayne J., appellant.
___ N.W.2d ___
Filed November 17, 2020. No. A-20-015.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juve-
nile cases de novo on the record and reaches a conclusion independently
of the juvenile court’s findings.
2. Juvenile Courts: Jurisdiction: Proof. In order to obtain jurisdiction
over a juvenile at the adjudication stage, the court’s only concern is
whether the conditions in which the juvenile presently finds himself or
herself fit within the asserted subsection of Neb. Rev. Stat. § 43-247
(Reissue 2016). The State must prove such allegations by a preponder-
ance of the evidence.
3. Juvenile Courts: Proof. While the State need not prove that the child
has actually suffered physical harm, Nebraska case law is clear that at a
minimum, the State must establish that without intervention, there is a
definite risk of future harm.
4. Parental Rights: Proof. Neb. Rev. Stat. § 43-292 (Reissue 2016) pro-
vides 11 separate conditions, any one of which can serve as the basis
for the termination of parental rights when coupled with evidence that
termination is in the best interests of the child.
5. Parental Rights. Neb. Rev. Stat. § 43-292(9) (Reissue 2016) allows
for terminating parental rights when the parent of the juvenile has sub-
jected the juvenile or another minor child to aggravated circumstances,
including, but not limited to, abandonment, torture, chronic abuse, or
sexual abuse.
6. ____. Whether aggravated circumstances under Neb. Rev. Stat.
§ 43-292(9) (Reissue 2016) exist is determined on a case-by-case basis.
7. Parental Rights: Words and Phrases. Where the circumstances created
by the parent’s conduct create an unacceptably high risk to the health,
safety, and welfare of the child, they are aggravated.
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Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
IN RE INTEREST OF KY’ARI J.
Cite as 29 Neb. Ct. App. 124
8. ____: ____. Aggravated circumstances exist when a child suffers severe,
intentional physical abuse.
9. Parental Rights: Proof. Under Neb. Rev. Stat. § 43-292 (Reissue
2016), once the State shows that statutory grounds for termination of
parental rights exist, the State must then show that termination is in the
best interests of the child.
10. Constitutional Law: Parental Rights: Proof. A parent’s right to raise
his or her child is constitutionally protected; as such, before a court
may terminate parental rights, the State must also 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 a parent is unfit.
12. Parental Rights: Statutes: Words and Phrases. The term “unfitness”
is not expressly used in Neb. Rev. Stat. § 43-292 (Reissue 2016), but
the concept is generally encompassed by the fault and neglect subsec-
tions of that statute, and also through a determination of the children’s
best interests.
13. Parental Rights: Words and Phrases. Parental unfitness means a per-
sonal deficiency or incapacity which has prevented, or will probably
prevent, performance of a reasonable parental obligation in child rear-
ing and which caused, or probably will result in, detriment to a child’s
well-being.
14. Parental Rights. The best interests analysis and the parental fitness
analysis are fact-intensive inquiries. And while both are separate inquir­
ies, each examines essentially the same underlying facts as the other.
15. ____. A court need not wait for a disaster to strike before taking protec-
tive steps in the interests of a minor child.
Appeal from the Separate Juvenile Court of Douglas County:
Christopher E. Kelly, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, and
Mary Rose Donahue for appellant.
Donald W. Kleine, Douglas County Attorney, Anthony
M. Hernandez, and Katherine Corwin, Senior Certified Law
Student, for appellee.
Moore, Chief Judge, and Bishop and Welch, Judges.
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Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
IN RE INTEREST OF KY’ARI J.
Cite as 29 Neb. Ct. App. 124
Bishop, Judge.
I. INTRODUCTION
Kwamayne J. appeals from the decision of the separate juve-
nile court of Douglas County terminating his parental rights to
his daughter, Ky’Ari J. We affirm.
II. BACKGROUND
1. Procedural Background
Kwamayne and Ashley T. are the parents of Ky’Ari, born in
2016. Ashley also has two other children, Brooklyn S., born
in 2011, and Ky’Lynn J., born in 2019. Brooklyn’s alleged
father was not part of the juvenile proceedings below nor is he
part of this appeal, and therefore, he will not be discussed any
further. Although our record contains various statements that
Kwamayne is Ky’Lynn’s father, he is not listed on her birth
certificate and there is no order establishing paternity appear-
ing in our record. Moreover, on June 11, 2019, the juvenile
court ordered Kwamayne to undergo paternity testing regard-
ing Ky’Lynn “pursuant to his request,” but our record does
not reveal whether such testing took place or the results of any
such testing.
Neither the adjudication of nor the parental rights to
Brooklyn and Ky’Lynn are at issue in this appeal; they will
therefore only be discussed as necessary. Furthermore, Ashley
is not part of this appeal, and she will only be discussed as
necessary. We note that during these same juvenile proceedings
below, the State sought to adjudicate all three children as being
within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue
2016) by reason of the fault or habits of Ashley and the State
also sought to terminate Ashley’s parental rights to all three
children. Although the juvenile court did adjudicate all three
children as being within the meaning of § 43-247(3)(a) by
reason of the fault or habits of Ashley, the court found that the
State had not met its burden of proof as to the termination of
Ashley’s parental rights to the children; therefore, her parental
rights remained intact.
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Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
IN RE INTEREST OF KY’ARI J.
Cite as 29 Neb. Ct. App. 124
In May 2019, Kwamayne and Ashley were not married or
living together, but they were in a relationship. On May 29,
Kwamayne was watching Ky’Ari (then 3 years old), Brooklyn
(then 7 years old), and Ky’Lynn (then 3 months old) at
Ashley’s apartment in Omaha, Nebraska, while Ashley was
at work. While in Kwamayne’s care, Ky’Lynn became unre-
sponsive, and she was taken by ambulance to the University of
Nebraska Medical Center (UNMC) emergency room. She was
subsequently diagnosed with abusive head trauma. As a result,
all three children were removed from the home and placed in
the temporary custody of the Nebraska Department of Health
and Human Services; they have remained out of the home
ever since.
As relevant to this appeal, on May 30, 2019, the State
filed a supplemental petition alleging that Ky’Ari was a child
within the meaning of § 43-247(3)(a) by reason of the fault or
habits of Kwamayne. The State alleged Ashley was the pri-
mary caregiver of Ky’Lynn; Ky’Lynn was transported to the
UNMC emergency room due to being unresponsive; at UNMC,
Ky’Lynn was diagnosed with injuries consistent with inten-
tional physical abuse; Kwamayne was unable to provide a rea-
sonable explanation for Ky’Lynn’s injuries; Kwamayne failed
to provide proper parental care, support, and/or supervision for
the juveniles; and due to the above allegations, the juveniles
were at risk for harm.
On September 3, 2019, the State filed an amended supple-
mental petition and termination of parental rights. The State
once again alleged that Ky’Ari was a child within the mean-
ing of § 43-247(3)(a) by reason of the fault or habits of
Kwamayne. In support of its allegation, the State gave the same
reasons noted in the May 30 supplemental petition, except
that instead of alleging that Ashley was the primary care-
giver of Ky’Lynn, the State now alleged the Kwamayne was
a caregiver of Ky’Lynn. The State also sought to terminate
Kwamayne’s parental rights to Ky’Ari pursuant to Neb. Rev.
Stat. § 43-292(2), (9), and (10)(d) (Reissue 2016). The State
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Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
IN RE INTEREST OF KY’ARI J.
Cite as 29 Neb. Ct. App. 124
alleged: Kwamayne substantially and continuously or repeat-
edly neglected and refused to give Ky’Ari, or a sibling of
Ky’Ari, necessary care and protection; Kwamayne subjected
Ky’Ari or another minor child to aggravated circumstances,
including, but not limited to, abandonment, torture, chronic
abuse, or sexual abuse; Kwamayne committed a felony assault
that resulted in serious bodily injury to Ky’Ari or another
minor child of the parent; and termination of Kwamayne’s
parental rights was in Ky’Ari’s best interests. Finally, the State
alleged that reasonable efforts were not required pursuant to
Neb. Rev. Stat. § 43-283.01 (Cum. Supp. 2018).
2. Adjudication and
Termination Hearing
The combined adjudication hearing and termination hearing
was held on November 14 and December 2, 2019. Kwamayne
was not present at the hearing on November 14, but his counsel
was present that day. The court asked if Kwamayne’s coun-
sel had been able to have communication with Kwamayne.
Counsel responded, “No,” and then asked the court for a
continuance so that Kwamayne could be present. However,
the juvenile court informed counsel, “My bailiff advises that
the sheriff told her that [Kwamayne, who was incarcerated at
the time,] refused to be transported to the hearing and declines
to attend.” The court then overruled the motion to continue.
Both Kwamayne and his counsel were present on December 2,
the second day of the hearing.
Over the course of the 2-day hearing, several witnesses were
called to testify and numerous exhibits were received into evi-
dence. Kwamayne did not testify. A summary of the relevant
evidence follows.
Dr. Suzanne Haney is board certified in child abuse pedi-
atrics and is a child abuse pediatrician at Children’s Hospital
and Medical Center; she is also the medical director at a
child advocacy center. Dr. Haney testified that she was called
for a consult on Ky’Lynn at the pediatric intensive care unit
(PICU) at UNMC on May 30, 2019. The day before, Ky’Lynn
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Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
IN RE INTEREST OF KY’ARI J.
Cite as 29 Neb. Ct. App. 124
was brought to UNMC “with an episode of unresponsiveness,
and then eventually she went apneic or stopped breathing” in
the emergency room. Dr. Haney said, “The studies showed that
[Ky’Lynn] had a large left-sided subdural hematoma [(bleed-
ing between the brain and the skull)] which required surgical
intervention. And she had been to the operating room . . . and
[a neurosurgeon] had drained that — the fluid off.” To drain
the fluid, the neurosurgeon initially placed a burr hole in
Ky’Lynn’s skull to relieve the pressure, but when it continued
to bleed, he had to remove part of Ky’Lynn’s skull so that he
could repair the bleeding—later, he was able to put the section
of the skull back and close it up. Ky’Lynn was then transferred
to the PICU.
When Dr. Haney arrived at UNMC on May 30, 2019, she
reviewed Ky’Lynn’s medical records, including a CT scan
as well as an MRI. According to Dr. Haney, it was clear that
Ky’Lynn “didn’t have any broken bones of her skull”; she con-
firmed that there was no skull fracture. Dr. Haney stated that
the CT scan and MRI “showed the large left-sided subdural
hematoma, as well as injury to the parenchyma of the brain
[(the brain tissue)] itself.” Dr. Haney reviewed documenta-
tion from the emergency room physician who had first seen
Ky’Lynn and had spoken to Kwamayne to get a history of what
happened. Dr. Haney stated:
The information provided was that Ky’Lynn had been
at home with [Kwamayne] on the 29th, and that she had
been well in the morning and then later was observed to
be coughing or choking on her bottle. [Kwamayne] patted
her, put her back down, and then later found her to be
less responsive.
He specifically denied any trauma and stated that he
had asked the children if they had known of any falls, and
. . . he said that they denied that.
Dr. Haney also reviewed information from the physician who
did the history and physical in the PICU. According to Dr.
Haney, the physician in the PICU also had the opportunity to
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Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
IN RE INTEREST OF KY’ARI J.
Cite as 29 Neb. Ct. App. 124
talk with Kwamayne and the history was similar: “Ky’Lynn
had been well and then had choked on a bottle, that he had
patted her and then later put her back down and then later she
became less responsive.” Dr. Haney’s understanding was that
Ashley was not present when Ky’Lynn became unresponsive.
In addition to reviewing information from the emergency
room and the PICU physicians, Dr. Haney reviewed informa-
tion from the ophthalmologist that examined Ky’Lynn. Dr.
Haney stated that “Ky’Lynn had retinal hemorrhages noted
in her left eye that were described as too numerous to count,
out to the periphery and in multiple layers,” so “she had
intraretinal, which is within the layers of the retinal, and then
subretinal hemorrhages, which is below the retina.” Finally,
Dr. Haney relied on the neurosurgeon’s notes, which were
described above. Dr. Haney also conducted her own examina-
tion of Ky’Lynn that week. Dr. Haney was not able to speak
with Kwamayne and Ashley, so she provided specific ques-
tions to Det. Lisa Crouch of the Omaha Police Department to
ask them because Dr. Haney wanted more details about what
had happened, as well as any past medical history. Detective
Crouch was able to provide information from Kwamayne
and Ashley.
Dr. Haney diagnosed Ky’Lynn with abusive head trauma;
she explained that trauma meant “[i]mpact or movement of the
brain within the skull . . . .” Accidental trauma was ruled out
because there was no history of trauma reported, plus Ky’Lynn
was 3 months old and unable to harm herself. Dr. Haney con-
tinued that
combined with the severity of the subdural, the location
of the subdural, being that it was — not only covered the
entire left side of the skull inside but then was in between
both halves. And once the subdural was evacuated, we
actually saw some on the right, too, which is not consist­
ent with a single impact from a fall.
So all of that together and then the information from
ophthalmology, which was that — retinal hemorrhages.
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Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
IN RE INTEREST OF KY’ARI J.
Cite as 29 Neb. Ct. App. 124
Also the severity of those retinal hemorrhages is not
consistent with any sort of a short household fall [(e.g.,
rolling off a changing table, being accidentally dropped
by an adult, jumping out a second-story window)]. So that
all together ruled out an accident.
Dr. Haney stated that a laboratory evaluation ruled out any
sort of a bleeding disorder or infection. “So we were left with
abuse — abusive head trauma as the only diagnosis.” On cross-
examination, Dr. Haney stated, “I’ve discussed this case with
a number of the medical team, and nobody disagreed with my
diagnosis”; the medical team was composed of “20 or 30” doc-
tors, including physicians from neurosurgery and ophthalmol-
ogy, the PICU physicians, physicians at Children’s Hospital
and Medical Center, and the “floor” pediatricians, “[s]o it’s the
whole hospital team” that cared for Ky’Lynn.
Dr. Haney testified that as a result of the brain injury,
Ky’Lynn had “significant seizures requiring multiple medi-
cations and was transferred from [UNMC] to Children’s [on
May 31 or June 1, 2019,] because of the acuity of her condi-
tion and then, to my understanding, has required prolonged
treatment for a neurologic injury.” It was also Dr. Haney’s
understanding that Ky’Lynn has since been diagnosed with
cerebral palsy, which she said can be caused by an injury such
as Ky’Lynn’s.
On cross-examination, Dr. Haney was asked, in her opin-
ion, how Ky’Lynn’s injuries occurred. Dr. Haney responded,
“I don’t know if she was thrown into something, if she was
slammed on something, if she was shaken and slammed. I don’t
know because I wasn’t there.” However, Dr. Haney thought
it was “very likely” that Ky’Lynn was shaken “and probably
slammed, too,” because “[s]he had unilateral injuries, and I
see those more when there’s also a significant impact.” When
asked how much force is necessary to cause a subdural hema-
toma, Dr. Haney responded, “[Y]ou can’t test it to find out, but
this is well beyond that seen in normal parenting.”
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Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
IN RE INTEREST OF KY’ARI J.
Cite as 29 Neb. Ct. App. 124
Detective Crouch works in the special victims unit, specifi-
cally in the child victim/sexual assault unit. Detective Crouch
testified that she was assigned to this case on May 29, 2019,
after Ky’Lynn was brought into the UNMC emergency room
with a brain injury. Detective Crouch went to UNMC and
met with the emergency room physicians, who informed her
that Ky’Lynn had a subdural hemorrhage.
Detective Crouch and another detective then spoke with
Kwamayne and Ashley, individually, at UNMC on May 29,
2019. Detective Crouch described Ashley as “tearful, dis-
traught, [and] concerned about her child” during the interview.
However, Detective Crouch observed that Kwamayne was
“[v]ery interested in what we were doing, concerned about the
children being taken away,” even though she never indicated
that the children were being removed; it concerned her that this
was his initial concern.
The recordings of Kwamayne’s interview and Ashley’s
interview on May 29, 2019, were received into evidence. In
Kwamayne’s interview, he stated that Ashley had to work at
10 a.m. that day (May 29) and that she left the apartment
at 9:48 a.m. He was at the apartment with all three girls
and everything was good. About 12 or 12:30 p.m., he gave
Ky’Lynn a bottle, changed her, and put her in her chair and she
went to sleep. He went to check on the other girls, and when
he came back, Ky’Lynn was coughing. Kwamayne was con-
cerned. He took the bottle out of her mouth and patted her on
the back, and she went back to sleep. Kwamayne said he put
her back in the chair and everything was normal. He went to
clean the kitchen, and then he heard Ky’Lynn coughing again,
“like she’s trying to catch her breath.” He patted her back,
she burped, and then she threw up. Ky’Lynn lay there, and
Kwamayne thought she was asleep. When he came back a few
minutes later to check on her, she was not moving and was not
responding to his voice. Kwamayne said Ky’Lynn had a heart-
beat and was breathing, but she was not moving and her body
was “limp.” He ran and got Brooklyn to help, and they got
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IN RE INTEREST OF KY’ARI J.
Cite as 29 Neb. Ct. App. 124
some water; Kwamayne “sprinkled” some water on Ky’Lynn,
and she made moaning noises. Kwamayne did not have a
phone and Ashley had the car, so he asked Brooklyn to watch
her sister and he ran to Ashley’s work, which was a few blocks
away, to get keys to the car. On the way back to the apartment
with Ashley, he told her what happened. Ashley went to the
apartment office and asked someone to call an ambulance,
and then she returned to the apartment. Ashley’s boss also
showed up and asked if they should call the 911 emergency
dispatch service, and Kwamayne said yes. The ambulance
came and took Ky’Lynn to the emergency room. Kwamayne
said that the doctor told him that Ky’Lynn had fluid on her
brain. Kwamayne asked Brooklyn and Ky’Ari if they picked
Ky’Lynn up; Brooklyn said that she did and that the baby hit
her head on the couch—but Kwamayne was not sure if that
happened the same day or the day before. Kwamayne said he
did not hurt Ky’Lynn, “not even accidentally.”
In Ashley’s interview, she said that Kwamayne watched
the girls when she had to work. She went to work (three to
four blocks from the apartment) at 10 a.m. that day, May 29,
2019, and Ky’Lynn was fine. After about 2 hours, Kwamayne
showed up and said that something was wrong with Ky’Lynn
and that they needed to call 911. Ashley and Kwamayne drove
home and found Ky’Lynn on the bed with her sisters stand-
ing over her. Brooklyn said Ky’Lynn “boo booed”; when
asked, Brooklyn denied Kwamayne did anything to Ky’Lynn.
Ashley ran to the apartment office and asked someone to call
911; when they were not moving fast enough, she asked the
maintenance man outside to call too, and then the ambulance
came. Ashley stated that the night before (May 28), Brooklyn
told her that the day before (which would have been May 27),
she was holding Ky’Lynn and hit her head on the edge of a
seat; but Ashley stated that Ky’Lynn was fine “yesterday”
(May 28).
Detective Crouch testified that Ky’Lynn and her sib-
lings, Brooklyn and Ky’Ari, were possibly at risk of harm
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29 Nebraska Appellate Reports
IN RE INTEREST OF KY’ARI J.
Cite as 29 Neb. Ct. App. 124
in Kwamayne’s and Ashley’s custody, due to the fact that
Ky’Lynn’s significant brain injury was unexplained. She there-
fore authored an affidavit of removal of the juveniles from their
parents. Detective Crouch then consulted with Dr. Haney.
On June 3, 2019, Detective Crouch and the other detective
conducted second interviews with Kwamayne and Ashley, indi-
vidually, at central police headquarters. According to Detective
Crouch, during this second interview, Kwamayne was “[s]till
very talkative, stated he wasn’t sure what had happened to the
baby.” She stated that Kwamayne had “different theories on
how [Ky’Lynn’s injuries] possibly could have happened.”
The recordings of Kwamayne’s second interview and
Ashley’s second interview from June 3, 2019, were received
into evidence. In his second interview, Kwamayne described
the same series of events that led up to Ky’Lynn’s hospitaliza-
tion that he had described in his May 29 interview. He again
mentioned that Ky’Lynn hit her head on the edge of the couch
while Brooklyn was holding her. He also mentioned a car acci-
dent in which they were rear-ended, and this had happened a
couple days prior to May 29; the police were not called because
“no damage was done.” According to Kwamayne, Ky’Lynn
seemed “fine” after the car accident. During this interview,
Kwamayne again denied doing anything to hurt Ky’Lynn.
In her second interview from June 3, 2019, Ashley relayed
the same information that she had in her interview on May
29—when she left for work Ky’Lynn was fine and hours later
Kwamayne ran to her work, saying something was wrong
with Ky’Lynn. Ashley also told the detectives about the car
accident, which she said occurred on the Sunday before May
29 (this would have been May 26), but said that Ky’Lynn was
buckled in a five-point harness car seat at the time and was
“fine” after the accident. Detective Crouch testified that she
observed the vehicle and noted “very minimal, if any, damage
to the rear.”
Detective Crouch confirmed that she discussed the alter-
native scenarios with Dr. Haney, but neither lined up with
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IN RE INTEREST OF KY’ARI J.
Cite as 29 Neb. Ct. App. 124
the injuries Ky’Lynn sustained. And during cross-examination,
Dr. Haney said that the Omaha Police Department provided
her with information about an older sibling dropping Ky’Lynn,
but Dr. Haney stated “that’s not going to be consistent with
the child’s injuries.” Dr. Haney did not recall being aware of
a report that the family had been in a car accident the week
before, but said that information “wouldn’t have changed any-
thing,” “[b]ecause clearly it was not a severe enough car acci-
dent to warrant any medical attention, and . . . it would not
have caused this extent of injuries.” According to Dr. Haney,
with the severity of Ky’Lynn’s injuries, symptoms would have
appeared “[r]elatively quickly, within probably minutes to an
hour,” she would have been “noticeably unwell” as evidenced
by “[n]ot responding, maybe significant vomiting, probably
clinically deteriorating [(decreased responsiveness, moaning,
maybe even seizing)].”
Also during her second interview on June 3, 2019, Ashley
stated that she and Kwamayne have had arguments and dis-
putes, including arguing about Ky’Lynn’s paternity; Ashley
stated that Kwamayne does not believe that Ky’Lynn is his
daughter. When asked if things ever got physical, Ashley ini-
tially said no, but later admitted that it had gotten physical in
the past, most recently about 2 weeks prior when they got into
an altercation and Kwamayne got mad and threw a vase on
the ground; Ashley did not indicate whether the children were
present. When asked if Kwamayne ever put his hands on her
in the past, Ashley admitted that it had been “a while” (the
audio was unclear as to whether she said it had been a month,
2 months, or 3 months); she said Kwamayne pushed her, but
she did not fall back. When asked if Ashley appeared fearful
when talking about the domestic violence, Detective Crouch
testified, “At times.” She said Ashley “started to cry, and she
— her head would go down. She would look down as I was
speaking with her.”
Detective Crouch testified that she had also located a
report from within the year prior, in which Brooklyn made
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IN RE INTEREST OF KY’ARI J.
Cite as 29 Neb. Ct. App. 124
a report at school that she had been physically harmed by
Kwamayne; however, Kwamayne was never charged.
After concluding her investigation, and based on the medi-
cal opinions and the fact that Kwamayne was the caregiver
at the time of the onset of Ky’Lynn’s symptoms, Detective
Crouch submitted a warrant affidavit for Kwamayne, and he
was subsequently arrested on June 10, 2019, for felony child
abuse resulting in serious injury. We note there is nothing in
our record to show whether Kwamayne was ever convicted
of any charges stemming from Ky’Lynn’s injuries. In fact,
according to the State’s brief, Kwamayne “remains incarcer-
ated awaiting trial to be heard before the District Court on
September 14, 2020.” Brief for appellee at 32.
Paige Worley is the case manager assigned to this case.
Throughout this case, Worley had five visits with Ashley and
attended four team meetings. Worley also reviewed the follow-
ing: the current intake for this case, as well as three previous
intakes; police interviews of Kwamayne and Ashley; police
reports; jail calls from Kwamayne to Ashley; and medical
notes from various providers. Worley also had conversations
with those various medical providers. With respect to the
four intakes noted above, Worley confirmed her understanding
that the children were either present or involved in domestic
violence situations related to Kwamayne and Ashley and that
some of the incidents resulted in physical harm to the children;
Worley acknowledged that the intakes involved other men,
besides Kwamayne, as well. And on cross-examination, Worley
acknowledged that the previous intakes were unfounded and
the children were deemed to be safe. Throughout this case,
Worley never spoke to Kwamayne.
According to Worley, Brooklyn and Ky’Ari were inter-
viewed in May 2019. The interviews do not appear in our
record. Worley was asked if both children talked about physi-
cal abuse they had experienced. She confirmed Brooklyn
expressed that the abuse occurred more than once and that it
was by both Kwamayne and Ashley. Worley also confirmed
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29 Nebraska Appellate Reports
IN RE INTEREST OF KY’ARI J.
Cite as 29 Neb. Ct. App. 124
that Ky’Ari expressed abuse by Kwamayne. Although details
of the abuse were not elaborated upon in Worley’s testimony,
during cross-examination, she agreed that it was more accu-
rate that the girls described getting spankings from their par-
ents. Worley believed that it was in Ky’Ari’s best ­interests
to terminate Kwamayne’s parental rights to her. When asked
why, Worley responded, “Kwamayne has a history of vio-
lence and physical abuse, some of which Brooklyn . . .
and Ky’Ari . . . have disclosed, and we’re here because of
Ky’Lynn’s head trauma, as well, and I would be concerned
that another child could sustain more injuries . . . .”
Carrie Hillebrandt has been Brooklyn’s therapist since
July 2019. Hillebrandt’s July 2019 initial diagnostic inter-
view report regarding Brooklyn was received into evidence.
According to the report, Brooklyn stated Ky’Lynn “looked
like she was dead” after she “got sick” and “could not hold
her head up.” The foster mother reported that during one of
the first phone calls with Ashley, Brooklyn said, “‘I don’t
want daddy to hit you till you bleed anymore’”; Brooklyn
was then told by Ashley that they were not going to talk about
“daddy anymore.” Hillebrandt testified that Brooklyn refers to
Kwamayne as “her dad,” and calls her biological father by his
first name. According to the report, Brooklyn denied sexual
abuse, physical abuse, emotional abuse, or neglect. She also
denied ever witnessing domestic violence. However, “[d]uring
her trauma assessment and based on collateral information this
does not appear to be the truth.” Hillebrandt’s recommenda-
tions included individual therapy to process trauma, build cop-
ing skills, and express feelings; family therapy with Ashley;
and no contact between Brooklyn and Kwamayne.
After the initial diagnostic interview in July 2019,
Hillebrandt met with Brooklyn on a weekly basis and con-
tinued to do so at the time of her testimony on December
2. During sessions, they have talked about the incident
that brought Brooklyn into care; Brooklyn said she “heard
[Ky’Lynn] crying and her dad yelling, and then when she
saw her little sister, she — she thought her sister was dead.”
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Hillebrandt testified that during therapy sessions, “Brooklyn
has made reference to her mother being hurt by her dad, who
she identifies as Kwamayne”; “[s]he has made comments
about being afraid that her dad was going to hit her mom in the
face again or step on her face again.” When asked if Brooklyn
made one statement or multiple statements regarding domestic
violence, neglect, or abuse, Hillebrandt responded, “[m]ultiple
statements.” Hillebrandt stated, “Most of what Brooklyn talks
about is the domestic violence . . . we go over feelings, and
so she talks about being hurt by watching her mom get beat
on. She talks about worrying about her dad doing it again.”
When asked if it concerned her that Brooklyn had witnessed
so much trauma at a young age, Hillebrandt responded, “Any
child who witnesses that type of trauma builds unhealthy cop-
ing strategies and are high risk to repeating those patterns.”
On cross-examination, Hillebrandt acknowledged that she did
not know how many incidents of domestic violence Brooklyn
had seen. However, on redirect, Hillebrandt agreed it was fair
to say Brooklyn had seen domestic violence between Ashley
and Kwamayne more than once.
During family therapy, Hillebrandt asked Ashley about
Brooklyn’s trauma history and Ashley talked about a “long his-
tory” of domestic violence with Kwamayne “and that she was
terrified of him.” Ashley did not tell Hillebrandt what happened
to her during the domestic violence incidences, but she did say
that the children were present at times.
We note that during the course of Hillebrandt’s cross-­
examination, the juvenile court told Kwamayne he was becom-
ing disruptive to the proceedings. After some back-and-forth
between the court and Kwamayne, the court asked Kwamayne
to remain silent and said that it would find him in contempt
of court if he did not remain silent. After a later outburst by
Kwamayne, the court found him in contempt of court and
excused him from the courtroom. Kwamayne was later sen-
tenced to 30 days in jail on his contempt citation “to be served
concurrently with his present incarceration.”
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3. Juvenile Court’s Decision
In an order filed on December 9, 2019, the juvenile court
adjudicated Ky’Ari to be within the meaning of § 43-247(3)(a)
by the reason of the fault or habits of Kwamayne for the
reasons alleged in the amended supplemental petition. The
juvenile court also terminated Kwamayne’s parental rights to
Ky’Ari after finding by clear and convincing evidence that
reasonable efforts were not required and statutory grounds
for termination existed pursuant to § 43-292(2), (9), and
(10) and that termination of parental rights was in the child’s
best interests.
Kwamayne appeals.
III. ASSIGNMENTS OF ERROR
Kwamayne assigns, summarized, that the juvenile court
erred in (1) adjudicating Ky’Ari to be within the meaning of
§ 43-247(3)(a) by reason of his fault or habits and (2) terminat-
ing his parental rights to Ky’Ari.
IV. STANDARD OF REVIEW
[1] An appellate court reviews juvenile cases de novo on the
record and reaches a conclusion independently of the juvenile
court’s findings. In re Interest of Isabel P. et al., 293 Neb. 62,
875 N.W.2d 848 (2016).
V. ANALYSIS
1. Adjudication
[2] In order to obtain jurisdiction over a juvenile at the adju-
dication stage, the court’s only concern is whether the condi-
tions in which the juvenile presently finds himself or herself
fit within the asserted subsection of § 43-247. In re Interest of
Kane L. & Carter L., 299 Neb. 834, 910 N.W.2d 789 (2018).
The State must prove such allegations by a preponderance of
the evidence. Id.
In count I of the amended supplemental petition, the
State alleged that Ky’Ari was a child within the meaning of
§ 43-247(3)(a) because she lacked proper parental care by
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reason of the fault or habits of Kwamayne. The State specifi-
cally alleged that Ky’Lynn was diagnosed with injuries consist­
ent with intentional physical abuse and that Kwamayne, her
caregiver, was unable to provide a reasonable explanation for
the injuries. The State further alleged that Kwamayne failed to
provide proper parental care, support, and/or supervision for
the juveniles and that due to all of the allegations, Ky’Ari was
at risk for harm.
According to the evidence presented at the combined adju-
dication and termination hearing, Kwamayne was alone with
Ky’Ari, Brooklyn, and Ky’Lynn after Ashley left for work
shortly before 10 a.m. on May 29, 2019. A couple hours later,
he ran to Ashley’s work and informed her that something was
wrong with Ky’Lynn. An ambulance was called, and Ky’Lynn
was taken to the emergency room and thereafter had to have
emergency surgery to relieve pressure and drain fluid off of
her brain. Ky’Lynn was subsequently diagnosed with abusive
head trauma.
Kwamayne did not have a reasonable explanation for
Ky’Lynn’s injuries. According to Dr. Haney, neither of
Kwamayne’s two theories—the car accident and Ky’Lynn’s
hitting her head while being held by Brooklyn, both of
which occurred prior to May 29, 2019—were consistent with
Ky’Lynn’s injuries. Dr. Haney testified that with the sever-
ity of Ky’Lynn’s injuries, symptoms would have appeared
“[r]elatively quickly, within probably minutes to an hour,”
and she would have been “noticeably unwell” as evidenced by
“[n]ot responding, maybe significant vomiting, probably clini-
cally deteriorating [(decreased responsiveness, moaning, maybe
even seizing)].” Both Kwamayne and Ashley reported that
Ky’Lynn was fine when Ashley went to work that morning.
Dr. Haney stated the severity of Ky’Lynn’s injuries was not
consistent with any sort of a short household fall, and a lab­
oratory evaluation ruled out any sort of a bleeding disorder or
infection. Dr. Haney testified that left “abusive head trauma
as the only diagnosis.” And on cross-examination, she stated
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that none of the “20 or 30” doctors on Ky’Lynn’s medical team
disagreed with that diagnosis.
[3] Based on the evidence presented, Ky’Lynn suffered “abu-
sive head trauma” while in Kwamayne’s care. We acknowledge
that Ky’Ari was not injured that day. However, the State need
not prove that the child has actually suffered physical harm;
Nebraska case law is clear that at a minimum, the State must
establish that without intervention, there is a definite risk of
future harm. See In re Interest of Kane L. & Carter L., 299
Neb. 834, 910 N.W.2d 789 (2018). We find, by a preponderance
of the evidence, that the severe nonaccidental injuries sustained
by Ky’Ari’s 3-month-old sister while in Ky’Ari’s father’s care
certainly puts Ky’Ari at risk for future harm. Therefore, we
find that the conditions alleged fit within § 43-247(3)(a) and
we affirm the adjudication of Ky’Ari due to the fault or habits
of Kwamayne.
2. Statutory Grounds for Termination
[4] In Nebraska statutes, the bases for termination of paren-
tal rights are codified in § 43-292. Section 43-292 provides
11 separate conditions, any one of which can serve as the
basis for the termination of parental rights when coupled with
evidence that termination is in the best interests of the child.
In re Interest of Elizabeth S., 282 Neb. 1015, 809 N.W.2d
495 (2012).
In its order terminating Kwamayne’s parental rights to
Ky’Ari, the juvenile court found that statutory grounds existed
pursuant to § 43-292(2) (substantial and continuous or repeated
neglect of juvenile or sibling), § 43-292(9) (juvenile or another
minor child subjected to aggravated circumstances), and
§ 43-292(10) (felony assault resulting in serious bodily injury
to juvenile or another minor child of parent). We will address
each statutory ground, but in reverse order.
(a) § 43-292(10)
Pursuant to § 43-292(10), parental rights may be termi-
nated when the parent has (a) committed murder of another
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child of the parent; (b) committed voluntary manslaughter of
another child of the parent; (c) aided or abetted, attempted,
conspired, or solicited to commit murder, or aided or abetted
voluntary manslaughter of the juvenile or another child of the
parent; or (d) committed a felony assault that resulted in seri-
ous bodily injury to the juvenile or another minor child of the
parent. It is only § 43-292(10)(d) that is at issue in this case.
Although the State alleged, and the juvenile court determined,
that Kwamayne’s parental rights should be terminated on this
ground, we disagree that this statutory ground can be applied
under the circumstances present in this case. We also note that
although the State argued in its brief on appeal that the juvenile
court was correct in finding that Kwamayne’s parental rights
could be terminated under § 43-292(10), the State subsequently
conceded at oral argument that the juvenile court erred in find-
ing that section applicable to this case.
Section 43-292(10)(d) plainly states that parental rights may
be terminated when the parent has “committed a felony assault
that resulted in serious bodily injury to the juvenile or another
minor child of the parent.” (Emphasis supplied.) Here, there is
no evidence of an assault on “the juvenile” at issue, Ky’Ari.
And as stated previously, our record does not establish that
Kwamayne is Ky’Lynn’s father. Although our record contains
various statements that Kwamayne is Ky’Lynn’s father, he is
not listed on her birth certificate and there is no order estab-
lishing paternity appearing in our record. Moreover, although
Kwamayne was ordered to undergo paternity testing regarding
Ky’Lynn, our record does not reveal whether such testing took
place or the results of any such testing. Because it has not
been established that any felony assault resulting in serious
bodily injury was committed by Kwamayne against a minor
child of his, there is no basis for terminating his parental
rights to Ky’Ari on this ground. The lack of evidence regard-
ing Ky’Lynn’s parentage resolves this issue, and we therefore
need not get to the issue of whether § 43-292(10) requires a
criminal conviction as a prerequisite to using this subsection
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as a basis for termination. See In re Interest of Carmelo G.,
296 Neb. 805, 896 N.W.2d 902 (2017) (appellate court not
obligated to engage in analysis that is not necessary to adjudi-
cate case and controversy before it).
We note that § 43-292(8) was understandably not alleged as
a ground for termination in this case given its limited scope;
that statutory provision does provide another ground for termi-
nation based on the infliction of serious bodily injury by non-
accidental means. However, § 43-292(8) is limited to the par-
ent’s infliction of such injury on the juvenile at issue, Ky’Ari
in this case; it does not include, like other subsections do, the
infliction of such injury on a sibling of the juvenile, another
minor child of the parent, or another minor child.
The abusive head trauma sustained by Ky’Lynn cannot serve
as a ground for the termination of Kwamayne’s parental rights
to Ky’Ari under § 43-292(10). Thus, we next consider whether
the abusive head trauma sustained by Ky’Lynn can serve as a
ground for the termination of Kwamayne’s parental rights to
Ky’Ari under § 43-292(9).
(b) § 43-292(9)
[5-7] Pursuant to § 43-292(9), parental rights may be ter-
minated when “[t]he parent of the juvenile has subjected the
juvenile or another minor child to aggravated circumstances,
including, but not limited to, abandonment, torture, chronic
abuse, or sexual abuse.” (Emphasis supplied.) Whether aggra-
vated circumstances exist is determined on a case-by-case
basis. In re Interest of Ryder J., 283 Neb. 318, 809 N.W.2d 255
(2012). The Legislature has not defined in the juvenile code the
phrase “aggravated circumstances,” but the Nebraska Supreme
Court has cited with approval the New Jersey Superior Court,
which stated that “‘where the circumstances created by the
parent’s conduct create an unacceptably high risk to the health,
safety and welfare of the child, they are “aggravated” . . . .’”
In re Interest of Jac’Quez N., 266 Neb. 782, 791, 669 N.W.2d
429, 436 (2003), quoting New Jersey Div. v. A.R.G., 361 N.J.
Super. 46, 824 A.2d 213 (2003).
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[8] The Nebraska Supreme Court has determined that aggra-
vated circumstances exist when a child suffers severe, inten-
tional physical abuse. See In re Interest of Ryder J., supra
(father subjected son’s half brother from mother’s previous
relationship to “aggravated circumstances” under § 43-292(9)
when he subjected half brother to severe, intentional physi-
cal abuse, even though half brother suffered no permanent
injury or disability; half brother had bruising, swelling, and
abrasion to his genitals and surrounding area, petechial hemor-
rhaging across his face, significant bruises on several areas of
his body, and a hemorrhage in his right eye).
This court has also addressed the termination of paren-
tal rights based on “aggravated circumstances” pursuant to
§ 43-292(9). In In re Interest of Elijah P. et al., 24 Neb. Ct. App.
521, 891 N.W.2d 330 (2017), the juvenile court terminated a
mother’s and father’s parental rights to their respective chil-
dren in part based on § 43-292(9), but this court reversed on
appeal after finding, in part, that aggravated circumstances
were not proved by clear and convincing evidence. In that
case, the father’s almost 2-year-old child was being cared for
by the mother of his other children. The almost 2-year-old
child was standing on the armrest of a couch and fell off, land-
ing face first on the floor, which was made of vinyl covering
tile placed over concrete. Other than a knot above his eye and
a black eye, the child appeared to be acting normally for 9
days. Then, on a night that he was again being cared for by
the mother of the father’s other children, he appeared stiff and
was unable to be awakened but displayed no other concerning
symptoms; he was believed to be sleeping. The caregiver and
the father were in contact, and the father even stopped by to
check on the child. The father and the caregiver both stated
that they became less concerned about the stiffness when the
child’s mother indicated the child had experienced stiffness as
a baby and that their concerns were additionally alleviated by
the father’s internet research. The caregiver checked on the
child throughout the night, but the child did not experience
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any more stiffness and appeared to be sleeping. As soon as
the child’s condition worsened the next morning (stiff leg and
one eye open but not focusing or looking at the caregiver), the
caregiver called the father, who responded immediately and
took the child to a hospital. At the hospital, the child was diag-
nosed with a skull fracture above the eye, a subdural hema-
toma, and a significant brain injury. He was taken into surgery
to have the hematoma drained.
In In re Interest of Elijah P. et al., supra, text messages
between the father and the caregiver supported the series of
events reported by them, and forensic interviews of the other
children did not indicate concerning behavior by the caregiver
on the nights in question. At trial, Dr. Haney, the same child
abuse pediatrician involved with Ky’Lynn’s care, opined that
the child’s injuries were the result of two separate incidents:
one incident occurred when he fell off of the couch which
caused the skull fracture above his eye but did not cause any
long-term consequences and, in her opinion, a second incident
of trauma occurred around the time he became symptomatic
9 days later and led to the subdural hematoma, brain injury,
and seizures. In addition, Dr. Haney testified that the sever-
ity of the child’s brain injury and subdural hematoma was not
consistent with a short fall and that he would have begun to
display symptoms within minutes to hours after sustaining an
injury that caused the type of subdural hematoma he had. Thus,
based on the history provided to her and the lack of any sig-
nificant accidental trauma, Dr. Haney opined that the subdural
hematoma and brain injury were the result of inflicted blunt
force trauma.
On appeal, this court stated that the only evidence pre-
sented at trial on which a finding of intentional abuse could
be based was Dr. Haney’s opinion that the child’s brain injury
and subdural hematoma were not caused by the fall from the
couch. But she admitted that the height of the fall was not
presented to her, and her records incorrectly indicated that he
fell off a couch and hit his head on a table. This court also
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considered the caregiver’s history with that child and the other
children and considered text messages sent on the night the
child fell off of the couch and the messages sent 9 days later,
which revealed “genuine concern.” In re Interest of Elijah P.
et al., 24 Neb. Ct. App. 521, 538, 891 N.W.2d 330, 344 (2017).
This court also considered that the police found no “hard evi-
dence” indicating that the child’s injuries were intentionally
caused. Id.
This court determined that although Dr. Haney’s testimony
could support a conclusion that the caregiver intentionally
inflicted the child’s injuries, when coupled with the circumstan-
tial evidence presented at trial, the totality of the evidence did
not rise to the level of clear and convincing in order to support
a finding that the caregiver intentionally harmed the child. Id.
This court also found that the caregiver’s and the father’s delay
in seeking medical attention did not amount to aggravated
circumstances because before they sought treatment, the child
did not display obvious, serious physical injuries. Id. Compare
In re Interest of Jac’Quez N., 266 Neb. 782, 669 N.W.2d 429
(2003) (concluding aggravated circumstances existed where
parents delayed seeking medical attention for 2 days when
child had suffered obvious, serious physical injuries).
However, in In re Interest of Gavin S. & Jordan S., 23 Neb.
App. 401, 873 N.W.2d 1 (2015), this court affirmed a termina-
tion of parental rights based on “aggravated circumstances”
pursuant to § 43-292(9). In that case, the parents’ rights to their
two children were terminated pursuant to § 43-292(9) after a
child in the in-home daycare run by the parents died as a result
of severe head trauma. The evidence presented by the State at
the termination hearing revealed that when the 1-year-old child
arrived at the parties’ daycare, he was alert, playful, and happy.
And, although he was suffering from an undiagnosed skull
fracture, that injury had begun to heal and, on that morning,
was not affecting the child in a significant way. Approximately
8 hours after the child arrived at the parties’ home, he was
pronounced dead due to recent and severe head trauma
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similar to that incurred in a fall from a height of at least 12 feet
or in a car accident. Such trauma was so significant that any-
one would have been able to observe an immediate and dra-
matic change in the child; he would have had trouble breathing
and moving his limbs, and soon after sustaining the injury, he
would have become completely unresponsive.
Clearly, [the child] did not have such an injury when
he arrived at [the parties’] home. [The parties] were the
only people who provided care for [the child] during and
after the time he sustained this serious injury. Neither
[of the parties] offered any explanation for [the child’s]
injury or death.
In re Interest of Gavin S. & Jordan S., 23 Neb. Ct. App. at 414-
15, 873 N.W.2d at 10. Upon our de novo review of the record
in that case, and giving weight to the juvenile court’s findings
about witness credibility, we concluded that there was clear
and convincing evidence presented at the termination hearing
to demonstrate that the parties subjected the child to “aggra-
vated circumstances” pursuant to § 43-292(9).
We find the case before us to be similar to the facts in In
re Interest of Gavin S. & Jordan S., supra. The evidence pre-
sented by the State at the termination hearing revealed that
when Ashley left for work, 3-month-old Ky’Lynn was fine.
A couple hours later, Kwamayne ran to Ashley’s place of
employment, stating that something was wrong with Ky’Lynn.
Ky’Lynn was subsequently transported to UNMC, and she
arrived “with an episode of unresponsiveness, and then even-
tually she went apneic or stopped breathing” in the emer-
gency room. It was discovered that she had a large sub­
dural hematoma that required surgical intervention. Burr holes
were placed into Ky’Lynn’s skull to relieve pressure, but
when bleeding continued, the neurosurgeon had to temporar-
ily remove part of the skull to repair the bleeding. In addition
to the subdural hematoma, Ky’Lynn had injury to the paren-
chyma of the brain (the brain tissue) itself, and she had retinal
hemorrhages noted in her left eye that “were described as too
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numerous to count.” Dr. Haney stated that accidents and any
sort of a bleeding disorder or infection were ruled out. She
stated that abusive head trauma was left as the only diagnosis
and that none of the “20 or 30” doctors on Ky’Lynn’s medical
team disagreed with the diagnosis.
On cross-examination, Dr. Haney was asked, in her opin-
ion, how Ky’Lynn’s injuries occurred. Dr. Haney responded,
“I don’t know if she was thrown into something, if she was
slammed on something, if she was shaken and slammed. I don’t
know because I wasn’t there.” However, Dr. Haney thought
it was “very likely” that Ky’Lynn was shaken “and probably
slammed, too,” because “[s]he had unilateral injuries, and I
see those more when there’s also a significant impact.” When
asked how much force is necessary to cause a subdural hema-
toma, Dr. Haney responded, “[Y]ou can’t test it to find out, but
this is well beyond that seen in normal parenting.”
Dr. Haney testified that with the severity of Ky’Lynn’s
injuries, symptoms would have appeared “[r]elatively quickly,
within probably minutes to an hour,” and she would have
been “noticeably unwell” as evidenced by “[n]ot responding,
maybe significant vomiting, probably clinically deteriorating
[(decreased responsiveness, moaning, maybe even seizing)].”
Based on the evidence presented at trial, Ky’Lynn did not
have a head injury when Ashley left for work. Kwamayne
was the only person who provided care for Ky’Lynn dur-
ing the timeframe she would have sustained the injury, and
he did not offer any reasonable explanation for the injury.
Additionally, there was other evidence in the record to show
Kwamayne exhibited violent behavior in the past. According
to Hillebrandt’s report and testimony, Brooklyn made state-
ments that Kwamayne had hit Ashley until she bled and that he
stepped on Ashley’s face. These additional considerations dis-
tinguish this case from In re Interest of Elijah P. et al., 24 Neb.
App. 521, 891 N.W.2d 330 (2017). On our de novo review of
the record, we conclude that there was clear and convincing
evidence presented at the termination hearing to prove that
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Kwamayne subjected Ky’Lynn to “aggravated circumstances”
pursuant to § 43-292(9). Accordingly, there was clear and
convincing evidence to show that grounds for termination of
Kwamayne’s parental rights to Ky’Ari under § 43-292(9) were
proved by sufficient evidence.
(c) § 43-292(2) and Reasonable Efforts
We need not consider whether termination of parental rights
was proper pursuant to § 43-292(2), since any one of the 11
grounds identified in § 43-292 can serve as the basis for the
termination of parental rights when coupled with evidence
that termination is in the best interests of the child. See In
re Interest of Elizabeth S., 282 Neb. 1015, 809 N.W.2d 495
(2012). Thus, the next inquiry is whether termination was in
Ky’Ari’s best interests.
We note that in his brief, Kwamayne argues that the supple-
mental petition and termination of parental rights “simply
alleged that [Kwamayne] ‘has subjected said child to aggra-
vated circumstances[,]’” and “[t]he ‘said child’ in this case
was Ky’Ari alone”; thus, the State failed to present evidence
showing that he subjected Ky’Ari to aggravated circumstances
and that reasonable efforts were not required. Brief for appel-
lant at 19. However, reasonable efforts to reunify a family
are required under the juvenile code only when termination is
sought under § 43-292(6). In re Interest of Hope L. et al., 278
Neb. 869, 775 N.W.2d 384 (2009). See, also, In re Interest of
Andrew M. et al., 11 Neb. Ct. App. 80, 643 N.W.2d 401 (2002).
Section 43-292(6) was neither alleged nor determined to be a
ground for termination in this case.
3. Best Interests and Unfitness
[9,10] Under § 43-292, once the State shows that statu-
tory grounds for termination of parental rights exist, the State
must then show that termination is in the best interests of the
child. In re Interest of Ryder J., 283 Neb. 318, 809 N.W.2d
255 (2012). But that is not all. A parent’s right to raise his or
her child is constitutionally protected; as such, before a court
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may terminate parental rights, the State must also show that
the parent is unfit. In re Interest of Nicole M., 287 Neb. 685,
844 N.W.2d 65 (2014).
[11-14] There is a rebuttable presumption that the best inter-
ests of a child are served by having a relationship with his or
her parent. Id. 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 a parent is unfit. Id. The term
“unfitness” is not expressly used in § 43-292, but the concept
is generally encompassed by the fault and neglect subsections
of that statute, and also through a determination of the chil-
dren’s best interests. In re Interest of Nicole M., supra. Parental
unfitness means a personal deficiency or incapacity which has
prevented, or will probably prevent, performance of a reason-
able parental obligation in child rearing and which caused, or
probably will result in, detriment to a child’s well-being. Id.
The best interests analysis and the parental fitness analysis are
fact-intensive inquiries. Id. And while both are separate inquir­
ies, each examines essentially the same underlying facts as the
other. Id.
[15] We recognize that there is no evidence that Kwamayne
has ever abused Ky’Ari. But there is clear and convincing
evidence that Kwamayne seriously abused Ky’Ari’s sister,
Ky’Lynn. And the Nebraska Supreme Court has stated, “[I]n
our view, the abuse of any child by an adult—regardless of
whether it is the adult’s own child or the child of another—
calls that adult’s ability to parent into serious question.” In
re Interest of Ryder J., 283 Neb. at 327, 809 N.W.2d at 262.
The fact that Kwamayne has not yet abused Ky’Ari is incon-
sequential. “We need not wait for a disaster to strike before
taking protective steps in the interests of a minor child.” Id.
See, also, In re Interest of Gavin S. & Jordan S., 23 Neb.
App. 401, 873 N.W.2d 1 (2015) (even though there was no
evidence presented about inappropriate or violent actions by
parents with their own children, and there was evidence that
parents had strong bond with their children, the risk of harm
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Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
IN RE INTEREST OF KY’ARI J.
Cite as 29 Neb. Ct. App. 124
to the children in parents’ home was simply too much to over-
come; no reasonable alternative existed other than to terminate
parental rights). In addition to there being clear and convincing
evidence that Kwamayne caused a severe, nonaccidental injury
to Ky’Ari’s sister, there was also evidence that Kwamayne
abused Ky’Ari’s mother—that Kwamayne hit Ashley until she
bled and that he stepped on Ashley’s face. Under the circum-
stances of this case, we find that the State has rebutted the pre-
sumption of parental fitness as to Kwamayne. We further find
that there is clear and convincing evidence that it is in the best
interests of Ky’Ari to terminate Kwamayne’s parental rights.
VI. CONCLUSION
For the reasons stated above, we affirm the order of the juve-
nile court terminating Kwamayne’s parental rights to Ky’Ari.
Affirmed.