In re Interest of McKenzie D.

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
IN RE INTEREST OF MCKENZIE D. ET AL.
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
IN RE INTEREST OF MCKENZIE D. ET AL.,
CHILDREN UNDER 18 YEARS OF AGE.
STATE OF NEBRASKA, APPELLEE,
V.
JENNIFER R., APPELLANT.
Filed June 1, 2021. Nos. A-20-930 through A-20-932.
Appeals from the County Court for Scotts Bluff County: KRIS D. MICKEY, Judge.
Affirmed.
William E. Madelung, of Madelung Law Office, P.C., L.L.O., for appellant.
Danielle Larson, Deputy Scotts Bluff County Attorney, for appellee.
RIEDMANN, ARTERBURN, and WELCH, Judges.
WELCH, Judge.
INTRODUCTION
Jennifer R. appeals the termination of her parental rights to her three minor children. On
appeal, Jennifer assigns as error that “[t]he State did not establish by clear and convincing evidence
that one or more of the statutory grounds listed in [Neb. Rev. Stat.] § 43-292 [Reissue 2016] have
been satisfied and that termination of parental rights is in the best interest [sic] of the minor
child[ren].” For the reasons set forth herein, we affirm.
STATEMENT OF FACTS
Jennifer is the natural mother of McKenzie D., born March 2010; Emily R., born March
2012; and Colten R., born July 2013. On June 3, 2020, the State filed juvenile court petitions in
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Scotts Bluff County Court, sitting as a juvenile court, alleging that McKenzie, Emily, and Colten
were children within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016) in that they
lacked proper parental care by the faults or habits of their parents and/or were in a situation or
engaged in an occupation dangerous to life or limb or injurious to the health or morals of the
juveniles, specifically: (1) that Jennifer’s use of controlled substances placed the juveniles at risk
of harm and deprived them of necessary parental care, (2) the juveniles’ parents failed to meet the
juveniles’ basic needs, and (3) the juvenile’s father was in prison.
The juvenile petitions also moved the court to terminate Jennifer’s and the father’s parental
rights pursuant to § 43-292(2) and (4) and alleged that termination of their parental rights was in
the best interests of the children. Although the adjudication and termination of parental rights
involved both Jennifer and the children’s father, the father is not involved in this appeal and will
only be mentioned as necessary for clarity.
Following a combined adjudication and termination hearing, the court entered an order in
November 2020 adjudicating McKenzie, Emily, and Colten as children within the meaning of
§ 43-247(3)(a) and terminating both Jennifer’s and the father’s parental rights to McKenzie, Emily,
and Colten. The court also found that the State had proved, by clear and convincing evidence, the
statutory factors set forth in both § 43-292(2) and (4) and that termination of parental rights was
in the best interests of the minor children. Specifically, the court found:
Clear and convincing evidence demonstrates that the parents of the minor children have
substantially and continuously or repeatedly neglected and refused to give the juveniles
necessary parental care and protection; and that the parents are also unfit by reason of
debauchery, habitual use of intoxicating liquor or narcotic drugs, or repeated lewd and
lascivious behavior, which conduct if found by the court to be seriously detrimental to the
health, morals, or well-being of the juveniles. The court specifically finds clear and
convincing evidence that [the father] and Jennifer have denied these children their basic
needs for physical and emotional care and protection.
The children were removed from their mother’s care on May 30, 2020, after
relatives were unable to find her and could no longer care for the children. The children’s
aunt, who went and picked them up from the maternal grandmother’s house, testified the
grandmother was bedridden and in tears. [The father] has been incarcerated throughout the
duration of these cases for distribution of methamphetamine following his arrest on
November 25, 2019. . . . At that time, the children were picked up by their aunt and
eventually ended up at their maternal grandmother’s house because that is where the
children felt the most comfortable. Jennifer did not live with the grandmother at that time.
As to both parents, the children have experienced repeated traumatic absences of
any parental care. Jennifer has made approximately 10 visits over five months with her
children. The foster mother and caseworker testified [that] two of the children have refused
to attend visits with Jenifer. Jennifer has not had stable housing, and lived in five different
locations and her car in the nine months preceding the adjudication hearing. She has not
been consistently employed and has no steady source of income. She has struggled with
her mental health, and did not follow through with meeting with a counselor (or
participation in other resources) arranged by DHHS. Jennifer testified she was an alcoholic
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and had been for the last four years, and described a paranoia that members associated with
a drug cartel were after her. Jennifer’s lack of participation during the ongoing pandemic
mirrors her lack of participation in 2018-19, and thus the court finds the pandemic does not
appear to be the cause for Jenifer’s lack of meaningful progress in parenting skills.
. . . Substance use and abuse has been an issue surrounding the parents of these
children for years. The children previously spent approximately a year and one-half as
wards of the state while the parents attempted to find long-term solutions to their parenting
deficits, only to return to the system not long after the first cases were closed.
The court specifically finds determinations as to credibility of witnesses weigh in
favor of the State’s witnesses over that of the mother. Clear and convincing evidence
warrants adjudication of the motions to terminate parental rights as to each and every
statutory factor alleged in these cases.
The court further found that termination was in the best interests of the children, stating:
[T]aking into consideration the totality of evidence from the adjudication hearing,
including an assessment of the children’s present circumstances and adjustments, as well
as the children’s long-term physical, social, and emotional needs, this court finds that
sufficient evidence was presented to demonstrate clearly and convincingly that termination
of parental rights is appropriate and in the best interests of the children. As to the parents,
the totality of the evidence, including the parents’ individual failures to provide for their
children and accomplish meaningful and sustained improvement in parenting skills
demonstrate parental unfitness and collectively dictate in favor of termination of parental
rights being in the children’s best interests. These children should not be made to wait
uncertain parental maturity when there is clear and convincing evidence that the children’s
overall future well-being stands to improve with the prospects of new relationships which
the termination might open for them.
Jennifer has timely appealed to this court.
ASSIGNMENTS OF ERROR
Jennifer assigns as error that “[t]he State did not establish by clear and convincing evidence
that one or more of the statutory grounds listed in § 43-292 have been satisfied and that termination
of parental rights is in the best interest [sic] of the minor child[ren].” Brief for appellant at 2.
STANDARD OF REVIEW
An appellate court reviews juvenile cases de novo on the record and reaches its conclusions
independently of the juvenile court’s findings. In re Interest of Leyton C. & Landyn C., 307 Neb.
529, 949 N.W.2d 773 (2020). When the evidence is in conflict, however, an appellate court may
give weight to the fact that the lower court observed the witnesses and accepted one version of the
facts over the other. Id.-3-
Plain error is error plainly evident from the record and of such a nature that to leave it
uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process.
In re Interest of Justine J. & Sylissa J., 288 Neb. 607, 849 N.W.2d 509 (2014).
ANALYSIS
Jennifer’s assignment of error states that “[t]he State did not establish by clear and
convincing evidence that one or more of the statutory grounds listed in § 43-292 have been satisfied
and that termination of parental rights is in the best interest [sic] of the minor child[ren].” Brief for
appellant at 2. However, the argument section of her brief consists of citations to case law and the
following argument:
Although some pre-adjudication services were offered to [Jennifer] prior to the combined
hearing, the Juvenile Court never made a formal order laying out the rehabilitative program
that [Jennifer] should follow to correct the issues that brought the family into Court and
gave no opportunity for [Jennifer] to show compliance with such a plan and demonstrate
to the Court the “continued improvement in parenting skills and a beneficial relationship
between parent and child” referred to in In re Interest of Aaron D., 269 Neb. 249 (2005).
Therefore, the Juvenile Court could not make a finding that “(n)o reasonable efforts to
preserve and reunite the family if required under section 43-283.01, under the direction of
the court, have failed to correct the conditions leading to the determination.
The Juvenile Court did not make an explicit finding under Neb. Rev. Stat.
§ 43-283.01(4) that any of the conditions allowing the Juvenile Court to find that
reasonable efforts to [p]reserve and reunify the family were not necessary prior to
terminating [Jennifer’s] parental rights.
Brief for appellant at 11.
The State notes that Jennifer did not argue her assigned error (regarding statutory ground
for termination and that termination was in the children’s best interests) in her brief and she did
not assign the error that she argued in her brief (regarding reasonable efforts). Thus, the State
contends that Jennifer has not given this court any error to consider.
Even if we could consider Jennifer’s argument that the State had failed to make reasonable
efforts to reunify the family, it has no application to the court’s termination order here. The court
terminated Jennifer’s parental rights pursuant to § 43-292(2) and (4). Reasonable efforts to reunify
a family are not required unless termination of parental rights is sought under § 43-292(6). See In
re Interest of Hope L. et al., 278 Neb. 869, 775 N.W.2d 384 (2009). Thus, reasonable efforts to
reunify were not required in this case.
Although Jennifer did not argue her actual assignment of error--that the State failed to
establish a statutory basis to terminate under § 43-292 and failed to establish that termination of
her parental rights was in the best interests of her minor children--based upon our plain error review
of the record, we conclude that the statutory requirements for termination of Jennifer’s parental
rights pursuant to § 43-292(2) were met and that the court correctly held it was in the children’s
best interests that Jennifer’s parental rights be terminated. See In re Interest of Justine J. & Sylissa
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J., supra (holding that appellate court may review for plain error when appellant’s brief fails to
comply with court rules).
We first analyze whether the State satisfied its burden to establish that a statutory basis
existed to terminate Jennifer’s parental rights under § 43-292. The court found that the conditions
set forth in § 43-292(2) and (4) were met. Because the State must only establish one such statutory
basis, we first examine the evidence submitted in connection with § 43-292(2). See In re Interest
of Leyton C. & Landyn C., 307 Neb. 529, 949 N.W.2d 773 (2020) (any one of bases for termination
of parental rights codified by § 43-292 can serve as basis for termination of parental rights when
coupled with evidence that termination is in best interests of child). Section 43-292(2) provides:
The court may terminate all parental rights between the parents or the mother of a
juvenile born out of wedlock and such juvenile when the court finds such action to be in
the best interests of the juvenile and it appears by the evidence that one or more of the
following conditions exist:
....
(2) The parents have substantially and continuously or repeatedly neglected and
refused to give the juvenile or a sibling of the juvenile necessary parental care and
protection[.]
The evidence adduced at the termination hearing established that the minor children had
been in out-of-home placement since June 3, 2020, for a total of approximately 4 months. At the
time the children were removed, DHHS established that the children were living with a family
member who could not care for them, the family did not know where Jennifer was, and the children
lacked stable housing and were not attending school on a consistent basis. There were also
concerns regarding the children’s physical health because the children had lice “a couple” of times
and Colten had a severely broken tooth. The children were placed with their aunt, Autumn P. At
the time of the termination hearing, DHHS proffered evidence which demonstrated Jennifer’s
inconsistency regarding services and visitation, lack of progress with her interactions with her
children, lack of housing, and lack of employment.
Prior to the time the children were removed by DHHS, McKenzie and Emily were being
cared for by their paternal grandmother and Colten was being cared for by an aunt. All three
children had previously been cared for by their maternal grandmother. The State was unable to
immediately locate Jennifer who had been out of contact with family for 9 days. Jennifer claimed
that she left her children with family members because she was in hiding from a drug cartel.
The children had previously been wards of DHHS for 1½ years--from June 2018 to
November 2019. During that time period, Jennifer tested positive for methamphetamine and
amphetamines twice in June and July 2018; was caught removing drug testing patches which
impeded further drug testing; declined to attend individual counseling; and was kicked out of a
women’s trauma group for, among other things, poor attendance. Jennifer was inconsistent in
utilizing out-of-home family support during the 2018-2019 case and did not ask for help or
additional services.
During the time period encompassed by the present case, June to October 2020, Jennifer
had four different residences and spent considerable time without any home while failing to utilize
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out-of-home family support services. While Jennifer struggled with the format of virtual visitations
which took place in June 2020 due to the COVID-19 pandemic, she only attended 10 visits with
her children once in-person visitation resumed in July 2020, which represents less than 50 percent
of the visitations scheduled by DHHS. Some visits were ended early at either Jennifer’s or the
family support worker’s request because, despite attempts at de-escalating or redirecting the
children’s behaviors, the behaviors were too much for Jennifer to handle. Further, shortly before
the termination hearing, both McKenzie and Colten were refusing to attend visits with Jennifer.
The children did not ask to see Jennifer outside of visits. The current caseworker in this case
testified that in her opinion, the COVID-19 pandemic did not have an impact on the services in
this case. Similarly, Autumn testified that in her opinion, the COVID-19 pandemic did not have
any impact on Jennifer’s ability to complete visits successfully.
Jennifer admitted during her testimony that she had been drinking heavily for 4 years, that
she needed help for alcohol and substance abuse, and admitted to suffering from anxiety,
depression, and post-traumatic stress disorder. Notwithstanding her need for professional
assistance, Jennifer missed the evaluation to determine her community support needs and did not
reschedule the appointment. DHHS has not performed any drug tests on Jennifer since June 2020.
The record clearly and convincingly reveals that Jennifer has failed to provide her minor
children with a stable home and she admitted to addiction to alcohol and substances and mental
health issues. During the pendency of the case, Jennifer attended less than 50 percent of visitations
with her children. The aforementioned evidence establishes that Jennifer has substantially and
continuously or repeatedly neglected and refused to give the minor children necessary parental
care and protection.
We also find no plain error in the county court’s finding that the evidence established that
Jennifer was unfit and that the termination of Jennifer’s parental rights was in the minor children’s
best interests. 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. In re Interest of Ryder
J., 283 Neb. 318, 809 N.W.2d 255 (2012). A child’s best interests are presumed to be served by
having a relationship with his or her parent. In re Interest of Isabel P. et al., 293 Neb. 62, 875
N.W.2d 848 (2016). This presumption is overcome only when the State has proved that the parent
is unfit. Id. In the context of the constitutionally protected relationship between a parent and a
child, parental unfitness means a personal deficiency or incapacity which has prevented, or will
probably prevent, performance of a reasonable parental obligation in child rearing and which has
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
inquiries, each examines essentially the same underlying facts as the other. Id.Autumn testified that she has been involved in the minor children’s lives since they were
born and that Jennifer’s parenting and care of the children was very inconsistent, Jennifer had
failed to consistently maintain employment and stable housing, and the children’s school
attendance was inconsistent.
The children have been in Autumn’s care since June 3, 2020. According to Autumn, when
the children were placed into her care, they acted like they were hungry and Colten hoarded food.
The children had few clothes that fit and those clothes that did fit were dirty. The children’s
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personal hygiene was a concern because the children had head lice which was treated immediately.
Autumn described the children’s demeanors as quiet and reserved and she noticed that both Emily
and Colten struggled with reading. She further testified that prior to being in her care, the children
lacked stability in their lives. In Autumn’s care, the children have rules, structure, and they have a
day-to-day routine. Autumn also testified that the children “know where to look for help if they
need it” and they have responded to the structure in her home “very well” as evidenced by the
children being more outgoing, willing to try new things, and willing to accept new people into
their lives.
As time has progressed while the children have been out of Jennifer’s care, McKenzie
“smiles and she laughs, and she’s very involved at school.” Autumn described that Emily “is the
same. She’s made so many new friends, and she is very involved in activities as well.” Autumn
described Colten as “all boy now. He’s busy. He plays. And he’s involved in Cub Scouts now as
well.”
Further, Jennifer has not maintained a stable home or employment. During the pendency
of this case, Jennifer had 4 different residences and a period of time when she was homeless. In
the week or weeks prior to trial, Jennifer moved into a home but a home study or visitation had
not yet occurred at this new location. Jennifer has only had one job at a fast-food restaurant during
the pendency of this case which she obtained about 3 weeks prior to trial but Jennifer was no longer
employed at the time of trial and had not obtained another job. Jennifer testified that she worked
other odd jobs but acknowledged these were not stable employment. Further, Jennifer’s attendance
at visitation with her children was inconsistent and she has failed to request help or additional
services in order to deal with her substance abuse and mental health issues.
Although we have no doubt that Jennifer loves her children, the evidence adduced
establishes that Jennifer is unfit to care for them and will be unable to do so for the foreseeable
future and that this failure is detrimental to the children’s well-being. The evidence further
establishes that the children have been thriving in the stable environment with Autumn and have
been making strides in all areas of their lives. Children cannot, and should not, be suspended in
foster care or be made to await uncertain parental maturity. In re Interest of Walter W., 274 Neb.
859, 744 N.W.2d 55 (2008). Based upon our plain error review, we hold that the court did not err
in finding that termination of Jennifer’s parental rights was supported by sufficient statutory
grounds and was in the minor children’s best interests.
CONCLUSION
Having conducted a plain error review of the record, we affirm the court’s termination of
Jennifer’s parental rights.
AFFIRMED.
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