In re Interest of Austin B.

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
IN RE INTEREST OF AUSTIN B. 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 AUSTIN B. ET AL., CHILDREN UNDER 18 YEARS OF AGE.
STATE OF NEBRASKA, APPELLEE,
V.
MICHELLE B., APPELLANT.
Filed January 31, 2023. No. A-22-463.
Appeal from the Separate Juvenile Court of Douglas County: AMY N. SCHUCHMAN, Judge.
Affirmed.
Kendall Krajicek, of Law Office of Kendall K. Krajicek, for appellant.
Daniel Gubler, Deputy Douglas County Attorney, and Nikolaos Piperis, Senior Certified
Law Student, for appellee.
MOORE, BISHOP, and WELCH, Judges.
BISHOP, Judge.
INTRODUCTION
Michelle B. appeals from the decision of the separate juvenile court of Douglas County
terminating her parental rights to her children, Austin B., Shelby B., and Ashley B. We affirm.
BACKGROUND
PROCEDURAL BACKGROUND
Michelle is the biological mother of Austin, Shelby, and Ashley. At the time of the
termination hearing in April 2022, Austin was 9 years old, Shelby was 7 years old, and Ashley
was 5 years old. Roger F. is the children’s biological father. The State sought to terminate Roger’s
parental rights to the children in these same juvenile proceedings below. He pled “no contest” to
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the allegations against him in the motion to terminate his parental rights and he indicated a
willingness to relinquish his parental rights; however, whether he ultimately relinquished or
otherwise had his parental rights terminated is not apparent from our record. Because Roger is not
part of this appeal, he will not be discussed further.
Austin, Shelby, and Ashley were removed from Michelle’s care in February 2018 because
of concerns that she neglected their physical needs and that she neglected to seek medical care
despite the children having a number of injuries.
On February 23, 2018, the State filed a petition in the juvenile court alleging that Austin,
Shelby, and Ashley were children within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue
2016) because they lacked proper parental care by reason of the fault or habits of Michelle. The
State specifically alleged:
A. Michelle . . . subjected said juveniles to inappropriate physical contact by Austin
....
B. Ashley . . . and Shelby . . . have been seen with bite marks, bruises and bumps
on their heads and body [sic].
C. Michelle . . . failed to provide proper parental care, support and/or supervision
for said juveniles.
D. Michelle . . . failed to provide safe, stable and/or appropriate housing for said
juveniles.
E. For the above reasons said juveniles are at risk for harm.
The State also filed a motion for the immediate temporary custody of the children to be placed
with the Nebraska Department of Health and Human Services (DHHS), and the juvenile court
entered an ex parte custody order that same day. The children have since remained in the custody
of DHHS and in foster care.
On April 4, 2018, the children were adjudicated pursuant to § 43-247(3)(a) based on
Michelle’s plea admissions to the allegations found in sections C and E of the petition. The
allegations in sections A, B, and D of the petition were dismissed on the State’s oral motion. The
matter proceeded to immediate disposition. The juvenile court ordered the parties to contact
“Impact from Infancy” regarding child-parent psychotherapy or parent-child interactive therapy,
as deemed appropriate, or any other appropriate parenting assessment. The court also ordered
Michelle to: participate in fully supervised family time; undergo a parenting assessment and
psychological evaluation with IQ testing; obtain and maintain safe and adequate housing to provide
for herself and her children; obtain and maintain a legal source of income to provide for herself
and her children; participate fully in family support services; and participate fully in hands on
parenting training and work with a parenting coach to learn appropriate parental responses to the
ages and stages of development. Following a continued disposition hearing on July 17, the court
also ordered Michelle to participate fully in and successfully complete an accredited domestic
violence program that included foundational classes and empowerment counseling.
Numerous “Impact from Infancy Snapshot” hearings and review and permanency hearings
were held between September 2018 and November 2021. Following those various hearings, the
juvenile court additionally ordered Michelle to undergo psychiatric, psychological, and substance
abuse evaluations; participate in individual and family therapy as recommended and demonstrate
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the ability to adequately parent her children; undergo a competency evaluation; learn appropriate
structure, consistency, rewards, and consequences consistent with the developmental needs of her
children; and participate fully in peer-to-peer mentoring services so that she could demonstrate the
ability to be self-sufficient by meeting the basic needs of all family members.
We note that on June 23, 2020, the juvenile court ordered that Michelle was to have
unsupervised parenting time with her children with agency, guardian ad litem, or “CASA” drop-ins
during that unsupervised parenting time. However, supervised parenting time was reinstated on
April 7, 2021, and it remained supervised at the time of the termination hearing.
On December 6, 2021, the State filed a motion to terminate Michelle’s parental rights to
Austin, Shelby, and Ashley pursuant to Neb. Rev. Stat. § 43-292(2), (6), and (7) (Reissue 2016).
The motion alleged that: Michelle substantially and continuously or repeatedly neglected and
refused to give the children or a sibling necessary parental care and protection; reasonable efforts
to preserve and reunify the family failed to correct the conditions leading to the adjudication of the
children under § 43-247(3)(a); the children had been in an out-of-home placement for 15 or more
months of the most recent 22 months; and termination of Michelle’s parental rights was in the best
interests of the children.
TERMINATION HEARING
A hearing on the motion to terminate Michelle’s parental rights was held over the course
of 4 days in April 2022. The State called six witnesses to testify, and three exhibits were received
into evidence. Michelle did not testify. A summary of the relevant evidence follows.
Shekita Lewis was the caseworker assigned to this family in February 2021, and she
remained the caseworker at the time of the termination hearing. Lewis testified that when she took
over the case, she familiarized herself with the case by reading the case files and discussing the
case with her supervisor and the previous caseworker and that worker’s supervisor. The children
were removed from Michelle in February 2018 and remained in out-of-home care at the time of
the termination hearing 50 months later.
Lewis testified that it was her understanding that when the children were removed, they
were living with Michelle in a homeless shelter. The children fell and hit their heads numerous
times and Austin had also pushed the children out of chairs. The shelter suggested that Michelle
take the children to the emergency room to have them examined because they continually hit their
heads, but Michelle did not take them for another 8 days. There were also concerns that Michelle
did not redirect the children and did not give consequences for Austin’s behaviors.
Lewis stated that after removal, Michelle had supervised parenting time with the children.
She progressed to unsupervised parenting time in her home in June 2020, but she went back to
supervised parenting time in April 2021. When Lewis was assigned to the case in February 2021,
she became concerned about the children’s safety during their time with Michelle. Lewis received
provider reports from the agency that was providing Michelle’s family support and doing the
drop-ins during her unsupervised parenting time. The reports Lewis received stated that Michelle
held Shelby’s arms aggressively but released Shelby when asked. However, when Shelby
continued “crying and screaming and flaring [sic] her arms,” Michelle restrained her aggressively
and again had to be asked to release her hold on Shelby. There were also reports that Michelle took
the children to her mother’s house on Easter and that her mother spanked Shelby; when asked,
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Michelle said that it was just a tap. There were also reports from Austin that Michelle pulled his
hair during a visit. Based on her concerns, Lewis spoke with her supervisor, and they agreed they
needed to file a motion requesting supervised visits. Michelle went back to supervised parenting
time in April 2021, and her parenting time remained supervised at the time of the termination
hearing in April 2022.
Lewis stated that during her time on the case she attempted to contact Michelle “at least
monthly,” and “more than that if there’s [sic] issues going on with visits.” However, there were
times when Michelle would not return Lewis’ calls or texts or when Michelle would not see Lewis;
Lewis stated that Michelle responded to approximately 75 percent of the phone calls and text
messages. In April 2021, Michelle was angry that she had to go back to supervised visits and would
not respond to Lewis’ calls or text messages. In June, Lewis could not contact Michelle for a
couple of weeks and thus was not able to meet with her. There were also three different occasions
(dates not specified) when Lewis went to Michelle’s home “for a pop-up,” but Michelle would not
answer the door.
Lewis testified that Michelle had been court ordered to complete psychological and
psychiatric evaluations, participate in individual and family therapy, participate in family support
and peer-to-peer mentoring, maintain safe and stable housing, maintain employment, and
participate in her supervised parenting time. She was also ordered to attend parenting classes and
learn parenting skills and techniques to help her with the children’s behaviors.
Lewis stated that Michelle had completed two psychological evaluations. Michelle also
worked with one therapist for individual therapy prior to Lewis’ time on the case. Lewis stated
that the provider’s report noted a successful discharge for therapy. However, according to Lewis,
there was a court order in place for Michelle to continue to engage in individual therapy because
she had not addressed her past trauma. Michelle did not want to participate in additional individual
therapy because she had “already done it” and “there was nothing wrong with her so she [did not]
need therapy.” She eventually filled out paperwork and got on the waitlist for a specific provider
in May 2021 (the same provider she did therapy with the first time). Despite Lewis suggesting
several other providers, Michelle refused to work with any provider other than the one that had her
on a waitlist. Michelle finally started seeing a different individual therapist in January 2022.
Lewis stated that Michelle participated in family therapy, but according to the reports
Lewis received from the provider, Michelle told the therapist everything was going well at visits,
which was not consistent with reports Lewis received from the visitation provider. Additionally,
when the family therapist left the providing agency in August 2021, Lewis tried to find another
provider that had the necessary availability. When Lewis found a provider in October, Michelle
refused because the therapist was a male. Lewis spoke to Michelle about engaging in family
therapy, and Michelle “says she’s willing to do it,” “[s]he just doesn’t think that she needs the
help” and that it is her children that need therapy. Lewis testified that “Michelle continually states
that it’s the kids’ fault that they’re in care.” Lewis had not received any report stating that Michelle
successfully completed family therapy.
Lewis testified that Michelle had not successfully completed family support, which is used
to help families complete court-ordered services. She was unsuccessfully discharged from four
family support agencies because she did not want to work with services (other than to get help
accessing pantries), would not take direction from the workers, and would not redirect her children
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as needed during visits. She started working with a fifth family support agency just over 1 month
prior to the termination hearing. Michelle did not successfully complete peer-to-peer mentoring.
Lewis testified that Michelle was employed, had safe and stable housing, and had been
“maintaining her bills and her rent and doing great with that.” However, there were “quite a few
times” when Michelle’s house was “extremely messy” and there were times when Michelle’s
house smelled “really bad.”
According to Lewis, Michelle was consistent in visiting her children, other than when there
were health issues or when there was an infestation of maggots in her home. However, Michelle
had gone through four different visitation agencies. Michelle was unsuccessfully discharged from
three of those agencies during Lewis’ time on the case because Michelle was difficult to work
with, was not easily redirected, was not addressing the children’s negative behaviors during visits,
and would not take the visitation workers’ suggestions. Lewis stated that according to the visitation
reports she received, Michelle’s visits were “chaotic because the kids are doing whatever they
want and Michelle is just sitting on the couch,” “she ignores the behaviors and continues to do
what she is currently doing at the time.” Lewis was concerned about the children’s safety because
Michelle was not addressing the children’s behaviors and was letting them hit each other. When
Lewis spoke to Michelle about the visitation issues, Michelle told her the visitation workers were
lying. Additionally, Michelle consistently blamed the children and stated that it was Austin’s fault
that the children were out of home, and she told the children that their behaviors were the reason
that they still had not been able to come home. When Lewis spoke to Michelle about learning
additional parenting skills and techniques, Michelle would say that she had already done parenting
classes and knew what she was doing. However, Lewis had not seen any improvement in
Michelle’s interactions with the children and stated that Michelle was not able to effectively parent
her children.
Lewis testified that the children “have severe behaviors.” She said Austin’s behaviors
“consist of him hitting his siblings and also playing with his own feces and smearing it on walls
and floors.” Austin hitting his siblings was consistent since Lewis was assigned to the case, but
“the feces and smearing it just recently started happening maybe about five months ago.” Austin’s
behaviors escalated and he was now “also hitting smaller kids at day care, which is leading to him
being suspended from day care for days at a time.” Lewis stated that Shelby “also has behaviors
of hitting her siblings . . . when she gets angry, she will hit them until she feels like stopping,” and
“when told no, she throws stuff and tears up rooms” and has done that at school and at tutoring.
Shelby’s behaviors have changed “for the worse.” Lewis stated that Ashley “does not hit her
siblings often,” but she “does hit them back when they hit her.” Ashley’s “worst behavior is her
pottying on herself.” Lewis testified that the children have “extensive needs.” They need love and
stability, a higher level of care, positive discipline, and “[m]ostly just structure.” According to
Lewis, the children “need a parent who will love and take care of them, and a parent who will
show them right from wrong, teach them and help them when they are having difficulties.”
Lewis stated that it had been more than 4 years since the children were removed from
Michelle, but the issues were still the same and Michelle had not made progress. Accordingly,
Lewis opined that it would be in the children’s best interests to terminate Michelle’s parental rights.
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On cross-examination, Lewis acknowledged that the main purpose of foster care was to
provide the children with a safe and stable place to live while their parent worked toward
reunification, and that an unstable, neglectful, or abusive foster placement can detrimentally affect
a child’s mental and behavioral health, as well as impact the speed and likelihood of a family’s
reunification. Lewis also acknowledged that the children had been in more than five different foster
or respite placements since being removed from Michelle in 2018. Additionally, the children
experienced educational neglect while in the custody of DHHS and placed in foster care, and the
children also reported physical neglect and/or abuse in at least one foster placement.
Megan Heinke testified that she provided family support to Michelle in May and June 2021.
Heinke tried to help Michelle with her children’s behaviors by providing redirection when needed;
“[t]here were times” that Michelle was receptive to redirection, but not always. Heinke stated that
there “were a lot of times” when Michelle would not acknowledge a child who was speaking to
her. Michelle was resistant to completing a budget, telling Heinke that her income varied and “she
didn’t feel the need to complete a budget because the case manager already had that information.”
Heinke explained to Michelle that she needed to complete specified goals to reunify with her
children, but that did not change Michelle’s willingness to engage with Heinke. Michelle was
unsuccessfully discharged from family support with Heinke’s agency in June 2021 for a lack of
engagement.
Jessica Rowe testified that she was assigned as Michelle’s family support worker in July
or August of 2021. Rowe called and texted Michelle to introduce herself and to ask when they
could meet. Michelle’s responses were “excessive in length, and it was a significant amount of
rambling that informed [Rowe] that she did not need family support services,” and “what she did
need was food stamp vouchers and bus passes,” “and a successful discharge from the court.”
Because Michelle refused to meet, Rowe informed her supervisor that there was a refusal of
services.
Reagan McKenna testified that she supervised Michelle’s parenting time from May to
August or September 2021, during which Michelle had parenting time 4 days per week. McKenna
also provided family support to Michelle starting in July or August 2021. When McKenna called
Michelle and told her that she would be taking over family support, “Michelle basically stated . . .
that she just needs a successful discharge,” “[t]hat she has been through family support already.”
McKenna provided family support with Michelle alone and when the children were
present, but mostly when the children were present because they were working on Michelle’s
parenting skills. For example, McKenna tried to assist Michelle in potty training the youngest
child, but Michelle did nothing to help and did not incorporate any of McKenna’s suggestions.
McKenna also tried to set up parenting classes, but Michelle was unwilling to do them, saying she
had already done them. McKenna did not see Michelle incorporate any of the skills she was trying
to teach her.
During Mckenna’s time on the case, the children’s behaviors included “[l]ots of yelling,
throwing things,” crying, the girls soiling themselves, and “there was just chaos”; the visits were
like that a “majority of the time.” When asked to describe Michelle’s interactions with the children,
McKenna responded, “Minimal.” McKenna stated “[Michelle] wanted to do what I believe their
therapist at the time told her, which was . . . ignore the behavior,” “[b]ut it just seemed like it was
taken to an extreme.” McKenna had to personally intervene “every time” the children acted out.
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In addition to ignoring bad behaviors, Michelle also ignored the children. For example, she would
not reply to the children when they were talking to her, or they would try to get her attention and
“she just wouldn’t give it to them.” Michelle also needed to be redirected “[e]very visit on
something,” but when McKenna tried to redirect her, Michelle would not try McKenna’s
suggestions and said that she had already tried them.
McKenna felt like she “was abusing the kids by taking them on the visit” because changes
were not happening and the children’s behaviors started to increase; “it just seemed to be hurting
them more,” “like they just wanted to so badly be loved,” but McKenna did not see Michelle
showing the children love. McKenna’s agency discharged Michelle from visitation and family
support in August or September 2021 for failure to comply.
Ashley Nee testified that she supervised some of Michelle’s parenting time from
September 2021 to March 2022, when Michelle had parenting time 1 day per week. Nee testified
that during visits, Michelle cooked for the children and interacted with them by playing games or
Legos with Austin and playing dolls or painting nails with the girls. When Nee redirected Michelle,
Michelle “was fine with it” and took the advice given to her. During Nee’s involvement with the
family, Ashley’s potty training progressed, but Austin started soiling himself. When asked if she
observed the family “talking, laughing, and cuddles [sic],” Nee said, “Yes.” She also observed
Michelle showing the children affection. Nee did not know why her agency discharged Michelle
from parenting time services.
Rowe—with whom Michelle previously refused to engage in family support services in
July or August 2021—subsequently began employment with a different agency and was again
assigned to provide family support to Michelle at the end of October 2021. Additionally, Rowe
supervised Nee, who was providing visitation services to Michelle.
While doing a visitation drop-in in her supervisory capacity in October 2021, Rowe
introduced herself to Michelle as the family support worker. Michelle brought up that she needed
a successful discharge from the juvenile court, but she was receptive to Rowe. Rowe and Michelle
set up a meeting for the next week to go over different needs and services for family support. At
that meeting, Michelle requested food pantry vouchers and bus passes, and Rowe referred her to a
program to obtain toys for the upcoming holiday. Rowe’s biggest goal was to assist Michelle in
learning to redirect the children and help her with parenting skills. At the time, Michelle was “very
receptive.”
Rowe next met with Michelle in mid-November 2021 during her parenting time with the
children; Nee was the visitation worker. When the children arrived, they “immediately went to
the bedroom . . . and pulled out all their toys and just trashed the living room”; “[t]hey had toys to
the point that you were literally stepping up over — almost on your tiptoes to get over the toys to
get to the kitchen.” The children refused to listen when Michelle tried to get them to sit down and
eat dinner. Rowe stated, “Michelle just quietly would sit back and observe, not intervene.” When
Rowe suggested they create a schedule so that every time the children came to Michelle’s house
they could see the schedule on the wall to know what was going to happen when, “Michelle
refused.” Rowe said, Michelle “informed me that it would not work because [the children] do not
come to her house enough to learn a consistent routine and, therefore, she would not be
implementing something like that until they were home.”
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Rowe stated that when the children would ask Michelle for help with homework, Michelle
would say she could not help. Rowe talked to Michelle and tried to redirect her, but “she would
get very frustrated, and she proceeded to tell me that . . . she is developmentally delayed. . . . [a]nd
her children are developmentally delayed.” When Rowe asked Michelle to not say things like that
in front of the children, Michelle’s response was “‘[W]hat? It’s not like I’m calling them
retarded.’” Michelle got upset and asked Rowe to leave, stating that “this was not a good idea and
we will no longer be doing these on her visit.”
Rowe’s concern was that Michelle was “continually pushing these developmental delays
that she always says she has on to her own children”; “[s]he is mentally abusing these children,
and she is not providing them the care and the comfort”; “[t]hese children are screaming for help,
and Michelle never addresses those needs.” Based on Michelle’s responses to Rowe and her
interactions with the children, Rowe did not believe that Michelle was willing to continue working
with family support. Rowe stated that Michelle utilized family support to obtain free resources but
was not looking for family support to help her build up her parenting skills. Rowe’s agency
discharged Michelle from family support at the end of November or the beginning of December
2021 for a lack of engagement.
Rowe supervised visitation worker Nee from the end of October 2021 until the agency
discharged Michelle from visitation services in February or March 2022. Rowe reviewed Nee’s
case notes and met with her weekly or biweekly, and then Rowe would prepare a monthly summary
report. According to Rowe, “Visitation was going poorly because the children were showing signs
of decline and Michelle was putting in less of an effort when preparing her home and preparing
for the time for the children to be there.” Initially, the children were showing some behaviors on
the car ride over to the visit. Then Nee “had them on a really good path, to the point they used to
require that the children have two workers for transport and [Nee] was able to get them down to
one.” Then, “all of a sudden the children started to have these behaviors of fighting in the car,
screaming at the top of their lungs,” and crying; “[w]e took a step backwards.”
Rowe was also getting reports of concerning behaviors during visits. For example, “Austin
has now started pooping himself on a regular basis” and Michelle was not engaging with him and
asking him why it was happening; she simply told him to go clean himself up. On one visit, feces
were observed on the bedding and Michelle “immediately started accusing the children” even
though the children had not been out of the visitation worker’s sight. Michelle also showed the
children a video of her dancing on a pole that was installed in her bedroom; after “a little bit of
resistance,” the worker was able to redirect Michelle and get her to stop the video. On
cross-examination, Rowe confirmed that Michelle was clothed in the video.
Rowe was concerned about continuing to provide Michelle with supervised visitation
because “the case had stalled,” “and the children were showing signs that they have gone
backwards.” Rowe believed that “Michelle is a barrier” because she “is incapable of providing for
those children” to “meet their extensive, extensive needs.” Rowe stated, “it felt like we were
hurting the children,” and “[w]e are not in the business of carrying on visitations that aren’t moving
forward, that are actually becoming detrimental.” Rowe “chose to discharge the case based on the
fact that it appeared like we were enabling . . . the continued mental abuse of these children.”
Rowe’s agency discharged Michelle from visitation services in February or March 2022.
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Felicia C. testified that she had been the children’s foster mother since August 2021. When
the children first came to live with her, all three had “a lot of issues.” Felicia stated that Shelby
“would bump her head a lot on the floor,” “[t]here was a lot of teasing between the three” children,
“Austin picked on the girls a lot,” and Ashley was not potty trained. Additionally, “[t]here were
issues at day care with all three,” and “[t]hey were actually kicked out of one day care.” When
asked what kind of issues the children were having at daycare, Felicia stated that “it’s more of
authority” and the children had issues with people telling them what to do. She stated,
If they didn’t want to do what they were told, then they would hit the teacher. They would
hit other kids, spit on kids, destroy the day care by tearing things up, walls. And when they
were being transported, they were kicking the back of the seat where the driver was, where
they would have to pull over multiple times. And then there were times they wouldn’t come
out of school. The day care provider would have to go in and get them. So there was a lot
of issues where they just — they couldn’t do it any longer and had to revoke them.
Felicia used to get calls almost every day from the school or daycare but had only gotten one call
in the last month.
Felicia also experienced issues with the children not listening and doing what they were
told to do, but it had gotten “[a] lot better” and there were now only minor issues. When asked
what she believed led to the change in the children’s behavior over the past few months, Felicia
responded, “It’s a lot of structure, consistency, rewarding them . . . when they are making
progress[,] . . . but mostly . . . it’s just a consistency with them.” Following visits with Michelle,
the children “have issues maybe on the way from [Michelle’s] house to my house in the car,”
“[b]ut once they are back home they are fine.”
JUVENILE COURT’S DECISION
In an order entered on May 24, 2022, the juvenile court found by clear and convincing
evidence that statutory grounds for termination of Michelle’s parental rights existed pursuant to
§ 43-292(2), (6), and (7). The court also found that the State met its burden of rebutting the
presumption that Michelle was a fit parent, and that termination of Michelle’s parental rights was
in the children’s best interests. Accordingly, the court terminated Michelle’s parental rights to
Austin, Shelby, and Ashley.
Michelle appeals.
ASSIGNMENTS OF ERROR
Michelle assigns that the juvenile court erred in finding that (1) she was an unfit parent,
and (2) termination of her parental rights was in the children’s best interests.
STANDARD OF REVIEW
An appellate court reviews juvenile cases de novo on the record and reaches its conclusions
independently of the findings made by the juvenile court below. In re Interest of Mateo L. et al.,
309 Neb. 565, 961 N.W.2d 516 (2021). However, when the evidence is in conflict, an appellate
court may consider and give weight to the fact that the juvenile court observed the witnesses and
accepted one version of the facts over another. Id.-9-
ANALYSIS
STATUTORY GROUNDS FOR TERMINATION
The State sought to terminate Michelle’s parental rights under § 43-292(2), (6) and (7).
The juvenile court found that all three grounds existed by clear and convincing evidence. Michelle
does not challenge the court’s finding of a statutory ground for termination, however, for the sake
of completeness, we briefly review the court’s finding.
Section 43-292(7) allows for termination when “[t]he juvenile has been in an out-of-home
placement for fifteen or more months of the most recent twenty-two months.” By the plain and
ordinary meaning of the language in § 43-292(7), there are no exceptions to the condition of 15
out of 22 months’ out-of-home placement. In re Interest of Mateo L. et al., supra. Section
43-292(7) operates mechanically and, unlike the other subsections of the statute, does not require
the State to adduce evidence of any specific fault on the part of a parent. In re Interest of Mateo L.
et al., supra. In other words, if the 15-out-of-22 months period is met, § 43-292(7) is met. See In
re Interest of Mateo L. et al., supra. In this case, the children were removed from Michelle’s care
in February 2018. They remained out of home through at least April 2022, when the termination
hearing was held; this satisfies the 15-out-of-22 months period.
The State has shown clearly and convincingly that § 43-292(7) exists as a statutory basis
for terminating the parental rights of Michelle. And since any one of the bases for termination
codified in § 43-292 can serve as the basis for termination, we need not consider the sufficiency
of the evidence concerning any other statutory basis for termination. In re Interest of Mateo L. et
al., supra. We next consider whether termination is in the children’s best interests.
BEST INTERESTS AND UNFITNESS
Under § 43-292, 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 Leyton C. & Landyn
C., 307 Neb. 529, 949 N.W.2d 773 (2020). This presumption is overcome only when the State has
proved that the parent is unfit. Id. Although the term “unfitness” is not expressly stated in § 43-292,
the Nebraska Supreme Court has said that it derives from the fault and neglect subsections of that
statute and from an assessment of the child’s best interests. In re Interest of Mateo L. et al., supra.
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. In re Interest of Leyton C. & Landyn C., supra.The best interests analysis and the parental fitness analysis are separate inquiries, but each
examines essentially the same underlying facts as the other. Id. We have previously set forth the
evidence presented at the termination hearing, and we will not recount it again here.
Notably, Michelle did not successfully comply with the various court-ordered services.
Although she reluctantly participated in some individual and family therapy, she did not feel that
it was necessary even though there were still issues to be addressed. She was unsuccessfully
discharged from four family support agencies because she did not want to work with services,
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would not take direction from the workers, and would not redirect her children as needed during
visits. Michelle was consistent in visiting her children; however, the visits were described as
chaotic and Michelle would not address the children’s behaviors during visits, did little to
intervene, and would otherwise generally ignore the children. She went through four different
visitation agencies and was unsuccessfully discharged from three of those agencies.
Additionally, Michelle blamed the children and their behaviors as the reason why they had
not been able to come home. When workers spoke to her about learning additional parenting skills
and techniques or parenting classes, Michelle would say that she already knew what she was doing.
Nee was the only worker to testify that Michelle positively engaged with the children and accepted
redirection. However, Lewis had not seen any improvement in Michelle’s interactions with the
children and stated that Michelle was not able to effectively parent her children. Additionally,
Nee’s supervisor (Rowe) and the previous visitation worker (McKenna) testified that they felt like
continued visitation with Michelle was itself subjecting the children to a form of abuse.
In her brief, Michelle notes that some of the children’s behaviors coincided with factors
outside of her control, e.g., educational neglect while the children were in the custody of DHHS
and placed in foster care. Those outside factors are certainly concerning but they do not explain or
justify Michelle’s own shortcomings noted above.
The children had been out of Michelle’s care for more than 4 years at the time the
termination hearing concluded but, according to Lewis, the issues were still the same and Michelle
had not made progress. Lewis opined that it would be in the children’s best interests to terminate
Michelle’s parental rights. Lewis testified that the children need love and stability, a higher level
of care, positive discipline, and “[m]ostly just structure.” They “need a parent who will love and
take care of them, and a parent who will show them right from wrong, teach them and help them
when they are having difficulties.” We agree that the children have all of those needs and that
Michelle has been unable or unwilling to provide for those needs. “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, 872, 744 N.W.2d 55, 65 (2008). And where a parent is unable or
unwilling to rehabilitate himself or herself within a reasonable time, the best interests of the child
require termination of the parental rights. In re Interest of Ryder J., supra. The State proved that
Michelle was unfit, meaning that she has a personal deficiency or incapacity which has prevented,
or will prevent, performance of a reasonable parental obligation in child rearing and which has
caused, or probably will result in, detriment to the children’s well-being. See In re Interest of
Leyton C. & Landyn C., supra. We further find that there is clear and convincing evidence that it
is in the children’s best interests to terminate Michelle’s parental rights.
CONCLUSION
For the reasons stated above, we affirm the order of the juvenile court terminating
Michelle’s parental rights to Austin, Shelby, and Ashley.
AFFIRMED.
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