State v. Tiffany S. (In Re Interest of Aly T.)

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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26 Nebraska A ppellate R eports
IN RE INTEREST OF ALY T. & KAZLYNN T.
Cite as 26 Neb. Ct. App. 612
In re I nterest of
A ly T. and K azlynn T.,
children under 18 years of age.
State of Nebraska, appellee,
v. Tiffany S., appellant.
___ N.W.2d ___
Filed November 27, 2018. No. A-17-1237.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juve-
nile cases de novo on the record and reaches its conclusions indepen-
dently of the juvenile court’s findings. 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.
2. Parental Rights: Proof. In Nebraska statutes, the bases for termina-
tion of parental rights are codified in Neb. Rev. Stat. § 43-292 (Reissue
2016). Section 43-292 provides 11 separate conditions, any one of which
can serve as the basis for the termination of parental rights when cou-
pled with evidence that termination is in the best interests of the child.
3. ____: ____. The State must prove the facts by clear and convincing evi-
dence when showing a factual basis exists under any of the 11 subsec-
tions of Neb. Rev. Stat. § 43-292 (Reissue 2016).
4. Evidence: Proof: Words and Phrases. Clear and convincing evidence
is the amount of evidence that produces a firm belief or conviction about
the existence of a fact to be proved.
5. Parental Rights: Evidence: Proof. In order to terminate parental rights
under Neb. Rev. Stat. § 43-292(6) (Reissue 2016), the State must prove
by clear and convincing evidence that (1) the parent has failed to com-
ply, in whole or in part, with a reasonable provision material to the reha-
bilitative objective of the plan and (2) in addition to the parent’s non-
compliance with the rehabilitative plan, termination of parental rights is
in the best interests of the child. The State is required to prove that the
parents have been provided with a reasonable opportunity to rehabilitate
themselves according to a court-ordered plan and have failed to do so.
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IN RE INTEREST OF ALY T. & KAZLYNN T.
Cite as 26 Neb. Ct. App. 612
6. Parental Rights: Evidence: Appeal and Error. If an appellate court
determines that a lower court correctly found that termination of paren-
tal rights is appropriate under one of the statutory grounds set forth in
Neb. Rev. Stat. § 43-292 (Reissue 2016), the appellate court need not
further address the sufficiency of the evidence to support termination
under any other statutory ground.
7. Rules of Evidence: Expert Witnesses. An expert’s opinion is ordinarily
admissible under Neb. Rev. Stat. § 27-702 (Reissue 2016) if the witness
(1) qualifies as an expert, (2) has an opinion that will assist the trier of
fact, (3) states his or her opinion, and (4) is prepared to disclose the
basis of that opinion on cross-examination.
8. Parental Rights: Rules of Evidence: Due Process. The Nebraska
Evidence Rules do not apply in cases involving the termination of
parental rights. Instead, due process controls and requires that the State
use fundamentally fair procedures before a court terminates paren-
tal rights.
9. ____: ____: ____. In determining whether admission or exclusion
of particular evidence would violate fundamental due process, the
Nebraska Evidence Rules serve as a guidepost.
10. Parental Rights: Proof. In addition to proving a statutory ground, the
State must show that termination of parental rights is in the best interests
of the child.
11. Constitutional Law: Parental Rights: Proof. A parent’s right to raise
his or her child is constitutionally protected; so before a court may ter-
minate parental rights, the State must also show that the parent is unfit.
12. Parental Rights: Presumptions: Proof. There is a rebuttable presump-
tion that the best interests of a child are served by having a relationship
with his or her parent. Based on the idea that fit parents act in the best
interests of their children, this presumption is overcome only when the
State has proved that the parent is unfit.
13. Parental Rights: 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 child’s
best interests.
14. ____: ____. Parental unfitness means a personal deficiency or incapac-
ity 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.
15. 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.
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IN RE INTEREST OF ALY T. & KAZLYNN T.
Cite as 26 Neb. Ct. App. 612
Appeal from the Separate Juvenile Court of Douglas County:
Christopher E. K elly, Judge. Affirmed.
Charles M. Bressman, Jr., and Megan E. Lutz-Priefert, of
Anderson, Bressman, Hoffman & Jacobs, P.C., L.L.O., for
appellant.
Donald W. Kleine, Douglas County Attorney, Sarah
Schaerrer, and Laura Elise Lemoine, Senior Certified Law
Student, for appellee.
Pirtle, R iedmann, and Welch, Judges.
Pirtle, Judge.
INTRODUCTION
Tiffany S. appeals the order of the separate juvenile court
of Douglas County terminating her parental rights to her two
children Aly T. and Kazlynn T. She contends that she was not
given a sufficient amount of time to rehabilitate herself and
comply with the case plan, the caseworker was not qualified to
give an expert opinion as to the children’s best interests, and
the court erred in finding that terminating her parental rights
was in the children’s best interests. Following our de novo
review of the record, we affirm.
BACKGROUND
Aly, born in January 2010, and Kazlynn, born in June
2008, were initially brought to the attention of the Nebraska
Department of Health and Human Services (Department) in
October 2016 after being involved in a car accident in which
their father was driving while under the influence of alcohol.
As a result of the car accident, Aly suffered a traumatic brain
injury, from which she has significantly recovered but requires
ongoing monitoring. Kazlynn suffered more severe injuries and
remains in a vegetative state at a long-term care facility. Aly
and Kazlynn were in the custody of their father at the time of
the accident. His parental rights have since been terminated.
See In re Interest of Jade H. et al., 25 Neb. Ct. App. 678, 911
N.W.2d 276 (2018).
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IN RE INTEREST OF ALY T. & KAZLYNN T.
Cite as 26 Neb. Ct. App. 612
On October 25, 2016, the State filed a petition alleging
Aly and Kazlynn were 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 Tiffany in that
Tiffany’s whereabouts were unknown; she failed to provide
the juveniles with safe, stable, and/or appropriate housing; she
failed to provide proper parental care, support, supervision and/
or protection for the juveniles; and the juveniles were at risk
for harm.
On November 18, 2016, the State filed a second supplemen-
tal petition alleging Aly and Kazlynn were within the meaning
of § 43-247(3)(a), because they lacked proper parental care by
reason of the fault or habits of Tiffany in that Tiffany’s use
of alcohol and/or controlled substances places the juveniles
at risk for harm; she tested positive for methamphetamine on
November 17; she failed to provide the juveniles with safe,
stable, and/or appropriate housing; she failed to provide the
juveniles with proper parental care, support, and/or supervi-
sion; and the juveniles were at risk for harm.
An adjudication hearing was held on April 19, 2017, and
with the exception of the use of alcohol and/or controlled
substances allegation, the court found the allegations in the
second supplemental petition were true by a preponderance
of the evidence. The court found that Aly and Kazlynn came
within the meaning of § 43-247(3)(a) as far as Tiffany was
concerned.
A disposition hearing was held on June 6, 2017, at which
time the court ordered Tiffany to participate in intensive out-
patient treatment, undergo a psychiatric evaluation, participate
in medication management, submit to frequent and random
drug testing to include testing for alcohol, abstain from the
use of all “mood altering chemicals” and illegal drugs, and
be allowed reasonable rights of supervised visitation with Aly
and Kazlynn.
On August 2, 2017, the State filed a motion to terminate
Tiffany’s parental rights. The State alleged that termination
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IN RE INTEREST OF ALY T. & KAZLYNN T.
Cite as 26 Neb. Ct. App. 612
of her parental rights was warranted pursuant to Neb. Rev.
Stat. § 43-292(2) (Reissue 2016), because she has substan-
tially and continuously or repeatedly neglected and refused to
give her children necessary parental care and protection, and
pursuant to § 43-292(6), because reasonable efforts to pre-
serve and reunify the family failed to correct the conditions
that led to the determination that the children were within the
meaning of § 43-247(3)(a). The motion specifically alleged
that Tiffany had failed to participate in outpatient treatment,
failed to undergo a psychiatric evaluation, failed to submit to
urinalysis (UA) testing as requested, and failed to consistently
or regularly participate in visitation with Aly and Kazlynn. In
addition, the State alleged that termination of Tiffany’s parental
rights was in the best interests of the children.
Trial was held on the motion to terminate on October 31,
2017. Tiffany did not appear for the trial, and her attorney had
no explanation as to why she was not present.
The State’s first witness was Wendy Stevenson, a child and
family permanency specialist with the Department. She had
been Aly and Kazlynn’s case manager since October 2016.
Stevenson testified that she had a bachelor’s degree in edu-
cation, had been a child and family permanency specialist for
7 years, received training on when it is appropriate to recom-
mend termination of parental rights, and received ongoing
training from the Department. Stevenson testified that in deter-
mining whether termination of parental rights is in a child’s
best interests, she considers the following:
[t]he amount of participation a parent is putting forth in
a case, whether they’re trying to meet any of the goals
that are set forth in the case plan, if they’re seeing their
child on a regular basis, the type of interactions they have
with their child, what’s in the best interest of the child,
and how the child is reacting to what is occurring during
visitation . . . .
Stevenson testified about what the court had ordered Tiffany
to do to work toward reuniting with her children and about
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IN RE INTEREST OF ALY T. & KAZLYNN T.
Cite as 26 Neb. Ct. App. 612
Tiffany’s compliance with those orders. She testified that
Tiffany had been ordered to undergo a chemical evaluation and
follow through with the recommendations of that evaluation.
Tiffany underwent a chemical evaluation in February 2017,
but had not followed through with the recommendations which
included a psychiatric evaluation and outpatient treatment. In
June, the court also ordered her to undergo a psychiatric evalu-
ation and to participate in outpatient treatment. In regard to the
psychiatric evaluation, Stevenson stated she set up a “Letter of
Agreement” with a behavioral health services agency, which
agreement was in effect from March to May, but Tiffany did
not contact the agency to set up an appointment. Stevenson
also testified that to her knowledge Tiffany had not attended
any outpatient sessions. She testified that she sent Tiffany text
messages and called her, trying to get her to comply with the
psychiatric evaluation and the outpatient treatment, but she did
not comply.
Stevenson testified that since November 2016, Tiffany has
been ordered to participate in UA testing. Stevenson testified
that the first agency doing the testing discharged Tiffany in
June 2017 because she was not complying. Tiffany did not
complete any UA testing between February 22 and June 6,
resulting in 28 missed tests. An exhibit was entered into evi-
dence showing that a total of 77 tests were requested with the
first agency and 42 of those were unsuccessful.
In June 2017, Stevenson referred Tiffany to another agency
for UA testing. Stevenson testified that the second agency
would go to Tiffany’s house to do the UA testing, but that
Tiffany never would answer her door. On two occasions,
Stevenson had the agency locate Tiffany during her visitation
time with Kazlynn. Tiffany “caused [a] scene” both times and
refused to do the UA testing on both occasions. Tiffany has
indicated to Stevenson that she does not want to do the UA
testing and is not going to do it.
As for Tiffany’s visitation with Aly and Kazlynn, Stevenson
testified that initially after the car accident, Tiffany could
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IN RE INTEREST OF ALY T. & KAZLYNN T.
Cite as 26 Neb. Ct. App. 612
come to see the children in the hospital unsupervised. In mid-
November 2016, the visits were changed to supervised visits
based on a statement Tiffany made to Stevenson. Visitation has
remained supervised since that time.
When the first visitation schedule was established, Tiffany
was offered two or three visits per week with Aly and two or
three separate visits per week with Kazlynn. Stevenson testi-
fied that in August 2017, the number of Tiffany’s visits was
reduced because Tiffany was not regularly attending visits.
At the time of trial, Tiffany was allowed only one visit per
week with each child—a 2-hour visit with Aly and a 1-hour
visit with Kazlynn. Beginning in March or April 2017, Tiffany
was also required to call and confirm each visit because she
was not showing up for visits, which Stevenson stated was
“devastat[ing]” for Aly.
Stevenson testified that at a family team meeting on August
29, 2017, she talked with Tiffany about her noncompliance
with the court orders and asked what the Department could do
to help her. She said that Tiffany would not talk to her about
why she had not complied with the court orders.
Stevenson also testified that at the time of the team meeting,
Tiffany’s chemical evaluation was “out of date,” so she told
Tiffany how to contact a behavioral health agency for another
chemical evaluation. Tiffany called the agency, but when she
reached an answering machine, she became aggravated, said
she was not going to leave a message, and hung up. Stevenson
testified that after the day of the family team meeting, she sent
Tiffany text messages several times asking if she had made
contact with the agency about her chemical evaluation. Tiffany
responded on one occasion, indicating that she called the
agency, but reached the answering machine and did not leave
a message.
Stevenson testified that she has attempted to meet with
Tiffany on a monthly basis and to have a family team meet-
ing on a monthly basis as well, but has been unsuccessful.
The family team meeting that Tiffany attended in August 2017
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IN RE INTEREST OF ALY T. & KAZLYNN T.
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was held the same day the parties had been in court, when
it was decided to have a meeting because the parties were
already present.
Stevenson testified that she cannot get Tiffany to have con-
tact with her; the only time Tiffany has any contact with her
is when Tiffany “wants something.” She also testified that
Tiffany has been noncompliant with her and the Department
and does not want to do anything to comply with the court
orders, which Stevenson finds concerning.
After Tiffany was served with the motion to terminate
her parental rights, filed on August 2, 2017, she contacted
Stevenson and indicated she wanted to comply with the
court orders because she did not want to “lose her children.”
Stevenson and Tiffany texted back and forth for about 40 min-
utes discussing what Tiffany needed to do. Stevenson testified
that after that communication, she did not hear anything further
from Tiffany until August 29, 2017.
Stevenson testified that in her opinion, it was in Aly’s and
Kazlynn’s best interests to terminate Tiffany’s parental rights.
She stated that her opinion was based on “[t]he fact that
[Tiffany] has not done anything in a year’s time to try to even
get to a point where we could even look at going to monitored
visits, let alone moving her child in with her . . . .” She fur-
ther stated:
[Tiffany] has done nothing in the last year to prove that
she can parent either one of these children, and it’s just
in the children’s best interest at this point in time to not
continue to put them through the visits and the visits not
happening and those type[s] of things.
Carolyn Brandau, a family support specialist and visitation
worker, also testified on behalf of the State. She had been
the visitation worker for Aly and Kazlynn since April or May
2017. Brandau testified that Tiffany had missed a lot of visits
since Brandau became the visitation worker. She also testified
that there have been times when she has picked up Aly to go
to a visit and when they get to the visitation location, Tiffany
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does not show up. Brandau testified that when this happens,
it is “heartbreaking” for Aly. Brandau stated, “[Aly] cries and
cries . . . I want my mommy. I want my mommy. Why does my
mommy not want to see me? And it’s just — it’s very heart-
breaking to hear.” Brandau stated that on the visits that Tiffany
does attend, Brandau has to redirect Tiffany at times and she
does not react favorably to the redirection. She testified that
Tiffany does not always display good parenting skills and judg-
ment during visits.
Brandau also testified that due to Aly’s brain injury, Aly has
some physical limitations and needs to be monitored. She is
not supposed to run, jump, or do any strenuous activity. She
testified that Tiffany is not good at monitoring Aly’s activ-
ity and encourages her to go against the limitations. Tiffany
tells Brandau that she is Aly’s mother and knows what is best
for her.
Brandau testified that she agreed with Stevenson’s testi-
mony that Tiffany had not done anything in the past year to
help her reunite with her children.
Following trial, in an order dated October 31, 2017, the
juvenile court found the allegations in the State’s motion to be
true by clear and convincing evidence. The court determined
that Tiffany’s parental rights should be terminated pursuant to
§ 43-292(2) and (6) and that termination was in the children’s
best interests.
ASSIGNMENTS OF ERROR
Tiffany assigns that the juvenile court erred in (1) allowing
her only 7 months to complete the rehabilitation plan, (2) find-
ing that Stevenson had the foundational requisites to give an
expert opinion, and (3) determining that it was in the children’s
best interests to terminate her parental rights.
STANDARD OF REVIEW
[1] 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 LeVanta S., 295 Neb.
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151, 887 N.W.2d 502 (2016). 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 ver-
sion of the facts over the other. Id.
ANALYSIS
Statutory Grounds for Termination.
Tiffany first assigns that the juvenile court erred in allowing
her only 7 months—the time between adjudication and the ter-
mination of her parental rights—to complete the rehabilitation
plan. She argues that she was not given enough time to comply
with the court’s orders and that therefore, the court erred in
finding that grounds to terminate existed under § 43-292(2)
and (6).
[2] 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 evi-
dence that termination is in the best interests of the child. In
re Interest of Sir Messiah T. et al., 279 Neb. 900, 782 N.W.2d
320 (2010).
[3,4] The State must prove the facts by clear and convinc-
ing evidence when showing a factual basis exists under any
of the 11 subsections of § 43-292. See In re Interest of Aaron
D., 269 Neb. 249, 691 N.W.2d 164 (2005). Clear and convinc-
ing evidence is the amount of evidence that produces a firm
belief or conviction about the existence of a fact to be proved.
See id.
In its order terminating Tiffany’s parental rights to her
children, the juvenile court found that the State had presented
clear and convincing evidence to satisfy § 43-292, which pro-
vides in relevant part:
The court may terminate all parental rights . . . 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:
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....
(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;
....
(6) Following a determination that the juvenile is one
as described in subdivision (3)(a) of section 43-247,
reasonable efforts to preserve and reunify 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.
[5] In order to terminate parental rights under § 43-292(6),
the State must prove by clear and convincing evidence that (1)
the parent has failed to comply, in whole or in part, with a rea-
sonable provision material to the rehabilitative objective of the
plan and (2) in addition to the parent’s noncompliance with the
rehabilitative plan, termination of parental rights is in the best
interests of the child. In re Interest of Kassara M., 258 Neb.
90, 601 N.W.2d 917 (1999). The State is required to prove that
the parents have been provided with a reasonable opportunity
to rehabilitate themselves according to a court-ordered plan
and have failed to do so. Id.
As previously stated, Tiffany contends that she was not
given enough time to comply with the rehabilitation plan. She
also argues that Stevenson did not do enough to help her meet
the court’s requirements. Although Tiffany was not given as
much time to rehabilitate herself as we have seen in some other
cases, the evidence shows that she was given adequate time to
comply in whole or in part with many of the provisions ordered
by the court and that she chose not to comply.
The motion to terminate specifically alleged, in regard to
§ 43-292(6), that Tiffany had failed to participate in outpatient
treatment, failed to undergo a psychiatric evaluation, failed to
submit to UA testing as requested, and failed to consistently or
regularly participate in visitation with Aly and Kazlynn. The
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testimony of Stevenson and Brandau clearly and convincingly
established that Tiffany has failed to comply with the provisions
set forth in the motion to terminate, as well as other provisions.
Tiffany submitted to a chemical evaluation in February
2017, but she failed to follow through with the recommenda-
tions, which included a psychiatric evaluation and outpatient
treatment. She was also court ordered to undergo a psychiat-
ric evaluation and participate in outpatient treatment in June.
Stevenson testified that she tried to help Tiffany get both set
up, but Tiffany did not follow through. Stevenson told Tiffany
the agency to contact to get another chemical evaluation when
the first one was “out of date.” Tiffany called the agency but
would not leave a message. Consequently, Tiffany has not sub-
mitted to another chemical evaluation, nor has she undergone a
psychiatric evaluation.
In regard to UA testing, Stevenson testified that Tiffany was
discharged by the first agency based on her failure to comply.
Tiffany did not submit to any UA testing between February 22
and June 6, 2017, resulting in 28 missed tests. A total of 77
tests were requested with the first agency and 42 of those were
unsuccessful. In June, Stevenson referred Tiffany to another
agency for UA testing, and Tiffany continued to be noncom-
pliant. The new agency would go to Tiffany’s house to do the
UA testing and she would not answer the door. Tiffany has
indicated that she does not want to do the UA testing and is
not going to do it.
As to visitation, Tiffany’s visits became supervised in
November 2016 and have remained supervised since then. In
March or April 2017, Tiffany was required to call and confirm
each visit because she was often not showing up for visits with-
out any notice, which was “devastat[ing]” for Aly. The number
of weekly visits were reduced in August because Tiffany was
not consistently attending visits.
Brandau testified that Tiffany has missed a number of visits
since Brandau became the visitation worker in April or May
2017. Brandau stated that during the visits Tiffany attends, she
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has to redirect Tiffany at times and she does not react favor-
ably to the redirection. Brandau also testified that Tiffany does
not always display good parenting skills and judgment during
visits. Brandau further testified that Tiffany does not monitor
Aly’s activity level and encourages her to go against the physi-
cal limitations she is supposed to adhere to because of her head
injury. Tiffany tells Brandau that she is Aly’s mother and that
she knows what is best for her.
Stevenson testified that she has made attempts to meet with
Tiffany on a monthly basis and to have family team meetings
on a monthly basis as well. Stevenson testified that Tiffany
has been noncompliant with the Department and will not have
contact with her, unless Tiffany wants something.
We conclude that the evidence clearly and convincingly
established that Tiffany has failed to comply, in whole or in
part, with reasonable provisions of the rehabilitation plan and
that she had adequate time to do so. The evidence also shows
that Stevenson has tried to meet with Tiffany, to communi-
cate with her, and to help her set up services, but that Tiffany
refuses to accept Stevenson’s assistance and to comply with the
court orders. Therefore, the statutory ground for termination of
Tiffany’s parental rights under § 43-292(6) is satisfied.
[6] If an appellate court determines that a lower court cor-
rectly found that termination of parental rights is appropriate
under one of the statutory grounds set forth in § 43-292, the
appellate court need not further address the sufficiency of
the evidence to support termination under any other statutory
ground. In re Interest of Chloe C., 20 Neb. Ct. App. 787, 835
N.W.2d 758 (2013). Thus, we do not address the sufficiency
of the evidence to support termination under § 43-292(2). The
next inquiry is whether termination of Tiffany’s parental rights
is in the children’s best interests.
Best Interests and Parental Fitness.
[7] In addressing the juvenile court’s finding that termina-
tion was in the children’s best interests, Tiffany argues that
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the court erred in allowing Stevenson to give an opinion on
the best interests of the children because she was not qualified
to give an expert opinion. Neb. Rev. Stat. § 27-702 (Reissue
2016) governs the admissibility of expert testimony and pro-
vides that the witness must be qualified as an expert: “If scien-
tific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact
in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the
form of an opinion or otherwise.” An expert’s opinion is ordi-
narily admissible under § 27-702 if the witness (1) qualifies as
an expert, (2) has an opinion that will assist the trier of fact,
(3) states his or her opinion, and (4) is prepared to disclose the
basis of that opinion on cross-examination. In re Interest of
Kindra S., 14 Neb. Ct. App. 202, 705 N.W.2d 792 (2005).
[8,9] We have previously recognized that the Nebraska
Evidence Rules do not apply in cases involving the termina-
tion of parental rights. See In re Interest of Destiny A. et al.,
274 Neb. 713, 742 N.W.2d 758 (2007). Instead, due process
controls and requires that the State use fundamentally fair pro-
cedures before a court terminates parental rights. Id. In deter-
mining whether admission or exclusion of particular evidence
would violate fundamental due process, the Nebraska Evidence
Rules serve as a guidepost. Id.
Stevenson’s best interests opinion was based on her own
observations and interactions with Tiffany as the caseworker
for Tiffany and her children. Stevenson had been the only
caseworker. Before giving her best interests opinion, Stevenson
had given specific testimony as to how Tiffany had failed to
comply with the court’s orders and refused to cooperate with
her and the Department. Tiffany cross-examined Stevenson
and did not put on any of her own evidence to contradict
Stevenson’s testimony.
We conclude that the juvenile court did not err in allowing
Stevenson to give an opinion in regard to the best interests of
the children.
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Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
IN RE INTEREST OF ALY T. & KAZLYNN T.
Cite as 26 Neb. Ct. App. 612
[10-15] Tiffany next asserts the juvenile court erred in find-
ing that there was clear and convincing evidence to establish
that termination of her parental rights was in the children’s
best interests. In addition to proving a statutory ground, the
State must show that termination is in the best interests of the
child. In re Interest of Kendra M. et al., 283 Neb. 1014, 814
N.W.2d 747 (2012). A parent’s right to raise his or her child
is constitutionally protected; so before a court may terminate
parental rights, the State must also show that the parent is
unfit. Id. There is a rebuttable presumption that the best inter-
ests of a child are served by having a relationship with his or
her parent. Based on the idea that fit parents act in the best
interests of their children, this presumption is overcome only
when the State has proved that the parent is unfit. 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 child’s
best interests. In re Interest of Kendra M. et al., supra. In
discussing the constitutionally protected relationship between
a parent and a child, the Nebraska Supreme Court has stated:
“‘“Parental unfitness means a personal deficiency or incapac-
ity 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. at 1033-34, 814 N.W.2d at 761. The best
interests analysis and the parental fitness analysis are fact-
intensive inquiries. And while both are separate inquiries, each
examines essentially the same underlying facts as the other. In
re Interest of Kendra M. et al., supra.
When the initial petition to adjudicate was filed on October
25, 2016, Tiffany’s whereabouts were unknown and Aly and
Kazlynn’s father had custody of them. Since that time, Tiffany
has been noncompliant with the court’s orders and has put
forth little effort toward reuniting with her children. Even
after being served with the motion to terminate her parental
rights, she initially indicated she wanted to comply with the
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Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
IN RE INTEREST OF ALY T. & KAZLYNN T.
Cite as 26 Neb. Ct. App. 612
case plan, but her interest quickly waned, and Stevenson had
no contact with her for several weeks. Stevenson testified that
throughout the case, Tiffany would not communicate with her
or have any contact with her.
Stevenson testified that in her opinion, it was in the best
interests of Aly and Kazlynn to terminate Tiffany’s parental
rights. She stated that her opinion was based on the fact that
Tiffany had not done anything in the last year to rehabilitate
herself. She indicated that Tiffany had not even done enough
to get her visits changed from being supervised. She further
indicated that Tiffany had not done anything in the past year
to prove she can parent her children and that it was not in
the children’s best interests to continue to schedule visits and
have them not occur. Brandau testified that she agreed with
Stevenson’s testimony that Tiffany had made little effort in the
past year to help her reunite with her children. Brandau also
testified that it is “heartbreaking” for Aly when Tiffany does
not show up for visits. Brandau stated that Aly cries and asks
why Tiffany does not want to see her.
Tiffany has not complied with the court orders, and her lack
of involvement shows that she does not plan to comply. She
has not demonstrated a willingness or a desire to parent Aly
and Kazlynn. Based upon our de novo review of the record,
we find clear and convincing evidence that Tiffany is unfit. We
also find that it was shown by clear and convincing evidence
that termination of Tiffany’s parental rights would be in the
children’s best interests.
CONCLUSION
Based on our de novo review, we conclude that the juvenile
court did not err in terminating Tiffany’s parental rights to Aly
and Kazlynn. Accordingly, the court’s order is affirmed.
A ffirmed.