In re Interest of Gabriel B.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/31/2022 08:04 AM CDT
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
IN RE INTEREST OF GABRIEL B.
Cite as 31 Neb. App. 21In re Interest of Gabriel B., a child
under 18 years of age.
State of Nebraska, appellee,
v. Al B., appellant.
____ N.W.2d ___
Filed May 17, 2022. No. A-21-542.
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.
2. Juvenile Courts: Evidence: Appeal and Error. When the evidence
is in conflict, an appellate court may give weight to the fact that the
juvenile court observed the witnesses and accepted one version of facts
over another.
3. Parental Rights: Proof. For a juvenile court to terminate parental rights
under Neb. Rev. Stat. § 43-292 (Reissue 2016), it must find that one or
more of the statutory grounds listed in this section have been satisfied
and that such termination is in the child’s best interests. The State must
prove these facts by clear and convincing evidence.
4. Parental Rights. Past neglect, along with facts relating to current family
circumstances—which go to best interests—are all properly considered
in a parental rights termination case under Neb. Rev. Stat. § 43-292(2)
(Reissue 2016).
5. ____. One need not have physical possession of a child to demonstrate
the existence of neglect contemplated by Neb. Rev. Stat. § 43-292(2)
(Reissue 2016).
6. ____. A parent neglects a child by failing to put himself or herself in a
position where the child can be placed in the parent’s care, in the same
manner as a parent who improperly cares for a child in his or her care.
7. Parental Rights: Proof. Any one of the bases for termination of paren-
tal rights codified by Neb. Rev. Stat. § 43-292 (Reissue 2016) can serve
as a basis for the termination of parental rights when coupled with evi-
dence that termination is in the best interests of the child.
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
IN RE INTEREST OF GABRIEL B.
Cite as 31 Neb. App. 218. ____: ____. In addition to providing a statutory ground, the State
must show that termination of parental rights is in the best interests of
the child.
9. 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 show that the parent is unfit.
10. Parental Rights: Presumptions: Proof. There is a rebuttable presump-
tion that the best interests of the child are served by having a relation-
ship 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.
11. Constitutional Law: Parental Rights: Words and Phrases. 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 reason-
able parental obligation in child rearing and which caused, or probably
will result in, detriment to the child’s well-being.
12. Parental Rights. The best interests analysis and the parental fitness
analysis are fact-intensive inquiries.
13. ____. While both the best interests analysis and the parental fitness
analysis are separate inquiries, each examines essentially the same
underlying facts.
14. Parental Rights: Parent and Child. In proceedings to terminate paren-
tal rights, the law does not require perfection of a parent; instead, courts
should look for the parent’s continued improvement in parenting skills
and a beneficial relationship between parent and child.
15. 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.
16. Parental Rights: Due Process. The concept of due process embod-
ies the notion of fundamental fairness and defies precise definition.
In deciding due process requirements in a particular case, an appellate
court must weigh the interest of the parent, the interest of the State, and
the risk of erroneous decision given the procedures used. Due process is
flexible and calls for such procedural protections as the particular situa-
tion demands.
Appeal from the Separate Juvenile Court of Douglas County:
Mary M.Z. Stevens, Judge. Affirmed.
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
IN RE INTEREST OF GABRIEL B.
Cite as 31 Neb. App. 21Thomas C. Riley, Douglas County Public Defender, and
Mary Rose Donahue for appellant.
Nathan Barnhill, Deputy Douglas County Attorney, and
Traemon Anderson, Senior Certified Law Student, for appellee.
Pirtle, Chief Judge, and Riedmann and Bishop, Judges.
Pirtle, Chief Judge.
INTRODUCTION
Al B. appeals from the order of the Douglas County Separate
Juvenile Court terminating his parental rights. He contends that
the juvenile court erred in finding statutory grounds existed
and that termination of his parental rights was in the minor
child’s best interests. He also takes issue with the court’s deter-
mination that the case manager was an essential witness and
not subject to the same sequestration as other witnesses. For
the reasons that follow, we affirm the juvenile court’s order
terminating Al’s parental rights.
BACKGROUND
Al is the biological father of Gabriel B., who was born in
May 2009. Gabriel began living with Al in March 2015 after
his mother died by suicide. In March 2019, the State filed
a petition alleging that Gabriel came within the meaning of
Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016) in that Al was
incarcerated at the time; had subjected Gabriel to inappropriate
physical contact; had failed to provide proper parental care,
support, and/or supervision; and had failed to provide safe,
stable, and appropriate housing for Gabriel, placing him at risk
for harm.
On the same day the petition was filed, the State filed, and
the court granted, an ex parte motion for immediate custody of
Gabriel, to exclude the home of Al. The Department of Health
and Human Services took custody of Gabriel, and he was
placed with his stepmother, Jessica A., and he has remained
with her since being removed from his father’s care. Al has
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Nebraska Court of Appeals Advance Sheets
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IN RE INTEREST OF GABRIEL B.
Cite as 31 Neb. App. 21not been allowed any visitation or contact with Gabriel since
his removal.
In May 2019, the court found that Gabriel was a child within
the meaning of § 43-247(3)(a). Several case plans followed.
In May 2020, the State filed a motion for termination of
parental rights against Al, alleging that Gabriel came within the
meaning of Neb. Rev. Stat. § 43-292(2), (6), and (9) (Reissue
2016) and that termination was in Gabriel’s best interests.
Trial on the motion for termination was held on multiple
days between September 2020 and April 2021. On the first
day of trial, Al requested that all witnesses be sequestered.
The State requested that Laura Johnson, Al and Gabriel’s case
manager from October 2019 to November 2020, be deemed
an essential witness and allowed to remain in the courtroom.
After hearing argument from both parties, the court found that
Johnson was an essential witness.
The first witness to testify for the State was Dr. Theodore
DeLaet, a licensed psychologist. He conducted a forensic psy-
chological evaluation and parenting risk assessment of Al in
September 2019. He testified that Al was “superficially coop-
erative” with the assessment and that there was a constant
theme of “defensiveness or underreporting” in his responses.
DeLaet also testified that Al had a strong perception that he
was the victim in this case in that “false allegations” had been
made against him and that his ex-wife and Gabriel “were out
to get him.”
Based on his evaluation and all available information,
DeLaet rated Al at a moderate risk to engage in future child
maltreatment. He stated that his opinion was based on several
risk elevation factors, including Al’s relationship instability,
his aggression, and abuse allegations. DeLaet diagnosed Al
with major depressive disorder, requiring therapeutic attention
and medication. He also stated that therapy needed to include
stress management and anger management. He testified that
the evidence supported, but he could not confirm, a diagno-
sis of attention deficit hyperactivity disorder. He testified that
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IN RE INTEREST OF GABRIEL B.
Cite as 31 Neb. App. 21the goal was to manage these issues, not cure them. He also
noted that Al exhibited an absence of empathy toward Gabriel
and that absence of empathy is typically not a symptom or
manifestation of depression.
DeLaet also noted that Al claimed he was traumatized by
the “false allegations” against him. Al told DeLaet that his
therapist had diagnosed him with post-traumatic stress dis­
order (PTSD) as a result of his wrongful arrest for child abuse
and the experience of being in jail. DeLaet did not believe
that these experiences amounted to a clinical diagnosis of
PTSD.
Following DeLaet’s testimony, Al renewed his objection to
allowing Johnson to be present in the courtroom as an essen-
tial witness. He argued that no evidence was offered during
the State’s request to deem Johnson an essential witness. The
court determined, based on its interpretation of Neb. Rev. Stat.
§ 27-615 (Reissue 2016), that the State needed to “make a
showing” that Johnson needed to hear the testimony of other
witnesses in order to form her opinion regarding Gabriel’s best
interests. The State then called Johnson to testify as to why she
was an essential witness.
Johnson testified that although she had an opinion regard-
ing Gabriel’s best interests, additional information could either
change or reinforce her opinion. She testified that she did not
know what questions would be asked of witnesses or what
answers they would give and that it was possible her opinion
could change based on testimony during the proceeding.
The court ultimately overruled Al’s objection to allowing
Johnson to remain in the courtroom, but only during the testi-
mony of Laura Allis, Gabriel’s therapist, and Rose Payne, Al’s
therapist. Al then made a motion to exclude Johnson as a wit-
ness because the State did not make the required showing prior
to DeLaet’s testimony and because Johnson had already heard
DeLaet testify. The court overruled Al’s motion to exclude
Johnson as a witness, and trial on the motion for termina-
tion continued.
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
IN RE INTEREST OF GABRIEL B.
Cite as 31 Neb. App. 21Jessie Serafica conducted a forensic interview with Gabriel
on January 30, 2019. Gabriel was 9 years old at the time.
Serafica testified that during the interview, Gabriel made alle-
gations of physical abuse against Al. Following the interview,
Serafica recommended therapy for Gabriel based on his dis-
closures. She testified that she had no concerns regarding
Gabriel’s statements and did not notice any “red flags” during
the interview.
Allis, Gabriel’s therapist, testified that she treated Gabriel
from September 2020 to June 2021. At the first session,
Gabriel informed Allis that his father had physically and ver-
bally abused him. Gabriel disclosed that his father spanked
him, hit him, choked him until he passed out, and held a gun
to his head.
Allis diagnosed Gabriel with chronic PTSD. His symptoms
included nightmares, aggressive behavior, avoidance tenden-
cies, and avoidance of talking about the trauma. The source of
Gabriel’s trauma was the abuse by Al.
Allis testified that Gabriel did not like talking about abuse
by his father and that when he did talk about it, he appeared
defeated and scared. He would also speak very fast and would
“crunch down.” Gabriel told Allis he was uncomfortable dis-
cussing the abuse because he was afraid his father would find
out he had made negative statements about him and repercus-
sions would follow.
Gabriel described an incident where Al held a gun against
Gabriel’s head. Gabriel told Allis that his father became upset
because he had shaken the family’s pet rabbit. Gabriel said
that his father pushed him to the ground and held a gun to his
head, telling him that “this is how easy it was for your mom to
blow her brains out.” Al was referring to the fact that Gabriel’s
mother died by suicide by shooting herself. Gabriel told Allis
that when his father had the gun against his head, he was
scared and thought he was going to die.
Gabriel also told Allis that when he would do his home-
work and get something wrong, his father would hit him.
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IN RE INTEREST OF GABRIEL B.
Cite as 31 Neb. App. 21Allis testified that Gabriel also talked about having bruises
on his body and telling his teachers and his friends that he was
being hurt. He said that no one took any action, so he stopped
telling anyone about the abuse. He also stated that he stopped
telling anyone because he was worried his father would find
out and it would just be worse for him at home.
Allis also testified that Gabriel told her Al verbally abused
him. Gabriel said he would go to his room when his father
would come home to avoid him because he felt like he could
not do anything right. Gabriel also revealed that his father
would regularly come into his room and “destroy” it and
then make Gabriel clean it up. Allis noted that Gabriel was
mirroring that behavior by “destroy[ing] his room” himself.
She testified that mirroring of behavior is common for abuse
victims. Gabriel also had issues with outbursts and aggres-
sive behavior.
Allis testified that Gabriel experienced a regression in
January 2021 because he was worried and scared about the
possibility of having to come to court and see his father. He
was also having behavioral problems at school during the same
timeframe.
During therapy, Gabriel was unable to identify any positive
memories he had with his father. He told Allis he never wanted
to see his father again and that he would not feel safe in his
father’s care. He did not want supervised visitation or even
visitation through videoconferencing or some other outlet. Allis
testified that based on Gabriel’s feelings about his father, it was
unknown how long it would take before he would feel safe or
comfortable in his father’s care or custody.
Allis also testified about the negative effects of forcing a
child to attend family therapy with a parent the child is afraid
of. She testified that it can make things worse for the child and
that the child could potentially hurt himself or others.
Jessica, Gabriel’s foster parent and Al’s ex-wife, also testi-
fied. Gabriel was placed with Jessica in March 2019 and has
lived with her since. Prior to placement, Gabriel lived with
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
IN RE INTEREST OF GABRIEL B.
Cite as 31 Neb. App. 21Jessica when she was married to Al. Gabriel came to live with
them in March 2015 after Gabriel’s mother died. Gabriel was 5
years old at the time.
Jessica testified that Al started verbally abusing Gabriel
about a month after he came to live with them. She stated that
the verbal abuse occurred two to three times per week and
included Al’s telling Gabriel he was “worthless” and a “piece
of shit,” as well as blaming Gabriel for his mother’s death.
Jessica testified that she also observed Al physically abuse
Gabriel once or twice per week. She stated that she noticed
the abuse occurring more frequently in November 2015, after
her and Al’s daughter was born, and that it continued until Al
moved out in November 2018. She testified that Al would push
Gabriel down the hall, drag him by his shirt, kick him, punch
him in the stomach, and choke him until he passed out and that
once, Al held a gun to Gabriel’s head. Jessica testified about a
specific incident in April 2015 when Gabriel was 5 years old.
During that incident, Gabriel was not saying the letters of the
alphabet correctly, which caused Al to get mad and kick him
in the stomach.
In regard to the gun incident, Jessica testified that Gabriel
had shaken a pet rabbit and that when Al saw Jessica crying,
he grabbed his gun, held it to Gabriel’s head, and said he was
going to kill him. He also told Gabriel that “he was never
going to be anything because he was just going to grow up
and be a murderer.” Jessica testified that Al pressed the gun to
Gabriel’s head so hard that there was a ring left on his forehead
from the barrel of the gun. When Jessica later asked Al why he
put a gun to Gabriel’s head, his justification was that Gabriel
was going to be a murderer, he was not going to amount to
anything, he should just get rid of him, and there was no reason
for him to be there.
Jessica stated that Al also physically abused her and that
most of the abuse occurred in front of Gabriel and her daughter.
Jessica testified that during the time Gabriel lived with her
and Al, Al was barely involved in Gabriel’s day-to-day care
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IN RE INTEREST OF GABRIEL B.
Cite as 31 Neb. App. 21beyond providing him a place to live, which he paid for pri-
marily with Gabriel’s Social Security money.
According to Jessica, at the time of trial Gabriel was strug-
gling in school, but he was “really good” overall and was
happy. She testified that there are times when his behavior
escalates, such as when he does not get his way he will throw a
fit, throw things, and break things. She also testified that when
she talks to Gabriel about the prospect of seeing his father
again, he gets upset and his behavior escalates.
Johnson, the case manager, testified about Al’s progress with
his rehabilitation plan, specifically that he had completed the
services that had been ordered by the court. Al was ordered
to complete anger management class, which he completed in
February 2020. Johnson testified that despite completing the
class, she had not seen any discernible change in his behavior
toward her or in general. She stated Al struggles to remain in
a calm state when they meet and frequently raises his voice
when talking to her, as well as clenching and unclenching his
fists, which she sees as a sign of anger. She also testified that
when he feels like he is not in control, he finds different ways
to assert control. Johnson had also seen him get angry with
his girlfriend.
Johnson stated that Al was ordered in June 2019 to par-
ticipate in individual therapy and had been participating, but
she had a hard time getting information from his therapist. In
October 2020, he indicated he had completed all of his therapy
goals, but Johnson again testified that she did not see any
changes in him in the year that she had known him. She stated
that he continually talked about how this case had ruined his
life, how Jessica was lying, and how he is the victim. She fur-
ther testified that Al does not understand how his actions and
this case have affected Gabriel.
Johnson testified that she made efforts to meet with Al every
month and that after a year of services, nothing has changed.
She stated that he continues to see himself as a victim. He had
not taken responsibility for what he had put Gabriel through
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IN RE INTEREST OF GABRIEL B.
Cite as 31 Neb. App. 21and had no empathy for him. As a result, Johnson did not
believe Al was capable of meeting Gabriel’s needs if he could
not acknowledge that Gabriel has needs and feelings and that
he has negatively impacted Gabriel’s life. Johnson testified
that Al had made poor progress toward reunification and that
based on her observations and interactions with Al, he had not
shown any behavioral changes and had not internalized any of
the therapeutic services he has received. In her opinion, the
safety risks that were present in March 2019 were still present
when she left the case in November 2020. She also testified
that in her opinion termination of Al’s parental rights was in
Gabriel’s best interests.
Johnson testified that she would meet with Gabriel at least
once a month. She stated that Gabriel was terrified about hav-
ing to live with his father again and even terrified about seeing
him in any way. Johnson agreed with Allis’ testimony that in
January 2021, Gabriel was nervous about having to see his
father in court and was acting out as a result.
Payne worked with Al as his individual therapist beginning
in December 2019. Payne initially diagnosed Al with anxiety
and later with PTSD. She testified that anger can be a product
of anxiety and PTSD. She testified that Al made the decision
to stop going to therapy in December 2020 and that he had
met all of his treatment plan goals at that time. In April 2021,
he voluntarily started therapy again because he felt like he still
needed help.
In June 2021, the juvenile court entered an order terminat-
ing Al’s parental rights on the basis that there was clear and
convincing evidence that Gabriel was a minor child within the
meaning of § 43-292(2), (6), and (9) and that termination of
Al’s parental rights was in Gabriel’s best interests. Al appeals
the order terminating his parental rights.
ASSIGNMENTS OF ERROR
Al assigns that the juvenile court erred in (1) finding that
the State proved by clear and convincing evidence that Gabriel
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IN RE INTEREST OF GABRIEL B.
Cite as 31 Neb. App. 21was a minor child within the meaning of § 43-292(2), (6), and
(9); (2) finding that the State proved by clear and convincing
evidence that termination was in Gabriel’s best interests; and
(3) allowing Johnson to remain present in the courtroom dur-
ing the testimony of DeLaet.
STANDARD OF REVIEW
[1,2] 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.
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
juvenile court observed the witnesses and accepted one version
of facts over another. Id.ANALYSIS
Statutory Grounds.
[3] Al first assigns that the juvenile court erred when it
found that statutory grounds existed to terminate his parental
rights pursuant to § 43-292(2), (6), and (9). For a juvenile court
to terminate parental rights under § 43-292, it must find that
one or more of the statutory grounds listed in this section have
been satisfied and that such termination is in the child’s best
interests. In re Interest of Becka P. et al., 27 Neb. App. 489,
933 N.W.2d 873 (2019). The State must prove these facts by
clear and convincing evidence. Id.[4-6] Section 43-292(2) provides for termination of paren-
tal rights when “parents have substantially and continuously
or repeatedly neglected and refused to give the juvenile or
a sibling of the juvenile necessary parental care and protec-
tion.” Past neglect, along with facts relating to current fam-
ily circumstances—which go to best interests—are all prop-
erly considered in a parental rights termination case under
§ 43-292(2). In re Interest of Joseph S. et al., 291 Neb. 953,
870 N.W.2d 141 (2015). One need not have physical pos-
session of a child to demonstrate the existence of neglect
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IN RE INTEREST OF GABRIEL B.
Cite as 31 Neb. App. 21contemplated by § 43-292(2). In re Interest of Joseph S. et
al., supra. A parent neglects a child by failing to put himself
or herself in a position where the child can be placed in the
parent’s care, in the same manner as a parent who improperly
cares for a child in his or her care. See In re Interest of J.N.V.,
224 Neb. 108, 395 N.W.2d 758 (1986).
Al argues that the State failed to prove by clear and convinc-
ing evidence that he substantially and continuously neglected
Gabriel or failed to provide him with necessary parental care
and protection because he was not given the opportunity to
improve his relationship with Gabriel or improve his parenting
skills. He states that even though he was participating in court-
ordered services, he was never allowed to have contact with
Gabriel or participate in family therapy with him.
While it is true that Al has never been allowed contact with
Gabriel since he was removed in March 2019, the evidence
supports the juvenile court’s determination that Al neglected
Gabriel within the meaning of § 43-292(2). Shortly after
Gabriel came to live with Al after his mother died, Al began
subjecting Gabriel to verbal and physical abuse. Gabriel was
5 years old at the time. The verbal abuse included Al telling
Gabriel he was “worthless” and a “piece of shit,” as well as
blaming Gabriel for his mother’s death. The physical abuse
included Al’s spanking, hitting, and kicking Gabriel, choking
him until he passed out, and holding a gun to his head. The
verbal and physical abuse started around April 2015 and con-
tinued until November 2018 when Al moved out.
The fact that Al has not had contact with Gabriel since he
was removed from Al’s home was a consequence of Al’s own
actions during the time Gabriel was in his care. The abuse
Gabriel endured by his father has had a traumatic and lasting
impact on Gabriel. He has been diagnosed with chronic PTSD
as a result of the abuse. He has nightmares, and he exhibits
outbursts and aggressive behavior. He also mirrors some of
his father’s behavior, such as “destroy[ing]” his bedroom. In
therapy, he does not like to discuss his father or the abuse
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IN RE INTEREST OF GABRIEL B.
Cite as 31 Neb. App. 21and is fearful of his father’s finding out about what he says.
In his foster home, Gabriel gets upset and his behavior esca-
lates when there is any talk about seeing his father. In January
2021, Gabriel regressed in the progress he had made due to
the possibility of seeing his father in court. He has made it
clear that he never wants to see his father again and would not
feel safe in his care. Allis testified it was unknown how long
it would take before Gabriel would feel safe or comfortable
in his father’s care. Allis testified about the negative effects
of forcing a child to attend family therapy with a parent the
child is afraid of. She testified that it can make things worse
for the child and that the child could potentially hurt himself
or others.
The evidence also showed that Al sees himself as a vic-
tim and failed to show empathy toward Gabriel regarding
the pain and trauma the abuse has caused him. He does not
understand how his actions have affected Gabriel. Further,
DeLaet’s assessment showed that Al presents a moderate risk
of future child maltreatment. Johnson did not believe that Al
exhibited any behavioral changes even after completing reha-
bilitative services. By failing to internalize the rehabilitative
treatment, the same safety risks that led to Gabriel’s removal
are still present.
Based upon our de novo review, we conclude that there
is clear and convincing evidence that Al substantially and
continuously neglected Gabriel or failed to provide him
with necessary parental care and protection as required by
§ 43-292(2).
[7] Any one of the bases for termination of parental rights
codified by § 43-292 can serve as a basis for the termina-
tion of parental rights when coupled with evidence that ter-
mination is in the best interests of the child. In re Interest
of Leyton C. & Landyn C., 307 Neb. 529, 949 N.W.2d 773(2020). Accordingly, we need not determine whether termina-
tion of Al’s parental rights was proper pursuant to § 43-292(6)
or (9).
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IN RE INTEREST OF GABRIEL B.
Cite as 31 Neb. App. 21Best Interests and Unfitness.
Al next assigns that the juvenile court erred in finding that
the State proved by clear and convincing evidence that termi-
nation of his parental rights was in Gabriel’s best interests.
[8-11] In addition to providing a statutory ground, the State
must show that termination of parental rights is in the best
interests of the child. In re Interest of Jahon S., 291 Neb. 97,
864 N.W.2d 228 (2015). 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 show that the parent is
unfit. Id. There is a rebuttable presumption that the best inter-
ests of the child are served by having a relationship with his or
her parent. Id. Based on the idea that fit parents act in the best
interests of their children, this presumption is overcome only
when the State has proved that 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 prob-
ably prevent, performance of a reasonable parental obligation
in child rearing and which caused, or probably will result in,
detriment to the child’s well-being. Id.[12-14] 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 underly-
ing facts. Id. In proceedings to terminate parental rights, the
law does not require perfection of a parent; instead, courts
should look for the parent’s continued improvement in par-
enting skills and a beneficial relationship between parent and
child. In re Interest of Joseph S. et al., 291 Neb. 953, 870
N.W.2d 141 (2015).
We note that Al has participated in and completed court-
ordered services in this case. While we commend Al for his
effort, we conclude there is clear and convincing evidence that
it is in Gabriel’s best interests to terminate Al’s parental rights.
The case manager had not seen any change in Al’s behav-
ior despite his participation in services. She testified that he
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IN RE INTEREST OF GABRIEL B.
Cite as 31 Neb. App. 21struggled with controlling his anger, needs to feel in control,
had a victim mentality, had no empathy for Gabriel, and had
not processed how his actions and this case have negatively
affected Gabriel. As a result, she did not believe he was capa-
ble of meeting Gabriel’s needs. In her opinion, the safety risks
that were present when Gabriel was removed from Al’s care
were still present. She testified that terminating Al’s parental
rights was in Gabriel’s best interests.
Gabriel suffers from chronic PTSD as a result of the physi-
cal and verbal abuse by his father. He continues to be afraid of
his father and does not want to ever see him again, let alone
live with him. Gabriel regressed in therapy when he thought
he might have to face his father in court. He also has no
positive memories of his father, and there was no evidence of
any beneficial relationship between them. There was evidence
that forcing him to attend even family therapy with his father
would negatively affect Gabriel. There is no way of knowing
how long it would be, if ever, before Gabriel would be willing
to have contact with his father and feel safe and comfortable
with him.
Accordingly, we find there is clear and convincing evidence
that it is in Gabriel’s best interests to terminate Al’s paren-
tal rights.
Essential Witness.
Al’s final assignment of error is that the juvenile court erred
in allowing Johnson to remain present in the courtroom as an
essential witness during the testimony of DeLaet. Both parties
rely on § 27-615, which sets forth the rule regarding sequester-
ing witnesses:
At the request of a party the judge shall order witnesses
excluded so that they cannot hear the testimony of other
witnesses, and he may make the order on his own motion.
This rule does not authorize exclusion of . . . (3) a person
whose presence is shown by a party to be essential to the
presentation of his cause.
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IN RE INTEREST OF GABRIEL B.
Cite as 31 Neb. App. 21Al argues that the court failed to require the State to present
evidence prior to DeLaet’s testimony as to why Johnson was
an essential witness. The State did not present such evidence
until after DeLaet’s testimony, and when it did, there was no
testimony as to why DeLaet’s testimony would aid Johnson
in forming her best interests opinion. Further, Al argues that
Johnson was not an essential witness because she had the
opportunity to request information from DeLaet during the
time she was case manager. In other words, she had another
way to obtain information from DeLaet other than his testi-
mony at trial.
[15,16] We note that the Nebraska Evidence Rules do not
apply in cases involving the termination of parental rights. In
re Interest of Becka P. et al., 27 Neb. App. 489, 933 N.W.2d
873 (2019). Instead, due process controls and requires that
the State use fundamentally fair procedures before a court
terminates parental rights. Id. The concept of due process
embodies the notion of fundamental fairness and defies pre-
cise definition. In deciding due process requirements in a
particular case, we must weigh the interest of the parent, the
interest of the State, and the risk of erroneous decision given
the procedures used. Due process is flexible and calls for such
procedural protections as the particular situation demands. See
In re Interest of Brian B. et al., 268 Neb. 870, 689 N.W.2d
184 (2004).
In relying on § 27-615 as a guidepost, we note that the statute
does not require that the witness have no other way to obtain
the information needed except to be present in the courtroom.
Further, § 27-615 does not require a party to present evidence
in order to show that a witness is essential, as Al contends. The
statute only requires a party to show that a witness’ presence is
essential to the presentation of the party’s case.
At the beginning of trial, the State requested that the court
declare Johnson an essential witness. The court then asked the
State to explain why Johnson was an essential witness. The
State explained that Johnson would be relying on testimony
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IN RE INTEREST OF GABRIEL B.
Cite as 31 Neb. App. 21from other witnesses to form her opinion on Gabriel’s best
interests and that it was important for her to hear the testi-
mony so she could give a fully informed opinion. Al’s counsel
objected to the request. In response, the State further explained
that Johnson was essential to the presentation of its case
because the “overarching” determination of whether termina-
tion of parental rights is appropriate is whether or not it is in
the best interests of the child and Johnson was going to provide
that opinion to the court. The State argued it was important
for Johnson to hear the testimony of other witnesses so she
could make a fully informed opinion in order to present the
best evidence to the court. The court determined that based on
Johnson’s position as the case manager and the best interests
opinion she would be providing, she was allowed to remain in
the courtroom as an essential witness.
Johnson was asked by the State to provide an opinion about
whether or not termination of Al’s parental rights to Gabriel
was in his best interests, the ultimate issue before the court.
A case worker relies on collateral information in forming an
opinion about best interests. DeLaet’s evaluation of Al and
subsequent testimony was the type of information that could
impact Johnson’s best interests opinion. Further, the State made
a showing prior to DeLaet’s testimony as to why Johnson was
an essential witness. Accordingly, we find that Al’s due proc­
ess rights were not violated by Johnson’s remaining in the
courtroom during DeLaet’s testimony. Al’s final assignment of
error fails.
CONCLUSION
Based upon our de novo review of the record, we find that
there was sufficient evidence to support the termination of
Al’s parental rights. Accordingly, the order of termination is
affirmed.
Affirmed.