In re Interest of Steven S.

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12/17/2019 01:06 AM CST
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Nebraska Court of Appeals Advance Sheets
27 Nebraska Appellate Reports
IN RE INTEREST OF STEVEN S. ET AL.
Cite as 27 Neb. Ct. App. 831
In re Interest of Steven S., Jr., et al.,
children under 18 years of age.
State of Nebraska, appellee and cross-appellee,
v. Steven S., Sr., appellant, and Jennette S.,
appellee and cross-appellant.
___ N.W.2d ___
Filed December 10, 2019. Nos. A-18-1183 through A-18-1185.
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. Neb. Rev. Stat. § 43-292 (Reissue 2016) pro-
vides 11 separate conditions, any one of which can serve as the basis
for the termination of parental rights when coupled with evidence that
termination is in the best interests of the child.
3. Parent and Child: Child Custody. A parent’s failure to provide an
environment to which his or her children can return can establish sub-
stantial, continual, and repeated neglect.
4. Parental Rights: Evidence: Appeal and Error. If an appellate court
determines that the lower court correctly found that termination of
parental 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.
5. Parental Rights: Proof. Under Neb. Rev. Stat. § 43-292 (Reissue
2016), once the State shows that statutory grounds for termination of
parental rights exist, the State must then show that termination is in the
best interests of the child.
6. Parental Rights: Presumptions: Proof. A child’s best interests are pre-
sumed to be served by having a relationship with his or her parent. This
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IN RE INTEREST OF STEVEN S. ET AL.
Cite as 27 Neb. Ct. App. 831
presumption is overcome only when the State has proved that the parent
is unfit.
7. 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 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.
8. Rules of the Supreme Court: Appeal and Error. A cross-appellant
is required to comply with the rules on cross-appeals, including the
requirement that the cross-appellant designate on the cover of his or her
brief that it is a cross-appeal, and set forth the cross-appeal in a separate
division of the brief entitled “Brief on Cross-Appeal.”
9. ____: ____. An appellate court may consider a party’s cross-appeal,
even though the party’s brief violated Neb. Ct. R. App. P. § 2-109(D)(4)
(rev. 2014) requiring a separate section for a cross-appeal, where the
form and presentation of the assignments of error in the party’s brief
conformed with Neb. Ct. R. App. P. § 2-109(D)(1) (rev. 2014), which
applies to an appellant’s brief.
Appeal from the County Court for Scotts Bluff County: Kris
D. Mickey, Judge. Affirmed.
Gretchen Traw, Deputy Scotts Bluff County Public Defender,
for appellant.
Rhonda R. Flower, of Law Office of Rhonda R. Flower, for
appellee.
Riedmann, Bishop, and Arterburn, Judges.
Per Curiam.
I. INTRODUCTION
Steven S., Sr., appeals, and Jennette S. cross-appeals, from
an order entered by the Scotts Bluff County Court, sitting
as a juvenile court, which terminated their parental rights to
their three minor children: Steven S., Jr. (Steven Jr.) (case No.
A-18-1183), Aodhan S. (case No. A-18-1184), and Genevive S.
(case No. A-18-1185). We consolidate these three appeals for
disposition, and we affirm the order of the juvenile court.
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Nebraska Court of Appeals Advance Sheets
27 Nebraska Appellate Reports
IN RE INTEREST OF STEVEN S. ET AL.
Cite as 27 Neb. Ct. App. 831
II. BACKGROUND
1. Procedural Background
Steven and Jennette are the natural parents of Steven Jr.,
born in September 2005; Genevive, born in October 2011; and
Aodhan, born in May 2013. Steven and Jennette are married,
but by the time of the hearing on the State’s motions to termi-
nate their parental rights, they were living separately.
The current proceedings involving this family were initi-
ated in October 2017. However, this is not the first time the
family has been involved with either the juvenile court or the
Department of Health and Human Services (the Department).
In fact, the family has a lengthy history with the Department.
In 2000, the Department was contacted twice regarding Steven
and Jennette’s treatment of an older son, who is not a subject
of the current proceedings. Both reports indicated that Steven
and Jennette were neglecting the older son, who was then an
infant, by failing to properly feed him, failing to bathe him,
and failing to obtain necessary medical care for him. In 2001,
Steven and Jennette’s older daughter, who is also not a subject
of the current proceedings, was removed from their care after
she was taken to the hospital and tested positive for opiates
and marijuana. These children are no longer in the custody of
Steven and Jennette.
In 2006, the Department received a report that Steven and
Jennette were neglecting Steven Jr., who was then 1 year old.
The reporter indicated that the family home was “in a very bad
state and [was] very dirty with cat and dog feces in the house.”
In 2011, Steven and Jennette’s niece, who was living with
them, reported that both Steven and Jennette were physically
abusive to her. She had injuries consistent with her reports.
Testimony from the termination hearing revealed that Steven
was ultimately convicted of sexually abusing the niece and was
jailed for 1 year.
From 2013 to 2016, the Department received four additional
reports regarding Steven and Jennette. Each of these reports
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27 Nebraska Appellate Reports
IN RE INTEREST OF STEVEN S. ET AL.
Cite as 27 Neb. Ct. App. 831
indicated that Steven and Jennette were neglecting Steven Jr.,
Genevive, and Aodhan by not bathing the children, not provid-
ing a clean and safe home environment, and not obtaining nec-
essary medical care for them. After each of these reports, the
Department provided services to assist the family. In March
2017, 6 months prior to the initiation of the current court pro-
ceedings, the Department received another report regarding
Steven and Jennette’s neglect of the children. This report indi-
cated that Aodhan was not receiving necessary medical care
and that the children smelled of urine and body odor.
On October 6, 2017, the current proceedings were initi-
ated when the State filed petitions alleging that Steven Jr.,
Genevive, and Aodhan were within the meaning of Neb. Rev.
Stat. § 43-247(3)(a) (Reissue 2016) due to the fault or habits
of Steven and Jennette. We note that at the time the petitions
were filed, the family was still receiving assistance from the
Department based on previous issues of neglect.
Also on October 6, 2017, the State filed motions asking
that the children immediately be placed in the custody of the
Department. In support of the motions, the State provided an
affidavit authored by a deputy with the Scotts Bluff County
sheriff’s office. The affidavit indicated that the deputy vis-
ited the family home on October 6, after the Department had
received another report regarding Steven and Jennette’s neglect
of the children. The deputy stated that upon his arrival at the
home, he “was almost immediately overwhelmed with the
smell of ammonia, the source of which appeared to be cat
urine.” The deputy observed numerous dirty dishes and dirty
laundry scattered throughout the house. In addition, there were
cat feces on the floor and on some of the laundry. The deputy
indicated that “this [w]as one of the worst homes he has been
in while working for the Sheriff’s Department.” The deputy
believed that the children needed to be removed from the
home for their safety. Ultimately, the juvenile court granted
the State’s motions for temporary custody, placing the children
in the custody of the Department and outside of Steven and
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IN RE INTEREST OF STEVEN S. ET AL.
Cite as 27 Neb. Ct. App. 831
Jennette’s home. The children have remained outside of their
parents’ home since October 6.
Subsequent to the State’s filing the original petitions, the
State filed amended petitions on November 17, 2017. In the
amended petitions, the State alleged that the children were at
risk for harm because they lacked safe and sanitary housing
and because Steven was currently incarcerated and unable to
care for the children. Steven ultimately admitted that portion
of the amended petition which alleged that the children were
at risk for harm due to his continued incarceration. Jennette
ultimately admitted that portion of the amended petition which
alleged that the children were at risk for harm because she
was not providing them with safe and sanitary living condi-
tions. Given the parents’ admissions, the juvenile court found
Steven Jr., Genevive, and Aodhan to be within the meaning of
§ 43-247(3)(a).
A disposition hearing was held on January 9, 2018. We
note that the record from this hearing reflects that Jennette
was present at the hearing, but because she had been recently
arrested and jailed, she appeared at the hearing “in custody.”
Jennette had apparently been charged with child abuse; how-
ever, the exact circumstances surrounding this charge are not
discussed in our record. Steven was also present at the hearing,
because he was no longer incarcerated.
At the hearing, the juvenile court ordered that Steven and
Jennette comply with the case plan recommended by the
Department. That case plan included directives for both Steven
and Jennette to participate in a psychological evaluation and
a parenting assessment; to take steps to maintain a clean and
safe home environment, including working with a family sup-
port worker; and to attend supervised parenting time with the
children and demonstrate age-appropriate supervision for each
child. The Department indicated that prior to the hearing, both
Steven and Jennette had participated in a psychological evalu-
ation and a parenting assessment. The parties noted that they
were awaiting the results of that testing.
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Nebraska Court of Appeals Advance Sheets
27 Nebraska Appellate Reports
IN RE INTEREST OF STEVEN S. ET AL.
Cite as 27 Neb. Ct. App. 831
A review hearing was held in April 2018. At this hearing,
Steven and Jennette were ordered to “follow the recommen-
dations of the comprehensive parental capacity evaluations.”
These recommendations included participating with individual
and family counseling and medication management. A subse-
quent review hearing was held in July 2018. At this hearing,
the juvenile court changed the permanency goal from reuni-
fication to adoption with a concurrent goal of reunification.
Steven and Jennette were again ordered to comply with the
Department’s case plan.
On July 20, 2018, the State filed motions to terminate
Steven’s and Jennette’s parental rights. In the motions, the
State alleged that termination was appropriate pursuant to Neb.
Rev. Stat. § 43-292(2), (6), and (9) (Reissue 2016). The State
also alleged that termination of Steven’s and Jennette’s parental
rights was in the best interests of the children.
2. Termination Hearing Evidence
A hearing on the termination motions was held on September
27, 2018. At the hearing, the State called six witnesses to testify,
including two Department caseworkers who had been assigned
to the family’s case, the clinical psychologist who conducted a
psychological evaluation and a parenting assessment for both
Steven and Jennette, Genevive and Aodhan’s therapist, and
Genevive and Aodhan’s foster mother. The State’s witnesses
largely testified regarding Steven’s and Jennette’s failure to
make any progress toward becoming appropriate parents for
the children. Neither Steven nor Jennette fully took advantage
of the rehabilitative services they were offered and ordered to
complete. The witnesses also testified regarding the children’s
severe behavioral problems and the progress the children have
made while living apart from their parents in foster care. In
addition to the State’s witnesses, Jennette called three wit-
nesses to testify on her behalf. Each of these witnesses indi-
cated that Jennette appeared to be an involved mother who had
a bond with her children.
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27 Nebraska Appellate Reports
IN RE INTEREST OF STEVEN S. ET AL.
Cite as 27 Neb. Ct. App. 831
(a) Evidence Regarding Steven
As we mentioned above, in October 2017, when the cur-
rent proceedings were initiated, Steven was in jail. Evidence
in our record indicates that his incarceration was the result
of being convicted of writing bad checks. When Steven was
released, he lived with Jennette. However, at the July 2018
review hearing, both Steven and Jennette testified that they
were no longer living together. Jennette indicated that she told
Steven to leave her home because he was not working and
she no longer wanted to support him. Steven indicated that
he was homeless and was sleeping in a tent which he pitched
in various locations, including, on occasion, Jennette’s back-
yard. Despite not having adequate housing for himself or for
his children, Steven expressed that his primary desire was to
obtain a vehicle.
Steven was unemployed from the time of his release from
jail through at least July 2018 when he obtained part-time
employment. At the review hearing held in July, Steven testi-
fied that although he had applied for various jobs, he struggled
with finding employment that would accommodate his sched-
uled visitation with the children. We note that by this time in
the proceedings, Steven had visitation with the children only on
weekends. The Department assisted both Steven and Jennette
financially with such expenses as utilities, gas, and their tele-
phones, but even with this assistance, they were unable to meet
their own basic needs.
During the pendency of the juvenile court proceedings,
Steven failed to consistently participate with family support
services. He also failed to demonstrate his participation in
individual therapy, despite his reports that he started attending
therapy in July 2018. The only service that Steven consistently
took advantage of was supervised visitation with the children.
However, the Department had concerns about statements made
by Steven to the children during the visitation sessions. In
addition, because of Steven’s and Jennette’s living situations,
the visits never took place in their home. The visits with
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27 Nebraska Appellate Reports
IN RE INTEREST OF STEVEN S. ET AL.
Cite as 27 Neb. Ct. App. 831
Genevive and Aodhan took place at a visitation center, and the
visits with Steven Jr. took place in a motel room, because he
had been placed in a foster home in Omaha, Nebraska.
By the time of the termination hearing, Steven and Jennette
saw their children every other weekend. They would have
a visit with Genevive and Aodhan every other weekend and
would have a visit with Steven Jr. on alternating weekends.
Both of the Department caseworkers assigned to the case testi-
fied that during visits with the children, Steven and Jennette
failed to follow through with disciplining the children, despite
their behaviors, and as a result, struggled to control the chil-
dren. They also spent a great deal of time looking at their
telephones instead of interacting with the children and were
sometimes not fully prepared with everything necessary to
care for the children. Steven had to be repeatedly prompted
to change Aodhan’s diapers prior to the time he became potty
trained. When asked, Steven and Jennette both indicated their
belief that visits with the children were going well.
The results of Steven’s psychological evaluation and par-
enting assessment further indicated the deficiencies in his
parenting abilities. Dr. Gage Stermensky, the clinical psy-
chologist who performed the evaluations on Steven, testi-
fied at the termination hearing that based upon the results
of his evaluations, he believed that Steven currently lacked
the ability to sufficiently care for his children. Stermensky
testified that Steven suffered from bipolar disorder, antisocial
personality disorder, and anxiety disorder. Antisocial person-
ality disorder in particular can cause impulsivity and diffi-
culty with being taught new skills or with being supervised.
Furthermore, Stermensky said that Steven lacked insight into
how his behaviors and actions impacted his children and that
he lacked empathy for others and displayed an inability to
meet his basic needs.
Stermensky opined that Steven would benefit from both
behavioral therapy and medication compliance. Steven
informed Stermensky that he was not currently taking any
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IN RE INTEREST OF STEVEN S. ET AL.
Cite as 27 Neb. Ct. App. 831
medication because he could not afford to pay for the pre-
scriptions. Stermensky indicated that there are programs avail-
able which provide assistance with the cost of prescriptions
for mental health issues. Stermensky testified that ultimately,
Steven’s prognosis was “guarded” in that Stermensky had con-
cerns about whether Steven would ever gain the capacity to be
an appropriate parent. Such concerns included Steven’s lengthy
history of involvement with the Department without any signif-
icant or maintained improvements. Stermensky noted that even
with the Department’s help, Steven was still unable to meet his
own basic needs. And, Stermensky questioned whether Steven
would ever be able to meet his children’s needs. Stermensky
testified that given Steven’s history, he would need to demon-
strate improvement over a lengthy period of time, rather than
just for a few months, prior to any change in his status with
regard to the children.
There was evidence presented by the State’s witnesses regard-
ing allegations that Steven either had sexually abused Genevive
or was grooming her for such sexual abuse. Genevive’s foster
mother, Susan M., testified that Genevive had disclosed mul-
tiple instances of sexual abuse, including reports of Steven’s
touching her with his penis and Jennette’s taking pictures of
her when she was not wearing any clothes. Susan also testi-
fied that Genevive displays sexualized behaviors, including
masturbating “all the time.” Similarly, Genevive’s therapist,
Mandy Price, testified at the termination hearing that Genevive
had displayed sexualized behavior at school in addition to in
her foster home. For example, Genevive wrote a letter to a
high school football player expressing her desire to have a
sexual relationship with him. Price testified that in her opinion,
6-year-old Genevive was able to describe sexual intercourse
at a level “probably above the normal developmental stage.”
Genevive reported to Price, completely unprompted and “out
of the blue,” that Steven had touched her on her bottom with
his penis. When Genevive made this report, she asked Price
not to tell anyone about this information and she said she did
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IN RE INTEREST OF STEVEN S. ET AL.
Cite as 27 Neb. Ct. App. 831
not want to disclose any further information about the incident.
Price testified that she did not believe that Genevive’s disclo-
sures were the result of anyone “coaching” her about what
to say.
While both Steven and Jennette denied the allegations of
sexual abuse during the current proceedings, Jennette had pre-
viously reported her own concerns about Steven’s relationship
with Genevive. When Genevive was younger, Jennette took
Genevive to the hospital with concerns that Steven was molest-
ing her because he took too long to change her diapers. And,
during a prior court proceeding, Jennette asked that Steven
have only supervised visits with Genevive because of concerns
that he was sexually abusing her. Moreover, as we noted above,
Steven had previously been convicted of sexually abusing his
young niece.
(b) Evidence Regarding Jennette
The children were initially removed from the family home
due to its unsanitary and unsafe condition. Throughout the pro-
ceedings, Jennette had made some efforts to improve the home;
however, by the time of the termination hearing, the condition
of the home remained an issue. Jennette did pay to fix some
of the subflooring in the home, to fix water damage present
on the ceiling, and to build an enclosed porch. However, a
“[v]ery potent” smell still existed in the home. The most recent
Department caseworker, Abbie Wiebesiek, described the smell
as consisting of “cat urine [and] old garbage.” In addition, in
February and March 2018, there was no electricity in the home
and it was very cold. Wiebesiek testified that she had not vis-
ited the home since June because Jennette was no longer being
cooperative about allowing her to walk through the home. In
fact, Jennette essentially cut off contact with the Department in
June after she was informed that the State was seeking termina-
tion of her parental rights.
Additionally, there was evidence that Jennette had a boyfriend
who appeared to be living at her home. Jennette acknowledged
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IN RE INTEREST OF STEVEN S. ET AL.
Cite as 27 Neb. Ct. App. 831
that Steven Jr. did not like her boyfriend. There was also
evidence that the boyfriend was “aggressive” toward Steven
Jr. and regularly used marijuana. Wiebesiek indicated that
there was a “strange relationship dynamic” between Jennette,
Steven, and Jennette’s boyfriend.
Jennette acquired full-time employment in March 2018.
Around this same time, she worked with family support to
establish a budget for her monthly income so that she could
pay for improvements to the family’s home, help pay for travel
to Omaha to visit Steven Jr., and save for the future. However,
in July 2018, Jennette voluntarily terminated her employment,
with no explanation. Jennette lied to the Department for the
next 3 months about her employment status—she continued to
report that she was employed, when she was not.
Jennette attended visitations with her children on a fairly
consistent basis. However, as we discussed above, Jennette’s
behavior during the visitations was not always appropriate.
She and Steven struggled to control the children, failed to con-
sistently discipline them, and spent a great deal of time look-
ing at their telephones. In addition to this behavior, Jennette
would often speak with the children about inappropriate topics,
including her relationship with Steven and the problems they
were having as a couple.
Stermensky, who also completed a psychological evalua­
tion and parenting assessment on Jennette, testified that
she currently lacked the ability to sufficiently care for her
children. Stermensky indicated that Jennette suffered from
schizoaffective disorder, bipolar type. He explained that this
disorder can cause disorganized thinking, a diminished abil-
ity to meet hygienic needs, manic and depressive episodes,
and hallucinations. In addition, Jennette reported having poor
coping skills and amplified psychosis and decompensation
when she is experiencing a stressful situation. Stermensky
indicated that Jennette did not recognize the full extent of her
mental health symptoms or how those symptoms impacted the
home environment.
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IN RE INTEREST OF STEVEN S. ET AL.
Cite as 27 Neb. Ct. App. 831
Stermensky believed that medication compliance and therapy
could mitigate Jennette’s symptoms significantly and improve
her ability to effectively parent her children. However, dur-
ing her evaluation, Jennette told Stermensky that she had not
“liked” the medications so she had stopped taking them. As
a result, Jennette had not had any treatment for her disor-
der in an extended period of time. Stermensky recommended
that Jennette engage in a long-term treatment program and
that her visitation with the children be limited to therapeu-
tic interactions.
Ultimately, Stermensky had serious concerns about Jennette’s
ability to gain the capacity needed to effectively parent her
children. He noted that Jennette had been receiving assistance
from the Department for quite some time, but had been unable
to show any marked improvement in her parenting abilities.
Stermensky stated, “The best predictor of, you know, future
behavior is past behavior.” He also noted that he had concerns
about Jennette’s relationship with her boyfriend and how that
relationship may affect her ability to parent. Stermensky indi-
cated that Jennette may allow individuals to be a part of her
and her children’s lives, even when that would not be in the
children’s best interests.
Evidence in the record indicated that after Jennette’s eval­
uations with Stermensky, she affirmatively stated that she was
participating in individual counseling. However, she failed to
ever provide proof of her attendance. In addition, there was no
evidence to indicate that she was taking any medication for her
mental health problems. The record also indicated that by the
time of the termination hearing, Jennette was reporting that she
was pregnant again.
Jennette called three of her own witnesses to testify at the
termination hearing. Two of these witnesses were workers
who had visited the family’s home to assist with the chil-
dren’s education and behavioral issues, prior to the children’s
removal in October 2017. Each of these witnesses testified
that Jennette was very involved with the assistance programs
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IN RE INTEREST OF STEVEN S. ET AL.
Cite as 27 Neb. Ct. App. 831
and was cooperative with their efforts. The witnesses testified
that all of the children appeared bonded with Jennette. Each
of the witnesses also indicated that the family’s home had a
strong smell and that keeping the home clean and sanitary was
something that had to be addressed on more than one occasion.
Jennette’s third witness was a visitation worker who observed
Jennette with Genevive and Aodhan after their removal. This
witness testified that Jennette had demonstrated positive par-
enting skills and that the two younger children appeared to be
bonded to Jennette. The witness also indicated that he had seen
an improvement in the visits over time—the visits were calmer
and the children were listening better and fighting less.
(c) Evidence Regarding Children’s
Behavioral Issues
The State presented evidence focused on the children’s
behavioral issues and the improvements they have made while
living in foster care. Steven Jr. has been diagnosed with Sturge-
Weber syndrome, which causes seizures, developmental delays,
and lower cognitive functioning. When the children were ini-
tially removed from Steven and Jennette’s home in October
2017, they were all placed in the same foster home with Susan.
Susan testified at the termination hearing that when Steven Jr.
first arrived at her home, he had “[a] lot” of specialized needs.
He would have “fits” if he did not get his way. Although he
was 12 years old, he would still have accidents by urinating
on himself. In addition, he was violent toward Genevive and
Aodhan, hitting, kicking, and pinching them. He also threat-
ened to harm everyone in his foster home. Susan described
Steven Jr. as functioning more at the level of a 5 or 6 year old
than a 12 year old. He was unable to meet any of his basic
needs. Almost immediately after being placed in Susan’s home,
Steven Jr. needed to be hospitalized as a result of his seizures
and the need to regulate his antiseizure medication.
After a month with Susan, Steven Jr. moved to a more
specialized foster home in Omaha. Since his move, he had
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IN RE INTEREST OF STEVEN S. ET AL.
Cite as 27 Neb. Ct. App. 831
made some improvements in his behavior, but he continued
to be “very easily frustrated” and to have accidents where he
urinated or defecated on himself. These problems were particu-
larly prevalent both during and after Steven Jr.’s visits with his
parents. Steven Jr.’s foster mother in Omaha enrolled Steven
Jr. in special education classes and was working with him on
learning to read.
In addition to the sexualized behavior exhibited by Genevive,
she was described as being bossy, controlling, and untruthful.
While Genevive had made improvements in her behavior dur-
ing her time in foster care, she struggled after visits with her
parents. Genevive had nightmares for 3 or 4 days after every
visit. During these nightmares, she would wake up screaming.
Genevive described these nightmares to Price, indicating that
in the dreams Jennette would appear as a “monster” or would
be “shooting people.” Price testified that the consistency and
regularity of the nightmares was concerning.
At the time of his removal in October 2017, Aodhan was
4 years old, but was not yet potty trained and was unable to
speak well. Susan testified that Aodhan’s behavior was “hor-
rible.” He reacted physically when he was told “no,” includ-
ing biting, hitting, kicking, and scratching. He called people
derogatory names but, in other respects, he still acted younger
than his age. Susan testified that Aodhan was also abusive to
animals. She caught him attempting to drown one of the fam-
ily’s puppies and a couple of their cats. Price, who also acted
as Aodhan’s therapist for a few months, diagnosed him as suf-
fering from an adjustment disorder.
In the time Aodhan had been in foster care, Susan testified
that his behaviors had improved. She said he was calmer, was
less physical when angry, and accepted discipline and redirec-
tion. In fact, Price testified that she decreased the frequency of
Aodhan’s therapy visits. However, after visits with his parents,
Aodhan would “fight[]” in his sleep and ask to sleep with his
foster father for comfort. In addition, he would regress in his
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IN RE INTEREST OF STEVEN S. ET AL.
Cite as 27 Neb. Ct. App. 831
potty training, be more violent, use inappropriate language, and
revert to acting younger than his age.
3. Juvenile Court’s Order
On December 14, 2018, the juvenile court entered an order
terminating Steven’s and Jennette’s parental rights to Steven
Jr., Genevive, and Aodhan. The court found that the State had
proved that termination of Steven’s and Jennette’s parental
rights was warranted pursuant to § 43-292(2) and (6) and that
termination was in the children’s best interests. In the order, the
court found:
[I]n these cases, the system has run out of reasonable
options and the prospects are dim that additional time
will be of any benefit. Both parents have shown they are
unwilling or incapable of rehabilitating themselves in the
foreseeable future to properly parent these children. The
system cannot and should not allow children to languish
in foster care waiting to see if a parent will mature.
The court also specifically found “clear and convincing evi-
dence exists that the parental circumstances and conditions at
issue in these cases are long-standing and have existed over
the course of many years.” Additionally, while the court noted
that the parents’ efforts to consistently participate in supervised
visitations with their children during the pendency of the pro-
ceedings was “commendable,” the court ultimately found that
“being a parent requires more than attending every other week-
end visitations and necessitates acquiring the wherewithal to
be a consistent, positive presence for a child’s everyday basic
needs, something far different than the parenting described in
these cases.”
Steven appeals, and Jennette cross-appeals, from the juve-
nile court’s order.
III. ASSIGNMENTS OF ERROR
On appeal, Steven alleges that the juvenile court erred in
finding that there was sufficient evidence to prove (1) the
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relevant statutory grounds for termination of his parental rights
and (2) that termination of his parental rights was in the chil-
dren’s best interests.
On cross-appeal, Jennette also alleges that the juvenile court
erred in finding that there was sufficient evidence to prove (1)
the relevant statutory grounds for termination of her parental
rights and (2) that termination of her parental rights was in the
children’s best interests.
IV. 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 Ryder J., 283 Neb.
318, 809 N.W.2d 255 (2012). When the evidence is in conflict,
however, an appellate court may give weight to the fact that the
lower court observed the witnesses and accepted one version of
the facts over the other. Id.
V. ANALYSIS
1. Steven’s Appeal
(a) Statutory Factors
[2] The bases for termination of parental rights in Nebraska
are codified in § 43-292. Section 43-292 provides 11 separate
conditions, any one of which can serve as the basis for the
termination of parental rights when coupled with evidence
that termination is in the best interests of the child. In re
Interest of Sir Messiah T. et al., 279 Neb. 900, 782 N.W.2d
320 (2010).
In its order terminating Steven’s parental rights to Steven
Jr., Genevive, and Aodhan, the juvenile court found that the
State had presented clear and convincing evidence to satisfy
§ 43-292(2) and (6). The relevant portions of § 43-292 provide
as follows:
The court may terminate all parental rights . . . when
the court finds such action to be in the best interests of
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the juvenile and it appears by the evidence that one or
more of the following conditions exist:
....
(2) The parents have substantially and continuously or
repeatedly neglected and refused to give the juvenile or a
sibling of the juvenile necessary parental care and protec-
tion; [and]
....
(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.
[3] In his brief on appeal, Steven asserts that the juvenile
court erred in finding that termination of his parental rights
was warranted pursuant to § 43-292(2) or (6). Contrary to
Steven’s assertions, upon our de novo review of the record, we
find that the State presented clear and convincing evidence to
prove that termination of Steven’s parental rights to his three
children was warranted pursuant to § 43-292(2). The evidence
presented at the termination hearing revealed that Steven had
failed to provide his children with necessary parental care and
protection for a significant period of time. Additionally, Steven
had failed to put himself in a position to achieve reunifica-
tion after his children were removed from his care. A parent’s
failure to provide an environment to which his or her children
can return can establish substantial, continual, and repeated
neglect. See In re Interest of Joseph S. et al., 291 Neb. 953,
870 N.W.2d 141 (2015).
Steven’s children, Steven Jr., Genevive, and Aodhan,
were placed in the custody of the Department and outside of
Steven’s home for approximately 10 months prior to the time
the State filed its motion to terminate Steven’s parental rights
in July 2018. During that 10 months, Steven failed to obtain
appropriate housing. While he initially resided in the family
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home with Jennette, by the time of the termination hearing,
he was homeless. He lived in a tent and traveled from back-
yard to backyard. Despite his tenuous living situation, Steven
remained unemployed through July 2018, when the motion
to terminate his parental rights was filed. And, although he
had obtained some employment, it was only part-time work.
Steven had expressed to the Department caseworkers that his
primary goal was to obtain a vehicle, not a house. According to
the Department caseworkers who worked with Steven, he had
demonstrated that he was incapable of providing for even his
own basic needs. As such, it was clear that he was not capable
of providing for the extensive needs of his children, who,
because of their behavioral issues, need a great deal of routine
and structure.
Also during the 10 months prior to the filing of the motion
to terminate his parental rights, Steven failed to participate
in individual therapy and failed to demonstrate compliance
with necessary medication management for his mental health
issues. Stermensky opined that without such intervention,
Steven would remain incapable of being an appropriate parent
to his children. Steven also did not take full advantage of the
family support worker available to assist him in meeting his
basic needs.
Even when Steven was physically present with the children
during visitations, he often neglected their needs. Evidence pre-
sented at the termination hearing revealed that Steven needed
to be prompted to change Aodhan’s diapers. He also failed to
bring necessary supplies to visitations and spent a great deal
of time looking at his telephone, rather than engaging with
his children.
In our review of the record, we find sufficient evidence to
demonstrate that, notwithstanding Steven’s release from jail,
his circumstances have remained virtually unchanged from the
time of the children’s removal in October 2017 to the time the
State filed its motion to terminate his rights in July 2018. In
fact, in some respects, Steven’s circumstances have declined
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since October 2017. He had made virtually no progress toward
becoming an adequate parent for his children, despite the
efforts of the Department and the juvenile court. Moreover,
we note that Steven had a lengthy history of involvement
with the Department and the juvenile court, but he had not
yet demonstrated an ability to maintain any sort of long-term
progress toward becoming an adequate parent even with years
of assistance. Steven had not demonstrated that he could pro-
vide the children with the stability that they so desperately
need. Steven had simply failed to provide an environment
to which his children could return, and he had substantially,
continuously, and repeatedly neglected Steven Jr., Genevive,
and Aodhan.
Upon our de novo review of the record, we agree with the
juvenile court’s finding that the State presented sufficient evi-
dence to demonstrate that Steven had substantially and contin-
uously or repeatedly neglected and refused to give Steven Jr.,
Genevive, and Aodhan necessary parental care and protection
pursuant to § 43-292(2). We find that the juvenile court did not
err in finding that termination of Steven’s parental rights was
warranted pursuant to § 43-292(2).
[4] If an appellate court determines that the lower court
correctly found that termination of parental rights is appropri-
ate 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 Justin H. et al., 18 Neb. Ct. App. 718,
791 N.W.2d 765 (2010). Therefore, this court need not review
termination under § 43-292(6).
Once a statutory basis for termination has been proved, the
next inquiry is whether termination of parental rights is in the
children’s best interests.
(b) Best Interests
[5-7] Under § 43-292, once the State shows that statutory
grounds for termination of parental rights exist, the State
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must then show that termination is in the best interests of the
child. In re Interest of Ryder J., 283 Neb. 318, 809 N.W.2d
255 (2012). A child’s best interests are presumed to be served
by having a relationship with his or her parent. In re Interest
of Isabel P. et al., 293 Neb. 62, 875 N.W.2d 848 (2016). This
presumption is overcome only when the State has proved that
the parent is unfit. Id. In the context of the constitutionally
protected relationship between a parent and a child, parental
unfitness means a personal deficiency or incapacity which has
prevented, or will probably prevent, performance of a reason-
able parental obligation in child rearing and which has caused,
or probably will result in, detriment to a child’s well-being.
Id. The best interests analysis and the parental fitness analysis
are fact-intensive inquiries. Id. And while both are separate
inquiries, each examines essentially the same underlying facts
as the other. Id.
In his brief on appeal, Steven argues that the State failed
to present sufficient evidence to prove that termination of his
parental rights was in the children’s best interests. He asserts
that the evidence presented at the termination hearing revealed
that he had a “strong bond” with his children and that his
relationship with them was “beneficial.” Brief for appellant at
19. Upon our de novo review of the record, we cannot agree
with Steven’s characterization of the evidence presented at the
termination hearing. While there was limited evidence which
suggested that the children enjoyed visits with Steven, the
overwhelming evidence demonstrated that Steven’s relation-
ship with the children was harmful to them, and certainly
not beneficial.
As we discussed more thoroughly above, each of the chil-
dren have rather significant behavioral issues. During the
pendency of these proceedings while the children resided
in foster care, many of the children’s behaviors improved
or disappeared. However, whenever the children had visits
with their parents, the children regressed and their behaviors
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worsened. Steven Jr. would urinate or defecate on himself
either during or immediately after his visits with his parents.
Genevive would have nightmares for 3 or 4 days after each
visit. Similarly, Aodhan would struggle to sleep after visits.
He would “fight[]” in his sleep and ask to sleep with his foster
father for comfort. In addition, Aodhan would act out more
after visits, including acting younger than his age and using
inappropriate language. The children’s negative reactions to
visits coupled with the recommendations of the profession-
als involved with this case resulted in Steven’s visitation with
the children never transitioning from fully supervised visits.
Moreover, by the end of the proceedings, Steven was still only
seeing his children every other weekend. We agree with the
juvenile court’s statement that being a parent requires more
than attending brief visitations with the children every other
weekend. Such limited time with the children does little to
demonstrate either Steven’s parenting abilities or the strength
of his bond with his children.
Throughout the proceedings, Steven demonstrated an unwill-
ingness or an inability to take steps toward improving his hous-
ing situation, his financial circumstances, or his mental health.
As a result of Steven’s failure to make any progress on these
goals, he was no closer to achieving reunification with his
children than he was at the start of the proceedings in October
2017. At the termination hearing, Wiebesiek testified that ter-
mination of Steven’s parental rights was in the children’s best
interests for multiple reasons:
For lack of case plan progress and continued concerns
with sexual abuse. [Steven has] had two other children
removed from the home that have been adopted. There’s
been prior investigations throughout every child’s life,
including one that wasn’t [Steven’s] own child. There
ha[s] been a criminal charge of the sexual abuse for
another child.
....
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[There has been no] [f]inancial and housing stabil-
ity and [Steven is unable] to meet [Steven Jr.’s] needs
especially.
Wiebesiek also testified that Steven had not demonstrated any
consistent progress or stability.
Based upon our review of the record, we agree with
Wiebesiek’s testimony that termination of Steven’s parental
rights was in all three children’s best interests. The children
should no longer have to wait for Steven to put them ahead
of his own needs and wants. They should no longer have to
wait for Steven to decide to make improvements to his current
situation. The evidence presented revealed that Steven was
not a fit parent for his children and that he was not capable
of becoming a fit parent any time in the near future. The chil-
dren need, and deserve, permanency. As such, we affirm the
decision of the juvenile court which found that termination of
Steven’s parental rights was in Steven Jr.’s, Genevive’s, and
Aodhan’s best interests.
2. Jennette’s Cross-Appeal
At the outset, we note that Jennette failed to comply with
the rules regarding cross-appeals. See Neb. Ct. R. App. P.
§ 2-109(D)(4) (rev. 2014). Steven was the first party to file a
notice of appeal, and therefore, he was the appellant. However,
pursuant to Neb. Ct. R. App. P. § 2-101(C) (rev. 2015), once
a notice of appeal is filed, all other parties become appellees
and can file a cross-appeal. Here, Jennette properly designated
herself as an appellee and as a cross-appellant when she filed a
“BRIEF OF APPELLEE/CROSS APPELLANT.”
[8] As a cross-appellant, Jennette was required to comply
with the rules on cross-appeals, including the requirement
that she designate on the cover of her brief that it is a cross-
appeal, and set forth her cross-appeal in a separate division of
the brief entitled “Brief on Cross-Appeal.” See § 2-109(D)(4).
On her brief’s cover, Jennette does not specifically indicate
that the brief contains a cross-appeal; however, she does title
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her brief as “BRIEF OF APPELLEE/CROSS APPELLANT,
JENNETTE S[.]” Other than the cover, Jennette prepared her
brief as though she was an appellant, and while it does not
conform to § 2-109(D)(4) (“shall be set forth in a separate
division of the brief” entitled “Brief on Cross-Appeal”), it is
prepared consistent with § 2-109(D)(1) (requirements for brief
of appellant). Given Jennette’s failure to fully comply with
§ 2-109(D)(4), we must determine whether her brief suffi-
ciently complies with our appellate court rules in order for this
court to consider her assigned errors or, alternatively, whether
we should limit our examination of the record for plain error
only or provide no review at all. See, e.g., In re Interest of
Justine J. & Sylissa J., 288 Neb. 607, 849 N.W.2d 509 (2014)
(holding that where brief of party fails to comply with mandate
of § 2-109(D), appellate court may proceed as though party
failed to file brief or, alternatively, may examine proceedings
for plain error). We conclude that Jennette’s brief has complied
with the rules for an appellant’s brief which seeks affirma-
tive relief, and the cover of her brief states she is a “CROSS
APPELLANT,” thus notifying this court from the outset that
she is seeking affirmative relief. Her notification that affirma-
tive relief is being sought is critical to our decision, as we
discuss next.
Recently, in In re Interest of Becka P. et al., ante p. 489,
933 N.W.2d 873 (2019), this court considered the arguments
of an appellee and cross-appellant, despite the lack of full
compliance with § 2-109(D)(4). In In re Interest of Becka P.
et al., the juvenile court terminated the parental rights of both
parents. The father filed the only notice of appeal and was thus
the appellant. This court noted that all other parties became
appellees and could file a cross-appeal. The mother filed a
“‘Brief of Appellee on Cross Appeal,’” but otherwise, pre-
pared her brief in the form of an appellant’s brief and did not
separately respond to the father’s appellant’s brief other than
to accept his statement of the basis of jurisdiction and state-
ment of the case. In re Interest of Becka P. et al., ante at 511,
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933 N.W.2d at 889. This court stated: “Although [the moth-
er’s] brief violates the portion of the rule requiring a separate
section for a cross-appeal, because the form and presentation
of her assignments of error conform with the rules applicable
to an appellant’s brief, we may consider the arguments raised
in her brief.” Id. at 513, 933 N.W.2d at 890. In support, this
court cited to Knaub v. Knaub, 245 Neb. 172, 512 N.W.2d
124 (1994) (appellee designated himself on cover of brief as
appellant rather than as appellee/cross-appellant), and In re
Application A-16642, 236 Neb. 671, 463 N.W.2d 591 (1990)
(appellees designated themselves on cover of briefs as appel-
lants rather than as appellees and cross-appellants).
In Knaub v. Knaub, supra, an ex-husband sought to modify
child support and alimony; the district court dismissed his
action and assessed attorney fees against the ex-husband and
his attorney based on the action being frivolous. The attorney
filed the first notice of appeal in his own behalf (challeng-
ing sanctions), followed by the ex-husband filing a notice
of appeal. The Nebraska Supreme Court pointed out that
the attorney became the appellant and that the ex-husband
was thus an appellee. The Supreme Court observed that the
ex-husband
failed to designate his brief as a cross-appeal and failed
to set forth a separate section within his brief titled
“Brief on Cross-Appeal.” Although this violates our rule
regarding the presentation of a cross-appeal, the form
and presentation of [the ex-husband’s] assignments of
error conform with the rules applicable to an appel-
lant’s brief.
Id. at 175-76, 512 N.W.2d at 127. The Supreme Court proceeded
to consider the ex-husband’s arguments raised in his brief.
In In re Interest of Becka P. et al., supra, this court also dis-
tinguished In re Interest of Natasha H. & Sierra H., 258 Neb.
131, 602 N.W.2d 439 (1999), and In re Interest of Chloe P., 21
Neb. Ct. App. 456, 840 N.W.2d 549 (2013); both cases involved
juvenile court proceedings from which each parent appealed
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from a final order. In In re Interest of Natasha H. & Sierra H.,
258 Neb. at 144, 602 N.W.2d at 450, the father was the second
parent to file a notice of appeal; he titled his brief as “‘Brief of
Appellee.’” The Supreme Court noted that the father was “not
merely resisting the claims of the appellant,” but was “seeking
affirmative relief.” In re Interest of Natasha H. & Sierra H.,
258 Neb. at 144, 602 N.W.2d at 450. The Supreme Court cited
to several cases for the proposition that a cross-appeal must
be properly designated if affirmative relief is to be obtained,
but also cited to Knaub v. Knaub, supra, and In re Application
A-16642, supra, as cases where it had considered assigned
errors even though the appellee or cross-appellant had “mis-
takenly” designated themselves as appellants. In re Interest
of Natasha H. & Sierra H., 258 Neb. at 145, 602 N.W.2d at
450. The Supreme Court stated that the factor distinguish-
ing Knaub v. Knaub, supra, and In re Application A-16642,
supra, from the case before it was that in those two cases “a
party who was an appellee and should have cross-appealed
mistakenly designated itself as an appellant, rather than as a
cross-appellant,” whereas in the case before it, “the party that
should have cross-appealed designated itself as an appellee,
yet still sought affirmative relief.” In re Interest of Natasha H.
& Sierra H., 258 Neb. at 146, 602 N.W.2d at 451. The court
went on to state:
In short, the appellate courts of this state have always
refused to consider a prayer for affirmative relief where
such a claim is raised in a brief designated as that of an
appellee. We have, in the past, decided to entertain a pro-
cedurally defective cross-appeal only where such cross-
appeal has been mistakenly asserted as an appellant’s
brief. Even this is a matter left solely to the discretion of
the courts and does not imply a willingness to consider
such defective appeals in the future.
Parties wishing to secure appellate review of their
claims for relief must be aware of, and abide by, the rules
of this court and the Court of Appeals in presenting such
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claims. Any party who fails to properly identify and pre­
sent its claim does so at its peril. See State v. Woods, 255
Neb. 755, 587 N.W.2d 122 (1998). [The father] has not
complied with the rules of this court in the instant case,
and we decline to waive those rules on his behalf.
In re Interest of Natasha H. & Sierra H., 258 Neb. at 146-47,
602 N.W.2d at 451 (emphasis supplied).
In In re Interest of Chloe P., 21 Neb. Ct. App. at 470, 840
N.W.2d at 560, the father was the second to file a notice of
appeal and he titled his brief as “‘Brief of Appellee.’” Although
the father assigned errors and sought affirmative relief, he did
not designate a cross-appeal on the cover of his brief, nor did
he set forth a separate division of the brief designated as a
cross-appeal. Relying on In re Interest of Natasha H. & Sierra
H., supra, this court declined to waive the rules and address
the father’s assigned errors (noting, however, that the father’s
assigned error challenging the juvenile court’s adjudication
order was addressed in the section responding to the mother’s
assigned error on the same issue).
The key distinction in the above-cited cases is whether the
cover and content of the brief puts an appellate court on notice
that a party is seeking affirmative relief, whether identify-
ing as an appellant or a cross-appellant. Designation only as
an appellee does not provide such notification. Further, if an
appellee and cross-appellant’s position aligns with the appel-
lant’s position, as is often the case in juvenile court adjudica-
tions and parental termination cases, there is usually no reason
to separately respond as an appellee. Thus, if the cover of a
brief is sufficiently labeled to put the appellate court on notice
that affirmative relief is being sought, the absence of a sepa-
rately divided section in the brief designated “Brief on Cross-
Appeal” may not necessarily preclude full review so long as
there is compliance with the rules pertinent to the content of an
appellant’s brief. See § 2-109(D). However, if an appellee and
cross-appellant does respond to an appellant’s assigned errors,
a separately divided section titled “Brief on Cross-Appeal”
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would be necessary. We caution, however, that while an appel-
late court may decide to waive strict adherence to the briefing
rules under such circumstances, it is not required to do so. As
indicated earlier, a party who fails to comply with the appel-
late court rules does so at his or her peril. See In re Interest
of Natasha H. & Sierra H., 258 Neb. 131, 602 N.W.2d 439
(1999). Depending on the particulars of each case, failure to
comply with the mandate of § 2-109(D) may result in an appel-
late court proceeding as though the party failed to file a brief
or, alternatively, proceeding on a plain error review only. See In
re Interest of Justine J. & Sylissa J., 288 Neb. 607, 849 N.W.2d
509 (2014).
[9] In the present matter, Jennette, like the mother in In re
Interest of Becka P. et al., ante p. 489, 933 N.W.2d 873 (2019),
noted her desire to cross-appeal from the juvenile court’s
decision by her designation as “CROSS APPELLANT” on
the cover of her brief. Jennette also properly assigned errors
and raised her arguments on appeal in a manner consistent
with the requirements for an appellant’s brief as provided in
§ 2-109(D)(1). As in In re Interest of Becka P. et al., Jennette
did not include a separately divided section titled “Brief on
Cross-Appeal” because she did not respond to the arguments
raised by the appellant as would typically be seen in an appel-
lee’s brief. Accordingly, we conclude Jennette sufficiently put
this court on notice that she was seeking affirmative relief by
designating herself as a cross-appellant on the cover of her
brief and preparing it in compliance with § 2-109(D)(1); we
therefore waive the requirement that the cross-appeal be set
forth in a separate section of the brief when no appellee’s brief
responding to the appellant’s arguments is filed. An appellate
court may consider a party’s cross-appeal, even though the
party’s brief violated § 2-109(D)(4) requiring a separate sec-
tion for a cross-appeal, where the form and presentation of
the assignments of error in the party’s brief conformed with
§ 2-109(D)(1), which applies to an appellant’s brief.
We now consider the errors assigned in Jennette’s brief.
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(a) Statutory Factors
Jennette asserts that the juvenile court erred in finding that
termination of her parental rights was warranted pursuant to
§ 43-292(2) or (6). Contrary to Jennette’s assertions, upon our
de novo review of the record, we find that the State presented
clear and convincing evidence to prove that termination of
Jennette’s parental rights to her three children was warranted
pursuant to § 43-292(2). As in our analysis of Steven’s chal-
lenge to the statutory factors to support termination of his
parental rights, we find that the evidence presented at the hear-
ing revealed that Jennette had failed to provide her children
with necessary parental care and protection for a significant
period of time. She had also failed to put herself in a position
to achieve reunification after her children were removed from
her care.
During the 10 months the children were placed outside of
Jennette’s care, she failed to adequately renovate her home.
By the time of the termination hearing, the home remained
unsafe, unsanitary, and inappropriate for the children. There
was evidence that Jennette had made efforts to fix the prob-
lems with the home, and at one point, she was even setting
aside money in her budget to make renovations. However,
Jennette’s efforts in this regard seemed to taper off during the
summer of 2018, when Jennette voluntarily terminated her
employment for an unknown reason. Without a steady stream
of income, it was unclear how Jennette planned to maintain
and renovate the home so that it could be made appropriate
for the children.
Additionally, there was evidence presented at the hearing
that Jennette’s boyfriend was either living with her at her
home or was present at the home often. There was also evi-
dence that the children did not like Jennette’s boyfriend and
that the boyfriend had been “aggressive” toward Steven Jr.
Jennette’s choice to continue to have her boyfriend in her life
and in her home despite the objections of both her children
and the Department was concerning, especially in light of
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Stermensky’s belief that Jennette may allow individuals to be a
part of her and her children’s lives, even when that would not
be in the children’s best interests.
Also during the 10 months prior to the filing of the motion
to terminate her parental rights, Jennette failed to demonstrate
compliance with any sort of mental health treatment plan. She
indicated to Stermensky that she was unwilling to take neces-
sary medications. She also failed to prove that she was attend-
ing individual therapy. Stermensky indicated that medication
compliance and therapy could improve Jennette’s ability to
effectively parent her children. Her failure to take advantage
of the treatment available to her demonstrated an unwilling-
ness to make improvements in her own life for the sake of
her children.
Perhaps because of her ongoing mental health problems,
Jennette had demonstrated a long-term inability to care for
her children’s basic needs, including their medical care. Both
Steven Jr. and Aodhan suffered from significant physical
ailments while in Jennette’s custody, and the Department
became involved with the family multiple times as a result of
Jennette’s failure to obtain necessary medical care and failure
to keep the children clean and safe. Despite the years of assist­
ance provided to Jennette by the Department, she failed to
demonstrate any sustained improvement in either her parent-
ing skills or her ability to maintain a sanitary and safe home
environment. Moreover, evidence presented at the hearing
revealed that Jennette had previously had her parental rights
to two older children terminated as a result of her neglect of
their needs.
During the pendency of the current court proceedings,
Jennette attended visitation with the children on a regular
basis. However, as was the case with Steven, Jennette did
not always act appropriately during the visits. She routinely
discussed inappropriate topics with the children. She was
often unable to control the children’s behaviors and provided
inconsistent discipline. She did not give the children her full
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Cite as 27 Neb. Ct. App. 831
attention, even during the limited opportunities she had to
see them.
As the termination hearing approached, Jennette stopped
cooperating with the Department and its attempts to assist her.
Jennette lied to her caseworker about quitting her job. Jennette
pretended to be employed for months after she left her job.
Jennette also stopped letting the caseworker visit her home.
In both January and February 2018, Jennette was jailed on
charges of child abuse.
In our review of the record, we find sufficient evidence to
demonstrate that Jennette made very little progress toward
reunification with her children from the time of their removal
in October 2017 to the time the State filed its motion to ter-
minate her parental rights in July 2018. Jennette had demon-
strated an inability to provide the children with safety and
stability. She could not provide them with safe and appropriate
housing. She was not employed. She had chosen to live with
someone who did not have a positive relationship with the
children. Moreover, despite the numerous services offered to
Jennette by the Department, both during the current proceed-
ings and over the last decade, Jennette had demonstrated an
unwillingness to take the necessary steps to improve her par-
enting abilities.
Upon our de novo review of the record, we agree with the
juvenile court’s finding that the State presented sufficient evi-
dence to demonstrate that Jennette had substantially and con-
tinuously or repeatedly neglected and refused to give Steven
Jr., Genevive, and Aodhan necessary parental care and protec-
tion pursuant to § 43-292(2). As such, we turn to our analysis
of whether termination of Jennette’s parental rights was in the
children’s best interests.
(b) Best Interests
In her brief on appeal, Jennette argues that the juvenile court
erred in finding that termination of her parental rights was in
the children’s best interests. She asserts that she has a strong
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IN RE INTEREST OF STEVEN S. ET AL.
Cite as 27 Neb. Ct. App. 831
bond with the children and that “she has made improvements
in her parenting skills that can be used to provide for the needs
of her children.” Brief for appellee on cross-appeal at 14. Upon
our review, we affirm the decision of the juvenile court that
termination of Jennette’s parental rights was in the children’s
best interests.
Jennette did present evidence which demonstrated that she
made attempts to be involved in her children’s education and
that the children appeared content with Jennette. However,
the overwhelming evidence presented at the hearing revealed
that Jennette’s continued relationship with the children was
detrimental to their well-being. As we discussed in our analy-
sis of Steven’s appeal, the children had significant behavioral
issues when they were removed from Jennette’s care. During
the children’s time in foster care, their behaviors improved
somewhat. Despite this improvement, the children regressed
dramatically after visits with their parents. Genevive, in par-
ticular, appeared to react very negatively to seeing Jennette.
Genevive would have nightmares after visits. In these night-
mares, Jennette would appear as a “monster” or would be
“shooting people.” By the time of the termination hearing,
Jennette was seeing her children for a brief period of time
every other weekend. Such limited contact with the children
and with such negative behaviors occurring after that contact
was not indicative of a strong bond between Jennette and
the children.
Despite Jennette’s contentions in her brief on appeal, the
evidence presented at the hearing did not reveal that she had
made progress toward becoming an appropriate and effective
parent. Jennette did obtain employment during the court pro-
ceedings. However, by the time of the hearing, she had vol-
untarily terminated this employment. Jennette had made some
improvements on her home, but not enough improvements to
make it a safe or sanitary living environment. Jennette failed
to follow the recommendations of Stermensky and did not
address her mental health problems. She was jailed twice on
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IN RE INTEREST OF STEVEN S. ET AL.
Cite as 27 Neb. Ct. App. 831
charges of child abuse. She chose to continue a relationship
with a man who did not get along with her children. Taken
together, the evidence presented revealed that Jennette’s cir-
cumstances had remained virtually unchanged since the initia-
tion of the court proceedings.
At the termination hearing, Wiebesiek testified that Jennette
had made poor progress since the removal of her children.
Wiebesiek explained that Jennette had made no improvements
in parenting skills and failed to follow through with the tenets
of the court-ordered case plan. Wiebesiek opined that ter-
mination of Jennette’s parental rights was in the children’s
best interests.
Based upon our review of the evidence, we agree with
Wiebesiek’s opinion that termination of Jennette’s parental
rights was in all three children’s best interests. The children
should no longer have to wait for Jennette to put them ahead
of her own needs and wants. Jennette is currently not a fit
parent, and given her lengthy history of involvement with the
Department, it appears that she will not become a fit and capa-
ble parent any time in the near future. We affirm the decision
of the juvenile court which found that termination of Jennette’s
parental rights was in Steven Jr.’s Genevive’s, and Aodhan’s
best interests.
VI. CONCLUSION
We conclude that the State proved statutory grounds for
termination of Steven’s and Jennette’s parental rights to Steven
Jr., Genevive, and Aodhan and proved that termination is in the
children’s best interests. As such, we affirm the decision of the
juvenile court.
Affirmed.
Arterburn, Judge, concurring.
I agree with the analysis in the court’s opinion as to Steven’s
appeal. I also agree that the evidence presented at the termi-
nation hearing was sufficient to support the county court’s
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IN RE INTEREST OF STEVEN S. ET AL.
Cite as 27 Neb. Ct. App. 831
determination that Jennette’s parental rights should be ter-
minated. However, I disagree with the manner in which the
majority herein has reached its decision. I take this position
based on my reading of the case law relating to the issue of
compliance with Neb. Ct. R. App. P. § 2-109(D)(4) (rev. 2014),
case law that should, in my opinion, be reexamined.
The decision to terminate a mother’s or father’s parental
rights is among the most serious and difficult decisions a court
is called upon to make. Unfortunately, the appellate courts
of this state have frequently been asked to weigh whether
a person’s fundamental right to parent their child should be
affected by procedurally deficient briefs filed on behalf of
that parent. This scenario frequently occurs when the second
parent to seek appellate review of a trial court’s decision to
terminate parental rights fails to follow the requirements of
§ 2-109(D)(4). In cases decided by this court in 2018, and thus
far in 2019, there have been at least six occasions where the
second parent to file a notice of appeal and/or brief did not
follow the requirements of the rule.
Before proceeding, I must make mention of appellate coun-
sel’s obligation to be conversant with the Nebraska Court
Rules of Appellate Practice. Our Supreme Court has warned
parties that those who fail to abide by these court rules do so
at their own peril. Despite this warning, this issue continues to
arise repeatedly in termination of parental rights cases.
Part of the confusion may lie in the fact that in most ter-
mination cases, the interests of the father and mother are not
adverse. As a result, the second parent to appeal in essence
has no response or argument with the appellant’s conten-
tions, so there is no obvious need to write a responsive brief.
That parent is more akin to an appellant than an appellee.
Interestingly, Neb. Rev. Stat. § 25-1913 (Reissue 2016) pro-
vides that the party asking for reversal, vacation, or modifica-
tion of a final order is to be designated as appellant, and the
adverse party is to be designated as appellee. In termination
cases, the term “appellant” more correctly describes the second
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parent to either file their notice of appeal or their brief. That
person is clearly seeking reversal of the trial court’s order,
and typically, the only parties that are adverse to their inter-
ests are the State and/or the guardian ad litem. Even given
this potential confusion, however, there is ample case law
warning of the consequences of failing to follow the rules of
appellate practice.
Section 2-109(D)(4) provides:
Where the brief of appellee presents a cross-appeal, it
shall be noted on the cover of the brief and it shall be set
forth in a separate division of the brief. This division shall
be headed “Brief on Cross-Appeal” and shall be prepared
in the same manner and under the same rules as the brief
of appellant.
Our Supreme Court addressed this issue in In re Interest
of Natasha H. & Sierra H., 258 Neb. 131, 602 N.W.2d 439
(1999). In that case, the parental rights of both parents were
terminated by the trial court. The father’s notice of appeal was
filed after the mother’s notice of appeal. His brief was titled
as “‘Brief of Appellee.’” In re Interest of Natasha H. & Sierra
H., 258 Neb. at 144, 602 N.W.2d at 450. The court noted that
the father was indeed an appellee as provided by § 25-1913.
However, since the father was seeking affirmative relief, he
was required to follow the dictates of the court rule. The court
stated, “The appellate courts of this state have repeatedly indi-
cated that a cross-appeal must be properly designated, pursu-
ant to rule 9D(4) [now § 2-109(D)(4)], if affirmative relief
is to be obtained.” In re Interest of Natasha H. & Sierra H.,
258 Neb. at 145, 602 N.W.2d at 450. Since no cross-appeal
was properly designated, the court refused to consider the
father’s claim for relief. The court acknowledged that cases
had arisen where the court did entertain procedurally defective
cross-appeals where those cross-appeals had been mistakenly
asserted as an appellant’s brief, but noted that this matter is
left solely to the discretion of the courts and “does not imply
a willingness to consider such defective appeals in the future.”
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Id. at 147, 602 N.W.2d at 451. See, also, Knaub v. Knaub, 245
Neb. 172, 512 N.W.2d 124 (1994); In re Application A-16642,
236 Neb. 671, 463 N.W.2d 591 (1990). The court concluded
by stating: “Parties wishing to secure appellate review of their
claims for relief must be aware of and abide by, the rules of
this court and the Court of Appeals in presenting such claims.”
In re Interest of Natasha H. & Sierra H., 258 Neb. at 147, 602
N.W.2d at 451. The court then declined to waive the rules on
the father’s behalf.
This court considered a similar case in In re Interest of
Chloe P., 21 Neb. Ct. App. 456, 840 N.W.2d 549 (2013). In In re
Interest of Chloe P., after the father filed his notice of appeal,
the appellate clerk notified him that his notice would be treated
as a second notice of appeal and referred him to Neb. Ct. R.
App. P. § 2-101(C) (rev. 2015). The father correctly designated
himself as an appellee, but failed to follow the instructions of
§ 2-101(C) which direct an appellee to follow the requirements
set forth in § 2-109(D)(4). In that case, we held:
Based upon our court rules, [the father], as an appel-
lee, was required to identify his cross-appeal on the cover
of his brief and in a separate section in compliance with
§ 2-109(D)(4). As in In re Interest of Natasha H. & Sierra
H., supra, we decline to waive the rules on his behalf and
to award him affirmative relief.
In re Interest of Chloe P., 21 Neb. Ct. App. at 472, 840 N.W.2d
at 561.
Most recently, this court addressed a case wherein the
mother (who filed her brief after the father filed his notice
of appeal) failed to comply with § 2-109(D)(4). In re Interest
of Becka P. et al., ante p. 489, 933 N.W.2d 873 (2019). The
mother properly designated herself as an appellee. On the
cover of her brief, she wrote “‘Brief of Appellee on Cross
Appeal.’” In re Interest of Becka P. et al., ante at 511, 933
N.W.2d at 889. However, she did not set forth her cross-appeal
in a separate section of the brief. Rather, her brief was written
simply as if she was an appellant. The court distinguished the
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case from In re Interest of Chloe P., supra, and In re Interest
of Natasha H. & Sierra H., 258 Neb. 131, 602 N.W.2d 439
(1999), finding that even though there was not a separate
section for the cross-appeal, as is required by § 2-109(D)(4),
“because the form and presentation of her assignments of error
conform with the rules applicable to an appellant’s brief, we
may consider the arguments raised in her brief.” In re Interest
of Becka P. et al., ante at 513, 933 N.W.2d at 890 (citing
Knaub v. Knaub, supra, and In re Application A-16642, supra).
Though this appears to be at least a partial waiver of the rule,
the court did not utilize any language of waiver.
The majority opinion of the court in this case follows the
precedent set in In re Interest of Becka P. et al., supra. Here,
the cover of Jennette’s brief designates her as an appellee
and a cross-appellant and designates the brief as “Brief of
Appellee/Cross Appellant.” As such, this case is essentially on
all fours with In re Interest of Becka P. et al., and according
to that precedent, Jennette’s assignments of error should be
addressed on the merits. While I agree that Jennette deserves
to have a full analysis of her case on the merits, I believe that
the precedent set in In re Interest of Becka P. et al. may run
afoul of the holding in In re Interest of Natasha H. & Sierra
H., and certainly departs from the holding in In re Interest
of Chloe P., which requires compliance with all aspects of
§ 2-109(D)(4).
The holding in In re Interest of Becka P. et al., supra,
moves the line a bit farther toward easing compliance with our
court rule without fully waiving the rule. Under In re Interest
of Chloe P., 21 Neb. Ct. App. 456, 840 N.W.2d 549 (2013), we
required that the cross-appeal be identified on the cover of the
brief and that a separate section devoted to the cross-appeal as
prescribed by the court rule be included. Under In re Interest
of Becka P. et al., the requirement of a separate section is
no longer needed so long as the form of the brief and pres­
entation of assignments of error conform to the rules of an
appellant’s brief under § 2-109(D)(1). The difficulty with this
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finding (aside from its potential conflict with the holding in In
re Interest of Natasha H. & Sierra H.) is that it simply trades
one fine line for another.
As our case law stands now, if the second parent to file an
appeal or brief were to designate himself or herself only as
an appellee (or perhaps as an appellant), without designating
the brief as a cross-appeal, we would find that that parent had
run afoul of the rule and would not hear his or her case on
the merits even if the brief otherwise fully complied with the
rules applicable to an appellant’s brief. At best, we may give
them plain error review. See, e.g., In re Interest of Justine J.
& Sylissa J., 288 Neb. 607, 849 N.W.2d 509 (2014) (hold-
ing that where brief of party fails to comply with mandate
of § 2-109(D), appellate court may proceed as though party
failed to file brief or, alternatively, may examine proceedings
for plain error); In re Interest of Samantha L. & Jasmine L.,
286 Neb. 778, 839 N.W.2d 265 (2013). However, if the second
parent were to designate his or her brief as a cross-appeal on
the cover, and present us with an otherwise identical brief, that
parent would receive a full review. In other words, full review
may depend on whether the word “cross” is found some-
where on the cover of the brief in conjunction with the words
“appeal” or “appellant.”
This fine line raises the question of whether § 2-109(D)(4)
should be strictly applied at all to termination of parental
rights cases. Should the decision of whether a father’s or
mother’s right to parent his or her child potentially turn on
whether one simple word appears on the cover of a brief?
In the present case, the ultimate result would not change.
Whether we review Jennette’s claims on the merits, conduct
a plain error analysis, or simply refuse to review the matter
due to noncompliance with the rule, we would affirm the ter-
mination of Jennette’s parental rights. That will not be true of
every case, however.
For this reason, I cannot join in the final section of the
opinion of the court regarding Jennette’s cross-appeal. In my
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view, we have two paths that can be followed: (1) strictly fol-
low prior case law and require full compliance with our court
rule as was done in In re Interest of Natasha H. & Sierra H.,
258 Neb. 131, 602 N.W.2d 439 (1999), and as this court did
in In re Interest of Chloe P., supra, or (2) simply exercise
our discretion and waive the rule as is also authorized by In
re Interest of Natasha H. & Sierra H. Given the fundamental
nature of a person’s right to parent their child, I favor the
latter so long as the brief complies with the rules governing
an appellant’s brief. I do not believe that gradually cutting
back on the enforcement of § 2-109(D)(4) as prescribed by
In re Interest of Becka P. et al., ante p. 489, 933 N.W.2d 873
(2019), and followed herein, promotes clarity in the law or
will result in a just result for all parents whose parental rights
hang in the balance. In this case, Jennette’s brief does meet
the requirements of an appellant’s brief under § 2-109(D)(1).
She is seeking reversal of a final order. Her interests are not
adverse to those of Steven. As defined by § 25-1913, she is
an appellant. Considering these factors in conjunction with
the fundamental right a person has to parent their children, I
believe the better course would be to simply waive all of the
requirements of § 2-109(D)(4) as the pertinent case law allows
us to do.