In re Interest of Jade H.

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IN RE INTEREST OF JADE H. ET AL.
Cite as 25 Neb. Ct. App. 678
In re I nterest of Jade H. et al.,
children under 18 years of age.
State of Nebraska, appellee,
v. Benjamin T., appellant.
___ N.W.2d ___
Filed March 27, 2018. No. A-17-513.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juve-
nile cases de novo on the record and reaches its conclusions indepen-
dently of the juvenile court’s findings. When the evidence is in conflict,
however, an appellate court may give weight to the fact that the lower
court observed the witnesses and accepted one version of the facts over
the other.
2. Parental Rights: Proof. In order to terminate parental rights, a court
must find clear and convincing evidence that one of the statutory
grounds enumerated in Neb. Rev. Stat. § 43-292 (Reissue 2016) exists
and that termination is in the child’s best interests.
3. Parental Rights. Neb. Rev. Stat. § 43-292(9) (Reissue 2016) allows
for terminating parental rights when the parent of the juvenile has sub-
jected the juvenile or another minor child to aggravated circumstances,
including, but not limited to, abandonment, torture, chronic abuse, or
sexual abuse.
4. ____. Whether aggravated circumstances under Neb. Rev. Stat.
§ 43-292(9) (Reissue 2016) exist is determined on a case-by-case basis.
5. Parental Rights: Words and Phrases. Where the circumstances created
by the parent’s conduct create an unacceptably high risk to the health,
safety, and welfare of the child, they are aggravated.
6. Parental Rights: Minors: Words and Phrases. The term “aggravated
circumstances,” as used in Neb. Rev. Stat. § 43-283.01(4)(a) (Reissue
2016), embodies the concept that the nature of the abuse or neglect must
have been so severe or repetitive that to attempt reunification would
jeopardize and compromise the safety of the child and would place the
child in a position of an unreasonable risk to be reabused.
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IN RE INTEREST OF JADE H. ET AL.
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7. Parental Rights. The failure of a parent to seek medical treatment for
a child when the child has suffered physical injuries meets the statutory
requirement of Neb. Rev. Stat. § 43-292(9) (Reissue 2016).
8. Parental Rights: Proof. Only one statutory ground for termination need
be proved in order for parental rights to be terminated.
9. Parental Rights: Juvenile Courts. Reasonable efforts to reunify a fam-
ily are required under the juvenile code only when termination is sought
under Neb. Rev. Stat. § 43-292(6) (Reissue 2016).
10. Parental Rights: Proof. In addition to proving a statutory ground, the
State must show that termination is in the best interests of the child.
11. Constitutional Law: Parental Rights: Proof. A parent’s right to raise
his or her child is constitutionally protected; so before a court may ter-
minate parental rights, the State must also show that the parent is unfit.
12. Parental Rights: Presumptions: Proof. There is a rebuttable presump-
tion that the best interests of a child are served by having a relationship
with his or her parent. Based on the idea that fit parents act in the best
interests of their children, this presumption is overcome only when the
State has proved that the parent is unfit.
13. Parental Rights: Statutes: Words and Phrases. The term “unfitness”
is not expressly used in Neb. Rev. Stat. § 43-292 (Reissue 2016), but
the concept is generally encompassed by the fault and neglect subsec-
tions of that statute, and also through a determination of the child’s
best interests.
14. Child Custody: Words and Phrases. 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 has caused, or probably will result in, detriment to a
child’s well-being.
15. Parental Rights. The best interests analysis and the parental fitness
analysis are fact-intensive inquiries. And while both are separate inquir­
ies, each examines essentially the same underlying facts as the other.
Appeal from the Separate Juvenile Court of Douglas County:
Christopher K elly, Judge. Affirmed.
Darren J. Pekny and Courtney R. Ruwe, of Johnson &
Pekny, L.L.C., for appellant.
Donald W. Kleine, Douglas County Attorney, Sarah
Schaerrer, and Laura Elise Lemoine, Senior Certified Law
Student, for appellee.
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IN RE INTEREST OF JADE H. ET AL.
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Pirtle, R iedmann, and A rterburn, Judges.
Pirtle, Judge.
INTRODUCTION
Benjamin T. appeals the order of the separate juvenile
court of Douglas County terminating his parental rights to
his three children. He challenges the juvenile court’s find-
ing that the minor children came within the meaning of Neb.
Rev. Stat. § 43-292(2), (8), (9), and (10)(d) (Reissue 2016);
that no reasonable efforts were required under Neb. Rev. Stat.
§ 43-283.01 (Reissue 2016); and that termination was in the
best interests of the children. Following our de novo review of
the record, we affirm.
BACKGROUND
Benjamin is the father of Jade H., Aly T., and Kazlynn T.,
born May 2015, January 2010, and June 2008, respectively.
On the afternoon of October 24, 2016, the children were in
Benjamin’s vehicle, which he was driving, when a collision
occurred. All the children were properly restrained in the back
seat. Kazlynn was severely injured in the collision and placed
on life support. Aly was unconscious after the accident and had
serious injuries, but was doing well at the time of the termina-
tion hearing. Jade suffered only minor injuries. The children
were placed in protective custody the next day.
Immediately after the accident, Randy Plugge, the driver
of the other vehicle involved in the collision, got out of his
vehicle and went over to Benjamin’s vehicle to see if he
was all right. Plugge talked to him briefly and said he was
going to call the 911 emergency dispatch service. Plugge
did not see the children in the back seat because airbags had
deployed. When Plugge walked away from Benjamin’s vehi-
cle, Benjamin drove off. Benjamin drove to a park where an
Omaha police officer found him disposing of alcohol that had
been in his vehicle.
In November 2016, the State filed an “Amended Petition
and Termination of Parental Rights” alleging that the children
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came within the meaning of Neb. Rev. Stat. § 43-247(3)(a)
(Reissue 2016); that reasonable efforts under § 43-283.01 were
not required because Benjamin had subjected the children to
aggravating circumstances and had committed a felony assault
which resulted in serious bodily injury to them; and that ter-
mination of Benjamin’s parental rights was warranted under
§ 43-292(2), (8), (9), and (10), which termination was in the
children’s best interests.
The evidence at trial showed that for the 4 to 5 years
before trial, Benjamin was the primary caregiver for Jade,
Aly, and Kazlynn, and was the only person they knew as a
parent. Jade was placed in foster care when she was 6 weeks
old due to her mother’s alcohol addiction, but Benjamin
received placement and eventual custody of Jade when she
was 9 months old.
After the accident, Aly and Jade were placed in the care of
the woman who had been Jade’s foster mother when she was
removed from her mother’s care at 6 weeks old. From the time
they were placed with her until the termination trial, Benjamin
maintained contact from jail with Aly and Jade through tele-
phone calls. Telephone calls would occur once or twice per
week, and the foster mother testified that all conversations
were appropriate. She testified that Aly would tell Benjamin
she loved him. Aly also prayed for him every night. The foster
mother testified that she believed it was in Aly’s best interests
to continue to have contact with Benjamin.
Plugge, the other driver involved in the accident, testified
that he was going straight at the intersection where the acci-
dent occurred and his light was green. He stated that he was
driving “either 40 or 50” miles per hour and that he believed
the speed limit was 45 miles per hour. Plugge denied stating to
Benjamin that he was sorry and that he did not see him. He tes-
tified that he asked Benjamin why he had “run the red light.”
Plugge also denied that Benjamin told him his children were
in the vehicle and he needed to get to a hospital. However,
Omaha police officer Matthew Kelly testified that Plugge told
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him that after the accident, Benjamin yelled from his vehicle
that he was taking his children to the hospital.
Kelly also testified that Plugge told him he had a green light
at the intersection, but there were no independent witnesses
to the accident that could verify which direction of traffic had
the green light at the time of the collision. Kelly testified that
Benjamin’s statement in regard to his location and the direc-
tion he was headed at the time of the collision was inconsist­
ent with what he found at the scene. Kelly stated that in his
opinion, Plugge had a green light and Benjamin had a red light
at the time of the collision, and that his opinion was based on
Plugge’s statement that he had a green light and on Benjamin’s
inconsistent statements. Kelly testified that he could not tell
who “ran the red light” based on the evidence at the scene of
the accident.
Omaha police officer Jodi Sautter testified that after the
accident, she was the officer that located Benjamin at the
park, which was about 16 blocks from the scene of the acci-
dent. As she drove into the park, she saw Benjamin’s vehicle
and observed Benjamin running away from the vehicle. When
she got closer, Benjamin appeared to throw something into a
trash can and started walking back toward his vehicle. Sautter
told Benjamin to get on the ground, and she restrained him.
She testified that she could smell an odor of alcohol when
she handcuffed him. At that time, Benjamin stated that his
children were in the vehicle. She looked inside the vehicle
and saw that the children were badly injured. Sautter called
for medical assistance and began trying to help the children.
Aly and Kazlynn were both unconscious. Kazlynn had a
hematoma on the top of her head and was bleeding from her
nose and mouth. Sautter testified that she could also smell
alcohol inside the vehicle and that she observed an open can
of beer spilled on the floorboard on the driver’s side of the
vehicle. Sgt. John Wells testified that there was also a beer
can on the floorboard of the passenger side, as well as a bottle
of whiskey in the vehicle. Wells also testified that the trash
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can, which Sautter had observed Benjamin throwing some-
thing into, contained two unopened cans of beer and a bottle
of whiskey.
Omaha police officer Nicholas Andrews testified that he did
an investigation of Benjamin for driving under the influence of
alcohol (DUI). He testified that he could smell an odor of alco-
hol when Benjamin was in the back seat of his police cruiser.
He stated that Benjamin had bloodshot eyes, slurred speech,
and a “disheveled look.” Andrews had Benjamin perform field
sobriety tests which indicated Benjamin was impaired. He
subsequently had Benjamin do a preliminary breath test, which
Benjamin failed. Andrews stated that based on the field sobri-
ety tests and the preliminary breath test, Benjamin was under
the influence of alcohol such that he could not safely operate
a motor vehicle.
Omaha police officer Kevin O’Keefe interviewed Benjamin
at the hospital after the accident. Benjamin told him he had
consumed one beer and two wine coolers before the accident.
He also stated that he was on two prescription medications
and that he felt the effects of those more than the effect of the
alcohol he had consumed. Benjamin told O’Keefe that after the
collision, he saw Kazlynn bleeding from her mouth and left the
scene to take the children to the hospital. O’Keefe testified that
when he asked Benjamin about discarding alcohol in a trash
can after the accident, Benjamin did not believe he did so.
Benjamin admitted there was alcohol in his vehicle, but said it
was not open. O’Keefe testified that Benjamin did not specifi-
cally say he had a green light at the time of the collision, but
did state that the accident was Plugge’s fault.
Following the accident, Benjamin was transported to the
hospital where blood was drawn from him for testing. The
nurse that drew Benjamin’s blood testified that Benjamin told
her he looked at the children in the back seat after the acci-
dent and got scared. The laboratory report with the results
of Benjamin’s blood test was entered into evidence, as well
as testimony from the forensic chemist who tested the blood.
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The results showed that Benjamin’s blood alcohol content was
“.115 plus or minus .003 grams of ethanol per 100 milliliters of
blood.” There was also evidence that Benjamin had been con-
victed of DUI four times prior to the accident. The convictions
were in 2003, 2005, 2007, and 2009.
Dr. Andrew Macfadyen, an attending physician in the pediat-
ric intensive care unit (ICU) at the hospital, testified regarding
the medical condition of Aly and Kazlynn after the accident.
Macfadyen testified that when Aly came into the ICU, she
was not opening her eyes and would only respond to painful
stimuli. Aly had a small hemorrhage in the part of her brain
“known as the internal capsule,” a concussion, and a bruise on
her lung. She was in the ICU for 3 days with a severe traumatic
brain injury. He testified that she improved during the course
of those 3 days and was transferred from ICU to a regular hos-
pital floor.
In regard to Kazlynn, Macfadyen testified that he first saw
her the morning after the accident. She had a breathing tube
and would only move her eyes a little bit in response to painful
stimuli, but otherwise did not move. She had hemorrhaging in
part of her “internal capsule,” a skull fracture, a jaw fracture,
severe swelling of her brain, and a laceration on her forehead
and on her chin. Her pituitary gland, which is considered part
of the brain, was also injured. Macfadyen testified that swell-
ing of the brain is a very serious injury and often results in
permanent injury to the brain. As a result of the swelling, a
neurosurgeon had to remove parts of her skull on each side of
her brain to allow her brain to keep swelling, otherwise she
would have died from the swelling. Macfadyen testified that a
CT scan performed a few days later showed that her condition
was getting worse. He also stated that a physical examina-
tion indicated she had a severe brain injury. In Macfadyen’s
opinion, all areas of her brain were affected and she will never
completely recover.
Macfadyen testified that Kazlynn’s long-term prognosis is
“really, really bad” and that she is going to be “neurologically
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devastated.” He testified that someone is going to have to care
for her for the rest of her life. Macfadyen testified that he does
not expect her to ever walk, talk, or be aware of her environ-
ment. He stated that the best that could be hoped for was that
“maybe she could hear somebody, maybe respond to a voice,
maybe something might make her happy.”
Macfadyen testified that an injury to the head or brain
should be treated immediately. Any delay in treating a brain
injury results in more damage to the brain and worsens the
outcome. He stated, “In Kazlynn’s case specifically, a delay
in her care [following the accident] would have worsened
her outcome.”
Macfadyen testified that when Kazlynn left his care in the
ICU, she was not breathing on her own. He testified that at
the time of the termination trial, Kazlynn was breathing on her
own but did not respond to voices or music. A CAT scan from
February 2017 showed that there are areas of her brain that are
“gone” and that there are “large holes” where those parts of
her brain used to be. He testified that she has not and will not
recover from her brain injury.
The foster mother testified that when Jade was placed in her
care the first time, Benjamin had supervised visits with Jade,
and that during those times, she observed his interactions with
Jade, as well as with Aly and Kazlynn. The foster mother tes-
tified that it appeared to her that Benjamin had a bond with
his children and that it was apparent they loved him and he
loved them. She testified that he seemed to appropriately care
for the children “for the most part.” On cross-examination, the
foster mother testified that the first time she met Benjamin at
his home she believed he had been drinking. She testified that
her belief was based on Benjamin’s behavior and actions, as
well as the fact that she saw alcohol in the home and could
smell an odor of alcohol. She also testified that she was
concerned about Benjamin’s drinking at Jade’s first birthday
party. She testified that there “was a lot of drinking going on
at the birthday party” and that it seemed like Benjamin “could
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not stop drinking that day.” The foster mother testified that
throughout the time she has known Benjamin, “he seemed to
drink a lot.”
The case manager for Benjamin and the children testified
that Benjamin has been at a correctional center since she was
assigned to the case in October 2016. She testified that there
had been three previous intakes in regard to Benjamin, one of
which was in 2015 and alleged that Benjamin was “passed out
and puking all the time, and that he was intoxicated and that
the children were having to make their own meals.” However,
the case manager testified that nothing was ever filed on
Benjamin. She also testified that based on Benjamin’s prior
DUI convictions and the prior intakes related to Benjamin’s
alcohol issues, she opined that it was in the children’s best
interests to terminate Benjamin’s parental rights.
Following trial, the juvenile court adjudicated the chil-
dren and terminated Benjamin’s parental rights based on
§ 43-292(2), (8), (9), and (10) and found that termination was
in their best interests. The court also found that reasonable
efforts were not required under § 43-283.01.
ASSIGNMENTS OF ERROR
Benjamin assigns that the juvenile court erred in (1) finding
the children came within the meaning of § 43-292(2), (8), (9),
and (10); (2) finding that reasonable efforts were not required
under § 43-283.01; and (3) finding that termination of his
parental rights was in the best interests of the children.
STANDARD OF REVIEW
[1] An appellate court reviews juvenile cases de novo on
the record and reaches its conclusions independently of the
juvenile court’s findings. In re Interest of LeVanta S., 295 Neb.
151, 887 N.W.2d 502 (2016). When the evidence is in conflict,
however, an appellate court may give weight to the fact that
the lower court observed the witnesses and accepted one ver-
sion of the facts over the other. Id.
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ANALYSIS
Statutory Grounds.
[2] In order to terminate parental rights, a court must
find clear and convincing evidence that one of the statutory
grounds enumerated in § 43-292 exists and that termination
is in the child’s best interests. In re Interest of Austin G., 24
Neb. Ct. App. 773, 898 N.W.2d 385 (2017). In the present case,
the juvenile court found that the State established by clear and
convincing evidence that grounds for termination existed under
§ 43-292(2), (8), (9), and (10).
[3-5] Section 43-292(9) allows for terminating parental
rights when the parent of the juvenile has subjected the
juvenile or another minor child to aggravated circumstances,
including, but not limited to, abandonment, torture, chronic
abuse, or sexual abuse. In re Interest of Elijah P. et al., 24
Neb. Ct. App. 521, 891 N.W.2d 330 (2017). Whether aggravated
circumstances under § 43-292(9) exist is determined on a
case-by-case basis. In re Interest of Elijah P. et al., supra. The
Legislature has not defined “aggravated circumstances” in the
juvenile code, but the Supreme Court has stated that “‘where
the circumstances created by the parent’s conduct create an
unacceptably high risk to the health, safety, and welfare of the
child, they are “aggravated” . . . .’” In re Interest of Jac’Quez
N., 266 Neb. 782, 791, 669 N.W.2d 429, 436 (2003), quot-
ing New Jersey Div. v. A.R.G., 361 N.J. Super. 46, 824 A.2d
213 (2003).
[6] The term “aggravated circumstances,” as used in
§ 43-283.01(4)(a), embodies the concept that the nature of the
abuse or neglect must have been so severe or repetitive that
to attempt reunification would jeopardize and compromise the
safety of the child and would place the child in a position of
an unreasonable risk to be reabused. In re Interest of Jac’Quez
N., supra.
[7] Based on our de novo review of the record, we conclude
that the State proved that the children came within the mean-
ing of § 43-292(9) by clear and convincing evidence. The
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Nebraska Supreme Court has found that the failure of a par-
ent to seek medical treatment for a child when the child has
suffered physical injuries meets the statutory requirement of
§ 43-292(9). See In re Interest of Jac’Quez N., supra. In the
present case, Benjamin failed to get his injured children medi-
cal treatment after the accident.
In In re Interest of Jac’Quez N., supra, the Supreme Court
concluded that aggravated circumstances existed where the
parents delayed seeking medical attention for 2 days when the
child suffered obvious, serious physical injuries. The juvenile
court had terminated the father’s parental rights under two sub-
sections of § 43-292, including subsection (9), but determined
the State had failed to meet its burden of proof as to the mother
and did not terminate her rights. The State appealed, and the
Supreme Court reversed the juvenile court’s finding in regard
to the mother. The Supreme Court concluded that although
the evidence did not tend to establish the mother inflicted the
initial injuries on the child, it clearly and convincingly estab-
lished that she delayed seeking medical treatment for 48 hours
after the child had received obvious and serious injuries, thus
severely neglecting his medical needs. The mother did not seek
medical treatment sooner, because she feared the child would
be taken from her.
The present case is similar to In re Interest of Jac’Quez N.,
supra, in that Aly’s and Kazlynn’s injuries were obvious and
serious after the accident. Police officers testified that Aly
and Kazlynn were both unconscious in the back seat of the
vehicle and that Kazlynn was bleeding profusely from a head
wound and a cut to the neck area. There was evidence that at
the scene of the crash, Benjamin told Plugge that he needed to
get his children to the hospital. Further, in Benjamin’s inter-
view with the police following the accident, he stated that he
looked at the children in the back seat and saw that Kazlynn
was bleeding so he wanted to get the children to the hospi-
tal. Benjamin also told the nurse who drew his blood that he
looked at the children in the back seat after the accident and
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got scared. The evidence demonstrates that Benjamin was
well aware that his children were injured and in immedi-
ate peril.
Despite knowing that the children were seriously injured,
Benjamin did not get the children medical care. Rather, he
fled the scene of the accident prior to the arrival of emer-
gency medical personnel and drove about 16 blocks to a park
where he disposed of incriminating alcohol in the vehicle. He
delayed seeking medical treatment in an effort to protect him-
self from suspicion.
There was evidence from Macfadyen that an injury to the
head or brain should be treated immediately and that any delay
in treating a brain injury results in more damage to the brain
and worsens the outcome than if it had been treated imme-
diately. He stated, “In Kazlynn’s case specifically, a delay
in her care [following the accident] would have worsened
her outcome.”
As in In re Interest of Jac’Quez N., 266 Neb. 782, 669
N.W.2d 429 (2003), the evidence in the instant case estab-
lished that Benjamin failed to get his children medical treat-
ment when they had obvious and serious physical injuries, thus
severely neglecting their medical needs. His failure to immedi-
ately seek medical care for his children was a conscious, inten-
tional decision made in an effort to protect himself despite
knowing the children needed medical attention.
The evidence of Benjamin’s failure to seek medical treat-
ment for the children for his own personal gain is not the
only evidence we have taken into account in concluding that
Benjamin subjected his children to aggravated circumstances
in accordance with § 43-292(9). There was evidence that
Benjamin has had an alcohol problem for an extended period
of time. At the time of the accident, Benjamin had four prior
DUI convictions dating as far back as 2003, with the most
recent conviction being in 2009. The foster mother testified
that the first time she met Benjamin, she believed he had been
drinking based in part on his behavior. At Jade’s first birthday
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party, the foster mother had concerns about Benjamin’s drink-
ing. She testified that throughout the time she has known him,
“he seemed to drink a lot.”
Further, Benjamin was intoxicated at the time of the acci-
dent on the afternoon of October 24, 2016. Andrews, the
officer who had Benjamin perform field sobriety tests and
a preliminary breath test, testified that based on those tests,
Benjamin was under the influence of alcohol such that he
could not safely operate a motor vehicle. The results of
Benjamin’s blood test showed that his blood alcohol content
was “.115 plus or minus .003 grams of ethanol per 100 mil-
liliters of blood.” Despite being intoxicated, Benjamin put his
children in the vehicle and transported them, putting their lives
and his own at risk.
Based on Benjamin’s failure to get his children medical
care knowing they were physically injured, his chronic alcohol
problem, and his willingness to place the children at risk, we
conclude that termination of Benjamin’s parental rights is war-
ranted under § 43-292(9).
[8] Only one statutory ground for termination need be
proved in order for parental rights to be terminated. In re
Interest of Kendra M. et al., 283 Neb. 1014, 814 N.W.2d 747
(2012). Because we conclude that there is clear and convincing
evidence to show that aggravated circumstances existed under
§ 43-292(9), we need not discuss the other statutory grounds
which the court found to exist.
Reasonable Efforts at Reunification.
[9] Benjamin next assigns that the juvenile court erred
in finding that reasonable efforts were not required under
§ 43-283.01. In In re Interest of DeWayne G. & Devon G.,
263 Neb. 43, 638 N.W.2d 510 (2002), the Nebraska Supreme
Court clearly indicated that reasonable efforts to reunify a
family are required under the juvenile code only when termi-
nation is sought under § 43-292(6). See, also, In re Interest
of Hope L. et al., 278 Neb. 869, 775 N.W.2d 384 (2009).
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Because we have determined that termination was proper
pursuant to § 43-292(9), we need not determine whether the
juvenile court erred in finding that reasonable efforts were not
required under § 43-283.01.
Best Interests and Parental Fitness.
[10-15] Benjamin next asserts the juvenile court erred in
finding that termination of his parental rights was in his chil-
dren’s best interests. In addition to proving a statutory ground,
the State must show that termination is in the best interests of
the child. In re Interest of Kendra M. et al., supra. A parent’s
right to raise his or her child is constitutionally protected; so
before a court may terminate parental rights, the State must
also show that the parent is unfit. Id. There is a rebuttable
presumption that the best interests of a child are served by
having a relationship with his or her parent. Based on the idea
that fit parents act in the best interests of their children, this
presumption is overcome only when the State has proved that
the parent is unfit. Id. The term “unfitness” is not expressly
used in § 43-292, but the concept is generally encompassed
by the fault and neglect subsections of that statute, and also
through a determination of the child’s best interests. In re
Interest of Kendra M. et al., supra. In discussing the consti-
tutionally protected relationship between a parent and a child,
the Nebraska Supreme Court has stated: “‘“Parental unfitness
means a personal deficiency or incapacity which has pre-
vented, or will probably prevent, performance of a reasonable
parental obligation in child rearing and which has caused, or
probably will result in, detriment to a child’s well-being.”’”
Id. at 1033-34, 814 N.W.2d at 761. The best interests analysis
and the parental fitness analysis are fact-intensive inquiries.
And while both are separate inquiries, each examines essen-
tially the same underlying facts as the other. In re Interest of
Kendra M. et al., supra.
Prior to the accident, Benjamin had four DUI convictions
dating back to 2003. The present juvenile matter began as a
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Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
IN RE INTEREST OF JADE H. ET AL.
Cite as 25 Neb. Ct. App. 678
result of Benjamin’s choosing to drive under the influence
of alcohol with his children in his vehicle, putting them at
risk. He then had an accident, where two of the children suf-
fered serious injuries. Benjamin made the conscious decision
to leave the scene of the accident before emergency medical
personnel arrived, knowing that his children were injured, so
he could dispose of alcohol in his vehicle. Benjamin’s actions
demonstrate that he is not willing to put his children’s needs
above his own and will not protect them at any cost. The chil-
dren would be at risk for further harm in Benjamin’s care.
The case manager also testified that based on Benjamin’s
prior DUI convictions and the prior intakes related to
Benjamin’s alcohol issues, she opined that it was in the chil-
dren’s best interests to terminate Benjamin’s parental rights.
Based upon our de novo review of the record, we find clear
and convincing evidence that Benjamin’s personal deficiencies
have prevented him from performing his reasonable parental
obligations to Jade, Aly, and Kazlynn in the past and would
likely prevent him from doing so in the future. Accordingly,
the presumption of fitness has been rebutted. We also find that
it was shown by clear and convincing evidence that termina-
tion of Benjamin’s parental rights would be in the children’s
best interests.
CONCLUSION
Based on our de novo review, we conclude that the juvenile
court did not err in terminating Benjamin’s parental rights
to Jade, Aly, and Kazlynn. Accordingly, the court’s order
is affirmed.
A ffirmed.