In re Interest of Becka P.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/13/2019 08:06 AM CDT
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IN RE INTEREST OF BECKA P. ET AL.
Cite as 27 Neb. Ct. App. 489
In re I nterest of
Becka P. et al.,
18 years of age.
children under
State of Nebraska, appellee and cross-appellee, v.
Robert P., appellant, and Veronica M.,
appellee and cross-appellant.
___ N.W.2d ___
Filed August 6, 2019. Nos. A-18-884 through A-18-887.
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 con-
flict, however, an appellate court may give weight to the fact that the
juvenile court observed the witnesses and accepted one version of facts
over another.
2. Parental Rights: Rules of Evidence: Due Process. The Nebraska
Evidence Rules do not apply in cases involving the termination of
parental rights. Instead, due process controls and requires that the
State use fundamentally fair procedures before a court terminates
parental rights.
3. ____: ____: ____. In determining whether admission or exclusion
of particular evidence would violate fundamental due process, the
Nebraska Evidence Rules serve as a guidepost.
4. Parental Rights: Rules of Evidence: Due Process: Appeal and Error.
Rather than the formal rules of evidence, an appellate court evaluates
the admission of evidence in termination of parental rights cases using a
due process analysis.
5. Constitutional Law: Due Process. Procedural due process includes
notice to the person whose right is affected by the proceeding; reason-
able opportunity to refute or defend against the charge or accusation;
reasonable opportunity to confront and cross-examine adverse witnesses
and present evidence on the charge or accusation; representation by
counsel, when such representation is required by the Constitution or
statutes; and a hearing before an impartial decisionmaker.
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IN RE INTEREST OF BECKA P. ET AL.
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6. Juvenile Courts: Parental Rights: Proof. For a juvenile court to ter-
minate parental rights under Neb. Rev. Stat. § 43-292 (Reissue 2016),
it must find that one or more of the statutory grounds listed in this
section have been satisfied and that such termination is in the child’s
best interests. The State must prove these facts by clear and convinc-
ing evidence.
7. Parental Rights: Proof. Neb. Rev. Stat. § 43-292(7) (Reissue 2016)
operates mechanically and, unlike the other subsections of the statute,
does not require the State to adduce evidence of any specific fault on the
part of a parent.
8. Parental Rights. In a case of termination of parental rights based on
Neb. Rev. Stat. § 43-292(7) (Reissue 2016), the protection afforded the
rights of the parent comes in the best interests step of the analysis.
9. 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.
10. Parental Rights: Proof. In addition to proving a statutory ground, the
State must show that termination of parental rights is in the best interests
of the child.
11. Constitutional Law: Parental Rights: Proof. A parent’s right to raise
his or her child is constitutionally protected; so before a court may ter-
minate parental rights, the State must show that the parent is unfit.
12. Parental Rights: Presumptions: Proof. There is a rebuttable presump-
tion that the best interests of the child are served by having a relation-
ship with his or her parent. Based on the idea that fit parents act in the
best interests of their children, this presumption is overcome only when
the State has proved that the parent is unfit.
13. Constitutional Law: Parental Rights: Words and Phrases. In the
context of the constitutionally protected relationship between a parent
and a child, parental unfitness means a personal deficiency or incapacity
which has prevented, or will probably prevent, performance of a reason-
able parental obligation in child rearing and which caused, or probably
will result in, detriment to the child’s well-being.
14. 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.
15. Parental Rights: Parent and Child. In proceedings to terminate paren-
tal rights, the law does not require perfection of a parent; instead, courts
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IN RE INTEREST OF BECKA P. ET AL.
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should look for the parent’s continued improvement in parenting skills
and a beneficial relationship between parent and child.
16. Parental Rights: Appeal and Error. Where termination of parental
rights is based on Neb. Rev. Stat. § 43-292(7) (Reissue 2016), appellate
courts must be particularly diligent in their de novo review of whether
termination of parental rights is in fact in the child’s best interests.
17. Parental Rights. Where a parent is unable or unwilling to rehabilitate
himself or herself within a reasonable time, the best interests of the child
require termination of the parental rights.
18. ____. Children cannot, and should not, be suspended in foster care or be
made to await uncertain parental maturity.
Appeal from the County Court for Garden County: R andin
R. Roland, Judge. Affirmed.
Robert S. Harvoy for appellant.
Philip E. Pierce, Garden County Attorney, for appellee State
of Nebraska.
Jaquelin G. Leef, of Sonntag, Goodwin & Leef, P.C., for
appellee Veronica M.
Steven E. Elmshaeuser, guardian ad litem.
Moore, Chief Judge, and Pirtle and Bishop, Judges.
Pirtle, Judge.
I. INTRODUCTION
Robert P. (Bob) appeals, and Veronica M. cross-appeals,
from an order of the Garden County Court sitting as a juvenile
court, terminating their parental rights to four of their children.
Upon our de novo review of the record, we affirm the juvenile
court’s order.
II. BACKGROUND
Bob and Veronica are the parents of Becka P., born in July
2011; Robert P., Jr., born in July 2013; Thomas P., born in
October 2014; and Brandy P., born in November 2016. Bob
and Veronica are also the parents of a fifth child, Brittney P.,
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born in December 2017. However, the termination trial did not
involve Brittney. Accordingly, Brittney is not part of the appeal
before us now and she will only be discussed as necessary to
address Bob’s and Veronica’s assigned errors.
In December 2015, separate petitions were filed to adjudi-
cate Becka, Robert, and Thomas pursuant to Neb. Rev. Stat.
§ 43-247(3)(a) (Supp. 2015) based on the actions of both par-
ents. Becka, Robert, and Thomas were adjudicated in February
2016. The basis of the adjudication was the parents’ failure
to use proper car seats on a regular basis. The petition also
included concerns in regard to the children’s being develop-
mentally delayed. A petition to adjudicate Brandy was filed in
December 2016, and she was adjudicated in April 2017. Becka,
Robert, Thomas, and Brandy were removed from the parental
home on December 16, 2016. They have remained out of the
home since that time.
On July 31, 2018, the State filed a motion for termination of
Bob’s and Veronica’s parental rights in regard to the four chil-
dren, alleging statutory grounds to terminate existed pursuant
to Neb. Rev. Stat. § 43-292(2), (3), (5), (6), and (7) (Reissue
2016), and alleging that termination was in the best interests of
the children. A termination trial was held over the course of 4
days in August 2018.
The evidence showed that the family first became involved
with the Nebraska Department of Health and Human Services
(Department) in 2013 based on the living conditions of the
home and Becka’s being developmentally delayed. At that
time, only Becka and Robert were born. The case was dis-
missed when the family moved into an acceptable home and
educational services were being provided for Becka, which
Bob and Veronica agreed to continue. Shortly after the case
was dismissed, Bob would not allow the continuation of the
educational services.
In 2015, the Department investigated the family on two
separate occasions based on intakes involving allegations of
abuse and neglect. Voluntary services were offered to the
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family both times, but they were denied. As previously stated,
the present case began in January 2016 when petitions to adju-
dicate Becka, Robert, and Thomas were filed. The petition to
adjudicate Brandy was filed in December 2016.
Sonya Oliverius, who supervises caseworkers for the
Department, became involved with the case when Becka,
Robert, and Thomas were adjudicated in February 2016. She
testified that during her time assigned to the case, Bob did
not want to participate in services that were offered by the
Department and would argue with her or tell her that either she
or the Department had done something wrong. She testified
that Veronica “pretty much followed whatever Bob’s direc-
tions were” and that Bob made all the decisions. Oliverius
testified that Bob had threatened her life and that he made her
aware he knew where she lived, her husband’s name, and what
school and daycare her children attended. As a result of Bob’s
threats and innuendos, Oliverius obtained a protection order
against him in December 2016. The caseworker at the time
also obtained a protection order against Bob. Oliverius and
that caseworker discontinued working on the case in December
2016 after they obtained the protection orders.
During the time Oliverius was involved with the case, an
educational surrogate was appointed because Bob would not
sign a release for “Early Development Network” to do evalua-
tions of the children. The evaluations were only completed after
the educational surrogate signed the necessary documents. Bob
and Veronica also did not take the children to the doctor and
would not allow the children to be immunized. Oliverius also
testified that it was difficult to assess whether the home was
safe and stable because Bob often refused to let Department
workers into the home. Oliverius further testified that the only
goal the parents met in regard to the case plan was in regard
to using car seats. She testified that Bob and Veronica learned
about the proper car seats for the children, but the only reason
the goal was met was because someone brought the car seats
to the home and installed them for the parents.
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IN RE INTEREST OF BECKA P. ET AL.
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Dennis O’Brien was the caseworker assigned to do an ini-
tial investigation of the family in December 2016 and was
assigned to the case until January 2018. He was reassigned
the case in May 2018 and was still assigned to the case at the
time of trial. He testified that as a result of his initial investi-
gation, he made the decision to remove the children from the
home on December 16, 2016. After their removal, the children
were examined by a doctor. The doctor discovered that the
children had “pretty serious upper respiratory infections” and
one of the children was dehydrated. The children had not had
much, if any, medical care prior to their removal, and three
of the four children had not received any immunizations.
Brittney had received some immunizations. The children were
also diagnosed as being “developmentally behind and seri-
ously neglected.”
O’Brien testified that at the beginning of his involvement
with the case, Bob would be “reasonably pleasant” to talk to
at times; however, at other times, he would be mad and argue
with O’Brien, causing him to have to communicate through
Bob’s attorney. O’Brien testified that Bob’s refusal to talk to
him delayed getting services in place. O’Brien also testified
that Bob made subtle threats toward him, alleged that O’Brien
wanted to adopt the children, and alleged that he was having
an affair with the foster parent. O’Brien testified that dur-
ing his involvement with the case, Bob’s attitude toward the
Department had not changed. He continued to argue with and
yell at workers present in the home, which often would upset
the children.
O’Brien testified that Bob made all the parenting decisions
and that he did not want O’Brien talking to Veronica. He fur-
ther testified that Veronica never went against what Bob said.
O’Brien testified that in July 2018, he located two guns in
a vehicle on Bob and Veronica’s property, as well as a gun in
a gun case located in a closet inside the house. The gun in the
closet was loaded and the safety was off. O’Brien also stated
that in July 2018, there were numerous “junk vehicles” on the
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property, a couple of them lifted up on blocks and one bal-
anced on a cinder block. He testified that Bob believed that
it was appropriate for the children to play in and around the
vehicles and argued against removing the vehicles. On the
property, there were also two refrigerators outside and a stack
of wood with nails exposed. The basement of the home had
standing water in it, and there were mice feces in the children’s
dresser drawers and in the kitchen cabinets. O’Brien testified
that the condition of the property had been an issue since the
case began, including a concern about allowing the children to
play on and inside the vehicles.
O’Brien testified about three specific incidents involving
the children and the vehicles in the yard. The first incident
involved the children unattended and playing in one of the
vehicles on a hot day. One of the caseworkers, at the home
at the time, addressed it with the parties. The second incident
occurred the next day, when Brittney was observed sleeping
in one of the vehicles on a hot day. The third time, a worker
observed the two boys playing in a van with the keys in the
ignition while Bob was working on the van. Neither Bob nor
Veronica thought it was wrong to leave the children in a vehi-
cle on a hot day or that any of these instances were dangerous
for the children.
O’Brien testified that he had not been to the property since
July 2018 and that he had heard from others involved in the
case that Bob had rectified some of the safety issues on the
property since that time.
O’Brien indicated that he had not seen any improvement
in Bob’s ability to parent the children. He also stated that
he had seen improvement in Veronica’s ability to parent, in
that she had been responsive to some services. However, he
worried whether the improvement was sustainable due to her
low cognitive level. O’Brien stated that the case plan goals
have remained the same throughout the case and have not
been met.
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IN RE INTEREST OF BECKA P. ET AL.
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Breanna Bird was the caseworker from January to May 2018,
during the time that O’Brien was not assigned to the case. Bird
testified that Bob expressed his anger toward O’Brien and
made accusations against the foster parents and the family
support workers. He was inconsistent in following redirection
from family support workers and would argue with them about
their suggestions.
In regard to Veronica, Bird testified that she was good at
attending to Brittney’s needs, but struggled if she had to attend
to the needs of more than two children. Bird stated that she
did not see enough progress to recommend reunification of the
children with the parents.
Lucinda Tanner, a pediatric physician assistant, examined
the children on December 29, 2016, after their removal from
the home, and saw them again on April 20, 2017. She testified
that when she first examined Becka, she could not speak, she
had no change in expression, and Tanner was unable to get her
to engage in anything. Tanner opined that Becka was a victim
of child neglect and medical neglect and that she presented
as a traumatized child. Thomas and Robert both had notable
speech delays and had not received immunizations. Tanner was
concerned about the children because of their speech delays
and their inability to communicate, which she found particu-
larly concerning in regard to Becka, who was 5 years old, and
Robert, who was 3 years old. She also opined that Becka,
Robert, and Thomas were all neglected.
Tanner testified that when she saw the children in April
2017, after they had been out of the family home for 4 months,
they were very different. Their communication skills had
improved, they were more interactive, and there was a change
in their demeanor. She was “[p]leasantly surprised” with the
changes she observed.
The testimony of the initial foster mother, given at a previ-
ous hearing, was entered into evidence. She testified that when
the children came to live with her in December 2016, Becka,
Robert, and Thomas had respiratory infections and Thomas was
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dehydrated. Becka, Robert, and Thomas communicated with
each other using “their own language,” which she described as
them “us[ing] their vowel sounds but no consonant sounds.”
With everyone else, the children were nonverbal. They did
not interact with the foster parents or the other children in
the home, and they did not play with toys. The initial foster
mother testified that Robert and Thomas would just sit on the
floor and that Becka would pace back and forth. At mealtime,
they would eat with their hands and did not know how to use
eating utensils. They also did not know how to drink out of a
cup. At bedtime, Becka, Robert, and Thomas would scream
and throw tantrums.
The foster placement changed in June 2017, in part because
of a telephone call involving the initial foster mother and Bob
in which Bob was making demands, and also because Bob had
learned where she lived and she was worried he would come
to the house and disrupt things for his children and the other
children in the home.
The children’s new foster mother testified that when the
children came to live with her in June 2017, Becka was almost
6 years old and she was unable to talk using words. The chil-
dren would “grunt, screech, scream” to communicate with each
other and “kind of had . . . their own language.” They also
barked like dogs. They were aggressive, threw tantrums, slob-
bered, and chewed on objects, such as the corner of a chair.
The new foster mother also testified that they did not know
how to use eating utensils or how to drink out of a cup without
a lid. Becka would also defecate outside.
The new foster mother testified that at the time of trial, the
children were “normal” children. She stated that they behave
well and are respectful. They sit at the table to eat. Becka does
chores and is “very proud” to have some responsibility. The
new foster mother testified that she is able to handle all the
children herself; their behaviors are not such that she needs
help taking care of them.
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IN RE INTEREST OF BECKA P. ET AL.
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The new foster mother testified that Bob’s actions have
made her concerned for her safety. She testified that although
Bob has not threatened her verbally, he has “postured” to
her, taken pictures of her vehicle, stared her down, and stood
in front of the path where she was walking so she had to go
around him. About a month before trial, Robert told her that
Bob “was going to shoot [her].”
Dr. Gage Stermensky, a licensed clinical psychologist, per-
formed an evaluation of Bob and Veronica in July 2017 to
assess their parental capacity to meet the children’s needs.
Stermensky diagnosed Bob with paranoid personality disor-
der, with an indication of narcissistic traits. In his assessment,
Stermensky found that Bob “struggles with accountability
and is quick to blame others.” He also “easily justifies his
behavior through paranoid and cynical means,” and has a
“distrust and suspiciousness of others resulting in interpreting
their actions as malevolent.” Stermensky testified that Bob’s
paranoia interferes with his ability to work with State agencies
and individuals trying to offer him assistance. His paranoia
also affects his ability to meet the safety and welfare needs
of his children, because those needs often involve community
resources, such as schools and doctors, and Bob does not
trust such resources. Stermensky concluded that Bob lacked
“parental capacity abilities” at the time of the evaluation. He
concluded at trial that long-term interventions would be neces-
sary for Bob to parent and that he would need to find “more
amicable and open ways to trust and work with . . . individ­
uals for the best interest[s] of the children.”
In regard to Veronica, Stermensky determined that her
general cognitive ability is in the extremely low range; her
verbal comprehension and perceptual reasoning are both in
the borderline range; her ability to sustain attention, con-
centrate, and exert mental control is in the extremely low
range; and her ability to process simple or routine visual
material without making errors is in the low average range.
Her cognitive limitations were severe enough to prevent her
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from completing some activities associated with “normative
living,” such as employment and meeting daily living needs.
Stermensky determined that Veronica met the diagnostic cri-
teria for an intellectual disability. He opined that based on
her cognitive and intellectual ability, she lacked the capacity
to provide sufficient care for her children independently. He
testified that someone with Veronica’s diagnosis would have a
problem being able to assess risk to their children and could
“struggle in confidence and setting boundaries with others.”
He further testified that Veronica’s “desperation for contact
may motivate dependency on others and increase vulnerability
through exploitation.”
Lori Rodriquez-Fletcher, a child-parent psychotherapist,
started therapeutic visits with the family in July 2017 and
started individual therapy with Bob in October 2017. The
therapeutic visits continued until June 2018. She testified that
Bob had made some progress in therapy, but that he struggles
implementing what he has learned when dealing with people
outside her office. She testified that Bob continued to struggle
with making accusations against other people, had paranoid
thoughts, and had problems appropriately showing his frustra-
tion and stress.
Rodriquez-Fletcher testified that some family therapeutic
sessions went well and that others were chaotic. She stated
that at the last family session, she had to redirect Bob for con-
fronting the foster father. At the same session, she had to call
the foster parents to come get the children because Bob and
Veronica could not control the children.
Rodriquez-Fletcher testified that Veronica genuinely wants
to parent the children and did the best she could at the
therapeutic visits, but she struggled because of her cognitive
impairments which affect her ability to process things and
act accordingly. She further stated that Veronica gets easily
flustered and overwhelmed. Rodriquez-Fletcher was asked if
Veronica was able to care for all five children by herself, and
she indicated she was not.
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Joan Schwan is a licensed independent mental health prac-
titioner and also the clinical supervisor for an intensive family
preservation program. Intensive family preservation workers
provided services for this family for 11 weeks prior to trial
and were in the home 4 to 12 hours each week. There was
a therapist and a “skill builder” assigned to work with Bob
and Veronica. Schwan testified that there had been little to no
progress with the techniques the intensive family preservation
workers were trying to implement with Bob. She stated that
his personality disorder “blocks his insight and judgment into
what’s really going on,” making it difficult for him to accept
responsibility, to accept feedback without arguing, and to put
his children’s safety above his own need to be right.
In regard to Veronica, Schwan testified that she tried to
implement the strategies the “skill builder” had asked her
to do, but Bob would undermine her. Schwan testified that
although Veronica had moved out of the family home a few
weeks before trial, based on her dependency disorder, she was
likely to allow either Bob back into her life or someone else
who would meet her dependency needs. Schwan acknowl-
edged that Veronica’s moving out was a good step toward
becoming independent, but that becoming independent and
being able to parent the children were “two completely differ-
ent things.”
Schwan testified that Bob does not have the capacity to par-
ent the children because nothing had been corrected in the past
11⁄2 years. In regard to Veronica, she testified that the deficits
that need to be corrected have not been. When Schwan was
asked if reunification was achievable in the near future, she
responded that because there had been no change in the par-
ents’ behavior in the past 11⁄2 years, she did not believe any-
thing would change in the future.
Amanda Walter is a co-owner of Optimal Family
Preservation (OFP), a company that provided transportation
and visitation supervision for the family. In addition to own-
ing the business, Walter also supervises the family support
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workers she employs, reviews all their reports, and attends
team meetings with families. She testified that OFP started
working with Bob, Veronica, and their children in September
2017 and did so up until the time of trial.
Walter testified that she has seen minimal progress by Bob
during the time OFP has worked with the family. She stated
that based on her review of the workers’ reports, Bob is often
on the telephone during visits, and he takes a nap during
almost every visit, thereby preventing him from assisting with
the children. She stated that the workers were still having to
redirect both parents on a frequent basis and that there were
safety concerns due to dangerous items outside and around the
home, as well as Bob’s failure to make sure the children are
safe. Walter testified that Bob’s aggressive behavior continued
throughout OFP’s involvement in the case. She testified that
Bob sometimes argues with the workers when he is redirected
or does not respond to redirection at all. Bob accused Walter’s
husband, who is a family support worker for OFP, of being a
“drunk” and has accused other workers of destroying property
and stealing property. She also testified that workers have felt
unsafe because of Bob’s “abrasive behavior,” which would
upset the children at times. Based on the reports of the work-
ers, Bob’s abrasiveness, paranoia, distrust, and accusatory
statements had increased during the time OFP has worked with
the family.
Walter testified that Veronica was nurturing and had a close
bond with the children. She testified that Veronica had been
open to suggestions and redirection. She tried hard to meet
the children’s needs and did well with the younger children.
However, she struggled with disciplining and enforcing rules
with the older children. Walter also testified that Bob over-
rides Veronica when she tries to implement discipline or rules.
Walter further testified that it would be difficult for Veronica to
parent all five children on a continual basis.
Walter’s husband, who is a co-owner of OFP, had been a
family support worker with the family since September 2017
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and had been supervising visitations two times per week. He
testified that when supervising visitation, he spent a lot of
time watching for safety hazards. For example, he testified
that Bob took three of the children with him on a one-seat
tractor with no cab, and with a 6- to 8-foot sickle mower blade
attached with no guard on it. He testified that this could not
be safe for the three children. He told Bob it was irresponsible
to take the children on the tractor, but he did not listen. Other
safety concerns included a utility truck that was on the prop-
erty, as well as a toy car that Bob put a 12-volt car battery in
that was accessible to the children. Bob would also burn trash
in the furnace in the basement. Walter’s husband acknowl-
edged that in the month before trial, there had been signifi-
cant improvement in the safety concerns that were outside in
the yard.
Walter’s husband also testified that at the last visit before
trial, Brittney had a fever and he told Bob to give her Tylenol,
and Bob refused. Walter’s husband ended the visit as a result.
He further testified that recently, Bob instructed the workers
that they cannot drive through a second gate on the property
that leads to the house. This requires the workers to get the
children out of the vehicle at a location farther from the house,
where there is cow manure.
Walter’s husband also testified that Bob takes a nap dur-
ing nearly every visit and spends a large amount of time on
the telephone, rather than spending time with his children.
He testified that during these times, Veronica would be left to
handle all five children herself, which was a struggle for her
and would result in a family support worker helping her with
the parenting.
He testified that Bob ignores his suggestions or redirection
and that Veronica listens to the suggestions, but does not have
the power to change anything. He testified that Bob will let
Veronica discipline the children, but then he will undermine
her decision and tell the children something else.
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The court-appointed special advocate for the children in this
case testified that she has been involved with the case since
before the children were removed from the home. She testified
that the children’s speech, the way they play, and their social-
ization has greatly improved since she first started working
with the children.
She testified that she had concerns for the safety of the
children at the family home. She testified that she observed
the children playing in the vehicles in the yard, as well as on a
utility truck that the children would climb up and not be able
to get back down. She also stated that on the property was an
old freezer, batteries, a sickle mower blade, and a pile of wood
and leaves close to the basement door which could attract
rodents and snakes.
When the court-appointed special advocate was asked if she
had seen changes in Bob and Veronica’s parenting skills, she
stated that there were times when it seemed Bob had changed,
but then the next time she saw him, his behavior was the
same as it was in the beginning. Such behavior included yell-
ing, screaming, calling the workers names, and being on the
telephone. She acknowledged that he had moved the vehicles
off the property, but noted that it took him 19 months to do
so. In regard to Veronica, she testified that Veronica does
well with Brandy and Brittney, the youngest two children,
but that she does not have much interaction with the three
older children.
Bob testified that he had made some mistakes in regard to
parenting the children, but that they were not all his fault. He
implied that a support worker put a clip in the gun that was
found in the closet. He did not believe that either incident
when his children were in a hot vehicle was a dangerous situa-
tion, and he believed his children were safe when riding on the
tractor. He also denied threatening any of the workers involved
with the case.
Veronica testified that she moved out of the home she
shared with Bob about 3 weeks before trial. She stated that
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her relationship with Bob had been “great,” but she moved out
of the home “[f]or the children’s sake.” She further explained
that she moved out in hopes of getting the children back
and not having her parental rights terminated. Veronica did
not have a job and relied on Bob for financial support dur-
ing their relationship. Approximately 1 or 2 months before
trial, she applied for Social Security disability benefits. She
does not have a drivers’ license. She most recently took the
test in April 2018 to obtain a driver’s license, but she did
not pass.
Veronica admitted that she did not think she could handle
caring for all five children by herself at the time of trial.
Veronica believed that with the help of her family she could
adequately care for the children. She had talked to her father
about the possibility of her moving in with him in Wisconsin,
along with the five children, and she said he was “open to
it.” She had not been to Wisconsin to visit family in at least
3 years.
Following trial, the court found that statutory grounds to
terminate Bob’s and Veronica’s parental rights existed pursuant
to § 43-292(2), (3), (5), (6), and (7) and that termination was in
the children’s best interests.
III. ASSIGNMENTS OF ERROR
Bob assigns, restated, that the juvenile court erred in (1)
admitting exhibit 361 into evidence because it violated his due
process rights, as well as his right to cross-examine witnesses,
and (2) finding that it was in the best interests of the children
to terminate his parental rights.
Veronica cross-appealed, assigning, restated, that the juve-
nile court erred in (1) finding that the State presented clear
and convincing evidence that statutory grounds for termination
existed under § 43-292(2), (3), (5), (6), and (7); (2) finding that
there was sufficient evidence to show that she was an unfit par-
ent; and (3) finding that termination of her parental rights was
in the best interests of the children.
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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. When the evidence is in conflict,
however, an appellate court may give weight to the fact that the
juvenile court observed the witnesses and accepted one version
of facts over another. In re Interest of LeVanta S., 295 Neb.
151, 887 N.W.2d 502 (2016).
V. ANALYSIS
1. A dmission of Exhibit 361
Bob first assigns that the juvenile court erred in admitting
exhibit 361 into evidence because it violated his due proc­
ess rights, as well as his right to cross-examine witnesses.
This exhibit is a compilation of notes and reports written by
OFP family support workers who supervised visitations and
observed the family. The exhibit was received into evidence
over objection, under the business records exception to the
hearsay rule. See Neb. Rev. Stat. § 27-803(5)(a) (Reissue
2016). It was admitted during the testimony of Walter, a
co-owner of OFP, who testified that she oversees OFP’s pro-
grams, reviews the reports submitted by the workers, files all
documentation, and is the recordkeeper of the company. She
testified that she compiled the reports contained in exhibit 361
and that the OFP documents are maintained in the ordinary
course of its business.
[2,3] We note that the Nebraska Evidence Rules do not
apply in cases involving the termination of parental rights. In
re Interest of Destiny A. et al., 274 Neb. 713, 742 N.W.2d 758
(2007). Instead, due process controls and requires that the State
use fundamentally fair procedures before a court terminates
parental rights. Id. In determining whether admission or exclu-
sion of particular evidence would violate fundamental due
process, the Nebraska Evidence Rules serve as a guidepost. In
re Interest of Destiny A. et al., supra.
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[4,5] Rather than the formal rules of evidence, we evalu-
ate the admission of evidence in termination of parental rights
cases using a due process analysis. In re Interest of Rebecka P.,
266 Neb. 869, 669 N.W.2d 658 (2003). Procedural due process
includes notice to the person whose right is affected by the
proceeding; reasonable opportunity to refute or defend against
the charge or accusation; reasonable opportunity to confront
and cross-examine adverse witnesses and present evidence on
the charge or accusation; representation by counsel, when such
representation is required by the Constitution or statutes; and
a hearing before an impartial decisionmaker. In re Interest of
Rebecka P., supra.
In the instant case, the record reflects that both Bob and
Veronica received proper notice of the termination hearing
and that during the termination hearing, both were represented
by their respective counsel. Bob and Veronica were given a
reasonable opportunity to refute or defend against the grounds
alleged for termination of their parental rights and had a rea-
sonable opportunity to confront and cross-examine adverse
witnesses and present evidence in regard to the termination.
Although Bob contends that exhibit 361 contains reports from
family support workers who did not testify at trial and that
therefore, he could not cross-examine them, many of the OFP
family support workers did testify, as well as Walter who
supervised them all. Further, the reports of the family support
workers who did not testify primarily contained more of the
same information in regard to Bob’s behavior, safety concerns,
and lack of progress.
Having conducted a de novo review of the record, we find
that the juvenile court employed fundamentally fair proce-
dures during the proceedings and that exhibit 361 was prop-
erly considered by the juvenile court. As previously stated,
the exhibit was admitted under the business records exception
to the hearsay rules, and although the evidence rules do not
apply in cases involving the termination of parental rights,
there was sufficient foundation for admission of the exhibit
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under the business records exception. We find no merit to
Bob’s first assignment of error.
2. Termination of Bob’s
Parental R ights
[6] For a juvenile court to terminate parental rights under
§ 43-292, it must find that one or more of the statutory grounds
listed in this section have been satisfied and that such termina-
tion is in the child’s best interests. In re Interest of Kenna S.,
17 Neb. Ct. App. 544, 766 N.W.2d 424 (2009). See In re Interest
of Xavier H., 274 Neb. 331, 740 N.W.2d 13 (2007). The State
must prove these facts by clear and convincing evidence. In
re Interest of Kenna S., supra. See In re Interest of Xavier
H., supra.
(a) Statutory Grounds for Termination
The juvenile court found that the State had presented clear
and convincing evidence to satisfy § 43-292(2), (3), (5), (6),
and (7). Bob does not challenge the juvenile court’s finding
that statutory grounds to terminate had been met. However,
because our review is de novo, we address this requirement for
termination of parental rights.
[7,8] Section 43-292(7) allows for termination when the
juvenile has been in an out-of-home placement for 15 or more
months of the most recent 22 months. It operates mechani-
cally and, unlike the other subsections of the statute, does not
require the State to adduce evidence of any specific fault on the
part of a parent. In re Interest of Kenna S., supra. In a case of
termination of parental rights based on § 43-292(7), the protec-
tion afforded the rights of the parent comes in the best interests
step of the analysis. Id.
Here, it is undisputed that the children have been in out-of-
home placement for 15 or more months of the most recent 22
months. The children were removed from Bob and Veronica’s
home on December 16, 2016. The State filed its motion for
termination of parental rights on July 31, 2018, and the termi-
nation trial was held in August 2018. The children remained
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out of the home since their removal in December 2016. At
the time of trial, the children had been out of the home for
20 months. Thus, the statutory requirement for removal under
§ 43-292(7) has been met.
[9] 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 statu-
tory ground. In re Interest of Chloe C., 20 Neb. Ct. App. 787, 835
N.W.2d 758 (2013). Because the State presented clear and
convincing evidence that the children had been in an out-of-
home placement for 15 or more months of the most recent 22
months, statutory grounds for termination of Bob’s parental
rights exists.
(b) Best Interests
[10-13] Bob assigns that the juvenile court erred in find-
ing that it was in the children’s best interests to terminate his
parental rights. In addition to proving a statutory ground, the
State must show that termination of parental rights is in the
best interests of the child. See In re Interest of Jahon S., 291
Neb. 97, 864 N.W.2d 228 (2015). A parent’s right to raise his
or her child is constitutionally protected; so before a court
may terminate parental rights, the State must show that the
parent is unfit. Id. There is a rebuttable presumption that the
best interests of the 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 over-
come only when the State has proved that the parent is unfit.
Id. In the context of the constitutionally protected relation-
ship between a parent and a child, parental unfitness means a
personal deficiency or incapacity which has prevented, or will
probably prevent, performance of a reasonable parental obliga-
tion in child rearing and which caused, or probably will result
in, detriment to the child’s well-being. Id.
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[14,15] The best interests analysis and the parental fitness
analysis are fact-intensive inquiries. And while both are sepa-
rate inquiries, each examines essentially the same underlying
facts. Id. In proceedings to terminate parental rights, the law
does not require perfection of a parent; instead, courts should
look for the parent’s continued improvement in parenting skills
and a beneficial relationship between parent and child. In
re Interest of Joseph S. et al., 291 Neb. 953, 870 N.W.2d
141 (2015).
[16] In cases where termination of parental rights is based
on § 43-292(7), the Nebraska Supreme Court has held that
appellate courts must be particularly diligent in their de novo
review of whether termination of parental rights is in fact in
the child’s best interests. See In re Interest of Aaron D., 269
Neb. 249, 691 N.W.2d 164 (2005).
This family first became involved with the Department
in 2013, and it was again investigated in 2015 based on two
intakes. Becka, Robert, and Thomas were subsequently adju-
dicated in the present case in February 2016, and Brandy in
April 2017. Between February 2016 and the time of trial in
August 2018, the Department has provided the family with
numerous services in an effort to achieve case plan goals
and keep the family together. However, there has been little
to no change in Bob’s behavior, attitude, and willingness to
change. The record is replete with evidence that Bob has been
uncooperative with the services offered and the people pro-
viding the services. He continued to argue with the workers,
yell at them, intimidate them, and make subtle threats against
them. He also made accusations against the service providers
and the foster parents. When redirected by a worker, he either
argued with the worker about the suggestion made or simply
ignored the redirection. There was evidence that at the time of
trial, the workers were still frequently trying to redirect Bob.
He made the service providers feel unsafe, so much so that
two of them obtained protection orders against him. There
was evidence that there had been little to no progress with
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the techniques OFP was trying to implement in the 11 weeks
before trial.
Before the children were removed in December 2016, they
received little medical care. They were not taken to the doctor,
and three of the four children had no immunizations. When
they were removed, Becka, Robert, and Thomas all had respi-
ratory infections and Thomas was dehydrated. The children
were also developmentally behind. Becka, who was 5 years
old at the time of removal, could not talk, and the others had
speech delays and had their own version of a language that
they used to communicate with each other. They did not know
how to use eating utensils or drink out of a cup without a lid.
During their time in foster care, the children have made great
progress. Tanner, a pediatric physician assistant, testified that
after the children were out of the home for only 4 months, their
communication skills had improved, they were more interac-
tive, and she saw a change in their demeanor.
Throughout the case, there have been safety concerns. The
vehicles and other items outside the house that were accessible
to the children had always been an issue. Some of the vehicles
had been moved at the time of trial, but as one witness pointed
out, it took Bob 19 months to do so. Bob also took three of the
children with him on a one-seat tractor with no cab, and with a
sickle mower blade attached with no guard on it. Other safety
concerns included the parents’ letting the children play or
sleep in one of the vehicles on a hot day. The second time this
happened was after the caseworker had addressed the safety
issue with the parents the day before. There was also evidence
that three guns were located on the property the month before
trial. Two were located in a vehicle, and the other was in a
closet in the house and was loaded. The guns were located
after the Department had been working with the family on
safety and other issues for over 2 years. The evidence was
clear that at the time of trial, Bob still did not recognize certain
safety hazards.
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[17] Where a parent is unable or unwilling to rehabilitate
himself or herself within a reasonable time, the best interests
of the child require termination of the parental rights. In re
Interest of Zanaya W. et al., 291 Neb. 20, 863 N.W.2d 803
(2015). Based on the evidence presented, there has been no
change in Bob’s behavior over the course of the case, and
based on his diagnosis of paranoid personality disorder, he
was unlikely to change in the future. The case plan goals
had remained the same throughout the case and had not been
met, and there had been no improvement in Bob’s ability
to parent.
[18] Further, Nebraska courts have recognized that chil-
dren cannot, and should not, be suspended in foster care or
be made to await uncertain parental maturity. In re Interest
of Octavio B. et al., 290 Neb. 589, 861 N.W.2d 415 (2015).
Becka, Robert, Thomas, and Brandy have been in foster care
since December 2016. They deserve stability in their lives and
should not be suspended in foster care when Bob is unable or
unwilling to rehabilitate himself. Accordingly, we find there
was clear and convincing evidence to show that Bob was unfit
and that terminating his parental rights was in the children’s
best interests.
3. Termination of Veronica’s
Parental R ights
As a preliminary matter, we note that Veronica failed to
comply with the rules regarding cross-appeals. See Neb. Ct.
R. App. P. § 2-109(D)(4) (rev. 2014). Bob was the only party
to file a notice of appeal, and therefore, he was the appel-
lant. However, pursuant to Neb. Ct. R. App. P. § 2-101(C)
(rev. 2014), once a notice of appeal is filed, all other parties
become appellees and can file a cross-appeal. Here, Veronica
properly designated herself as an appellee and filed a “Brief
of Appellee on Cross Appeal.” As a cross-appellant, Veronica
was required to comply with the rules on cross-appeals, includ-
ing the requirement that she designate on the cover of her
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brief that it is a cross-appeal, and set forth her cross-appeal in
a separate division of the brief titled “Brief on Cross-Appeal.”
See § 2-109(D)(4). Veronica properly designated the cover of
her brief as a cross-appeal, but she did not set forth her cross-
appeal in a separate division of the brief. Other than the cover,
she prepared her brief as though she was an appellant and not
an appellee and cross-appellant. This court, in In re Interest of
Chloe P., 21 Neb. Ct. App. 456, 840 N.W.2d 549 (2013), declined
to award the father any affirmative relief due to his failure
to follow the foregoing briefing rule. In that case, the father
correctly designated himself as an appellee on his brief. In
his brief, he assigned errors and sought affirmative relief;
however, there was no designation of a cross-appeal on the
cover of his brief, nor was a cross-appeal set forth in a sepa-
rate division of the brief as required by § 2-109(D)(4). We
found the case to be governed by In re Interest of Natasha H.
& Sierra H., 258 Neb. 131, 602 N.W.2d 439 (1999), in which
the Supreme Court declined to consider a father’s arguments
appealing the termination of his parental rights because he
failed to properly designate his arguments as a cross-appeal.
In its refusal to consider the father’s assignments of error, the
court explained that “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,” id. at 146, 602 N.W.2d at 451. The court further
explained that appellate courts “have repeatedly indicated
that a cross-appeal must be properly designated, pursuant to
[§ 2-10]9(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.
The instant case is partially distinguishable from In re
Interest of Chloe P., supra, and In re Interest of Natasha H.
& Sierra H., supra, in that Veronica properly designated the
cover of her brief as a cross-appeal. However, her brief did not
contain a separate section for the cross-appeal as also required
by § 2-109(D)(4). Rather, her brief was generally prepared in
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the form of an appellant’s brief and did not separately respond
to Robert’s appellant’s brief other than accepting his statement
of the basis of jurisdiction and statement of the case. Although
Veronica’s brief violates the portion of the rule requiring a
separate section for a cross-appeal, because the form and pre-
sentation of her assignments of error conform with the rules
applicable to an appellant’s brief, we may consider the argu-
ments raised in her brief. See, 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).
Accordingly, we will consider Veronica’s arguments on
appeal.
(a) Statutory Basis for
Termination
Veronica assigns that the juvenile court erred in finding that
the State presented clear and convincing evidence that statutory
grounds for termination existed under § 43-292(2), (3), (5), (6),
and (7). As discussed above, the children were in an out-of-
home placement for 15 or more months of the most recent 22
months and, therefore, termination of Veronica’s parental rights
was proved under § 43-292(7).
(b) Best Interests
Veronica next assigns that the juvenile court erred in find-
ing that there was sufficient evidence to show that she was
an unfit parent and that termination of her rights was in the
best interests of the children. We disagree. As previously set
forth in the best interests analysis in regard to Bob, the chil-
dren had received little to no medical care before they were
removed from the parental home. At the time of removal, the
three oldest children had respiratory infections and Thomas
was dehydrated. The children were also developmentally
behind, especially in regard to verbal skills. Further, there had
been numerous safety concerns throughout the case involv-
ing items on the property and the parents’ ability to recognize
these hazards.
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Specific to Veronica, the evidence showed that her general
cognitive ability is in the extremely low range. Her cognitive
limitations were severe enough to prevent her from complet-
ing some activities associated with “normative living,” such
as employment and meeting daily living needs. Stermensky, a
licensed clinical psychologist, determined that Veronica had an
intellectual disability and lacked the capacity to provide suf-
ficient care for her children by herself. Rodriquez-Fletcher, a
child-parent psychotherapist, agreed that Veronica was unable
to care for all her children by herself. She testified that
although Veronica wants to parent the children and was doing
the best she could when working with service providers, she
would get flustered and overwhelmed. Family support work-
ers would often have to step in and help with the parenting
at times when Veronica was trying to handle the children by
herself during visits.
Veronica was able to care for Brandy and Brittney’s needs,
but struggled if she had to attend to the needs of more than two
children. Walters, a co-owner of OFP, testified that Veronica
also struggled with disciplining and enforcing rules with the
oldest three children. Walters testified that it would be dif-
ficult for Veronica to parent all five of her children on a con-
tinual basis. Further, Veronica admitted at trial that she did not
believe she could care for all five children by herself.
The evidence also showed that Bob made all the parent-
ing decisions and that Veronica would simply do what he
said. If she tried to discipline or make a decision in regard
to the children, Bob would undermine her. At the time of
trial, Veronica had moved out of the family home and was
no longer living with Bob because she thought it would help
her get the children back. However, she had only moved out
about 3 weeks before the termination trial. Further, there was
evidence that based on her dependency on others, she was
likely to allow Bob back into her life or find someone else to
meet her dependency needs, which also made her vulnerable
to exploitation.
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We find there was clear and convincing evidence to demon-
strate that Veronica was unfit and that terminating her parental
rights was in the children’s best interests.
VI. CONCLUSION
We conclude the court did not err in admitting exhibit 361
into evidence. We also conclude the State proved by clear and
convincing evidence that grounds for termination of Bob’s
and Veronica’s parental rights existed under § 43-292(7)
and that termination of their parental rights is in the chil-
dren’s best interests. Accordingly, the juvenile court’s order
is affirmed.
A ffirmed.