In re Interest of Nyla S.

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
IN RE INTEREST OF NYLA S.
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
IN RE INTEREST OF NYLA S., A CHILD UNDER 18 YEARS OF AGE.
STATE OF NEBRASKA, APPELLEE,
V.
KYRA W., APPELLANT.
Filed October 11, 2022. No. A-22-013.
Appeal from the Separate Juvenile Court of Douglas County: MARY M.Z. STEVENS, Judge.
Affirmed.
Thomas C. Riley, Douglas County Public Defender, and Samuel A. Raybine for appellant.
David Ceraso, Deputy Douglas County Attorney for appellee.
PIRTLE, Chief Judge, and BISHOP and ARTERBURN, Judges.
ARTERBURN, Judge.
INTRODUCTION
Kyra W. appeals from the order of the separate juvenile court of Douglas County which
terminated her parental rights to her daughter, Nyla S. Based on the reasons that follow, we affirm
the decision of the juvenile court.
BACKGROUND
PROCEDURAL BACKGROUND
Kyra is the natural mother of Nyla, born in July 2016. Lydell S. is Nyla’s father. Kyra and
Lydell also share two other children, Nyelle S. and JaHari S. These two children were not a part
of the juvenile court proceedings below, as they lived with Lydell in Iowa when the proceedings
were initiated. Lydell is not a party to the current appeal, as he voluntarily relinquished his parental
-1-
rights to Nyla prior to the termination trial. At the time of the termination trial, Kyra was pregnant
with her fourth child. However, the current appeal only involves Kyra’s relationship with Nyla.
On February 26, 2020, the State filed a petition alleging that Nyla was within the meaning
of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016) due to the faults or habits of Kyra. Specifically,
the petition alleged that Kyra had abandoned Nyla when, on January 14, 2020, she left Nyla with
her great-grandmother, did not return for Nyla, and did not provide Nyla’s great-grandmother with
any authority to provide for Nyla’s medical or educational needs. The petition also alleged that
Nyla was at risk for harm due to Kyra being homeless, subjecting Nyla to inappropriate physical
contact, having outstanding warrants for her arrest, and generally failing to provide Nyla with
proper parental care, support, supervision, and protection. The same day that the State filed the
petition, the juvenile court entered an ex parte order granting the Department of Health and Human
Services temporary custody of Nyla, with Nyla’s physical placement to “exclude the home of
Kyra.”
On July 23, 2020, an adjudication and disposition hearing was held. Kyra did not appear
in court during the adjudication portion of this hearing. The State offered the testimony of two
witnesses. At the close of evidence, the juvenile court entered an order which found that Nyla was
a child within the meaning of § 43-247(3)(a) as to Kyra.
During the disposition portion of the July 23, 2020 hearing, the juvenile court ordered Kyra
to participate in a plan designed to reunify her with Nyla. At that time, the plan required her to
submit to a psychological evaluation, which was to include a parenting assessment, and to follow
the recommendations of that evaluation; to abstain from the use of illegal drugs and the use of
alcohol; to submit to random drug testing; to work with a parenting coach; and to obtain and
maintain housing and a legal source of income. The court further ordered:
[T]here is to be no parenting time [between Kyra and Nyla] at this time due to Kyra[’s]
frenzied, pugnacious, confused, and intimidating actions in the courtroom, as well as
evidence presented that she caused injury to the young child by striking her. The court will
consider the issue of parenting time upon the receipt of the psychological evaluation and
parenting assessment.
Shortly after the July 23, 2020 hearing, Kyra was incarcerated as a result of having
previously pled guilty to providing false information to a police officer. She remained incarcerated
through the middle of August.
At a review and permanency planning hearing held on December 3, 2020, the juvenile
court entered a revised reunification plan for Kyra. Kyra did not appear at this hearing. The
reunification plan still required Kyra to complete a psychological evaluation, which was to include
a parenting assessment, and to follow the recommendations of that evaluation; to abstain from the
use of illegal drugs and the use of alcohol; to submit to random drug testing; and to obtain and
maintain housing and a legal source of income. However, it also required Kyra to complete a
psychiatric evaluation to assess for medication needs and compliance; to work with the Women’s
Center for Advancement; and to maintain contact with her case manager. The revised plan also
provided for Kyra to have “reasonable rights of agency-supervised visitation [with Nyla] to occur
in a neutral location with a parenting coach,” despite Kyra not having completed the psychological
evaluation.
-2-
Two additional orders were entered in April 2021 and June 2021, both of which required
Kyra to participate with the reunification plan. Kyra did not appear at either hearing precipitating
the orders. In addition to the requirements laid out in the December 2020 order, these two
subsequent orders also required Kyra to cooperate with family support services and to complete
relinquishment counseling.
On August 12, 2021, the State filed a motion to terminate Kyra’s parental rights. In the
motion, the State alleged that termination was appropriate pursuant to Neb. Rev. Stat. § 43-292(2)
(Reissue 2016), because Kyra had substantially and continuously or repeatedly neglected and
refused to give Nyla necessary parental care and protection; § 43-292(4), because of Kyra’s
debauchery, habitual use of intoxicating liquor or narcotic drugs, or repeated lewd and lascivious
behavior, which was seriously detrimental to Nyla’s health, morals, and well-being; § 43-292(6),
because following a determination that Nyla was within the meaning of § 43-247(3)(a), Kyra failed
to correct the conditions leading to that determination; and § 43-292(7), because Nyla had been in
an out-of-home placement for 15 or more months of the most recent 22 months. The State also
alleged that termination of Kyra’s parental rights was in Nyla’s best interests. An initial hearing
was held on the State’s motion to terminate Kyra’s parental rights on August 30, 2021. Kyra
appeared for this hearing. It was the first time she had appeared in court since the July 2020
disposition hearing.
EVIDENCE PRESENTED AT TERMINATION TRIAL
A trial on the State’s motion to terminate Kyra’s parental rights to Nyla began on
November 5, 2021, continued on November 12, and was concluded on November 19. During the
trial, the State presented evidence to demonstrate that during the majority of the pendency of the
juvenile court proceedings, Kyra made no effort to comply with the tenets of her court-ordered
rehabilitation plan and, thus, made no progress toward reunifying with Nyla. Kyra, on the other
hand, presented evidence of recent progress she had made toward achieving reunification with
Nyla.
Pearl Lackner was the caseworker assigned to Kyra and Nyla’s case beginning in February
2020, when the juvenile court proceedings were initiated. She remained the caseworker through
July 2021, or, for about 18 months. During Lackner’s testimony at the termination trial, she
detailed the lack of progress toward reunification made by Kyra from February 2020 through July
2021. Lackner indicated that Kyra did not comply with any of the tenets of her court-ordered
rehabilitation plan.
After Kyra was ordered to participate in a psychological evaluation and a parenting
assessment immediately after Nyla was adjudicated in July 2020, Lackner contacted and obtained
a provider to complete the evaluations for Kyra. Lackner testified that Kyra refused to participate
in the evaluations at that time, even though she was aware that her ability to visit Nyla was
contingent on her completing the psychological evaluation and parenting assessment. Lackner
testified that she contacted and obtained another provider to complete the evaluations in December
2020. The provider was able to schedule a time for the evaluations, but Kyra failed to appear at
three separately scheduled appointments. On one of these occasions, Kyra claimed she had
overslept.
-3-
Lackner testified that she spoke with Kyra about scheduling a psychiatric evaluation, which
was also part of Kyra’s court-ordered rehabilitation plan. During this conversation, Kyra indicated
that she was already seeing a psychiatrist. However, she never provided Lackner with any follow
up information, including the name of the psychiatrist she was seeing. Lackner testified that despite
her best efforts, she was never able to independently verify whether Kyra was actually seeing a
psychiatrist. From February 2020 through July 2021, Kyra never agreed to submit to a psychiatric
evaluation.
Another tenet of Kyra’s court-ordered rehabilitation plan was to cooperate with a family
support program. Lackner contacted a family support worker, Shalonda Robinson, to work with
Kyra sometime between August and October 2020. Robinson was to work with Kyra on housing,
employment, and parenting skills.
During the termination trial, Robinson testified that she did not actually begin working
with Kyra until January 2021. Robinson reported that, initially, Kyra was communicative and
engaged in the process. In fact, Kyra reported to Robinson that she had taken steps to obtain
housing and employment on her own. However, Kyra was never able to achieve any progress
toward her family support goals. Kyra did not secure stable housing. From January through June
2021 when Robinson was assigned as Kyra’s family support worker, Kyra lived at three different
homeless shelters. During that same time period, Kyra remained unemployed. Robinson also
attempted to assist Kyra with attending her scheduled appointments. Robinson testified that during
her time with Kyra, multiple appointments were scheduled for Kyra’s psychological evaluation.
Kyra never attended the appointments. Toward the end of Robinson’s tenure with Kyra, Kyra’s
efforts at compliance and communication with her dwindled further.
From February 2020 through July 2021, Kyra did not cooperate with random drug and
alcohol testing as was required as part of her rehabilitation plan. Lackner testified that Kyra had
no cellular telephone or other reliable means of communication during this time period. As a result,
the drug testing agencies would have had difficulty in being able to inform Kyra of when she was
required to test.
Given Kyra’s lack of reliable communication, she also failed to stay in regular contact with
Lackner. Lackner testified that she was not always able to reach Kyra and that, as a result, she
often did not know whether Kyra was participating in required services or if she was making any
progress toward reunification. Contributing to Lackner’s communication issues with Kyra was
Kyra being “fairly confrontational” with Lackner and Kyra’s incarceration during the early part of
the juvenile court proceedings.
Kyra did not have any visitation with Nyla from February 2020 through January 2021.
Lackner did establish a visitation agency to work with Kyra as early as July 2020. However, such
agency was never able to establish communication with Kyra. In addition, the juvenile court’s
order required Kyra to participate with a psychological evaluation prior to receiving any visitation
time. Kyra never completed such evaluation prior to the agency terminating its contract for Kyra
on August 31, 2020.
In December 2020, Lackner contacted another visitation agency to supervise visits between
Kyra and Nyla. At this point, the requirement that Kyra obtain an evaluation before visitation could
occur was no longer in effect. Visits were scheduled for two to three hours two times per week and
were to be fully supervised in a neutral location. Although Kyra started attending visits in January
-4-
2021, she was inconsistent in that attendance. Kyra would fail to show up to scheduled visits, and
often canceled visits at the last minute.
Dante Day began supervising visits between Kyra and Nyla in March 2021. In March 2021,
Kyra’s visits continued to be scheduled two to three times per week for two to three hours.
However, from March through July or August, Kyra only attended approximately one scheduled
visit per month on average. Kyra would sometimes blame her lack of attendance on her
transportation problems. However, according to Day, Kyra could have requested virtual visits with
Nyla on days she did not have transportation. Kyra never requested this service. In addition, she
never asked to make up missed visits. As a result of Kyra’s poor attendance at visits, her visits
were reduced to only one time per week for four hours.
Ultimately, Lackner testified that given Kyra’s poor progress toward reunification with
Nyla from February 2020 through July 2021, she believed that termination of Kyra’s parental
rights was appropriate. Lackner expressed a concern about Nyla “lingering” in foster care given
the amount of time she had been placed outside of Kyra’s home. In addition, Lackner believed that
even though Kyra expressed a desire to reunify with Nyla, she simply failed to take any steps
toward achieving such reunification.
Heather Peterson took over as the caseworker for Kyra and Nyla in September 2021. She
remained the caseworker at the time of the termination trial in November. During her trial
testimony, Peterson reiterated that prior to her tenure on the case, Kyra had made no progress
toward reunification with Nyla as a result of her failure to comply with the tenets of her court
ordered rehabilitation plan.
However, around the time that Peterson began working with Kyra and Nyla, Kyra began
residing at Bethlehem House, a local shelter for unwed, single mothers who are either pregnant or
have just had a baby. Peterson testified that the Bethlehem House provides a variety of services to
those mothers. Gina Tomes, the cofounder and current director of Bethlehem House, testified that
the shelter is “intensive, invasive, [and] rehabilitative.” Tomes testified that Kyra began her
residence at Bethlehem House on August 9, 2021. Since Kyra came to Bethlehem House she had
completed 65 hours of educational classes, including classes regarding parenting, financial
literacy, and health and wellness. Tomes believed that Kyra is willing to learn and grow and
genuinely wants to change her life for the better. Tomes has observed Kyra to become more
thoughtful and better at communication during her short tenure at Bethlehem House.
During her trial testimony, Peterson indicated that she had received verbal reports that since
Kyra began residing in Bethlehem House, she had begun to comply with the tenets of her
rehabilitation plan. Specifically, Peterson was told that Kyra had completed both a psychological
evaluation and psychiatric evaluation in late September or October 2021. However, Peterson had
not been provided any documentation as a result of these evaluations and, as such, did not know
who the evaluators were or what further treatment was recommended for Kyra. Tomes also
testified that Kyra had completed the evaluations early on in her stay at Bethlehem House, but she
had also not seen the evaluation reports. She conceded that her knowledge of Kyra’s participation
came solely from Kyra’s reports, but was independently aware that Kyra was seeing a therapist on
a weekly basis.
Peterson indicated that she had also been informed that Kyra was participating with a
family support worker through Bethlehem House and had been attending therapy. However, again,
-5-
Peterson had not received any documentation or specifics regarding the progress that Kyra had
made through these services. Kyra had been cooperating with drug testing at Bethlehem House
and, to Peterson’s knowledge, Kyra was currently clean and sober. Tomes testified that Kyra is
testing two to three times per week and that all of her tests have been negative for all substances.
Kyra has stayed in contact with Peterson since moving into Bethlehem House. In fact, Kyra
attended a family team meeting in October 2021.
Tomes testified that Kyra will begin working toward finding employment after she gives
birth. Bethlehem House will also assist Kyra with finding housing when she is ready to move on
from their residential program. However, Tomes indicated that the average stay at Bethlehem
House is one year, so at the time of trial Kyra was at least seven months away from achieving
independent housing.
Peterson testified that Kyra has visits with Nyla one time per week at Bethlehem House.
Day, who is still supervising the visits between Kyra and Nyla testified that since Kyra moved to
Bethlehem House, her attendance at visits has been consistent. During these recent visits, Kyra has
shown affection toward Nyla and has paid her a great deal of attention. Day noted that Bethlehem
House provides Kyra with all of the necessities for each visit, including, food, clothing, toys, and
other entertainment. Day believes that Kyra and Nyla share a bond with each other. Kyra appears
to care for Nyla and Nyla appears happy to see Kyra. Similarly, Tomes testified that in her
observations of Kyra and Nyla, it is apparent that Kyra loves Nyla very much and that Nyla is
excited to spend time with Kyra. Tomes believed that Kyra was currently very motivated to reunite
with Nyla. Day opined that Kyra has an adequate ability to appropriately parent Nyla. Day, Tomes,
and Peterson indicated that Kyra has expressed a recent interest in increasing her time with Nyla.
Day testified that he would be supportive of this request so long as Kyra remained living at
Bethlehem House.
At the conclusion of Peterson’s testimony, she indicated that despite Kyra’s recent
progress, she still believed that Kyra’s parental rights should be terminated. Peterson explained
that the case had been pending for more than 18 months before Kyra made any efforts to achieve
reunification. Moreover, while Kyra had made recent efforts during her few months at Bethlehem
House, she has not demonstrated any sustained progress for a significant period of time. Peterson
believed that placing Nyla with Kyra was not currently safe because of ongoing concerns regarding
Kyra’s mental health and ability to provide consistent and proper parental care.
The State’s final witness during the termination trial was Nina Wilson, Nyla’s therapist
since May 2021. Wilson testified that she sees Nyla once a week for 45 minutes to an hour. During
her time with Nyla, Wilson has treated her for behavioral issues and recurring nightmares,
emphasizing regulation of Nyla’s emotions and processing Nyla’s past trauma. Nyla’s past trauma
includes Kyra’s absence from her life.
Wilson testified that Nyla has made some progress during therapy, including, expanding
her emotional vocabulary such that she is able to express her feelings more appropriately and
communicating more with the adults in her life. However, Wilson did not believe that Nyla had
made any progress in her feelings toward Kyra. Nyla continues to shut down when the subject of
Kyra is broached in therapy. She avoids talking about Kyra and displays feelings of anger and
frustration. Nyla has recurring nightmares about Kyra where Kyra appears as a monster. Nyla has
described to Wilson that Kyra left her alone and does not love her. Wilson explained that when
-6-
Kyra would cancel or fail to attend visits, Nyla’s nightmares would become less frequent.
However, now that Nyla sees Kyra on a weekly basis, her nightmares are more regular. Nyla
regularly expresses a fear of the dark and of being alone.
Wilson opined that Nyla needs a stable and nurturing home which consistently provides
for her basic needs. Essentially, Nyla needs permanency. She also requires additional therapy to
address the trauma she has experienced. Ideally, Nyla’s caregiver would work closely with Wilson
during the therapeutic process. Kyra has never participated in Nyla’s therapy, nor has she ever
reached out to Wilson to discuss the therapy.
Wilson did indicate that another source of Nyla’s trauma was her experience in her foster
home with her great-grandmother. Wilson learned that Nyla’s great-grandmother had physically
and emotionally neglected Nyla, including using physical discipline. Nyla’s great-grandmother
made it apparent that she did not want Nyla living with her. As a result of Nyla’s great-
grandmother’s actions, Nyla was moved to a new foster home in late September 2021. This move
caused a regression in Nyla’s therapeutic process.
JUVENILE COURT’S ORDER
In an order filed on December 9, 2021, the juvenile court terminated Kyra’s parental rights
to Nyla. The court found that Nyla was within the meaning of § 43-292(2), (4), (6), and (7), and
that termination of Kyra’s parental rights was in her best interests. The court specifically indicated
that the evidence presented at the termination trial revealed “Kyra [] put no effort toward
complying with the court ordered treatment plan until on or about August 9, 2021. Kyra [] allowed
the child to languish in the care of the State of Nebraska for eighteen months.” And, while the
court recognized the recent progress made by Kyra, the court also noted
[B]ut for the mother living at Bethlehem House, no evidence was presented which indicates
that in the future, the mother is or will be willing and able to provide for the protection of
her child, provide for the needs and day-to-day care of the child, provide a safe, stable
living environment, or promote [the] child’s development and capacity for a healthy
personality, physical wellbeing or education.
The juvenile court also could not ignore the testimony of Nyla’s therapist who testified that Nyla’s
“fear of [Kyra] and trauma related to [Kyra]’s actions has not dissipated since her removal from
[Kyra]’s custody in February, 2020, and [Kyra] made no efforts to invest in the treatment and
healing of [Nyla].”
Kyra appeals from the juvenile court’s order terminating her parental rights to Nyla.
ASSIGNMENTS OF ERROR
Kyra alleges on appeal that the juvenile court erred first by finding that termination of her
parental rights to Nyla is warranted pursuant to § 43-292(2), (4), and (6) and second, by finding
that termination of her parental rights is in Nyla’s best interests.
STANDARD OF REVIEW
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
-7-
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.ANALYSIS
For a juvenile court to terminate parental rights under § 43-292, it must find that one or
more of the statutory grounds listed in this section have been satisfied and that such termination is
in the child’s best interests. In re Interest of Kenna S., 17 Neb. 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.STATUTORY FACTORS
The juvenile court found that the State had presented clear and convincing evidence to
satisfy § 43-292(2), (4), (6), and (7), and thus, demonstrated that statutory grounds existed for the
termination of Kyra’s parental rights to Nyla. On appeal, Kyra challenges the juvenile court’s
finding that the State had presented clear and convincing evidence to satisfy § 43-292(2), (4), and
(6). However, in her brief, she concedes that Nyla has been “placed outside of [her] home for
fifteen of the most recent twenty-two months[]” pursuant to § 43-292(7). Brief for appellant at 29.
We agree that Nyla has been placed outside of Kyra’s home for more than 15 of the last 22
months pursuant to § 43-292(7), and thus, we agree that statutory grounds existed for the
termination of Kyra’s parental rights pursuant to that subsection. As such, we need not address
Kyra’s assertions regarding whether the State adequately proved termination was also appropriate
pursuant to § 43-292(2), (4), or (6). If an appellate court determines that the juvenile court correctly
found that termination of parental rights is appropriate under one of the statutory grounds set forth
in § 43-292, the appellate court need not further address the sufficiency of the evidence to support
termination under any other statutory ground. In re Interest of Becka P. et al., 27 Neb. App. 489,
933 N.W.2d 873 (2019).
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 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. In re Interest of Becka P. et al., supra. In a case of termination
of parental rights based on § 43-292(7), the protection afforded the rights of the parent comes in
the best interests step of the analysis. In re Interest of Becka P. et al., supra.
Here, it is undisputed that Nyla has been in an out-of-home placement for 15 or more
months of the most recent 22 months. She was removed from Kyra’s care on February 26, 2020,
and has remained out of Kyra’s home continuously since that time. The State filed its motion for
termination of Kyra’s parental rights to Nyla on August 12, 2021, and the termination trial took
place in November. As such, by the time the State filed its motion to terminate parental rights,
Nyla had been in an out-of-home placement for just over 17 months. By the time the termination
trial took place in November, Nyla had been in an out-of-home placement for almost 21 months.
Thus, the statutory requirement for removal under § 43-292(7) has been met.
-8-
BEST INTERESTS
Under § 43-292, 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. 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 Leyton C. & Landyn
C., 307 Neb. 529, 949 N.W.2d 773 (2020). This presumption is overcome only when the State has
proved that the parent is unfit. Id. Although the term “unfitness” is not expressly stated in
§ 43-292, the Nebraska Supreme Court has said that it derives from the fault and neglect
subsections of that statute and from an assessment of the child’s best interests. In re Interest of
Mateo L. et al., 309 Neb. 565, 961 N.W.2d 516 (2021). 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 reasonable parental
obligation in child rearing and which has caused, or probably will result in, detriment to a child’s
well-being. In re Interest of Leyton C. & Landyn C., supra. The best interests analysis and the
parental fitness analysis are separate inquiries, but each examines essentially the same underlying
facts as the other. Id.In cases where termination of parental rights is based on § 43-292(7), the 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).
In her brief on appeal, Kyra argues that the evidence presented at the termination trial did
not demonstrate that she is currently unfit to parent Nyla. Rather, she asserts that the evidence
showed “that while [she] may not be a perfect parent, she has made substantial improvement in
proving she is fit to retain her parental rights.” Brief for appellant at 37. She also asserts that the
evidence revealed that she shares a bond with Nyla and that, therefore, it would not be in Nyla’s
best interests to sever that bond by terminating her parental rights. Upon our de novo review of the
record, we do not agree with Kyra’s characterization of the evidence presented at the termination
trial. Instead, we find that the evidence revealed that Kyra made no efforts toward achieving
reunification during the first 18 months the case was pending prior to the State filing its motion to
terminate her parental rights. And, while Kyra began to make efforts toward achieving
reunification after the motion to terminate was filed in August 2021, such efforts were simply too
little and too late. Moreover, contrary to Kyra’s assertions, we find evidence in the record to
support the juvenile court’s finding that Nyla’s relationship with Kyra was not beneficial to her.
The juvenile court proceedings were initiated in February 2020. The State filed its motion
to terminate Kyra’s parental rights to Nyla 18 months later, in August 2021. During the 18 months
from February 2020 to August 2021, Kyra made no progress toward achieving reunification with
Nyla. Kyra did not meaningfully participate in any of the tenets of her court ordered rehabilitation
plan. In fact, she did not appear at court hearings where the rehabilitation plan was discussed.
From February 2020 to August 2021, Kyra did not take steps to address her mental health
issues. She did not participate in a psychological or a psychiatric evaluation. During this time
period, Kyra also did not comply with court-ordered drug testing. As such, it is not clear whether
she was abusing any substances or whether she was maintaining sobriety. Kyra did not consistently
-9-
participate in family support services and, probably as a result, she was never able to obtain any
employment or stable housing. Kyra moved from homeless shelter to homeless shelter throughout
the pendency of the proceedings. Kyra did not keep in contact with her case worker and, when she
did engage in such communication, she was often confrontational and disrespectful.
Perhaps most concerning, was Kyra’s failure to attend visits with Nyla during the first 18
months the juvenile court proceedings were pending. Kyra did not see Nyla at all from February
2020 through late January 2021 partially because she refused to comply with the court’s order to
participate in a psychological evaluation before visits could commence. Despite her failure to
obtain the required evaluation, visitation was made available to her. Even then, though offered two
to three visits per week, Kyra attended only one visit per month on average from March through
August 2021. According to the evidence presented at the termination trial, from February 2020
when the case began through August 2021 when the motion to terminate was filed, Kyra saw Nyla
less than ten times.
We recognize that at about the same time the State filed its motion to terminate parental
rights in August 2021, Kyra made some efforts toward achieving reunification with Nyla in
conjunction with her stay at Bethlehem House. She reported having participated in a psychological
and a psychiatric evaluation and having started therapy. However, Kyra did not provide any further
information or documentation regarding the results of the evaluations or her progress in therapy to
her case worker. And, as such, by the time of the termination trial in November, Kyra’s mental
health status remained unknown. Kyra did start drug testing while at the Bethlehem House, and
did demonstrate her sobriety through those tests. Kyra also began attending visits with Nyla on a
weekly basis.
While we appreciate Kyra’s recent efforts to better her life and circumstances, we
ultimately conclude that such recent efforts were too little and too late. This court has previously
stated, “Last minute attempts by parents to comply with the rehabilitation plan do not prevent
termination of parental rights.” In re Interest of Tabitha J., 5 Neb. App. 609, 619-20, 561 N.W.2d
252, 260 (1997). Kyra was provided with more than adequate time to demonstrate an ability and
willingness to achieve reunification with Nyla. Instead, Kyra simply chose not to participate with
the rehabilitation plan for 18 months until the State filed its motion to terminate her parental rights.
Kyra’s delay indicated her unwillingness to put her child’s needs ahead of her own. Moreover, we
agree with the finding of the juvenile court that Kyra’s recent progress has only come within the
confines of a structured environment. Because she chose to delay her efforts at rehabilitation to
the eleventh hour, Kyra is not able to demonstrate any ability to maintain her current progress for
a meaningful period of time outside the structure of the Bethlehem House.
In her appellate brief, Kyra cites to In re Interest of Mateo L., 309 Neb. 565, 961 N.W.2d
516 (2021) to support her assertion that her efforts at reunification were not too little too late, but
that, instead, she has simply not been provided with a sufficient opportunity to achieve compliance
with her rehabilitation plan. However, contrary to Kyra’s assertions in her brief, the facts in this
case are distinguishable from the facts in Mateo. In Mateo, the Supreme Court affirmed the
juvenile court’s order dismissing the State’s petition to terminate a mother’s parental rights. In its
de novo review, the Supreme Court found that not only had the mother rectified the conditions that
resulted in the juvenile court’s involvement, but that the mother demonstrated a consistent and
continuing interest in achieving reunification with her children. In contrast, the facts of this case
- 10 -
demonstrate that Kyra chose not to participate with any part of the court-ordered rehabilitation
plan for 18 months until the State filed its motion to terminate her parental rights. During those
same 18 months, Kyra chose not to consistently attend visits with her child. Clearly, Kyra’s actions
are not that of a parent who has a consistent and continuous interest in achieving reunification.
Kyra was provided with more than enough time and opportunity to work toward achieving
reunification, yet she chose not to do the necessary work.
Moreover, in our de novo review, we cannot ignore the testimony of Nyla’s therapist who
explicitly opined that Nyla has not made any progress in dealing with the negative consequences
of her relationship with Kyra. Even as the visitation worker testified to Nyla’s excitement to see
Kyra at recent visits, Nyla’s therapist described Nyla as continuing to suffer from recurrent
nightmares where Kyra appears as a monster. In fact, such nightmares have apparently increased
since Nyla has begun seeing Kyla more regularly. Nyla questions Kyra’s love and commitment to
her and has endured trauma throughout her young life. Nyla needs stability, permanency, and
ongoing therapy. Kyra has not demonstrated a willingness or an ability to provide Nyla with any
of these needs for an extended period of time.
Simply stated, the evidence presented at the trial demonstrated that Kyra lacked a
willingness to be a parent to Nyla for a majority of the time the case was pending. She failed to
make any timely and meaningful efforts to improve her parenting abilities or to improve her
relationship with Nyla, despite all of the opportunities and services provided to her. The
proceedings have been pending since February 2020, and we cannot say that Kyra was much closer
at the time of trial to achieving reunification with Nyla than she was when the case began. Nebraska
courts have recognized that children 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). Nyla deserves stability and Kyra has thus far demonstrated no sustained willingness
or ability to provide that stability. Accordingly, we agree with the juvenile court that there was
sufficient evidence presented at the termination hearing to demonstrate that Kyra is currently an
unfit parent for Nyla. We, thus, affirm the decision of the juvenile court finding that termination
of Kyra’s parental rights is in Nyla’s best interests.
CONCLUSION
Upon our de novo review of the record, we find that there was sufficient evidence presented
to warrant the termination of Kyra’s parental rights to Nyla. As such, the order of the juvenile court
is affirmed.
AFFIRMED.
- 11 -