In re Interest of Madison B. & Olivia B.

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
IN RE INTEREST OF MADISON B. & OLIVIA B.
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 MADISON B. AND OLIVIA B.,
CHILDREN UNDER 18 YEARS OF AGE.
STATE OF NEBRASKA, APPELLEE,
V.
CHERI G., APPELLANT.
Filed April 21, 2020. No. A-19-786.
Appeal from the Separate Juvenile Court of Lancaster County: REGGIE L. RYDER, Judge.
Affirmed.
Troy J. Bird, of Hoppe Law Firm, L.L.C., for appellant.
Patrick Condon, Lancaster County Attorney, and Maureen Lamski for appellee.
MOORE, Chief Judge, and RIEDMANN and WELCH, Judges.
RIEDMANN, Judge.
INTRODUCTION
Cheri G. appeals the order of the separate juvenile court of Lancaster County which
terminated her parental rights to her minor children. Upon our de novo review of the record, we
affirm.
BACKGROUND
Cheri is the mother of two daughters: Madison G., born in 2010, and Olivia G., born in
2012. Throughout the case, Cheri was married to Jose G. Jose is not the biological father of
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Madison or Olivia, but because he is relevant to the factual history of the case, we refer to him as
necessary to address the issues raised on appeal.
Madison and Olivia were removed from Cheri and Jose’s home in March 2017 upon reports
of physical and mental abuse and neglect. The affidavit in support of their removal from the home
alleged that the Nebraska Department of Health and Human Services (DHHS) had received intakes
in January reporting that Jose had struck Madison in the face, causing her nose to bleed, and in
February alleging that the girls were consistently made to stand in the corner and a relative kicked
the girls on their buttocks. The caller in February claimed that Cheri was aware of the abuse and
reported telling Cheri that Jose was abusive to Olivia, to which Cheri replied, “‘[T]hat’s because
Olivia has a big mouth.’” The caller also reported that Jose had threatened Cheri. The affidavit
further alleged that upon investigation of these reports, Madison said that Jose treats her and Olivia
like animals, that he made her eat dog treats and rabbit pellets, and that he bit her.
On March 6, 2017, the State filed a petition alleging that Madison and Olivia were children
within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016) due to the faults or habits of
Cheri. An adjudication hearing was held, and subsequently, the children were adjudicated under
§ 43-247(3)(a). Thereafter, the juvenile court held periodic review hearings as required.
On December 11, 2018, the court held an exception hearing pursuant to Neb. Rev. Stat.
§§ 43-292.02 (Cum. Supp. 2018) and 43-292.03 (Reissue 2016) to determine whether an exception
existed which would relieve the State of its duty to file a motion to terminate Cheri’s parental
rights. The court recognized that Madison and Olivia had been removed from the home on March
3, 2017, and had remained in an out-of-home placement since that time. After reviewing the record
and evidence received at the hearing, the court found that none of the exceptions provided under
the law apply in this case.
The State then filed a motion to terminate Cheri’s parental rights to Madison and Olivia on
February 6, 2019. The motion alleged that termination was appropriate under Neb. Rev. Stat.
§ 43-292(2), (6), and (7) (Reissue 2016) and that termination was in the best interests of the
children.
The termination hearing was held on July 11, 2019. The evidence revealed additional
details of the abuse the children suffered in the home. There were reports of Jose using “the hook”
on the girls, meaning he would hook his thumb or fingers under their tongues and push down really
hard, on occasion dragging them around the room. Madison disclosed that Jose would sometimes
put her and Olivia in a box in the bathroom on their hands and knees and hold the door shut while
forcing them to stay there for long periods of time. There was a photo of Madison in a dog carrier
and reports of hitting, kicking, and name-calling. Madison reported that Jose had previously
threatened to kill her if she ever revealed what happened in the home. There were also concerns of
possible sexual abuse due to Olivia’s inappropriate sexual behaviors, collateral information that
Cheri and Jose had sex in front of the children, and Madison’s report to a relative that Jose had
“raped” her. Shortly before the termination hearing was held, the girls began to describe to their
therapist the sexual abuse Jose inflicted on them.
Shortly after they were removed from Cheri’s care, Madison and Olivia began attending
therapy twice per week with provisionally licensed mental health practitioner, Erica Schroeder.
Schroeder repeatedly described Madison as an extremely traumatized child. Madison initially
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presented as very standoffish, fearful of others, and cautious, whereas Olivia acted overly
affectionate with people she did not know and referred to unknown people as “mom.” Although
the girls presented differently from each other, they both showed no attachment to people and
failed to make connections with people.
Throughout the case, both girls continued to struggle with extreme and inappropriate
behaviors. Madison would scream profanities during fits of anger, act aggressively when asked to
do something, and threaten to hurt other children. Olivia continued to have inappropriate physical
contact with animals and other adults and struggled with appropriate touching. At one point,
Madison was taken to the hospital after making statements that she wanted to die and that it would
be better if she was not here anymore. And at a later time, Olivia began taking medication to help
alleviate homicidal thoughts. Both girls were expelled from several daycare centers due to their
violent behaviors, and they struggled to control their behavior at school.
Cheri had visitation with the girls for the first several months of the case. However, in
September 2017, Schroder expressed concerns to the caseworker that Cheri was trying to “coach”
Madison during visits because Madison had reported during therapy that the only reason she was
placed out of home was because Cheri said that she lies a lot and that if she stops lying she can go
home. Visitation was therefore suspended beginning in December.
Once visitation ceased, the children’s behaviors began to regulate, and they began
communicating more openly to Schroeder about their thoughts and feelings. Both girls would
become angry and upset when talking about Jose and commented that they wanted him to go to
jail. They used foul language when describing him and said they hated him. At one point, Madison
stated that she wished Jose was dead. The girls continued to express extreme fear of Jose during
the entirety of the case. They were never allowed contact with him after they were removed from
the home.
Throughout the case, Cheri participated in and completed the services DHHS offered to
her, including an initial diagnostic interview and the recommended individual therapy, family
support services, and a parenting class. Despite this, the record documents ongoing concerns by
the caseworkers that Cheri was unable or unwilling to acknowledge the abuse Jose inflicted on
Madison and Olivia. In January 2018, the caseworker indicated that it was apparent that Cheri
continued to not understand why the children had been removed or accept that any part of what
the children had reported was true. In October, the caseworker again expressed concern that Cheri
had not acknowledged the reason for the removal of the children; rather, she denied any
wrongdoing by her or Jose and had not acknowledged the abuse and neglect that the girls had
reported. Two months later, the caseworker again said that there were continuing concerns that
Cheri had yet to acknowledge the reason for the removal of the girls or all of the abuse and neglect
that they had reported.
In May 2018, Cheri and the girls began exchanging letters with the approval of Schroeder.
The girls had various reactions to Cheri’s letter writing and were apprehensive to participate. In
September, Schroeder arranged a family therapy session between Cheri and each of her daughters
separately. Each of the children mentioned Jose’s use of “the hook” to Cheri along with other
abuse that occurred, but Cheri showed no reaction, acknowledgment, or empathy toward her
children. At the end of each session, Cheri said to each of her children, “See you when I see you.”
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When Schroeder spoke with Cheri a few days later, Cheri said that she is in a difficult position
between Jose and her children and said that people “have the wrong idea” about Jose and that he
is not abusive.
After these September sessions, Schroeder recommended no additional family sessions
until Cheri sought further individual therapy in order to help her process her own history of trauma
and gain the ability to empathize and provide validation to her children. Schroeder opined that
continuing family sessions without Cheri completing these components would damage the
progress the girls had made in treatment and not be in the children’s best interests.
Cheri returned to individual therapy in November 2018 and continued attending through
the time of the termination hearing. In February 2019, Schroeder arranged a therapeutic visit
between Cheri and her children by phone. The conversation was not beneficial for the children,
however, and their behaviors began to escalate thereafter such that Schroeder did not feel
additional phone contact with Cheri was in the children’s best interests.
In May 2019, Cheri wrote a letter to Madison and Olivia. Therein, she explained that she
wanted to try to answer their question about why she had not left Jose, stating that she cares very
much about him and that she also cares very much about her children. She wrote that she feels that
Jose is working hard to make their home a safe place for Madison and Olivia, and that she, too,
was working toward making the home safe. Schroeder did not share the letter with Madison or
Olivia.
At the time of the termination hearing, Madison and Olivia had been living in their current
foster placement since October 2018. Madison had just turned 9 years old and was attending
Behaven Kids, an organization designed to assist children with behavioral or mental health issues.
Her therapist there testified that Madison’s behaviors had become out of control at home and at
school, precipitating the referral. She reported that Madison had expressed concerns about not
wanting to be returned home because she did not feel safe, and the therapist explained that if
Madison did not feel safe, she would continue to act out. She explained that Madison acts out
because of her distrust of people as a result of feeling unsafe at a point in her life. The therapist
stated that if children feel unsafe at an early age, it takes a long time to rebuild their trust, and they
have to be in very loving relationships and feel safe before they can begin trusting people.
According to the therapist, Madison is very slowly making progress on learning how to trust
people. The therapist explained that children in general need permanency to feel a sense of safety
and belonging, and specifically for Madison and her behaviors, she needs permanency and a
regular routine with people who love and support her to help her emotional development in order
to rebuild trust and feel the safety and love that she needs in order to continue to progress.
Olivia was 6 years old at the time of the termination hearing and continued to become
escalated at school, run out of class, and become upset when trying to work through her emotions.
She was expelled from her daycare in June 2019 for kicking, hitting, slapping, punching, and
pulling down a child’s pants; so her foster mother found a nanny for her and reported that Olivia
was doing better in the more structured environment provided by the nanny.
As of the time of the termination hearing, Cheri was still attending individual therapy and
making progress working through her history of childhood abuse and neglect. In a letter dated 2
days before the hearing, Cheri’s therapist wrote that Cheri understands that Jose’s physical abuse
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of the girls has left them fearful; however, Cheri denied having witnessed most of the abuse and
tends to minimize both the severity and the lasting impact it has had on the girls. Instead, Cheri
believes their current negative and extreme behaviors may be the result of many factors, given
their history of multiple foster placements.
The therapist indicated that Cheri continues to doubt that some of what the girls have
reported in their therapy is accurate and maintains that until she hears the girls describe the physical
abuse by Jose to her directly, she cannot conclude that it actually occurred as they have described
it to Schroeder and the caseworker. The letter explains that Madison and Olivia had recently made
additional reports that they were sexually abused and identified Jose as their perpetrator. Cheri’s
therapist said that she shared this information with Cheri, and while Cheri did believe that the girls
may have been sexually abused, she did not believe that Jose could have sexually assaulted and
threatened them in the manner they described. The therapist indicated that she would continue to
work with Cheri regarding the impact of trauma on children and how and why victims typically
report abuse over time. In addition, she would share information with Cheri regarding the secretive,
manipulative, and coercive methods that some offenders use to gain and maintain sexual access to
children.
Schroeder did not believe that it would be in the best interests of the children to return them
to Cheri. Both girls have indicated strongly that they do not want to return because it is a dangerous
situation for them, and they both have high anxiety and fear associated with home. Schroeder was
asked whether she believed, based on her experience of working with the girls, that it would be
possible to reunify them with Cheri at some point, and she said no because of Cheri’s unwillingness
to leave Jose. She said that even the possibility of reunification “would be torturing them.” She
was asked about the possibility of reunifying the children with Cheri without taking Jose into
consideration, and she said it could be possible if there was a complete understanding that Cheri
was no longer with Jose and had no contact with him, Cheri continued individual therapy, and they
worked on rebuilding the girls’ trust in Cheri. But Schroeder added that she did not know “how
many years that would take.” Likewise, the current caseworker testified at the termination hearing
that DHHS believes that terminating Cheri’s parental rights is in the children’s best interests
because of the length of time the girls have been out of home; their high behaviors and needs; and
their need to be in a stable, secure, and safe environment.
Thereafter, the juvenile court entered an order terminating Cheri’s parental rights to
Madison and Olivia. The court found that it was readily apparent that the children endured
extensive trauma while living with Cheri and Jose and that both children had an ongoing and
consistent fear of Jose. The court found that it was “beyond obvious” to anyone who had reviewed
the reports received at the numerous review hearings that the children’s fear of Jose has never
abated or subsided but that Cheri continued to stay with Jose and justify her decision to do so. The
court found that throughout the case, Cheri complied with the services DHHS provided to her, but
in reality, “she just went through the motions” and did not make the changes she needed to make
in order for the children to return home.
The court found that the primary issue in the case had been Cheri’s continued denial that
the abuse the girls suffered at the hands of Jose even took place. Cheri was consistently unwilling
or unable to acknowledge the reason the girls were removed and consistently voiced that neither
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she nor Jose did anything wrong. The juvenile court noted its surprise that Cheri testified that she
only recently learned that her girls fear Jose and noted that despite that discovery and everything
else that has happened, Cheri continues to stand by the man who abused her children. The court
said that Cheri decided to choose her husband over her children. Thus, the court determined that
Cheri had more than enough time and supports to put herself in a position for the girls to return
home but that she had been unwilling or unable to rehabilitate herself within a reasonable period
of time, such that the best interests of the children require termination of Cheri’s parental rights.
The court therefore found by clear and convincing evidence that termination was appropriate under
§ 43-292(2), (6), and (7), and was in the best interests of the children. Cheri appeals.
ASSIGNMENTS OF ERROR
Cheri assigns, renumbered, that the juvenile court erred in (1) determining that she had
substantially and continuously neglected and refused to provide the children necessary parental
care and is unfit to parent them now and in the future, (2) terminating her parental rights when the
State failed to provide reasonable efforts at reunification, and (3) determining that no exception
existed to allow her more time to reunite with her children.
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 Zoie H., 304 Neb. 868, 937 N.W.2d
801 (2020).
ANALYSIS
Termination of Cheri’s Parental Rights.
Cheri assigns that the juvenile court erred in determining that she had substantially and
continuously neglected and refused to provide the children necessary parental care. In other words,
she argues that the court erred in terminating her parental rights pursuant to § 43-292(2).
In order to terminate parental rights, a court must find by clear and convincing evidence
that one of the statutory grounds enumerated in § 43-292 exists and that the termination is in the
child’s best interests. In re Interest of Isabel P. et al., 293 Neb. 62, 875 N.W.2d 848 (2016). In the
instant case, the State sought to terminate Cheri’s parental rights pursuant to § 43-292(2), (6),
and (7).
Under § 43-292(7), the State must prove that the juvenile has been in an out-of-home
placement for 15 or more months of the most recent 22 months. Here, the children were removed
from Cheri’s care in March 2017, and they remained placed outside the home throughout the
duration of the case. The State filed the motion to terminate Cheri’s parental rights in February
2019. Thus, at that time, the children had been in an out-of-home placement for 23 months. The
State therefore presented clear and convincing evidence to satisfy § 43-292(7).
Section 43-292 requires that the State prove only one of the enumerated statutory grounds
for termination of parental rights. See In re Interest of Isabel P. et al., supra. Because we conclude
that there is sufficient evidence that the children have been in an out-of-home placement for 15 or
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more months of the most recent 22 months, we need not address the other statutory grounds which
the juvenile court found to exist.
We note that Cheri also assigns that the juvenile court erred in terminating her parental
rights because the State failed to provide her reasonable efforts to help her reunite with her
children. Neb. Rev. Stat. § 43-283.01(2) (Cum. Supp. 2018) requires the State to make reasonable
efforts to preserve and reunify the family subject to certain exceptions not applicable here.
However, § 43-283.01 is incorporated only into § 43-292(6), not into the remaining subsections of
§ 43-292. In re Interest of DeWayne G. & Devon G., 263 Neb. 43, 638 N.W.2d 510 (2002); In re
Interest of Andrew M. et al., 11 Neb. Ct. App. 80, 643 N.W.2d 401 (2002). Because we have
determined that termination was proper pursuant to § 43-292(7) and that the State need establish
only one of the statutory grounds enumerated in § 43-292, § 43-283.01 is not applicable to this
case. See In re Interest of Andrew M. et al., supra. We therefore need not specifically address
Cheri’s argument regarding reasonable efforts.
However, the evidence adduced to prove termination on any statutory ground other than
§ 43-292(7) is highly relevant to the best interests of the children, as it would show abandonment,
neglect, unfitness, or abuse, and thus, whether the State proved by clear and convincing evidence
grounds for termination under § 43-292(6) is highly relevant to a determination of the children’s
best interests. See In re Interest of Shelby L., 270 Neb. 150, 699 N.W.2d 392 (2005). We will
therefore consider Cheri’s arguments relating to reasonable efforts in the context of her unfitness
and the best interests of the children.
A child’s best interests are presumed to be served by having a relationship with his or her
parent. In re Interest of Isabel P. et al., 293 Neb. 62, 875 N.W.2d 848 (2016). This presumption is
overcome only when the State has proved that the parent is unfit. Id. In the context of the
constitutionally protected relationship between a parent and a child, parental unfitness means a
personal deficiency or incapacity which has prevented, or will probably prevent, performance of a
reasonable parental obligation in child rearing and which has caused, or probably will result in,
detriment to a child’s well-being. Id. The best interests analysis and the parental fitness analysis
are fact-intensive inquiries. And while both are separate inquiries, each examines essentially the
same underlying facts as the other. Id.
Cheri argues that the court erred in finding her unfit to parent her children when she
successfully completed all services offered to her and when her progress was blocked by
Schroeder. Although Cheri completed the services that DHHS provided, the barrier to reunification
that continued throughout the entirety of the case was Cheri’s unwillingness or inability to
acknowledge the abuse or trauma the children endured while living with her and Jose. The record
is replete with concerns that Cheri continued to deny any wrongdoing, refused to acknowledge or
admit that Jose had done anything wrong, and did not believe the girls’ reports of abuse.
In a letter dated just 2 days before the termination hearing, Cheri’s therapist wrote that
Cheri continued to doubt some of what the children had reported and did not believe that Jose
could have sexually assaulted and threatened them in the manner that they had just recently
described. While testifying at the termination hearing, Cheri was asked whether she believed the
girls’ reports of their abuse by Jose, and she said that she believed “some of them.” She was asked
whether she viewed Jose as a safety risk for the children, and she did not “exactly know how to
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answer that” question. She testified that if she was asked to move out of Jose’s house, she would
do so in order to get her children back, but when asked whether that was the only reason she would
move out, she responded, “I mean I feel safe around him. So --.”
Cheri claims that any progress she made during the case was blocked by Schroeder,
because visitation remained suspended throughout most of the case based on Schroeder’s
recommendation. Visitation was initially suspended in June 2017 because Schroeder expressed
concerns that Cheri was trying to “coach” Madison during visits. Visits remained suspended
because the girls continued exhibiting extreme behaviors and expressing fear of Jose. When
therapeutic sessions were attempted in September 2018, Madison and Olivia each talked with
Cheri about things Jose had done to her, but Cheri did not react to or acknowledge their disclosures
or empathize with their feelings. Afterward, Cheri explained to Schroeder that she was in a
“difficult position” between Jose and her children and claimed that “people have the wrong idea
about [Jose] and he’s not abusive.”
The children’s behaviors increased after meeting with Cheri, and Schroeder recommended
that no additional family sessions occur until Cheri sought treatment to deal with her own history
of trauma in order to learn how to empathize with the children and validate their feelings and
experiences. Nevertheless, a therapeutic visit by phone between Cheri and the girls was attempted
in February 2019, but according to Schroeder, it was not beneficial for the girls. The girls started
having negative behaviors associated with the conversation, so she did not attempt any additional
phone conversations or therapeutic visits after that. Thus, Schroeder’s recommendation that
visitation between Cheri and the girls remain suspended, while potentially hindering an attempt at
repairing the bond between Cheri and the children, was done because the children reacted
negatively to their therapeutic visits with Cheri, and Cheri was unable or unwilling to validate their
traumatic history and feelings in that regard.
As referenced above, Cheri asserts that DHHS failed to provide reasonable efforts aimed
at reunifying her with her children. She specifically claims that her leaving Jose was DHHS’
“informal” position in order for reunification to occur but that DHHS never offered services to
assist her in establishing an independent household away from Jose. Brief for appellant at 12. Each
of the three caseworkers assigned to the case, however, testified at the termination hearing that it
was not DHHS’ position that Cheri had to leave Jose in order to achieve reunification. And
throughout the 28 months from the time the children were removed to the time of the termination
hearing, the children had not made sufficient progress to return to Cheri, with or without Jose in
the home. At the time of the hearing, the girls were still exhibiting extreme behaviors, such that
Madison had been referred to Behaven Kids just three months prior to the hearing and Olivia had
been expelled from her daycare the month before the hearing. Therefore, although we disagree
with Cheri that her leaving Jose was required before reunification could occur, the children were
not in a position to achieve reunification at any point during the case whether Cheri was living
with Jose or independently.
More concerning and relevant to the question of Cheri’s unfitness as a parent, however, is
her position regarding Jose. She was still married to him and living with him at the time of the
termination hearing. On several occasions, including at the hearing, she indicated that she would
leave Jose if it would help her get her children back, but she remained with him and continued to
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justify her decision to do so. In a May 2019 letter to the children, Cheri stated that she wanted to
try to explain why she had not left Jose, writing that she cares very much about him and believed
that he was working hard to make their home safe for the children.
At the termination hearing, Cheri testified that although she had received copies of the
court reports detailing the allegations the children had made against Jose dating back to the
beginning of the case, she had just recently realized that her children were afraid of him. She
stopped short of acknowledging that he was a safety risk to the children and said that she felt safe
around him. Thus, despite having attended individual therapy throughout the case, it does not
appear that Cheri gained any insight into why her relationship with Jose was a problem, as opposed
to simply believing that the relationship might be a barrier to reunification with the children. In
other words, it is concerning that Cheri wanted to continue her relationship with someone who
abused and terrified her children, and as the juvenile court articulated, Cheri was choosing Jose
over her children.
Ultimately, Schroeder opined that it would not be in the children’s best interests to return
to Cheri. Both girls have strongly indicated to her that they do not want to return home, and they
both continue to have high anxiety and fear associated with home. Madison’s therapist at Behaven
Kids testified that Madison had expressed similar concerns to her, fearing being placed back home
with Cheri because she was not safe there.
Schroeder testified that reunification with Cheri was not possible because of Cheri’s
unwillingness to leave Jose, and that even the possibility of reunification would be “torturing
them.” Without taking Jose into consideration, Schroeder thought reunification could be possible
if Cheri was no longer with Jose and had no contact with him, if Cheri continued individual
therapy, and if they worked on rebuilding the girls’ trust in Cheri. But she did not know “how
many years that would take.”
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). Given that 28 months into the case, Cheri remained unwilling or unable
to place her children above Jose and the children continued to exhibit extreme behaviors and relay
a fear of returning home, resulting in the continued suspension of visitation with Cheri, the record
does not establish that Cheri has made continued improvement or that a beneficial bond between
her and the children exists. And it does not appear that permanency with Cheri could be achieved
in the foreseeable future. Children cannot, and should not, be suspended in foster care or be made
to await uncertain parental maturity. In re Interest of Jahon S., 291 Neb. 97, 864 N.W.2d 228
(2015). Accordingly, we find that the clear and convincing evidence establishes that Cheri is unfit
and that terminating her parental rights is in the best interests of the children.
Exception to Filing Motion to Terminate Parental Rights.
Cheri also assigns that the juvenile court erred in determining that no exception existed
under § 43-292.02 to allow her more time to reunite with her children.
We first address the State’s argument that this issue is not properly before this court. As
the State notes, the juvenile court determined that no exception existed in an order filed in
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December 2018, months prior to the order terminating Cheri’s parental rights. The Nebraska
Supreme Court, however, has ruled that an order by the juvenile court finding that no exception
exists under § 43-292.02 is not a final, appealable order because it does not affect a substantial
right of the parent. See In re Interest of Anthony R. et al., 264 Neb. 699, 651 N.W.2d 231 (2002).
The filing of a termination pleading, standing alone, does not affect any substantial right of a
parent. Id. If such a petition is filed pursuant to the court’s order, the parent will receive notice and
an opportunity to be heard in accordance with statutorily prescribed procedures. Id. If the filing of
a petition for termination of parental rights ultimately results in an order adverse to the parent, it
is well established that such an order is final and appealable. Id. Thus, Cheri could not have
appealed the December 2018 order because it was not a final order.
Cheri now argues that the court should have found an exception under § 43-292.02, which
would have allowed her additional time to work toward reunification. This conclusion does not
logically follow, however. The State is obligated to file a petition to terminate the parental rights
of a parent if the child has been in foster care under the responsibility of the State for 15 or more
months of the most recent 22 months. § 43-292.02(1). Within 30 days after the 15-month period
under § 43-292.02(1), the court shall hold a hearing on the record and shall make a determination
on the record as to whether there is an exception under § 43-292.02(3) in this particular case.
§ 43-292.03(1).
The purpose of an exception hearing, derived from the plain language of § 43-292.03(1),
is to determine whether the State may be excused from the mandatory requirement of
§ 43-292.02(1) that it file a petition to terminate parental rights under certain circumstances,
including those where a juvenile has been in foster care under the responsibility of the State for 15
of the most recent 22 months. In re Interest of Clifford M. et al., 261 Neb. 862, 626 N.W.2d 549
(2001). The State is not required to file a petition to terminate if the juvenile court determines at
the exception hearing that any of the circumstances specified in § 43-292.02(3) exist. In re Interest
of Clifford M. et al., supra. If such circumstances are not shown, § 43-292.03(1) provides that the
State shall proceed as provided in subsection (1) of section 43-292.02, which requires the filing of
a petition to terminate parental rights under specified circumstances. In re Interest of Clifford M.
et al., supra. While an exception hearing may afford a basis for relieving the State of its statutory
obligation to file a petition to terminate under § 43-292.02(1), neither § 43-292.02 nor § 43-292.03
would prevent the State from petitioning for termination of parental rights under § 43-292 even if
it were not required to do so. See In re Interest of Clifford M. et al., supra.
Stated differently, once a child has been in an out-of-home placement for the 15-month
period, the State is generally required to file a petition to terminate the parental rights of the child’s
parents, subject to the outcome of the exception hearing. If the juvenile court finds that no
exception under § 43-292.02(3) exists, the State remains obligated to file the termination petition.
If the court determines that a statutory exception does exist, the State is no longer required to file
the petition; however, it may elect to do so anyway. In other words, the State may choose to file
the termination petition after the 15-month period regardless of the outcome of the exception
hearing.
We therefore do not agree with Cheri that had the juvenile court found an exception in this
case, she would have had additional time to work toward reunification. To the contrary, at the
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exception hearing, the State argued that no exception existed due to the amount of time the case
had been ongoing and the extent, or lack thereof, of Cheri’s participation. It is therefore reasonable
to infer that even if an exception had been found, the State would have chosen to move forward
with the filing of the termination petition, rather than allowing Cheri additional time to work
toward reunification.
CONCLUSION
For the foregoing reasons, upon our de novo review of the record, we affirm the order of
the juvenile court terminating Cheri’s parental rights to Madison and Olivia.
AFFIRMED.
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