In re Interest of Audrey T.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/29/2019 08:08 AM CST
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IN RE INTEREST OF AUDREY T.
Cite as 26 Neb. Ct. App. 822
In re I nterest ofAudrey T., a child
under 18 years of age.
State v. Nebraska, appellee,
v. Sabra T., appellant.
___ N.W.2d ___
Filed January 29, 2019. No. A-17-1308.
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.
2. Parental Rights: Proof. The bases for termination of parental rights
are codified in Neb. Rev. Stat. § 43-292 (Reissue 2016). Section 43-292
provides 11 separate conditions, any one of which can serve as the basis
for the termination of parental rights when coupled with evidence that
termination is in the best interests of the child.
3. 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.
4. Indian Child Welfare Act: Parental Rights: Proof: Expert Witnesses.
To terminate parental rights, the State must prove by clear and con-
vincing evidence that one or more of the statutory grounds listed in
Neb. Rev. Stat. § 43-292 (Reissue 2016) have been satisfied and that
termination is in the child’s best interests. The Nebraska Indian Child
Welfare Act adds two additional elements the State must prove before
terminating parental rights in cases involving Indian children. First, the
State must prove by clear and convincing evidence that active efforts
have been made to prevent the breakup of the Indian family and that
these efforts have proved unsuccessful. Second, the State must prove by
evidence beyond a reasonable doubt, including testimony of qualified
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expert witnesses, that the continued custody of the child by the parent
or Indian custodian is likely to result in serious emotional or physical
damage to the child.
5. ____: ____: ____: ____. Pursuant to the Nebraska Indian Child Welfare
Act, before a court may terminate a parent’s rights to their child or
children, the State must prove by evidence, beyond a reasonable doubt,
including testimony of qualified expert witnesses, that the continued
custody of the child by the parent or Indian custodian is likely to result
in serious emotional or physical damage to the child. This evidence must
be established by qualified expert testimony provided by a professional
person having substantial education and experience in the area of his or
her specialty.
6. ____: ____: ____: ____. Neb. Rev. Stat. § 43-1505(6) (Reissue 2016)
requires that the qualified expert’s opinion must support the ultimate
finding of the court, i.e., that continued custody by the parent will likely
result in serious emotional or physical damage to the child.
7. Parental Rights: Proof. Once a statutory basis for termination has been
proved, the next inquiry is whether termination is in the child’s best
interests.
8. Parental Rights. When a parent is unable or unwilling to rehabilitate
himself or herself within a reasonable period of time, the child’s best
interests require termination of parental rights.
9. ____. Children cannot, and should not, be suspended in foster care or be
made to await uncertain parental maturity.
10. Indian Child Welfare Act: Parental Rights: Proof: Notice. The stated
purposes of the Nebraska Indian Child Welfare Act are best served by
allowing parents to raise, in their direct appeal from a termination of
parental rights, the issue of the State’s failure to notify the child’s Indian
tribe of the termination of parental rights proceedings.
Appeal from the County Court for Scotts Bluff County:
James M. Worden, Judge. Affirmed.
Bernard J. Straetker, Scotts Bluff County Public Defender,
for appellant.
Danielle Larson, Deputy Scotts Bluff County Attorney, for
appellee.
Pirtle, R iedmann, and Welch, Judges.
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Welch, Judge.
INTRODUCTION
Sabra T., the biological mother of Audrey T., appeals the
termination of her parental rights. She contends that the Scotts
Bluff County Court, sitting in its capacity as a juvenile court,
erred in terminating her parental rights pursuant to Neb. Rev.
Stat. § 43-292(2), (5), (6), and (7) (Reissue 2016) and finding
that termination was in Audrey’s best interests. Sabra further
contends that the State failed to prove beyond a reasonable
doubt, as required by the Nebraska Indian Child Welfare Act
(NICWA), Neb. Rev. Stat. §§ 43-1501 to 43-1517 (Reissue
2016), through qualified expert witness testimony, that the
continued custody of Audrey by Sabra was likely to result in
serious emotional or physical damage to Audrey. Finally, Sabra
contends that the State failed to provide proper notice to the
Oglala Sioux Tribe in violation of NICWA. For the reasons set
forth herein, we affirm the order terminating Sabra’s paren-
tal rights.
STATEMENT OF FACTS
Sabra is the biological mother of Audrey, who was born in
August 2013. Because Audrey is an enrolled member of the
Oglala Sioux Tribe, NICWA applies to this case.
On January 5, 2016, the State filed an adjudication peti-
tion alleging that Audrey was a child within the meaning of
Neb. Rev. Stat. § 43-247(3)(a) (Supp. 2015) for the reason
that she lacked proper parental care by reason of the fault
or habits of Sabra. Specifically, the State alleged Sabra was
unable to meet Audrey’s basic needs for care and protec-
tion, Sabra uses inappropriate discipline, and Sabra’s mental
health issues put Audrey at risk of abuse and/or neglect. The
petition further alleged that NICWA was applicable because
Audrey was of Native American heritage. That same day, the
court entered an order placing temporary custody of Audrey
with Nebraska’s Department of Health and Human Services
(DHHS), and Audrey was removed from Sabra’s home. Audrey
has consistently been a ward of the State since that time.
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On March 11, 2016, the court entered an order adjudicating
Audrey as a child within the meaning of § 43-247(3)(a). The
court found the State had met its burden, by a preponderance
of the evidence, that Sabra was unable to meet Audrey’s basic
needs for care and protection and that her mental health issues
put Audrey at risk of harm. The court further found that active
efforts had been made by the State to “prevent the breakup of
the Native American family,” including family support, food
vouchers, transportation, parenting classes, and case manage-
ment; that the child would experience serious emotional or
physical damage if left in the family home; that court place-
ment was with a family member and was “ICWA compliant”;
and that the court’s “findings related to ICWA are supported by
the testimony of an ICWA expert.”
The State filed a motion to terminate Sabra’s parental rights
on July 31, 2017, alleging that termination was appropriate
pursuant to § 43-292(2), (5), (6), and (7) and that termination
was in Audrey’s best interests. The termination motion also
again set forth that NICWA was applicable to this case. The
termination hearing was held on September 27 and concluded
on October 27. The State adduced testimony from psychologist
Dr. Gage Stermensky, mental health therapist Sarah Bernhardt,
a youth transition support worker, Audrey’s aunt, DHHS child
and family service specialist Cassie Beasant, and Theresa
Stands. Sabra testified in her own behalf.
The youth transition support worker testified that Sabra,
who was born in 1994, has been in the youth transition sup-
port program since March 2016. The youth transition sup-
port program assists youth from 16 to 25 years old that
have been diagnosed with mental illness and/or substance
abuse to transition into adulthood by providing assistance
in various areas such as housing, transportation, budgeting,
finances, employment, vocational rehabilitation, and educa-
tion. While in the program, Sabra has been receiving services
specific to budgeting, forming healthy relationships, parent-
ing techniques, and vocational rehabilitation. According to
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the support worker, Sabra, who suffers from mental illness,
struggles primarily in the areas of scheduling and engaging in
healthy relationships.
In April 2016, Audrey and Sabra were referred to Bernhardt
for child-parent psychotherapy. Bernhardt explained that child-
parent psychotherapy is for children up to age 5 and “is an
attachment-focused intervention, a therapy that is intended to
treat a relationship between a caregiver and a child, particularly
when there’s been a trauma that has been experienced that has
impacted their relationship.” Bernhardt testified that Sabra’s
attendance at therapy was inconsistent: Bernhardt had a total
of 25 visits with Sabra, 19 of which included Audrey, with
16 missed visits. Bernhardt testified that Audrey “knows her
mother,” they have a positive relationship, and there is a con-
nection between them.
Beasant testified that she became the caseworker for this
case at the end of November 2016 and that she remained
the caseworker at the time of the termination hearing. When
Beasant was assigned the case, Sabra was living in an apart-
ment and was working at a bakery. Beasant testified that for
a period of time, Sabra was having some unsupervised visits
with Audrey in her apartment, but that ended in December
2016 after family support workers found unsafe individ­uals
present with Audrey and Sabra during a drop-in visit. These
“unsafe individuals” were people known to Beasant as meth-
amphetamine users, individuals who were in treatment for
alcoholism, or individuals who had their parental rights ter-
minated to their own children. Sabra regained unsupervised
visits between March and April 2017, but these unsupervised
visits ended in August 2017 after Audrey alleged that an
individual who lived at her foster home had sexually abused
her. Audrey later recanted this accusation and said that Sabra
had told her to make the accusation. Sabra had not regained
unsupervised visits since that time. Further, to Beasant’s
knowledge, Sabra’s visits with Audrey never included over-
night visits.
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Beasant testified that none of Sabra’s goals have changed
in any of the case plans prepared by DHHS. She clarified this
testimony by stating that in the original case plan, the priority
goals for Sabra were for safe and stable housing, a legal means
of income, and safe parenting. According to Beasant, although
Sabra has had the same original goals throughout the entire
case, there have been periods of time where Sabra does very
well with her goals, but “it doesn’t last long and we’re back-
sliding again.” Some examples of this “backsliding” were that
there were periods of time, from a couple of weeks to a month
at a time, where Sabra would not miss work; would attend
all of her visits; would make nutritious, homemade meals for
Audrey; and would do activities with Audrey; however, Sabra
would not sustain that progress, and during unsupervised visits,
she would have unsafe individuals around Audrey.
Beasant explained that the permanency plan was changed to
a goal of guardianship in April 2017. This change in the perma-
nency goal was made, in part, at Sabra’s request, so she would
have more time to become “a more suitable parent” and gain
more skills, including recognizing “red flags” in relationships
and having appropriate “informal supports.” Sabra wanted “to
slow down the pace so that she wasn’t overwhelmed.” Even
after Sabra had asked for more time to work on her case plan
goals, she failed to make progress on them. Beasant explained,
“It seemed to be at a standstill, plateaued, if you will, as to our
progress that was being made. There was no consistency in
therapy with Audrey, building those relationships, working on
her parenting skills.”
In part due to Sabra’s lack of progress, in July 2017, the
permanency plan goal was changed to adoption. The rea-
sons for DHHS’ recommendation that the goal be changed
to adoption included Sabra’s lack of progress during the 22
months the case had been open, the length of time the case
had been open, and Sabra’s failure to show any sustainable
progress. Beasant further testified that DHHS’ view is that it
is in Audrey’s best interests for Sabra’s parental rights to be
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terminated, because “Audrey is doing very well where she’s at
and excelling . . . .”
Stermensky testified that at DHHS’ request, he completed
a parental capacity evaluation of Sabra in 2016, which eval­
uation was received into evidence as an exhibit. According
to Stermensky:
The main goal for any child welfare capacity evaluation is
to determine the ability for a parent to meet their child’s
welfare needs. And if they have displayed they can’t meet
those needs, why, [and are] there any types of processes
or treatment we can find to help get them to a point where
they’re able to fulfill those needs.
His diagnostic impressions for Sabra included schizophrenia
and post-traumatic stress disorder. Further, he testified that
within a reasonable degree of “psychologic certainty,” Sabra
did not appear to have the capacity to meet Audrey’s health
and welfare needs; however, he opined that if Sabra was able
to get longer-term treatment with medication compliance, the
issue could be revisited. Stermensky based his opinion on
Sabra’s denial and minimization of her severe psychotic disor-
der and noncompliance with medications which placed her “at
risk for decompensation,” as well as placing Audrey at risk.
Stermensky explained that decompensation, as it pertained to
Sabra, meant “[s]ymptom amplification,” including disorga-
nized behavior, hallucinations, and delusions. Stermensky’s
recommendation for Sabra was for long-term treatment and
medication management.
The State’s evidence from Stands was admitted via deposi-
tion testimony received into evidence as an exhibit. Stands has
been an enrolled member of the Oglala Sioux Tribe since she
was born and has raised her children in the tribal traditions.
Additionally, for 36 years, Stands worked for the Scottsbluff
Public Schools in the “Title 7, Indian education” program.
Stands testified she worked for the parent committee and her
job was “to be advocate for Native American students and their
families between the home and the school” and she “was also
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an advocate for the schools to try to help them culturally with
the Native American families.” Stands also worked with native
dance groups, set up a Lakota language class, and assisted with
powwows. Stands testified that based upon her training, work
experience, and her tribal membership, she is familiar with the
values the Oglala Sioux Tribe places on its children. According
to Stands, the tribe places a very high value on its children,
stating that the children are provided “respect, generosity, our
children are always considered sacred. So we take care of them
and try to raise them by not just verbally but by living our lives
so that they can do the right things.”
Stands familiarized herself with Audrey’s case by review-
ing the case file, which included the DHHS case plan and
court reports, as well as the court’s journal entries and orders
and documentation sent to the Oglala Sioux Tribe, guardian
ad litem reports, and evaluations. Stands testified that based
on her knowledge as an “expert witness in an ICWA case,”
the State had made the following active efforts in this case:
providing support for Audrey and Sabra, including physical
support, housing, food, therapy, counseling, and transporta-
tion. Further, based upon Stand’s review of the file in this
case, it was her understanding that Audrey had ended up in
the State’s care and custody because Sabra “was not mentally
and emotionally able to care for her and Audrey may have
been put in a place where she could have been neglected.”
Specifically, she identified Sabra’s lack of knowledge of
how to cook for Audrey, how to take care of her, or how to
discipline her, as evidenced by one report that Sabra had dis-
ciplined Audrey by “duct tap[ing] her in a car seat.” Stands
opined that Sabra would make improvements in the case,
but that she was not emotionally or mentally stable enough
to maintain those improvements. She further testified that if
the State “were to just walk away” from the case, it “was a
possibility” that Audrey “would face emotional or physical
damage” if left with Sabra due to Sabra’s mental state, which
had been described as “being depressed [and] overwhelmed,
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having anxiety, [and] not being able to really provide for
[Sabra’s] own needs.”
Sabra testified that she had been living in a two-bedroom
apartment since the end of July 2017 and that she had been
working part time at a fast-food restaurant for a little over 2
months. Sabra also receives Social Security benefits for mental
health illness and has someone to help her manage her money.
She testified that she is not a “bad parent,” but, rather, she is
just a “first-time parent,” and that Audrey benefits from having
a continued relationship with her.
In an order filed on December 8, 2017, the court terminated
Sabra’s parental rights pursuant to § 43-292(2), (5), (6), and
(7) and found that termination was in Audrey’s best interests.
The court further found, by clear and convincing evidence,
that active efforts had been made to provide remedial services
and rehabilitative programs designed to prevent the breakup of
the Indian family and that those efforts were unsuccessful as
to Sabra. The court further found, beyond a reasonable doubt,
based upon the evidence at trial, including Stands’ opinion
testimony, that Audrey’s continued custody or placement with
Sabra was likely to result in serious emotional or physical dam-
age. The court specifically found that Sabra’s “mental health,
parenting style, dangerous associations, and inconsistency
would place Audrey in great danger if Sabra was the custodial
parent and the case closed.”
ASSIGNMENTS OF ERROR
Sabra assigns as error that the court erred in terminating
her parental rights pursuant to § 43-292(2), (5), (6), and (7).
Sabra further contends that the State failed to prove beyond
a reasonable doubt, as required by NICWA, through quali-
fied expert witness testimony, that the continued custody of
Audrey by Sabra was likely to result in serious emotional or
physical damage to Audrey. She also contends that the court
erred in finding that termination was in Audrey’s best interests.
Finally, Sabra contends that the State failed to provide proper
notice to the Oglala Sioux Tribe in violation of NICWA.
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STANDARD OF REVIEW
[1] An appellate court reviews juvenile cases de novo on the
record and reaches its conclusions independently of the juve-
nile court’s findings. In re Interest of Giavonna G., 23 Neb.
App. 853, 876 N.W.2d 422 (2016).
ANALYSIS
Statutory Grounds for Termination
Sabra first contends that the court erred in terminating
her parental rights based upon its findings that the State had
established by clear and convincing evidence that she had
substantially and continuously neglected to give Audrey nec-
essary parental care and protection (§ 43-292(2)), that Sabra
was unable to discharge parental responsibilities because of
mental illness or mental deficiency and there are reasonable
grounds to believe that such condition will continue for a
prolonged indeterminate period (§ 43-292(5)), that reasonable
efforts failed to correct the condition which led to the adjudi-
cation (§ 43-292(6)), and that Audrey had been in an out-of-
home placement for 15 or more of the most recent 22 months
(§ 43-292(7)).
[2] The bases for termination of parental rights are codified
in § 43-292. Section 43-292 provides 11 separate conditions,
any one of which can serve as the basis for the termination
of parental rights when coupled with evidence that termina-
tion is in the best interests of the child. In re Interest of Sir
Messiah T. et al., 279 Neb. 900, 782 N.W.2d 320 (2010).
Under § 43-292(7), grounds exist to terminate parental rights if
a “juvenile has been in an out-of-home placement for fifteen or
more months of the most recent twenty-two months.”
The record establishes that Audrey was removed from
parental care on January 5, 2016, and has not been returned
to parental care since that time. As such, at the time the State
filed its motion to terminate Sabra’s parental rights on July
31, 2017, Audrey had been in an out-of-home placement for
18 months. By the time the termination hearing began in
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September, Audrey had been in an out-of-home placement for
20 months. Thus, our de novo review of the record clearly
and convincingly shows that Audrey had been in an out-of-
home placement for 15 of the most recent 22 months and
that grounds for termination of Sabra’s parental rights under
§ 43-292(7) were proved by sufficient evidence.
[3] 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). Having determined that termination
of Sabra’s parental rights was proper pursuant to § 43-292(7),
we need not consider whether termination was also appropriate
under § 43-292(2), (5), or (6).
Qualified Expert Testimony
[4] To terminate parental rights, the State must prove by
clear and convincing evidence that one or more of the statu-
tory grounds listed in § 43-292 have been satisfied and that
termination is in the child’s best interests. In re Interest of
Walter W., 274 Neb. 859, 744 N.W.2d 55 (2008). NICWA adds
two additional elements the State must prove before terminat-
ing parental rights in cases involving Indian children. Id. First,
the State must prove by clear and convincing evidence that
active efforts have been made to prevent the breakup of the
Indian family and that these efforts have proved unsuccessful.
See § 43-1505(4). See, also, In re Interest of Walter W., supra.
Second, the State must prove by evidence beyond a reason-
able doubt, “including testimony of qualified expert witnesses,
that the continued custody of the child by the parent or Indian
custodian is likely to result in serious emotional or physical
damage to the child.” See § 43-1505(6).
We note that although Sabra has not assigned any error with
respect to the court’s findings that the State proved by clear
and convincing evidence that active efforts had been made
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to prevent the breakup of the Indian family and that those
efforts were unsuccessful, we have reviewed the record and
find no plain error as it relates to that element. Thus, we turn
to Sabra’s specific alleged error that the State failed to prove
beyond a reasonable doubt, as required by NICWA, through
qualified expert witness testimony, that the continued custody
of Audrey by Sabra was likely to result in “serious emotional
or physical damage” to Audrey.
[5] Pursuant to NICWA, before a court may terminate a
parent’s rights to their child or children, the State must prove
by evidence, beyond a reasonable doubt, “including testi-
mony of qualified expert witnesses, that the continued custody
of the child by the parent or Indian custodian is likely to
result in serious emotional or physical damage to the child.”
§ 43-1505(6). This evidence must be established by qualified
expert testimony provided by a professional person having
substantial education and experience in the area of his or her
specialty. In re Interest of Shayla H. et al., 17 Neb. Ct. App. 436,
764 N.W.2d 119 (2009).
In this case, Sabra does not argue that Stands was not a qual-
ified expert; she argues only that Stands’ opinion—that there
“was a possibility” that Audrey would face emotional or physi-
cal damage if left with Sabra—did not meet the State’s bur-
den of proving this issue beyond a reasonable doubt. Sabra’s
argument calls into question what testimony is required from
a qualified expert as mandated by § 43-1505(6). We construe
Sabra’s argument to be that the qualified expert’s testimony
must establish that continued custody of the child by the parent
is likely to result in serious emotional or physical damage to
the child beyond a reasonable doubt.
A similar argument was propounded in In re M.F., 290
Kan. 142, 225 P.3d 1177 (2010). In reviewing a federal statute
which contains language identical to § 43-1505(6), the Kansas
Supreme Court wrote:
The GAL also takes issue with the Court of Appeals’
statement that the qualified expert must “testify that
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evidence existed to support the State’s burden under the
ICWA.” In re M.F., 41 Kan. App. 2d at 935, 206 P.3d 57.
The GAL interprets this statement to mean that a quali-
fied expert must offer a specific opinion as to whether
or not the State’s evidence meets the burden of proof.
It seems, rather, that the Court of Appeals’ statement is
merely a reiteration of the ICWA standard that a decision
to terminate parental rights must be based on “evidence
beyond a reasonable doubt, including testimony of quali-
fied expert witnesses, that the continued custody of the
child by the parent or Indian custodian is likely to result
in serious emotional or physical damage to the child.” 25
U.S.C. § 1912(f). The expert need not opine on the ulti-
mate issue of whether the State met its burden of proof.
But the expert’s opinion must support the ultimate finding
of the district court that continued custody by the parent
will result in serious emotional or physical damage to the
child. See, e.g., Marcia V., 201 P.3d at 506; Steven H. v.
DES, 218 Ariz. 566, 572, 190 P.3d 180 (2008); State ex
rel. SOSCF v. Lucas, 177 Or.App. 318, 326, 33 P.3d 1001
(2001), rev. denied 333 Or. 567, 42 P.3d 1245 (2002).
In re M.F., 290 Kan. at 155-56, 225 P.3d at 1186. See 25
U.S.C. § 1912(f) (2012).
[6] We, likewise, construe § 43-1505(6) to require that the
qualified expert’s opinion must support the ultimate find-
ing of the court, i.e., that continued custody by the parent
will likely result in serious emotional or physical damage
to the child. This is consistent with the Nebraska Supreme
Court’s holding in In re Interest of C.W. et al., 239 Neb. 817,
823-24, 479 N.W.2d 105, 111 (1992), overruled on other
grounds, In re Interest of Zylena R. & Adrionna R., 284 Neb.
834, 825 N.W.2d 173 (2012), wherein the Nebraska Supreme
Court set forth the standard for qualified expert testimony in
ICWA cases:
Pursuant to the ICWA, qualified expert testimony is
required in a parental rights termination case on the issue
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of whether serious harm to the Indian child is likely
to occur if the child is not removed from the home.
See Guidelines for State Courts; Indian Child Custody
Proceedings, 44 Fed. Reg. 67,584, 67,593 (1979) (not
codified).
To the extent Sabra is arguing there was inadequate opinion
testimony from a qualified expert to support the ultimate find-
ing of the county court that continued custody by Sabra is
likely to result in serious emotional or physical damage to the
child, we disagree.
Sabra argues that Stands’ opinion—that there “was a pos-
sibility” that Audrey would face emotional or physical damage
if left with Sabra—did not provide adequate support for the
county court’s finding here, which was, that beyond a reason-
able doubt, Sabra’s “mental health, parenting style, dangerous
associations, and inconsistency would place Audrey in great
danger if Sabra was the custodial parent and the case closed.”
In addition to opining that physical and emotional damage to
Audrey was possible, Stands also testified that although Sabra
at times made some improvements, Sabra was not emotionally
or mentally stable enough to maintain those improvements
and expressed concern for Sabra’s reported conditions, which
included being depressed, overwhelmed, having anxiety, and
not being able to provide for Sabra’s own needs, much less
those of Audrey.
But this was not the only testimony from a qualified expert
in this case. As the Nebraska Supreme Court noted:
The Bureau of Indian Affairs sets forth guidelines
under which expert witnesses most likely will meet the
requirements of the ICWA:
“(i) A member of the Indian child’s tribe who is rec-
ognized by the tribal community as knowledgeable in
tribal customs as they pertain to family organization and
childrearing practices.
“(ii) A lay expert witness having substantial experience
in the delivery of child and family services to Indians,
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and extensive knowledge of prevailing social and cul-
tural standards in childrearing practices within the Indian
child’s tribe.
“(iii) A professional person having substantial educa-
tion and experience in the area of his or her specialty.”
In re Interest of C.W. et al., 239 Neb. at 824, 479 N.W.2d
at 111.
We also note that in its more recent guidelines, the Bureau
of Indian Affairs provides, in part:
The rule does not, however, strictly limit who may
serve as a qualified expert witness to only those indi-
viduals who have particular Tribal social and cultural
knowledge. The rule recognizes that there may be certain
circumstances where a qualified expert witness need not
have specific knowledge of the prevailing social and cul-
tural standards of the Indian child’s Tribe in order to meet
the statutory standard.
U.S. Dept. of Interior, Bureau of Indian Affairs, Guidelines for
Implementing the Indian Child Welfare Act G.2 at 54 (Dec. 30,
2016) (providing minimum federal standards regarding compli-
ance with 25 C.F.R. § 23.122 (2018) governing who may serve
as qualified expert witness).
Stermensky, a psychologist, performed a parental capac-
ity examination of Sabra. Stermensky testified that the main
goal of this evaluation is to determine whether the parent can
meet a child’s welfare needs. In performing the examination,
Stermensky opined that Sabra suffered from schizophrenia
and post-traumatic stress disorder and that to a reasonable
degree of “psychologic certainty,” Sabra did not appear to
have the capacity to meet Aubrey’s health and welfare needs.
Although he opined that with long-term treatment and medica-
tion compliance the issue could be revisited, the overwhelming
evidence in this case demonstrates that little or no progress
has been made by Sabra to manage her condition as it relates
to the future care of Audrey. Stemernsky further testified
that Sabra’s denial and minimization of her severe psychotic
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disorder and noncompliance with medication placed her “at
risk of decompensation,” meaning “[s]ymptom amplification,”
including disorganized behavior, hallucinations, and delusions,
which placed Audrey at risk. This record adequately dem-
onstrates that both Strands and Stermensky were qualified
expert witnesses as required by ICWA, and taken together,
their testimony adequately supports the ultimate finding by the
county court.
Moreover, other evidence presented at the termination hear-
ing supports the ultimate finding here—that Audrey was likely
to suffer serious emotional or physical damage if left with
Sabra. Sabra has been inconsistent in attending child-parent
therapy, her visitation has never progressed to overnight visits,
and she has failed to make progress on her case plan goals even
after requesting additional time to do so. Whenever Sabra’s vis-
its with Audrey were changed to unsupervised visits, they did
not remain that way for long due to Sabra’s allowing unsafe
individuals around Audrey or coaching Audrey to make untrue
allegations of sexual abuse. Taken together, this evidence and
the expert testimony established, beyond a reasonable doubt,
that Sabra’s continued custody of Audrey was likely to result in
serious emotional or physical damage to Audrey. Sabra’s claim
is without merit.
Best Interests
[7] Sabra also contends that the court erred in finding that
termination was in Audrey’s best interests. Once a statu-
tory basis for termination has been proved, the next inquiry
is whether termination is in the child’s best interests. In re
Interest of Giavonna G., 23 Neb. Ct. App. 853, 876 N.W.2d
422 (2016).
A parent’s right to raise his or her child is constitutionally
protected. Therefore, before a court may terminate paren-
tal rights, the State must show that the parent is unfit. . . .
There is a rebuttable presumption that the best interests
of the child are served by having a relationship with his
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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. . . . In the context of the constitutionally protected
relationship between a parent and a child, parental unfit-
ness means a personal deficiency or incapacity which has
prevented, or will probably prevent, performance of a
reasonable parental obligation in child rearing and which
caused, or probably will result in, detriment to a child’s
well-being. . . . The best interests analysis and the paren-
tal fitness analysis are fact-intensive inquiries, and while
they are separate, each examines essentially the same
underlying facts.
In re Interest of Lizabella R., 25 Neb. Ct. App. 421, 436-37, 907
N.W.2d 745, 756 (2018).
[8,9] Sabra contends that the State did not prove by clear
and convincing evidence that termination was in Audrey’s
best interests. She argues that she has obtained an apartment
and employment, has made improvements in her parenting
skills, and has a bond with Audrey. This court has no doubt
of Sabra’s love for her daughter. Despite this, Sabra has been
inconsistent in attending child-parent therapy, her visitation
has never progressed to overnight visits, the case has been
open over 22 months, and Sabra has failed to make progress
even after requesting additional time to do so. The evidence
further established that Audrey was “excelling” in her cur-
rent placement. Sabra has been diagnosed with schizophrenia
and post-traumatic stress disorder, and in Stermensky’s opin-
ion, she does not have the capacity to meet Audrey’s health
and welfare needs. Due to her denial of her severe psychotic
disorder, Stermensky opined, she is at risk of “[s]ymptom
amplification,” including hallucinations and delusions, which
could place Audrey at risk of harm. The evidence outlined in
the previous section further establishes that Sabra is an unfit
parent and that termination of Sabra’s parental rights is in
Audrey’s best interests. When a parent is unable or unwilling
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to rehabilitate himself or herself within a reasonable period of
time, the child’s best interests require termination of parental
rights. In re Interest of Walter W., 274 Neb. 859, 744 N.W.2d
55 (2008). Further, children cannot, and should not, be sus-
pended in foster care or be made to await uncertain parental
maturity. In re Interest of Alec S., 294 Neb. 784, 884 N.W.2d
701 (2016).
Failure to Give Proper
Notice to Tribe
[10] Sabra contends that the State failed to provide proper
notice to the Oglala Sioux Tribe in violation of NICWA. We
note that the State argues as follows in its brief:
Allowing represented parties to wait until after the con-
clusion of the case on the merits to raise issue with the
beginning of the case is against public policy, ideas about
judicial efficiency, and case law. The State would respect-
fully request this Court hold by failing to timely and
appropriately plea or motion their objection to the mailing
of notice [to the tribe], [Sabra] has waived any defect in
the notice.
Brief for appellee at 20. We reject this argument based upon
our holding in In re Interest of Walter W., 14 Neb. Ct. App. 891,
899, 719 N.W.2d 304, 310 (2006), which stated:
Because in many, if not most, instances, tribes depend
upon parents to notify the State of known or potential
Indian ancestry, and because Indian tribes cannot inter-
vene in cases of which they have received no notifica-
tion, logic dictates that parents may often be best situated
to raise claims of inadequate notice to tribes. Therefore,
we believe the stated purposes of the ICWA are best
served by allowing parents to raise, in their direct appeal
from a termination of parental rights, the issue of the
State’s failure to notify the child’s Indian tribe of the
termination of parental rights proceedings as required by
§ 43-1505(1).
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Thus, we determine that Sabra’s assigned error is properly
before this court.
Sabra acknowledges that notices were provided to the Oglala
Sioux Tribe, but she claims that the addresses used by the State
were incorrect. Her brief states that “[t]he Oglala Sioux Tribe’s
website currently lists the Tribe’s ICWA Director as Shirley
Blackstone-Weston, P.O. Box 604, Pine Ridge, SD 57770”
and argues that the notices sent by the State to the Tribe at
other “P.O. Box[es] . . . would not have gone to the designated
ICWA directors.” Brief for appellant at 28. We agree with the
State’s argument that any current address identified on the
Oglala Sioux Tribe’s website is “irrelevant” to the address in
effect in August 2017 when notice was sent to the tribe. Brief
for appellee at 18.
Section 43-1505(1) requires that to be proper, notice be
sent (1) to the “Indian child’s tribe,” (2) by certified or reg-
istered mail with return receipt requested, (3) with notice of
the pending proceedings, (4) with notice of the tribe’s right
of intervention, and (5) that no termination of parental rights
proceeding shall be held until at least 10 days after receipt of
notice by the tribe and that the tribe may have an additional
20 days to prepare for the proceeding if requested. See In re
Interest of Dakota L. et al., 14 Neb. Ct. App. 559, 712 N.W.2d
583 (2006).
In the case before this court, the termination of parental
rights notice provided to the Oglala Sioux Tribe is not part of
our record; however, there is an “Affidavit of Mailing Notice”
from a legal secretary in the Scotts Bluff County Attorney’s
office regarding the mailing of the ICWA notice to the tribe.
The affidavit of mailing notice provides that the termination
notice to the Oglala Sioux Tribe was mailed, by certified mail,
return receipt requested, to the “Oglala Sioux Tribe, P. O.
Box 2070, Pine Ridge, SD, 57770” on August 28, 2017. We
note that “P. O. Box 2070” is the same address listed on the
“Certificate of Indian Blood” submitted by the State and which
certified that Audrey was an enrolled member of the Oglala
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Sioux Tribe. This certificate was received into evidence in
a prior hearing in this case as an exhibit. Further, the record
reflects that two notices were mailed to the Oglala Sioux Tribe
at the “P.O. Box 2070” address (in February 2016 and February
2017) and that the return receipt was signed and returned in
both instances from that address. Thus, the notice regarding
the hearing on the termination of parental rights was sent, by
certified mail, return receipt requested, to the Oglala Sioux
Tribe at the address listed on the “Certificate of Indian Blood”
and to the same address where previous notices were sent and
received by the tribe. In this case, the affidavit provided by
the State establishes that the State provided notice to the tribe
at the address where it had been providing notice through-
out this case. We decline to reverse the order of termination
on the grounds that Sabra now deems that the address used
was insufficient.
CONCLUSION
The county court, sitting in its capacity as a juvenile court,
properly found that evidence supported termination of Sabra’s
parental rights pursuant to § 43-292(7) and that termination
of parental rights was in Audrey’s best interests. The State
established through evidence, including testimony of qualified
expert witnesses, beyond a reasonable doubt, that the contin-
ued custody of Audrey by Sabra was likely to result in serious
emotional or physical damage to Audrey. We further reject
Sabra’s claim that the State failed to provide proper notice to
the Oglala Sioux Tribe.
A ffirmed.