In re Interest of Destiny H.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/26/2022 08:05 AM CDT
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
IN RE INTEREST OF DESTINY H. ET AL.
Cite as 30 Neb. App. 885In re Interest of Destiny H. et al.,
children under 18 years of age.
State of Nebraska, appellee,
v. Amber M., appellant.
___ N.W.2d ___
Filed April 26, 2022. No. A-21-258.
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 findings made by the juvenile court below.
2. Parental Rights: Proof. To terminate parental rights, it is the State’s
burden to show by clear and convincing evidence both that one of the
statutory bases enumerated in Neb. Rev. Stat. § 43-292 (Reissue 2016)
exists and that termination is in the child’s best interests.
3. ____: ____. Under Nebraska law, terminating parental rights requires
both clear and convincing evidence that one of the statutory grounds
enumerated in Neb. Rev. Stat. § 43-292 (Reissue 2016) exists and clear
and convincing evidence that termination is in the best interests of
the children.
4. ____: ____. Neb. Rev. Stat. § 43-292(7) (Reissue 2016) operates
mechanically and does not require the State to adduce evidence of any
specific fault on the part of the parent.
5. ____: ____. Any one of the bases for termination of parental rights codi-
fied by Neb. Rev. Stat. § 43-292 (Reissue 2016) can serve as a basis for
termination of parental rights when coupled with evidence that termina-
tion is in the best interests of the children.
6. Parental Rights: Presumptions: Proof. A child’s best interests are pre-
sumed to be served by having a relationship with his or her parent. This
presumption is overcome only when the State has proved that the parent
is unfit.
7. Constitutional Law: Parental Rights: Words and Phrases. In the
context of the constitutionally protected relationship between a parent
and a child, parental unfitness means a personal deficiency or incapacity
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IN RE INTEREST OF DESTINY H. ET AL.
Cite as 30 Neb. App. 885which has prevented, or will probably prevent, performance of a reason-
able parental obligation in child rearing and which has caused, or prob-
ably will result in, detriment to a child’s well-being.
8. Parental Rights: Words and Phrases. A termination of parental rights
is a final and complete severance of the child from the parent and
removes the entire bundle of parental rights. Therefore, with such severe
and final consequences, parental rights should be terminated only in the
absence of any reasonable alternative and as the last resort.
9. Parent and Child. 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.
10. Parental Rights. Whereas statutory grounds are based on a parent’s past
conduct, the best interests inquiry focuses on the future well-being of
the child.
11. ____. The best interests and parental unfitness analyses in the context
of a termination of parental rights case require separate, fact-intensive
inquiries, but each examines essentially the same underlying facts.
12. Parental Rights: Juvenile Courts: Pleadings. Because the primary
consideration in determining whether to terminate parental rights is the
best interests of the child, a juvenile court should have at its disposal
the information necessary to make the determination regarding the
minor child’s best interests regardless of whether the information is
in reference to a time period before or after the filing of the termina-
tion petition.
Appeal from the Separate Juvenile Court of Douglas County:
Amy N. Schuchman, Judge. Reversed and remanded for fur-
ther proceedings.
Thomas C. Riley, Douglas County Public Defender, Reilly
M. White, and Hilary Burrows, Senior Certified Law Student,
for appellant.
Nathan Barnhill, Deputy Douglas County Attorney, and
Traemon Anderson, Senior Certified Law Student, for appellee.
Pirtle, Chief Judge, and Riedmann and Welch, Judges.
Pirtle, Chief Judge.
INTRODUCTION
Amber M. appeals from an order of the separate juvenile
court of Douglas County terminating her parental rights to
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IN RE INTEREST OF DESTINY H. ET AL.
Cite as 30 Neb. App. 885her four minor children, Destiny H., De’Tevious M., D’Yauna
S., and Jasani S. Based on our de novo review of the record,
we conclude the State failed to adduce clear and convincing
evidence that termination of Amber’s parental rights was in
the best interests of the children. We, therefore, reverse the
order of the juvenile court terminating Amber’s parental rights
with respect to all four children and remand the cause for fur-
ther proceedings.
BACKGROUND
We are called to review the termination of Amber’s paren-
tal rights with respect to her four biological children, Destiny
(born April 2005), De’Tevious (born February 2008), D’Yauna
(born December 2013), and Jasani (born August 2016). Each of
the children have different fathers, none of whom are at issue
in this appeal and thus will be discussed only as necessary to
address Amber’s claims.
The present case arose out of an incident on March 22,
2019, in which Amber left the youngest child, Jasani, home
alone for approximately 2 hours. According to an affidavit by
one of the police officers involved, officers were in the process
of booking Amber into a correctional facility for shoplifting,
when Amber informed the officers that Jasani was home alone.
Officers discovered Jasani alone, “standing in the living room
with his urine soaked pants down at his ankles.” After Destiny
and De’Tevious were located, all three children were placed in
emergency protective custody and transported to a child advo-
cacy center. There was no mention of D’Yauna in the affidavit,
and she was not listed in the caption.
In the days following the incident, a child and family
serv­ices specialist (CFSS) from PromiseShip conducted two
initial assessments. The first assessment, conducted on the
day of the incident, was a safety assessment pertaining to
Destiny, De’Tevious, and Jasani only. After the safety assess-
ment, the same CFSS conducted an initial risk assessment.
Despite acknowledging that Destiny, De’Tevious, and Jasani
were “the only children in the home,” the CFSS also included
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IN RE INTEREST OF DESTINY H. ET AL.
Cite as 30 Neb. App. 885information she learned with respect to D’Yauna. Because
D’Yauna experienced a radically different progression in her
custody with the Nebraska Department of Health and Human
Services (DHHS) than did the other three children, we take this
opportunity to discuss D’Yauna before returning to the chro-
nology of events in this case.
In the risk assessment just mentioned, the CFSS reported that
D’Yauna resided with her paternal aunt, Octavia S., and that
“Octavia has also been the primary caregiver for [D’Yauna]
since she was born.” The CFSS further reported as follows:
Amber says that she was going to sign over guardianship
of [D’Yauna] a long time ago but then [D’Yauna’s] dad
said that he was not going to so [Amber] did not. Amber
stated that she was willing to sign over legal guardian-
ship of [D’Yauna] to Octavia as long as [D’Yauna’s dad]
was willing to do so as well. [The CFSS] was able to
speak briefly with [him] over the phone. He did agree to
sign over legal guardianship of [D’Yauna] to his sister
Octavia . . . .
In early June 2019, Sarah Krohn, who was the DHHS case
manager for this family throughout the life of the case, con-
ducted a reunification assessment. Therein, Krohn reported
that “[D’Yauna’s] permanency objective at this time is being
changed to guardianship due to [Amber’s] agreeing to a guard-
ianship and PromiseShip and the courts moving forward with
this permanency objective.” Krohn further reported that Octavia
“is able to meet and exceed all of [D’Yauna’s] basic needs
including food, shelter, emotional, and permanency options . . .
and she is willing to provide permanency for [D’Yauna] which
has been agreed to by all parties.”
In the first court report, the stated permanency objective for
D’Yauna was guardianship, and the court found as much in its
June 6, 2019, order. D’Yauna’s stated permanency objective
remained guardianship in the second, third, fourth, and fifth
court reports. However, elsewhere in the fourth court report,
Krohn wrote, apparently by mistake, that “Saint Francis
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Cite as 30 Neb. App. 885continues to recommend that [D’Yauna] maintain in the care
and custody of [DHHS] with a permanency objective of reuni-
fication.” Consequently, in its January 24, 2020, order, the
court identified a single permanency plan for all four children,
finding that “with respect to the mother and the minor children,
the permanency objective shall be reunification.”
In the fifth court report, Krohn reiterated verbatim the lan-
guage above recommending a permanency objective of reunifi-
cation. Accordingly, in its March 17 and June 23, 2020, orders,
the court identified D’Yauna’s permanency objective as reuni-
fication. It was not until the sixth and final court report that the
stated permanency objective for D’Yauna was actually changed
from guardianship to reunification, but there was no discussion
as to why that change was made.
With that, we return to the chronology of events pertain-
ing to Destiny, De’Tevious, and Jasani. The risk assessment
conducted by the PromiseShip CFSS in March 2019 listed five
prior child protective services intakes related to this family, four
of which were “unfounded.” The one “Court Substantiated”
intake related to an incident in February 2013 in which Amber
unexpectedly left Destiny and De’Tevious with her sister for
approximately a week. Amber admitted that she was struggling
with addiction to “PCP” at that time and that leaving the chil-
dren with her sister was “her way of getting help for her drug
use.” Amber reported that she “has not used PCP” since that
time. Amber reported occasional marijuana and alcohol use but
denied any current issues with addiction or substance abuse.
The CFSS added that “Amber says that she knows that her
family says that she is high or using again but it is just her
prescriptions that she has now.”
As it relates to Amber’s mental health, she reported that she
admitted herself into inpatient psychiatric care in April 2018
following a suicide attempt. Amber reported that she was diag-
nosed with “major depression, PTSD, and bipolar” for which
she was prescribed multiple psychotropic medications. She
reported that she had been struggling with depression since
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IN RE INTEREST OF DESTINY H. ET AL.
Cite as 30 Neb. App. 885Destiny was born in 2005, but added that “everything really
started to become harder” after she was “attacked” in 2017.
With respect to the children, the CFSS reported that each
child “appeared to be happy and healthy,” dressed in “weather
appropriate clothing that appeared to be clean, well-fitting,
and in good repair,” and each “appeared to be clean and well
groomed.” The CFSS also conducted a walkthrough of the
family home, which “was clean and free of any clutter or
trash,” and the CFSS ultimately reported “no concerns for the
physical safety of the home.”
The CFSS then spoke to Tracy P., who is Amber’s mother
and was the foster placement for Destiny, De’Tevious, and
Jasani throughout this case. Tracy corroborated Amber’s report
of drug use, stating that “Amber was smoking ‘wet’ a long time
ago when she dropped Destiny and [De’Tevious] off with [her
sister].” However, Tracy added that she “heard that [Amber]
was smoking it again.”
As a result of the safety assessment, the CFSS concluded
that the children were unsafe “as Amber was arrested and
booked into jail and Jasani was found to be at home by him-
self.” As a result of the risk assessment, the CFSS concluded
that the children were at high risk, noting that “Amber was
very cooperative” but that there were “a lot of concerns for
[Amber’s] mental health and possible drug use of wet that
Amber is not reporting.”
On March 25, 2019, the State filed a juvenile petition alleg-
ing that all four children, including D’Yauna, “lack(s) proper
parental care by reason of the fault or habits of [Amber],”
under Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016). The State
also filed a motion for immediate custody captioned “In the
Interest of Juvenile(s) set forth in Exhibit ‘A’.” There was no
mention of D’Yauna in exhibit A, which consisted entirely of
the police officer’s affidavit mentioned above.
On the same day, the court ordered DHHS to take immedi-
ate temporary custody of Destiny, De’Tevious, and Jasani on
the grounds provided in exhibit A. There was no discussion of
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IN RE INTEREST OF DESTINY H. ET AL.
Cite as 30 Neb. App. 885D’Yauna in the court’s order, and she was not listed in the cap-
tion. However, on March 27, 2019, the court entered an order
appointing a guardian ad litem for all four children. Then, on
March 28, the State filed a second motion for immediate pro-
tective custody with respect to D’Yauna alone. It is not clear
from the record when the court made a ruling on this motion,
but the court later found, in its order terminating Amber’s
parental rights, that “D’Yauna was formally made a state ward
and removed from [Amber’s] custody in April of 2019.” In
any case, the record is clear that Destiny, De’Tevious, and
Jasani were removed from Amber’s home and placed with their
grandmother, Tracy, and that D’Yauna remained at all times in
the care and custody of her paternal aunt, Octavia.
On April 3, 2019, Amber made her first appearance and
participated in a prehearing conference. Amber entered, and
the court accepted, a plea of denial to the State’s initial peti-
tion. The court found probable cause to support the State’s
initial petition and ordered all four children to remain in
temporary DHHS custody. The court also “invited” Amber to
participate in a number of services and ordered that “the serv­
ices for [Amber] shall be arranged and paid for by [DHHS]
and/or PromiseShip unless [Amber] has insurance and is able
to pay.”
While we do not have access to any of Amber’s treatment
records or evaluations, we know from Krohn’s reporting that
Amber underwent a psychiatric evaluation in early April 2019
and was diagnosed with “major depressive disorder, recurrent,
severe, with psychosis; rule out bipolar disorder; general-
ized anxiety disorder; PTSD; nicotine dependence; cannabis
abuse; rule out alcohol abuse; and phencyclidine dependence.”
Amber was recommended to continue taking the medications
“Lexapro, Prazosin, and Seroquel” and to undergo a chemical
dependency evaluation. Amber underwent a chemical depen-
dency evaluation, which recommended she complete “Level
III.5 residential treatment for chemical dependency with an
emphasis on co-occurring mental health disorders.” Amber
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Cite as 30 Neb. App. 885successfully completed the recommended residential treat-
ment at “Inroads to Recovery” from “April of 2019 to May
17th, 2019.”
In a family strength and needs assessment conducted in
early May 2019, Krohn wrote that Destiny and De’Tevious
both reported a “good relationship” with Amber, and Krohn
noted that De’Tevious “appears to really miss his mother” and
“is bonded with his mother, as he has been asking this FPS on
multiple occasions if and when he can see his mother.” The
family assessment also contained the first mention of Amber’s
losing access to her Medicaid health insurance, as Krohn
reported that “Amber no longer has Medicaid due to the chil-
dren being removed.” Krohn later confirmed in her trial testi-
mony that Amber lost access to her medications “around May
of 2019,” as “[s]he didn’t have insurance because her children
were removed.”
As previously mentioned, Krohn conducted a reunification
assessment in early June 2019. With respect to the ongoing
risk to the children, Krohn noted the lack of progress, ­ongoing
mental health concerns, and “possible substance abuse con-
cerns” as the primary obstacles to reunification. Krohn added
that “Amber continues to report that she is in a relationship
with the father of her youngest child,” who was identified as
Jonquez S., “despite admitting to multiple concerns of domes-
tic violence.” However, the record contains conflicting evi-
dence on this point.
In the prior safety assessment, the CFSS also reported a
history of domestic abuse between Amber and Jonquez; how-
ever, Amber told the CFSS that “she left Jonquez about a year
ago or more maybe.” Likewise, Destiny told the CFSS that
“[Amber] has not been seeing anyone [and] that sometimes
Jonquez still comes around but not very often.” De’Tevious
also reported that Amber “was not seeing anyone that he
knew about.” Tracy, on the other hand, reported to the CFSS
that “as far as she knows Amber is still seeing Jonquez on a
regular basis.” Tracy added that “Jonquez is very abusive and
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Cite as 30 Neb. App. 885controlling of Amber from what she hears but she does not
know much because Amber does not talk to her.”
In stark contrast, Krohn wrote in the family assessment that
“Amber reports that she is in a relationship with [Jonquez].”
Krohn further observed that “[t]here are concerns from multiple
parties that the relationship is unhealthy and that domestic vio-
lence has occurred and continues to occur in the relationship.”
However, aside from Tracy, it is unclear who Krohn actually
spoke to regarding the family assessment. Krohn noted that the
information “was provided some by family and some by collat-
eral information,” adding that “Amber is currently at InRoads
to Recovery due to her mental health and this FPS was able to
complete her needs based on collateral information.”
Moreover, Amber’s relationship with Jonquez was not the
only inconsistency between the CFSS’ and Krohn’s reporting.
With respect to her relationship with Tracy, Amber reported to
the CFSS that “her mom never does anything for her but talk
down to her.” Further, Amber reported that “she did not have
a good childhood[,] that her mom would be physical [sic] abu-
sive towards her a lot when she was angry[, and] that she was
in foster care when she was younger because of her mom [sic]
drug use.” Again, in stark contrast, Krohn wrote that “Amber
reports that she has a strong support system in her mother for
the majority of things, but does feel she can be tougher on her
than other people.”
As it relates to Amber’s relationship with Tracy, Karen
Sides, who was the visitation worker for this family throughout
the life of this case, testified that Amber and Tracy had a “very
volatile relationship.” Moreover, Krohn later reported that
Amber “continues to struggle with building a relationship with
[Tracy].” There was no further discussion, at trial or otherwise,
of a continued relationship between Amber and Jonquez.
Krohn prepared six court reports in this case. Each court
report contained a case plan, which listed the family’s goals
and progress toward completing them. The case plan listed two
goals for Amber and one goal for the children. First, Amber
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IN RE INTEREST OF DESTINY H. ET AL.
Cite as 30 Neb. App. 885“will address her mental health and coping skills.” Second,
Amber “will be able to provide for her children’s emotional,
physical, mental, and educational needs.” The children “will
reside in a home in which their basic physical, emotional,
medical, educational, and permanency needs are being met.”
Krohn identified strengths related to these goals, noting that
“Amber is willing to address her mental health[,] expresses
a desire to parent her children[, and] is currently involved
in services.”
On May 30, 2019, the State filed an amended petition
alleging that all four children “is/are homeless or destitute, or
without proper support through no fault of [Amber], to wit: A.
Amber . . . has been diagnosed with severe mental illnesses
[such that] she is unable to provide proper parental care, support
and/or supervision.” On June 6, Amber appeared for an adjudi-
cation and disposition hearing on the State’s amended petition.
Amber entered, and the court accepted, a no contest plea to
the amended petition as above. The court thus adjudicated all
four children to be within the meaning of § 43-247(3)(a) “by
a preponderance of the evidence and through no fault of the
parent.” (Emphasis in original.) The court ordered the children
to remain in temporary DHHS custody but noted that “[Amber]
has begun to make therapeutic progress by participating in pre-
adjudication services.”
The court further ordered Amber to participate in a num-
ber of services, including individual therapy, supervised visi-
tation, family therapy if recommended, medication manage-
ment, family support services, drug testing, parent training,
and domestic violence programming. The court again ordered
that “serv­ices for [Amber] shall be arranged and paid for by
[DHHS] and/or PromiseShip unless [Amber] has insurance
and is able to pay.” The court also ordered the children to
participate in individual therapy if recommended by an initial
diagnostic interview.
In the second court report, prepared in July 2019, Krohn
reported that “Amber . . . is currently recommended to
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Cite as 30 Neb. App. 885complete Intensive Outpatient Therapy,” adding that “Amber
was recommended to continue attending In-Roads, however
due to payment concerns this was not successful.” Krohn fur-
ther reported that Amber was not participating in drug testing,
and the record indicates that Amber never participated in drug
testing throughout this case. Krohn also reported that Destiny
and De’Tevious were both scheduled to begin individual ther-
apy. Krohn later confirmed, in October 2019, that Destiny and
De’Tevious had been attending individual therapy every other
week since July.
The court, with a new judge presiding, convened for a con-
tinued disposition hearing on November 5, 2019, and it appears
Amber was not present. On November 7, the court entered an
order finding that it was “unable to enter informed findings
regarding therapy for the minor children for the reason that
it has no information with respect to therapeutic issues being
addressed.” Accordingly, the court demanded that “[a]t the next
scheduled hearing [DHHS] shall provide progress reports to the
Court from the children’s therapist(s) and [Amber’s] therapist.”
The court also ordered Amber to undergo an updated chemical
dependency evaluation within 30 days.
In the fourth court report, prepared in January 2020, Krohn
wrote that Amber “reported that she had completed an [updated
chemical dependency] evaluation with Omaha Insomnia and
Psychiatric Services.” However, Krohn was unable to obtain
a copy of that evaluation, so Amber was referred to undergo
another chemical dependency evaluation at Heartland Family
Services, which she completed in January 2020. With respect
to visitation, Amber reported to Krohn that she was struggling
to consistently attend visits due to her mental health, although
Krohn observed that “Amber has been making more of an
effort to attend her visits as evidenced by the number of visits
she is attending going up.”
The case plan in the fourth court report contained the only
substantive progress report to date. With respect to the first
goal that Amber address her mental health, Krohn reported
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Cite as 30 Neb. App. 885that Amber was not attending outpatient therapy because “she
reports that she has not found an appropriate therapist.” Krohn
added that “Amber is not on medication as she reports that
she is not able to afford ongoing medications” and she “is
continuing to struggle with her mental health.” With respect to
the second goal that Amber provide for her children’s needs,
Krohn reported that Amber “does not have proper housing, or
employment to care for the children.”
With regard to Amber’s housing, the record demonstrates
that Amber initially resided in a three-bedroom house she
obtained through the federally subsidized “Section 8” housing
program administered by the local housing authority. Sides
testified that Amber was evicted from this home because she
failed to report the children’s removal to the housing author-
ity and then accumulated a $7,000 balance. The record is not
entirely clear as to the timeline of these events, but Krohn
testified that Amber was evicted in July 2020. Both Krohn
and Sides testified that weekly visits primarily took place
at Amber’s home until “COVID 19 hit.” Sides testified that
after she was evicted, Amber secured a new apartment “on
her own.”
With regard to Amber’s employment, Krohn testified that
Amber was working as “a CNA in a nursing home” when the
case began and that she worked briefly “in a pantry” sometime
between August and September 2019. The record indicates
that Amber was not gainfully employed at any point thereafter.
Although, at the direction of the court, Amber applied for and
obtained Supplemental Security Income benefits which pro-
vided Amber with approximately $900 per month beginning in
July 2020.
With respect to the children’s goal that they reside in a
home which meets their needs, Krohn included brief updates
on Destiny and De’Tevious’ reported progress with therapy,
but there remained no mention of the requested therapy prog-
ress reports from the children’s therapists. While a second
progress update for the children was entered in August 2020, it
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the December 2019 update.
On March 9, 2020, before a third presiding judge, Amber
appeared for a review and permanency planning hearing. On
March 17, the court ordered that “St. Francis shall: 1. Provide
the Court with copies of [Destiny and De’Tevious’] psycho-
logical evaluation and therapy progress reports.” Following a
subsequent hearing on June 23, the court again found that “no
therapy report for the minor children was provided.” Despite
Krohn’s later reporting that Destiny and De’Tevious both com-
pleted a “full psychological evaluation” in February 2020, the
court also found that “the children’s psychological evaluations
are not completed as of yet.” Accordingly, on June 23, the
court again ordered DHHS to provide this evidence and to
“[d]evelop and identify the permanency objective for the minor
children taking into account input from the therapists and fos-
ter care providers.”
Three days later, the State moved to terminate Amber’s
parental rights with respect to all four children. The motion
alleged that D’Yauna came within the meaning of Neb. Rev.
Stat. § 43-292(1), (2), (6), (7), and (9) (Reissue 2016) and
that Destiny, De’Tevious, and Jasani came within the mean-
ing of § 43-292(2), (6), (7), and (9). The motion did not
identify any factual basis with respect to the allegations under
§ 43-292(1), (2), (7), and (9). With respect to the allegations
under § 43-292(6), the State alleged only that “[d]espite over
a year of Juvenile Court involvement, [Amber] has failed to
make any measurable sustained progress toward reunification
with her children.” The State thus alleged that it was in the
best interests of all four children that Amber’s parental rights
be terminated.
In the sixth and final court report, prepared in August 2020,
there remained no mention of the requested therapy progress
reports or psychological evaluations. In lieu of this informa-
tion, Krohn observed that Destiny “has not been addressing
her emotions with the therapist however has been working on
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Cite as 30 Neb. App. 885these with [Tracy]” and De’Tevious “is working on addressing
his anger and is learning coping skills per the therapist.” Krohn
also reported that both Destiny and De’Tevious were recom-
mended to participate in family therapy, but it is not clear if
family therapy was ever pursued or even presented to Amber
as an option. Attached to the final court report was a transition
plan for Destiny in which Krohn reported that “Destiny would
like to reunify with her mother, and all services are being pro-
vided in compliance with this goal.”
A trial on the State’s motion took place over the course of
3 days from October 2020 to February 2021. The State called
three witnesses: Tracy testified on October 6, 2020; Sides testi-
fied on January 26, 2021; and Krohn testified on February 3.
Tracy primarily testified to her observations on four occasions
from April to July 2020. First, Tracy testified about an inci-
dent in April 2020, where Amber came to Tracy’s house with
a butcher knife around “one or two o’clock in the morning.”
According to Tracy, Amber was talking about how a man stole
her “juice.” Tracy testified that Amber had previously indicated
to her that “juice” was “the stuff — that drug that she smokes
called wet.”
Tracy testified further about Amber’s behavior on three
occasions in June and July 2020. Tracy testified that on those
occasions, Amber’s “behavior, her movement, her language
was off.” While the record clearly indicates that Tracy was
trying to insinuate Amber was “high” on these occasions, the
testimony properly adduced on the record merely reflects that
Amber was “moving and speaking in a way that Amber does”
and that she “didn’t articulate her words correctly.”
With regard to a bond between Amber and the children,
Tracy testified, “I’m not going to say that they have a bond
with her anymore.” However, Tracy added that there “[a]bso-
lutely” was a bond at the beginning of the case. According to
Tracy, the bond “just started to fade because their visits were
not consistent.” In contrast, Sides testified to her belief that
Amber was bonded with Destiny, De’Tevious, and Jasani.
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30 Nebraska Appellate Reports
IN RE INTEREST OF DESTINY H. ET AL.
Cite as 30 Neb. App. 885When asked about the basis for her belief, Sides stated, “you
know, her — just — a rock and a hard place. . . . I think she
loves them. I think she’s bonded with them.”
With respect to visitation, Sides testified that Amber’s par-
ticipation was often irregular, noting that when she did show
up for visits, she was often late and difficult to communicate
with. Prior to “COVID,” which we presume to mean from
approximately May 2019 to March 2020, Amber “was offered”
47 visits and 24 of them “were cancelled.” However, Sides
clarified that the 23 visits which did occur “pretty much hap-
pened on a routine basis once a week.” Krohn also testified
that Amber “maintained consistency” with weekly visits until
the end of 2019.
With regard to “after COVID,” Sides testified that there
were no visits in March 2020 and two conference call visits
in April 2020. Sides testified that “face-to-face” visitation
resumed in May 2020, and we know from the final court
report that Amber participated in six visits from May to June.
However, Sides then provided troubling testimony with regard
to visitation from June to October 2020.
First, Sides indicated that Tracy canceled three of five sched-
uled visits in June. Sides then testified that Tracy canceled “at
least three” visits in July due to her “not being willing to have
visits in her yard.” Sides continued, “actually it got worse,”
recalling that August 2020 was “when [Tracy] got worse about
saying that [Amber] needed . . . a negative COVID test” to
participate in visitation at her house. When asked about pos-
sible alternative locations for visitation, Sides stated, “[Tracy]
wanted to be around the visit to see it.” When asked if it was
a requirement that Tracy be present for visits, Sides responded
as follows:
Absolutely not. And like I told you . . . I kept calling and
e-mailing the case manager to see if [Tracy] had that con-
trol. And when I finally heard back, she said no, she has
to allow them to do visits. And that’s when we started that
at Heartland Family Service [sic].
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
IN RE INTEREST OF DESTINY H. ET AL.
Cite as 30 Neb. App. 885Sides stated that no other locations were offered until they
got approval from Krohn to have visits at Heartland Family
Services, “which didn’t come for a very long time.”
Sides was asked to “explain what time frame you were
having difficulty getting in touch” with Krohn, to which she
responded, “[a]ll the time,” from “almost the very beginning
of this case.” Specifically, as it relates to Tracy’s interference
with visitation, Sides stated that communication difficulties
continued through the summer months and into September
and October 2020 as well. Perhaps not coincidentally, Krohn
testified that she “couldn’t contact” Amber from approximately
“July through November [2020]”—roughly the same period of
time during which Sides was struggling to contact Krohn.
During this roughly 4-month period, Sides estimated that
Tracy canceled “one-fourth” of the scheduled visits. Of the
remaining scheduled visits, it is not clear how many occurred
or how they went. Sides confirmed that visits resumed at
Heartland Family Services in October 2020. Sides also testi-
fied to at least one visit with all three children in January
2021, which was followed by a few weeks of no visits.
Moreover, Krohn testified to at least one visit in December
2020. However, aside from this limited testimony, the record
is clearly lacking with regard to visitation or other progress
that may or may not have occurred between August 2020 and
February 2021.
When asked about the State’s amended petition in this case,
Krohn testified that she understood what a “no-fault petition”
was but did not recall such a petition in this case. Nevertheless,
Krohn was generally aware of Amber’s mental health diagno-
ses and prescribed medications. Krohn testified that although
she could not recall exactly, she believed Amber regained
access to her medications in “mid 2020” when “she started
receiving disability payments.” We note that Amber, in her
brief on appeal, also asserts that she “lost her insurance and
could not afford her medications again until July of 2020, when
her disability payments began.” Brief for appellant at 23.
- 901 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
IN RE INTEREST OF DESTINY H. ET AL.
Cite as 30 Neb. App. 885However, Krohn and Sides both testified that Amber would
have relied on Medicaid, not disability payments, to pay for
her medications. Sides noted that Amber “only gets nine some-
thing” from Social Security, such that with her apartment
and other expenses, there would be “very little money left”
for medications. Moreover, Sides testified that she did not
believe Amber had health insurance as of the January 26, 2021,
hearing. Sides added that Amber had recently reapplied for
Medicaid but that she was not aware whether she had been
reapproved. Sides further confirmed that if Amber had been
reapproved for Medicaid, it “would [have been] a relatively
recent” development.
Krohn suggested that “Lutheran Family Services was able to
provide [Amber] with [a] month or two months’ worth of medi-
cations,” but she added that “they couldn’t continue on due to
the fact that we couldn’t afford it.” Additionally, Krohn sug-
gested Amber was at some point receiving medications from
“Omaha Insomnia.” However, there was no indication as to the
time period during which Amber purportedly received medica-
tion from either of these facilities, and there is nothing in the
record to confirm Krohn’s reports. Even if we assume Amber
regained access to her medications in July 2020, the record
indicates this would have left her without medication for at
least 14 months. At trial, and now on appeal, Amber’s counsel
seemed to take for granted that Amber had been without her
medication for “nine months” of this case. Brief for appellant
at 16. However, we cannot say for certain that it was not much
longer than that.
With regard to Amber’s progress on court-ordered serv­
ices, Krohn testified that Amber “didn’t show any desire
to participate in the programs that we needed to see her
do.” However, Krohn also testified that Amber did com-
plete many court-ordered services, including over a month
of inpatient treatment, family support services, at least two
chemical dependency evaluations, a psychiatric evaluation, a
psychological evaluation, hands-on parent training, domestic
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
IN RE INTEREST OF DESTINY H. ET AL.
Cite as 30 Neb. App. 885violence programming, and a parenting class. Krohn identi-
fied only three court orders that, in her opinion, Amber did
not successfully complete—outpatient treatment, drug testing,
and visitation.
Krohn testified that she only actually witnessed Amber inter-
act with the children on “a couple of occasions” and agreed
that “when it comes to the regular visitation and what goes on,”
that information came from Sides’ reports. According to Krohn,
per those reports, visitations were not always “appropriate” and
there were “a lot of visits in which [Amber] would just allow
the children to watch TV the entire time and not engage with
them.” However, Sides testified that Amber “always engaged
with her children during the visits.” Sides added that she
never had to shorten a visit and agreed that Amber was always
“appropriate” with the children.
After trial, on February 23, 2021, the court entered an
order finding that all four children came within the mean-
ing of § 43-292(2), (6), and (7) and that it was in the chil-
dren’s best interests that Amber’s parental rights be terminated.
Accordingly, the court terminated Amber’s parental rights with
respect to all four children. This appeal followed.
ASSIGNMENTS OF ERROR
Amber assigns that the juvenile court erred in finding clear
and convincing evidence that Destiny, De’Tevious, Jasani,
and D’Yauna came within the meaning of § 43-292(2), (6),
and (7), and in finding clear and convincing evidence that
termination of Amber’s parental rights was in the children’s
best interest.
STANDARD OF REVIEW
[1,2] An appellate court reviews juvenile cases de novo on
the record and reaches its conclusions independently of the
findings made by the juvenile court below. In re Interest of
Mateo L. et al., 309 Neb. 565, 961 N.W.2d 516 (2021). It is
the State’s burden to show by clear and convincing evidence
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
IN RE INTEREST OF DESTINY H. ET AL.
Cite as 30 Neb. App. 885both that one of the statutory bases enumerated in § 43-292
exists and that termination is in the child’s best interests. Id.
ANALYSIS
[3] Under Nebraska law, terminating parental rights requires
both clear and convincing evidence that one of the statutory
grounds enumerated in § 43-292 exists and clear and convinc-
ing evidence that termination is in the best interests of the
children. See In re Interest of Donald B. & Devin B., 304 Neb.
239, 933 N.W.2d 864 (2019).
Statutory Grounds for Termination.
[4,5] The State alleged a number of statutory grounds for
termination, including § 43-292(7), which allows for termina-
tion when “[t]he juvenile has been in an out-of-home place-
ment for fifteen or more months of the most recent twenty-two
months.” Section 43-292(7) operates mechanically and does
not require the State to adduce evidence of any specific fault
on the part of the parent. See In re Interest of Mateo L. et al.,
supra. Any one of the bases for termination of parental rights
codified by § 43-292 can serve as a basis for termination of
parental rights when coupled with evidence that termination is
in the best interests of the children. In re Interest of Leyton C.
& Landyn C., 307 Neb. 529, 949 N.W.2d 773 (2020).
In this case, the juvenile court found that all four children
came within the meaning of § 43-292(7). Based on our de
novo review of the record, we also find clear and convincing
evidence that all four children come within the meaning of
§ 43-292(7).
With respect to D’Yauna, the record shows that she has
been living with Octavia almost exclusively since her birth
in 2016 and that she has “not seen [Amber] consistently for
the majority of her life.” Moreover, D’Yauna was “officially”
removed from Amber’s care in April 2019. Thus, it is clear that
D’Yauna was in an out-of-home placement for at least 15 of the
most recent 22 months. With respect to Destiny, De’Tevious,
and Jasani, the record shows that they were removed from
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
IN RE INTEREST OF DESTINY H. ET AL.
Cite as 30 Neb. App. 885Amber’s home in March 2019 and were never returned. Thus,
it is also clear that they had been in an out-of-home placement
for at least 15 of the most recent 22 months.
Having determined the State proved at least one statutory
ground enumerated in § 43-292, we need not consider the suf-
ficiency of the evidence concerning the other statutory grounds
for termination identified by the juvenile court. See In re
Interest of Mateo L. et al., supra. Accordingly, we conclude the
juvenile court did not err in finding that all four children came
within the meaning of § 43-292(7), and Amber’s first assign-
ment of error is without merit.
Best Interests.
[6,7] We turn to the second prong of the termination analysis
and examine whether the record contains clear and convincing
evidence that termination of Amber’s parental rights was in
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 Alec S., 294 Neb. 784, 884 N.W.2d 701(2016). This presumption is overcome only when the State has
proved that the parent is unfit. Id. In the context of the consti-
tutionally 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.[8-11] A termination of parental rights is a final and com-
plete severance of the child from the parent and removes the
entire bundle of parental rights. In re Interest of Justin H. et
al., 18 Neb. App. 718, 791 N.W.2d 765 (2010). Therefore, with
such severe and final consequences, parental rights should be
terminated only in the absence of any reasonable alternative
and as the last resort. Id. The law does not require perfec-
tion of a parent. Id. Instead, we should look for the parent’s
continued improvement in parenting skills and a beneficial
relationship between parent and child. Id. Whereas statutory
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
IN RE INTEREST OF DESTINY H. ET AL.
Cite as 30 Neb. App. 885grounds are based on a parent’s past conduct, the best inter-
ests inquiry focuses on the future well-being of the child. In
re Interest of Mateo L. et al., 309 Neb. 565, 961 N.W.2d 516(2021). The best interests and parental unfitness analyses
require separate, fact-intensive inquiries, but each examines
essentially the same underlying facts. Id.Based on our de novo review of the record, we find that
the State failed to adduce clear and convincing evidence that
termination of Amber’s parental rights was in the children’s
best interests. First, we acknowledge that the record contains
substantial evidence tending to demonstrate that Amber was
unfit to parent her children at the time of trial. Amber has a
history of addiction and suffers from severe mental illnesses,
and she failed to participate consistently in court-ordered serv­
ices intended to address the same. After more than a year of
juvenile court involvement, Amber failed to progress beyond
weekly supervised visitation with her children, and Amber’s
participation in visitation was troublingly irregular.
We also acknowledge that Amber’s “possible substance
abuse” remained a persistent concern throughout this case.
Indeed, it is concerning and suspicious that Amber wholly
failed to participate in court-ordered drug testing. However,
there is scant evidence in the record demonstrating the degree
to which Amber’s “issues” with substance abuse were or were
not resolved. This is not to say that such evidence does not
exist, as Amber participated in a psychiatric evaluation, a
psychological evaluation, at least two chemical dependency
evaluations, over a month of residential inpatient treatment,
and, to a lesser extent, outpatient therapy with a number of
different providers. However, none of this evidence appears
in the record. Moreover, there was no mention of substance
abuse concerns in either of the State’s juvenile petitions or
in its motion to terminate parental rights. Rather, Tracy’s
largely speculative concerns, as amplified by Krohn’s report-
ing, appear to be the primary foundation for the State’s sub-
stance abuse concerns.
- 906 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
IN RE INTEREST OF DESTINY H. ET AL.
Cite as 30 Neb. App. 885From our review of the record, Amber’s ongoing struggle
with mental illness remained at all times the primary concern
for this family, and the record demonstrates that Amber’s
opportunities to make progress on her mental health were
severely limited. At the outset of this case, Amber was recom-
mended to continue taking multiple prescription medications
intended to address her mental illness. Furthermore, Amber
was at all times ordered to participate in medication man-
agement. Yet, for much of this case, and through no fault of
Amber’s, it appears there were no medications to manage.
Rather, Amber went without her prescribed medications for
a significant, albeit uncertain, portion of this case. Despite
her severe mental illness being the sole basis for the State’s
amended petition, there appears to have been very little done to
provide Amber with a reasonable opportunity to achieve stabil-
ity in that regard.
Nevertheless, Amber managed to make substantial progress
through at least the first half of this case. She consistently
participated in weekly visits, many of which occurred in her
home. Amber also fully participated in a plethora of court-
ordered services. Notably, Amber successfully completed over
a month of inpatient treatment. Thereafter, Amber was recom-
mended to continue outpatient treatment at the same facility,
but was precluded from doing so due to “payment concerns.”
Moreover, Krohn suggested that “Lutheran Family Services
was able to provide [Amber] with [a] month or two months’
worth of medications,” but that service was apparently discon-
tinued because DHHS “couldn’t afford it.” It is difficult to rec-
oncile the court’s orders that DHHS pay for Amber’s services
with the apparent realities of this case.
While Amber’s progress certainly stalled during the ­latter
half of this case, the record reveals that her opportunities for
continued progress were further limited by substantial inter-
ference with visitation from June to October 2020, which
was aggravated by what was at best inattention from the
DHHS case manager. Moreover, the confusion regarding
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
IN RE INTEREST OF DESTINY H. ET AL.
Cite as 30 Neb. App. 885D’Yauna’s permanency objective, the fact that three differ-
ent judges presided over this case, and the complete absence
of rele­vant evidence from Amber’s mental health providers
appears to have adversely affected the court’s analysis of
Amber’s parental fitness.
[12] So, even though the State may have met its burden
of proving at least one statutory ground for termination as
set forth in § 43-292(7), we would still need to examine the
record for clear and convincing evidence that terminating
Amber’s parental rights was in the children’s best interests.
Unfortunately, the record in this case is severely lacking with
regard to information necessary to assess the best interests of
the children. Because the primary consideration in determining
whether to terminate parental rights is the best interests of the
child, a juvenile court should have at its disposal the informa-
tion necessary to make the determination regarding the minor
child’s best interests regardless of whether the information is
in reference to a time period before or after the filing of the
termination petition. In re Interest of Aaron D., 269 Neb. 249,
691 N.W.2d 164 (2005).
In In re Interest of Aaron D., the Nebraska Supreme Court
noted that “[t]he State did not present testimony from, or even
reports or records authored by, any of [the child’s] therapists,”
save one therapist who largely testified in favor of keeping the
parental relationship intact. 269 Neb. at 263, 691 N.W.2d at
174. Further the court noted that “[a]bsent a few [references]
to events occurring after the filing of the State’s termination
petition, the record is devoid of evidence showing what was
happening in [the child’s] life between the filing of the petition
in October 2003 and trial in February 2004.” Id.
Furthermore, the court in In re Interest of Aaron D. observed
that “the State used [the case manager] as a proxy for all of
the other witnesses whose expertise and testimony would have
been helpful, and perhaps essential, in determining what was
in [the child’s] best interests.” 269 Neb. at 261, 691 N.W.2d
at 174. While the case manager’s testimony “was based to
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
IN RE INTEREST OF DESTINY H. ET AL.
Cite as 30 Neb. App. 885some extent on her own observations,” the court also observed
the testimony was “in large measure” based on the case man-
ager’s “review of the records and reports generated by the
family support workers, therapists, foster parents, and others
who directly observed the parties.” Id. at 261-62, 691 N.W.2d
at 174. Thus, the court found that “[i]t is very difficult, with
the record presented in this case, to give substantial weight to
some of the key allegations made by [the case manager].” Id.
at 262, 691 N.W.2d at 174.
We find that the record in this case bears a concerning resem-
blance to that described by the Supreme Court in In re Interest
of Aaron D., supra. With regard to Destiny, De’Tevious, and
Jasani, it is true that the State adduced testimony from their
foster parent and visitation worker; however, such testimony
centered on the witnesses’ recollections of Amber’s past behav-
ior rather than the future well-being of the children. With
regard to D’Yauna, the record is largely devoid of relevant
evidence aside from initial reports that everyone involved
had agreed to permanency through guardianship with Octavia.
Moreover, the mysterious evolution of D’Yauna’s permanency
objective throughout this case is concerning to say the least.
Altogether, we conclude the record in this case is unacceptably
inadequate. Like in In re Interest of Aaron D., the State appears
to have focused almost exclusively on Amber’s shortcomings,
neglecting to adduce much of the evidence germane to the best
interests of the children.
Based on our de novo review of the record, we find the
State failed to adduce clear and convincing evidence that ter-
minating Amber’s parental rights was in the best interests of
the children. Accordingly, we reverse the juvenile court’s ter-
mination of Amber’s parental rights and remand the cause for
further proceedings.
CONCLUSION
We conclude the court did not err in finding clear and
convincing evidence of a statutory basis for termination of
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
IN RE INTEREST OF DESTINY H. ET AL.
Cite as 30 Neb. App. 885parental rights under § 43-292(7). However, we conclude the
State failed to adduce clear and convincing evidence that ter-
minating Amber’s parental rights was in the best interests of
the children. Accordingly, we reverse the order of the juvenile
court terminating Amber’s parental rights with respect to all
four children and remand the cause for further proceedings.
Reversed and remanded for
further proceedings.