In re Interest of Jessalina M.

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www.nebraska.gov/apps-courts-epub/
07/25/2023 08:06 AM CDT
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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
IN RE INTEREST OF JESSALINA M.
Cite as 32 Neb. App. 98In re Interest of Jessalina M.,
a child under 18 years of age.
State of Nebraska, appellee, v.
Samantha M., appellant.
___ N.W.2d ___
Filed July 18, 2023. No. A-22-678.
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. Juvenile Courts: Evidence: Appeal and Error. When the evidence is
in conflict, an appellate court may consider and give weight to the fact
that the juvenile court observed the witnesses and accepted one version
of the facts over another.
3. Parental Rights: Proof. Neb. Rev. Stat. § 43-292(7) (Reissue 2016)
operates mechanically and, unlike the other subsections of the statute,
does not require the State to adduce evidence of any specific fault on the
part of a parent.
4. Parental Rights: Time. The filing of the petition, supplemental peti-
tion, or motion to terminate parental rights is the triggering event for
the 22-month look-back period described in Neb. Rev. Stat. § 43-292(7)
(Reissue 2016).
5. Parental Rights: Proof. Under Neb. Rev. Stat. § 43-292 (Reissue
2016), once the State shows that statutory grounds for termination of
parental rights exist, the State must then show that termination is in the
best interests of the child.
6. Parental Rights: Presumptions: Proof. A child’s best interests are
presumed 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. Parental Rights: Statutes: Words and Phrases. Although the
term “unfitness” is not expressly stated in Neb. Rev. Stat. § 43-292- 99 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
IN RE INTEREST OF JESSALINA M.
Cite as 32 Neb. App. 98(Reissue 2016), it derives from the fault and neglect subsections of that
statute and from an assessment of the child’s best interests.
8. Parental Rights. Where 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.
Appeal from the County Court for Cheyenne County:
Russell W. Harford, Judge. Affirmed.
Gregory A. Rosen for appellant.
Amber Horn, Chief Deputy Cheyenne County Attorney, for
appellee.
Audrey M. Long, guardian ad litem.
Riedmann, Bishop, and Arterburn, Judges.
Bishop, Judge.
I. INTRODUCTION
Samantha M. appeals the order of the county court for
Cheyenne County, sitting as a juvenile court, terminating her
parental rights to her daughter, Jessalina M. We affirm.
II. BACKGROUND
1. Procedural Background
Samantha is the mother of Jessalina, born in September
2020. Jose M. is Jessalina’s father. Jose was part of the juve-
nile proceedings below, but he made significant progress on his
case plan and was able to be reunified with Jessalina. Because
Jose is not part of this appeal, he will only be discussed
as necessary.
Jessalina was removed from Samantha’s care shortly after
Jessalina’s birth due to concerns about the child’s well-being.
Hospital staff had been concerned about Samantha’s behav-
iors, which included yelling and screaming at staff; her initial
refusal to sign a treatment order for Jessalina; and Samantha’s
history of mental health issues. Additionally, Samantha previ-
ously had her parental rights terminated to her son, Noah C.,
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IN RE INTEREST OF JESSALINA M.
Cite as 32 Neb. App. 98in August 2019, and that termination was affirmed on appeal.
See In re Interest of Noah C., 306 Neb. 359, 945 N.W.2d 143(2020). Jose is not Noah’s father. Because Noah is not part of
this appeal, he will only be discussed as necessary.
(a) Lincoln County Proceedings
On September 10, 2020, the State filed a petition in the
county court for Lincoln County, sitting as a juvenile court,
alleging that Jessalina was a child within the meaning of Neb.
Rev. Stat. § 43-247(3)(a) (Reissue 2016) because she was in
a situation dangerous to life or limb or injurious to her health
or morals. That same day, the juvenile court entered an “Order
of Detention” giving temporary custody of Jessalina to the
Nebraska Department of Health and Human Services (DHHS).
Jessalina was placed in foster care, where she remained until
on or about January 10, 2022, at which time she was placed
with her father, who by that time had made significant progress
on his case plan.
On September 14, 2020, the juvenile court appointed coun-
sel to represent Samantha, and a guardian ad litem (GAL) for
Jessalina. After a motion by the State noting Samantha’s his-
tory of mental health issues, the court also appointed a GAL
for Samantha.
On October 13, 2020, Jessalina was adjudicated to be a child
within the meaning of § 43-247(3)(a) based on her father’s
answer of “no contest” to the allegations in the petition.
Following a disposition hearing on November 24, the juvenile
court adopted the DHHS case plan of November 17 and all
parties were ordered to comply with the terms of that plan; the
terms related to Jose and Jessalina, not Samantha.
On January 6, 2021, Samantha entered her “[n]o contest”
answer to the allegations in the petition, and Jessalina was
once again adjudicated to be a child within the meaning of
§ 43-247(3)(a).
Following a disposition hearing on February 24, 2021,
the juvenile court adopted the DHHS case plan of February
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Cite as 32 Neb. App. 9817 and ordered all parties to comply with the terms of the
respective plan. By a separate journal entry and order entered
on March 8, the juvenile court ordered that a concurrent plan
of adoption be redacted from the February 17 case plan.
The February 17, 2021, case plan set forth three goals and
numerous strategies to achieve those goals. The first goal
was for Samantha to “provide a safe and healthy environ-
ment for her child that promotes emotional and physical well
being on a consistent ongoing basis.” The strategies set forth
for Samantha were to work on her parenting skills to meet
Jessalina’s needs on an ongoing basis; respond to Jessalina’s
needs on cue and without prompt; learn to control her anger
and not yell around Jessalina and demonstrate that on an
ongoing basis, as well as learn to be open to family support
giving her “attitude checks” and to be open to follow feed-
back regarding why an attitude check was called; work with
service providers to understand Jessalina’s needs and how to
meet them and demonstrate the ability to do that on an ongo-
ing basis; attend visits as scheduled and not have them ended
due to becoming upset, threatening others, or not meeting the
needs of the child, and to communicate with family support
if she was running late; cooperate in assessments requested
regarding her mental health and/or parenting and sign releases
to provide DHHS information regarding the assessments; and
utilize appropriate coping skills gained in counseling when
dealing with any stressors.
The second goal was for Samantha to “manage her anxiet-
ies, trauma, and mental health as evidenced by attending her
medical appointments, managing her moods, handling stress-
ful situations, communicating effectively, and participating
in everyday activities.” The strategies set forth for Samantha
were to sign releases for DHHS to “any and all doctors or
service providers that she [was] working with regarding her
mental health, medication management, and neurologist”; par-
ticipate in a psychological evaluation and follow the recom-
mendations; find and maintain employment to provide for
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IN RE INTEREST OF JESSALINA M.
Cite as 32 Neb. App. 98herself and her daughter; maintain suitable housing for herself
and her daughter; take her medications as prescribed and
attend her medication management appointments; learn what
her diagnosis is and how it affects her on a day-to-day basis,
as well as how it affects her parenting; work with her service
providers to learn how to manage her mental health to par-
ent her child, meeting her emotional and physical well-being,
and demonstrate that ability consistently for a minimum of 6
months; and control her emotions and communicate rationally
without yelling and becoming verbally aggressive.
The third goal was for Jessalina to “have a safe and stable
home provided for her where her physical and emotional needs
are consistently met.” The strategies set forth for Samantha
were to attend visits with Jessalina and meet her physical and
emotional needs during the visits, obtain employment to pro-
vide for Jessalina’s needs, and maintain suitable housing.
The goals and strategies from the February 2021 case plan
remained the same throughout the entirety of this case.
On April 29, 2021, Samantha’s counsel filed a motion to
withdraw, stating that “[Samantha] has expressed that she
would like different representation, and there has been a break
down in the attorney-client relationship.” At a hearing on May
4, counsel stated that Samantha expressed a desire for different
or more effective representation. Samantha’s GAL stated that
Samantha was getting excellent counsel and that it would not
be in Samantha’s best interests to allow counsel to withdraw.
Following the hearing, the juvenile court denied counsel’s
motion to withdraw, but it did appoint cocounsel to repre-
sent Samantha.
A review hearing was held on May 11, 2021. Samantha
objected to DHHS’ May 4 court report and case plan, which
once again included a concurrent plan for adoption. An eviden-
tiary hearing was set for June 30.
On June 17, 2021, Jessalina’s GAL filed a motion to
transfer the case to Cheyenne County pursuant to Neb.
Rev. Stat. § 43-282 (Reissue 2016). The GAL alleged that
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IN RE INTEREST OF JESSALINA M.
Cite as 32 Neb. App. 98Samantha moved to North Platte, Nebraska (Lincoln County),
from Sidney, Nebraska (Cheyenne County), shortly before
Jessalina’s birth; Jessalina was born in North Platte in
September 2020, and the juvenile petition was filed in Lincoln
County on September 10; Jessalina’s foster parents (with
whom she was placed the day she was released from the hos-
pital after her birth) lived in Sidney; Jose had always lived in
Sidney; Samantha and Jose had a divorce action pending in
Cheyenne County; all visits by both parents occurred at loca-
tions outside of Lincoln County, with a majority occurring
in Sidney; all witnesses who had been directly involved with
Jessalina for any hearing occurring in this matter, with the
exception of Samantha, were located in either Keith County
or Cheyenne County; and Cheyenne County was the most
convenient forum. The notice of hearing stated that the motion
would be heard on June 22.
On June 18, 2021, Samantha filed a motion to continue
the hearing on the GAL’s motion to transfer. Samantha stated
in part that she was currently awaiting a contested hearing
scheduled for June 30 concerning her objections to a case plan
that was offered at a hearing on May 11. She claimed that she
would be
unduly prejudiced by a decision to transfer this case at
any time but she will be severely prejudiced by having
the motion heard and potentially decided prior to her
previously scheduled hearing on June 30, 2021[,] which
could result in a continuance of that hearing and new
counsel being appointed in the county the case is trans-
ferred to.
Following a hearing on June 22, 2021, the juvenile court, on
its own motion, postponed the contested court report and case
plan hearing scheduled for June 30, and stated that the con-
tested motion to transfer would be heard that day instead.
At the June 30, 2021, hearing on the motion to transfer,
the juvenile court stated that Jessalina’s GAL was excused
from the hearing but was authorized to present evidence by
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Cite as 32 Neb. App. 98affidavit. Exhibits were then received, and arguments were
made. We will set forth the details as necessary later in our
analysis. The juvenile court entered its order on July 2, trans-
ferring the matter to Cheyenne County; it also deferred the
contested review hearing on the May 4 court report and case
plan to Cheyenne County.
(b) Cheyenne County Proceedings
On August 13, 2021, the county court for Cheyenne County,
sitting as a juvenile court, set Samantha’s objection to the May
4 court report and case plan for hearing on September 21.
On September 7, 2021, Samantha’s court-appointed counsel
in Cheyenne County filed a motion to withdraw, stating that
she had been “fired” by Samantha, who felt counsel was inef-
fective and not representing her properly. The juvenile court
granted the motion and appointed new counsel the same day.
Following the hearing on Samantha’s objection to the May
4, 2021, DHHS court report and case plan, the juvenile court
entered an order on September 27, modifying the May 4 report
“to eliminate Adoption as an alternative to reunification at
this time” and approving the court report and case plan “as
modified.” The goals and strategies for Samantha otherwise
remained the same.
On October 22, 2021, the juvenile court granted Samantha’s
motion to hire an expert in psychology to assess whether
her mental health needs rose to a level of disability that may
require special accommodations; Dr. Gage Stermensky was to
be the expert. On November 2, Jessalina’s GAL filed a motion
to update Samantha’s psychological evaluation, noting that
it had been a year since Samantha’s previous psychological
evaluation. Following a hearing, the court granted the GAL’s
motion and ordered Samantha to obtain an updated psycho-
logical evaluation by Dr. Stermensky, with the results to be
provided to the parties, except the father and his attorney.
Samantha was also ordered to sign all psychological and medi-
cal releases.
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IN RE INTEREST OF JESSALINA M.
Cite as 32 Neb. App. 98On November 30, 2021, the juvenile court approved the
November 2 court report and case plan over Samantha’s
objections. The goals and strategies for Samantha remained
the same.
On January 14, 2022, the State and Jessalina’s GAL filed
an emergency motion to suspend visitations with Samantha
and Jessalina. The motion alleged as follows: Since the end
of December 2021, Samantha refused to participate in visits.
A safety threat existed for Jessalina and “FSWs” (family
support workers) to provide coverage of Samantha’s visits
because (1) at the last visit in December, law enforcement
was summoned due to Samantha’s behavior, including her
refusal to return Jessalina to the family support provider and
physically restraining Jessalina when the visit was ended;
(2) Samantha had a friend stalk a family support worker and
then verbally threaten the present worker, including threats of
physical harm; (3) the family support worker resigned from
the case due to Samantha’s threats and behaviors; and (4) this
was the fourth family support worker to terminate services
with Samantha due to her behaviors. Following a hearing,
the juvenile court entered an order on February 2, 2020,
granting the motion to suspend visits and stating that no fur-
ther in-person visitations would be provided until Samantha
submitted to an evaluation by Dr. Stermensky and his report
was filed with the court; pending the evaluation and receipt
of the report, Samantha was to be provided video visitation
with Jessalina.
On February 14, 2022, Samantha filed a motion to recon-
sider that, in part, sought a different psychologist to complete
her updated psychological evaluation, because Dr. Stermensky
had previously completed Jose’s evaluation “and this causes
concern given the relationship between the two parties.”
Following a hearing, the juvenile court granted Samantha’s
request to have an updated psychological evaluation by a
licensed psychologist other than Dr. Stermensky, because of
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IN RE INTEREST OF JESSALINA M.
Cite as 32 Neb. App. 98the potential conflict of interest. The court said, “It makes the
most sense to the Court that Dr. Kimzey . . . do the updated
evaluation because he did the first psychological evaluation,”
but that Samantha and her counsel could choose a psychologist
from a specified list.
On March 25, 2022, the State and Jessalina’s GAL filed
a “[c]omplaint” to terminate Samantha’s parental rights to
Jessalina pursuant to Neb. Rev. Stat. § 43-292(2), (3), (5), (6),
and (7) (Reissue 2016). The motion alleged that Samantha
substantially and continuously or repeatedly neglected and
refused to give Jessalina necessary parental care and protec-
tion; Samantha, being financially able, willfully neglected to
provide Jessalina with the necessary subsistence, education,
or other care necessary for her health, morals, or welfare or
neglected to pay for such subsistence, education, or other
care when legal custody of Jessalina was lodged with oth-
ers and such payment ordered by the court; Samantha was
unable to discharge parental responsibilities because of men-
tal illness or mental deficiency, and there were reasonable
grounds to believe that such condition would continue for a
prolonged indeterminate period; reasonable efforts to preserve
and reunify the family failed to correct the conditions leading
to the adjudication of the child under § 43-247(3)(a); Jessalina
had been in an out-of-home placement for 15 or more months
of the most recent 22 months; and termination of Samantha’s
parental rights was in the best interests of the child.
2. Parental Termination Hearing
The parental termination hearing was held on July 20 and
August 12 and 19, 2022. Samantha was allowed to appear vir-
tually; she was always represented by counsel, who appeared
personally, as did Samantha’s GAL. The State called several
witnesses to testify, and numerous exhibits were received into
evidence. Samantha did not testify, but two witnesses testified
on her behalf.
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Cite as 32 Neb. App. 98(a) Prior Parental Termination
Sonya Oliverius, a DHHS child family services supervi-
sor, testified that she was the one who removed Noah from
Samantha’s care in December 2017 and then supervised that
case for its entirety. Noah was 4 or 5 years old at the time
of his removal. DHHS ultimately recommended terminating
Samantha’s parental rights. Oliverius stated, “We had worked
a case with [Samantha] for quite some time with case plan
goals,” but “[w]e were not able to make enough progress
with [her] in regards to mostly her mental health,” “[a]nd so
we did not feel that she could provide a safe and emotionally
stable environment for Noah.” DHHS never knew exactly what
Samantha was diagnosed with, but she “sporadically talked
about different things, PTSD being one of the biggest concerns
that had been brought up.” Samantha would not sign releases
for anything from the past and never completed requested
psychological evaluations. She also did not complete a parent-
ing capacity assessment. Samantha “questioned anyone and
everyone that was, essentially, on her case,” and it got to the
point where there was not a visitation provider who wanted to
work with her.
During Noah’s case, his father (not Jose) reported to DHHS
that he was concerned with continuing his involvement with
Noah due to actions by Samantha, including concerns of false
allegations of domestic violence, and that he almost lost his
job because Samantha showed up at his work. Samantha and
Noah’s father ultimately had their parental rights terminated in
August 2019.
(b) September 2020 Removal of Jessalina
Jenna Odell is a child and family services specialist with
DHHS in North Platte and does initial assessments. Odell
testified that when Jessalina was born in September 2020,
there were concerns about Samantha’s behavior at the hos-
pital, as well as her mental health; the doctor who over-
saw Samantha’s prenatal care and delivered Jessalina was
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IN RE INTEREST OF JESSALINA M.
Cite as 32 Neb. App. 98concerned about Jessalina leaving the hospital with Samantha
and thought Samantha needed a “psych eval.” Hospital prog-
ress notes indicate that Samantha was “yelling and screaming
at staff as well as initially refusing to sign consent to treat the
infant” (she later signed the consent), she was “easily frus-
trated,” and there was a lack of information on where an older
sibling was located; thus, a report was made to the “abuse and
neglect hotline.”
Odell met Samantha at the hospital on September 9 and
10, 2020. Odell said Samantha was “dismissive like nothing’s
wrong” and she accused nurses of “lying about stuff” on a
few occasions. Samantha told Odell that she was not currently
participating in counseling; she said she had done so with
Noah, but it did not help. Samantha was taking medication
as prescribed by her physician for her mental health, some of
which had to be changed or withheld during pregnancy but
resumed following Jessalina’s birth. Samantha talked about
the domestic violence between Jose and her and stated that
was the reason she had moved to North Platte. Samantha
would not allow Odell to do a walk-through of her home or
even give Odell her address because “she was very paranoid
that somebody would get the address and give it to [Jose].”
Additionally, Samantha would not give Odell the names of
her friends who were her support persons so that Odell could
speak with them. According to Odell, Samantha “scored high”
on a risk assessment tool and it did not seem like she had
addressed concerns since Noah’s case the year prior. Odell
spoke to Jose over the phone on September 9 and 10, and
he was concerned for Jessalina. He told Odell that there was
a current protection order that Samantha had against him,
but that he had never assaulted Samantha and that she was
the aggressor.
Odell stated that Jessalina was made a state ward on
September 10, 2020, and placed in a kinship foster home in
Sidney where Noah lived. Odell did a referral for Samantha
and Jose to have supervised visitation with Jessalina and
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Cite as 32 Neb. App. 98provided Samantha with gas and hotel vouchers as well.
Samantha’s referral was for 25 hours of supervised visitation
with Family 4ward in Sidney. Odell transferred the case to a
specialist in October.
(c) Caseworker October 2020
Through August 2022
Catherine Ruiz is a DHHS child and family services spe-
cialist who was the caseworker on this case from October
2020 through the parental termination hearings. She described
Samantha’s inability to meet Noah’s needs, and when asked if
Samantha’s mental health was an issue in Noah’s case, Ruiz
responded, “Yes.” According to Ruiz, Jessalina was removed
from parental care on September 10, 2020, and was placed
with her father in January 2022; Jessalina has never been
placed back with Samantha. Samantha’s visits with Jessalina
were supervised for the entire case.
Ruiz testified that Samantha was court-ordered to undergo
a psychological evaluation in this case. She completed an
evaluation with “Dr. Kimzey, PhD.” in November 2020. The
evaluation indicates that Samantha reported that the assessment
was not court ordered. She was diagnosed with “Attention-
deficit/hyperactivity disorder, Combined presentation,”
“Posttraumatic stress disorder,” and “Generalized anxiety dis-
order.” It was also noted that an alternative diagnosis was
being considered, “Rule Out: Unspecified Bipolar Disorder.”
Outpatient counseling was recommended, as well as a psy-
chiatric medical consultation. Ruiz testified that the submitted
exhibit contained only a portion of Dr. Kimzey’s report, as
that was all that was provided to DHSS because “Samantha
did not want us to know about her trauma” or “previous his-
tory.” Ruiz did not believe that any of the information related
to the psychological evaluation was comprehensive enough to
be valid, and she was concerned that all the information pro-
vided to Dr. Kimzey came solely from Samantha; Ruiz did not
believe that Samantha was an accurate reporter. Later in the
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Cite as 32 Neb. App. 98case, Samantha was ordered to obtain an updated evaluation,
but, to Ruiz’ knowledge, Samantha had not done so by the
time of the termination hearing.
The DHHS case plan goals and strategies, as set forth
previously, were adopted by the juvenile court and remained
the same throughout the entirety of the case. According to
exhibits received into evidence, DHHS provided numerous
services to Samantha, including family support with two dif-
ferent agencies, supervised visitation with three different
agencies, makeup visitation, “Zoom” visits, home visits, case
management, team meetings, medical consultations, urgent
needs assessment, counseling, psychological evaluations, hotel
vouchers, gas vouchers, and transportation. Ruiz stated that
Samantha did not utilize all the services provided to her, and
it inhibited her ability to achieve reunification. Samantha had
attended parenting classes early in the case.
Ruiz said that DHHS also tried to help Samantha with time
management, provided her with a watch, talked to her about
using “apps” on her phone, switched visitation times to be
later in the day, and extended how late she could be for a
visit. DHHS accommodated Samantha’s dog, which she said
would indicate to her when she was going to have a seizure, as
Samantha reported having epilepsy. DHHS also accommodated
Samantha with breaks to help her with her anxiety.
Ruiz was questioned about Samantha’s progress on the
DHHS case plan goals and strategies. Samantha was supposed
to attend visits as scheduled, communicate with family sup-
port if she was running late, and not have visits ended due to
becoming upset, threatening others, or not meeting the needs
of the child. Ruiz stated Samantha’s progress was “minimal,”
because she was not attending visits on a regular basis and
communicating with workers was an issue. When asked if
Samantha made sufficient progress on the goals in order to
reunify with Jessalina, Ruiz said, “No.”
When Samantha had visits, she provided for Jessalina’s
physical needs, “but due to the inconsistencies of visitation
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Cite as 32 Neb. App. 98that was a problem.” There was minimal progress on respond-
ing to Jessalina’s needs on cue without a prompt because
Samantha had a hard time understanding Jessalina’s cues.
Samantha was supposed to learn to control her anger and not
yell around Jessalina, and she was supposed to be open to
family support workers giving her attitude checks. But again,
there was minimal progress because Samantha did not want
family support workers to give her any feedback and when
they gave her an attitude check, she would get upset. There
was an incident in December 2021 when law enforcement
was called and Samantha was yelling while holding Jessalina.
Samantha did not want to take any direction from provid-
ers and “didn’t want anybody else to tell her what to do”;
this inhibited her ability to learn and apply new parenting
skills. Ruiz stated that Samantha attended counseling, but if
Samantha became upset, “she would just explode as opposed
to trying to use some of the coping skills she claimed to be
gaining during counseling.”
In her case plan, Samantha was supposed to work with her
service providers to learn how to manage her mental health,
to parent her child to meet her emotional and physical well-
being, and to demonstrate that ability consistently for a mini-
mum of 6 months. Ruiz stated that DHHS did not have any
information on whether Samantha was doing these things, and
thus her progress was “minimal.” Ruiz said that Samantha
signed a limited release for her counselor to provide dates
of appointments attended and recommendations. But when
DHHS reached out to the counselor, DHHS was not given
information on recommendations because the counselor said
that Samantha did not want her to provide that information.
Samantha was supposed to sign releases for DHHS to doc-
tors or service providers she was working with regarding her
“mental health, medication management, and neurologist,”
but Ruiz stated that “we had limited releases, so we still
didn’t have much information.” DHHS knew that Samantha
took medication and carried it with her, but “[w]e didn’t
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Cite as 32 Neb. App. 98know what was prescribed or if she was regularly seeing her
medication management doctor.” Samantha was supposed to
learn what her diagnosis was and how it affected her on a
day-to-day basis, as well as how it affected her parenting, but
Samantha’s progress was minimal in that she said she had “a
lot of trauma and triggers,” but made “it a responsibility for
everybody else to walk on eggshells” as opposed to her “tak-
ing accountability for her own trauma and triggers.”
According to Ruiz, Samantha’s progress was also “mini-
mal” regarding controlling her emotions and communicating
rationally without yelling or becoming verbally abusive. Ruiz
explained that “we would constantly get rude [and vulgar]
e-mails and text messages from her when things were not
going her way or she was upset about something.” Samantha
yelled and became verbally aggressive in phone calls, team
meetings, and court hearings.
As for maintaining employment, Ruiz said, “I know
Samantha had a job, and then she didn’t have a job,” and then
“she wouldn’t report anything to [DHHS], so we weren’t sure
whether she had a job or not.” Samantha did have suitable
housing in North Platte.
Ruiz never felt that it would be safe for Samantha to have
unsupervised visits with Jessalina due to Samantha’s mental
health not being addressed, and when attempting to address it
with Samantha, “she would just become very upset” and say
that there were “other factors that were causing her to be this
way and that we just didn’t understand and that we . . . didn’t
know our jobs.”
Ruiz testified that Samantha worked with several differ-
ent providers in this case but did not maintain relationships
with any of them. Samantha went through three different
visitation companies, family support was provided by two
different companies, and she had a family coach/community
support. According to Ruiz, the providers left the case because
Samantha was rude to them either in person or via text or
email, and because “overall it was just draining for them,
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Cite as 32 Neb. App. 98and nobody wanted to work with her.” Ruiz and her supervi-
sor also received rude emails from Samantha who called them
names and said they were kidnappers.
Supervised visits changed locations several times to accom-
modate Samantha. Ruiz stated that supervised visits initially
occurred 3 or 4 days each week in Sidney, and Samantha
would stay in a hotel. But then in March 2021, Samantha
obtained a letter from her counselor stating that Sidney was
a trigger for Samantha due to trauma. Samantha wanted the
visits to happen in North Platte so that she would not have to
travel, but DHHS was concerned that Jessalina would have
to travel that much (4 hours round trip). Visits were subse-
quently changed so that they occurred in Chappell, Nebraska,
and Ogallala, Nebraska. However, Samantha was not consist­
ent with her visits in Ogallala, and DHHS was losing provid-
ers. Samantha started getting scheduled for one of her visits
each week in North Platte beginning in July, but Samantha
did not like the office location of the North Platte visits and
missed a lot of those visits, meaning that Jessalina was trav-
eling for visits that did not occur. Visits went back to being
solely in Ogallala in December.
Ruiz did not believe there was a beneficial relationship
between Samantha and Jessalina. Ruiz acknowledged that
Jessalina was a happy child and was even happy at visits
with Samantha. Ruiz did not question the fact that Samantha
loved Jessalina but said that Jessalina was “not gaining any-
thing” from the relationship. When Samantha was having an
in-person visit, there was some improvement in her parenting
skills, and she enjoyed reading to Jessalina. But redirection
continued to be a problem, something that was also a problem
in Noah’s case. Samantha’s attendance at visits was not con-
sistent, and for several months, Samantha had been limited to
virtual visits due to the lack of an updated psychological eval-
uation. Ruiz believed there was a risk of harm to Jessalina if
Samantha had continued contact with her, because Jessalina’s
needs would not be met. Ruiz stated, “[I]t has been about
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Cite as 32 Neb. App. 98Samantha this whole time . . . . It’s always been about her and
whether things benefit her.” Ruiz worried that Jessalina would
not get her needs met if Samantha was “upset with a provider
or something was said that she did not like.” Ruiz supported
terminating Samantha’s parental rights to Jessalina because “it
would allow Jessalina to have the permanency she deserves,”
and Ruiz believed that termination of Samantha’s parental
rights was in Jessalina’s best interests.
(d) Visitation Providers
(i) September 2020 to February 2021
Janet Vath is the “COO” of Family 4ward, a company that
contracts with the State to provide supervised visitation and
family support. Vath testified that Family 4ward started visits
with Samantha and Jessalina when the child was 2 or 3 days
old and continued to do so for 6 to 8 months. Samantha trav-
eled to Sidney 3 or 4 days per week for visits and each visit
was 7 or 8 hours long. Vath personally supervised some of the
visits when “Samantha would allow me to do them,” but if
Vath made a decision to cancel a visit if Samantha was late,
“then [Samantha] would get mad at me, and then she wouldn’t
want to see me for a while.” Several different visitation work-
ers were assigned to this case because “Samantha was very
difficult to get along with”; she would work with someone for
a while and then would get mad at that worker, so a different
worker would be assigned. Vath testified that “when I finally
gave the case back, my providers were all threatening to quit
. . . if they had to do any more visits with Samantha.” Vath
stated that her company had previously provided supervised
visitation and family support to Samantha in Noah’s case, but
“it ended up kind of not in a very good situation” for the same
reasons—she was difficult to work with and workers did not
want to work with her anymore.
Vath testified that initially Samantha did a “really good
job” in Jessalina’s case, but as time went on she “started in
her old behaviors, her old patterns.” Vath tried to address
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Cite as 32 Neb. App. 98the situation with Samantha, but Samantha “would just blow
up.” When Jessalina was 3 or 4 months old, Samantha would
talk about how pizza was Jessalina’s favorite meal; at 6 months
old, Samantha was going to let Jessalina go down the stairs
in the playpen; Samantha did not want anybody to watch her
give Jessalina a bath; when Jessalina would not go to sleep,
Samantha would get irritated with her and just tell her, at 6
months old, “you need to go to sleep.” Samantha would not
take redirection, and the workers never knew if she was going
to get mad, because “she could go from zero to ten in two
seconds.” When Samantha was told something that she did not
want to hear, she could become explosive.
Vath stated that during one visit, Samantha got mad and
would not hand Jessalina over to the worker, and Family
4ward’s “CEO” was called. The whole time that Samantha was
on the phone with the “CEO,” the worker was on the phone
with Vath. The worker was concerned because Samantha kept
“kicking and hitting at [her] dog” while holding Jessalina.
There were other visits when Samantha got mad and would
“go out and kick the dog,” or “hit the dog.” Toward the end of
Family 4ward’s time on the case, the company sent two visita-
tion workers to visits.
Vath agreed that Samantha could be a good mother who
was attentive and who communicated and interacted with her
child. However, Samantha could also be distant, sitting and
watching her child, but not interacting with her. Visitation
notes from Family 4ward for December 2020 through February
2021 revealed the following: Samantha often focused on things
other than Jessalina and got upset with workers; she was
negative toward people who tried to help her and focused
her energy on being angry rather than accepting assistance
(e.g., getting help with setting up an account to apply for food
stamps); and she would not regulate her emotions. The visita-
tion notes also indicated that when Jessalina was 3 months
old, Samantha once yelled at her for spitting up, was angry
that Jessalina would not respond when asked what the green
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Cite as 32 Neb. App. 98stripe on her diaper meant, and thought that Jessalina should
already be walking. When Jessalina was 4 months old,
Samantha was trying to teach her how to meditate and got frus-
trated when she cried or would not sleep when she was “‘sup-
posed to.’” The visitation reports also noted that it appeared
Samantha wanted Jessalina to thrive and grow, would feed and
change her, and would hold and talk to her.
(ii) June to November 2021
According to Sarah Jones, deputy programs director at
Independence Rising, the company supervised Samantha’s
visits with Jessalina from June through November 2021.
Samantha asked that the company’s first supervision worker
be removed, so a second worker was assigned. The com-
pany ultimately chose to end services with Samantha due to
“numerous no-shows from Samantha” and inappropriate ways
that Samantha would speak to workers. Jones testified that
Samantha used “[v]ery volatile language, a lot of swearing,
screaming at us on the phone.” Jones explained that Samantha
was upset because “she was more than 15 minutes late to her
visit, so the visit was ended, and that she thought that we . . .
should be held in contempt of court.”
Jones sent an email to DHHS on December 3, 2021,
informing DHHS of the reasons why the company was no
longer willing to supervise Samantha’s visits. Samantha was
to receive 18 hours of supervised visitation each week. She
“no showed” for two visits in June, six in July, one in August,
four in September, four in October, and two in November—
these “no shows” did not include visits where Samantha
canceled or failed to confirm in advance as required. Jones’
email also stated that the “biggest issue” was “Samantha’s
demeanor and attitude toward supervisory staff, as well as
the family support workers”; numerous workers refused to
work with Samantha because of “the behavior, harassment,
and profanity that they constantly receive”; and workers “had
to actually block Samantha’s number/email address as the
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Cite as 32 Neb. App. 98messages would continue all day and night.” The company
did not feel that it was in the interests of its employees to
subject them to Samantha’s behavior.
The visitation notes from Independence Rising show that
Samantha fed, changed, and played appropriately with Jessalina
during visits. However, on cross-examination, Jones stated that
when Samantha would no-show on her visits, it was “very
hard on Jessalina having been transported all that way” to then
have no visit. Also, one worker mentioned multiple times that
any time she would help to redirect Samantha, she was fearful
of the response she would get, and the worker also got emails
from Samantha at 4 a.m. that were difficult for the worker.
Jones herself received inappropriate emails from Samantha
outside of visits.
(iii) December 2021 to
January 2022 Visitation
A new visitation provider was utilized in December 2021,
and Samantha attended a majority of her visits, although she
was late on several occasions. Ruiz acknowledged being con-
tacted by Samantha’s counsel, who had concerns about the
relationship between the male visitation worker and Samantha
and thought that maybe they were “getting along a little too
well.” Then on December 27, Samantha called law enforce-
ment during her visit; along with a police officer, two “CFS”
workers also went to the location of the visit. According to
Ruiz, Samantha was holding Jessalina and putting her in
an unsafe situation when the workers were trying to take
Jessalina so law enforcement could continue their investiga-
tion. The police officer did not arrest anyone. Ruiz acknowl-
edged that the visitation worker and Samantha gave different
versions of what transpired during the visit. After that visit,
Ruiz arranged for a different visitation worker to super-
vise the visits. Exhibits received into evidence show that
Samantha attended another visit in December with a new
supervision worker, but in January 2022, she missed all six of
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Cite as 32 Neb. App. 98her scheduled visits through January 12; she failed to confirm
four of those visits, confirmed but failed to show for another
visit, and canceled due to illness for the other visit.
(iv) February 2022 Change
to Video Visits
On February 2, 2022, the juvenile court entered an order
for video visits only. Ruiz testified that the court ordered all
visits to occur virtually because of Samantha’s “no-shows”
and because she had not updated her psychological evaluation.
Video visits were scheduled to occur three times each week
for 15 minutes per visit. Samantha missed all 10 of her sched-
uled visits for February 2022 because she failed to confirm; in
March, she missed her first video visits, but then attended 6
of her 8 remaining visits scheduled that month; in April, she
attended 8 out of 13 scheduled visits; in May, she attended 10
out of 13 scheduled visits; and in June, she attended 11 out
of 13 scheduled visits. During the termination trial, Samantha
attended only three out of eight scheduled visits between the
July 20 and August 12 hearing dates, and she missed both of
her scheduled visits between the August 12 and 19 hearing
dates. According to Ruiz, Samantha could have reestablished
in-person visits at any point by completing an updated psy-
chological evaluation, and Ruiz believed Samantha’s failure
to do so was an indication of her unwillingness to work on the
case plan goals.
(e) Jessalina’s Father
Jose testified that his divorce from Samantha was finalized
in 2021 and that Jessalina was placed with him in the middle
of January 2022. Samantha sent messages to Jose asking him
to let her see Jessalina without DHHS’ knowledge, but he did
not respond. Jose said that Samantha also sent him threatening
text messages saying that she was “going to explode me up”
and that she was coming after Jessalina. Jose was concerned
about the messages because Jessalina was with him all the
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Cite as 32 Neb. App. 98time. He supported terminating Samantha’s parental rights
to Jessalina.
We note that during Jose’s testimony, Samantha repeatedly
interrupted. The juvenile court informed her that if she con-
tinued to interrupt, she would be excluded from the hearing.
Samantha told the judge that she could not be excluded from
her own hearing and that the judge was allowing people to lie
on the stand. The court informed Samantha that she could be
excluded if she interrupted and that she had two attorneys rep-
resenting her with whom she could visit. When Jose continued
a response, Samantha interrupted again and told him to “shut
[his] mouth.” The court asked Samantha’s GAL if she wanted
to visit with Samantha and to suggest that she not interrupt
anymore. Samantha said, “No, I don’t need suggestion. I am
tired of dealing with the false allegations . . . that constantly
— like, I am tired of it.” Her counsel asked if there was a way
for the moderator to mute Samantha on “Zoom,” and the clerk
informed the court that the moderator had been muting her, but
that Samantha was unmuting herself.
Jose was asked what his concerns were if the juvenile court
did not terminate Samantha’s parental rights. He responded,
“[A]s you can see just a few minutes ago, just outbursts
and whatnot.” Jose stated that Samantha did not abide by
anybody’s rules except her own. During his marriage to
Samantha, she said that Noah was no longer with her because
“they kidnapped him for no reason.” She also accused Jose
of kidnapping Jessalina. Samantha “manipulates situations
and scenarios.”
(f) Samantha’s Witnesses
Kourtney Sabala, a psychiatric mental health nurse practi-
tioner, was called as a witness for Samantha. Sabala testified
that Samantha has been her patient since January 2021, and
Sabala provides medication management for her. According to
Sabala, Samantha was diagnosed with “attention hyperactive
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Cite as 32 Neb. App. 98deficit disorder,” post-traumatic stress disorder, and major
depressive disorder; she has one medication for “ADHD,” and
a second medication helps treat the other diagnoses. Sabala
received regular requests for Samantha’s medication to be
refilled, and Samantha appeared for followup appointments.
Sabala had not diagnosed Samantha with bipolar disorder.
Sandra Raney was also called as a witness for Samantha.
Raney testified that she has a master of arts degree in coun-
seling and a master’s degree in addictions counseling; is an
addictions alcohol and drug counselor; and is a licensed men-
tal health professional, a certified professional counselor, a
certified anger resolution therapist, and a clinically certified
trauma professional. Raney never met Samantha or Jessalina.
Raney reviewed Dr. Kimzey’s evaluation, visitation notes from
January and September 2021, and some of the exhibits in
the record.
What stood out for Raney was that Samantha was very
attentive to Jessalina, and when Samantha was emotionally
dysregulated, she separated herself from the child “which
was insightful on her part”; additionally, it was not reported
that Samantha had become aggressive with Jessalina. When
asked if 15-minute video visits were actually meaningful,
Raney replied, “[T]hey are conversating,” and “[t]hat is a
very meaningful thing.” If Samantha is missing visits because
she overslept, it could be an issue with medications throwing
off her sleep schedule; on cross-examination, Raney agreed
that if sleep had been an issue for 2 years, it was fair to say
that it was not being treated. Raney did not believe it was
appropriate to say that Jessalina would be hurt by a relation-
ship with Samantha until there was more information, and
she believed that an evaluation of the parent-child interac-
tion and attachments would be helpful. For Samantha and
Jessalina to continue having a relationship even if Jose has
the child, Samantha needs to do medication management and
counseling, as well as prove she is taking care of herself as
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Cite as 32 Neb. App. 98demonstrated by her behaviors. Raney said, “So [Jose] needs
to be able to see that by [Samantha’s] behavior it is safe to
allow the daughter to have short windows of opportunities
or visits.”
On cross-examination, Raney stated that Samantha “needs
to get the mental health addressed . . . to continue to have
the relationship with the daughter, but I don’t believe it’s
fair to terminate her rights because of her mental health.”
Raney acknowledged that it would be important informa-
tion if Samantha was ordered to do an updated psychological
evaluation and refused to do so, and if she was ordered to do
counseling and provide those records for verification. When
asked if failing to do those things indicated that Samantha
was not willing to address her mental health, Raney replied,
“It’s showing that she’s afraid.” When asked if it would be a
problem if Samantha refused, screaming and yelling, to turn
Jessalina over to law enforcement, Raney responded, “When
you don’t understand the effects of trauma and the response,
what we have is minimal information because also what I’ve
heard is there’s possibilities that she has a deeper mental
health issue that’s going on,” so “I can also see her being
protective of the child because she feels there’s a threat.”
When asked if she would expect some sort of improvement to
be evident after 5 years with state aid and multiple agencies,
Raney said, “Yes.”
3. Juvenile Court’s Decision
In a journal entry and order entered on August 29, 2022,
the juvenile court found by clear and convincing evidence that
statutory grounds for termination of Samantha’s parental rights
existed pursuant to § 43-292(2), (3), (5), (6), and (7). The court
also found that Samantha was an unfit parent and that termi-
nation of her parental rights was in the child’s best interests.
Accordingly, the court terminated Samantha’s parental rights
to Jessalina.
Samantha appeals.
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Cite as 32 Neb. App. 98III. ASSIGNMENTS OF ERROR
Samantha assigns, consolidated and restated, as follows:
That in the county court for Lincoln County, (1) her con-
stitutional rights were violated and the court erred when it
transferred this juvenile case from its original jurisdiction to
another jurisdiction, because the court denied her a meaning-
ful opportunity to cross-examine witnesses when the GAL
was excused from the hearing and because the court dismissed
her court-appointed attorneys before a hearing or ruling on a
previously scheduled contested hearing on her objection to
a DHHS court report and case plan. That the county court for
Cheyenne County erred (2) in finding that grounds for ter-
minating her parental rights existed pursuant to § 43-292(2),
(3), (5), (6), and (7); and (3) in finding that she was unfit
and that terminating her parental rights was in Jessalina’s
best interests.
IV. 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).
However, when the evidence is in conflict, an appellate court
may consider and give weight to the fact that the juvenile
court observed the witnesses and accepted one version of the
facts over another. Id.V. ANALYSIS
1. Transfer to Cheyenne County
Samantha argues that her “Due Process and Constitutional
rights were violated, and the trial court erred when the Lincoln
County Court transferred this Juvenile case from its origi-
nal jurisdiction.” Brief for appellant at 17. Specifically, that
“[t]he court dismissed Samantha’s court appointed attorneys
and denied Samantha’s meaningful opportunity to confront
accusers or cross examine witnesses, before hearing or ruling
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Cite as 32 Neb. App. 98on a previously scheduled contested hearing on Samantha’s
Objection” to a DHHS court report and case plan. Id.(a) Principles of Law
Section 43-282 states in relevant part:
If a petition alleging a juvenile to be within the
jurisdiction of the Nebraska Juvenile Code is filed in a
county other than the county where the juvenile is pres-
ently living or domiciled, the court, at any time after
adjudication and prior to final termination of jurisdic-
tion, may transfer the proceedings to the county where
the juvenile lives or is domiciled and the court having
juvenile court jurisdiction therein shall thereafter have
sole charge of such proceedings and full authority to
enter any order it could have entered had the adjudica-
tion occurred therein.
See, also, In re Interest of Jeremy U. et al., 304 Neb. 734,
936 N.W.2d 733 (2020) (§ 43-282 allows proceedings to be
transferred, after adjudication, to county where juvenile lives
or is domiciled); In re Interest of Tegan V., 18 Neb. App. 857,
794 N.W.2d 190 (2011) (§ 43-282 allows adjudication pro-
ceeding to be filed in any county and allows for discretionary
transfer, after adjudication, to county where juvenile is living
or domiciled).
(b) Procedural Background
On June 17, 2021, several months after Jessalina was
adjudicated, her GAL filed a motion to transfer the case to
Cheyenne County pursuant to § 43-282. The contents of the
motion and Samantha’s response were set forth earlier in
this opinion.
At the June 30, 2021, hearing on the motion to transfer, the
juvenile court stated that although the strict rules of evidence
did not apply and it was a discretionary matter for the court
under § 43-282, it would receive evidence. The court also
stated that Jessalina’s GAL was excused from the hearing but
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Cite as 32 Neb. App. 98was authorized to present evidence by affidavit; that affida-
vit was received into evidence without objection. The affi-
davit reiterated the reasons set forth in the GAL’s motion
to transfer regarding the location of all relevant persons;
that all visitations occurred outside of Lincoln County, with
the majority occurring in Cheyenne County; Samantha had a
recently expired domestic abuse protection order against Jose
in Cheyenne County; Samantha and Jose had a divorce pro-
ceeding pending in Cheyenne County; the May 4, 2021, DHHS
court report set forth the history of the case and showed the
lack of meaningful contact with Lincoln County; and Jose had
progressed significantly toward reunification with Jessalina as
compared to Samantha and “placement should occur with him
as the case closes down.” Numerous exhibits were attached to
the affidavit.
A report from Samantha’s GAL was also received into evi-
dence. This report stated that Samantha lived in North Platte,
where she had moved while pregnant with Jessalina because
Jose was physically abusive; her therapist and doctors were in
North Platte; she was already required to travel for visits with
Jessalina, and such travel interfered with Samantha’s mental
health and her ability to look for employment; and the travel
created obstacles to her ability to parent. Also received into
evidence was a March 18, 2021, letter from Samantha’s thera-
pist recommending that Samantha’s visitations be held outside
of Sidney because of trauma Samantha experienced there; the
trauma led to a diagnosis of post-traumatic stress disorder,
and putting Samantha near the place her trauma occurred was
not in her best interests. A visitation schedule showed that
Samantha was scheduled to have visits in Ogallala and North
Platte. Upon inquiry by the juvenile court, Samantha’s coun-
sel confirmed that none of Samantha’s visits were occurring
in Sidney.
The State argued that it was in favor of a transfer to
Sidney because in Sidney they have “a lengthy back-
ground” with Samantha and terminated her parental rights
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primarily be in the Sidney area if there was a parental termi-
nation, Jessalina had been in Sidney the “entire time” except
for a few days, and Jessalina’s father was in Sidney. DHHS
concurred and also requested that the case be transferred to
Cheyenne County. DHHS noted that the case manager and
supervisor for the case would remain the same, so there would
not be any interruption in case management. Jose’s counsel
stated that Jose agreed with the transfer.
Samantha’s GAL argued that it appeared that the reason for
seeking a transfer was to immediately file for a termination of
Samantha’s parental rights. Her GAL added that “it’s certainly
clear to anybody who’s participated that Samantha has been
frustrated and angry at times,” and “it is also no secret that
she has some mental health issues,” specifically post-traumatic
stress disorder and “ADHD.” But “rather than aiding her, it
has . . . been like a hammer against her.” Traveling for all of
her visits “posed a serious problem” (e.g., holding a job and
being on time for visits).
Samantha’s attorney was “concerned about the timing of
this being solely an effort to get this somewhere where some-
one will do something to terminate [Samantha’s] rights.”
Counsel argued that Samantha’s caseworker, other providers,
and her appointed attorneys that she had for 8 months would
change if the case were transferred to Cheyenne County. As
for witnesses, Samantha’s psychiatrist, therapist, and physi-
cian were “here,” she had support workers in North Platte,
and her caseworker’s supervisor was in North Platte. Counsel
argued that a transfer would further delay a hearing on
Samantha’s objection to the May 4, 2021, case plan. Counsel
stated, “I think that if ever there was an appropriate time to
transfer this case it was immediately following the adjudi-
cation,” and “[i]t’s not now” as it would be prejudicial to
Samantha, not to mention costly to the judicial system and
inefficient. Counsel said that she “just can’t see the need
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court’s discretion.”
The juvenile court entered its order on July 2, 2021, trans-
ferring the matter to Cheyenne County. The court noted that
Jessalina had lived in Cheyenne County since September 2020
and that the proceedings had transitioned past the adjudi-
cation phase for both parents. All parties except Samantha
“have joined in or agreed to the [GAL’s] request to transfer
jurisdiction,” and the GAL’s affidavit “points out that the
transfer would be in the best interest of the minor for a vari-
ety of reasons.” The court stated, “It should be noted that if a
transfer would take place, virtually no interruption of services
will occur, nor will the mother’s visitation be disrupted.” The
court did “not disagree that the mother suffers from serious
mental health issues and that special care must be taken if a
transfer were granted to accommodate her needs”; “[h]owever,
the issue isn’t whether the transfer of this Court’s jurisdiction
is in the best interest of the mother but the best interest of
the child.” The court said that Samantha’s concerns could be
accommodated by virtual court appearances if medically nec-
essary and continued visitations outside of Sidney. The court
also deferred the contested review hearing on the court report
and case plan.
(c) Transfer Was Proper
Initially, we note that Samantha claims that “[b]ecause the
trial court excused Jessalina’s GAL [from the transfer hearing],
Samantha could not confront her accuser.” Brief for appel-
lant at 21. However, at the transfer hearing, Samantha neither
objected to the GAL being excused nor the receipt of the
GAL’s affidavit into evidence; she therefore waived any argu-
ment regarding her right to confront the GAL. And regardless,
Samantha’s GAL, as well as Samantha’s attorney, made numer-
ous arguments to counter the points made by Jessalina’s GAL
in support of transferring the case.
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Cite as 32 Neb. App. 98Samantha also contends that the transfer was prejudicial to
her because it caused a delay in the contested hearing regard-
ing DHHS’ May 4, 2021, court report and case plan. However,
Samantha continued to be provided with services and visita-
tion until the contested hearing was held in Cheyenne County
on September 21, 2021. At the hearing, Samantha’s lawyer
asked the court not to adopt the May 4 plan and to have DHHS
rewrite the case plan to leave out the adoption language and to
acknowledge “things” that Samantha had done.
Samantha’s GAL also said the “adoption” language (con-
current plan) should be redacted. Jessalina’s GAL asked the
court to adopt the plan, but understood the plan was now 4
months old and needed an update, and suggested they come
back in 30 days. The State said it was “not entirely sure what
the objection was” other than the concurrent plan of adoption.
Following the hearing, the juvenile court modified the DHHS
court report and case plan “to eliminate Adoption as an alterna-
tive to reunification at this time,” and approved the court report
and case plan “as modified.”
It appears that Samantha’s objection to the case plan dated
May 4, 2021, was the language concerning an alternative plan
of adoption, and that language was “eliminated” by the juvenile
court as requested. The May 4 DHHS case plan contained iden-
tical case plan goals and strategies for Samantha as appeared in
the February 17 plan; the only difference was that the May plan
contained updates on Samantha’s progress. Additionally, the
subsequent case plan dated November 2, 2021, was approved
by the court on November 30 over Samantha’s objections. The
November 2 plan once again contained identical case plan
goals and strategies for Samantha as appeared in the previous
plans, with the only difference being updated progress notes.
Given the foregoing, we fail to see how Samantha’s rights were
violated or how she was prejudiced by the transfer of the case
to Cheyenne County. We find no error in the juvenile court’s
decision to transfer the case.
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IN RE INTEREST OF JESSALINA M.
Cite as 32 Neb. App. 982. Statutory Grounds
for Termination
The State and Jessalina’s GAL sought to terminate
Samantha’s parental rights to Jessalina under § 43-292(2), (3),
(5), (6), and (7). The juvenile court found that all five of those
grounds existed by clear and convincing evidence.
[3] Section 43-292(7) allows for termination when “[t]he
juvenile has been in an out-of-home placement for fifteen or
more months of the most recent twenty-two months.” By the
plain and ordinary meaning of the language in § 43-292(7),
there are no exceptions to the condition of 15 out of 22 months’
out-of-home placement. In re Interest of Mateo L. et al., 309
Neb. 565, 961 N.W.2d 516 (2021). Section 43-292(7) operates
mechanically and, unlike the other subsections of the statute,
does not require the State to adduce evidence of any specific
fault on the part of a parent. In re Interest of Mateo L. et al.,
supra. In other words, if the period of 15 out of 22 months
is met, § 43-292(7) is met. See In re Interest of Mateo L. et
al., supra.
[4] Section § 43-292(7) does not specifically provide a
triggering event for when the 22-month look-back period
should commence. Compare § 43-292(1) (termination of
parental rights allowed when parents have abandoned juvenile
for 6 months or more immediately prior to filing of peti-
tion). Notably, however, to terminate parental rights under
§ 43-292(7), it must be alleged in the petition or motion to
terminate parental rights that the juvenile has been in an out-
of-home placement for 15 or more months of the most recent
22 months. See Neb. Rev. Stat. § 43-291 (Reissue 2016)
(facts alleging grounds for termination of parental rights set
forth in original petition, supplemental petition, or motion
for termination of parental rights). Thus, the logical conclu-
sion is that the filing of the petition, supplemental petition,
or motion to terminate parental rights is the triggering event
for the 22-month look-back period described in § 43-292(7).
See, also, Neb. Rev. Stat. § 43-292.02 (Cum. Supp. 2022)
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IN RE INTEREST OF JESSALINA M.
Cite as 32 Neb. App. 98(petition shall be filed on behalf of State to terminate paren-
tal rights of juvenile’s parents if juvenile has been in foster
care under responsibility of State for 15 or more months of
most recent 22 months; exceptions provided). The Nebraska
Supreme Court has also used the filing date of the petition
when considering § 43-292(7). See, In re Interest of Nicole
M., 287 Neb. 685, 844 N.W.2d 65 (2014) (at time State filed
to terminate parental rights, children had been in out-of-home
placement for over 21 months; sufficient evidence under
§ 43-292(7)); In re Interest of Shelby L., 270 Neb. 150, 699
N.W.2d 392 (2005) (child in continuous out-of-home place-
ment for 15 months 12 days when termination petition filed;
if this were only ground for termination, only question would
be whether termination was in child’s best interests).
Jessalina was removed from Samantha’s care and custody
on September 10, 2020, while she was still in the hospital
after her birth, and Jessalina never returned to Samantha’s
home. Jessalina was placed with her father on January 10,
2022. Assuming without deciding that the time Jessalina was
placed with her father did not count as an out-of-home place-
ment for purposes of § 43-292(7), Jessalina had been in an
out-of-home placement for 16 months from September 10,
2020, until January 10, 2022. The “complaint” to terminate
Samantha’s parental rights was filed on March 25, 2022.
Therefore, the 22-month look-back period would run from
May 25, 2020, to March 25, 2022, which includes the 16
months of out-of-home placement from the time of Jessalina’s
removal until she was placed with her father. Further, even
when looking back at the most recent 22 months preceding
the July 20, 2022, commencement of the parental termination
hearing (September 20, 2020, to July 20, 2022), Jessalina had
been in an out-of-home placement for 15 of those 22 months
as of December 20, 2021.
The State has shown clearly and convincingly that
§ 43-292(7) exists as a statutory basis for terminating the
parental rights of Samantha. And since any one of the bases
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IN RE INTEREST OF JESSALINA M.
Cite as 32 Neb. App. 98for termination codified in § 43-292 can serve as the basis for
termination, we need not consider the sufficiency of the evi-
dence concerning any other statutory basis for termination. In
re Interest of Mateo L. et al., 309 Neb. 565, 961 N.W.2d 516(2021). We next consider whether termination is in the child’s
best interests.
3. Best Interests and Unfitness
[5-7] Under § 43-292, once the State shows that statutory
grounds for termination of parental rights exist, the State must
then show that termination is in the best interests of the child.
In re Interest of Ryder J., 283 Neb. 318, 809 N.W.2d 255(2012). A child’s best interests are presumed to be served by
having a relationship with his or her parent. In re Interest of
Leyton C. & Landyn C., 307 Neb. 529, 949 N.W.2d 773 (2020).
This presumption is overcome only when the State has proved
that the parent is unfit. Id. Although the term “unfitness” is
not expressly stated in § 43-292, the Nebraska Supreme Court
has said that it derives from the fault and neglect subsections
of that statute and from an assessment of the child’s best inter-
ests. In re Interest of Mateo L. et al., supra. In the context of
the constitutionally protected relationship between a parent
and a child, parental unfitness means a personal deficiency
or incapacity which has prevented, or will probably prevent,
performance of a reasonable parental obligation in child rear-
ing and which has caused, or probably will result in, detriment
to a child’s well-being. In re Interest of Leyton C. & Landyn
C., supra. The best interests analysis and the parental fitness
analysis are separate inquiries, but each examines essentially
the same underlying facts as the other. Id. We have previously
set forth the evidence presented at the termination hearing, and
we will not recount it again here.
Notably, the same issues that were present in the previ-
ous case with Noah were again present here in that Samantha
failed to address her mental health issues and failed to
make progress on case plans. In the current case, DHHS
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IN RE INTEREST OF JESSALINA M.
Cite as 32 Neb. App. 98provided numerous services to Samantha, including family
support with two different agencies, supervised visitation with
three different agencies, makeup visitation, “Zoom” visits,
home visits, case management, team meetings, hotel vouchers,
gas vouchers, transportation, and assistance with time manage-
ment; she failed to utilize all of the services provided to her.
Additionally, Samantha failed to sign releases for DHHS to
access counseling and medical records, DHHS was only pro-
vided a partial copy of Dr. Kimzey’s evaluation, and Samantha
failed to complete an updated evaluation; all of these things
inhibited DHHS’ ability to help Samantha. Samantha’s failure
to utilize or engage in services, and her failure or inability to
work with the providers who were trying to help her, inhibited
her ability to reunify with Jessalina.
While Samantha’s visits with Jessalina were generally good
when they occurred, they did not occur consistently. She
even missed visits that were to occur in North Platte and
would not have required her to travel. And Samantha never
progressed beyond supervised visitation. Jessalina had been
out of Samantha’s care for 22 months at the time the termi-
nation hearing commenced in July 2022. Samantha had not
seen Jessalina in person since January, and from February to
August, they only had three 15-minute video visits scheduled
each week, because Samantha had not obtained an updated
psychological evaluation. Samantha missed many of the video
visits, as described previously.
[8] “Children cannot, and should not, be suspended in
foster care or be made to await uncertain parental maturity.”
In re Interest of Walter W., 274 Neb. 859, 872, 744 N.W.2d
55, 65 (2008). And where a parent is unable or unwilling to
rehabilitate himself or herself within a reasonable time, the
best interests of the child require termination of the parental
rights. In re Interest of Ryder J., supra. The State proved
that Samantha was unfit, meaning that she has a personal
deficiency or incapacity which has prevented, or will pre-
vent, performance of a reasonable parental obligation in child
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IN RE INTEREST OF JESSALINA M.
Cite as 32 Neb. App. 98rearing and which has caused, or probably will result in, detri-
ment to the child’s well-being. See In re Interest of Leyton C.
& Landyn C., supra. We further find that there is clear and
convincing evidence that it is in Jessalina’s best interests to
terminate Samantha’s parental rights.
VI. CONCLUSION
For the reasons stated above, we affirm the order of the juve-
nile court terminating Samantha’s parental rights to Jessalina.
Affirmed.