In re Interest of Alec S., a Child under 18 years of age. State of Nebraska, Appellee,
Brenda G., Appellant.
Juvenile Courts: Appeal and Error. An appellate court reviews
juvenile cases de novo on the record and reaches a conclusion
independently of the juvenile court's findings.
Parental Rights: Proof. In order to terminate parental
rights, a court must find by clear and convincing evidence
that one of the statutory grounds enumerated in Neb. Rev.
Stat. § 43-292 (Cum. Supp. 2014) exists and that the
termination is in the child's best interests.
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.
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 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.
Parental Rights. The best interests analysis and the parental
fitness analysis are separate inquiries, but each examines
essentially the same underlying facts as the other.
Last-minute attempts by parents to comply with the
rehabilitation plan do not prevent termination of parental
Children cannot, and should not, be suspended in foster care
or be made to await uncertain parental maturity.
Neb. 785] Petition for further review from the Court of
Appeals. Irwin, Pirtle, and Riedmann, Judges, on appeal
thereto from the Separate Juvenile Court of Douglas County,
Christopher Kelly, Judge.
Matthew R. Kahler, of Finley & Kahler Law Firm, PC,
L.L.O., for appellant.
W. Kleine, Douglas County Attorney, Anthony Hernandez, and
Jocelyn Brasher, Senior Certified Law Student, for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
juvenile court terminated a mother's parental rights to
her child. Relying upon our decision in In re Interest of
Aaron D.,  the Nebraska Court of Appeals reversed,
concluding that the State failed to prove termination was in
the child's best interests. We granted the State's
petition for further review. In comparison to the meager
record in In re Interest of Aaron D., the record
here abounds with clear and convincing evidence supporting
the termination. We reverse the Court of Appeals'
decision and remand the cause with direction.
September 13, 2013, the State moved for temporary custody of
Alec S. According to an affidavit for Alec's removal from
the home of his mother, Brenda G., a hotline [294 Neb. 786]
of the Department of Health and Human Services (DHHS)
received an intake on September 11, alleging that Brenda was
diagnosed with mental health issues to the point that she
needed to be admitted to a hospital for care. Brenda agreed
to a September 12 enrollment in an inpatient program
recommended by a Dr. Patera. A DHHS employee learned from
Patera's nurse that Patera believed that Brenda needed to
be in an inpatient program due to her mental health needs,
that Brenda was currently unable to provide care for Alec,
and that Brenda did not follow up on her health appointments
with health care professionals. The DHHS employee confirmed
on September 13 that Brenda had not checked herself into the
State filed a petition seeking to adjudicate Alec
simultaneously with the filing of the motion for temporary
custody. The State alleged that Alec, who was "under
eight years of age, " was a child within the meaning of
Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2008) due to the
faults or habits of Brenda. The petition alleged that Brenda
had been diagnosed with posttraumatic stress disorder,
depression, and anxiety; that she was unable to provide
proper care for Alec; that medical professionals had
recommended inpatient care; and that Brenda had failed to
check herself into the inpatient program as recommended by
Patera. An amended petition added that Brenda's use of
alcohol and/or controlled substances placed Alec at risk for
harm. The juvenile court adjudicated Alec in January 2014.
March 18, 2014, the juvenile court entered a disposition and
permanency planning order. The permanency objective was
reunification with a concurrent objective of adoption. The
court ordered Brenda to participate in an outpatient chemical
dependency therapy program, to continue submitting to random
drug and alcohol testing, and to continue participation in
programs at "Community Alliance.'' (According to
testimony in the bill of exceptions, Community Alliance
provides outpatient chemical dependency treatment.) [294 Neb.
787] The court further ordered her to attend family and
individual therapy and to continue participating in
psychiatric care. Brenda was allowed supervised visitation
with Alec. On September 16, the court entered a review and
permanency planning order. It did not order Brenda to
participate in a chemical dependency therapy program, but
otherwise ordered her to participate in the same tasks as
those in the March 18 order. Substantially the same
requirements were contained in a January 20, 2015, order.
February 6, 2015, the State filed a motion to terminate
Brenda's parental rights under Neb. Rev. Stat. §
43-292(2). (6), and (7) (Cum. Supp. 2014).
2015, the juvenile court conducted a termination hearing.
Four witnesses-all called on behalf of the State-testified.
Randy LaGrone, a clinical psychologist, testified about
Brenda's participation in outpatient psychological care
beginning in January 2013. Her primary diagnosis was
posttraumatic stress disorder, and LaGrone began working with
her to obtain consistency in treatment and to increase her
sense of safety. He met with Brenda only six times-Brenda
missed or canceled 19 sessions. Because Brenda's
difficulties were very treatable at that time and LaGrone
wanted her to see someone, he made referrals to other
community agencies. But Brenda did not act on those
referrals. According to LaGrone, Brenda did not make any
progress toward her goals. He discharged her in August 2014.
Atwood, Alec's mental health therapist, provided
testimony about therapy. Alec was diagnosed with
"[a]djustment disorder with mixed emotions, " and a
treatment plan was created to work with his emotions. Atwood
had two sessions of individual therapy with Alec. In March
2014, a case manager requested that Atwood conduct family
therapy with Alec and Brenda. Despite scheduling weekly
appointments, Atwood [294 Neb. 788] had conducted only three
sessions of family therapy over 2 months. According to
Atwood, Brenda did not demonstrate any insight regarding the
need for family therapy. The goal was to start communication
between Alec and Brenda, because Alec did not feel like he
could speak honestly with his mother. Atwood testified that
because Brenda spent the time "fussing" over Alec
and asking him questions, no progress was made toward the
goal. Atwood added that as a result of Brenda's
questioning, Alec tended to "shut down."
Ratliff, a mental health therapist, testified about her
individual therapy with Alec. She diagnosed Alec with
adjustment disorder, unspecified, and also identified
features of attention deficit hyperactivity disorder. Due to
those features, Alec needed a moderately structured and
stable environment to help manage the symptoms that
accompanied the diagnosis. Ratliff elaborated:
[H]e needs an environment where his physical needs are met
consistently, as well as emotional needs, and any ongoing
mental health services or needs need to be provided to him,
including psychiatric care for medication management. Also he
needs to be in an environment where . . . there are
consistent rules and nonphysical discipline.
made progress in two areas: identifying activities to engage
in to serve as coping skills and expressing emotions. But due
to becoming withdrawn, he ...