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In re Jade H.

Court of Appeals of Nebraska

March 27, 2018

In re Interest of Jade H. et al., Children under 18 years of age. state of Nebraska, appellee, Benjamin., appellant.

          1. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases de novo on the record and reaches its conclusions independently of the juvenile court's findings. When the evidence is in conflict, however, an appellate court may give weight to the fact that the lower court observed the witnesses and accepted one version of the facts over the other.

         2. Parental Rights: Proof. In order to terminate parental rights, a court must find clear and convincing evidence that one of the statutory grounds enumerated in Neb. Rev. Stat. § 43-292 (Reissue 2016) exists and that termination is in the child's best interests.

         3. Parental Rights. Neb. Rev. Stat. § 43-292(9) (Reissue 2016) allows for terminating parental rights when the parent of the juvenile has subjected the juvenile or another minor child to aggravated circumstances, including, but not limited to, abandonment, torture, chronic abuse, or sexual abuse.

         4. __ . Whether aggravated circumstances under Neb. Rev. Stat. § 43-292(9) (Reissue 2016) exist is determined on a case-by-case basis.

         5. Parental Rights: Words and Phrases. Where the circumstances created by the parent's conduct create an unacceptably high risk to the health, safety, and welfare of the child, they are aggravated.

         6. Parental Rights: Minors: Words and Phrases. The term "aggravated circumstances, " as used in Neb. Rev. Stat. § 43-283.01(4)(a) (Reissue 2016), embodies the concept that the nature of the abuse or neglect must have been so severe or repetitive that to attempt reunification would jeopardize and compromise the safety of the child and would place the child in a position of an unreasonable risk to be reabused.

         [25 Neb.App. 679] 7. Parental Rights. The failure of a parent to seek medical treatment for a child when the child has suffered physical injuries meets the statutory requirement of Neb. Rev. Stat. § 43-292(9) (Reissue 2016).

         8. Parental Rights: Proof. Only one statutory ground for termination need be proved in order for parental rights to be terminated.

         9. Parental Rights: Juvenile Courts. Reasonable efforts to reunify a family are required under the juvenile code only when termination is sought under Neb. Rev. Stat. § 43-292(6) (Reissue 2016).

         10. Parental Rights: Proof. In addition to proving a statutory ground, the State must show that termination is in the best interests of the child.

         11. Constitutional Law: Parental Rights: Proof. A parent's right to raise his or her child is constitutionally protected; so before a court may terminate parental rights, the State must also show that the parent is unfit.

         12. Parental Rights: Presumptions: Proof. There is a rebuttable presumption that the best interests of a child are served by having a relationship with his or her parent. Based on the idea that fit parents act in the best interests of their children, this presumption is overcome only when the State has proved that the parent is unfit.

         13. Parental Rights: Statutes: Words and Phrases. The term "unfitness" is not expressly used in Neb. Rev. Stat. § 43-292 (Reissue 2016), but the concept is generally encompassed by the fault and neglect subsections of that statute, and also through a determination of the child's best interests.

         14. Child Custody: Words and Phrases. 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.

         15. Parental Rights. The best interests analysis and the parental fitness analysis are fact-intensive inquiries. And while both are separate inquiries, each examines essentially the same underlying facts as the other.

          Appeal from the Separate Juvenile Court of Douglas County: Christopher Kelly, Judge. Affirmed.

          Darren J. Pekny and Courtney R. Ruwe, of Johnson & Pekny, L.L.C., for appellant.

          Donald W. Kleine, Douglas County Attorney, Sarah Schaerrer, and Laura Elise Lemoine, Senior Certified Law Student, for appellee.

         [25 Neb.App. 680] Pirtle, Riedmann, and Arterburn, Judges.

          ...


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