In re Interest of Aly T. and Kazlynn T., children under 18 years of age.
Tiffany S., appellant. State of Nebraska, Appellee.
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.
Parental Rights: Proof. In Nebraska statutes, the bases for
termination of parental rights are codified in Neb. Rev.
Stat. § 43-292 (Reissue 2016). Section 43-292 provides
11 separate conditions, any one of which can serve as the
basis for the termination of parental rights when coupled
with evidence that termination is in the best interests of
__:__. The State must prove the facts by clear and convincing
evidence when showing a factual basis exists under any of the
11 subsections of Neb. Rev. Stat. § 43-292 (Reissue
Evidence: Proof: Words and Phrases. Clear and convincing
evidence is the amount of evidence that produces a firm
belief or conviction about the existence of a fact to be
Parental Rights: Evidence: Proof. In order to terminate
parental rights under Neb. Rev. Stat. § 43-292(6)
(Reissue 2016), the State must prove by clear and convincing
evidence that (1) the parent has failed to comply, in whole
or in part, with a reasonable provision material to the
rehabilitative objective of the plan and (2) in addition to
the parent's noncompliance with the rehabilitative plan,
termination of parental rights is in the best interests of
the child. The State is required to prove that the parents
have been provided with a reasonable opportunity to
rehabilitate themselves according to a court-ordered plan and
have failed to do so.
Neb.App. 613] 6. Parental Rights: Evidence: Appeal and Error.
If an appellate court determines that a lower court correctly
found that termination of parental rights is appropriate
under one of the statutory grounds set forth in Neb. Rev.
Stat. § 43-292 (Reissue 2016), the appellate court need
not further address the sufficiency of the evidence to
support termination under any other statutory ground.
Rules of Evidence: Expert Witnesses. An expert's opinion
is ordinarily admissible under Neb. Rev. Stat. § 27-702
(Reissue 2016) if the witness (1) qualifies as an expert, (2)
has an opinion that will assist the trier of fact, (3) states
his or her opinion, and (4) is prepared to disclose the basis
of that opinion on cross-examination.
Parental Rights: Rules of Evidence: Due Process. The Nebraska
Evidence Rules do not apply in cases involving the
termination of parental rights. Instead, due process controls
and requires that the State use fundamentally fair procedures
before a court terminates parental rights.
__: __ . In determining whether admission or exclusion of
particular evidence would violate fundamental due process,
the Nebraska Evidence Rules serve as a guidepost.
Parental Rights: Proof. In addition to proving a statutory
ground, the State must show that termination of parental
rights is in the best interests of the child.
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.
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.
Parental Rights: 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.
__:__. 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 fact-intensive inquiries. And while both
are separate inquiries, each examines essentially the same
underlying facts as the other.
Neb.App. 614] Appeal from the Separate Juvenile Court of
Douglas County: Christopher E. Kelly, Judge. Affirmed.
Charles M. Bressman, Jr., and Megan E. Lutz-Priefert, of
Anderson, Bressman, Hoffman & Jacobs, PC, L.L.O., for
W. Kleine, Douglas County Attorney, Sarah Schaerrer, and
Laura Elise Lemoine, Senior Certified Law Student, for
Pirtle, Riedmann, and Welch, Judges.
S. appeals the order of the separate juvenile court of
Douglas County terminating her parental rights to her two
children Aly T. and Kazlynn T. She contends that she was not
given a sufficient amount of time to rehabilitate herself and
comply with the case plan, the caseworker was not qualified
to give an expert opinion as to the children's best
interests, and the court erred in finding that terminating
her parental rights was in the children's best interests.
Following our de novo review of the record, we affirm.
born in January 2010, and Kazlynn, born in June 2008, were
initially brought to the attention of the Nebraska Department
of Health and Human Services (Department) in October 2016
after being involved in a car accident in which their father
was driving while under the influence of alcohol. As a result
of the car accident, Aly suffered a traumatic brain injury,
from which she has significantly recovered but requires
ongoing monitoring. Kazlynn suffered more severe injuries and
remains in a vegetative state at a long-term care facility.
Aly and Kazlynn were in the custody of their father at the
time of the accident. His parental rights have since been
terminated. See In re Interest of Jade H. et al, 25
Neb.App. 678, 911 N.W.2d276 (2018).
Neb.App. 615] On October 25, 2016, the State filed a petition
alleging Aly and Kazlynn were within the meaning of Neb. Rev.
Stat. § 43-247(3)(a) (Reissue 2016), because they lacked
proper parental care by reason of the fault or habits of
Tiffany in that Tiffany's whereabouts were unknown; she
failed to provide the juveniles with safe, stable, and/or
appropriate housing; she failed to provide proper ...