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In re Audrey T.

Court of Appeals of Nebraska

January 29, 2019

In re Interest of Audrey T., a child under 18 years of age.
v.
Nebraska, appellee. State
v.
Sabra T., 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.

         2. Parental Rights: Proof. 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 child.

         3. Parental Rights: Evidence: Appeal and Error. If an appellate court determines that the 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.

         4. Indian Child Welfare Act: Parental Rights: Proof: Expert Witnesses. To terminate parental rights, the State must prove by clear and convincing evidence that one or more of the statutory grounds listed in Neb. Rev. Stat. § 43-292 (Reissue 2016) have been satisfied and that termination is in the child's best interests. The Nebraska Indian Child Welfare Act adds two additional elements the State must prove before terminating parental rights in cases involving Indian children. First, the State must prove by clear and convincing evidence that active efforts have been made to prevent the breakup of the Indian family and that these efforts have proved unsuccessful. Second, the State must prove by evidence beyond a reasonable doubt, including testimony of qualified [26 Neb.App. 823] expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

         5. ___: ___: ____: ____. Pursuant to the Nebraska Indian Child Welfare Act, before a court may terminate a parent's rights to their child or children, the State must prove by evidence, beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. This evidence must be established by qualified expert testimony provided by a professional person having substantial education and experience in the area of his or her specialty.

         6. ____: _____: ____: ____. Neb. Rev. Stat. § 43-1505(6) (Reissue 2016) requires that the qualified expert's opinion must support the ultimate finding of the court, i.e., that continued custody by the parent will likely result in serious emotional or physical damage to the child.

         7. Parental Rights: Proof. Once a statutory basis for termination has been proved, the next inquiry is whether termination is in the child's best interests.

         8. Parental Rights. When 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.

         9. ____. Children cannot, and should not, be suspended in foster care or be made to await uncertain parental maturity. 10. Indian Child Welfare Act: Parental Rights: Proof: Notice. The stated purposes of the Nebraska Indian Child Welfare Act are best served by allowing parents to raise, in their direct appeal from a termination of parental rights, the issue of the State's failure to notify the child's Indian tribe of the termination of parental rights proceedings.

          Appeal from the County Court for Scotts Bluff County: James M. Worden, Judge. Affirmed.

          Bernard J. Straetker, Scotts Bluff County Public Defender, for appellant.

          Danielle Larson, Deputy Scotts Bluff County Attorney, for appellee.

          Pirtle, Riedmann, and Welch, Judges.

          [26 Neb.App. 824] WELCH, JUDGE.

         INTRODUCTION

         Sabra T, the biological mother of Audrey T, appeals the termination of her parental rights. She contends that the Scotts Bluff County Court, sitting in its capacity as a juvenile court, erred in terminating her parental rights pursuant to Neb. Rev. Stat. § 43-292(2), (5), (6), and (7) (Reissue 2016) and finding that termination was in Audrey's best interests. Sabra further contends that the State failed to prove beyond a reasonable doubt, as required by the Nebraska Indian Child Welfare Act (NICWA), Neb. Rev. Stat. §§ 43-1501 to 43-1517 (Reissue 2016), through qualified expert witness testimony, that the continued custody of Audrey by Sabra was likely to result in serious emotional or physical damage to Audrey. Finally, Sabra contends that the State failed to provide proper notice to the Oglala Sioux Tribe in violation of NICWA. For the reasons set forth herein, we affirm the order terminating Sabra's parental rights.

         STATEMENT OF FACTS

         Sabra is the biological mother of Audrey, who was born in August 2013. Because Audrey is an enrolled member of the Oglala Sioux Tribe, NICWA applies to this case.

         On January 5, 2016, the State filed an adjudication petition alleging that Audrey was a child within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Supp. 2015) for the reason that she lacked proper parental care by reason of the fault or habits of Sabra. Specifically, the State alleged Sabra was unable to meet Audrey's basic needs for care and protection, Sabra uses inappropriate discipline, and Sabra's mental health issues put Audrey at risk of abuse and/or neglect. The petition further alleged that NICWA was applicable because Audrey was of Native American heritage. That same day, the court entered an order placing temporary custody of Audrey with Nebraska's Department of Health and Human Services (DHHS), and Audrey was removed from Sabra's home. Audrey has consistently been a ward of the State since that time.

          [26 Neb.App. 825] On March 11, 2016, the court entered an order adjudicating Audrey as a child within the meaning of § 43-247(3)(a). The court found the State had met its burden, by a preponderance of the evidence, that Sabra was unable to meet Audrey's basic needs for care and protection and that her mental health issues put Audrey at risk of harm. The court further found that active efforts had been made by the State to "prevent the breakup of the Native American family," including family support, food vouchers, transportation, parenting classes, and case management; that the child would experience serious emotional or physical damage if left in the family home; that court placement was with a family member and was "ICWA compliant"; and that the court's "findings related to ICWA are supported by the testimony of an ICWA expert."

         The State filed a motion to terminate Sabra's parental rights on July 31, 2017, alleging that termination was appropriate pursuant to § 43-292(2), (5), (6), and (7) and that termination was in Audrey's best interests. The termination motion also again set forth that NICWA was applicable to this case. The termination hearing was held on September 27 and concluded on October 27. The State adduced testimony from psychologist Dr. Gage Stermensky, mental health therapist Sarah Bernhardt, a youth transition support worker, Audrey's aunt, DHHS child and family service specialist Cassie Beasant, and Theresa Stands. Sabra testified in her own behalf.

         The youth transition support worker testified that Sabra, who was born in 1994, has been in the youth transition support program since March 2016. The youth transition support program assists youth from 16 to 25 years old that have been diagnosed with mental illness and/or substance abuse to transition into adulthood by providing assistance in various areas such as housing, transportation, budgeting, finances, employment, vocational rehabilitation, and education. While in the program, Sabra has been receiving services specific to budgeting, forming healthy relationships, parenting techniques, and vocational rehabilitation. According to [26 Neb.App. 826] the support worker, Sabra, who suffers from mental illness, struggles primarily in the areas of scheduling and engaging in healthy relationships.

         In April 2016, Audrey and Sabra were referred to Bernhardt for child-parent psychotherapy. Bernhardt explained that child-parent psychotherapy is for children up to age 5 and "is an attachment-focused intervention, a therapy that is intended to treat a relationship between a caregiver and a child, particularly when there's been a trauma that has been experienced that has impacted their relationship." Bernhardt testified that Sabra's attendance at therapy was inconsistent: Bernhardt had a total of 25 visits with Sabra, 19 of which included Audrey, with 16 missed visits. Bernhardt testified that Audrey "knows her mother," they have a positive relationship, and there is a connection between them.

         Beasant testified that she became the caseworker for this case at the end of November 2016 and that she remained the caseworker at the time of the termination hearing. When Beasant was assigned the case, Sabra was living in an apartment and was working at a bakery. Beasant testified that for a period of time, Sabra was having some unsupervised visits with Audrey in her apartment, but that ended in December 2016 after family support workers found unsafe individuals present with Audrey and Sabra during a drop-in visit. These "unsafe individuals" were people known to Beasant as meth-amphetamine users, individuals who were in treatment for alcoholism, or individuals who had their parental rights terminated to their own children. Sabra regained unsupervised visits between March and April 2017, but these unsupervised visits ended in August 2017 after Audrey alleged that an individual who lived at her foster home had sexually abused her. Audrey later recanted this accusation and said that Sabra had told her to make the accusation. Sabra had not regained unsupervised visits since that time. Further, to Beasant's knowledge, Sabra's visits with Audrey never included overnight visits.

          [26 Neb.App. 827] Beasant testified that none of Sabra's goals have changed in any of the case plans prepared by DHHS. She clarified this testimony by stating that in the original case plan, the priority goals for Sabra were for safe and stable housing, a legal means of income, and safe parenting. According to Beasant, although Sabra has had the same original goals throughout the entire case, there have been periods of time where Sabra does very well with her goals, but "it doesn't last long and we're backsliding again." Some examples of this "backsliding" were that there were periods of time, from a couple of weeks to a month at a time, where Sabra would not miss work; would attend all of her visits; would make nutritious, homemade meals for Audrey; and would do activities with Audrey; however, Sabra would not sustain that progress, and during unsupervised visits, she would have unsafe individuals around Audrey.

         Beasant explained that the permanency plan was changed to a goal of guardianship in April 2017. This change in the permanency goal was made, in part, at Sabra's request, so she would have more time to become "a more suitable parent" and gain more skills, including recognizing "red flags" in relationships and having appropriate "informal supports." Sabra wanted "to slow down the pace so that she wasn't overwhelmed." Even after Sabra had asked for more time to work on her case plan goals, she failed to make progress on them. Beasant explained, "It seemed to be at a standstill, plateaued, if you will, as to our progress that ...


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