In re Interest of Audrey T., a child under 18 years of age.
Nebraska, appellee. State
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.
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
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
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.
___: ____: ____. 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.
____: _____: ____: ____. 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.
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.
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.
____. 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
from the County Court for Scotts Bluff County: James M.
Worden, Judge. Affirmed.
Bernard J. Straetker, Scotts Bluff County Public Defender,
Danielle Larson, Deputy Scotts Bluff County Attorney, for
Pirtle, Riedmann, and Welch, Judges.
Neb.App. 824] WELCH, JUDGE.
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
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.
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.
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."
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.
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.
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
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.
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
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 ...