In re Interest of Becka P. et al., children under 18 years of age.
Robert P., appellant, State of Nebraska, appellee and cross-appellee, and Veronica M., appellee and cross-appellant.
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 juvenile court observed the witnesses and accepted one
version of facts over another.
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
___: ___ . In determining whether admission or exclusion of
particular evidence would violate fundamental due process,
the Nebraska Evidence Rules serve as a guidepost.
Parental Rights: Rules of Evidence: Due Process:
Appeal and Error. Rather than the formal rules of
evidence, an appellate court evaluates the admission of
evidence in termination of parental rights cases using a due
Constitutional Law: Due Process. Procedural
due process includes notice to the person whose right is
affected by the proceeding; reasonable opportunity to refute
or defend against the charge or accusation; reasonable
opportunity to confront and cross-examine adverse witnesses
and present evidence on the charge or accusation;
representation by counsel, when such representation is
required by the Constitution or statutes; and a hearing
before an impartial decisionmaker.
Neb.App. 490] 6. Juvenile Courts: Parental Rights:
Proof. For a juvenile court to terminate parental
rights under Neb. Rev. Stat. § 43-292 (Reissue 2016), it
must find that one or more of the statutory grounds listed in
this section have been satisfied and that such termination is
in the child's best interests. The State must prove these
facts by clear and convincing evidence.
Parental Rights: Proof. Neb. Rev. Stat.
§ 43-292(7) (Reissue 2016) operates mechanically and,
unlike the other subsections of the statute, does not require
the State to adduce evidence of any specific fault on the
part of a parent.
Parental Rights. In a case of termination of
parental rights based on Neb. Rev. Stat. § 43-292(7)
(Reissue 2016), the protection afforded the rights of the
parent comes in the best interests step of the analysis.
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
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
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 show that the parent is
Parental Rights: Presumptions: Proof. There
is a rebuttable presumption that the best interests of the
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.
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
caused, or probably will result in, detriment to the
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.
Parental Rights: Parent and Child. In
proceedings to terminate parental rights, the law does not
require perfection of a parent; instead, courts should look
for the parent's continued improvement in parenting
skills and a beneficial relationship between parent and
Parental Rights: Appeal and Error. Where
termination of parental rights is based on Neb. Rev. Stat.
§ 43-292(7) (Reissue 2016), appellate courts must be
particularly diligent in their de novo review of whether
termination of parental rights is in fact in the child's
Parental Rights. Where a parent is unable or
unwilling to rehabilitate himself or herself within a
reasonable time, the best interests of the child require
termination of the parental rights.
. Children cannot, and should not, be suspended in foster
care or be made to await uncertain parental maturity.
from the County Court for Garden County: Randin R. Roland,
S. Harvoy for appellant.
E. Pierce, Garden County Attorney, for appellee State of
Jaquelin G. Leef, of Sonntag, Goodwin & Leef, PC, for
appellee Veronica M.
E. Elmshaeuser, guardian ad litem.
Chief Judge, and Pirtle and Bishop, Judges.
P. (Bob) appeals, and Veronica M. cross-appeals, from an
order of the Garden County Court sitting as a juvenile court,
terminating their parental rights to four of their children.
Upon our de novo review of the record, we affirm the juvenile
Veronica are the parents of Becka P., born in July 2011;
Robert P., Jr., born in July 2013; Thomas P., born in October
2014; and Brandy P., born in November 2016. Bob and Veronica
are also the parents of a fifth child, Brittney P., [27
Neb.App. 492] born in December 2017. However, the termination
trial did not involve Brittney. Accordingly, Brittney is not
part of the appeal before us now and she will only be
discussed as necessary to address Bob's and
Veronica's assigned errors.
December 2015, separate petitions were filed to adjudicate
Becka, Robert, and Thomas pursuant to Neb. Rev. Stat. §
43-247(3)(a) (Supp. 2015) based on the actions of both
parents. Becka, Robert, and Thomas were adjudicated in
February 2016. The basis of the adjudication was the
parents' failure to use proper car seats on a regular
basis. The petition also included concerns in regard to the
children's being develop-mentally delayed. A petition to
adjudicate Brandy was filed in December 2016, and she was
adjudicated in April 2017. Becka, Robert, Thomas, and Brandy
were removed from the parental home on December 16, 2016.
They have remained out of the home since that time.
31, 2018, the State filed a motion for termination of
Bob's and Veronica's parental rights in regard to the
four children, alleging statutory grounds to terminate
existed pursuant to Neb. Rev. Stat. § 43-292(2), (3),
(5), (6), and (7) (Reissue 2016), and alleging that
termination was in the best interests of the children. A
termination trial was held over the course of 4 days in
evidence showed that the family first became involved with
the Nebraska Department of Health and Human Services
(Department) in 2013 based on the living conditions of the
home and Becka's being developmentally delayed. At that
time, only Becka and Robert were born. The case was dismissed
when the family moved into an acceptable home and educational
services were being provided for Becka, which Bob and
Veronica agreed to continue. Shortly after the case was
dismissed, Bob would not allow the continuation of the
2015, the Department investigated the family on two separate
occasions based on intakes involving allegations of abuse and
neglect. Voluntary services were offered to the [27 Neb.App.
493] family both times, but they were denied. As previously
stated, the present case began in January 2016 when petitions
to adjudicate Becka, Robert, and Thomas were filed. The
petition to adjudicate Brandy was filed in December 2016.
Oliverius, who supervises caseworkers for the Department,
became involved with the case when Becka, Robert, and Thomas
were adjudicated in February 2016. She testified that during
her time assigned to the case, Bob did not want to
participate in services that were offered by the Department
and would argue with her or tell her that either she or the
Department had done something wrong. She testified that
Veronica "pretty much followed whatever Bob's
directions were" and that Bob made all the decisions.
Oliverius testified that Bob had threatened her life and that
he made her aware he knew where she lived, her husband's
name, and what school and daycare her children attended. As a
result of Bob's threats and innuendos, Oliverius obtained
a protection order against him in December ...