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IN RE INTEREST OF AUDREY T.

Cite as 26 Neb. App. 822

In re Interest of Audrey T., a child

under 18 years of age.

State v. Nebraska, appellee, 

v. Sabra T., appellant.

___ N.W.2d ___

Filed January 29, 2019. No. A-17-1308.

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 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

01/29/2019 09:08 AM CST
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Cite as 26 Neb. App. 822

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.
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IN RE INTEREST OF AUDREY T.

Cite as 26 Neb. App. 822

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.
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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 
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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 childparent 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 methamphetamine 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.
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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 was being made. There was no consistency in 

therapy with Audrey, building those relationships, working on 

her parenting skills.”

In part due to Sabra’s lack of progress, in July 2017, the 

permanency plan goal was changed to adoption. The reasons for DHHS’ recommendation that the goal be changed 

to adoption included Sabra’s lack of progress during the 22 

months the case had been open, the length of time the case 

had been open, and Sabra’s failure to show any sustainable 

progress. Beasant further testified that DHHS’ view is that it 

is in Audrey’s best interests for Sabra’s parental rights to be 
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terminated, because “Audrey is doing very well where she’s at 

and excelling . . . .”

Stermensky testified that at DHHS’ request, he completed 

a parental capacity evaluation of Sabra in 2016, which evaluation was received into evidence as an exhibit. According 

to Stermensky:

The main goal for any child welfare capacity evaluation is 

to determine the ability for a parent to meet their child’s 

welfare needs. And if they have displayed they can’t meet 

those needs, why, [and are] there any types of processes 

or treatment we can find to help get them to a point where 

they’re able to fulfill those needs.

His diagnostic impressions for Sabra included schizophrenia 

and post-traumatic stress disorder. Further, he testified that 

within a reasonable degree of “psychologic certainty,” Sabra 

did not appear to have the capacity to meet Audrey’s health 

and welfare needs; however, he opined that if Sabra was able 

to get longer-term treatment with medication compliance, the 

issue could be revisited. Stermensky based his opinion on 

Sabra’s denial and minimization of her severe psychotic disorder and noncompliance with medications which placed her “at 

risk for decompensation,” as well as placing Audrey at risk. 

Stermensky explained that decompensation, as it pertained to 

Sabra, meant “[s]ymptom amplification,” including disorganized behavior, hallucinations, and delusions. Stermensky’s 

recommendation for Sabra was for long-term treatment and 

medication management.

The State’s evidence from Stands was admitted via deposition testimony received into evidence as an exhibit. Stands has 

been an enrolled member of the Oglala Sioux Tribe since she 

was born and has raised her children in the tribal traditions. 

Additionally, for 36 years, Stands worked for the Scottsbluff 

Public Schools in the “Title 7, Indian education” program. 

Stands testified she worked for the parent committee and her 

job was “to be advocate for Native American students and their 

families between the home and the school” and she “was also 
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an advocate for the schools to try to help them culturally with 

the Native American families.” Stands also worked with native 

dance groups, set up a Lakota language class, and assisted with 

powwows. Stands testified that based upon her training, work 

experience, and her tribal membership, she is familiar with the 

values the Oglala Sioux Tribe places on its children. According 

to Stands, the tribe places a very high value on its children, 

stating that the children are provided “respect, generosity, our 

children are always considered sacred. So we take care of them 

and try to raise them by not just verbally but by living our lives 

so that they can do the right things.”

Stands familiarized herself with Audrey’s case by reviewing the case file, which included the DHHS case plan and 

court reports, as well as the court’s journal entries and orders 

and documentation sent to the Oglala Sioux Tribe, guardian 

ad litem reports, and evaluations. Stands testified that based 

on her knowledge as an “expert witness in an ICWA case,” 

the State had made the following active efforts in this case: 

providing support for Audrey and Sabra, including physical 

support, housing, food, therapy, counseling, and transportation. Further, based upon Stand’s review of the file in this 

case, it was her understanding that Audrey had ended up in 

the State’s care and custody because Sabra “was not mentally 

and emotionally able to care for her and Audrey may have 

been put in a place where she could have been neglected.” 

Specifically, she identified Sabra’s lack of knowledge of 

how to cook for Audrey, how to take care of her, or how to 

discipline her, as evidenced by one report that Sabra had disciplined Audrey by “duct tap[ing] her in a car seat.” Stands 

opined that Sabra would make improvements in the case, 

but that she was not emotionally or mentally stable enough 

to maintain those improvements. She further testified that if 

the State “were to just walk away” from the case, it “was a 

possibility” that Audrey “would face emotional or physical 

damage” if left with Sabra due to Sabra’s mental state, which 

had been described as “being depressed [and] overwhelmed, 
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having anxiety, [and] not being able to really provide for 

[Sabra’s] own needs.”

Sabra testified that she had been living in a two-bedroom 

apartment since the end of July 2017 and that she had been 

working part time at a fast-food restaurant for a little over 2 

months. Sabra also receives Social Security benefits for mental 

health illness and has someone to help her manage her money. 

She testified that she is not a “bad parent,” but, rather, she is 

just a “first-time parent,” and that Audrey benefits from having 

a continued relationship with her.

In an order filed on December 8, 2017, the court terminated 

Sabra’s parental rights pursuant to § 43-292(2), (5), (6), and 

(7) and found that termination was in Audrey’s best interests. 

The court further found, by clear and convincing evidence, 

that active efforts had been made to provide remedial services 

and rehabilitative programs designed to prevent the breakup of 

the Indian family and that those efforts were unsuccessful as 

to Sabra. The court further found, beyond a reasonable doubt, 

based upon the evidence at trial, including Stands’ opinion 

testimony, that Audrey’s continued custody or placement with 

Sabra was likely to result in serious emotional or physical damage. The court specifically found that Sabra’s “mental health, 

parenting style, dangerous associations, and inconsistency 

would place Audrey in great danger if Sabra was the custodial 

parent and the case closed.”

ASSIGNMENTS OF ERROR

Sabra assigns as error that the court erred in terminating 

her parental rights pursuant to § 43-292(2), (5), (6), and (7). 

Sabra further contends that the State failed to prove beyond 

a reasonable doubt, as required by NICWA, 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. She also contends that the court 

erred in finding that termination was in Audrey’s best interests. 

Finally, Sabra contends that the State failed to provide proper 

notice to the Oglala Sioux Tribe in violation of NICWA.
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IN RE INTEREST OF AUDREY T.

Cite as 26 Neb. App. 822

STANDARD OF REVIEW

[1] An appellate court reviews juvenile cases de novo on the 

record and reaches its conclusions independently of the juvenile court’s findings. In re Interest of Giavonna G., 23 Neb. 

App. 853, 876 N.W.2d 422 (2016).

ANALYSIS

Statutory Grounds for Termination

Sabra first contends that the court erred in terminating 

her parental rights based upon its findings that the State had 

established by clear and convincing evidence that she had 

substantially and continuously neglected to give Audrey necessary parental care and protection (§ 43-292(2)), that Sabra 

was unable to discharge parental responsibilities because of 

mental illness or mental deficiency and there are reasonable 

grounds to believe that such condition will continue for a 

prolonged indeterminate period (§ 43-292(5)), that reasonable 

efforts failed to correct the condition which led to the adjudication (§ 43-292(6)), and that Audrey had been in an out-ofhome placement for 15 or more of the most recent 22 months 

(§ 43-292(7)).

[2] The bases for termination of parental rights are codified 

in § 43-292. 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. In re Interest of Sir 

Messiah T. et al., 279 Neb. 900, 782 N.W.2d 320 (2010). 

Under § 43-292(7), grounds exist to terminate parental rights if 

a “juvenile has been in an out-of-home placement for fifteen or 

more months of the most recent twenty-two months.”

The record establishes that Audrey was removed from 

parental care on January 5, 2016, and has not been returned 

to parental care since that time. As such, at the time the State 

filed its motion to terminate Sabra’s parental rights on July 

31, 2017, Audrey had been in an out-of-home placement for 

18 months. By the time the termination hearing began in 
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September, Audrey had been in an out-of-home placement for 

20 months. Thus, our de novo review of the record clearly 

and convincingly shows that Audrey had been in an out-ofhome placement for 15 of the most recent 22 months and 

that grounds for termination of Sabra’s parental rights under 

§ 43-292(7) were proved by sufficient evidence.

[3] 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 § 43-292, 

the appellate court need not further address the sufficiency 

of the evidence to support termination under any other statutory ground. In re Interest of Chloe C., 20 Neb. App. 787, 

835 N.W.2d 758 (2013). Having determined that termination 

of Sabra’s parental rights was proper pursuant to § 43-292(7), 

we need not consider whether termination was also appropriate 

under § 43-292(2), (5), or (6).

Qualified Expert Testimony

[4] To terminate parental rights, the State must prove by 

clear and convincing evidence that one or more of the statutory grounds listed in § 43-292 have been satisfied and that 

termination is in the child’s best interests. In re Interest of 

Walter W., 274 Neb. 859, 744 N.W.2d 55 (2008). NICWA adds 

two additional elements the State must prove before terminating parental rights in cases involving Indian children. Id. 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. 

See § 43-1505(4). See, also, In re Interest of Walter W., supra. 

Second, 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.” See § 43-1505(6).

We note that although Sabra has not assigned any error with 

respect to the court’s findings that the State proved by clear 

and convincing evidence that active efforts had been made 
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to prevent the breakup of the Indian family and that those 

efforts were unsuccessful, we have reviewed the record and 

find no plain error as it relates to that element. Thus, we turn 

to Sabra’s specific alleged error that the State failed to prove 

beyond a reasonable doubt, as required by NICWA, 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.

[5] Pursuant to NICWA, 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.” 

§ 43-1505(6). 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. In re Interest of Shayla H. et al., 17 Neb. App. 436, 

764 N.W.2d 119 (2009).

In this case, Sabra does not argue that Stands was not a qualified expert; she argues only that Stands’ opinion—that there 

“was a possibility” that Audrey would face emotional or physical damage if left with Sabra—did not meet the State’s burden of proving this issue beyond a reasonable doubt. Sabra’s 

argument calls into question what testimony is required from 

a qualified expert as mandated by § 43-1505(6). We construe 

Sabra’s argument to be that the qualified expert’s testimony 

must establish that continued custody of the child by the parent 

is likely to result in serious emotional or physical damage to 

the child beyond a reasonable doubt.

A similar argument was propounded in In re M.F., 290 

Kan. 142, 225 P.3d 1177 (2010). In reviewing a federal statute 

which contains language identical to § 43-1505(6), the Kansas 

Supreme Court wrote:

The GAL also takes issue with the Court of Appeals’ 

statement that the qualified expert must “testify that 
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evidence existed to support the State’s burden under the 

ICWA.” In re M.F., 41 Kan.App.2d at 935, 206 P.3d 57. 

The GAL interprets this statement to mean that a qualified expert must offer a specific opinion as to whether 

or not the State’s evidence meets the burden of proof. 

It seems, rather, that the Court of Appeals’ statement is 

merely a reiteration of the ICWA standard that a decision 

to terminate parental rights must be based on “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.” 25 

U.S.C. § 1912(f). The expert need not opine on the ultimate issue of whether the State met its burden of proof. 

But the expert’s opinion must support the ultimate finding 

of the district court that continued custody by the parent 

will result in serious emotional or physical damage to the 

child. See, e.g., Marcia V., 201 P.3d at 506; Steven H. v. 

DES, 218 Ariz. 566, 572, 190 P.3d 180 (2008); State ex 

rel. SOSCF v. Lucas, 177 Or.App. 318, 326, 33 P.3d 1001 

(2001), rev. denied 333 Or. 567, 42 P.3d 1245 (2002).

In re M.F., 290 Kan. at 155-56, 225 P.3d at 1186. See 25 

U.S.C. § 1912(f) (2012).

[6] We, likewise, construe § 43-1505(6) to require 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. This is consistent with the Nebraska Supreme 

Court’s holding in In re Interest of C.W. et al., 239 Neb. 817, 

823-24, 479 N.W.2d 105, 111 (1992), overruled on other 

grounds, In re Interest of Zylena R. & Adrionna R., 284 Neb. 

834, 825 N.W.2d 173 (2012), wherein the Nebraska Supreme 

Court set forth the standard for qualified expert testimony in 

ICWA cases:

Pursuant to the ICWA, qualified expert testimony is 

required in a parental rights termination case on the issue 
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of whether serious harm to the Indian child is likely 

to occur if the child is not removed from the home. 

See Guidelines for State Courts; Indian Child Custody 

Proceedings, 44 Fed. Reg. 67,584, 67,593 (1979) (not 

codified).

To the extent Sabra is arguing there was inadequate opinion 

testimony from a qualified expert to support the ultimate finding of the county court that continued custody by Sabra is 

likely to result in serious emotional or physical damage to the 

child, we disagree.

Sabra argues that Stands’ opinion—that there “was a possibility” that Audrey would face emotional or physical damage 

if left with Sabra—did not provide adequate support for the 

county court’s finding here, which was, that beyond a reasonable doubt, Sabra’s “mental health, parenting style, dangerous 

associations, and inconsistency would place Audrey in great 

danger if Sabra was the custodial parent and the case closed.” 

In addition to opining that physical and emotional damage to 

Audrey was possible, Stands also testified that although Sabra 

at times made some improvements, Sabra was not emotionally 

or mentally stable enough to maintain those improvements 

and expressed concern for Sabra’s reported conditions, which 

included being depressed, overwhelmed, having anxiety, and 

not being able to provide for Sabra’s own needs, much less 

those of Audrey.

But this was not the only testimony from a qualified expert 

in this case. As the Nebraska Supreme Court noted:

The Bureau of Indian Affairs sets forth guidelines 

under which expert witnesses most likely will meet the 

requirements of the ICWA:

“(i) A member of the Indian child’s tribe who is recognized by the tribal community as knowledgeable in 

tribal customs as they pertain to family organization and 

childrearing practices.

“(ii) A lay expert witness having substantial experience 

in the delivery of child and family services to Indians, 
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and extensive knowledge of prevailing social and cultural standards in childrearing practices within the Indian 

child’s tribe.

“(iii) A professional person having substantial education and experience in the area of his or her specialty.”

In re Interest of C.W. et al., 239 Neb. at 824, 479 N.W.2d 

at 111.

We also note that in its more recent guidelines, the Bureau 

of Indian Affairs provides, in part:

The rule does not, however, strictly limit who may 

serve as a qualified expert witness to only those individuals who have particular Tribal social and cultural 

knowledge. The rule recognizes that there may be certain 

circumstances where a qualified expert witness need not 

have specific knowledge of the prevailing social and cultural standards of the Indian child’s Tribe in order to meet 

the statutory standard.

U.S. Dept. of Interior, Bureau of Indian Affairs, Guidelines for 

Implementing the Indian Child Welfare Act G.2 at 54 (Dec. 30, 

2016) (providing minimum federal standards regarding compliance with 25 C.F.R. § 23.122 (2018) governing who may serve 

as qualified expert witness).

Stermensky, a psychologist, performed a parental capacity examination of Sabra. Stermensky testified that the main 

goal of this evaluation is to determine whether the parent can 

meet a child’s welfare needs. In performing the examination, 

Stermensky opined that Sabra suffered from schizophrenia 

and post-traumatic stress disorder and that to a reasonable 

degree of “psychologic certainty,” Sabra did not appear to 

have the capacity to meet Aubrey’s health and welfare needs. 

Although he opined that with long-term treatment and medication compliance the issue could be revisited, the overwhelming 

evidence in this case demonstrates that little or no progress 

has been made by Sabra to manage her condition as it relates 

to the future care of Audrey. Stemernsky further testified 

that Sabra’s denial and minimization of her severe psychotic 
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disorder and noncompliance with medication placed her “at 

risk of decompensation,” meaning “[s]ymptom amplification,” 

including disorganized behavior, hallucinations, and delusions, 

which placed Audrey at risk. This record adequately demonstrates that both Strands and Stermensky were qualified 

expert witnesses as required by ICWA, and taken together, 

their testimony adequately supports the ultimate finding by the 

county court.

Moreover, other evidence presented at the termination hearing supports the ultimate finding here—that Audrey was likely 

to suffer serious emotional or physical damage if left with 

Sabra. Sabra has been inconsistent in attending child-parent 

therapy, her visitation has never progressed to overnight visits, 

and she has failed to make progress on her case plan goals even 

after requesting additional time to do so. Whenever Sabra’s visits with Audrey were changed to unsupervised visits, they did 

not remain that way for long due to Sabra’s allowing unsafe 

individuals around Audrey or coaching Audrey to make untrue 

allegations of sexual abuse. Taken together, this evidence and 

the expert testimony established, beyond a reasonable doubt, 

that Sabra’s continued custody of Audrey was likely to result in 

serious emotional or physical damage to Audrey. Sabra’s claim 

is without merit.

Best Interests

[7] Sabra also contends that the court erred in finding that 

termination was in Audrey’s best interests. Once a statutory basis for termination has been proved, the next inquiry 

is whether termination is in the child’s best interests. In re 

Interest of Giavonna G., 23 Neb. App. 853, 876 N.W.2d 

422 (2016).

A parent’s right to raise his or her child is constitutionally 

protected. Therefore, before a court may terminate parental rights, the State must show that the parent is unfit. . . . 

There is a rebuttable presumption that the best interests 

of the child are served by having a relationship with his 
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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. . . . 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 a child’s 

well-being. . . . The best interests analysis and the parental fitness analysis are fact-intensive inquiries, and while 

they are separate, each examines essentially the same 

underlying facts.

In re Interest of Lizabella R., 25 Neb. App. 421, 436-37, 907 

N.W.2d 745, 756 (2018).

[8,9] Sabra contends that the State did not prove by clear 

and convincing evidence that termination was in Audrey’s 

best interests. She argues that she has obtained an apartment 

and employment, has made improvements in her parenting 

skills, and has a bond with Audrey. This court has no doubt 

of Sabra’s love for her daughter. Despite this, Sabra has been 

inconsistent in attending child-parent therapy, her visitation 

has never progressed to overnight visits, the case has been 

open over 22 months, and Sabra has failed to make progress 

even after requesting additional time to do so. The evidence 

further established that Audrey was “excelling” in her current placement. Sabra has been diagnosed with schizophrenia 

and post-traumatic stress disorder, and in Stermensky’s opinion, she does not have the capacity to meet Audrey’s health 

and welfare needs. Due to her denial of her severe psychotic 

disorder, Stermensky opined, she is at risk of “[s]ymptom 

amplification,” including hallucinations and delusions, which 

could place Audrey at risk of harm. The evidence outlined in 

the previous section further establishes that Sabra is an unfit 

parent and that termination of Sabra’s parental rights is in 

Audrey’s best interests. When a parent is unable or unwilling 
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to rehabilitate himself or herself within a reasonable period of 

time, the child’s best interests require termination of parental 

rights. In re Interest of Walter W., 274 Neb. 859, 744 N.W.2d 

55 (2008). Further, children cannot, and should not, be suspended in foster care or be made to await uncertain parental 

maturity. In re Interest of Alec S., 294 Neb. 784, 884 N.W.2d 

701 (2016).

Failure to Give Proper

Notice to Tribe

[10] Sabra contends that the State failed to provide proper 

notice to the Oglala Sioux Tribe in violation of NICWA. We 

note that the State argues as follows in its brief:

Allowing represented parties to wait until after the conclusion of the case on the merits to raise issue with the 

beginning of the case is against public policy, ideas about 

judicial efficiency, and case law. The State would respectfully request this Court hold by failing to timely and 

appropriately plea or motion their objection to the mailing 

of notice [to the tribe], [Sabra] has waived any defect in 

the notice.

Brief for appellee at 20. We reject this argument based upon 

our holding in In re Interest of Walter W., 14 Neb. App. 891, 

899, 719 N.W.2d 304, 310 (2006), which stated:

Because in many, if not most, instances, tribes depend 

upon parents to notify the State of known or potential 

Indian ancestry, and because Indian tribes cannot intervene in cases of which they have received no notification, logic dictates that parents may often be best situated 

to raise claims of inadequate notice to tribes. Therefore, 

we believe the stated purposes of the ICWA 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 as required by 

§ 43-1505(1).
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Thus, we determine that Sabra’s assigned error is properly 

before this court.

Sabra acknowledges that notices were provided to the Oglala 

Sioux Tribe, but she claims that the addresses used by the State 

were incorrect. Her brief states that “[t]he Oglala Sioux Tribe’s 

website currently lists the Tribe’s ICWA Director as Shirley 

Blackstone-Weston, P.O. Box 604, Pine Ridge, SD 57770” 

and argues that the notices sent by the State to the Tribe at 

other “P.O. Box[es] . . . would not have gone to the designated 

ICWA directors.” Brief for appellant at 28. We agree with the 

State’s argument that any current address identified on the 

Oglala Sioux Tribe’s website is “irrelevant” to the address in 

effect in August 2017 when notice was sent to the tribe. Brief 

for appellee at 18.

Section 43-1505(1) requires that to be proper, notice be 

sent (1) to the “Indian child’s tribe,” (2) by certified or registered mail with return receipt requested, (3) with notice of 

the pending proceedings, (4) with notice of the tribe’s right 

of intervention, and (5) that no termination of parental rights 

proceeding shall be held until at least 10 days after receipt of 

notice by the tribe and that the tribe may have an additional 

20 days to prepare for the proceeding if requested. See In re 

Interest of Dakota L. et al., 14 Neb. App. 559, 712 N.W.2d 

583 (2006).

In the case before this court, the termination of parental 

rights notice provided to the Oglala Sioux Tribe is not part of 

our record; however, there is an “Affidavit of Mailing Notice” 

from a legal secretary in the Scotts Bluff County Attorney’s 

office regarding the mailing of the ICWA notice to the tribe. 

The affidavit of mailing notice provides that the termination 

notice to the Oglala Sioux Tribe was mailed, by certified mail, 

return receipt requested, to the “Oglala Sioux Tribe, P. O. 

Box 2070, Pine Ridge, SD, 57770” on August 28, 2017. We 

note that “P. O. Box 2070” is the same address listed on the 

“Certificate of Indian Blood” submitted by the State and which 

certified that Audrey was an enrolled member of the Oglala 
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Sioux Tribe. This certificate was received into evidence in 

a prior hearing in this case as an exhibit. Further, the record 

reflects that two notices were mailed to the Oglala Sioux Tribe 

at the “P.O. Box 2070” address (in February 2016 and February 

2017) and that the return receipt was signed and returned in 

both instances from that address. Thus, the notice regarding 

the hearing on the termination of parental rights was sent, by 

certified mail, return receipt requested, to the Oglala Sioux 

Tribe at the address listed on the “Certificate of Indian Blood” 

and to the same address where previous notices were sent and 

received by the tribe. In this case, the affidavit provided by 

the State establishes that the State provided notice to the tribe 

at the address where it had been providing notice throughout this case. We decline to reverse the order of termination 

on the grounds that Sabra now deems that the address used 

was insufficient.

CONCLUSION

The county court, sitting in its capacity as a juvenile court, 

properly found that evidence supported termination of Sabra’s 

parental rights pursuant to § 43-292(7) and that termination 

of parental rights was in Audrey’s best interests. The State 

established through evidence, including testimony of qualified 

expert witnesses, beyond a reasonable doubt, that the continued custody of Audrey by Sabra was likely to result in serious 

emotional or physical damage to Audrey. We further reject 

Sabra’s claim that the State failed to provide proper notice to 

the Oglala Sioux Tribe.

Affirmed.