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IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

IN RE INTEREST OF LAMIAH L. ET AL.

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

IN RE INTEREST OF LAMIAH L. ET AL., CHILDREN UNDER 18 YEARS OF AGE.

STATE OF NEBRASKA, APPELLEE,

V.

ROGER L., APPELLANT, AND MICHELLE B., APPELLEE.

Filed June 21, 2022. Nos. A-21-893 through A-21-896, A-21-916, A-21-917.

Appeals from the County Court for Scotts Bluff County: KRIS D. MICKEY, Judge. 

Affirmed.

Rhonda R. Flower, of Law Office of Rhonda R. Flower, for appellant.

Travis R. Rodak, Deputy Scotts Bluff County Attorney, for appellee State of Nebraska.

Leonard G. Tabor for appellee Michelle B.

PIRTLE, Chief Judge, and BISHOP and WELCH, Judges.

WELCH, Judge.

I. INTRODUCTION

This appeal arises out of a consolidated order of the Scotts Bluff County Court, sitting in 

its capacity as a juvenile court, which terminated Roger L.’s parental rights to his four children. 

Michelle B., who is the mother of Roger’s four children and the mother of two other children by a 

different father, filed a brief of appellee contesting the termination of her parental rights to all six 

children. Both parents argue that the court erred in finding that statutory grounds under Neb. Rev. 

Stat. § 43-292 (Reissue 2016) existed and that termination of their parental rights was in the minor 

children’s best interests. For the reasons stated herein, we affirm.
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II. STATEMENT OF FACTS

1. FACTS LEADING TO REMOVAL

Roger and Michelle are the biological parents of Roger L. III (Trey), born in 2017; Marian 

L., born in 2018; and twins Lamiah L. and Leon L., born in 2019. Relevant to this appeal, Michelle 

is also the biological mother of two other children, Elihu A., born in 2011 and Elias A., born in 

2014. The biological father of Elihu and Elias has not appealed the termination of his parental 

rights.

In mid-May 2021, Michelle came to Nebraska from South Dakota with her six children; 

her sister, Pauline P.; and Pauline’s three children. Michelle had left a South Dakota domestic 

violence shelter and was attempting to work with a Nebraska domestic violence shelter in 

Nebraska. After being in Nebraska for about two days, Michelle contacted Department of Health 

and Human Services (DHHS) worker Courtney Armstrong requesting Armstrong’s help. Michelle 

told Armstrong, with whom she had previous contacts, that neither she, nor Pauline, were able to 

care for the children because Michelle was incarcerated and Pauline was in poor health. This 

situation was reported to the child abuse hotline which intake revealed that Michelle and her six 

children were homeless and were living in a minivan with Pauline and Pauline’s three children. In 

response to this report, Chasity Duarte, a Nebraska Child and Family Service (CFS) specialist, 

located Pauline, Pauline’s three children, and Michelle’s six children in Pauline’s minivan. 

According to Duarte, the minivan was filled with trash; the children were dirty and hungry; 

Pauline, who was awaiting a liver transplant, had to return to South Dakota; and Pauline did not 

have the means to care for Michelle’s children. Duarte observed that 4-year-old Trey was 

nonverbal and was not potty-trained and that all six children had very poor hygiene, did not have 

appropriate clothing, and four of the children did not have any shoes.

Based on Duarte’s investigation, which included contacting family members for 

information, Duarte identified three active safety threats: (1) Michelle was incarcerated and unable 

to care for her children’s needs for supervision, food, clothing, and medical or mental health; (2) 

the caregiver had deserted the children; and (3) a pattern of prior DHHS investigations, protective 

placements, and current circumstances placed the children at risk for other safety threats. Duarte 

indicated that the children had been placed in unsafe situations and did not have safe living 

arrangements as evidenced by domestic violence and substance abuse concerns. Based upon 

Duarte’s conclusion that it was necessary to take the children into temporary protective custody 

because of serious threats to the children’s health, safety, and welfare, the children were placed on 

a 48-hour police hold.

On May 21, 2021, the State sought custody of the minor children by way of a motion 

accompanied by Duarte’s affidavit which set forth facts as previously set forth. Duarte’s affidavit 

also set forth that Elihu was the only one of Michelle’s children who was able to communicate 

clearly and that Elihu disclosed, among other things, that the South Dakota shelter was the only 

place he had a bed; that Michelle consistently drank alcohol; and that Roger, the biological father 

of Elihu’s four youngest siblings, was mean, hit them, and made the children fight each other. 

Elihu, who was the age of a fourth-grade student, indicated that he had not been to school since 

the second grade and that Michelle told the children that they did not have to attend school. During 
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the time that Elihu had attended school, he had an Individual Education Plan (IEP) to facilitate his 

speech development, but those needs had not been met since he stopped attending school. The 

other children were either nonverbal or unable to communicate effectively and had not been 

receiving services to address their needs. Through the course of her investigation, Duarte learned 

that the family had been involved in prior CFS cases during which some of the children had been 

made wards of the State; during the pendency of the prior cases, Michelle and Roger resided 

together; and the prior case commenced after Michelle gave birth to Lamiah and Leon following 

a positive test for methamphetamine.

2. COURT PROCEEDINGS

On May 21, 2021, the State filed a petition seeking to adjudicate all six children as juveniles 

under Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016). The petition alleged that the children were 

of Native American heritage and came within the provisions of the Indian Child Welfare Act 

(ICWA). In the State’s petition in support of custody of the minor children, the State asserted that 

the children lacked proper parental care by reason of the faults or habits of the parents as the 

children lacked safe and stable housing; that Roger had abandoned the children; and that Michelle 

failed to meet the children’s basic needs, was incarcerated and unable to care for the children, and 

used alcohol or other controlled substances placing the juveniles at risk of harm. Both Roger and 

Michelle entered denials to the State’s allegations and the matter was set for an adjudication 

hearing.

In early July 2021, while the adjudication was pending, the State filed a motion to terminate 

both parents’ rights to their respective children. The State alleged that termination of Roger’s 

parental rights was appropriate under § 43-292(1) (abandonment for six months or more), 

§ 43-292(2) (substantial and continuous or repeated neglect and refusal to give necessary parental 

care and protection), and § 43-292(9) (aggravated circumstances). The motion to terminate 

Michelle’s parental rights alleged termination was proper under § 43-292(2) and (9). Additionally, 

prior to the combined adjudication and termination hearing, the children’s guardian ad litem filed 

a motion to suspend the parents’ visitation with the minor children. The motion was heard on 

September 16 in conjunction with the combined adjudication and termination hearing.

3. COMBINED HEARING

At the combined hearing, the State called multiple witnesses including Courtney 

Armstrong, the family’s prior CFS supervisor; Chasity Duarte, the family’s current CFS specialist 

and the area’s ICWA specialist; several of the children’s medical, dental, and mental health 

providers; Kylie C., foster parent of Elihu, Elias, Roger and Marian; and Elisa M., foster parent 

for Leon and Lamiah. The court received additional evidence from the State consisting of prior 

family intakes, prior court orders, the parents’ criminal histories, images of the children taken by 

the foster parents, and a letter written by Michelle addressed to the court.

(a) Current Case

Duarte, the CFS specialist assigned to the current case on May 19, 2021, testified that she 

was the ICWA specialist for the area. Duarte testified to facts consistent with those previously 
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described in her affidavit submitted in support of removal of the minor children. According to 

Duarte, she had very little success contacting Roger and Michelle and that contact with the parents 

was inconsistent. At the time of the combined adjudication and termination hearing, Duarte had 

not heard from Roger for an extended period of time and finally heard from him the day before the 

hearing when he sought information about his court hearing. Duarte testified that her 

communication with Michelle was nonexistent. Despite the lack of communication, Duarte was 

able to complete family findings, complete a referral for family support with Native Futures, 

complete a family strengths and needs assessment, schedule parenting classes for Roger, refer 

Roger and Michelle for substance abuse and mental health evaluations, provide supervised 

visitation services, provide clothing vouchers, provide gas vouchers for Roger, refer Roger for 

extra family support work, utilize a kinship home for Leon and Lamiah, and was in the process of 

setting up Early Development Network services for the children.

Duarte testified that Michelle and Roger were both offered supervised visitation with their 

children. Michelle attended only 21 of 40 visits and failed to engage with the children during her 

visits. According to Duarte, Roger attended ten of 37 visits, his visits were inconsistent, and he

appeared to lack a relationship with the children. According to the foster parents, Roger and 

Michelle’s inconsistency resulted in the children exhibiting negative behaviors and Elihu’s 

therapist reported that Elihu had self-harming thoughts after missed visits because he wanted to 

punish himself for his parents’ missed visits. Additionally, the foster parents indicated that the 

children often became angry and sad while waiting for confirmed video visits that Roger and 

Michelle failed to attend.

The children presented with both significant mental and physical health conditions. Edward 

Sydow, the physician’s assistant who has treated Leon and Lamiah, testified that Michelle and 

Roger failed to bring Leon and Lamiah for wellness checkups except for their 2-week and 4-month 

check-ups and one sick visit in February 2020 during which he diagnosed the children with 

bronchiolitis. Sydow noted extensive dental issues including cavities, speech and developmental 

delays, abnormal blood tests, infections, moderate to severe anemia, and iron deficiencies. 

Additionally, during the February 2020 sick visit, when he exited the room to obtain a pulse 

oximetry test to ensure that the children were oxygenating well and that it was safe for them to go 

home, the parents abruptly left the facility. Leon and Lamiah’s dentist testified that both children 

had misshapen incisors, that Leon had moderate tooth decay, and that both children had cavities.

Dr. Marvin Swan, a dentist, saw Trey in his office for an emergency visit after Trey’s face 

became swollen. Following an examination, Dr. Swan observed that Trey presented with a “fairly 

significant swollen face” and determined that Trey had a “bad, bad tooth with large decay and . . . 

an abscess” and that the infection was so severe it had broken through the bone of Trey’s buccal 

plate and infected his cheek area. Dr. Swan indicated that, in some cases, an untreated abscess 

could result in death. Trey’s ongoing pediatric dentist, Dr. Jonathan Simpson, similarly testified 

that Trey had extensive dental needs including significant decay and infected and nonrestorable 

teeth. He explained that

Nonrestorable means the decay extended past the structural integrity of the tooth to 

support either a crown or a filling. And then infected would include bone loss due to an 
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infection spreading from the tooth into adjacent bone or root loss of the decay reaching the 

nerve, and, therefore, infiltrating the nerve and the remainder of the tooth.

Dr. Simpson testified that, of the 20 teeth in Trey’s mouth at that time, 15 teeth had decay, nine of 

which were nonrestorable or infected and had to be extracted. Additionally, Trey received 3 

fillings, 3 crowns, and 1 pulpotomy, which is nerve therapy.

In addition to evidence adduced as previously set forth, both the mental health therapists 

and the foster parents reported significant concerns with the children’s emotional wellbeing. The 

record shows that Elias and Elihu had attachment disorders; Elihu suffered from anxiety, 

depression, and self-harming thoughts; and Marian had self-harming behaviors including banging 

her head on the walls and floors until she bled and attention-seeking behaviors including 

intentionally slamming her fingers in a drawer and screaming until she became hoarse. Both foster 

parents reported that the children had eating complexes such as hoarding food, eating until sick, 

standing in or staring at the kitchen, and always asking about when they would eat next.

(b) Previous Intakes

In addition to the current May 2021 intake, the family also had several previous intakes. 

Armstrong, a DHHS child and family services specialist supervisor, supervised prior cases 

involving the family from November 2017 to January 2019.

Armstrong testified that prior to her becoming involved in the case, Elias and Elihu had 

been state wards from April to October 2016 after law enforcement, while executing a search 

warrant, found marijuana in Michelle’s purse. Michelle admitted to law enforcement that she was 

snorting one of her prescription medications and had smoked marijuana in front of the minor 

children immediately prior to law enforcement arriving at the home. Additionally, Michelle 

breastfed 2-year-old Elias while law enforcement was present in the home. At that time, the home 

lacked electricity and water. Also in 2016, a visibly intoxicated Michelle took Elihu, then 5 years 

old, to the emergency room for an infection in his groin which, if left untreated, could have spread 

to his testicles and caused infertility.

The first intake in which Armstrong was involved occurred in November 2017 after Elihu 

and Elias were located sleeping in the backseat of Michelle’s vehicle while Michelle was 

intoxicated and passed out in the vehicle with the ignition on and the car in drive. Michelle was 

arrested and Elihu and Elias were placed with Roger. At that time, Armstrong was concerned with 

the children’s overall well-being due to Michelle’s history of alcohol and substance abuse and 

history of neglecting her children.

The next intake occurred in March 2019 after Michelle overdosed while caring for 

5-month-old Marian who was hospitalized with a serious ear infection that had spread into her 

skull, a rash on her ears and neck, and a severe diaper rash. The infection had to be drained with a 

scalpel and packed. After hospital staff noticed that there was water pouring out of Marian’s 

hospital room, Michelle was found passed out in the shower blocking the drain. Hospital staff 

found crushed-up medication on the sink. At that time, Roger reported observing it was normal to 

see Michelle crush up medications, mix them, and take as many as she wanted.
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The next intake occurred in October 2019 after Michelle tested positive for THC and 

methamphetamines at the hospital the day she gave birth to her twins. Michelle admitted to using 

alcohol and THC during her pregnancy and that she did not begin prenatal care until she was 33 

weeks into her pregnancy. Michelle also stated her intention to breastfeed despite positive drug 

tests and that she was unprepared to take the twins home. Law enforcement, while executing a 

search warrant at Michelle and Roger’s home, found a marijuana pipe, a grinder, and a straw which 

appeared to have cocaine residue on it.

Armstrong testified that, during the time that she supervised the case, the active efforts 

provided to the family specifically included multiple notices and monthly contact with the tribe; 

efforts to place the children with culturally compliant foster homes; search for family members to 

assist with the family; weekly contact with Michelle; team meetings; case management; family 

support; monthly home visits; family strengths and needs assessments; risk assessments; in-home 

family support; safety assessments and planning; monthly maintenance payments for foster care; 

daycare assistance; purchase of clothes, shoes, diapers, and other basic necessities for the children; 

multiple lice treatments; transportation; car repairs; meals for visitations; and weekly drug testing. 

Additional services provided to the family included utility payments; gas vouchers; grocery 

vouchers; hotel vouchers; case planning; evaluations including a substance abuse evaluation; 

referral to Circle of Security; and a SCRAM continuous alcohol monitor provided to Michelle.

Armstrong testified that her “big-picture concerns” in this case included the overall lack of 

consistency; the severe neglect that was noted through DHHS’ history with the family; both Roger 

and Michelle’s incarcerations; Michelle’s marijuana use and excessive alcohol use; Michelle’s 

tampering with SCRAM monitors; failure to participate in alcohol and substance use testing; and 

lack of food, utilities, and basic necessities for the children. Armstrong also listed additional 

concerns including the removal of Michelle’s SCRAM monitor due to her high alcohol usage and 

tampering with the device; Michelle’s consumption of alcohol during her pregnancy and lack of 

prenatal care; Michelle’s failure to cooperate with probation; Michelle’s failure to complete Circle 

of Security; and Michelle’s failure to follow through on the substance abuse recommendation that 

she attend treatment.

(c) Best Interests Testimony

(i) Duarte

Duarte testified that, in her opinion, termination of Roger and Michelle’s parental rights 

was in the children’s best interests due to their lack of participation in the case, their extensive 

history and involvement with DHHS, the children’s extensive needs and concerns at the time they 

reentered DHHS’ care including their developmental and physical delays, and Roger and 

Michelle’s failure to meet the children’s educational needs.

(ii) Kylie C.

Kylie C. testified that she has been the foster mother for Elihu, Elias, Trey, and Marian, 

since May 19, 2021. According to Kylie, when the children came into her care, they had ill-fitting 

clothes, only two children had shoes, the children smelled as if they had not bathed, Trey did not 

make eye contact, only Elias and Elihu were verbal but Elias had a stutter that made him difficult 
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to understand, none of the children knew how to use utensils, and Elihu acted in “almost a parent 

role for his siblings.” The first week Trey and Marian “would just grunt” and then Kylie realized 

that they did not know words. Kylie described Trey as “really quiet” and that he would not look 

her in the eyes. Kylie described Marian as quiet and reserved at first and had very bad cavities 

which were subsequently addressed. Additionally, Marian was eating dirt, books, and colored 

pencils.

While in foster care, Kylie noted that the children “have really transitioned very easily. 

They have been very, very good about taking on the new . . . rules and the new norm. . . . it was 

pretty quick that they realized as soon as we got home from day care . . . they were getting ready 

to sit down to eat.” Kylie stated that “[i]t wasn’t until we started scheduling visits that really we 

started seeing some behaviors come out.” She explained that when Michelle or Roger would have 

a Zoom visit set up “the kids would sit there, and they would wait and they would wait and they 

would wait and they would wait . . . [a]nd . . . you could just see them starting to fall apart.”

Behaviors included inability to focus and not listening and Elihu was having problems with 

self-punishment thoughts because “he was trying to punish himself for [Michelle and Roger] not 

making his calls.” However, since beginning counseling, Elihu was doing “phenomenal” with 

journaling.

Kylie testified that, after being in foster care for four months, Elihu was attending third 

grade and doing “very well,” had lots of friends, and was involved in flag football and soccer.

Kylie described Elias as a 7-year-old kindergartener who was “struggling” so they had 

started an IEP evaluation and testing. Elias also received private tutoring over the summer. 

However, he has developed into “a busy kid,” will ask questions, and engage in in-depth talks.

Marian was starting counseling after exhibiting self-harming behaviors including banging 

her had against the floor and wall, throwing things, scratching things, and screaming until she was 

hoarse up to four hours at a time. After bloodwork determined that Marian was iron deficient and 

anemic, steps were taken to alleviate the conditions and thereafter, Kylie described that Marian no 

longer ate dirt, books, or colored pencils.

Kylie explained that Trey was very delayed and had difficulty with comprehension but did 

very well with routines. She noted that after Trey had dental work performed and had his tonsils 

and adenoids removed, he was “a different kid” who is babbling, wanting to learn, wanting to run 

and play, and laughing at the TV.

(iii) Elisa M.

Elisa M. testified that she is employed with the Early Head Start program and has been 

Leon and Lamiah’s foster mother since May 19, 2021. Elisa explained that she was familiar with 

the children prior to their placement with her because she provided parent education to Michelle 

through the Early Head Start program. During the program, Elisa focused on health, nutrition, and 

education including helping the parents recognize where their child should be developmentally 

through the use of assessments and questionnaires. Elisa testified that Michelle was inconsistent 

and would only let her into the home about once per month. She indicated that her observed 

concerns including the uncleanliness of the home, lack of food, broken furniture, and trash in the 

home.
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According to Elisa, when Leon and Lamiah were first placed with her, the children were 

unclean and Lamiah was wearing clothes that were too small. The children were sick, pale, 

lethargic, withdrawn, quiet, developmentally delayed, and nonverbal. Lamiah had dark purple 

circles under her eyes and Leon was “tiny, just scrawny looking, and nonverbal.” Leon had an

infection on one of his big toes and Lamiah had an ear infection which were both promptly treated. 

Both children were also severely anemic which required a prescription, and Leon had some decay 

in his front teeth. Elisa observed food insecurities with both children. She also noted that Roger 

and Michelle had been inconsistent in attending visitations and that when the parents did make 

their visits, the children would “revert back to how they were the first week” including throwing 

tantrums, Leon slamming himself onto the floor, and Lamiah hitting herself in the head with her 

fists. However, since being in foster care, Elisa noted that the children were getting healthier, 

getting back on track developmentally, eating with utensils, and were verbal.

4. COURT FINDINGS AND ORDERS

Following the close of the evidence, the court granted the motion to suspend visitation 

pending the decision on the State’s motion to terminate parental rights. The court immediately 

adjudicated the children as children within the meaning of § 43-247(3)(a) but took the motion to 

terminate parental rights under advisement. Thereafter, the court terminated Roger’s parental 

rights to Trey, Marian, Leon and Lamiah pursuant to § 43-292(1), (2) and (9) and terminated 

Michelle’s parental rights to all six children pursuant to § 43-292(2) and (9). The court found that 

statutory grounds existed to terminate the parties’ parental rights, that termination was in the minor 

children’s best interests, and that the additional requirements under ICWA had been satisfied 

which required (1) a finding, 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 or unite the parent with the Indian child and that these efforts have proved 

unsuccessful and (2) a finding, beyond a reasonable doubt, that the evidence, including qualified 

expert testimony, that the continued custody of the children by the parents was likely to result in 

serious emotional or physical damage to the children. Specifically, the court found:

The evidence is overwhelming that these children have suffered severe, chronic 

abuse by their natural parents. The documented failures to provide for the basic needs of 

the children, including nutrition, shelter, and medical and dental care, along with the 

absence of any consistent effort to improve their parenting, make it clear to this court that 

attempting reunification with the natural parents would jeopardize and compromise the 

safety of the children and place each of them at an unreasonable risk to be re-abused. The 

fact that these children have survived the absence of reasonable, habitable living conditions 

is remarkable, and a testament to their resiliency and will to survive. Their living 

environment while under their parents’ care was characterized by filth and uncleanliness, 

chronic parental substance abuse, domestic violence, and general apathy toward the needs 

of the children—including, at times, the absence of basic utilities and running water. The 

evidence demonstrates that very little thought, if any, was given by the parents to placing 

the needs of the children above their own wants and ambitions. Despite the documented 

repeated, active efforts by DHHS, the parents did nothing to make meaningful changes in 
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their capacity to appropriately parent the children. At one point before the twins were born, 

[Michelle] admitted she could not care for her existing children, let alone the ones she was 

due to deliver. Then she recanted, kept the twins instead of adopting them out as she had 

planned. Eventually, all of the children arrived in Scotts Bluff County in the care of a sick 

relative, living out of van. All of the children came into the state’s care developmentally 

and academically delayed. Neither father has provided for the physical or emotional needs 

of the children, and up to this point, the children have long endured scarcity, desperation, 

and chaos as a normal way of life. Clear and convincing evidence further demonstrates the 

absence of a meaningful, beneficial relationship between parents and children. None of the 

parents have consistently prioritized visitation with the children, and none of the parents 

chose to personally appear in court for the adjudication hearing.

. . . .

. . . As applied in this instance, taking into consideration the totality of evidence from the 

adjudication hearings, including an assessment of the children’s present circumstances and 

adjustments, as well as the children’s long-term physical, social, and emotional needs, this 

court finds that sufficient evidence was presented to demonstrate clearly and convincingly 

that termination of parental rights is appropriate and in the best interests of the children. 

There is an abundance of evidence concerning the lack of a beneficial relationship between 

the parents and the children. The totality of the evidence, including the parents’ individual 

failures to provide for their children demonstrate parental unfitness and collectively dictate 

in favor of termination of parental rights being in the children’s best interests. These 

children should not be made to wait uncertain parental maturity when there is clear and 

convincing evidence that the children’s overall future well-being stands to improve with 

the prospects of new relationships which the termination might open for them.

Roger timely filed a notice of appeal contesting the termination of his parental rights to his 

four children. Michelle also filed a notice of appeal and a “Brief of Appellee” requesting 

affirmative relief for each of her six children but did not designate her brief as a cross appeal.

III. ASSIGNMENTS OF ERROR

Roger assigns as error, restated, that the court erred in finding by clear and convincing 

evidence that statutory grounds existed to support termination of his parental rights and that 

termination was in the minor children’s best interests.

As we noted above, Michelle also filed a notice of appeal and a “Brief of Appellee”

requesting affirmative relief for each of her six children but did not designate her brief as a cross 

appeal. Nebraska appellate courts “have repeatedly indicated that a cross-appeal must be properly 

designated, pursuant to [§ 2-10]9(D)(4), if affirmative relief is to be obtained.” In re Interest of 

Becka P., 27 Neb. App. 489, 512, 933 N.W.2d 873, 890 (2019). However, where an appellee 

submits a brief purporting to be a brief of appellant, which complies with the rules regarding an 

appellant’s brief, and the appellee’s brief does not take issue with any errors asserted by the 

appellant, the appellate court may, in its discretion, treat the brief of such appellee as a brief on 

cross-appeal. Neb. Ct. R. App. P. § 2-109.
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Here, although Michelle is not designated as a cross-appellant in her brief relating to 

Roger’s 4 children, or as an appellant relating to Elihu and Elias, the remainder of her brief 

comports with our court rules regarding requirements for the brief of appellant, see State v. Pauly, 

311 Neb. 418, 972 N.W.2d 907 (2022), and she does not take issue with any of Roger’s assigned 

errors, assigns the same errors, and much of the same evidence and testimony is applicable to both 

Roger and Michelle. Thus, we will consider Michelle’s arguments on appeal as if correctly cross 

appealed. However, our decision to do so in this case should not be considered as indicative of 

similar treatment in the future of cross-appeals which fail to comport with our rules. See State v. 

Pauly, 311 Neb. 418, 972 N.W.2d 907 (2022) (depending on particulars of each case, failure to 

comply with mandates of Neb. Ct. R. App. P. § 2-109(D) (rev. 2022) may result in appellate court’s 

waiving error, proceeding on plain error review only, or declining to conduct any review at all).

IV. STANDARD OF REVIEW

An appellate court reviews juvenile cases, including those under Nebraska ICWA, de novo 

on the record and reaches its conclusions independently of the juvenile court’s findings in a 

termination of parental rights case; 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. In re Interest of Becka P., supra; In re Interest of Phoebe S., 11 Neb. App. 

919, 664 N.W.2d 470 (2003).

V. ANALYSIS

1. STATUTORY GROUNDS FOR TERMINATION

Roger and Michelle both argue that the court erred in finding that the State had established 

by clear and convincing evidence a statutory basis for termination. Roger contends that the court 

erred in finding that the State proved that he had abandoned his children under § 43-292(1), that 

he had substantially and continuously or repeatedly neglected and refused to give the minor 

children necessary parental care and protection under subsection (2), and that he had subjected the 

minor children to aggravated circumstances under subsection (9). Similarly, Michelle argues that 

the court erred in finding the evidence was sufficient to support termination of her parental rights 

under § 43-292(2) and (9).

To terminate parental rights, it is the State’s burden to show by clear and convincing 

evidence both that one of the statutory bases enumerated in § 43-292 exists and that termination is 

in the child’s best interests. In re Interest of Mateo L. et al., 309 Neb. 565, 961 N.W.2d 516 (2021). 

Clear and convincing evidence means that amount of evidence which produces in the trier of fact 

a firm belief or conviction about the existence of a fact to be proved. In re Interest of Zachary D. 

& Alexander D., 289 Neb. 763, 857 N.W.2d 323 (2015).

ICWA adds two additional elements the State must prove before terminating parental rights 

in cases involving Indian children. In re Interest of Audrey T., 26 Neb. App. 822, 924 N.W.2d 72 

(2019). 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. 

Id. See § 43-1505(4). 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 
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parent or Indian custodian is likely to result in serious emotional or physical damage to the child. 

In re Interest of Audrey T., supra. See § 43-1505(6). Neither Roger nor Michelle have argued that 

the court erred in finding that the statutory ICWA requirements had been met.

Here, Roger argues that the primary reason the State sought termination was due to the 

“shortcomings of [Michelle] and her repeated history of intakes with [DHHS].” Brief for appellant 

at 14. Roger contends that he put his best efforts forward to raise his children and Michelle’s two 

other children and that the State chose to pursue termination against him even though he has done 

little, if anything, wrong. Michelle only argues generally that the evidence was insufficient. We 

disagree with both asserted arguments.

The court found that the evidence was sufficient to support a finding that Roger and 

Michelle had “substantially and continuously or repeatedly neglected and refused to give the 

juvenile or a sibling of the juvenile necessary parental care and protection” as defined under 

subsection (2). In addition, this lack of parental care rose to a level chronic abuse and neglect that 

posed serious health, safety and welfare concerns as evidenced by the court’s findings under 

subsection (9). The record shows that at the time the intake was received, Michelle had been 

incarcerated and all six of the children were living in a van with their sick aunt and her three 

children. Although Michelle contacted Armstrong stating neither she nor her sister were able to 

care for the children, Michelle did not indicate why Roger did not take the children into his care. 

Evidence adduced during the trial established that all the children were academically and 

developmentally delayed and had not been to school for possibly the last two academic years.

Additionally, neither parent was meeting the children’s medical and behavioral needs. The 

record established that the children have suffered from severe infections, tooth decay, anemia, iron 

deficiencies, and mental health concerns including self-harm, food complexes, and others. Neither 

Roger nor Michelle attended routine wellness checkups, dental appointments, or sought support 

for the children’s mental health or academic delays. Additionally, on one occasion in February 

2020, when the parents did seek medical attention for Lamiah and Leon, they abruptly left the 

doctor’s office after the doctor left the room to obtain a test to ensure the children were breathing 

properly and were safe to go home.

Relevant to their medical health, the children lacked good hygiene, lacked appropriate 

clothing, suffered nutritional deficits, and at least two of the children did not have shoes. Elihu 

indicated to the caseworker that there were multiple occasions where there was barely enough food 

in the home. He stated that when there was not enough food, he would eat a very small portion, or 

he did not eat at all. Additionally, the foster parents reported concerns of the children having food 

complexes to some degree. Prior to their arrival in Nebraska, the family had been residing in a 

shelter in South Dakota. Elihu reported that the shelter was the only time he had a bed to sleep on. 

He indicated that they also lived in an apartment at one time, but that there were so many bugs in 

the home that he could hear them under the carpet; and when he would walk through the home, he 

could hear the bugs crunch under his feet.

The evidence further showed significant concerns as a result of substance abuse, physical 

abuse of the children, and domestic violence between Roger and Michelle. While in the presence 

of the children and during the time she was pregnant with the twins, Michelle abused alcohol and 

methamphetamine. Roger witnessed Michelle’s drug use and, during a prior case, indicated that it 
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was a common occurrence within their household. However, despite his concerns, Roger did not 

remove the children from Michelle’s care. Elihu also expressed concerns about Michelle’s alcohol 

abuse, stating that Michelle became angry when she drank which resulted in Michelle and Roger 

fighting, all of which occurred in the children’s presence. Elihu also described times when 

Michelle had become too intoxicated to drive and he had to drive on highways even though he was 

not of legal driving age. Elihu indicated to the caseworker that he was scared of Michelle dying 

from alcohol. Elihu further disclosed that Roger, who is the father of his four youngest siblings, 

hit them and made the children fight each other. Elihu stated that he saw himself as the “protector”

of his siblings. Elihu spent much of his childhood acting as the parent while placing his own 

personal needs aside. Elihu now suffers from mental health conditions which include thoughts of 

self-harm.

It is evident by the record that the children have not been provided safe or stable housing, 

nor were their needs being properly met by either parent. The evidence presented at the termination 

hearing clearly and convincingly established that the minor children were the victims of repeated 

abuse and neglect by their parents. Accordingly, the court properly found that termination was 

appropriate under § 43-292(2). Further, § 43-292(9) separately provides for termination when 

“[t]he parent of the juvenile has subjected the juvenile or another minor child to aggravated 

circumstances, including, but not limited to, abandonment, torture, chronic abuse, or sexual 

abuse.” The term “aggravated circumstances” embodies the concept that the nature of the abuse or 

neglect must have been so severe or repetitive that to attempt reunification would jeopardize and 

compromise the safety of the child and would place the child in a position of unreasonable risk to 

be reabused. In re Interest of Angelina G., 20 Neb. App. 646, 830 N.W.2d 512 (2013). We find 

that the nature of the abuse and neglect described in this record rose to the level of aggravated 

circumstances as that term is defined and the court did not err in so finding.

Having determined that at least one statutory basis existed to support termination of Roger 

and Michelle’s parental rights, we need not further address the sufficiency of the evidence to 

support termination under any other statutory ground. See In re Interest of Becka P. et al., 27 Neb. 

App. 489, 933 N.W.2d 873 (2019).

2. ICWA REQUIREMENTS

Although neither of the additional ICWA requirements were assigned as an error or argued 

on appeal, we review for plain error. Plain error is error plainly evident from the record and of 

such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or 

fairness of the judicial process. In re Interest of Mainor T. & Estela T., 267 Neb. 232, 674 N.W.2d 

442 (2004).

Section 43-1505, which governs the two additional requirements under Nebraska ICWA, 

provides in pertinent part:

(4) Any party seeking to effect a foster care placement of, or termination of parental rights 

to, an Indian child under state law shall satisfy the court that active efforts have been made 

to provide remedial services and rehabilitative programs designed to prevent the breakup 

of the Indian family or unite the parent or Indian custodian with the Indian child and that 

these efforts have proved unsuccessful. Any written evidence showing that active efforts 
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have been made shall be admissible in a proceeding under the Nebraska Indian Child 

Welfare Act. Prior to the court ordering placement of the child in foster care or the 

termination of parental rights, the court shall make a determination that active efforts have 

been provided or that the party seeking placement or termination has demonstrated that 

attempts were made to provide active efforts to the extent possible under the circumstances.

. . . .

(6) The court shall not order termination of parental rights under this section in the absence 

of a determination by the court, supported 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.

(a) Active Efforts

ICWA and Nebraska law requires the State of Nebraska to prove by clear and convincing 

evidence that active efforts have been made to provide remedial services and rehabilitative 

programs designed to prevent the breakup of the Indian family prior to the termination of parental 

rights. In re Interest of Walter W., 274 Neb. 859, 744 N.W.2d 55 (2008). The “active efforts”

standard under the ICWA termination of parental rights provision requires more than the 

“reasonable efforts” standard that applies in cases involving non-Indian children. Id. To constitute 

“active efforts” under ICWA, termination of parental rights provision requires at least some of the 

active efforts should be “culturally relevant.” Id. The “active efforts” standard under ICWA 

termination of parental rights provision requires a case-by-case analysis. Id.

Here, the record shows that the parents were provided with multiple opportunities to 

engage in services. In addition to supervised visitation, the parents were provided with family 

support through Native Futures, parenting class information, mental health and substance abuse 

referrals, gas and clothing vouchers, additional family support specifically for Roger, family 

finding services to locate native familial placements, strengths and needs assessments, and other 

services. We find no plain error in the court’s determination that active efforts were satisfied.

(b) Serious Emotional or Physical Damage

Section 43-1505(6) requires that the qualified expert’s opinion must support the ultimate 

finding of the court, that is, that continued custody by the parent will likely result in serious 

emotional or physical damage to the child. Pursuant to ICWA, qualified expert testimony is 

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

child is likely to occur if the child is not removed from the home. In re Interest of Audrey T., 26 

Neb. App. 822, 924 N.W.2d 72 (2019).

As part of its case, the State called Chasity Duarte who testified that she was the ICWA 

specialist for her area. Part of her duties included ensuring that ICWA compliant services were 

referred for the family. Duarte stated that, in her opinion, it was in the children’s best interests for 

the parental rights to be terminated. Duarte testified regarding the severity of concerns and safety 

threats including that Roger and Michelle were not actively caring for the children, the children 
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had suffered severe neglect over years, and the children exhibited high levels of need at the time 

that they reentered the State’s care. Additionally, the children’s medical providers testified 

regarding the children’s physical and mental health including significant tooth decay which led to 

multiple extractions and severe infections, infections that spread to the bone causing great pain, 

untreated abscesses which could have eventually caused death, iron deficiencies and anemia, other 

concerns related to nutritional deficits, mental health concerns rising to the level of self-harming 

behaviors, and developmental or educational delays which led to all but one of the children being 

unable to communicate effectively. In performing our plain error review, we find no plain error in 

the court’s finding that the evidence supported, beyond a reasonable doubt, that serious harm to 

the Indian children was likely to occur if the children were not removed from the parents’ care.

3. BEST INTERESTS

Roger and Michelle next assign as error that the court erred in finding that termination of 

their parental rights was in the minor children’s best interests.

Under § 43-292, in addition to providing a statutory ground, the State must show that 

termination of parental rights is in the best interests of the child. In re Interest of Jahon S., 291 

Neb. 97, 864 N.W.2d 228 (2015). 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 

unfit. Id. There is a rebuttable presumption that the best interests of the child are served by having 

a relationship with his or her parent. Id. 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. Id. 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 child’s well-being. Id.

The best interests analysis and the parental fitness analysis are fact-intensive inquiries. Id. 

And while both are separate inquiries, each examines essentially the same underlying facts. Id. 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 child. In re Interest of Joseph S. et al., 291 Neb. 953, 870 N.W.2d 

141 (2015).

Here, the record reveals that the family had a significant history of CFS involvement

relating to the care of these six children as a result of continuous substance abuse, physical abuse, 

neglect of the children’s needs, and domestic violence occurring in front of the children. Moreover, 

the court found, and we agree, that Roger and Michelle subjected the children to chronic abuse, or 

aggravated circumstances, which substantially created a high risk to the children’s health, safety 

and welfare.

Both Roger and Michelle failed to engage in services and did not stay in contact with 

Duarte. Despite being offered visitation, Roger failed to attend the majority of those visits, and, as 

to the ones he did attend, he failed to attempt to develop a relationship with the children. Michelle 

likewise was offered visitation services but minimally participated and missed numerous visits 

with her children. As a result of Roger and Michelle’s inconsistencies in participating in visitation, 
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the foster parents testified that the children developed behavioral issues including not listening, 

self-harming thoughts, memory issues, and inability to focus. Neither parent actively became 

involved in ensuring the children’s educational needs were being met and they failed to attend 

three meetings set up for the children in order to address the noted delays. In addition, over the 

course of time, both parents have been incarcerated and were unable to meet the children’s needs 

while Elihu attempted to parent his younger siblings and half-siblings during Roger and Michelle’s 

absence.

Under our de novo review, it is clear that neither parent has positioned themselves to 

properly provide care and supervision of their children. The children have suffered because of their 

parents’ unwillingness to perform their most basic parental obligations. The parents’ actions have 

and will likely continue to significantly harm the minor children. Children cannot, and should not, 

be suspended in foster care or be made to await uncertain parental maturity. In re Interest of 

Angelina G. et al., 20 Neb. App. 646, 830 N.W.2d 512 (2013). Therefore, we agree with the county 

court that termination was in the best interests of the minor children. This assignment of error fails.

VI. CONCLUSION

For the reasons stated herein, we affirm the court’s order terminating both Roger and 

Michelle’s parental rights to their respective children.

AFFIRMED.