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IN RE INTEREST OF DESTINY H. ET AL.

Cite as 30 Neb. App. 885

In re Interest of Destiny H. et al., 

children under 18 years of age.

State of Nebraska, appellee, 

v. Amber M., appellant.

___ N.W.2d ___

Filed April 26, 2022. No. A-21-258.

1. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases de novo on the record and reaches its conclusions independently of the findings made by the juvenile court below.

2. Parental Rights: Proof. 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 Neb. Rev. Stat. § 43-292 (Reissue 2016) 

exists and that termination is in the child’s best interests.

3. ____: ____. Under Nebraska law, terminating parental rights requires 

both clear and convincing evidence that one of the statutory grounds 

enumerated in Neb. Rev. Stat. § 43-292 (Reissue 2016) exists and clear 

and convincing evidence that termination is in the best interests of 

the children.

4. ____: ____. Neb. Rev. Stat. § 43-292(7) (Reissue 2016) operates 

mechanically and does not require the State to adduce evidence of any 

specific fault on the part of the parent.

5. ____: ____. Any one of the bases for termination of parental rights codified by Neb. Rev. Stat. § 43-292 (Reissue 2016) can serve as a basis for 

termination of parental rights when coupled with evidence that termination is in the best interests of the children.

6. Parental Rights: Presumptions: Proof. A child’s best interests are presumed to be served by having a relationship with his or her parent. This 

presumption is overcome only when the State has proved that the parent 

is unfit.

7. Constitutional Law: Parental Rights: Words and Phrases. In the 

context of the constitutionally protected relationship between a parent 

and a child, parental unfitness means a personal deficiency or incapacity 

Nebraska Supreme Court Online Library

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

04/26/2022 08:05 AM CDT
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Cite as 30 Neb. App. 885

which has prevented, or will probably prevent, performance of a reasonable parental obligation in child rearing and which has caused, or probably will result in, detriment to a child’s well-being.

8. Parental Rights: Words and Phrases. A termination of parental rights 

is a final and complete severance of the child from the parent and 

removes the entire bundle of parental rights. Therefore, with such severe 

and final consequences, parental rights should be terminated only in the 

absence of any reasonable alternative and as the last resort.

9. Parent and Child. 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.

10. Parental Rights. Whereas statutory grounds are based on a parent’s past 

conduct, the best interests inquiry focuses on the future well-being of 

the child.

11. ____. The best interests and parental unfitness analyses in the context 

of a termination of parental rights case require separate, fact-intensive 

inquiries, but each examines essentially the same underlying facts.

12. Parental Rights: Juvenile Courts: Pleadings. Because the primary 

consideration in determining whether to terminate parental rights is the 

best interests of the child, a juvenile court should have at its disposal 

the information necessary to make the determination regarding the 

minor child’s best interests regardless of whether the information is 

in reference to a time period before or after the filing of the termination petition.

Appeal from the Separate Juvenile Court of Douglas County: 

Amy N. Schuchman, Judge. Reversed and remanded for further proceedings.

Thomas C. Riley, Douglas County Public Defender, Reilly 

M. White, and Hilary Burrows, Senior Certified Law Student, 

for appellant.

Nathan Barnhill, Deputy Douglas County Attorney, and 

Traemon Anderson, Senior Certified Law Student, for appellee.

Pirtle, Chief Judge, and Riedmann and Welch, Judges.

Pirtle, Chief Judge.

INTRODUCTION

Amber M. appeals from an order of the separate juvenile 

court of Douglas County terminating her parental rights to 
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Cite as 30 Neb. App. 885

her four minor children, Destiny H., De’Tevious M., D’Yauna 

S., and Jasani S. Based on our de novo review of the record, 

we conclude the State failed to adduce clear and convincing 

evidence that termination of Amber’s parental rights was in 

the best interests of the children. We, therefore, reverse the 

order of the juvenile court terminating Amber’s parental rights 

with respect to all four children and remand the cause for further proceedings.

BACKGROUND

We are called to review the termination of Amber’s parental rights with respect to her four biological children, Destiny 

(born April 2005), De’Tevious (born February 2008), D’Yauna 

(born December 2013), and Jasani (born August 2016). Each of 

the children have different fathers, none of whom are at issue 

in this appeal and thus will be discussed only as necessary to 

address Amber’s claims.

The present case arose out of an incident on March 22, 

2019, in which Amber left the youngest child, Jasani, home 

alone for approximately 2 hours. According to an affidavit by 

one of the police officers involved, officers were in the process 

of booking Amber into a correctional facility for shoplifting, 

when Amber informed the officers that Jasani was home alone. 

Officers discovered Jasani alone, “standing in the living room 

with his urine soaked pants down at his ankles.” After Destiny 

and De’Tevious were located, all three children were placed in 

emergency protective custody and transported to a child advocacy center. There was no mention of D’Yauna in the affidavit, 

and she was not listed in the caption.

In the days following the incident, a child and family 

services specialist (CFSS) from PromiseShip conducted two 

initial assessments. The first assessment, conducted on the 

day of the incident, was a safety assessment pertaining to 

Destiny, De’Tevious, and Jasani only. After the safety assessment, the same CFSS conducted an initial risk assessment. 

Despite acknowledging that Destiny, De’Tevious, and Jasani 

were “the only children in the home,” the CFSS also included 
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IN RE INTEREST OF DESTINY H. ET AL.

Cite as 30 Neb. App. 885

information she learned with respect to D’Yauna. Because 

D’Yauna experienced a radically different progression in her 

custody with the Nebraska Department of Health and Human 

Services (DHHS) than did the other three children, we take this 

opportunity to discuss D’Yauna before returning to the chronology of events in this case.

In the risk assessment just mentioned, the CFSS reported that 

D’Yauna resided with her paternal aunt, Octavia S., and that 

“Octavia has also been the primary caregiver for [D’Yauna] 

since she was born.” The CFSS further reported as follows:

Amber says that she was going to sign over guardianship 

of [D’Yauna] a long time ago but then [D’Yauna’s] dad 

said that he was not going to so [Amber] did not. Amber 

stated that she was willing to sign over legal guardianship of [D’Yauna] to Octavia as long as [D’Yauna’s dad] 

was willing to do so as well. [The CFSS] was able to 

speak briefly with [him] over the phone. He did agree to 

sign over legal guardianship of [D’Yauna] to his sister 

Octavia . . . .

In early June 2019, Sarah Krohn, who was the DHHS case 

manager for this family throughout the life of the case, conducted a reunification assessment. Therein, Krohn reported 

that “[D’Yauna’s] permanency objective at this time is being 

changed to guardianship due to [Amber’s] agreeing to a guardianship and PromiseShip and the courts moving forward with 

this permanency objective.” Krohn further reported that Octavia 

“is able to meet and exceed all of [D’Yauna’s] basic needs 

including food, shelter, emotional, and permanency options . . . 

and she is willing to provide permanency for [D’Yauna] which 

has been agreed to by all parties.”

In the first court report, the stated permanency objective for 

D’Yauna was guardianship, and the court found as much in its 

June 6, 2019, order. D’Yauna’s stated permanency objective 

remained guardianship in the second, third, fourth, and fifth 

court reports. However, elsewhere in the fourth court report, 

Krohn wrote, apparently by mistake, that “Saint Francis 
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Cite as 30 Neb. App. 885

continues to recommend that [D’Yauna] maintain in the care 

and custody of [DHHS] with a permanency objective of reunification.” Consequently, in its January 24, 2020, order, the 

court identified a single permanency plan for all four children, 

finding that “with respect to the mother and the minor children, 

the permanency objective shall be reunification.”

In the fifth court report, Krohn reiterated verbatim the language above recommending a permanency objective of reunification. Accordingly, in its March 17 and June 23, 2020, orders, 

the court identified D’Yauna’s permanency objective as reunification. It was not until the sixth and final court report that the 

stated permanency objective for D’Yauna was actually changed 

from guardianship to reunification, but there was no discussion 

as to why that change was made.

With that, we return to the chronology of events pertaining to Destiny, De’Tevious, and Jasani. The risk assessment 

conducted by the PromiseShip CFSS in March 2019 listed five 

prior child protective services intakes related to this family, four 

of which were “unfounded.” The one “Court Substantiated” 

intake related to an incident in February 2013 in which Amber 

unexpectedly left Destiny and De’Tevious with her sister for 

approximately a week. Amber admitted that she was struggling 

with addiction to “PCP” at that time and that leaving the children with her sister was “her way of getting help for her drug 

use.” Amber reported that she “has not used PCP” since that 

time. Amber reported occasional marijuana and alcohol use but 

denied any current issues with addiction or substance abuse. 

The CFSS added that “Amber says that she knows that her 

family says that she is high or using again but it is just her 

prescriptions that she has now.”

As it relates to Amber’s mental health, she reported that she 

admitted herself into inpatient psychiatric care in April 2018 

following a suicide attempt. Amber reported that she was diagnosed with “major depression, PTSD, and bipolar” for which 

she was prescribed multiple psychotropic medications. She 

reported that she had been struggling with depression since 
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Destiny was born in 2005, but added that “everything really 

started to become harder” after she was “attacked” in 2017.

With respect to the children, the CFSS reported that each 

child “appeared to be happy and healthy,” dressed in “weather 

appropriate clothing that appeared to be clean, well-fitting, 

and in good repair,” and each “appeared to be clean and well 

groomed.” The CFSS also conducted a walkthrough of the 

family home, which “was clean and free of any clutter or 

trash,” and the CFSS ultimately reported “no concerns for the 

physical safety of the home.”

The CFSS then spoke to Tracy P., who is Amber’s mother 

and was the foster placement for Destiny, De’Tevious, and 

Jasani throughout this case. Tracy corroborated Amber’s report 

of drug use, stating that “Amber was smoking ‘wet’ a long time 

ago when she dropped Destiny and [De’Tevious] off with [her 

sister].” However, Tracy added that she “heard that [Amber] 

was smoking it again.”

As a result of the safety assessment, the CFSS concluded 

that the children were unsafe “as Amber was arrested and 

booked into jail and Jasani was found to be at home by himself.” As a result of the risk assessment, the CFSS concluded 

that the children were at high risk, noting that “Amber was 

very cooperative” but that there were “a lot of concerns for 

[Amber’s] mental health and possible drug use of wet that 

Amber is not reporting.”

On March 25, 2019, the State filed a juvenile petition alleging that all four children, including D’Yauna, “lack(s) proper 

parental care by reason of the fault or habits of [Amber],” 

under Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016). The State 

also filed a motion for immediate custody captioned “In the 

Interest of Juvenile(s) set forth in Exhibit ‘A’.” There was no 

mention of D’Yauna in exhibit A, which consisted entirely of 

the police officer’s affidavit mentioned above.

On the same day, the court ordered DHHS to take immediate temporary custody of Destiny, De’Tevious, and Jasani on 

the grounds provided in exhibit A. There was no discussion of 
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D’Yauna in the court’s order, and she was not listed in the caption. However, on March 27, 2019, the court entered an order 

appointing a guardian ad litem for all four children. Then, on 

March 28, the State filed a second motion for immediate protective custody with respect to D’Yauna alone. It is not clear 

from the record when the court made a ruling on this motion, 

but the court later found, in its order terminating Amber’s 

parental rights, that “D’Yauna was formally made a state ward 

and removed from [Amber’s] custody in April of 2019.” In 

any case, the record is clear that Destiny, De’Tevious, and 

Jasani were removed from Amber’s home and placed with their 

grandmother, Tracy, and that D’Yauna remained at all times in 

the care and custody of her paternal aunt, Octavia.

On April 3, 2019, Amber made her first appearance and 

participated in a prehearing conference. Amber entered, and 

the court accepted, a plea of denial to the State’s initial petition. The court found probable cause to support the State’s 

initial petition and ordered all four children to remain in 

temporary DHHS custody. The court also “invited” Amber to 

participate in a number of services and ordered that “the services for [Amber] shall be arranged and paid for by [DHHS] 

and/or PromiseShip unless [Amber] has insurance and is able 

to pay.”

While we do not have access to any of Amber’s treatment 

records or evaluations, we know from Krohn’s reporting that 

Amber underwent a psychiatric evaluation in early April 2019 

and was diagnosed with “major depressive disorder, recurrent, 

severe, with psychosis; rule out bipolar disorder; generalized anxiety disorder; PTSD; nicotine dependence; cannabis 

abuse; rule out alcohol abuse; and phencyclidine dependence.” 

Amber was recommended to continue taking the medications 

“Lexapro, Prazosin, and Seroquel” and to undergo a chemical 

dependency evaluation. Amber underwent a chemical dependency evaluation, which recommended she complete “Level 

III.5 residential treatment for chemical dependency with an 

emphasis on co-occurring mental health disorders.” Amber 
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Cite as 30 Neb. App. 885

successfully completed the recommended residential treatment at “Inroads to Recovery” from “April of 2019 to May 

17th, 2019.”

In a family strength and needs assessment conducted in 

early May 2019, Krohn wrote that Destiny and De’Tevious 

both reported a “good relationship” with Amber, and Krohn 

noted that De’Tevious “appears to really miss his mother” and 

“is bonded with his mother, as he has been asking this FPS on 

multiple occasions if and when he can see his mother.” The 

family assessment also contained the first mention of Amber’s 

losing access to her Medicaid health insurance, as Krohn 

reported that “Amber no longer has Medicaid due to the children being removed.” Krohn later confirmed in her trial testimony that Amber lost access to her medications “around May 

of 2019,” as “[s]he didn’t have insurance because her children 

were removed.”

As previously mentioned, Krohn conducted a reunification 

assessment in early June 2019. With respect to the ongoing 

risk to the children, Krohn noted the lack of progress, ongoing 

mental health concerns, and “possible substance abuse concerns” as the primary obstacles to reunification. Krohn added 

that “Amber continues to report that she is in a relationship 

with the father of her youngest child,” who was identified as 

Jonquez S., “despite admitting to multiple concerns of domestic violence.” However, the record contains conflicting evidence on this point.

In the prior safety assessment, the CFSS also reported a 

history of domestic abuse between Amber and Jonquez; however, Amber told the CFSS that “she left Jonquez about a year 

ago or more maybe.” Likewise, Destiny told the CFSS that 

“[Amber] has not been seeing anyone [and] that sometimes 

Jonquez still comes around but not very often.” De’Tevious 

also reported that Amber “was not seeing anyone that he 

knew about.” Tracy, on the other hand, reported to the CFSS 

that “as far as she knows Amber is still seeing Jonquez on a 

regular basis.” Tracy added that “Jonquez is very abusive and 
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controlling of Amber from what she hears but she does not 

know much because Amber does not talk to her.”

In stark contrast, Krohn wrote in the family assessment that 

“Amber reports that she is in a relationship with [Jonquez].” 

Krohn further observed that “[t]here are concerns from multiple 

parties that the relationship is unhealthy and that domestic violence has occurred and continues to occur in the relationship.” 

However, aside from Tracy, it is unclear who Krohn actually 

spoke to regarding the family assessment. Krohn noted that the 

information “was provided some by family and some by collateral information,” adding that “Amber is currently at InRoads 

to Recovery due to her mental health and this FPS was able to 

complete her needs based on collateral information.”

Moreover, Amber’s relationship with Jonquez was not the 

only inconsistency between the CFSS’ and Krohn’s reporting. 

With respect to her relationship with Tracy, Amber reported to 

the CFSS that “her mom never does anything for her but talk 

down to her.” Further, Amber reported that “she did not have 

a good childhood[,] that her mom would be physical [sic] abusive towards her a lot when she was angry[, and] that she was 

in foster care when she was younger because of her mom [sic] 

drug use.” Again, in stark contrast, Krohn wrote that “Amber 

reports that she has a strong support system in her mother for 

the majority of things, but does feel she can be tougher on her 

than other people.”

As it relates to Amber’s relationship with Tracy, Karen 

Sides, who was the visitation worker for this family throughout 

the life of this case, testified that Amber and Tracy had a “very 

volatile relationship.” Moreover, Krohn later reported that 

Amber “continues to struggle with building a relationship with 

[Tracy].” There was no further discussion, at trial or otherwise, 

of a continued relationship between Amber and Jonquez.

Krohn prepared six court reports in this case. Each court 

report contained a case plan, which listed the family’s goals 

and progress toward completing them. The case plan listed two 

goals for Amber and one goal for the children. First, Amber 
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“will address her mental health and coping skills.” Second, 

Amber “will be able to provide for her children’s emotional, 

physical, mental, and educational needs.” The children “will 

reside in a home in which their basic physical, emotional, 

medical, educational, and permanency needs are being met.” 

Krohn identified strengths related to these goals, noting that 

“Amber is willing to address her mental health[,] expresses 

a desire to parent her children[, and] is currently involved 

in services.”

On May 30, 2019, the State filed an amended petition 

alleging that all four children “is/are homeless or destitute, or 

without proper support through no fault of [Amber], to wit: A. 

Amber . . . has been diagnosed with severe mental illnesses 

[such that] she is unable to provide proper parental care, support 

and/or supervision.” On June 6, Amber appeared for an adjudication and disposition hearing on the State’s amended petition. 

Amber entered, and the court accepted, a no contest plea to 

the amended petition as above. The court thus adjudicated all 

four children to be within the meaning of § 43-247(3)(a) “by 

a preponderance of the evidence and through no fault of the 

parent.” (Emphasis in original.) The court ordered the children 

to remain in temporary DHHS custody but noted that “[Amber] 

has begun to make therapeutic progress by participating in preadjudication services.”

The court further ordered Amber to participate in a number of services, including individual therapy, supervised visitation, family therapy if recommended, medication management, family support services, drug testing, parent training, 

and domestic violence programming. The court again ordered 

that “services for [Amber] shall be arranged and paid for by 

[DHHS] and/or PromiseShip unless [Amber] has insurance 

and is able to pay.” The court also ordered the children to 

participate in individual therapy if recommended by an initial 

diagnostic interview.

In the second court report, prepared in July 2019, Krohn 

reported that “Amber . . . is currently recommended to 
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Cite as 30 Neb. App. 885

complete Intensive Outpatient Therapy,” adding that “Amber 

was recommended to continue attending In-Roads, however 

due to payment concerns this was not successful.” Krohn further reported that Amber was not participating in drug testing, 

and the record indicates that Amber never participated in drug 

testing throughout this case. Krohn also reported that Destiny 

and De’Tevious were both scheduled to begin individual therapy. Krohn later confirmed, in October 2019, that Destiny and 

De’Tevious had been attending individual therapy every other 

week since July.

The court, with a new judge presiding, convened for a continued disposition hearing on November 5, 2019, and it appears 

Amber was not present. On November 7, the court entered an 

order finding that it was “unable to enter informed findings 

regarding therapy for the minor children for the reason that 

it has no information with respect to therapeutic issues being 

addressed.” Accordingly, the court demanded that “[a]t the next 

scheduled hearing [DHHS] shall provide progress reports to the 

Court from the children’s therapist(s) and [Amber’s] therapist.” 

The court also ordered Amber to undergo an updated chemical 

dependency evaluation within 30 days.

In the fourth court report, prepared in January 2020, Krohn 

wrote that Amber “reported that she had completed an [updated 

chemical dependency] evaluation with Omaha Insomnia and 

Psychiatric Services.” However, Krohn was unable to obtain 

a copy of that evaluation, so Amber was referred to undergo 

another chemical dependency evaluation at Heartland Family 

Services, which she completed in January 2020. With respect 

to visitation, Amber reported to Krohn that she was struggling 

to consistently attend visits due to her mental health, although 

Krohn observed that “Amber has been making more of an 

effort to attend her visits as evidenced by the number of visits 

she is attending going up.”

The case plan in the fourth court report contained the only 

substantive progress report to date. With respect to the first 

goal that Amber address her mental health, Krohn reported 
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that Amber was not attending outpatient therapy because “she 

reports that she has not found an appropriate therapist.” Krohn 

added that “Amber is not on medication as she reports that 

she is not able to afford ongoing medications” and she “is 

continuing to struggle with her mental health.” With respect to 

the second goal that Amber provide for her children’s needs, 

Krohn reported that Amber “does not have proper housing, or 

employment to care for the children.”

With regard to Amber’s housing, the record demonstrates 

that Amber initially resided in a three-bedroom house she 

obtained through the federally subsidized “Section 8” housing 

program administered by the local housing authority. Sides 

testified that Amber was evicted from this home because she 

failed to report the children’s removal to the housing authority and then accumulated a $7,000 balance. The record is not 

entirely clear as to the timeline of these events, but Krohn 

testified that Amber was evicted in July 2020. Both Krohn 

and Sides testified that weekly visits primarily took place 

at Amber’s home until “COVID 19 hit.” Sides testified that 

after she was evicted, Amber secured a new apartment “on 

her own.”

With regard to Amber’s employment, Krohn testified that 

Amber was working as “a CNA in a nursing home” when the 

case began and that she worked briefly “in a pantry” sometime 

between August and September 2019. The record indicates 

that Amber was not gainfully employed at any point thereafter. 

Although, at the direction of the court, Amber applied for and 

obtained Supplemental Security Income benefits which provided Amber with approximately $900 per month beginning in 

July 2020.

With respect to the children’s goal that they reside in a 

home which meets their needs, Krohn included brief updates 

on Destiny and De’Tevious’ reported progress with therapy, 

but there remained no mention of the requested therapy progress reports from the children’s therapists. While a second 

progress update for the children was entered in August 2020, it 
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appears Krohn largely reiterated verbatim her comments from 

the December 2019 update.

On March 9, 2020, before a third presiding judge, Amber 

appeared for a review and permanency planning hearing. On 

March 17, the court ordered that “St. Francis shall: 1. Provide 

the Court with copies of [Destiny and De’Tevious’] psychological evaluation and therapy progress reports.” Following a 

subsequent hearing on June 23, the court again found that “no 

therapy report for the minor children was provided.” Despite 

Krohn’s later reporting that Destiny and De’Tevious both completed a “full psychological evaluation” in February 2020, the 

court also found that “the children’s psychological evaluations 

are not completed as of yet.” Accordingly, on June 23, the 

court again ordered DHHS to provide this evidence and to 

“[d]evelop and identify the permanency objective for the minor 

children taking into account input from the therapists and foster care providers.”

Three days later, the State moved to terminate Amber’s 

parental rights with respect to all four children. The motion 

alleged that D’Yauna came within the meaning of Neb. Rev. 

Stat. § 43-292(1), (2), (6), (7), and (9) (Reissue 2016) and 

that Destiny, De’Tevious, and Jasani came within the meaning of § 43-292(2), (6), (7), and (9). The motion did not 

identify any factual basis with respect to the allegations under 

§ 43-292(1), (2), (7), and (9). With respect to the allegations 

under § 43-292(6), the State alleged only that “[d]espite over 

a year of Juvenile Court involvement, [Amber] has failed to 

make any measurable sustained progress toward reunification 

with her children.” The State thus alleged that it was in the 

best interests of all four children that Amber’s parental rights 

be terminated.

In the sixth and final court report, prepared in August 2020, 

there remained no mention of the requested therapy progress 

reports or psychological evaluations. In lieu of this information, Krohn observed that Destiny “has not been addressing 

her emotions with the therapist however has been working on 
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these with [Tracy]” and De’Tevious “is working on addressing 

his anger and is learning coping skills per the therapist.” Krohn 

also reported that both Destiny and De’Tevious were recommended to participate in family therapy, but it is not clear if 

family therapy was ever pursued or even presented to Amber 

as an option. Attached to the final court report was a transition 

plan for Destiny in which Krohn reported that “Destiny would 

like to reunify with her mother, and all services are being provided in compliance with this goal.”

A trial on the State’s motion took place over the course of 

3 days from October 2020 to February 2021. The State called 

three witnesses: Tracy testified on October 6, 2020; Sides testified on January 26, 2021; and Krohn testified on February 3. 

Tracy primarily testified to her observations on four occasions 

from April to July 2020. First, Tracy testified about an incident in April 2020, where Amber came to Tracy’s house with 

a butcher knife around “one or two o’clock in the morning.” 

According to Tracy, Amber was talking about how a man stole 

her “juice.” Tracy testified that Amber had previously indicated 

to her that “juice” was “the stuff — that drug that she smokes 

called wet.”

Tracy testified further about Amber’s behavior on three 

occasions in June and July 2020. Tracy testified that on those 

occasions, Amber’s “behavior, her movement, her language 

was off.” While the record clearly indicates that Tracy was 

trying to insinuate Amber was “high” on these occasions, the 

testimony properly adduced on the record merely reflects that 

Amber was “moving and speaking in a way that Amber does” 

and that she “didn’t articulate her words correctly.”

With regard to a bond between Amber and the children, 

Tracy testified, “I’m not going to say that they have a bond 

with her anymore.” However, Tracy added that there “[a]bsolutely” was a bond at the beginning of the case. According to 

Tracy, the bond “just started to fade because their visits were 

not consistent.” In contrast, Sides testified to her belief that 

Amber was bonded with Destiny, De’Tevious, and Jasani. 
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When asked about the basis for her belief, Sides stated, “you 

know, her — just — a rock and a hard place. . . . I think she 

loves them. I think she’s bonded with them.”

With respect to visitation, Sides testified that Amber’s participation was often irregular, noting that when she did show 

up for visits, she was often late and difficult to communicate 

with. Prior to “COVID,” which we presume to mean from 

approximately May 2019 to March 2020, Amber “was offered” 

47 visits and 24 of them “were cancelled.” However, Sides 

clarified that the 23 visits which did occur “pretty much happened on a routine basis once a week.” Krohn also testified 

that Amber “maintained consistency” with weekly visits until 

the end of 2019.

With regard to “after COVID,” Sides testified that there 

were no visits in March 2020 and two conference call visits 

in April 2020. Sides testified that “face-to-face” visitation 

resumed in May 2020, and we know from the final court 

report that Amber participated in six visits from May to June. 

However, Sides then provided troubling testimony with regard 

to visitation from June to October 2020.

First, Sides indicated that Tracy canceled three of five scheduled visits in June. Sides then testified that Tracy canceled “at 

least three” visits in July due to her “not being willing to have 

visits in her yard.” Sides continued, “actually it got worse,” 

recalling that August 2020 was “when [Tracy] got worse about 

saying that [Amber] needed . . . a negative COVID test” to 

participate in visitation at her house. When asked about possible alternative locations for visitation, Sides stated, “[Tracy] 

wanted to be around the visit to see it.” When asked if it was 

a requirement that Tracy be present for visits, Sides responded 

as follows:

Absolutely not. And like I told you . . . I kept calling and 

e-mailing the case manager to see if [Tracy] had that control. And when I finally heard back, she said no, she has 

to allow them to do visits. And that’s when we started that 

at Heartland Family Service [sic].
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Sides stated that no other locations were offered until they 

got approval from Krohn to have visits at Heartland Family 

Services, “which didn’t come for a very long time.”

Sides was asked to “explain what time frame you were 

having difficulty getting in touch” with Krohn, to which she 

responded, “[a]ll the time,” from “almost the very beginning 

of this case.” Specifically, as it relates to Tracy’s interference 

with visitation, Sides stated that communication difficulties 

continued through the summer months and into September 

and October 2020 as well. Perhaps not coincidentally, Krohn 

testified that she “couldn’t contact” Amber from approximately 

“July through November [2020]”—roughly the same period of 

time during which Sides was struggling to contact Krohn.

During this roughly 4-month period, Sides estimated that 

Tracy canceled “one-fourth” of the scheduled visits. Of the 

remaining scheduled visits, it is not clear how many occurred 

or how they went. Sides confirmed that visits resumed at 

Heartland Family Services in October 2020. Sides also testified to at least one visit with all three children in January 

2021, which was followed by a few weeks of no visits. 

Moreover, Krohn testified to at least one visit in December 

2020. However, aside from this limited testimony, the record 

is clearly lacking with regard to visitation or other progress 

that may or may not have occurred between August 2020 and 

February 2021.

When asked about the State’s amended petition in this case, 

Krohn testified that she understood what a “no-fault petition” 

was but did not recall such a petition in this case. Nevertheless, 

Krohn was generally aware of Amber’s mental health diagnoses and prescribed medications. Krohn testified that although 

she could not recall exactly, she believed Amber regained 

access to her medications in “mid 2020” when “she started 

receiving disability payments.” We note that Amber, in her 

brief on appeal, also asserts that she “lost her insurance and 

could not afford her medications again until July of 2020, when 

her disability payments began.” Brief for appellant at 23.
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Cite as 30 Neb. App. 885

However, Krohn and Sides both testified that Amber would 

have relied on Medicaid, not disability payments, to pay for 

her medications. Sides noted that Amber “only gets nine something” from Social Security, such that with her apartment 

and other expenses, there would be “very little money left” 

for medications. Moreover, Sides testified that she did not 

believe Amber had health insurance as of the January 26, 2021, 

hearing. Sides added that Amber had recently reapplied for 

Medicaid but that she was not aware whether she had been 

reapproved. Sides further confirmed that if Amber had been 

reapproved for Medicaid, it “would [have been] a relatively 

recent” development.

Krohn suggested that “Lutheran Family Services was able to 

provide [Amber] with [a] month or two months’ worth of medications,” but she added that “they couldn’t continue on due to 

the fact that we couldn’t afford it.” Additionally, Krohn suggested Amber was at some point receiving medications from 

“Omaha Insomnia.” However, there was no indication as to the 

time period during which Amber purportedly received medication from either of these facilities, and there is nothing in the 

record to confirm Krohn’s reports. Even if we assume Amber 

regained access to her medications in July 2020, the record 

indicates this would have left her without medication for at 

least 14 months. At trial, and now on appeal, Amber’s counsel 

seemed to take for granted that Amber had been without her 

medication for “nine months” of this case. Brief for appellant 

at 16. However, we cannot say for certain that it was not much 

longer than that.

With regard to Amber’s progress on court-ordered services, Krohn testified that Amber “didn’t show any desire 

to participate in the programs that we needed to see her 

do.” However, Krohn also testified that Amber did complete many court-ordered services, including over a month 

of inpatient treatment, family support services, at least two 

chemical dependency evaluations, a psychiatric evaluation, a 

psychological evaluation, hands-on parent training, domestic 
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Cite as 30 Neb. App. 885

violence programming, and a parenting class. Krohn identified only three court orders that, in her opinion, Amber did 

not successfully complete—outpatient treatment, drug testing, 

and visitation.

Krohn testified that she only actually witnessed Amber interact with the children on “a couple of occasions” and agreed 

that “when it comes to the regular visitation and what goes on,” 

that information came from Sides’ reports. According to Krohn, 

per those reports, visitations were not always “appropriate” and 

there were “a lot of visits in which [Amber] would just allow 

the children to watch TV the entire time and not engage with 

them.” However, Sides testified that Amber “always engaged 

with her children during the visits.” Sides added that she 

never had to shorten a visit and agreed that Amber was always 

“appropriate” with the children.

After trial, on February 23, 2021, the court entered an 

order finding that all four children came within the meaning of § 43-292(2), (6), and (7) and that it was in the children’s best interests that Amber’s parental rights be terminated. 

Accordingly, the court terminated Amber’s parental rights with 

respect to all four children. This appeal followed.

ASSIGNMENTS OF ERROR

Amber assigns that the juvenile court erred in finding clear 

and convincing evidence that Destiny, De’Tevious, Jasani, 

and D’Yauna came within the meaning of § 43-292(2), (6), 

and (7), and in finding clear and convincing evidence that 

termination of Amber’s parental rights was in the children’s 

best interest.

STANDARD OF REVIEW

[1,2] An appellate court reviews juvenile cases de novo on 

the record and reaches its conclusions independently of the 

findings made by the juvenile court below. In re Interest of 

Mateo L. et al., 309 Neb. 565, 961 N.W.2d 516 (2021). It is 

the State’s burden to show by clear and convincing evidence 
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both that one of the statutory bases enumerated in § 43-292 

exists and that termination is in the child’s best interests. Id.

ANALYSIS

[3] Under Nebraska law, terminating parental rights requires 

both clear and convincing evidence that one of the statutory 

grounds enumerated in § 43-292 exists and clear and convincing evidence that termination is in the best interests of the 

children. See In re Interest of Donald B. & Devin B., 304 Neb. 

239, 933 N.W.2d 864 (2019).

Statutory Grounds for Termination.

[4,5] The State alleged a number of statutory grounds for 

termination, including § 43-292(7), which allows for termination when “[t]he juvenile has been in an out-of-home placement for fifteen or more months of the most recent twenty-two 

months.” Section 43-292(7) operates mechanically and does 

not require the State to adduce evidence of any specific fault 

on the part of the parent. See In re Interest of Mateo L. et al., 

supra. Any one of the bases for termination of parental rights 

codified by § 43-292 can serve as a basis for termination of 

parental rights when coupled with evidence that termination is 

in the best interests of the children. In re Interest of Leyton C. 

& Landyn C., 307 Neb. 529, 949 N.W.2d 773 (2020).

In this case, the juvenile court found that all four children 

came within the meaning of § 43-292(7). Based on our de 

novo review of the record, we also find clear and convincing 

evidence that all four children come within the meaning of 

§ 43-292(7).

With respect to D’Yauna, the record shows that she has 

been living with Octavia almost exclusively since her birth 

in 2016 and that she has “not seen [Amber] consistently for 

the majority of her life.” Moreover, D’Yauna was “officially” 

removed from Amber’s care in April 2019. Thus, it is clear that 

D’Yauna was in an out-of-home placement for at least 15 of the 

most recent 22 months. With respect to Destiny, De’Tevious, 

and Jasani, the record shows that they were removed from 
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Cite as 30 Neb. App. 885

Amber’s home in March 2019 and were never returned. Thus, 

it is also clear that they had been in an out-of-home placement 

for at least 15 of the most recent 22 months.

Having determined the State proved at least one statutory 

ground enumerated in § 43-292, we need not consider the sufficiency of the evidence concerning the other statutory grounds 

for termination identified by the juvenile court. See In re 

Interest of Mateo L. et al., supra. Accordingly, we conclude the 

juvenile court did not err in finding that all four children came 

within the meaning of § 43-292(7), and Amber’s first assignment of error is without merit.

Best Interests.

[6,7] We turn to the second prong of the termination analysis 

and examine whether the record contains clear and convincing 

evidence that termination of Amber’s parental rights was in 

the best interests of the children. A child’s best interests are 

presumed to be served by having a relationship with his or her 

parent. In re Interest of Alec S., 294 Neb. 784, 884 N.W.2d 701 

(2016). 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 has 

caused, or probably will result in, detriment to a child’s wellbeing. Id.

[8-11] A termination of parental rights is a final and complete severance of the child from the parent and removes the 

entire bundle of parental rights. In re Interest of Justin H. et 

al., 18 Neb. App. 718, 791 N.W.2d 765 (2010). Therefore, with 

such severe and final consequences, parental rights should be 

terminated only in the absence of any reasonable alternative 

and as the last resort. Id. The law does not require perfection of a parent. Id. Instead, we should look for the parent’s 

continued improvement in parenting skills and a beneficial 

relationship between parent and child. Id. Whereas statutory 
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Cite as 30 Neb. App. 885

grounds are based on a parent’s past conduct, the best interests inquiry focuses on the future well-being of the child. In 

re Interest of Mateo L. et al., 309 Neb. 565, 961 N.W.2d 516 

(2021). The best interests and parental unfitness analyses 

require separate, fact-intensive inquiries, but each examines 

essentially the same underlying facts. Id.

Based on our de novo review of the record, we find that 

the State failed to adduce clear and convincing evidence that 

termination of Amber’s parental rights was in the children’s 

best interests. First, we acknowledge that the record contains 

substantial evidence tending to demonstrate that Amber was 

unfit to parent her children at the time of trial. Amber has a 

history of addiction and suffers from severe mental illnesses, 

and she failed to participate consistently in court-ordered services intended to address the same. After more than a year of 

juvenile court involvement, Amber failed to progress beyond 

weekly supervised visitation with her children, and Amber’s 

participation in visitation was troublingly irregular.

We also acknowledge that Amber’s “possible substance 

abuse” remained a persistent concern throughout this case. 

Indeed, it is concerning and suspicious that Amber wholly 

failed to participate in court-ordered drug testing. However, 

there is scant evidence in the record demonstrating the degree 

to which Amber’s “issues” with substance abuse were or were 

not resolved. This is not to say that such evidence does not 

exist, as Amber participated in a psychiatric evaluation, a 

psychological evaluation, at least two chemical dependency 

evaluations, over a month of residential inpatient treatment, 

and, to a lesser extent, outpatient therapy with a number of 

different providers. However, none of this evidence appears 

in the record. Moreover, there was no mention of substance 

abuse concerns in either of the State’s juvenile petitions or 

in its motion to terminate parental rights. Rather, Tracy’s 

largely speculative concerns, as amplified by Krohn’s reporting, appear to be the primary foundation for the State’s substance abuse concerns.
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Cite as 30 Neb. App. 885

From our review of the record, Amber’s ongoing struggle 

with mental illness remained at all times the primary concern 

for this family, and the record demonstrates that Amber’s 

opportunities to make progress on her mental health were 

severely limited. At the outset of this case, Amber was recommended to continue taking multiple prescription medications 

intended to address her mental illness. Furthermore, Amber 

was at all times ordered to participate in medication management. Yet, for much of this case, and through no fault of 

Amber’s, it appears there were no medications to manage. 

Rather, Amber went without her prescribed medications for 

a significant, albeit uncertain, portion of this case. Despite 

her severe mental illness being the sole basis for the State’s 

amended petition, there appears to have been very little done to 

provide Amber with a reasonable opportunity to achieve stability in that regard.

Nevertheless, Amber managed to make substantial progress 

through at least the first half of this case. She consistently 

participated in weekly visits, many of which occurred in her 

home. Amber also fully participated in a plethora of courtordered services. Notably, Amber successfully completed over 

a month of inpatient treatment. Thereafter, Amber was recommended to continue outpatient treatment at the same facility, 

but was precluded from doing so due to “payment concerns.” 

Moreover, Krohn suggested that “Lutheran Family Services 

was able to provide [Amber] with [a] month or two months’ 

worth of medications,” but that service was apparently discontinued because DHHS “couldn’t afford it.” It is difficult to reconcile the court’s orders that DHHS pay for Amber’s services 

with the apparent realities of this case.

While Amber’s progress certainly stalled during the latter 

half of this case, the record reveals that her opportunities for 

continued progress were further limited by substantial interference with visitation from June to October 2020, which 

was aggravated by what was at best inattention from the 

DHHS case manager. Moreover, the confusion regarding 
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Cite as 30 Neb. App. 885

D’Yauna’s permanency objective, the fact that three different judges presided over this case, and the complete absence 

of relevant evidence from Amber’s mental health providers 

appears to have adversely affected the court’s analysis of 

Amber’s parental fitness.

[12] So, even though the State may have met its burden 

of proving at least one statutory ground for termination as 

set forth in § 43-292(7), we would still need to examine the 

record for clear and convincing evidence that terminating 

Amber’s parental rights was in the children’s best interests. 

Unfortunately, the record in this case is severely lacking with 

regard to information necessary to assess the best interests of 

the children. Because the primary consideration in determining 

whether to terminate parental rights is the best interests of the 

child, a juvenile court should have at its disposal the information necessary to make the determination regarding the minor 

child’s best interests regardless of whether the information is 

in reference to a time period before or after the filing of the 

termination petition. In re Interest of Aaron D., 269 Neb. 249, 

691 N.W.2d 164 (2005).

In In re Interest of Aaron D., the Nebraska Supreme Court 

noted that “[t]he State did not present testimony from, or even 

reports or records authored by, any of [the child’s] therapists,” 

save one therapist who largely testified in favor of keeping the 

parental relationship intact. 269 Neb. at 263, 691 N.W.2d at 

174. Further the court noted that “[a]bsent a few [references] 

to events occurring after the filing of the State’s termination 

petition, the record is devoid of evidence showing what was 

happening in [the child’s] life between the filing of the petition 

in October 2003 and trial in February 2004.” Id.

Furthermore, the court in In re Interest of Aaron D. observed 

that “the State used [the case manager] as a proxy for all of 

the other witnesses whose expertise and testimony would have 

been helpful, and perhaps essential, in determining what was 

in [the child’s] best interests.” 269 Neb. at 261, 691 N.W.2d 

at 174. While the case manager’s testimony “was based to 
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Cite as 30 Neb. App. 885

some extent on her own observations,” the court also observed 

the testimony was “in large measure” based on the case manager’s “review of the records and reports generated by the 

family support workers, therapists, foster parents, and others 

who directly observed the parties.” Id. at 261-62, 691 N.W.2d 

at 174. Thus, the court found that “[i]t is very difficult, with 

the record presented in this case, to give substantial weight to 

some of the key allegations made by [the case manager].” Id.

at 262, 691 N.W.2d at 174.

We find that the record in this case bears a concerning resemblance to that described by the Supreme Court in In re Interest 

of Aaron D., supra. With regard to Destiny, De’Tevious, and 

Jasani, it is true that the State adduced testimony from their 

foster parent and visitation worker; however, such testimony 

centered on the witnesses’ recollections of Amber’s past behavior rather than the future well-being of the children. With 

regard to D’Yauna, the record is largely devoid of relevant 

evidence aside from initial reports that everyone involved 

had agreed to permanency through guardianship with Octavia. 

Moreover, the mysterious evolution of D’Yauna’s permanency 

objective throughout this case is concerning to say the least. 

Altogether, we conclude the record in this case is unacceptably 

inadequate. Like in In re Interest of Aaron D., the State appears 

to have focused almost exclusively on Amber’s shortcomings, 

neglecting to adduce much of the evidence germane to the best 

interests of the children.

Based on our de novo review of the record, we find the 

State failed to adduce clear and convincing evidence that terminating Amber’s parental rights was in the best interests of 

the children. Accordingly, we reverse the juvenile court’s termination of Amber’s parental rights and remand the cause for 

further proceedings.

CONCLUSION

We conclude the court did not err in finding clear and 

convincing evidence of a statutory basis for termination of 
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parental rights under § 43-292(7). However, we conclude the 

State failed to adduce clear and convincing evidence that terminating Amber’s parental rights was in the best interests of 

the children. Accordingly, we reverse the order of the juvenile 

court terminating Amber’s parental rights with respect to all 

four children and remand the cause for further proceedings.

Reversed and remanded for 

further proceedings.