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Nebraska Court of Appeals Advance Sheets

32 Nebraska Appellate Reports

IN RE INTEREST OF CAMERON L. & DAVID L.

Cite as 32 Neb. App. 578

In re Interest of Cameron L. and David L., 

children under 18 years of age.

State of Nebraska, appellee, 

v. Clarissa L., appellant.

___ N.W.2d ___

Filed January 23, 2024. No. A-23-377.

1. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases, including those under the Nebraska Indian Child Welfare Act, 

de novo on the record and reaches its conclusions independently of the 

juvenile court’s findings in a termination of parental rights case.

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. Indian Child Welfare Act: Parental Rights: Proof: Expert Witnesses.

The Nebraska Indian Child Welfare Act adds two additional elements 

the State must prove before terminating parental rights in cases involving Indian children. First, the State must prove by clear and convincing 

evidence that active efforts have been made to prevent the breakup 

of the Indian family and that these efforts have proved unsuccessful. 

Second, the State must prove by evidence beyond a reasonable doubt, 

including testimony of qualified 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.

4. Trial: Evidence: Appeal and Error. To preserve a claimed error in 

admission of evidence, a litigant must make a timely objection that 

specifies the ground of the objection to the offered evidence.

5. Trial: Expert Witnesses: Appeal and Error. A trial court is allowed 

discretion in determining whether a witness is qualified to testify as an 

expert, and unless the court’s finding is clearly erroneous, such a determination will not be disturbed on appeal.

Nebraska Supreme Court Online Library

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

01/30/2024 09:06 AM CST
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IN RE INTEREST OF CAMERON L. & DAVID L.

Cite as 32 Neb. App. 578

6. Parental Rights: Proof. Neb. Rev. Stat. § 43-292(7) (Reissue 2016) 

operates mechanically and, unlike the other subsections of the statute, 

does not require the State to adduce evidence of any specific fault on the 

part of a parent.

7. Parental Rights. In a case of termination of parental rights based on 

Neb. Rev. Stat. § 43-292(7) (Reissue 2016), the protection afforded the 

rights of the parent comes in the best interests step of the analysis.

8. Parental Rights: Evidence: Appeal and Error. If an appellate court 

determines that the lower court correctly found that termination of 

parental rights is appropriate under one of the statutory grounds set forth 

in Neb. Rev. Stat. § 43-292 (Reissue 2016), the appellate court need not 

further address the sufficiency of the evidence to support termination 

under any other statutory ground.

9. Parental Rights: Proof. In addition to proving a statutory ground, the 

State must show that termination of parental rights is in the best interests 

of the children.

10. Constitutional Law: Parental Rights: Proof. A parent’s right to raise 

his or her child is constitutionally protected; so before a court may terminate parental rights, the State must show that the parent is unfit.

11. Parental Rights: Presumptions: Proof. There is a rebuttable presumption that the best interests of a child are served by having a relationship 

with his or her parent. Based on the idea that fit parents act in the best 

interests of their children, this presumption is overcome only when the 

State has proved that the parent is unfit.

12. Parental Rights. The best interests analysis and the parental fitness 

analysis are fact-intensive inquiries. And while both are separate inquiries, each examines essentially the same underlying facts as the other.

13. Parental Rights: Parent and Child. In proceedings to terminate parental rights, the law does not require perfection of a parent; instead, courts 

should look for the parent’s continued improvement in parenting skills 

and a beneficial relationship between parent and child.

14. Parental Rights: Appeal and Error. Where termination of parental 

rights is based on Neb. Rev. Stat. § 43-292(7) (Reissue 2016), appellate 

courts must be particularly diligent in their de novo review of whether 

termination of parental rights is in fact in the child’s best interests.

15. Parental Rights. Where a parent is unable or unwilling to rehabilitate 

himself or herself within a reasonable time, the best interests of the child 

require termination of the parental rights.

16. ____. Children cannot, and should not, be suspended in foster care or be 

made to await uncertain parental maturity.
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Nebraska Court of Appeals Advance Sheets

32 Nebraska Appellate Reports

IN RE INTEREST OF CAMERON L. & DAVID L.

Cite as 32 Neb. App. 578

Appeal from the Separate Juvenile Court of Lancaster 

County: Shellie D. Sabata, Judge. Affirmed.

Jonathan Seagrass, Jennifer Gaughan, Abby Kuntz, Patrick 

Carraher, and Mark Bestul, of Legal Aid of Nebraska, for 

appellant.

Tara A. Parpart, Deputy Lancaster County Attorney, for 

appellee.

Joy Kathurima and Rose Godinez for amicus curiae ACLU 

of Nebraska Foundation.

Pirtle, Chief Judge, and Moore and Arterburn, Judges.

Moore, Judge.

I. INTRODUCTION

Clarissa L. appeals from an order of the separate juvenile 

court of Lancaster County, terminating her parental rights to 

two of her children. Clarissa assigns that the State failed to 

prove beyond a reasonable doubt, as required by the Indian 

Child Welfare Act (ICWA) and the Nebraska Indian Child 

Welfare Act (NICWA), through qualified expert witness testimony, that the continued custody of the children by Clarissa 

was likely to result in serious emotional or physical damage 

to them. Clarissa also assigns that the termination of her 

parental rights was not in the children’s best interests. Upon 

our de novo review of the record, we affirm the juvenile 

court’s order.

II. STATEMENT OF FACTS

1. Procedural Background

Clarissa is the biological mother of David L., born in 

December 2014, and Cameron L., born July 2016. Clarissa 

is also the mother of Qlani L., born in September 2005, 

and Dazianna L., born in October 2007. Though Qlani and 

Dazianna were removed from Clarissa’s care along with 

David and Cameron and named in the petition, the motion 
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Cite as 32 Neb. App. 578

for termination of Clarissa’s parental rights and subsequent 

order relate only to David and Cameron. All four children 

share the same biological father. As discussed further below, 

the father’s parental rights to David and Cameron were terminated during these same proceedings, and we discuss him 

only as necessary to the resolution of the current appeal 

by Clarissa.

Qlani, Dazianna, David, and Cameron were removed from 

Clarissa’s care by law enforcement on February 14, 2020, 

after Clarissa was found intoxicated on a city bus and was 

placed into a “detox” facility. There were additional reports 

that Clarissa had hit either David or Cameron and frequently 

left them unsupervised at a family homeless shelter. A petition 

was filed on February 18 to adjudicate all four children pursuant to Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016), based 

on Clarissa’s subjecting the children to excessive physical 

discipline and becoming so intoxicated that she was unable 

or unwilling to provide adequate care to the children, placing 

them at risk of harm. That same day, the juvenile court entered 

an ex parte order for temporary emergency custody, placing 

the four children in the care of the Nebraska Department of 

Health and Human Services (the Department).

An order entered on February 19, 2020, reflects that at 

a hearing held that day, the juvenile court inquired as to 

whether Indian children were involved in the proceedings and 

directed the State and the Department to give notice to the 

appropriate identified tribe pursuant to NICWA. The order 

lists the Oglala Sioux Tribe (the Tribe) as the tribe on record. 

Also at this hearing, Clarissa was appointed a guardian ad 

litem, though the reason for the appointment is unclear from 

our record.

On March 2, 2020, the State filed an “ICWA Notice” 

addressed to the ICWA administrator of the Tribe; the 

Aberdeen, South Dakota, regional director of the Bureau of 

Indian Affairs; Clarissa; and the father. The notice stated 

that proceedings regarding the four children had begun in 
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Cite as 32 Neb. App. 578

the juvenile court and that it was believed both David and 

Cameron were eligible for enrollment in the Tribe. Qlani and 

Dazianna were already enrolled members. Both Clarissa and 

the father were listed in the notice as enrolled members of the 

Tribe. The notice further indicated that a temporary custody 

hearing was scheduled for March 25. The State subsequently 

filed affidavits evidencing that the notices had been mailed.

The adjudication hearing scheduled for March 2020 was 

continued to April 29, due to the COVID-19 pandemic. On 

March 27, the State filed another “ICWA Notice” addressed 

to the same individuals, indicating the date of the continued 

temporary custody hearing, and the State subsequently filed 

affidavits of notice evidencing that the notices had been 

mailed. The address and individual recipient listed by the 

State for the Tribe in this second ICWA notice is different 

than that included in the first.

An order entered on May 8, 2020, indicated that a temporary custody and adjudication hearing was held on April 

29. A bill of exceptions from this hearing does not appear in 

our record on appeal. A representative of the Tribe appeared 

telephonically at the hearing, and the juvenile court received 

a “Certificate of Indian Blood” for both Qlani and Dazianna. 

Clarissa entered a denial of the allegations contained in 

the petition. The representative requested leave on behalf of 

the Tribe to intervene in these proceedings as to Qlani and 

Dazianna, which the court granted. The representative then 

advised the court that the Tribe did not object to the temporary custody hearing proceedings and did not object to Shirley 

Bad Wound providing qualified expert witness testimony, and 

Bad Wound made statements to the court. The hearing was 

continued to May 6.

In its May 8, 2020, order, the juvenile court found that 

active efforts were being made to prevent continued removal 

of Qlani, Dazianna, David, and Cameron from the parental 

home, and to provide remedial services and rehabilitative 

programs designed to prevent the breakup of the Indian 
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Cite as 32 Neb. App. 578

family. Specifically, the court identified these efforts to 

include an initial diagnostic interview, a substance use evaluation, substance abuse treatment, drug and alcohol testing, 

“an EDN assessment, CPP assessments, trauma assessments, 

and a Smart Talk phone.” The court also found by clear and 

convincing evidence, including the testimony of a qualified 

expert witness, that returning legal and physical custody of 

the four children to a parent would be contrary to the health, 

safety, and welfare of the juveniles and likely result in “serious physical or emotional harm” to the children. The court 

ordered the four children to remain in the temporary legal and 

physical custody of the Department. The court further ordered 

that the Department should investigate ICWA priority placements in consultation with the Tribe.

A contested adjudication trial was held on June 22, 2020, 

and an order was entered that same day. A bill of exceptions 

from this hearing does not appear in our record on appeal. 

The juvenile court found that the allegations of the petition 

regarding Clarissa were true by a preponderance of evidence. 

The court ordered that Clarissa cooperate with a co-occurring 

evaluation, that she not possess or consume alcohol or controlled substances and submit to random drug and alcohol 

testing, and that the Department provide Clarissa with any 

treatment and services recommended by her evaluations and 

continue to investigate ICWA priority placements for the four 

children in consultation with the Tribe.

The juvenile court entered a dispositional order for Clarissa 

on August 8, 2020, adopting the case plan presented by 

the Department as modified. This specific case plan is not 

included in our record. The court ordered that Clarissa participate in co-occurring residential treatment to address her 

drug use and mental health needs, submit to random drug and 

alcohol testing, not possess or consume alcohol or controlled 

substances, maintain a legal means of support and a safe and 

stable home for the children, and participate in supervised 
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Cite as 32 Neb. App. 578

parenting time with the children as arranged and approved by 

the Department.

On October 21, 2020, the Department filed a motion to 

suspend weekly visitation between Clarissa and the four children. In an attached affidavit, the family’s caseworker at the 

time described Clarissa’s inappropriate behavior during visitation, including using profane language, expressing delusional 

thinking, disparaging the children’s father, and coaching the 

children to report abuse from their foster parent. Clarissa was 

not able to be redirected. Additionally, she had threatened the 

family support worker and was arrested after trespassing at 

the foster parent’s home. The children’s therapist at the time 

recommended to the caseworker a cessation of Clarissa’s visits until Clarissa addressed her mental health and substance 

use issues. An order entered by the juvenile court the same 

day suspended Clarissa’s visitation until further order by 

the court.

Several review hearings were held during the case, occurring 

on October 5, 2020; January 5, February 26, May 3, November 

2, and December 13, 2021; and January 26, February 9, May 

17, August 2, and November 1, 2022. At the October 2020 

review hearing, the juvenile court modified the dispositional 

plan to order that the Department arrange sibling visitation, 

because the four children had not been placed in the same 

foster home. David and Cameron have been placed in the 

same foster homes throughout the entirety of the case. At 

the January 2021 review hearing, the juvenile court again 

modified the dispositional plan to order that Clarissa have 

only therapeutic contact with the children and complete a psychological evaluation, with a substance use component, and 

a parenting assessment. The rehabilitative case plan goals for 

Clarissa have been consistent throughout the case, including 

that she abstain from using alcohol and controlled substances 

and participate in short-term residential treatment.

At the February 2021 review hearing, the juvenile court 

found that a primary permanency plan for all four children 
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Cite as 32 Neb. App. 578

of guardianship, with a concurrent plan of reunification with 

a parent, was appropriate. At the May 2021 review hearing, 

the court found an exception to the statutory requirement that 

the State file a motion for the termination of parental rights at 

that point in the proceedings, as doing so would not be in the 

best interests of the children given the primary permanency 

plan of guardianship. In the order reflecting the February 2022 

review hearing, the court listed the primary permanency plan 

as “guardianship/adoption,” with a concurrent plan of reunification, but in orders reflecting subsequent review hearings, the 

primary permanency plan includes only guardianship.

On January 18, 2023, the State filed a supplemental petition, including an allegation against the children’s father, and 

a motion for termination of Clarissa’s and the father’s rights 

to David and Cameron, alleging statutory grounds to terminate Clarissa’s rights existed pursuant to Neb. Rev. Stat. 

§ 43-292(1), (2), (6), (7), and (9) (Reissue 2016) and to terminate the father’s rights existed pursuant to § 43-292(1), (2), 

(7), and (9). The motion alleged that termination of the parents’ 

rights was in the best interests of the children.

On February 2, 2023, the State sent an ICWA notice to 

the Tribe, the Aberdeen regional director of the Bureau of 

Indian Affairs, Clarissa, and the father. The notice attached the 

supplemental petition and motion for termination of parental 

rights, detailed the date of the termination trial, and stated 

that David and Cameron may be eligible for membership in 

the Tribe. The State filed an affidavit and notice on February 

7, evidencing that the ICWA notice had been mailed to both 

the Tribe and the Aberdeen regional director. In later affidavits, the State attached certified mail receipts showing that 

the ICWA notice had been received by the Aberdeen regional 

director on February 6 and the Tribe on February 9.

On March 3, 2023, Clarissa filed a notice of tribal eligibility 

and attached a letter from the Tribe’s ICWA technician stating 

that both David and Cameron were eligible for enrollment in 

the Tribe.
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IN RE INTEREST OF CAMERON L. & DAVID L.

Cite as 32 Neb. App. 578

An order entered on March 10, 2023, memorialized a 

hearing held earlier that day. A bill of exceptions from this 

hearing is not included in our record on appeal. At the hearing, the juvenile court received the tribal eligibility letter 

into evidence. Clarissa requested that the court find David 

and Cameron to be “Indian children as defined by [ICWA].” 

Based on the parties’ stipulation that the biological parents are 

enrolled members of the Tribe and the tribal eligibility letter, 

the court found that “the [ICWA] provisions apply to Cameron 

and David from this date forward.” The court further noted 

that because it was previously determined that ICWA applied 

to Qlani and Dazianna, the court had made findings regarding 

active efforts throughout the duration of the case. The Tribe 

did not intervene on behalf of David and Cameron as it had 

for their older siblings.

2. Trial

A termination trial was held on April 13, 2023. No representative from the Tribe appeared at trial. The following evidence 

regarding Clarissa, David, and Cameron was adduced.

(a) Clarissa’s Case Progress

Connie Nemec, the family’s caseworker since May 2021, 

testified to Clarissa’s progress with the dispositional plan.

Clarissa had several contacts with law enforcement throughout the juvenile case. The Department’s case plans demonstrate that from July 2020 to November 2021, Clarissa was 

charged with concealing merchandise, loitering and trespassing, and possession of a controlled substance, though it is 

unclear whether these charges resulted in any convictions. In 

December 2021, she was charged with entering a motor vehicle 

without permission and “served fines” for her November 2021 

possession conviction. In March 2022, Clarissa was charged 

with possession of a controlled substance, criminal trespass, 

and criminal mischief, for which convictions she was sentenced to 60 days’ incarceration. In May 2022, Clarissa was 

charged with possession of a controlled substance, for which 
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IN RE INTEREST OF CAMERON L. & DAVID L.

Cite as 32 Neb. App. 578

conviction she was sentenced to 40 days’ incarceration. In July 

2022, Clarissa was charged with possession of a controlled 

substance and burglary, for which convictions she was fined 

$200 and sentenced to 40 days’ incarceration. At the time of 

trial, Clarissa had a pending theft by unlawful taking charge 

from October 2022.

Clarissa’s contact with Nemec was sporadic. Though when 

Clarissa was incarcerated, she had frequent conversations 

with Nemec where she asked for assistance in accessing 

services and admitted to methamphetamine use and to her 

need for residential treatment. Clarissa maintained consistent 

contact with Nemec from October 2022 to March 2023, during which Clarissa would ask about the well-being of David 

and Cameron.

Clarissa completed a substance use evaluation at a psychiatric hospital in January 2021. The substance use evaluation 

initially recommended that Clarissa attend a co-occurring 

intensive outpatient treatment program. However, soon after 

starting intensive outpatient treatment, Clarissa reported to 

her provider that she was “hungover” and had recently used 

substances. In a February 2021 letter to the Department, 

Clarissa’s provider diagnosed her with “Social Anxiety 

Disorder, Unspecified Trauma and Stressor Related Disorder,” 

and various substance use disorders, and the provider recommended that Clarissa participate in short-term residential 

treatment. The evaluation and followup letter are attached to 

the Department’s February 2021 case plan.

On October 10, 2022, Clarissa was jailed for her theft by 

unlawful taking charge. Clarissa participated in a co-occurring 

evaluation in February 2023 while she was incarcerated. The 

evaluator found that Clarissa met the full diagnostic criteria for having a stimulant use disorder and an alcohol use 

disorder. The evaluation recommended that Clarissa participate in long-term residential treatment in which she could 

remain in a supportive, sober environment to reduce the risk 

of relapse and change behavioral and cognitive patterns that 
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Cite as 32 Neb. App. 578

reinforced her substance use. It was also recommended that, 

following discharge, Clarissa should participate in a “step 

down” treatment to maintain accountability and support. The 

co-occurring evaluation was attached to the Department’s 

March 2023 case plan.

Clarissa entered St. Monica’s for residential substance use 

treatment in late February 2023. Nemec stated that though 

Clarissa had an outstanding warrant connected to a controlled 

substance charge, she was conditionally allowed to be released 

from jail for treatment. However, Clarissa left treatment on 

March 28 before being successfully discharged, and her whereabouts were unknown by the Department at the time of trial. 

Nemec understood that there was now a warrant out for 

Clarissa’s arrest. Nemec believed that Clarissa was aware of 

the consequences of prematurely leaving treatment, because 

Nemec had discussed the matter with Clarissa in the 10 days 

prior to Clarissa’s leaving St. Monica’s.

Nicole Lemke supervised the family’s caseworker since 

October 2020. She testified to the Department’s concerns 

that Clarissa had been using methamphetamine and to the 

risk of harm for David and Cameron. Lemke stated that 

caretakers that are using methamphetamine have challenges 

making decisions and processing information clearly. They 

often put their need for the drug above the needs of the children. Methamphetamine users can be awake for days at a 

time and then experience a “crashing” where they sleep for 

several days, leaving the children functionally unattended. 

Additionally, children could come into contact with the substance or ingest it.

Although Clarissa was ordered to complete a psychological 

evaluation and parenting assessment, these evaluations were 

not set up by the Department because Nemec was unaware 

of Clarissa’s location during much of the case and because 

of Clarissa’s erratic behavior during meetings while she was 

incarcerated. It was always the Department’s priority to get 

Clarissa into treatment so she could be sober. Nemec noted 
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IN RE INTEREST OF CAMERON L. & DAVID L.

Cite as 32 Neb. App. 578

that a clinician would want to have a baseline sobriety level 

to ensure an accurate assessment.

Clarissa has not had parenting time with her children since 

her visitation was suspended by court order in October 2020. 

In January 2021, Clarissa was permitted by the juvenile court 

to have therapeutic parenting time with David and Cameron 

as arranged by the Department, as once recommended by the 

children’s therapist. While Clarissa was in treatment, her therapist at St. Monica’s was in communication with the children’s 

respective therapists and established that Clarissa was sober 

and mentally stable enough to participate in therapeutic visitation. A meeting was scheduled for Clarissa to meet with the 

children’s therapists and to be screened for therapeutic contact with the children. However, this meeting never occurred, 

because Clarissa left St. Monica’s a few days before the scheduled meeting.

Clarissa also had not acquired a residence or a legal means 

of income, and the last time she participated in a drug test was 

in April 2021.

(b) Placement Efforts

Clarissa expressed to Nemec her desire for the children to 

be placed in a Native American home. Nemec asked Clarissa 

for recommendations regarding David’s and Cameron’s placement. Clarissa recommended her mother; however, Clarissa’s 

mother was “on the central registry,” and the Department’s 

policy prevented the placement of the children in the home of 

someone on the registry. From the records Nemec reviewed, 

it appeared that Clarissa’s mother had been provided with 

information regarding how to have her central registry status 

expunged, but she had not taken the steps to do so. Clarissa 

also recommended that David and Cameron be placed with 

her oldest daughter, Autumn L., who was 19 years old at the 

time. However, Autumn’s home was too small to accommodate 

placement of the children, and during a preplacement visit, 

Autumn allowed unauthorized contact between Clarissa and 

David and Cameron.
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IN RE INTEREST OF CAMERON L. & DAVID L.

Cite as 32 Neb. App. 578

Nemec testified that at the time, the Department did not 

have other Native American homes available for placement 

of the children. Nemec stated that when the Department was 

attempting to place Qlani and Dazianna in out-of-home care, 

there was only one Native American home available. However, 

this placement for Qlani and Dazianna did not last. Nemec 

discussed with that Native American family whether they were 

willing to take David and Cameron instead, but the placement 

was primarily interested in having teenagers and had availability for only one more child at that time. The Department 

case plan dated April 26, 2021, also details the Department’s 

completing a “common referral” in search of Native American 

placements for David and Cameron. The Department received 

several responses regarding available placements, including 

David and Cameron’s current foster home, but none were 

Native American homes.

After the preplacement visit with Autumn, the Department 

placed David and Cameron into a non-Native American foster 

home. David and Cameron have been in their most recent nonNative American foster home since May 2021. Nemec stated 

that as time progressed and the children became increasingly 

stable in that home, the Department did not consider moving 

the children from that environment.

Since September 2022, Nemec emailed the “ICWA tribe” 

monthly updates regarding the children and the juvenile case 

but had not received any response. Except for “a few phone 

calls that are random,” no other contact between Nemec and 

the Tribe occurred.

(c) Children’s Needs and Services

Throughout the case, the children have participated in 

therapeutic services. David has attended weekly individual 

therapy with Jordan Graham since November 2021. Cameron 

attended individual therapy with Olivia Christensen, a provider in the same office as Graham, from November 2021 

until November 2022. Cameron then began to meet with 
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Cite as 32 Neb. App. 578

Suzanne Jouvenat in December 2022. Before Clarissa left 

St. Monica’s, the Department was working with Graham and 

Jouvenat to assess and prepare David and Cameron for therapeutic parenting time with their mother. Graham had been 

willing to provide therapeutic visitation for the family.

Christensen, a licensed mental health practitioner, testified 

that she provided weekly child-parent psychotherapy (CPP) 

to Cameron for 1 year. Christensen described CPP as traumabased programming for children ages 5 and under that helps 

children who have experienced any type of trauma or serious mental health concerns build a healthy attachment with a 

caregiver. Christensen facilitated CPP with Cameron and her 

foster parents.

When Christensen first began seeing Cameron, she was 

hyperactive, had trouble concentrating, and was avoidant of 

indicating any of the trauma she had suffered. Cameron also 

exhibited an avoidant attachment style and was distant from 

her foster parents in CPP sessions. Cameron often opted for 

independent play and would not seek out connection with a 

caregiver if she was experiencing any dysregulation. However, 

toward the end of Christensen’s time treating Cameron, she 

observed Cameron building more of a secure attachment. 

Cameron began to seek out hugs and include the foster parents in her play during sessions. Christensen also observed an 

improvement in Cameron’s coregulation skills.

Christensen had never seen Cameron with Clarissa and was 

unable to determine what kind of attachment style Cameron 

had to her mother.

 Nemec testified that David and Cameron were also participating in sibling visitation with their older sisters: Qlani, 

Dazianna, and Autumn. However, the sibling visitation was 

challenging to facilitate because the Department had a sparsity 

of providers who were able to accommodate the availability 

and schedules of everyone involved in the visitation, including 

the various foster parents.
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Cite as 32 Neb. App. 578

David and Cameron’s foster mother testified that the children had been placed in her and her husband’s home for the 

past 2 years. When the children first came into their care, 

they had lice, poor dental health, and clothing filled with 

holes. David and Cameron also struggled with following directions and respecting authority. The children’s behaviors later 

improved after participating in therapy, and the foster parents 

set behavioral boundaries and a routine. Both children were 

presently doing well educationally and socially.

The foster mother testified to preparing a cultural plan prior 

to taking placement of David and Cameron. The foster parents 

sought out books and television shows that featured Native 

American protagonists and storylines, went to museums and 

Native American stage performances, and took a trip to South 

Dakota so that the children could visit their place of birth. 

The foster mother testified to her effort to maintain contact 

between David and Cameron and their siblings, but she noted 

that the visits had been challenging logistically and that the 

children were highly emotional and experienced sleep disturbances following the sibling visits.

Nemec testified that children need permanency, because 

it develops their self-esteem and allows them to feel safe so 

that they can continue to develop cognitively, emotionally, 

and physically. Nemec believed that it would be in David’s 

and Cameron’s best interests to achieve permanency as soon 

as possible, given that they had been in an out-of-home 

placement for over 3 years. Nemec testified that David’s and 

Cameron’s permanency goal at the time of trial was “concurrent guardianship and adoption.” The Department’s most 

recent case plan, dated March 22, 2023, stated that while the 

primary permanency plan for David and Cameron was guardianship, due to the pending motion to terminate Clarissa’s and 

the father’s parental rights, the Department had “shifted the 

goal to [a]doption given the children’s young ages.” Later in 

the case plan, the Department refers to adoption as the “alternative plan.”
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Nemec also believed that it was in David’s and Cameron’s 

best interests to have Clarissa’s parental rights terminated. 

Nemec noted that Clarissa had over 3 years to address her 

substance abuse and mental health issues. Though Clarissa 

had increasingly been able to articulate the reasons why she 

needed to comply with the dispositional plan, she had not 

been able to successfully complete any of its components. 

According to Nemec, Clarissa understood the ramifications of 

not doing so, and yet, she chose not to complete those services 

to put herself in a better place to parent or have a relationship 

with her children.

(d) Holly Burns’ Testimony

Holly Burns, a licensed mental health practitioner, testified 

that she is a nationally registered child-parent psychotherapist, 

parent-child interactive therapist, and trauma-focused cognitive 

behavioralist. She is trained in dialectical behavioral therapy 

and cognitive behavioral therapy. Burns described her ongoing 

education and training and stated that she has been practicing 

for over 10 years.

Regarding her specific experience with the application of 

ICWA, Burns noted that she biannually “attend[s] ICWA trainings.” Burns’ resume was received into evidence and states 

that Burns is a “Certified ICWA expert for the Lancaster 

County Juvenile Courts.” She estimated that 10 percent of 

her clients are Native American children. Burns has been 

determined to be a qualified expert witness for ICWA proceedings more than five times in the separate juvenile court of 

Lancaster County.

As to whether she has any particular tribal affiliation, Burns 

stated that her great grandmother was a “Pascua [Yaqui] 

Indian.” The Pascua Yaqui Tribe is a federally recognized 

tribe, though Burns was not enrolled nor eligible for enrollment. Burns explained that she was familiar with the customs 

of the “Yuki natives” who originated in Mexico and then 

migrated to New Mexico and Texas. Burns speaks “the native 
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language of Spanish” and was raised with the understanding 

that “children are treasures.” Burns also has an aunt through 

marriage whose grandfather was a member of the Tribe. When 

asked on cross-examination whether Burns’ education and 

training dealt specifically with the culture of the Tribe, Burns 

responded that her aunt “was of the Oglala Sioux Nation so 

I have personal experience and I think that far outweighs a 

classroom experience in my opinion, humbly.”

Burns had never met David, Cameron, or Clarissa, though 

she had been provided collateral information prior to trial, 

including the Department’s court reports and risk assessments, 

police reports, and the legal filings in the juvenile case. Burns 

understood from the collateral sources that while David and 

Cameron were not placed in a Native American foster home, 

the Department had made efforts to locate a Native American 

home for the children after their removal. However, Burns 

understood that the children’s grandmother’s home was too 

small to accommodate them and other family members who 

were considered did not pass a background check. There was 

also a general search for Native American placements, but 

Burns could not recall how many Native American homes the 

Department had explored for placement options.

Burns also received information provided by the children’s 

foster mother regarding her and her husband’s efforts to connect David and Cameron to their Native heritage. Burns testified that she believed the foster parents were doing their best 

but may need further education to “understand that not all 

Natives are the same, and that there needs to be more focus 

and emphasis given to the [Tribe].” Burns recommended that 

the children participate in “Native language courses” and 

maintain sibling contact with their older sisters to stay connected to their cultural identity. Burns also recommended 

various organizations that could provide additional resources 

to the foster parents.

Burns believed that, taking into account Native American 

culture and standards as they pertain to the protection of 
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children, the Department utilized appropriate services for the 

family. However, Burns observed that “cultural emphasis” may 

have been more effective with the parents, such as substance 

use programming based on Native American traditions, for 

example, “Red Road to Recovery” and the “Medicine Wheel” 

programs. Burns testified that Clarissa’s suspected methamphetamine use and physical behavior that led to the children’s 

removal is not condoned by Native American culture.

Regarding Clarissa’s engagement with the juvenile case, 

Burns stated that Clarissa “participated in a level that she was 

able to, however, I don’t know that it was at a standard that 

could be seen as acceptable and involved.” Additionally, the 

following exchange occurred:

[The State:] Have you developed an opinion as to 

whether placing David and Cameron back in their home 

environment would likely cause serious emotional and 

physical damage to them?

[Burns:] Again, with the parents’ level of participation 

and lack of participation in services, it would appear that 

the core issues that resulted in the children being removed 

would remain the same, and so therefore, I don’t know 

that anyone can make an opinion other than there’s still 

ongoing issues.

Q Okay, and is it your understanding that the whereabouts of both parents are unknown at this time?

A Yes, that was my understanding.

Q So, placing David and Cameron back in their parents’ care is not feasible at this moment, correct?

A Correct.

Q Okay, if they were, what would your concerns be 

as far as the potential for emotional and physical damage 

to them?

A Again, when I, when I look at children, I look at 

the effects that trauma has on their development. Given 

the acute generational and chronic trauma, we know that 

there would be significant impact on their social and 
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emotional wellbeing and propensity for their own mental 

health and addiction issues given the family’s history.

Q And given that the events that led to the removal 

were also [Clarissa’s] hitting or being aggressive to one or 

more of the children, would that cause you concern that 

physical damage may occur as well?

A Yes.

Q And you have not been —

A Actually, I should say physical harm, I don’t know 

physical damage.

Burns further testified that she was aware that David and 

Cameron had been in out-of-home placement since February 

2020 and noted that a lack of permanency contributed to developmental trauma for children generally.

3. Order

At the conclusion of the termination trial, the juvenile 

court stated that it found that the State had proved the counts 

included in the motion to terminate parental rights by clear 

and convincing evidence, “as well as beyond a reasonable 

doubt as to the ICWA allegations.”

The juvenile court entered an order on April 19, 2023, 

terminating Clarissa’s and the father’s rights to David and 

Cameron. The court found that the State had met its burden 

of proving that both parents had abandoned the children for 

6 months or more immediately prior to the filing of the petition, that there was substantial and continuous neglect, and 

that the children had been in out-of-home placement for 15 

or more months out of the most recent 22 months, pursuant 

to § 43-292(1), (2), and (7). The parents had also subjected 

the children to the aggravated circumstance of abandonment 

pursuant to § 43-292(9). The court also found that pursuant to 

§ 43-292(6), Clarissa had failed to correct the conditions that 

led to the children’s being adjudicated under § 43-247(3)(a). 

The court further found that “as proven by qualified expert 

testimony,” the continued custody by Clarissa and the father 
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was likely to result in serious emotional or physical damage 

to the children. The court determined that Clarissa and the 

father were unfit parents and that it was in the best interests of 

David and Cameron to have Clarissa’s and the father’s parental 

rights terminated.

Clarissa appeals from this order. An amicus curiae brief was 

filed jointly by the Nebraska Indian Child Welfare Coalition 

and the American Civil Liberties Union of Nebraska.

III. ASSIGNMENTS OF ERROR

Clarissa assigns, reordered, that the juvenile court erred by 

(1) terminating her parental rights without a finding beyond a 

reasonable doubt, supported by qualified expert testimony, that 

the continued custody of the children by the parent was likely 

to result in serious emotional or physical damage to the children; and (2) finding that the termination of Clarissa’s parental 

rights was in the children’s best interests.

IV. STANDARD OF REVIEW

[1] An appellate court reviews juvenile cases, including 

those under NICWA, de novo on the record and reaches its 

conclusions independently of the juvenile court’s findings in a 

termination of parental rights case. See, In re Interest of Mateo 

L. et al., 309 Neb. 565, 961 N.W.2d 516 (2021); In re Interest 

of Phoebe S. & Rebekah S., 11 Neb. App. 919, 664 N.W.2d 

470 (2003).

V. ANALYSIS

1. Qualified Expert Witness Testimony

Clarissa first assigns that the juvenile court erred by terminating her parental rights without a finding beyond a 

reasonable doubt, supported by qualified expert testimony, 

that the continued custody of the children by the parent was 

likely to result in serious emotional or physical damage to 

the children. She argues that the State’s expert witness lacked 

many of the qualifications required of an expert witness under 

ICWA and NICWA. She also argues that the juvenile court 
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failed to make findings beyond a reasonable doubt, because 

the court’s order was vague as to the standard of evidence 

applied to its various findings. Before addressing Clarissa’s 

assigned error, we discuss the legal framework used to define 

a qualified expert witness under ICWA.

[2] 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., supra.

[3] NICWA 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 Neb. Rev. Stat. 

§ 43-1505(4) (Reissue 2016). Second, the State must prove 

by evidence beyond a reasonable doubt, including testimony 

of qualified expert witnesses, that the continued custody of 

the child by the parent or Indian custodian is likely to result 

in serious emotional or physical damage to the child. In re 

Interest of Audrey T., supra. See § 43-1505(6).

We note that although Clarissa has not assigned any error 

with respect to the juvenile court’s findings that the State 

proved by clear and convincing evidence that active efforts 

had been made to prevent the breakup of the Indian family 

and that those efforts were unsuccessful, we have reviewed 

the record and find no plain error as it relates to that element. 

Thus, we turn to Clarissa’s specific alleged error.

Clarissa first argues that the State failed to present evidence from a qualified expert under the ICWA standards. 

Nebraska appellate courts have previously relied on guidelines promulgated by the federal Bureau of Indian Affairs 

to determine whether a witness qualifies as an expert under 

ICWA. See In re Interest of C.W. et al., 239 Neb. 817, 479 
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N.W.2d 105 (1992), overruled on other grounds, In re Interest 

of Zylena R. & Adrionna R., 284 Neb. 834, 825 N.W.2d 173 

(2012). Those guidelines recognized the following categories 

of individuals as likely to meet the requirements of ICWA:

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

tribal customs as they pertain to family organization and 

childrearing practices.

“(ii) A lay expert witness having substantial experience 

in the delivery of child and family services to Indians, 

and extensive knowledge of prevailing social and cultural standards in childrearing practices within the Indian 

child’s tribe.

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

239 Neb. at 824, 479 N.W.2d at 111, quoting Guidelines for 

State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 

67,854, 67,593 (1979) (not codified).

NICWA was enacted in 1985 and most recently amended 

in 2015. The purpose of NICWA is to clarify state policies 

and procedures regarding the implementation of ICWA in 

Nebraska. Neb. Rev. Stat. § 43-1502 (Reissue 2016). NICWA 

includes a definition of “[q]ualified expert witness” that is 

similar to these federal guidelines, including “[a]ny other 

professional person having substantial education in the area 

of his or her specialty.” See Neb. Rev. Stat. § 43-1503(15)(e) 

(Reissue 2016).

In 2016, the Bureau of Indian Affairs issued formal regulations and new guidelines discussing the implementation of 

ICWA. With respect to the expert witness requirement, the 

formal regulations provide as follows:

(a) A qualified expert witness must be qualified to testify regarding whether the child’s continued custody by 

the parent or Indian custodian is likely to result in serious emotional or physical damage to the child and should 

be qualified to testify as to the prevailing social and 
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cultural standards of the Indian child’s Tribe. A person 

may be designated by the Indian child’s Tribe as being 

qualified to testify to the prevailing social and cultural 

standards of the Indian child’s Tribe.

(b) The court or any party may request the assistance 

of the Indian child’s Tribe or the [Bureau of Indian 

Affairs] office serving the Indian child’s Tribe in locating 

persons qualified to serve as expert witnesses.

(c) The social worker regularly assigned to the Indian 

child may not serve as a qualified expert witness in 

child-custody proceedings concerning the child.

Indian Child Welfare Act Proceedings, 81 Fed. Reg. 38,778, 

38,873 (June 14, 2016) (codified at 25 C.F.R. § 23.122 (2022)). 

The Nebraska Supreme Court has held that these 2016 federal 

ICWA regulations must be followed by Nebraska courts. See 

In re Interest of Manuel C. & Mateo S., 314 Neb. 91, 988 

N.W.2d 520 (2023), modified on denial of rehearing 314 Neb. 

580, 991 N.W.2d 305.

[4] In her brief on appeal, Clarissa concedes that Burns’ testimony was received “without objection.” Brief for appellant 

at 33. Typically, to preserve a claimed error in admission of 

evidence, a litigant must make a timely objection that specifies the ground of the objection to the offered evidence. See 

Richardson v. Children’s Hosp., 280 Neb. 396, 787 N.W.2d 

235 (2010). Burns is presumably the only expert witness 

whose testimony the State sought to qualify, as the two workers from the Department are precluded from being qualified 

expert witnesses under ICWA. See 25 C.F.R. § 23.122(c). 

Nevertheless, in our de novo review, we must determine 

whether there was sufficient evidence to support termination 

of Clarissa’s parental rights under the more rigorous ICWA 

standards, which require testimony from a qualified expert 

witness. Thus, we must examine whether Burns was qualified 

to present expert testimony in this case.

[5] A trial court is allowed discretion in determining whether 

a witness is qualified to testify as an expert, and unless the 
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court’s finding is clearly erroneous, such a determination will 

not be disturbed on appeal. In re Interest of Ramon N., 18 

Neb. App. 574, 789 N.W.2d 272 (2010). Burns testified that 

she is a licensed mental health practitioner, nationally registered child-parent psychotherapist, parent-child interactive 

therapist, and trauma-focused cognitive behavioralist. She has 

been a clinician for over a decade and is trained in both dialectical behavioral therapy and cognitive behavioral therapy. The 

juvenile court’s termination order identified Burns as a qualified expert witness and found, as proved by her testimony, that 

continued custody by Clarissa was likely to result in serious 

emotional or physical damage to the children.

Based on Burns’ professional credentials, which show that 

she has “substantial education in the area of his or her specialty,” we cannot say that the district court abused its discretion in finding Burns to be a qualified expert witness for the 

purposes of ICWA. See, 25 C.F.R. § 23.122; § 43-1503(15)(e).

Clarissa argues that Burns was not qualified to be an expert 

witness, because she has not interacted with David, Cameron, 

or Clarissa. Clarissa points to the recent ICWA guidelines that 

recommend the qualified expert witness “be someone familiar 

with that particular child.” See U.S. Dept. of Interior, Bureau 

of Indian Affairs, Guidelines for Implementing the Indian 

Child Welfare Act G.2 at 55 (Dec. 2016).

While Burns had not met any family members in this case, 

she had received and reviewed extensive collateral information. Included in this collateral information was Clarissa’s 

psychiatric diagnoses, criminal history, and parental challenges. Burns also reviewed the information concerning the 

children’s diagnoses and therapy. While it may be a better 

practice for an expert witness to be personally familiar with 

the children at the center of a juvenile case, given that Burns 

has a background in family systems and child trauma, and 

had reviewed collateral information about these children, she 

was qualified to provide expert testimony here. The Nebraska 

Supreme Court has permitted clinicians who rely on collateral 
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information rather than on interactions with the children for 

the basis of their testimony to be a qualified expert witness in 

proceedings where ICWA applied. See In re Interest of Walter 

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

Clarissa also argues that Burns lacked the qualifications 

to testify as to the prevailing social and cultural standards of 

David and Cameron’s tribe. The State appears to argue in its 

brief on appeal that Burns was qualified to speak to Native 

American cultural customs but concedes that “[t]he only area 

where [Burns] may be limited is specific knowledge regarding 

[the Tribe].” Brief for appellee at 27.

As established above, the 2016 federal ICWA regulations 

state that a qualified expert witness must be qualified to testify 

regarding whether the child’s continued custody by the parent 

or Indian custodian is likely to result in serious emotional or 

physical damage to the child and should be qualified to testify 

as to the prevailing social and cultural standards of the Indian 

child’s Tribe. See 25 C.F.R. § 23.122(a).

David and Cameron are eligible for enrollment in the Tribe; 

thus, only the prevailing social and cultural standards of that 

tribe are relevant to this case. Though Burns testified to having Pascua Yaqui Indian heritage and being raised with the 

values of that tribe, she stated that her only experience with 

the social and cultural standards of the Tribe came from a 

personal relationship with an aunt through marriage whose 

grandfather was a member of the Tribe. Burns testified that 

she attends biannual ICWA trainings, and her resume noted 

that she is a “Certified ICWA expert for the Lancaster County 

Juvenile Courts”; however, no additional information regarding these qualifications are in our record, such as the dates 

of the trainings, topics covered, or the name of the certifying 

organization. Though Burns testified that Clarissa’s suspected 

methamphetamine use and reported hitting of the children was 

not condoned by Native American culture generally, based 

on the record before us, Burns is not qualified to testify to 
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the prevailing social and cultural standards of David and 

Cameron’s specific tribe.

However, in its more recent guidelines, the Bureau of Indian 

Affairs provides, in part:

The rule does not, however, strictly limit who may 

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

knowledge. The rule recognizes that there may be certain 

circumstances where a qualified expert witness need not 

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

the statutory standard.

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

for Implementing the Indian Child Welfare Act G.2 at 54 

(Dec. 2016) (providing minimum federal standards regarding 

compliance with 25 C.F.R. § 23.122 governing who may serve 

as qualified expert witness). Given the circumstances of this 

case, we find that Burns’ lack of specific knowledge of the 

prevailing social and cultural standards of the Tribe did not 

prevent her from providing expert testimony.

The Nebraska Indian Child Welfare Coalition and the 

American Civil Liberties Union of Nebraska, in their amicus 

brief, encourage this court to adopt the Alaska Supreme 

Court’s holding that qualified expert witness testimony regarding social and cultural standards is “a default requirement 

rather than a mere suggestion.” See State v. Cissy A., 513 P.3d 

999, 1012 (Alaska 2022).

The Bureau of Indian Affairs’ more recent guidelines note 

that “ICWA displaces [s]tate laws and procedures that are 

less protective,” but in the instances where states have passed 

“their own laws applying to child welfare proceedings involving Indian children that establish protections beyond the 

minimum [f]ederal standards,” the “more protective [s]tate 

law applies.” U.S. Dept. of Interior, Bureau of Indian Affairs, 

supra, A.1 at 7.
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We decline to go beyond the plain language of the 2016 

federal regulations that state a qualified expert witness as to 

ICWA “must” be qualified to testify regarding the likelihood 

of serious emotional or physical damage to the child and 

“should” be qualified to testify as to the prevailing social and 

cultural standards of the Indian child’s tribe. See 25 C.F.R. 

§ 23.122. NICWA has not been amended since the codification 

of the most recent federal ICWA regulations and contains no 

mandatory provision regarding the expert witness’ qualifications to testify concerning the relevant tribal social and cultural standards. Should Nebraska seek to establish protections 

beyond the minimum federal standards, such is the purview of 

our Legislature.

Clarissa next argues that Burns did not actually give an 

opinion that continued custody of the child by the parents was 

likely to result in “serious emotional or physical damage” to 

the children involved, as required by ICWA and NICWA.

Burns testified to her concern that continued custody of the 

children by Clarissa may cause the children physical harm, 

rather than physical damage. However, when asked about the 

likelihood of emotional damage, Burns testified that David 

and Cameron had suffered acute generational and chronic 

trauma and that continued custody by Clarissa would result 

in a “significant impact on their social and emotional wellbeing and propensity for their own mental health and addiction issues.”

We conclude that Burns was properly qualified to provide 

expert witness testimony and did so regarding whether David’s 

and Cameron’s continued custody by Clarissa was likely to 

result in serious emotional damage to the children.

Finally, Clarissa argues that the order terminating her parental rights to David and Cameron failed to make a finding 

beyond a reasonable doubt that continued custody of the 

children by the parent or Indian custodian was likely to result 

in serious emotional or physical damage to the children. 

While the termination order did not use the specific language 
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above, the juvenile court did find that the ICWA allegations 

were proved beyond a reasonable doubt. This assignment of 

error fails.

2. Statutory Grounds 

for Termination

The juvenile court found that the State had presented clear 

and convincing evidence to satisfy § 42-292(1), (2), (6), (7), 

and (9). Clarissa does not challenge the juvenile court’s finding 

that statutory grounds to terminate have been met. However, 

because our review is de novo, we address this requirement for 

termination of parental rights.

[6,7] Section 43-292(7) allows for termination when the 

juvenile has been in an out-of-home placement for 15 or more 

months of the most recent 22 months. It operates mechanically and, unlike the other subsections of the statute, does 

not require the State to adduce evidence of any specific fault 

on the part of a parent. In re Interest of Kenna S., 17 Neb. 

App. 544, 766 N.W.2d 424 (2009). In a case of termination of 

parental rights based on § 43-292(7), the protection afforded 

the rights of the parent comes in the best interests step of the 

analysis. In re Interest of Kenna S., supra.

Here, it is undisputed that the children have been in out-ofhome placement for 15 or more months of the most recent 22 

months. David and Cameron were removed from Clarissa’s 

care on February 14, 2020. The State filed its motion for termination of parental rights on January 18, 2023, and the termination trial was held in April 2023. The children remained out 

of the home since their removal in February 2020. At the time 

the State filed its motion for termination of parental rights, 

the children had been out of the home for 35 months. See In 

re Interest of Jessalina M., 315 Neb. 535, 997 N.W.2d 778 

(2023) (existence of statutory basis alleged under § 43-292(7) 

should be determined as of date petition or motion to terminate 

is filed). Thus, the statutory requirement for termination under 

§ 43-292(7) has been met.
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[8] If an appellate court determines that the lower court 

correctly found that termination of parental rights is appropriate under one of the statutory grounds set forth in § 43-292, 

the appellate court need not further address the sufficiency of 

the evidence to support termination under any other statutory 

ground. In re Interest of Becka P. et al., 27 Neb. App. 489, 

933 N.W.2d 873 (2019). Because the State presented clear 

and convincing evidence that the children had been in an outof-home placement for 15 or more months of the most recent 

22 months, statutory grounds for termination of Clarissa’s 

parental rights exists.

3. Parental Unfitness and 

Best Interests

Clarissa assigns that the juvenile court erred in finding that 

she was an unfit parent and that it was in the children’s best 

interests to terminate her parental rights. Clarissa asserts that 

the termination of her parental rights was not necessary as 

David’s and Cameron’s permanency goal throughout the case 

had been guardianship.

[9-11] In addition to proving a statutory ground, the State 

must show that termination of parental rights is in the best 

interests of the children. See, § 43-292; 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. In re Interest of Jahon S., supra. There is 

a rebuttable presumption that the best interests of a child are 

served by having a relationship with his or her parent. See 

id. This presumption is overcome only when the State has 

proved that the parent is unfit. Id. 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.
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[12-14] The best interests analysis and the parental fitness 

analysis are fact-intensive inquiries. And while both are separate inquiries, each examines essentially the same underlying 

facts as the other. 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 Becka P. et al., supra. In cases 

where termination of parental rights is based on § 43-292(7), 

appellate courts must be particularly diligent in their de 

novo review of whether termination of parental rights is in 

fact in the child’s best interests. In re Interest of Becka P. et 

al., supra.

Throughout the case, Clarissa’s greatest barriers to reunification were her mental health and substance use. Clarissa 

completed a substance use evaluation at the psychiatric hospital in January 2021, while she was incarcerated, which recommended that Clarissa attend a co-occurring intensive outpatient treatment program. However, soon after starting intensive 

outpatient treatment, Clarissa reported to her provider that 

she was “hungover” and had recently used substances. In a 

February 2021 letter to the Department, Clarissa’s provider 

diagnosed her with social anxiety disorder, unspecified trauma 

and stressor related disorder, and various substance use disorders, and the provider recommended that Clarissa participate 

in short-term residential treatment.

Clarissa did not address her substance use again until she 

participated in a co-occurring evaluation in February 2023 

while she was again incarcerated. Clarissa entered St. Monica’s 

for residential substance use treatment in late February 2023, 

per the recommendation of her co-occurring evaluation. 

Clarissa had an outstanding warrant connected to a controlled 

substance charge, and she was conditionally allowed to be 

released from jail for treatment. Clarissa understood the consequences of prematurely leaving treatment because Nemec 

had discussed the matter with Clarissa. Nevertheless, Clarissa 
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left treatment before being successfully discharged and her 

whereabouts were unknown by the Department at the time 

of trial.

Clarissa’s decision to leave St. Monica’s was even more consequential because while Clarissa was in treatment, her therapist had been in communication with the children’s respective 

therapists and established that Clarissa was sober and mentally stable enough to participate in therapeutic visitation with 

David and Cameron. Clarissa had not had parenting time with 

her children since her visitation was suspended by court order 

in October 2020. A meeting had been scheduled for Clarissa 

to meet with the children’s therapists and to be screened for 

therapeutic contact with the children. However, this meeting 

never occurred because Clarissa left St. Monica’s a few days 

before the scheduled meeting.

Clarissa has failed to accomplish any part of her dispositional plan. Clarissa has not successfully completed the recommendations of her substance use evaluation or her co-occurring 

evaluation. Clarissa was ordered to complete a psychological 

evaluation and parenting assessment, but these evaluations 

were not set up by the Department, because Nemec was 

unaware of Clarissa’s location during much of the case and her 

behavior was erratic when she was incarcerated. Clarissa also 

has not acquired a residence or a legal means of income. She 

has not participated in drug testing for the last 2 years.

Clarissa did not seek assistance for her addiction unless she 

was incarcerated, and even still, she decided to leave treatment early. She did so while the family’s therapists were in the 

process of coordinating therapeutic visits between Clarissa, 

David, and Cameron, and knowing that her premature exit 

from treatment would result in a warrant for her arrest. 

Clarissa lost not only her opportunity for treatment but also 

an opportunity to see David and Cameron for the first time in 

over 21⁄2 years.

[15] Where a parent is unable or unwilling to rehabilitate 

himself or herself within a reasonable time, the best interests 
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of the child require termination of the parental rights. In re 

Interest of Zanaya W. et al., 291 Neb. 20, 863 N.W.2d 803 

(2015). Based on the evidence presented, there has been minimal change in Clarissa’s behavior over the course of the case, 

and based on Clarissa’s lack of engagement with the case and 

her children, she is unlikely to change in the future. The case 

plan goals have remained consistent throughout the case and 

have not been met, and there has been no improvement in 

Clarissa’s ability to parent.

[16] Further, Nebraska courts have recognized that children 

cannot, and should not, be suspended in foster care or be made 

to await uncertain parental maturity. In re Interest of Octavio 

B. et al., 290 Neb. 589, 861 N.W.2d 415 (2015). David and 

Cameron have been in foster care since February 2020. Burns 

testified that a lack of permanency may contribute to their 

developmental trauma. They deserve stability in their lives 

and should not be suspended in foster care when Clarissa is 

unable to rehabilitate herself. Accordingly, we find there was 

clear and convincing evidence to show that Clarissa was unfit 

and that terminating her parental rights was in the children’s 

best interests.

VI. CONCLUSION

The juvenile court properly found that evidence existed 

to support termination of Clarissa’s parental rights to David 

and Cameron under § 43-292(7) and that termination of her 

parental rights was in the children’s best interests. The State 

established through evidence, including testimony of qualified 

expert witnesses, beyond a reasonable doubt, that the continued custody of David and Cameron by Clarissa was likely to 

result in serious emotional or physical damage to the children. 

Accordingly, the juvenile court’s order is affirmed.

Affirmed.