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IN RE INTEREST OF MATEO L. ET AL.

Cite as 309 Neb. 565

In re Interest of Mateo L. et al., children 

under 18 years of age.

State of Nebraska, appellant, v. Juana L., appellee 

and cross-appellee, and Lucinda K. Bauer, 

guardian ad litem, for Mateo L. et al., 

appellee and cross-appellant.

___ N.W.2d ___

Filed June 25, 2021. No. S-20-626.

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. Juvenile Courts: Evidence: Appeal and Error. When the evidence is 

in conflict, an appellate court may consider and give weight to the fact 

that the juvenile court observed the witnesses and accepted one version 

of the facts over another.

3. Parental Rights: Proof. Neb. Rev. Stat. § 43-292 (Reissue 2016) contains 11 separate subsections, any one of which can serve as a basis for 

terminating parental rights when coupled with evidence that termination 

is in the best interests of the child.

4. ____: ____. 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.

5. Statutes. Statutory language is to be read according to its plain and 

ordinary meaning.

6. Parental Rights: Time. The period of out-of-home placement set in 

Neb. Rev. Stat. § 43-292(6) (Reissue 2016) as a ground for termination 

of parental rights was set by the Legislature as a guideline for what 

would be a reasonable time for parents to rehabilitate themselves to a 

minimum degree of fitness.

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

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

Nebraska Supreme Court Online Library

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

07/02/2021 08:10 AM CDT
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does not require the State to adduce evidence of any specific fault on the 

part of a parent.

8. Parental Rights: Legislature. Out-of-home placement is itself defined 

by the Legislature as an independent ground for termination, since children cannot, and should not, be suspended in foster care or be made to 

await uncertain parental maturity.

9. Parental Rights: Juvenile Courts. Reasonable efforts to reunify a family are required under the juvenile code only when termination is sought 

under Neb. Rev. Stat. § 43-296(6) (Reissue 2016).

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. Constitutional Law: Due Process: Parental Rights: Proof. Showing 

that termination of parental rights is in the best interests of the child is 

necessarily a particularly high bar, since a parent’s right to raise his or 

her children is constitutionally protected. The Due Process Clause of the 

U.S. Constitution would be offended if a state were to attempt to force 

the breakup of a natural family, over the objections of the parents and 

their children, without some showing of unfitness.

12. Parental Rights: Presumptions. There is a rebuttable presumption 

that it is in the child’s best interests to share a relationship with his or 

her parent.

13. Parental Rights: Presumptions: Proof. The presumption that it is in 

the child’s best interests to share a relationship with his or her parent can 

only be overcome by a showing that the parent is either unfit to perform 

the duties imposed by the relationship or has forfeited that right.

14. Parental Rights: Statutes: Words and Phrases. Although the term 

“unfitness” is not expressly stated in Neb. Rev. Stat. § 43-292 (Reissue 

2016), it derives from the fault and neglect subsections of that statute 

and from an assessment of the child’s best interests.

15. Parental Rights: Words and Phrases. Parental unfitness means a 

personal deficiency or incapacity that has prevented, or will probably 

prevent, performance of a reasonable parental obligation in child rearing and that has caused, or probably will result in, detriment to a child’s 

well-being.

16. Parental Rights. 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.

17. Parent and Child: Time. Neb. Rev. Stat. § 43-292(7) (Reissue 2016) 

serves the purpose of providing a reasonable timetable for parents to 

rehabilitate themselves.
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Cite as 309 Neb. 565

18. ____: ____. Termination based on the ground that a child has been in 

out-of-home placement for 15 of the past preceding 22 months is not 

in a child’s best interests when the record demonstrates that a parent is 

making efforts toward reunification and has not been given a sufficient 

opportunity for compliance with a reunification plan.

19. Parent and Child. Parental obligation requires a continuing interest in 

the children and a genuine effort to maintain communication and association with the children.

20. Constitutional Law: Parent and Child. That the foster parents might 

provide a higher standard of living does not defeat the parent’s right to 

maintain the constitutionally protected relationship with his or her child.

Appeal from the County Court for Madison County: Donna 

F. Taylor, Judge. Affirmed.

Gail Collins and Nathan Eckstrom, Deputy Madison County 

Attorneys, for appellant.

Bradley C. Easland, of Egley, Fullner, Montag, Morland & 

Easland, P.C., for appellee Juana L.

Lucinda K. Bauer, of Law Offices of Lucinda K. Bauer, 

guardian ad litem.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Per Curiam.

This appeal concerns the State’s petition to terminate a 

mother’s parental rights based on one proven instance of 

neglect, her actions in escaping an abusive boyfriend and 

obtaining work to support her children, and her children’s outof-home placement after her arrest. The juvenile court denied 

termination, finding that the State had failed to clearly and convincingly show that a statutory basis for termination existed or 

that termination was in the children’s best interests.

We agree that the State has fallen short of carrying its heavy 

burden for termination. Accordingly, we affirm.
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Cite as 309 Neb. 565

FACTS

Arrival in United States

Juana L. was 16 years old when she came to this country 

from Guatemala with her two children, Mateo L. and Pedro 

L. She had grown up speaking K’iche’, a Mayan language 

common in Guatemala’s central highlands, and knew almost 

no Spanish or English. She had little money. She eventually 

settled with her children in Norfolk, Nebraska, where she met 

and began dating Carlos P. She and the children moved in with 

Carlos. About a year later, when Juana was 17 years old, she 

gave birth to her third child, Bryan L.

Around the time of Bryan’s birth, various nongovernmental 

service providers spent time with the family, providing aid. 

They transported Juana as needed, interpreted at her prenatal 

appointments, provided supplies for the new baby, and even 

called an ambulance to Juana’s house when she went into 

premature labor. From their experience working with Juana 

during this period, the service providers stated that while she 

appeared to lack resources and to be overworked babysitting 

other children in addition to her own, she was adequately caring for her children.

Proven Instance of Neglect

The Nebraska Department of Health and Human Services 

(DHHS) became involved, however, when Bryan was approximately 1 month old. Juana and Carlos were taking Bryan 

to a doctor’s appointment when a service provider who had 

accompanied them determined that Mateo and Pedro, who 

were respectively 4 and 2 years old, had been left at home 

alone. The service provider called police, who found the boys 

unharmed at the house. A man who lived in the basement of the 

house was sleeping downstairs. But because the children were 

unsupervised, Juana was cited with neglect.

Since Juana, then 17 years old, was still a minor, the 

charge was filed as a juvenile court matter under Neb. Rev. 

Stat. § 43-247(1) (Reissue 2016). According to the charging 
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petition, “officers responded to the home of the juveniles as 

the mother had left the two oldest children home alone while 

she went to a medical appointment with the youngest juvenile.” While the petition further averred that “[t]his was not the 

first time the mother [had] left her children home alone while 

she went to appointments,” the State offered no evidence at the 

hearing of any other such instances.

Juana admitted to the charge, stating, through an interpreter:

Well, what happened was in that time it was the only time 

that I have left them alone. See, the thing what happened 

that I had to go, and usually [Carlos] stays with them, but 

this — this time I had to take [Carlos] with me, but that 

was the only time that I have been done this.

Again, when pressed as to whether she admitted to the charge 

of neglect, Juana confessed through an interpreter, “Yes. I 

admit that, that I left them alone, but only once.”

Accepting that admission, the county court for Madison 

County, sitting as a juvenile court, dismissed the § 43-247(1) 

charge against Juana and adjudicated her children as neglected 

under § 43-247(3)(a). As a factual basis, the juvenile court 

found that “at least on . . . August 24th, 2017, [the children] 

were in a situation dangerous to their health or morals.” While 

physical custody over the children remained with Juana, the 

juvenile court transferred legal custody over the children to 

DHHS. A guardian ad litem was also appointed to represent 

the children.

At a hearing a short time later, the parties agreed that 

Juana appeared to be making progress, but there were some 

concerns. For instance, a few social workers stated that Juana 

did not seem properly “attached” to the children. There were 

also reports of medical issues, including bedbugs, scabies, 

cavities in Mateo’s teeth, and Bryan’s “flat head,” which doctors believed was due to his lack of “tummy time.” Several 

social workers expressed concern about Carlos’ relationship 

with the family. Carlos tended to dominate conversations with 

Juana and would follow her throughout the house to listen 
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and interject when social workers attempted to speak with her 

in private. At least one social worker expressed concern that 

Juana might be a human trafficking victim.

Still, the social workers generally concurred in reporting that 

their services were helping and that Juana’s children appeared 

happy and well cared for. Based on these reports, the juvenile 

court maintained the above arrangement of physical custody 

with Juana and legal custody with DHHS.

Relocation to Minnesota

Approximately 3 months after the adjudication and transfer 

of legal custody over the children, DHHS discovered that Juana 

and her children had left the Norfolk area. Although she told 

social workers over the phone that they were merely traveling 

the short distance to Grand Island, Nebraska, DHHS traced 

Juana’s phone calls to Willmar, Minnesota. Since her relocation 

out of state was in violation of the children’s custody arrangement, the juvenile court issued a warrant for Juana’s arrest. 

The juvenile court also issued an ex parte order authorizing the 

children to be taken into DHHS custody.

Juana was eventually arrested by Willmar police, and her 

children were placed into temporary foster care. Police learned 

that Juana’s mother and father also lived in Willmar. With the 

help of her parents and a friend who could watch the children 

during the day, Juana had taken a job at a turkey processing 

facility. However, since she lacked legal documentation, she 

had used a false name and falsified driver’s license, Social 

Security card, and birth certificate to apply for the job. She 

was charged with felony counts of forgery and using false 

identification.

While in the custody of Willmar police, Juana disclosed 

that her relocation from Norfolk had been an escape from 

Carlos. She said that Carlos had physically and sexually 

abused her and had physically abused the children. Questioned 

why she had not disclosed Carlos’ abuse sooner, Juana stated 

that she had not thought the police could help. She said that 
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it was not something that people typically did in her culture 

because police there would unlikely help anyway. Based on 

this account, Juana began working with an immigration attorney to apply for asylum and a visa.

In the Willmar criminal case, Juana ultimately pled guilty 

to one felony count of forgery. Pursuant to a plea deal, the 

remaining charge was dismissed. She was discharged based on 

time served and ordered to complete probation. She was then 

extradited to Nebraska to face the felony charge for violation 

of custody. And because she was undocumented, a hold was 

placed on her by U.S. Immigration and Customs Enforcement 

(ICE) authorities.

21 Months in Custody

When Juana was returned to Nebraska, her children had 

already been back in the state for approximately 2 months. 

From their temporary foster care in Willmar, they had been 

picked up by a DHHS social worker and returned to the 

Norfolk area. Much of Juana’s family was apparently not 

considered for placement due to DHHS’ refusal to place the 

children with family members who were undocumented. The 

record indicates Juana supplied at least one name of an individual who was documented, but the record does not indicate 

that DHHS considered that individual for placement. It is also 

unclear whether Juana understood that if she had provided the 

names of other documented relatives, DHHS would have been 

required to prioritize placement with them over agency based 

foster parents. 1 Regardless, the children were placed with 

agency based foster parents.

The foster parents were particularly chosen because the 

foster mother could speak Spanish. DHHS believed that she 

would thus help the children maintain the ability to communicate with Juana, who herself had learned some Spanish. All 

1 See In re Interest of Karlie D., 283 Neb. 581, 811 N.W.2d 214 (2012). 

See, also, Neb. Rev. Stat. § 43-246(5) (Cum. Supp. 2020); Neb. Rev. Stat. 

§ 43-533(4) (Reissue 2016).
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reports indicate that the foster parents generally provided good 

care for the children. However, the foster mother did not speak 

Spanish with the children. According to the foster mother, this 

was because the children did not want to speak Spanish. As 

a result, the children were soon able to speak and understand 

only English.

Due in part to the language barrier that quickly developed, 

and due to the lack of contact that Juana was afforded with 

her children, communication between Juana and her children 

faltered. For approximately the next 10 months, Juana was held 

in the Madison County jail awaiting resolution of the violation of custody charge. During this time, she was allowed no 

in-person visits with her children and few phone calls. Only 

noncontact visits separated by a glass window were allowed 

under the jail’s policy, and despite Juana’s requests for such 

visits, DHHS social workers stated they “d[id] not like to do 

that, especially with babies.” Accepting that rationale, the juvenile court stated multiple times that due to Juana’s incarceration, reasonable efforts toward visitation that might otherwise 

be put in place were not available. The children’s permanency 

goal remained reunification with Juana.

Because of concerns about Juana’s competency to stand trial 

on the violation of custody charge, she was transferred to the 

Lincoln Regional Center, a psychiatric hospital, for evaluation. 

There, Juana was found not to have innate cognitive delays 

or mental illness. It was determined that she instead suffered 

from a lack of basic understanding about the court process, 

likely due to differences in culture, language, and education. 

After approximately 4 months of treatment, Juana was deemed 

restored to competence.

Although the Lincoln Regional Center did not limit visitation during those 4 months, visits there between Juana and 

her children proved a point of contention between the parties. Upon arrival, Juana promptly moved for visitation that 

was then resisted by the State; the children’s new guardian ad 

litem, who had been appointed to replace the initial one; and 
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the foster parents. Nevertheless, the juvenile court ordered that 

Juana be allowed to visit the children:

I understand that there’s a policy that [DHHS] doesn’t 

like to bring children into the jail to have noncontact 

visits or to visit their parents through a glass screen, but 

at this point in time there is now an offer by the Lincoln 

Regional Center to provide a supervised in-person visit, 

and to not consider that I think would be to indicate 

that we have no intention of providing any reunification 

efforts toward this family.

Still, during her time at the Lincoln Regional Center, Juana 

was permitted only three in-person visits with the children. The 

children’s permanency plan during this time was changed to 

concurrent goals of reunification and adoption.

Juana was next returned to the Madison County jail. She 

remained there for 1 month, again without any in-person visits 

with the children. The State and the new guardian ad litem for 

the children renewed their resistance to any in-person visits, 

with the State arguing, “They’re a maximum half an hour. It’s 

through the glass. It — and I think only one child can be present at a time. I am not quite certain. That’s my understanding. 

So it — [DHHS] opposes any visits in jail given the nature of 

the its noncontact.”

Juana’s violation of custody charge was ultimately resolved 

pursuant to a plea deal. In exchange for the State’s reducing 

the felony charge to a misdemeanor, Juana agreed to plead 

guilty. She was sentenced to time served and discharged from 

Madison County’s custody. However, due to the hold placed on 

her by ICE, she was transported from jail to an ICE detention 

facility in Grand Island, where she remained for 2 months, still 

without visitations. She was finally released from ICE detention in February 2020, during the trial in this case.

Petition to Terminate Parental Rights

In September 2019, with the fathers’ parental rights already 

terminated, the State filed a petition to terminate Juana’s 
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parental rights. The petition alleged four bases for terminating Juana’s parental rights under Neb. Rev. Stat. § 43-292 

(Reissue 2016).

Trial on the State’s petition was held over 7 days from 

February to July 2020. During trial, the juvenile court heard 

testimony from approximately 40 witnesses and received 

almost 80 exhibits. Most of the State’s evidence concerned the 

procedural history discussed above, with social workers and 

police recounting the proven instance of neglect, Juana’s criminal conduct that led to her incarceration and detention, and the 

children’s ensuing out-of-home placement in foster care.

Juana then provided her own account of the above events. 

According to her testimony, she had grown up in a poor 

Guatemalan community. Pregnant at age 12, she had been 

abandoned by her then-boyfriend 2 months into her pregnancy. 

He had immigrated to the United States, leaving her with his 

family. They had “treated [her] like a slave” and had even 

attempted to steal Mateo from her once he was born. She had 

fought to keep Mateo; to protect him, she had run away and 

begun living in a nearby town with her grandmother, who 

could watch Mateo while she worked.

Juana stated that one day while she was walking to work 

from her grandmother’s house, she had been attacked and 

raped. Her attacker had threatened to kill her family if she 

reported anything to police, and she had known that even if 

she reported what had happened, local police would unlikely 

take action to help her. Then, on a second occasion, the same 

attacker had raped her again, and this time, she had become 

pregnant as a result. Upon the birth of her second child, Pedro, 

she had realized the need to escape Guatemala to make a better, safer life for her children. Accordingly, at age 16, she had 

made the dangerous trip north through Mexico and had hired 

a “coyote” to smuggle her and her children across the border 

into Texas.

Soon after reaching American soil, Juana and the children 

had been apprehended by ICE agents, Juana explained. ICE 
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apparently had given her a notice to appear in court, but she 

had not understood the notice. Instead, with money sent by 

her parents, she had bought tickets and, with the children, had 

boarded a bus to Norfolk, where her parents were living.

Juana said that after arriving in Norfolk, she had begun 

dating Carlos. He had initially been kind to her and her children, but he had changed after they had moved in with him. A 

heavy drinker, he would physically and sexually abuse Juana 

and physically abuse her children. According to Juana, he 

would “hit me on the nose,” “pull me by my hair,” “grab me 

by my throat,” “hit me in the back [and] on my back with an 

electric[al] cord,” “hit my children,” and “take [the children] 

to the bathroom and put them in cold water” before throwing 

them outside into the snow and then “beat[ing] them a lot.”

Juana had become pregnant with Bryan, she said, but Carlos 

had demanded that she not disclose to anyone that the baby 

was his. He had ordered Juana to refer to him as her “cousin” 

and had said that if she told anyone about his abuse, he 

would hurt her and the children. When Carlos went to work, 

he would typically lock Juana and the children inside a room. 

He would only allow her to have what she termed a “dumb 

phone,” meaning that it could not access the internet and allow 

her to contact relatives for help.

According to Juana, one day after she had attended a prenatal appointment, Carlos had raped her. She had warned him 

of her doctor’s urging to abstain from sex at this stage of pregnancy, but Carlos, saying that he did not care what the doctor 

said, had forced himself upon her. As a result of being raped, 

Juana had gone into premature labor and had given birth to 

Bryan in her house before an ambulance could arrive to bring 

her to a hospital.

Juana explained that the basis for her children’s initial 

adjudication—that she had neglected them by leaving them at 

home unsupervised—had not been due to her choice. She had 

scheduled a ride to Bryan’s doctor’s appointment and had been 

readying the children to go with her. But Carlos, apparently 
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in a hurry, had pulled Juana’s hair and pushed her, insisting 

that they would be late. He had urged her to leave Mateo and 

Pedro in the house alone, watching television. Even though 

Juana had protested, he had threatened her and had ordered 

her to do as he said. It was that incident, prompted by Carlos’ 

coercion, that had led to the neglect charge and had resulted in 

the children’s adjudication.

Juana also elaborated on what she had previously reported 

regarding her relocation to Minnesota. She said she had been 

driven to escape upon witnessing Carlos, without provocation, 

hurl a toy at Mateo’s head. After tending to Mateo’s injury, she 

had taken Carlos’ “smartphone” and, using its internet connection, had contacted her cousin in Willmar, asking him to help 

her and the children flee from Carlos. The cousin had done so, 

and she and the children had arrived in Willmar where she had 

gained employment at a turkey processing facility. She had 

been proud of that job because it had allowed her to provide 

for her children. She said that she hoped to provide for them in 

the future, too.

Juana acknowledged having lied to social workers about 

where she had gone, but she said that she had done so out of 

fear that Carlos might find where she and the children were 

living. Despite conceding that she had made certain mistakes, 

Juana concluded by stating that since Mateo’s birth, all of her 

actions had been motivated by her desire to protect her children 

and make a better life for them.

By the time Juana testified at the end of trial, she had 

been discharged from jail and from ICE detention. Her immigration attorney testified that based on her narrative of the 

above events, Juana had recently appeared before an immigration judge and had been granted asylum to remain in the 

United States. Her deportation proceedings were ended, and 

she would soon be granted legal authorization to work in the 

United States. She would also soon be eligible for lawful permanent resident status. Several other witnesses for Juana also 

emphasized that she was stable, living in a safe home with 
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one of the service providers she had first met upon her arrival 

in Norfolk, and that she was eager to deepen her bonds with 

her children.

Some of the facts alleged in Juana’s testimony were disputed 

by the State. For example, while at least one witness remembered seeing the lock on Juana’s bedroom door that Carlos had 

allegedly used to keep her and the children in the room, several 

other witnesses stated they did not remember seeing any such 

lock. The State used this testimony to question whether Juana 

and the children had, in fact, been locked in the room by Carlos 

and deprived of the ability to seek help or contact police. The 

State also suggested that Juana’s allegations of rape and abuse 

were false and nothing more than convenient vehicles to obtain 

leniency in her criminal and immigration cases. However, most 

of Juana’s testimony went undisputed.

Order Dismissing Petition to 

Terminate Parental Rights

After hearing the above evidence, the juvenile court issued 

an order denying termination. The order began by summarizing 

the relevant facts, including those stated in Juana’s testimony. 

Based on its observation of Juana on the stand, the juvenile 

court found her testimony highly credible:

Her testimony has not been controverted in any major 

way. The County Attorney has attempted to impeach her 

testimony by questioning the reasonableness of it. She 

was impeached as to prior statements she had made to 

the service providers concerning where her parents lived 

at the outset of the case, and what Carlos’ relation to her 

family was, and the identity of the fathers of her children. 

Those inconsistencies are concerning. . . .

. . . While there have been some inconsistent statements 

made to others, the court finds Juana to be a credible witness when she described her life both in Guatemala and 

in Norfolk. I watched her imperceptible head jerk when 

she testified that Carlos grabbed her by her hair when 

he was angry. The testimony that he locked her in the 
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room in the first house is supported by the fact that locks 

were observed on the outside of the door.

Then, upon addressing each of the four statutory bases for 

termination alleged in the State’s petition, the juvenile court 

concluded that each was unfounded. It also found that the 

State had failed to show that termination was in the children’s 

best interests. The juvenile court thus dismissed the State’s 

petition to terminate and ordered the children’s permanency 

plan amended so that reunification with Juana would be the 

children’s sole permanency goal, with “robust reunification 

efforts” being made. Visitation was ordered to begin within 

2 weeks.

The State timely appealed, and the children’s guardian ad 

litem filed a cross-appeal, joining the State’s arguments in 

support of termination. On the guardian ad litem’s motion, we 

moved this appeal to our docket.

ASSIGNMENTS OF ERROR

At issue in this appeal is whether Juana’s parental rights 

should be terminated. The State assigns, restated, that the juvenile court erred in denying the State’s petition to terminate. The 

guardian ad litem on cross-appeal joins the State’s assignment 

of error and further assigns, restated, that the juvenile court 

erred in finding the mother’s testimony credible.

STANDARD OF REVIEW

[1,2] We begin by setting forth the legal backdrop for this 

case. 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 However, when the 

evidence is in conflict, an appellate court may consider and 

give weight to the fact that the juvenile court observed the 

witnesses and accepted one version of the facts over another. 3

2 See In re Interest of Prince R., 308 Neb. 415, 954 N.W.2d 294 (2021).

3 See id.
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ANALYSIS

[3,4] In Nebraska, the grounds for terminating parental 

rights are codified in § 43-292. That statute contains 11 separate subsections, any one of which can serve as a basis for 

termination when coupled with evidence that termination is in 

the best interests of the child. 4 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. 5

Statutory Basis for Termination

We turn to the statutory bases alleged here. In its petition, 

the State sought to terminate Juana’s parental rights under 

§ 43-292(2), (3), (6), and (7). The juvenile court, however, 

found all four unavailing. For the reasons set forth below, we 

find that the State met its burden with respect to § 43-292(7).

Section 43-292(7) 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.” The juvenile 

court, despite acknowledging that “[o]n its face, the State 

certainly prevails on this allegation,” concluded that the 

§ 43-292(7) criteria were unsatisfied because of two “exceptions” to the statute. First, the juvenile court found that it was 

improper under Neb. Rev. Stat. § 43-292.02(2)(b) (Cum. Supp. 

2020) for Juana’s term of incarceration to be “the sole factual 

basis” for the 15 months’ out-of-home placement. And second, 

the juvenile court reasoned, since DHHS had failed to make 

reasonable efforts to reunify, termination was forbidden by 

§ 43-292.02(3)(c). We disagree with both rationales.

[5-7] While we obviously consider other factors during our 

assessment of the child’s best interests, 6 we are not free to 

4 See, § 43-292; In re Interest of Leyton C. & Landyn C., 307 Neb. 529, 949 

N.W.2d 773 (2020).

5 See In re Interest of Leyton C. & Landyn C., supra note 4.

6 See, In re Interest of Kendra M. et al., 283 Neb. 1014, 814 N.W.2d 747 

(2012); In re Interest of Angelica L. & Daniel L., 277 Neb. 984, 767 

N.W.2d 74 (2009).
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do so during our analysis under § 43-292(7). That is because 

statutory language is to be read according to its plain and 

ordinary meaning. 7 And by the plain and ordinary meaning 

of the language in § 43-292(7), there are no exceptions to the 

condition of 15 out of 22 months’ out-of-home placement. 

That period of time was set by the Legislature as a guideline 

for what would be a reasonable time for parents to rehabilitate 

themselves to a minimum degree of fitness. 8 Accordingly, 

we have said that “[§] 43-292(7) 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.” 9 In other words, if the 15-out-of-22 formula is met, 

§ 43-292(7) is met.

In this case, the children were placed out of Juana’s home 

when she was arrested in May 2018. They remained in 

out-of-home placement with foster parents through at least 

May 2020, when trial ended. That period easily satisfies the 

15-out-of-22 formula.

[8] The supposed “exceptions” to § 43-292(7) relied on 

by the juvenile court do not alter application of this formula. 

It is true, as the juvenile court noted, that § 43-292.02(2)(b) 

prohibits incarceration from being relied upon as “the sole 

factual basis” for termination. 10 But where, as here, termination is grounded in § 43-292(7), incarceration is not being 

relied upon as “the sole factual basis”; instead, the children’s 

out-of-home placement is being relied upon. Out-of-home 

7 See Wayne L. Ryan Revocable Trust v. Ryan, 308 Neb. 851, 957 N.W.2d 

481 (2021).

8 See, In re Interest of Leyton C. & Landyn C., supra note 4; In re Interest 

of Nicole M., 287 Neb. 685, 844 N.W.2d 65 (2014).

9 In re Interest of Aaron D., 269 Neb. 249, 260, 691 N.W.2d 164, 173 

(2005). Accord In re Interest of Justin H. et al., 18 Neb. App. 718, 791 

N.W.2d 765 (2010).

10 See, In re Adoption of Micah H., 301 Neb. 437, 918 N.W.2d 834 (2018); 

In re Interest of Jahon S., 291 Neb. 97, 864 N.W.2d 228 (2015); In re 

Interest of Zanaya W. et al., 291 Neb. 20, 863 N.W.2d 803 (2015).
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placement is itself defined by the Legislature as an independent ground for termination, since “[c]hildren cannot, and 

should not, be suspended in foster care or be made to await 

uncertain parental maturity.” 11 The juvenile court’s reliance on 

§ 43-292.02(2)(b) in this case as an exception to § 43-292(7) 

is therefore misplaced.

The juvenile court’s reliance on § 43-292.02(3)(c) fares no 

better. While § 43-292.02(1) mandates that a petition to terminate “shall be filed” by the State if certain conditions are 

met, § 43-292.02(3)(c) tempers that mandate. It clarifies that 

the State “is not required” to file such a petition “if . . . [t]he 

family of the juvenile has not had a reasonable opportunity to 

avail themselves of the services deemed necessary in the case 

plan or permanency plan approved by the court if reasonable 

efforts to preserve and reunify the family are required under 

section 43-283.01.” 12

[9] Contrary to the juvenile court’s interpretation, however, 

that clarifying language does not prohibit the State from filing 

a petition to terminate. Rather, § 43-292.02(3) states only that 

when a family has not been provided a reasonable opportunity 

for reunification, the State “is not required” to seek termination. In a similar context, we have stated that “reasonable 

efforts to reunify a family are required under the juvenile 

code only when termination is sought under § 43-296(6).” 13

It would not offend § 43-292.02(3)(c) that the State moved 

to terminate under § 43-292(7), even assuming arguendo that 

DHHS had not made reasonable efforts to reunify Juana and 

the children.

11 In re Interest of Alec S., 294 Neb. 784, 797-98, 884 N.W.2d 701, 709 

(2016). Accord, In re Interest of Jahon S., supra note 10; In re Interest of 

Nicole M., supra note 8.

12 § 43-292.02(3)(c).

13 In re Interest of Hope L. et al., 278 Neb. 869, 891, 775 N.W.2d 384, 400 

(2009) (emphasis supplied), citing In re Interest of DeWayne G. & Devon 

G., 263 Neb. 43, 638 N.W.2d 510 (2002). Accord In re Interest of Ky’Ari 

J., 29 Neb. App. 124, 952 N.W.2d 715 (2020).
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The juvenile court’s analysis under § 43-292(7) was therefore in error. The State has shown clearly and convincingly that 

there exists a statutory basis for termination in this case. And 

since any one of the bases for termination codified in § 43-292 

can serve as the basis for termination, we need not consider the 

sufficiency of the evidence concerning the State’s other statutory bases for termination. 14

Best Interests of Child

We next consider whether termination is in the children’s 

best interests. In light of Juana’s circumstances, her relationship with her children, and her consistent efforts to reunify with 

them, we conclude on our de novo review that it is not.

[10,11] Under § 43-292, it is the State’s burden by clear and 

convincing evidence to show that there not only exists a statutory basis for termination but that termination is in the best 

interests of the child. 15 Whereas statutory grounds are based 

on a parent’s past conduct, the best interests inquiry focuses 

on the future well-being of the child. 16 This second hurdle is 

a high one for the State, since a parent’s right to raise his or 

her children is constitutionally protected. 17 As we have stated 

before, “the Due Process Clause of the U.S. Constitution would 

be offended ‘“[i]f a State were to attempt to force the breakup 

of a natural family, over the objections of the parents and their 

children, without some showing of unfitness . . . .”’” 18

[12,13] As such, we apply a rebuttable presumption that it 

is in the child’s best interests to maintain a relationship with 

14 See, In re Interest of Leyton C. & Landyn C., supra note 4; In re Interest 

of Noah C., 306 Neb. 359, 945 N.W.2d 143 (2020).

15 See In re Interest of Leyton C. & Landyn C., supra note 4.

16 See Kenneth C. v. Lacie H., 286 Neb. 799, 839 N.W.2d 305 (2013).

17 See In re Interest of Leyton C. & Landyn C., supra note 4.

18 In re Interest of Xavier H., 274 Neb. 331, 348, 740 N.W.2d 13, 24 (2007), 

quoting Quilloin v. Walcott, 434 U.S. 246, 98 S. Ct. 549, 54 L. Ed. 2d 511 

(1978).
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his or her parent. 19 That presumption can only be overcome by 

a showing that the parent is either unfit to perform the duties 

imposed by the relationship or has forfeited that right. 20 Here, 

because Juana has consistently fought any attempts to terminate her relationship with her children, the question is whether 

she is unfit to perform her duties as a parent.

[14-16] Although the term “unfitness” is not expressly stated 

in § 43-292, we have said that it derives from the fault and 

neglect subsections of that statute and from an assessment of 

the child’s best interests. 21 In this context, parental unfitness 

means a personal deficiency or incapacity that has prevented, 

or will probably prevent, performance of a reasonable parental 

obligation in child rearing and that has caused, or probably will 

result in, detriment to a child’s well-being. 22 The best interests 

and parental unfitness analyses require separate, fact-intensive 

inquiries, but each examines essentially the same underlying facts. 23

Upon its analysis of those facts, the juvenile court found 

that the State had “not prove[d] that Juana is an unfit parent. 

While she may have some intense work to do, it appears she 

has the ability and willingness to so rehabilitate herself if she 

is provided with the rehabilitation tools generally provided to 

parents.” The juvenile court thus concluded that termination is 

not in the best interests of the children. We agree.

The State’s involvement in this case began when police 

discovered that Juana had left two of her children, then ages 

2 and 4, unsupervised at home. At the adjudication hearing in 

2017, Juana admitted to having neglected her children on that 

one occasion, but no more, and neither the State nor guardian 

19 See In re Interest of Leyton C. & Landyn C., supra note 4.

20 See id.

21 See, In re Interest of Nicole M., supra note 8; In re Interest of Ky’Ari J., 

supra note 13.

22 See In re Interest of Leyton C. & Landyn C., supra note 4.

23 See id.
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ad litem objected to the juvenile court’s acceptance of that limited admission.

The State now alleges that prior to that hearing, Juana had 

“repeatedly” left the children unsupervised at home while she 

went to appointments. 24 But that allegation was not factually 

supported at the adjudication hearing in 2017. And if indeed 

the State had believed that Juana was making a practice of 

leaving her children unsupervised at home and that such conduct warranted termination, the State could have moved to 

terminate Juana’s parental rights at the hearing. It did not. 

The State did not even deem the circumstances dire enough to 

necessitate the children’s out-of-home placement. We are thus 

left with evidence of only one instance of Juana’s leaving her 

children unsupervised at home. This does not amount to parental unfitness warranting termination.

The State and guardian ad litem also direct us to other evidence of neglect in our record. They cite Juana’s failure to 

expediently meet her children’s health needs. They also cite 

the 21 months she spent in jail and immigration detention away 

from her children. We are not persuaded that our record reveals 

unfitness regarding either issue.

In In re Interest of Angelica L. & Daniel L.,

 25 we characterized an immigrant mother’s arrest and failure to expediently 

seek attention for her children’s medical needs as “obvious 

mistakes” in judgment. Yet, we still held that those mistakes were “insufficient lapses to establish her unfitness to 

parent.” 26 After all, “the law does not require the perfection 

of a parent.” 27 In assessing her fitness, we considered such 

24 Brief for appellant at 26.

25 In re Interest of Angelica L. & Daniel L., supra note 6, 277 Neb. at 1008, 

767 N.W.2d at 93.

26 Id.

27 Id. at 1007, 767 N.W.2d at 93, citing In re Interest of Xavier H., supra note 

18, and In re Interest of Aaron D., supra note 9. Accord In re Interest of 

Leyton C. & Landyn C., supra note 4.
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factors as the gravity of lapses in her judgment, the sincerity 

of those lapses, her willingness to learn about how to avoid 

similar mistakes in the future, and whether she appeared likely 

to recidivate. 28

Applying those factors here, we acknowledge that, for reasons not clearly available in the record, Juana was slow to seek 

medical treatment for her children. As a result, the children 

faced medical issues, including Bryan’s “flat head,” Mateo’s 

dental problems, and all three children’s bedbugs and scabies. 

And those issues needed attention. We have found in other 

cases that a parent’s failure to seek appropriate medical care 

for a child, under certain circumstances, demonstrated parental unfitness. 29

But unlike in those other cases, where, for example, parents had actively disconnected their child’s feeding tube to 

the point that he entered a starvation state, 30 Juana’s lapses in 

judgment were not the result of apathy toward her children or 

selfishness. To the contrary, our record suggests that she was 

sincere in wanting the best for her children. As a DHHS social 

worker acknowledged, “[Juana] didn’t understand” much of 

the English language, how to use U.S. money, or that the medical treatment the children needed was available in Norfolk. 

And her lack of comprehension was only compounded by 

Carlos’ coercion, which frustrated her ability to reach out for 

help. Still, Juana did, when possible, seek and accept help, 

including from DHHS social workers, and even before their 

involvement, from various service providers. With their help, 

Juana scheduled appointments for her children and was regularly attending appointments until she and the children left for 

Minnesota. In contrast to cases in which we have found a 

28 See, In re Interest of Angelica L. & Daniel L., supra note 6; In re Interest 

of Elijah P. et al., 24 Neb. App. 521, 891 N.W.2d 330 (2017).

29 See, e.g., In re Interest of Hope L. et al., supra note 13; In re Interest of 

J.B. and A.P., 235 Neb. 74, 453 N.W.2d 477 (1990).

30 See, e.g., In re Interest of Hope L. et al., supra note 13.
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parent responsible for allowing a child to remain in an abusive 

situation, 31 Juana claimed that her relocation to Minnesota was 

for the purpose of removing her children from Carlos’ abuse. 

The trial court credited Juana’s testimony on this point, and 

the State has provided no compelling reason for us not to do 

the same.

In addition, the State does not allege that the children’s 

medical issues will continue to seriously affect the children 

in the future. While the bedbugs and scabies were apparently 

severe, the record indicates that Juana tried to remedy the 

problem by moving with her children to a different house and 

discarding household items that she believed were dirty and 

infested. Those efforts were met “with some, but not complete 

success,” the juvenile court found. And the issues with Bryan’s 

“flat head” appear to have been resolved. Even Mateo’s dental 

issues, the longest-lasting medical problem faced by any of 

the children, have been remedied by a surgery to remove two 

teeth and place “caps” on numerous others. It is true that this 

procedure was performed while Mateo was in the care of the 

foster parents, not Juana; nevertheless, the fact that his dental 

issues could be remedied by one relatively common procedure 

suggests to us that the issues were not so severe that they will 

affect him throughout his life. Thus, as we said in In re Interest 

of Angelica L. & Daniel L., “[w]hile we recognize and express 

concern over [this mother’s] medical judgment, we disagree 

that such error in judgment warranted termination of her parental rights.” 32

We recognize also that Juana’s actions that led to her 

arrest, incarceration, and detention were wrong. She entered 

the United States illegally, failed to appear for her hearing 

before an immigration judge, violated a custody order, and 

used falsified documentation to obtain a job. Each of those 

31 See, e.g., In re Interest of J.B. and A.P., supra note 29.

32 In re Interest of Angelica L. & Daniel L., supra note 6, 277 Neb. at 1007, 

767 N.W.2d at 93.
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actions was voluntary and in violation of the law. As the State 

observes, such actions may be considered in a termination proceeding, insofar as they reflect on the child’s best interests and 

parental fitness. 33 In considering a parent’s arrest and incarceration in this way, we generally take note of the nature of the 

crimes committed, as well as the parent’s conduct before and 

during incarceration. 34

In this case, our assessment of Juana’s criminal conduct 

depends on how much credence we give Juana’s testimony. 

The guardian ad litem contests the veracity of Juana’s narrative 

in whole based on discrepancies in her testimony regarding 

her and her children’s dates of birth, her destination when she 

left Norfolk, and whether she was, in fact, repeatedly raped 

and abused.

However, the guardian ad litem fails to show that these 

minor discrepancies undermine the whole of Juana’s testimony, which, as noted above, went largely undisputed at trial. 

Moreover, the juvenile court, having observed Juana’s testimony, found her to have been a “credible witness when she 

described her life both in Guatemala and in Norfolk.” On our 

de novo review, we give weight to that finding and thus to 

Juana’s testimony. 35

According to Juana’s testimony, she was 16 years old, a 

juvenile herself, when she crossed the U.S. border illegally, 

hoping to make a better, safer life for her children. She said 

that her failure to appear for immigration court was because 

she did not understand the notice to appear. After some time 

spent in Norfolk, where she said that she and her children 

were abused, they fled to Minnesota. She was arrested there 

for forgery and using false identification. According to Juana’s 

testimony, both charges were the result of her desire to obtain 

work to support her children.

33 See, In re Adoption of Micah H., supra note 10; In re Interest of Jahon S., 

supra note 10.

34 See, e.g., In re Adoption of Micah H., supra note 10.

35 See In re Interest of Prince R., supra note 2.
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In considering Juana’s offenses against the context she provided by her testimony, we do not diminish the seriousness of 

her actions. We merely note that those actions do not reflect the 

likelihood of future criminality so much as they signal her reasonably held belief that at the time, she had no good options. 

We are also encouraged that Juana has now served her time 

for those offenses and is in a safe living situation with one of 

her previous service providers. She has been granted asylum 

to stay in the country legally and is on a path toward working 

legally and contributing to society. As we said before, “we do 

not conclude that [this immigrant mother’s] attempt to bring 

herself and her child[ren] into the United States, in the belief 

that they would have a better life here, shows an appreciable 

absence of care, concern, or judgment.” 36

The State argues that this case is distinguishable from In 

re Interest of Angelica L. & Daniel L.,

 37 because, unlike in 

that case, “criminal charges were [actually] pursued” against 

Juana. 38 But the State fails to support that distinction with an 

explanation as to its import. To the extent the State implies that 

Juana’s offenses were more serious, we counter by observing 

that the result of her offenses is far less consequential to the 

analysis we must perform. Because at this stage of inquiry we 

are concerned with the future well-being of the children, the 

result of Juana’s offenses is highly relevant here. 39 Whereas in 

In re Interest of Angelica L. & Daniel L., the mother’s charge 

resulted in her deportation, Juana has been granted asylum 

and will soon have authorization to work. 40 Therefore, while 

she was alleged to have committed more offenses than the 

36 In re Interest of Angelica L. & Daniel L., supra note 6, 277 Neb. at 1007, 

767 N.W.2d at 93.

37 Id.

38 Brief for appellant at 39.

39 Kenneth C. v. Lacie H., supra note 16.

40 See In re Interest of Angelica L. & Daniel L., supra note 6.
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mother in In re Interest of Angelica L. & Daniel L., Juana’s 

charges have less bearing on her future fitness as a mother. 41

In other words, as noted below, Juana is now here in Nebraska 

with support services available for any parental shortcomings 

she may have. Her lengthy stay in jail and detention was at 

least partially due to her vigorous defense of her right to remain 

in this country with her children, and we do not fault her for 

the vigor of that defense. While Juana’s criminal offenses were 

serious, they appear to be behind her and do not overcome our 

constitutionally informed presumption of parental fitness.

[17,18] We are left to consider the children’s out-of-home 

placement that resulted from Juana’s arrest, incarceration, and 

detention. As noted above, the State has shown clearly and convincingly that the children’s period of out-of-home placement 

meets the statutory basis for termination under § 43-292(7). 

Yet, while § 43-292(7) generally “‘serves the purpose of 

providing a reasonable timetable for parents to rehabilitate 

themselves,’” 42 we have observed that

“termination based on the ground that a child has been in 

out-of-home placement for 15 of the past preceding 22 

months is not in a child’s best interests when the record 

demonstrates that a parent is making efforts toward reunification and has not been given a sufficient opportunity 

for compliance with a reunification plan.” 43

Here, despite the children’s out-of-home placement, the 

record indicates that Juana has made progress as a parent. The 

juvenile court went so far as to say that “enormous strides 

have been made” by Juana. No longer is she incarcerated. No 

longer is she in an abusive relationship. No longer is she at 

risk of deportation. Instead, she has been granted asylum and 

41 See id.

42 In re Interest of Aaron D., supra note 9, 269 Neb. at 261, 691 N.W.2d at 

173, quoting In re Interest of Mainor T. & Estela T., 267 Neb. 232, 674 

N.W.2d 442 (2004).

43 Id. Accord In re Interest of Alec S., supra note 11.
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is living in a secure home with a friend, who is a positive influence and is teaching her English and any previously lacking 

parenting skills.

[19] Parental obligation requires a continuing interest in 

the children and a genuine effort to maintain communication and association with the children. 44 Since her children’s 

out-of-home placement, Juana has taken every opportunity 

afforded her to reengage face-to-face and to speak with them. 

This is not a case of “[]last-minute attempts by [a] parent[] to 

comply with the rehabilitation plan . . . .” 45 While her interactions may have not always been meaningful, that has not been 

for a lack of her continuing interest or genuine effort.

And moreover, the State has failed to show that Juana is any 

longer leaving her children unsupervised. Nor has the State 

shown any evidence of a condition, such as addiction, 46 that is 

likely to remain with Juana and continuously affect her ability 

to parent. The State has not shown that absent termination, the 

children will likely be “suspended in foster care or . . . made 

to await uncertain parental maturity.” 47

[20] We are aware that the children have been well cared 

for by the foster parents. But that “the foster parents in this 

country might provide a higher standard of living does not 

defeat [the parent’s] right” to maintain the constitutionally 

protected relationship with his or her child. 48 Indeed, our best 

interests analysis is centered on a premise that absent parental 

unfitness, preserving the relationship between a parent and 

44 In re Interest of Isabel P. et al., 293 Neb. 62, 875 N.W.2d 848 (2016).

45 See In re Interest of Alec S., supra note 11, 294 Neb. at 796, 884 N.W.2d 

at 709.

46 See, e.g., In re Interest of Leyton C. & Landyn C., supra note 4.

47 In re Interest of Alec S., supra note 11, 294 Neb. at 797-98, 884 N.W.2d 

at 709. Accord, In re Interest of Jahon S., supra note 10; In re Interest of 

Nicole M., supra note 8.

48 In re Interest of Angelica L. & Daniel L., supra note 6, 277 Neb. at 1012, 

767 N.W.2d at 96.
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child will be in the child’s best interests. 49 We are expressly 

forbidden by statute from considering the foster parents’ fitness in that assessment. Under § 43-292.02, the foster parents’ 

fitness and willingness to adopt “shall have no bearing on 

whether parental rights shall be terminated.” 50

Accordingly, while we commend the foster parents for their 

care of Juana’s children, we are not swayed from our conclusion that the State has failed to meet its heavy burden of 

clearly and convincingly proving her unfitness as a mother. 

Termination of her parental rights is not in her children’s 

best interests.

CONCLUSION

We affirm the juvenile court’s order dismissing the State’s 

petition to terminate Juana’s parental rights.

Affirmed.

49 See, In re Interest of Leyton C. & Landyn C., supra note 4; In re Interest 

of Noah C., supra note 14.

50 See § 43-292.02(2).

Heavican, C.J., concurring.

I concur with the majority’s opinion affirming the juvenile 

court’s denial of the State’s petition to terminate Juana’s parental rights. As the opinion notes, the State alleged four statutory 

bases for termination and proved the mathematical formula of 

Neb. Rev. Stat. § 43-292(7) (Reissue 2016). As such, it was not 

necessary for the majority to reach the State’s other statutory 

bases alleged for termination. I write separately, however, to 

discuss one of them and to express my concern over the failings of the Department of Health and Human Services (DHHS) 

in this case.

One of the State’s bases for termination, § 43-292(6), allows 

for termination when, “[f]ollowing a determination that the 

juvenile is one as described in subdivision (3)(a) of section 

43-247, reasonable efforts to preserve and reunify the family 

if required under section 43-283.01, under the direction of 
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the court, have failed to correct the conditions leading to the 

determination.”

Due to the children’s adjudication in 2017 for the instance of 

neglect, it is undisputed that at all times relevant to this appeal, 

Juana’s children were subject to Neb. Rev. Stat. § 43-247(3)(a) 

(Reissue 2016) and DHHS was required to provide “reasonable efforts . . . to preserve and reunify the family” under 

Neb. Rev. Stat. § 43-283.01 (Cum. Supp. 2020). Accordingly, 

to meet its burden for termination under § 43-292(6), the 

State needed to prove, by clear and convincing evidence, that 

DHHS had provided such efforts and that such efforts had 

failed to correct the conditions that had led to the children’s 

2017 adjudication. 1

Contrary to the State’s assertion in its petition, however, 

the juvenile court found that DHHS had not provided reasonable efforts to reunify Juana with her children. The court 

distinguished between the time before and after the children’s 

out-of-home placement. Before out-of-home placement, the 

court acknowledged that through in-home services and the like, 

DHHS’ efforts had been reasonable in trying to prevent the 

children’s removal from Juana’s home. But after the children’s 

removal, the court found that DHHS’ efforts to reunify had 

been “insufficient or non-existent.” I agree that DHHS’ efforts 

to reunify were insufficient.

The children’s out-of-home placement began in May 2018, 

when Juana was arrested and her children were taken into 

temporary foster care. From that time until June 2018, Juana 

remained in the custody of Willmar police. She then spent 10 

months in the Madison County jail, 4 months at the Lincoln 

Regional Center, another month at the Madison County jail, 

and finally 4 months in a U.S. Immigration and Customs 

Enforcement (ICE) detention facility. At the beginning of 

trial, Juana had been held, with her children in foster care, for 

1 See In re Interest of Leyton C. & Landyn C., 307 Neb. 529, 949 N.W.2d 

773 (2020).
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a total of 21 months. Reasonable efforts to reunify the family were required throughout those 21 months, 2 yet DHHS 

provided Juana only three in-person visits with her children 

and minimal other meaningful contact, due in no small part to 

DHHS’ failure to encourage the children to maintain a common 

language and culture with their mother.

As an initial matter, I note that the best thing DHHS 

could have done at the start of out-of-home placement would 

likely have been to place the children with Juana’s relatives. 

Our record evidence indicates that Juana had relatives in the 

United States, including her parents. The children’s placement 

with them might have eased many of the challenges of coordinating visits and contact between Juana and her children, and 

it would have allowed the children to maintain their understanding of the K’iche’ language and of their mother’s culture. 

Indeed, for these reasons among others, DHHS is required to 

prioritize placement with approved relatives over other foster parents. 3

But DHHS apparently refused to place the children with 

undocumented family members. DHHS cites no specific policy 

or rule forbidding such placement, and I question that refusal, 

especially in cases like this one. Moreover, despite Juana’s 

acknowledgment that many of her family members are undocumented, we have record evidence that she provided DHHS 

with the name of at least one relative who “has papers . . . 

so he’s of some kind of legal status,” yet our record does not 

indicate that DHHS followed up about placing the children 

with him. I emphasize that placement with a relative of Juana’s 

could have aided Juana’s reunification with her children, and 

DHHS’ apparent reluctance to facilitate such placement is the 

first moment at which I question whether reasonable efforts to 

reunify were provided.

2 See § 43-292(6).

3 See In re Interest of Karlie D., 283 Neb. 581, 811 N.W.2d 214 (2012). 

See, also, Neb. Rev. Stat. § 43-246(5) (Cum. Supp. 2020); Neb. Rev. Stat. 

§ 43-533(4) (Reissue 2016).
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Next, I question DHHS’ resistance to visitation. At oral 

argument, Juana’s attorney acknowledged that at several of the 

facilities in which Juana had been housed, there may not have 

been “anything else that [DHHS] could have done” regarding 

visitation. With the children already back in Nebraska, visitation was not practical while Juana was being held at the jail in 

Willmar. The ICE detention facility also did not allow visitation. The Madison County jail limited visitation to noncontact 

visits separated by a glass window. I note the juvenile court’s 

statement that “[e]veryone agree[s] that visits through the glass 

at the jail would not be good for the children.” Still, considering that Juana spent a total of 11 months at the Madison 

County jail, it is difficult to reconcile DHHS’ resistance to 

any in-person visits with its requirement to provide reasonable 

efforts to reunify Juana and the children.

Sometimes accommodations must be made when such efforts 

would be reasonable for purposes of “mak[ing] it possible for a 

juvenile to safely return to the juvenile’s home.” 4 Here, considering the children’s ages, a reasonable accommodation would 

have been a request for the juvenile court to order in-person 

visits in the Madison County jail without the use of a glass 

window. But DHHS, opposed to any in-person visitation, made 

no such request.

Even when Juana was housed for 4 months at the Lincoln 

Regional Center, a facility that would not have limited 

in-person contact, DHHS, the second guardian ad litem, and 

the foster parents all expressed hostility to any visits, even 

supervised ones. A social worker for DHHS speculated that 

since Juana might not remain at the Lincoln Regional Center 

for long before either being returned to the Madison County 

jail or turned over to ICE for deportation, it might make the 

children feel “abandon[ed]” if they met her once or twice but 

then no more. The foster mother expressed fear that it would 

be “confusing” for the children to visit their mother. The State 

4 See § 43-283.01(2).
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ventured further, stating that “[i]t would seem more likely than 

not that this mother will be deported, and the opportunity to 

reunify her with her children seems very bleak.”

By these statements, I am left with the impression that 

DHHS had prejudged Juana’s parental fitness based on its 

uninformed prediction about her immigration status and that 

preparation was underway to discourage any further bonding between Juana and her children. But the State points 

to no statute under which reasonable efforts to reunify are 

excused when a mother’s immigration status is uncertain. That 

is because there is none. To the contrary, Juana’s permanency 

objective remained reunification with the children, and under 

§ 43-283.01(7), even when reunification and adoption are 

concurrent permanency objectives, “priority shall be given to 

preserving and reunifying the family.” That does not appear to 

have been done here. I thus find the above statements difficult 

to reconcile with DHHS’ duty under § 43-283.01 to make reasonable efforts to reunify the family.

Even less reconcilable is DHHS’ lack of efforts to find other 

methods of communication between Juana and her children. 

Given the children’s ages at the beginning of their out-of-home 

placement, their initial guardian ad litem expressed alarm at 

the lack of meaningful contact between Juana and her children. 

Concerned that DHHS was “[i]mpeding/impairing mother’s 

ability to communicate with the children,” the guardian ad 

litem issued a report identifying some of the ways in which 

DHHS was not making reasonable efforts to reunify Juana with 

her children.

According to the report:

I was advised that the only way for mother to contact the 

boys was by collect calls since she was moved, and the 

foster family was told either not to take the calls, or that 

they would not be re-imbursed. I question whether there 

can be reasonable efforts if contact is not being actively 

encouraged (and in fact, actually impaired), if the goal is 

indeed reunification.
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. . . The children are very young and I fear they will 

soon lose [their] mother’s native language which could 

impact their ability to communicate with their mother 

and/or other family members.

Yet, even as that report was highlighting DHHS’ lack of 

reasonable efforts to reunify, DHHS was making few, if any, 

improvements to those efforts. DHHS instead proceeded to 

permit Juana to communicate with her children only by phone. 

And those calls grew strained for the very reasons flagged in 

the guardian ad litem’s report. As indicated by the report, phone 

calls continued to be required to be dialed collect and charged 

to the foster parents, with the cost of those calls discouraging 

the foster parents from picking up. And because inadequate 

efforts were made to ensure that the children maintained an 

understanding of K’iche’ or Spanish, the two languages in 

which they could have conversed with Juana, dialogue between 

Juana and her children continued to become less meaningful by 

the day.

An interpreter was sometimes provided during phone calls, 

but that occasional effort did not reverse the children’s quickly 

closing opportunity to remain capable of themselves communicating with their mother. Not only did this weaken the 

children’s bond with their mother, but it severed their connection to the culture into which they had been born. This court 

and others have recognized the value that children might find 

in remaining attached to their parents’ cultural heritage. 5 Yet, 

5 See, e.g., In re Guardianship of Eliza W., 304 Neb. 995, 1004, 938 N.W.2d 

307, 314 (2020) (recognizing that both the federal Indian Child Welfare Act 

of 1978, 21 U.S.C. §§ 1901 to 1963 (2018), and the Nebraska Indian Child 

Welfare Act, Neb. Rev. Stat. §§ 43-1501 to 43-1517 (Reissue 2016), are 

guided by general policy of protecting Indian children from being removed 

from their families and being placed “in homes lacking an appreciation for 

Native American culture”). See, also, Christine P. Costantakos, Juvenile 

Court Law and Practice § 5:14 at 355 (2020) (noting that child’s future 

well-being may be aided by “the juvenile’s identification with his or her 

family and cultural heritage, and his or her ability to form and maintain 

relationships with extended family members, where appropriate”).
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in this case, it appears the children’s mother—and her culture—were given short shrift by DHHS.

I recognize that DHHS social workers are often overburdened with caseloads and that their jobs are trying. But in 

my view, what was allowed to happen here is perplexing 

and unacceptable, given DHHS’ duty under § 43-283.01. The 

foster parents were chosen because the foster mother spoke 

Spanish, and it was anticipated she could continue to speak 

that language with the children. But the foster mother’s ability to speak Spanish proved unhelpful to the situation, because 

she stopped communicating with the children in Spanish soon 

after their placement in her home. According to her testimony, 

she stopped speaking Spanish with the children as soon as they 

expressed that they wished to speak English instead. While 

the foster mother may not herself have owed a duty under 

§ 43-283.01 to speak Spanish with the children, it was DHHS’ 

duty, when she declined to do so, to make reasonable efforts to 

protect communication and thus the bond between Juana and 

the children. DHHS did not meet that duty.

Consequently, just as would be expected, Juana’s communication with the children deteriorated. According to DHHS 

social workers and the foster parents, Juana would phone at 

every opportunity provided to her. When she phoned the foster 

parents, they would ask the children whether they wished to 

speak with Juana. The children would often decline. That is 

hardly surprising considering their ages, that they had barely 

seen their mother since out-of-home placement, and that they 

could no longer communicate with her since their K’iche’ and 

Spanish language abilities had been allowed to lapse. When 

the children declined to speak, there was no encouragement 

from the foster parents that the children should speak with 

their mother; nor were there followup evaluations from DHHS 

inquiring how to make the interaction more meaningful for 

Juana and her children.

To this point, the juvenile court noted that it had considered 

video entered into evidence of a typical phone call between 

Juana and her children:
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The video was captured by the [guardian ad litem] who 

was present at the foster home to observe and record the 

visits. The Court notes that the video production starts 

with some wrestling and fun rough housing with the foster dad and the boys. Then, the foster mom comes into 

the room, looks at her watch or phone[,] and waits for the 

expected call from Juana (who never missed an opportunity to exercise the meager visitation opportunities she 

had). When the call came in, foster mom announced that 

the mom was on the phone. She took her phone into the 

dining room which adjoined the living room and laid it 

face up on the table and left to return to the children in 

the living room. The children, distracted by the fun play 

they were enjoying before the call, and maybe further 

by the presence of the [guardian ad litem] filming their 

behaviors, did not engage with the mother[,] and her 

“visitation” provided her the opportunity to stare only at 

the [foster parents’] ceiling. She called out to the children 

when she recognized a voice in the background. There 

was no family support worker, no engagement or encouragement by the foster parents or the [guardian ad litem]. 

Just 5 minutes of Juana, hoping to get a glimpse of her 

children and perhaps an opportunity to talk to them. If 

[that video] is truly characteristic of the effectiveness of 

the FaceTime visits, the court finds those efforts to be 

unreasonable, ineffective and token.

Further, as the juvenile court noted, beyond these phone calls, 

“[t]here were no services provided to the mother to maintain 

contact with the children.” For example, even after a service 

provider recommended family therapy to address the traumatic 

effects of domestic violence, DHHS failed to provide therapy 

to either the children or Juana. I am again left with the impression that DHHS had prejudged Juana’s fitness as a parent 

and that it was thus making no more than half-hearted efforts 

toward reunification. This was in violation of DHHS’ duty 

under § 43-283.01. The State cannot now claim § 43-292(6) as 

a basis for terminating Juana’s parental rights.
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In arguing that DHHS’ efforts were in fact reasonable, 

the State takes issue with the juvenile court’s statement that 

“[i]n retrospect, this Court regrets the finding that reasonable 

efforts were being made [by DHHS].” According to the State, 

that language evinces a “misunderst[anding] [of] the meaning of reasonable efforts” and diminishes the juvenile court’s 

own role in encouraging the reunification efforts that were 

provided. 6

I disagree that the juvenile court’s order evinced any misunderstanding about the nature of reasonable efforts. As described 

above, critical efforts were lacking to protect the bond between 

Juana and her children and to facilitate their reunification. 

Thus, if anyone evinced a misunderstanding of reasonable 

efforts, it was DHHS. Once again, I acknowledge the difficult 

job of a DHHS social worker. But that does not excuse noncompliance with § 43-283.01. DHHS is responsible for providing reasonable efforts under that statute, not the juvenile court 

or anyone else.

For the above reasons, I am persuaded that DHHS failed 

to provide reasonable efforts to reunify Juana with her children in this case. Although that fact was not necessary to the 

court’s main opinion in this case, I write separately to express 

my concern and to implore DHHS to do better. Not only does 

§ 43-283.01 require it, but the parents and children in this State 

deserve it.

Miller-Lerman, J., joins in this concurrence.

6 Brief for appellant at 31.