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IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

IN RE INTEREST OF ALIVIA B. ET AL.

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

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

IN RE INTEREST OF ALIVIA B. ET AL.,

CHILDREN UNDER 18 YEARS OF AGE.

STATE OF NEBRASKA, APPELLEE AND CROSS-APPELLEE,

V.

HEATHER C., APPELLANT, AND TIMOTHY B.,

APPELLEE AND CROSS-APPELLANT.

Filed December 3, 2019. Nos. A-19-171 through A-19-174.

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

Affirmed.

William E. Madelung, of Madelung Law Office, P.C., L.L.O., for appellant.

Katy A. Reichert, of Chaloupka, Holyoke, Snyder, Chaloupka & Longoria, P.C., L.L.O., 

for appellee Timothy B.

No appearance for appellee State of Nebraska.

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

WELCH, Judge.

INTRODUCTION

Heather C. appeals, and Timothy B. cross-appeals, the orders of the Scotts Bluff County 

Court, sitting in its capacity as a juvenile court, terminating their parental rights to their four 

children, Alivia B., Avah B., Audrina B, and Aniya B. Heather and Timothy contend that certain 

statutory grounds for termination were not proved by clear and convincing evidence and that 
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termination was not in their minor children’s best interests. For the reasons set forth herein, we 

affirm. 

STATEMENT OF FACTS

Heather and Timothy are the parents of four minor children: Alivia, born in April 2008; 

Avah, born in August 2009; Audrina, born in June 2012; and Aniyah, born in June 2014. On July 

13, 2017, the four children were removed from their home due to substance abuse by their parents 

and lack of safe and stable housing including inappropriate people residing in the home and failure 

to meet the children’s basic needs. The minor children were placed with their maternal 

grandmother, Lillian B., where they have remained since that time.

Also on July 13, 2017, adjudication petitions were filed regarding each of the four children 

alleging that each child was a child within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 

2016) because the juveniles’ parents’ use of controlled substances placed the juveniles at risk of 

harm and/or deprived the juveniles of necessary parental care; the juveniles lacked safe and stable 

housing because of drug use in the home and because of the individuals the parents allowed to live 

in or allowed to “hangout” in the home; and the juveniles’ parents failed to meet the juveniles’

basic needs for care, including food, support, supervision, and protection.

The children were adjudicated as to Timothy in August 2017 and adjudicated as to Heather 

the following month. One year later, in August 2018, the State filed motions to terminate Heather 

and Timothy’s parental rights. The motion to terminate Heather’s parental rights alleged statutory 

grounds under Neb. Rev. Stat. § 43-292(2) and (4) (Reissue 2016) and that termination was in the 

minor children’s best interests. The motion to terminate Timothy’s parental rights alleged statutory 

grounds pursuant to § 43-292(1) and (2) and that termination was in the minor children’s best 

interests. During the termination hearing, the court allowed the State to amend the motions to 

terminate to conform to the evidence to reflect an additional ground for termination under 

§ 43-292(7) on the basis that the children had been in out-of-home placement for at least 15 of the 

prior 22 months.

The termination hearing was held in November 2018. Witnesses included: Kylie Wilson, 

a Nebraska Department of Health and Human Services (DHHS) children and family services 

specialist; Rodney Matilainen, a licensed drug and health counselor; Vicky Moreno, an 

investigator for the Scotts Bluff County Attorney’s office; and Lillian B., the minor children’s 

maternal grandmother and foster care provider. Additionally, both the mother and father each 

testified in his or her own behalf.

KYLIE WILSON

Wilson testified that she was the caseworker in this case in April and May 2018 and again 

from August 2018 until the termination hearing. Wilson testified that Heather was ordered to 

complete a substance abuse evaluation which was completed in July 2017 with Rodney Matilainen. 

Matilainen recommended that Heather attend an intensive outpatient program, individual 

substance abuse counseling, drug testing, and attend AA/NA meetings. Matilainen also 

recommended that if Heather did not comply with these recommendations, he would refer her to 

a short-term residential facility. Wilson testified that Heather relapsed in March 2018 and 

completed an updated substance abuse evaluation with Matilainen at that time so that Heather 
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could get a referral for short-term residential treatment. Heather was released from residential 

treatment after her tooth became infected so that she could have that issue resolved. Heather did 

not return to residential treatment.

Wilson testified that in addition to completing a substance abuse evaluation, Heather was 

also ordered to comply with drug testing including drug patches, urinalysis (UA) testing, and 

mouth swabs. According to Wilson, Heather expressed that the patches were inaccurate so 

additional testing methods were authorized to supplement the patches. According to Wilson, the 

drug patches are continuous and provide a longer exposure window than the UA testing or mouth 

swabs because the

drug patch monitors the individual it’s placed on constantly, 24 hours a day, for seven to 

ten days after it’s placed, and then it’s removed following the drug procedure instilled with 

that company and sent to a lab where it is tested, and then a report is sent back to the 

provider.

Wilson testified that, from August 2017 until October 2018, fifteen of Heather’s drug patches 

tested positive for methamphetamine and seven of the patches tested positive for both 

methamphetamine and amphetamine. Since May 2018, all of Heather’s drugs patches have tested 

positive, and on November 20, Heather had a positive mouth swab for methamphetamines.

Wilson testified that in January and February 2018, Heather was having unsupervised 

visitations and some overnight visits in Heather’s home. However, Heather’s visits reverted to 

supervised visits after Heather tested positive for drugs. According to Wilson, visits were again 

moved into Heather’s home in October because “[e]ven through her positive patches were still 

coming back, we moved them back in because of her [negative] UAs.” However, the visits 

remained supervised. Wilson also testified that, initially, Heather was inconsistent in attending 

Sunday visitations, so Heather had to start arriving for visits 30 minutes prior to the start time of 

the visit or the visit would be cancelled. After this new policy was implemented, Heather’s 

consistency in attending visits improved.

Wilson also testified that Heather has maintained consistent housing since October 2017, 

maintained consistent employment as a school bus monitor, completed the Circle of Security class, 

and attended AA/NA meetings.

Wilson testified that, at the time the children were removed from the home in July 2017, 

the concerns related to substance abuse and the lack of safe and stable housing. At the time of the 

termination hearing, Wilson stated that “I still have concerns for substance abuse just because of 

this most recent positive test and concern that Heather has not changed her places, peoples, and 

things, and, therefore, not really set herself into a position where she can maintain that sobriety 

long term.”

Wilson also testified regarding Timothy who she stated has been incarcerated the majority 

of the duration of this case. According to Wilson, Timothy had been incarcerated on September 

19, 2017; from October 19, 2017, through January 24, 2018; from February 2 through April 17, 

2018; and from May 23, 2018 through the termination hearing. Wilson testified that during the 

periods of time that Timothy was not incarcerated, his case plan included supervised visits, drug 

tests, a substance abuse evaluation, and a parenting and psychological assessment. Timothy 

completed a substance abuse evaluation, participated in family team meetings, and did not have 
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any positive drug tests throughout the case. However, he did not complete the parenting and 

psychological evaluation. Timothy had supervised visits on October 1, 8, and 15, 2017; April 23, 

25, 27, 28, and 30, 2018; and May 1 and 2, 2018. Further, Timothy ended visits early on October 

22 and 29, 2017. Timothy did not have visits with his children from May 2 to May 23 despite the 

fact that he was not incarcerated during that time. Timothy is $29,042.66 in arrears in child support.

Wilson testified that, during Timothy’s incarceration, he sent his daughters “at least” eight 

letters between May 2018 and the termination hearing. Timothy also participated in services 

offered to him during his incarceration such as men’s trauma class, Celebrate Recovery, AA, and 

a life skills class.

According to Wilson, part of her job requirement is to have monthly contact with the 

children in her cases, and she did so in this case. Based upon her contacts with the children and 

the conversations she had with the children, Wilson testified regarding the children’s impressions 

of their relationships with Timothy:

Really the only one that has talked to me about her dad has been . . . Aniyah. She’s the 

youngest one. And on my home visit last month she asked me if I could get a picture of her 

dad for her. And I told her that I didn’t know if I could do that but I would try. And the 

whole reason why she wanted a picture of her dad was because she couldn’t remember 

what he looked like.

Wilson testified that the children had been in out-of-home care for 16 months and that the 

case was not where she would expect it to be after 16 months, and she opined that it was in the 

minor children’s best interests for Heather and Timothy’s parental rights to be terminated so that 

the children could attain permanency.

RODNEY MATILAINEN

Matilainen conducted an initial assessment of Heather in July 2017 pursuant to a referral 

by DHHS. He diagnosed Heather with methamphetamine use disorder, moderate; cannabis use 

disorder, moderate; and alcohol use disorder, in remission, and recommended following up with 

eight to ten individual sessions occurring weekly in order to help Heather identify that she had a 

substance abuse problem. Heather was inconsistent in attending sessions but she began to identify 

that she had a substance abuse problem after Matilainen confronted her with her positive drug 

screens. Matilainen helped Heather obtain a referral for residential treatment, but Heather did not 

complete that program. After leaving the residential treatment program, Heather returned to 

counseling with Matilainen on an outpatient basis but, again, her attendance was sporadic and she 

was still having positive drug screens. Although Heather acknowledged her substance abuse 

problem, she resisted returning to residential treatment so Matilainen referred her to an intensive 

outpatient program which she started at the end of October 2018. Heather identified her triggers 

to include certain people, stress, and her depression. Matilainen admitted that since Heather had 

started the intensive outpatient program, she had not found a sponsor, she had medical issues that 

have kept her from attending group sessions, and although she has been having negative UA test 

results, Heather is able to choose when she comes in for the UA testing.
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VICKY MORENO

Moreno testified that as part of her employment as an investigator for the Scotts Bluff 

County Attorney’s Office, she monitors telephone calls made by inmates from the jail. As relevant 

to this case, she monitored telephone calls made by Timothy to Heather. Moreno testified that the 

previous day, November 26, 2018, at 4:45 p.m., Timothy called Heather to discuss

getting ready for court today, and [Timothy] was asking questions trying to memorize and 

ask his daughters’ birth dates because he did not know them. So he would guess a birth 

date and [Heather] would tell him, nope, that’s wrong. And then she would give him the 

correct birth date for each child.

Moreno also testified that during a prior call occurring on November 23, Heather told Timothy 

that she had failed a mouth swab test and that she was “thinking about acting oblivious in court as 

to any of it and asked his opinion what he thought about that. And he told her no, that she had to 

accept and own up to it was his quote.” Moreno testified that Timothy had made 512,671 calls 

from jail using his PIN number. According to Moreno, Timothy also made calls using other 

inmates’ PIN numbers when he was “trying to hide who he’s calling.” Of those 512,671 calls, 

1,013 were made to Heather and 165 were made to Lillian’s telephone number.

LILLIAN B.

Lillian testified that the minor children “are really attached to their mom. They really love 

her. She seems to really, really love them also. She does things for them all the time.” Lillian stated 

that she took Heather and the minor children on a 10-day trip to Disney World at the end of July 

and beginning of August 2018. She stated that there were not any problems between Heather and 

the children during that trip.

Lillian believes that Heather is able to appropriately care for the minor children. She further 

testified that she believes that it is in the children’s best interests to maintain a relationship with 

Heather “[b]ecause they are really attached to their mom. They need their mom. They just -- they 

talk about her every day. They want to be with her. They don’t quite understand why they’re not 

in the home.” During the visits during which Lillian was present, she observed Heather giving the 

minor children baths, cooking them meals, and helping them with their homework.

Regarding Timothy, Lillian testified that about 3 months ago, he started calling the children 

more frequently and, when he calls, he talks to each child. Lillian testified that the children are 

excited to talk to Timothy. She further stated that he has sent the children “a few” letters and some 

gifts which she described as “some wind catchers and a bracelet.”

HEATHER C.

Heather testified that at the time of the termination hearing, she was employed part-time as 

a school bus monitor. On Saturdays and Sundays, she had visits with her children at her home from 

3 p.m. to 7 p.m. She also spends 10 hours per week attending the intensive outpatient program plus 

2 hours of AA/NA meetings. Heather stated that she believes that she is making progress in the 

intensive outpatient program and that “[e]very day I learn something new.” She further testified 

that she had recently injured herself in October 2018 when she tripped and fell, causing her to cut 

her hand requiring surgery.
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Heather testified about her children:

Every day after I get off the bus I go over there [to Lillian’s house]. I cook them their meal. 

I give them a bath. We -- there’s been times we’ll watch a show together. Dominoes and 

UNO are . . . their favorite games. We sit down and play.

When baseball -- softball was [in] season . . . we would play catch and stuff 

outside. . . . I bathe them and get them ready for bed.

Even before IOP I go over there right after route, and I usually have a half hour 

to -- close to an hour before I have to go to IOP, and I will still go over there and prepare 

their meal, and then I’ll go to IOP.

Heather testified that for Halloween, she went to Lillian’s home in the morning and got the 

children into their costumes. After work she went to the school to do her oldest daughter’s 

Halloween makeup, spent the entire day at their school, ate lunch with the children, and attended 

Halloween parties. That evening, she took the children trick-or-treating. Heather also testified that 

she held Thanksgiving at her house and the following day, she, Lillian, and the children went 

shopping. After they finished shopping, they went back to Heather’s home and cooked dinner and 

wrapped presents.

Heather admitted that she has depression and that she is an addict. She stated that she takes 

medication for her depression and she has learned tools and coping mechanisms to understand that 

she needs to talk to people and not isolate herself. Heather testified that she has been discouraged 

by the drug patch results, claiming that the results are invalid. Heather testified that the last time 

she used methamphetamine was April 9, 2018, but that since treatment, she has “failed every 

patch.” She further explained a recent positive mouth swab on November 20 by stating she must 

have failed because she had been “intimate” with someone she knew from high school. She 

claimed that after she tested positive for drugs, she questioned the individual who admitted to using 

methamphetamine. However, she later admitted that her explanation would not result in a positive 

mouth swab.

Heather testified that she believed it was not in the children’s best interests for her parental 

rights to be terminated and it was in their best interests to “come home.” She testified that she has 

maintained a steady presence in her children’s lives since they were placed with Lillian stating she 

has seen them “[e]very day except for when I went to treatment.” She further stated:

Even when I lost my girls I have attempted to see them every day. I have spent more time 

away from them dealing with treatment and -- and the first time I have ever spent a night 

away from any of my kids ever was when I went into treatment, to rehab.

And I’m grateful for treatment. I wanted to go. I was excited. But it’s been tough 

on all of us. And my -- I have been really close to my girls. I spend 24/7 with them since 

they’ve been born. Like, literally, I worked at the day care as they were babies, every single 

one of them.

Being a mother to my girls is the only thing that -- is my only purpose of life. I have 

made mistakes, yes. I am working on my addiction, and it’s going to be a lifelong process, 

as well as my mental illness.
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And I am still going to have bumps in the road with both of them, but sobriety for 

my girls and for myself is my only option now. And I am trying to prove and do whatever 

I can to prove that.

However, Heather admitted that the intensive outpatient program was an 8- to 12-month process 

and her children had been in out-of-home care for 16 months. When asked how much longer her 

children needed to wait, Heather responded “I don’t know.”

TIMOTHY B.

Timothy testified that during supervised visits with his children, they carve pumpkins for 

Halloween, go for walks, do homework, play, clean out the children’s backpacks, or watch movies. 

During visits, he provided snacks or made dinner. Timothy testified that “I love spending time 

with my kids” and that they seem to enjoy spending time with him.

Timothy testified that he has been incarcerated for the majority of the time since this case 

began. In July 2018, Timothy pled no contest to 18 counts of misdemeanor violation of a protection 

order and was sentenced to 180 days’ imprisonment on each count to be served consecutively for 

a cumulative 3,780 days’ imprisonment. Additionally, in September, Timothy pled no contest to 

second offense violation of a domestic abuse protection order, a Class IV felony, and was 

sentenced to 2 years’ imprisonment followed by 12 months’ postrelease supervision. This felony 

sentence was ordered to be served concurrently with the aforementioned misdemeanor sentences.

Timothy testified that during his incarceration, he would call his children on the telephone 

and send them letters “but it’s kind of difficult to write . . . young ladies letters and not know what 

to write. So I kind of do tend to write the same things, asking them about school, asking them how 

Disneyland was or how their summer went.” Timothy also stated that he made the children 

bracelets and dreamcatchers which he sent to the children as gifts. Timothy stated that he has been 

trying to parent his children to the best of his ability during his incarceration

[b]y phone calls. When I talk to them I talk about their school, about what they’re doing 

for their grandma, make sure they’re -- they’re on point on grades, making sure the other 

ones are playing with the other one. You know, just -- just it’s hard to do, but it’s something 

I have to do.

He also stated that he tells his children that he loves them and they tell him that they love and miss 

him. However, he also admitted that he recently relinquished his parental rights to another one of 

his children.

Timothy described Alivia as the oldest, “my little athletic girl,” and “a big mother hen.”

He described Avah as “my little snuggle kid” who “talks to me on the phone the most.” Audrina 

is “a mommy’s girl” who is “talkative,” and Anyiyah is “my spoiled kid” who “always wants to 

talk to daddy no matter what.” Timothy testified that he did not believe that it was in his children’s 

best interests for his parental rights to be terminated and that he has a strong bond and beneficial 

relationship with his children and he is “a great father” even though he has “made some mistakes 

in the past year that [he has] owned up to and [he] shouldn’t have made.” However, he also 

admitted that Heather sought protection orders in December 2015 and February 2016 against him 

on behalf of the children.
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COURT ORDER

Following the termination hearing, the court found that statutory grounds to terminate 

Heather’s parental rights existed pursuant to § 43-292(2), (4), and (7) and that termination of her 

parental rights was in the minor children’s best interest. Further, the court found that statutory 

grounds to terminate Timothy’s parental rights existed pursuant to § 43-292(2) and (7) and that 

termination was in the children’s best interests. Specifically, the court found:

Taking into consideration the totality of the evidence in this case, including an assessment 

of the child[ren]’s present circumstances and adjustments, the absence of sustained 

improvement in parenting skills, and the child[ren]’s long-term physical, social, and 

emotional needs, clear and convincing evidence was presented to demonstrate that 

termination of Timothy and Heather’s parental rights is appropriate and in the best interests 

of the child[ren] despite the rebuttable presumption that a child’s best interests lay with his 

or her natural parent. There is minimal focus on the needs of the children by these parents. 

Neither parent has placed themselves in a position to reunify with the children in the 

reasonably foreseeable future. The parents’ history of interactions, or lack thereof, with 

these children offers minimal prospects of a future where the health, safety, and welfare of 

the children are of paramount concern. The juvenile court system cannot and should not 

allow children to languish suspended indefinitely in foster care waiting to see if a parent 

will mature. Termination of parental rights opens to these children the possibility of a safe 

and stable permanent home free from the sort of chaos that characterizes the parents’

lifestyle.

Heather has timely appealed to this court, and Timothy has cross-appealed.

ASSIGNMENTS OF ERROR

Heather appeals contending the court erred in finding that the State had proved, by clear 

and convincing evidence, the existence of statutory grounds for termination in § 43-292(2) and 

(4). Timothy cross-appeals, contending the court erred in finding that the State had proved, by 

clear and convincing evidence, the existence of statutory grounds for termination pursuant to 

§ 43-292(2). Both Heather and Timothy contend that termination was not in their minor children’s 

best interests.

STANDARD OF REVIEW

An appellate court reviews juvenile cases de novo on the record and reaches its conclusions 

independently of the juvenile court’s findings. Id. When the evidence is in conflict, however, an 

appellate court may give weight to the fact that the juvenile court observed the witnesses and 

accepted one version of facts over another. In re Interest of LeVanta S., 295 Neb. 151, 887 N.W.2d 

502 (2016); In re Interest of Becka P. et al., 27 Neb. App. 489, 933 N.W.2d 873 (2019).

ANALYSIS

STATUTORY BASIS FOR TERMINATION

In this case, the court found that statutory bases for termination of Heather’s parental rights 

existed pursuant to § 43-292(2), (4), and (7), and that termination of Timothy’s parental rights 
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existed pursuant to § 43-292(2) and (7). Although Heather and Timothy do not contest the juvenile 

court’s determination that the State proved by clear and convincing evidence that their parental 

rights should be terminated pursuant to § 43-292(7), for the sake of completeness on our de novo 

review, we briefly address these statutory grounds.

In Nebraska statutes, the bases for termination of parental rights are codified in § 43-292. 

Section 43-292 provides 11 separate conditions, any one of which can serve as the basis for the 

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

of the child. In re Interest of Elizabeth S., 282 Neb. 1015, 809 N.W.2d 495 (2012).

In its order terminating Heather and Timothy’s parental rights to their minor children, the 

court found that statutory grounds existed pursuant to terminate Heather’s parental rights under 

§ 43-292(2) (substantial and continuous or repeated neglect), § 43-292(4) (parents are unfit by 

reason of debauchery, habitual use of intoxicating liquor or narcotic drugs, or repeated lewd and 

lascivious behavior, which conduct is found by court to be seriously detrimental to health, morals, 

or well-being of juvenile), and § 43-292(7) (child out-of-home for 15 or more months of most 

recent 22 months), and to terminate Timothy’s parental rights under § 43-292(2) and (7).

Here, the minor children were in an out-of-home placement continuously since July 13, 

2017. At the time of the termination hearing on November 27, 2018, the minor children had been 

in an out-of-home placement for a total of 16 months. Our de novo review of the record clearly 

and convincingly shows that grounds for termination of Heather and Timothy’s parental rights 

under § 43-292(7) were proven by clear and convincing evidence.

We need not consider whether termination of Heather or Timothy’s parental rights was 

proper pursuant to the other subsections of § 43-292 since any one ground of the 11 identified in 

§ 43-292 can serve as the basis for the termination of parental rights when coupled with evidence 

that termination is in the best interests of the child. See In re Interest of Elizabeth S., supra.

BEST INTERESTS

Both Heather and Timothy contend that the juvenile court erred in finding that it was in the 

minor children’s best interests to terminate their parental rights.

In In re Interest of Becka P. et al., 27 Neb. App. at 508-09, 933 N.W.2d at 887-88, this 

court recently stated:

In addition to proving a statutory ground, the State must show that termination of parental 

rights is in the best interests of the child. See In re Interest of Jahon S., 291 Neb. 97, 864 

N.W.2d 228 (2015). A parent’s right to raise his or her child is constitutionally protected; 

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

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

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

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

that the parent is unfit. Id. In the context of the constitutionally protected relationship 

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

which has prevented, or will probably prevent, performance of a reasonable parental 

obligation in child rearing and which caused, or probably will result in, detriment to the 

child’s well-being. Id.
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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. Id. In proceedings to terminate parental rights, the law does not require 

perfection of a parent; instead, courts should look for the parent’s continued improvement 

in parenting skills and a beneficial relationship between parent and child. In re Interest of 

Joseph S. et al., 291 Neb. 953, 870 N.W.2d 141 (2015).

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

Supreme Court has held that 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. See 

In re Interest of Aaron D., 269 Neb. 249, 691 N.W.2d 164 (2005).

Regarding Timothy, in the more than 16 months that the children have been in out-of-home 

care, Timothy has spent the majority of the relevant time incarcerated, and during the time when 

he was not incarcerated, he has had only twelve supervised visits with his children, two of which 

he ended early. During his incarceration, Timothy made a prolific number of telephone calls, 

512,671 calls, only 165 of which were made to Lillian’s telephone number for the purpose of 

talking to his children. Timothy argues that these calls demonstrate his desire to remain in contact 

with his children but the record suggests otherwise. In the limited time that Timothy was not 

incarcerated, he was inconsistent with visitation or with pursuing opportunities for visitation.

Further, Timothy sent few letters and gifts to his children, his youngest child does not even 

remember what he looks like, Timothy is $29,042.66 in arrears in child support, and he recently 

relinquished his parental rights to another child. The record indicates that although Timothy 

complied with some of the items in the court-ordered rehabilitation plan, he failed to complete his 

parenting and psychological evaluations. The evidence also establishes that Timothy will spend 

several more years incarcerated. Although incarceration alone cannot be the sole basis for 

terminating parental rights, it is a factor to be considered. In re Interest of Jahon S., 291 Neb. 97, 

864 N.W.2d 228 (2015); In re Interest of J’Endlessly F. et al., 26 Neb. App. 497, 920 N.W.2d 858 

(2018).

During Timothy’s incarceration, recorded telephone conversations between Timothy and

Heather revealed that following Heather’s mouth swab tested positive for methamphetamine, she 

and Timothy discussed options which included Heather’s intention to act oblivious to the positive 

drug test. Heather later attempted to explain the positive drug test as the result of an intimate sexual 

encounter with a drug user and attempted to explain away other positive drug patch results as the 

product of faulty drug patches. In another recorded telephone conversation prior to the termination 

hearing, Heather quizzed Timothy on his children’s birth dates because he did not know their dates 

of birth.

Heather’s continued positive drug tests reveal that she is either unable or unwilling to 

maintain a lifestyle consistently free of illegal substances. She was inconsistent in attending her 

substance abuse treatment classes and never returned to residential drug treatment. Heather 

continues to associate with drug users even though she has acknowledged that this is a trigger for 

her own drug use. As her caseworker opined, Heather failed to change the “places, peoples, and 

things” that might allow her to maintain sobriety. Although Heather professes her love for her 

children, their attachment to her, and their collective desire to be returned to her, this record 
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presents a scenario all too common in termination cases involving drug addiction. That is, in many 

cases, the addiction appears to prevail over the parent’s accountability to their children. 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. In re Interest of Zanaya W. et al., 

291 Neb. 20, 863 N.W.2d 803 (2015); In re Interest of Becka P. et al., 27 Neb. App. 489, 933 

N.W.2d 873 (2019). Although Heather’s visits with her children were unsupervised for a short 

period of time due to Heather’s drug use, they quickly reverted back to supervised visits and have 

not progressed due to Heather’s continued positive drug tests.

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). The minor children have been in foster care since July 2017. 

They deserve stability in their lives and should not be suspended in foster care when Heather is 

either unable or unwilling to rehabilitate herself and Timothy has been unable to place himself in 

a position to parent the minor children. The evidence presented establishes that neither Heather 

nor Timothy has been able to sustain a long-term commitment to placing the needs of their children 

ahead of their own wants, needs, and desires. Accordingly, we find there was clear and convincing 

evidence to show that both Heather and Timothy are unfit and that terminating Heather’s and 

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

CONCLUSION

For the reasons stated above, we affirm the court’s order terminating Heather’s and 

Timothy’s parental rights.

AFFIRMED.