IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

IN RE INTEREST OF LORENZO S. & LILLIAN S.

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 LORENZO S. AND LILLIAN S.,

CHILDREN UNDER 18 YEARS OF AGE.

STATE OF NEBRASKA, APPELLEE,

V.

ELIZABETH S., APPELLANT.

Filed June 3, 2014. Nos. A-13-513 and A-13-516.

Appeal from the County Court for Scotts Bluff County: KRISTEN D. MICKEY, Judge. 

Affirmed.

David S. MacDonald, Deputy Scotts Bluff County Public Defender, for appellant.

Doug Warner, Scotts Bluff County Attorney, for appellee.

Lindsay R. Snyder, of Smith, Snyder & Petitt, G.P., guardian ad litem.

MOORE, PIRTLE, and RIEDMANN, Judges.

PIRTLE, Judge.

INTRODUCTION

Elizabeth S. appeals from the order of the county court for Scotts Bluff County, sitting as 

a juvenile court, which terminated her parental rights to her minor children, Lorenzo S. and 

Lillian S. On appeal, Elizabeth challenges the district court’s finding that termination was in the 

children’s best interests and asserts she was denied due process of law. For the reasons that 

follow, we affirm.

BACKGROUND

Elizabeth appeals the termination of her parental rights to twins, Lorenzo and Lillian, 

born in January 2011. In August 2011, two calls were made to the neglect intake hotline 

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reporting that Elizabeth was abusing controlled substances, not taking her mental health 

medication, and not properly caring for the children. Karol Garduño, of the Nebraska 

Department of Health and Human Services (DHHS), contacted Elizabeth to establish whether 

there was a factual basis for the allegations. At that time, Elizabeth admitted that she had used 

methamphetamine. An examination of the children did not reveal bruises or other marks 

indicating they had been handled roughly. Elizabeth submitted to a urinalysis screening and 

tested positive for methamphetamine and amphetamine. Garduño asked Elizabeth if she had 

someone she could call to stay with the children, and Elizabeth’s paternal grandmother picked up 

the children and took them to her home.

Elizabeth indicated that she would be willing to work with DHHS on a voluntary basis 

until DHHS could determine how to proceed. Elizabeth was informed that DHHS would likely 

request to file a petition with the county attorney’s office.

Elizabeth and the children stayed briefly with her grandmother, and after a few days, 

Elizabeth called her aunt, Georgina M. (Gina), and asked Gina to take the children for the 

weekend to give Elizabeth a break. During that time, Elizabeth got into an argument with a 

family member at her grandmother’s home. Elizabeth’s grandmother asked that the children be 

placed elsewhere, because she did not want Elizabeth in her home. On August 22, 2011, the 

children had a positive hair follicle test for methamphetamine ingestion. The children were 

placed with Gina and her husband, with Elizabeth’s consent. The children were placed in the 

home of Gina and her husband at all times relevant to this case from that date forward.

On January 6, 2012, the State of Nebraska filed separate juvenile petitions under Neb. 

Rev. Stat. § 43-247(3)(a) (Reissue 2008) alleging that each child lacked proper parental care due 

to Elizabeth’s history of drug abuse and her inability to properly care for each child as the result 

of her drug use. Identical filings were made for both Lorenzo and Lillian, and the cases 

progressed together. Motions for temporary custody were filed, supported by an affidavit from a 

children and family service specialist. The children were placed in the temporary custody of 

DHHS. Amended petitions were filed on January 10, stating that the children were under the 

provisions of the Indian Child Welfare Act (ICWA), and ICWA notices addressed to the Oglala 

Sioux Tribe were filed with the court on January 12.

On February 14, 2012, Elizabeth pled no contest to the amended allegations of having a 

history of using methamphetamine, testing positive for methamphetamine, and being unable to 

maintain sobriety. A second amended petition was filed in each case on February 15, amending 

the documents to reflect the allegations Elizabeth pled to.

A dispositional hearing was held on March 27, 2012; the court adopted the case plan 

offered by DHHS; and placement with DHHS was continued. At a review hearing on June 26, 

the court ordered the case plan to continue, with a permanency objective of reunification by 

September 26. At a permanency hearing on September 27, the permanency goal of adoption was 

established, with an alternate concurrent goal of reunification. This change was recommended by 

DHHS and the children’s guardian ad litem. Motions to terminate Elizabeth’s parental rights 

were filed on December 7. The motions alleged that statutory grounds existed for termination of 

Elizabeth’s parental rights under Neb. Rev. Stat. § 43-292(2), (4), (6), and (7) (Cum. Supp. 2012) 

and that termination was in the children’s best interests. The motions stated that the juveniles 

were of Native American heritage and were or may have been eligible for enrollment with the 

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Oglala Sioux Tribe and that therefore, notification of the proceedings to the tribe was necessary. 

The motions alleged, pursuant to Neb. Rev. Stat. § 43-1505(4) (Reissue 2010), that termination 

was appropriate because active efforts had been made to provide remedial services and 

rehabilitative programs designed to prevent the breakup of the Indian family and that those 

efforts had proved to be unsuccessful. The motions also alleged, pursuant to § 43-1505(6), that 

termination was appropriate because continued custody of the minor children by the parents was 

likely to result in serious emotional or physical damage to the children.

Elizabeth filed a motion to disqualify the county attorney’s office from further 

participation in the proceedings on January 22, 2013. Elizabeth asserted there was a conflict of 

interest in this case because Gina, Elizabeth’s aunt, is also an employee of the county attorney’s 

office in the child support department. Elizabeth requested that a special prosecutor be appointed 

or that the cases be dismissed. Gina testified about her involvement in the case. The court found 

there was not sufficient evidence to find a conflict of interest or bias and overruled the motion.

Elizabeth attempted several treatment programs during the pendency of this case. She 

began attending drug and alcohol education and prevention classes on a regular basis in August 

or September 2011. She also attempted inpatient treatment on three separate occasions, but did 

not successfully complete any of the programs.

Elizabeth attended NEPSAC in Gordon, Nebraska, starting November 30, 2011, for 

approximately 3 weeks, but she did not complete the treatment cycle. Elizabeth told the 

education coordinator for McConaughy Discovery Center that she felt she was being 

discriminated against, and she decided to leave. She relapsed and had a positive drug test in 

January 2012. Elizabeth began a dual diagnosis treatment program at St. Monica’s in Lincoln, 

Nebraska, in March. The plan was to finish 30 days and to enroll in the optional “Project Mother 

Child” program, which would have allowed Lorenzo and Lillian to accompany Elizabeth during 

her treatment. Elizabeth did not complete the first 30 days and was released from St. Monica’s 

for noncompliance in April. Elizabeth was accepted to NOVA, an inpatient, dual diagnosis 

longer term treatment center in Omaha, Nebraska, in August. Elizabeth was admitted on August 

22, and she left the treatment center on August 25. Elizabeth was in a homeless shelter in Omaha 

on August 26 and stayed there approximately 3 weeks before returning to Scottsbluff, Nebraska. 

Elizabeth worked with an addiction counselor, but did not continue to see her regularly, and 

Elizabeth stopped scheduling appointments.

Elizabeth regularly tested positive for amphetamine and methamphetamine when 

urinalysis screenings were performed. She also regularly refused testing, and instead, she elected 

to sign an admission that she had used controlled substances.

Elizabeth has not maintained a stable residence for the children to return to. She lived in 

seven or more residences during the pendency of this case, excluding treatment facilities. 

Elizabeth did not maintain employment during the case. Elizabeth did not provide for the basic 

needs of the children during the case, including providing food, clothing, shelter, or any other 

basic amenities.

Supervised visitation was available to Elizabeth throughout this case, and Elizabeth was 

not eligible for unsupervised visits at any time. Several support workers testified that when visits 

actually occurred, Elizabeth was prepared and interacted well with the children. However, 

visitation during the case was sporadic at times or did not occur at all. During some periods, 

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Elizabeth attended only a fraction of her visits and they did not last the allotted time. In April 

2012, 10 visits were scheduled--Elizabeth attended 2 and canceled 8. In May, 23 visits were 

scheduled--Elizabeth attended 10 and canceled 13. In June, 16 visits were scheduled--Elizabeth 

attended 7 and canceled 9. Between June 11 and August 22, 13 visits were canceled and 17 visits 

occurred--of the 17 visits, only 2 visits lasted the full 5-hour period.

The contested adjudication on the motions to terminate parental rights was before the 

Scotts Bluff County Court on March 5, 2013.

Shaylee Jobman, a children and family service specialist for DHHS, testified that 

Elizabeth did not progress to a point where she could be reunified with the children. She stated 

that it was her opinion that Lorenzo and Lillian needed permanency and it was in their best 

interests to be adopted.

Desiree Montgomery, a children and family service specialist for DHHS, testified that 

Elizabeth made no progress in addressing the underlying issue in this case, her substance abuse. 

There is no evidence that Elizabeth attended Alcoholics Anonymous or Narcotics Anonymous 

meetings and she did not consistently work to maintain her sobriety after leaving inpatient 

treatment centers. Montgomery stated that Elizabeth did not demonstrate an ability to provide 

income, housing, food, or clothing for the children. She stated her opinion that it was in the best 

interests of Lorenzo and Lillian to remain in out-of-home placement with the goal of adoption.

Kylie Wilson, a children and family service specialist for DHHS, testified that she began 

working with Elizabeth in October 2012. She testified that during that time, the primary goal was 

adoption, but Elizabeth was still receiving services, including supervised visitation, drug 

screening, and transport, and she had access to counseling services. Wilson testified that the 

children were not placed with Elizabeth and that Elizabeth was not prepared to provide for the 

basic necessities and needs of the children. Wilson stated her opinion that the best interests of the 

minor children required termination of Elizabeth’s parental rights.

Jessica Reffalt-Herrera testified that she was the education coordinator for McConaughy 

Discovery Center when she began working with Elizabeth. Elizabeth told Reffalt-Herrera that 

she was using substances daily, and her use was described as habitual. Reffalt-Herrera testified 

that Elizabeth did not progress to a point where she would have been able to provide for the 

necessities and care of the children.

Elizabeth testified that she became enrolled with the Oglala Sioux Tribe. Cassandra 

Whipple-Benitez, an ICWA expert and a member of a division of the Oglala Sioux Tribe, 

testified that the tribe holds children in extremely high regard. She stated that from a tribal 

perspective, it is not acceptable for children to live in a home where continuous substance abuse 

is occurring. She testified that it was unclear whether Lorenzo and Lillian were eligible for 

enrollment in the tribe, but that Gina and her husband were incorporating cultural plans and that 

the appropriate steps had been taken to comply with ICWA, if the law applies. Whipple-Benitez 

testified that Elizabeth received numerous services throughout the case, including monthly 

out-of-home maintenance payments for the children, Nebraska Medicaid for the children, 

supervised visitation, family support services, family team meetings, monthly contact with the 

children and the foster placement, pretreatment assessments, respite care, substance abuse 

treatment, transportation to visits and to treatment centers, clothing vouchers, gas vouchers, 

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childcare payments, parenting skills courses, drug screenings, grocery and meal vouchers, 

vouchers for household items, and addiction counseling.

At trial, Elizabeth testified that she has had a difficult time since the children were 

removed and that she has continued to use controlled substances. She testified that she used 

methamphetamine on a daily basis, including the morning of the trial, and that she was under the 

influence of methamphetamine in court that day. She stated that her drug use did not have an 

effect on her ability to parent the children, but she knew that it was “bad” and that her use 

impacted the children’s lives.

On April 19, 2013, the court issued a written order finding the State proved by clear and 

convincing evidence that the statutory grounds for termination under § 43-292(1), (2), (4), (6), 

and (7) existed. The court also found that the testimony of Whipple-Benitez was credible and 

that the State provided active efforts as required under ICWA. The court found, beyond a 

reasonable doubt, that the children face a substantial likelihood of serious emotional or physical 

abuse within the near future if they were to be placed in the care of Elizabeth. See § 43-1505(6). 

The court found the State proved by clear and convincing evidence that termination of 

Elizabeth’s parental rights was in the best interests of the children. Elizabeth timely appealed.

ASSIGNMENTS OF ERROR

Elizabeth asserts the trial court erred by finding, by clear and convincing evidence, that 

termination of her parental rights was in the best interests of the minor children. She also asserts 

she was denied due process of law.

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. In re Interest of Angelica L. & Daniel 

L., 277 Neb. 984, 767 N.W.2d 74 (2009). However, when the evidence is in conflict, an appellate 

court may consider and give weight to the fact that the trial court observed the witnesses and 

accepted one version of the facts over the other. Id.

ANALYSIS

For a juvenile court to terminate parental rights under § 43-292, it must find that one or 

more of the statutory grounds listed in that section have been satisfied and that termination is in 

the child’s best interests. See In re Interest of Jagger L., 270 Neb. 828, 708 N.W.2d 802 (2006). 

The State must prove these facts by clear and convincing evidence. Id. Clear and convincing 

evidence is that amount of evidence which produces in the trier of fact a firm belief or conviction 

about the existence of the fact to be proved. Id.

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 Sir Messiah T. et al., 279 Neb. 900, 782 N.W.2d 320 (2010).

Here, the court found the State proved by clear and convincing evidence that the statutory 

grounds for termination existed under § 43-292(1), (2), (4), (6), and (7). Elizabeth does not 

contest the court’s finding that grounds for terminating her parental rights exist. After reviewing 

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the record, we find that one or more of the grounds for termination did exist. Section 43-292(4) 

provides for termination of parental rights when “[t]he 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 the court to be seriously detrimental to the health, morals, or 

well-being of the juvenile.”

Elizabeth voluntarily placed Lorenzo and Lillian with family members, Gina and her 

husband, in August 2011. Elizabeth was not in a position to care for the children on a full-time 

basis at any time prior to the termination proceedings in March 2013. Elizabeth’s drug 

dependency and her unsuccessful attempts to complete drug treatment programs are well 

documented in the record. Elizabeth’s continued drug use was evident as she attended visits with 

her children, and arrived at trial, under the influence of illegal drugs. Her substance use has 

prevented her from contributing to the care and well-being of her children on a regular basis. Our 

de novo review of the record clearly and convincingly shows that grounds for termination of 

Elizabeth’s parental rights under § 43-292(4) were proved by sufficient evidence. Once a 

statutory basis for termination has been proved, the next inquiry is whether termination is in the 

child’s best interests.

With respect to the best interests of a juvenile in termination of parental rights 

proceedings, the Nebraska Supreme Court has stated that the law does not require perfection of a 

parent. Rather, we should look for the parent’s continued improvement in parenting skills and a 

beneficial relationship between parent and child. In re Interest of Skye W. & McKenzie W., 14 

Neb. App. 74, 704 N.W.2d 1 (2005).

Elizabeth asserts the record does not contain sufficient evidence to establish that 

termination of her parental rights was in the children’s best interests. She asserts that “had she 

been given an opportunity and time to effectively deal with her substance abuse problems she 

would have been able to effectively use her parenting skills to properly raise these children.” 

Brief for appellant at 10-11.

However, the record shows that Elizabeth has not made sufficient progress during the 

pendency of this case to allow the children to return to a safe, stable environment. She has been 

unable or unwilling to obtain employment, has not obtained permanent housing, and has not 

demonstrated that she is prepared to provide the necessities for the care of the children in the 

future. The evidence shows that she has made attempts to overcome her substance abuse and 

dependence on methamphetamine, but that she has not been successful. She tried three separate 

inpatient treatment centers and was unsuccessful and has not made continued efforts to achieve 

sobriety through outpatient services, including Alcoholics Anonymous or Narcotics Anonymous 

meetings and addiction counseling. She admitted at the time of trial that she was still using 

methamphetamine on a daily basis and that she was under the influence of the drug at that time.

Though the record shows that Elizabeth was a loving and attentive mother during visits, 

the visits did not occur regularly throughout the case, and Elizabeth did not take full advantage 

of the time she was allotted with the children. Though Elizabeth stated that she did not take drugs 

when the children were with her, she tested positive for amphetamine and methamphetamine 

when she arrived at several visits.

Several individuals who worked with Elizabeth during this case testified that Elizabeth 

has not made satisfactory progress and is not in a position to adequately parent these children. 

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Jobman, a children and family service specialist, stated that it was her opinion Lorenzo and 

Lillian needed permanency and that it was in their best interests to be adopted. Montgomery, also 

a children and family service specialist, stated her opinion that it was in the best interests of 

Lorenzo and Lillian to remain in out-of-home placement with the goal of adoption. Wilson, yet 

another children and family service specialist, stated her opinion that the best interests of the 

minor children required termination of Elizabeth’s parental rights. Reffalt-Herrera testified that 

Elizabeth did not progress to a point where she would have been able to provide for the 

necessities and care of the children.

The Nebraska Supreme Court has stated that “[w]hen a parent is unable or unwilling to 

rehabilitate himself or herself within a reasonable time, the child’s best interests require 

termination of parental rights.” In re Interest of Walter W., 274 Neb. 859, 871, 744 N.W.2d 55, 

64 (2008). The system cannot and should not allow children to languish in foster care waiting to 

see if the parent will mature. In re Interest of Destiny A. et al., 274 Neb. 713, 742 N.W.2d 758 

(2007).

Upon our de novo review, we conclude there is clear and convincing evidence to support 

a determination that termination of Elizabeth’s parental rights is in the children’s best interests. 

We note that Elizabeth does not challenge the findings made pursuant to ICWA. We affirm the 

decision of the trial court.

Due Process; Initial Removal Pursuant 

to Voluntary Plan.

Elizabeth asserts she was denied due process because the children were removed pursuant 

to a voluntary plan and evidence from that period was cited in the order to terminate her parental 

rights. See In re Interest of Joseph S. et al., 21 Neb. App. 706, 842 N.W.2d 209 (2014).

Elizabeth asserts her circumstances are similar to those of the parent in In re Interest of 

Joseph S. et al., where we found a violation of due process rights because compliance during the 

voluntary removal period was the primary evidence to satisfy the statutory requirements for 

termination of parental rights.

Here, the vast majority of the evidence offered to support the State’s petition was 

gathered from events and actions which took place after the voluntary period ended and the 

juvenile petitions had already been filed.

Lorenzo and Lillian were born in January 2011 and were placed with Gina and her 

husband in August 2011. The State filed a petition alleging the children were within the meaning 

of § 43-247(3)(a) in January 2012 and filed a motion for temporary custody to be transferred to 

DHHS. An amended petition was filed on January 10, and in February, Elizabeth pled no contest 

to having a history of using methamphetamine, testing positive for methamphetamine, and being 

unable to maintain sobriety.

In terminating Elizabeth’s parental rights, the court relied on evidence presented that 

Elizabeth had a “chronic or worsening methamphetamine addiction that prevented her from 

satisfying basic needs of her children”; extensive efforts to preserve and reunify the family had 

failed; the children had been in out-of-home placement for at least 15 of the most recent 22 

months; Elizabeth had sporadic contact with her children, could not provide safe and stable 

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housing, and was unable to provide monetary support because she did not obtain employment; 

and Elizabeth repeatedly tested positive for controlled substances.

The only meaningful evidence stemming from the period between August 2011 and 

February 2012 was that the children were in out-of-home placement starting August 17, 2011; 

that Elizabeth attempted treatment at NEPSAC and was unsuccessful in completing the course of 

treatment; and that the condition giving rise to the voluntary case was Elizabeth’s use of 

methamphetamine.

The evidence shows that after the § 43-247(3)(a) petition was filed, a case plan was 

developed for Elizabeth with the goal that she would be able to reunify with the children. The 

case plan goals included the following: (1) providing a safe, stable, alcohol-free, and drug-free 

environment for herself and her children; (2) understanding her protective role as a parent; and 

(3) understanding how drug usage affects her ability to parent and has an impact on the life of 

her children.

After that time, Elizabeth attempted and failed two inpatient treatment programs, failed to 

achieve or maintain sobriety, and failed to take full advantage of outpatient treatment options 

available. Elizabeth tested positive for controlled substances or signed admissions that she had 

used. She testified at trial that she continued to use drugs on a daily basis and had used drugs 

before trial that day. After the petition was filed, Elizabeth lived in multiple residences, was not 

employed, and failed to consistently attend scheduled visitation with the children. By the time of 

trial, she had not progressed or met any of the objectives set forth in her case plan. It is clear that 

the State’s motion for termination of Elizabeth’s parental rights was not tied to evidence gathered 

during the voluntary period; rather, it was centered on services offered during the pending court 

case. It is clear that Elizabeth failed to meet the goals set forth in her case plan.

Procedural due process includes notice to the person whose right is affected by the 

proceeding; reasonable opportunity to refute or defend against the charge or accusation; 

reasonable opportunity to confront and cross-examine adverse witnesses and present evidence on 

the charge or accusation; representation by counsel, when such representation is required by the 

Constitution or statutes; and a hearing before an impartial decisionmaker. In re Interest of 

Mainor T. & Estela T., 267 Neb. 232, 674 N.W.2d 442 (2004).

We cannot find that Elizabeth was deprived of due process rights simply because this 

case originated from a voluntary case. The record shows that Elizabeth was given notice of the 

allegations against her and that she was represented by an attorney throughout the pendency of 

the case. She had the opportunity to confront and cross-examine witnesses, present evidence, and 

defend against the allegations made against her. There is no evidence to suggest that Elizabeth 

was deprived of due process rights.

Employee of County Attorney’s Office 

as Foster Placement.

Elizabeth asserts her due process rights were violated when the children were placed with 

an employee of the county attorney’s office, Gina. She asserts the placement of the children with 

Gina created “an appearance of impropriety and a direct conflict of interest.” Brief for appellant 

at 13. She does not cite to any statutory authority, case law, or any other legal authority to 

support her argument.

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Elizabeth raised this issue in the lower court when she made a motion to disqualify the 

county attorney’s office and requested the appointment of a special prosecutor. The record shows 

Elizabeth made a motion to disqualify the county attorney’s office, and there was a hearing on 

January 29, 2013.

Gina testified that she is a legal secretary in the child support department, and the record 

shows that she is also Elizabeth’s aunt. Gina testified that the first placement was with 

Elizabeth’s grandmother and that Elizabeth was supposed to stay in the same home to care for 

the children. Gina testified she received a telephone call from Elizabeth asking if Gina could give 

her a break and keep the children for the weekend. Gina asked if there could be another 

placement found for the children, and after doing background checks on Elizabeth’s family, and 

Gina’s family, there were no other family members who passed. Gina expected the placement to 

be temporary while Elizabeth was in substance abuse treatment, and it was her understanding 

that Elizabeth wanted the children placed with Gina.

Gina testified that Elizabeth had asked her whether she would be allowed to see the 

children if Gina adopted them and that Gina said Elizabeth could if she was not under the 

influence of drugs. Gina testified that she hoped the children would be allowed to return to 

Elizabeth’s care. However, if they were not able to live with Elizabeth, Gina stated that she and 

her husband were prepared to adopt the children. There was no evidence presented that Gina had 

any intention to thwart Elizabeth’s relationship with the children, so long as Elizabeth was not 

abusing controlled substances.

The record shows that the case was treated as if it was governed by ICWA. Under ICWA, 

Neb. Rev. Stat. § 43-1508 (Reissue 2008) states:

(2) Any child accepted for foster care of preadoptive placement shall be placed in 

the least restrictive setting which most approximates a family and in which his or her 

special needs, if any, may be met. The child shall also be placed within reasonable 

proximity to his or her home, taking into account any special needs of the child. In any 

foster care or preadoptive placement, a preference shall be given, in the absence of good 

cause to the contrary, to a placement with:

(a) A member of the Indian child’s extended family;

(b) A foster home licensed, approved, or specified by the Indian child’s tribe;

(c) An Indian foster home licensed or approved by an authorized non-Indian 

licensing authority; or

(d) An institution for children approved by an Indian tribe or operated by an 

Indian organization which has a program suitable to meet the Indian child’s needs.

See, also, 25 U.S.C. § 1915 (2012).

There was no other family available for placement in this case, except for Gina. Gina 

testified that in her position at the county attorney’s office, she was not supervised by the 

attorney in this case, but that they work in the same building, on the same floor. The court asked 

whether there was any evidence of receipt of information detrimental to Elizabeth as a result of 

Gina’s position in the child support department, which would require disqualification of the 

office. Elizabeth stated there was no proof, but there was an appearance of impropriety and a 

potential conflict of interest. The State argued that there was not sufficient evidence to show the 

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county attorney’s office was biased, and the county attorney had no control over the placement 

of the children.

The trial court stated:

In the absence of any specific rules of professional conduct that you believe are being 

violated and in view of the fact that there’s evidence of -- before the court there is no 

direct participation or supervision in a case of this nature by a secretary in the -- in the 

child support division of the county attorney’s office, further, in view of the fact that the 

placement decisions being made in the case are by a state agency, [DHHS], and there’s 

no evidence in this case of information being shared that was gleaned in a confidential 

setting by counsel that is now being -- counsel for the mother that is now being used in a 

context detrimental to the mother, and the fact we’re talking about a relative that was 

asked, according to the evidence before the court, whether she would adopt by the -- by 

the natural mother at some point, under the circumstances I don’t find sufficient evidence 

in this case to grant a motion to disqualify the county attorney’s office. So I will overrule 

the motion at this time.

Upon our review of the evidence, we find the trial court did not err in overruling 

Elizabeth’s motion to disqualify the county attorney’s office. Though Gina was an employee of 

the county attorney’s office, there is no evidence of bias or evidence that Gina had any 

involvement in or knowledge of the termination proceedings, except in her capacity as a member 

of Elizabeth’s family and as the foster placement for the children. Elizabeth cited no authority or 

any evidence in the record to support her argument that the placement was improper or that her 

case was unfairly administered. The totality of the circumstances, including Gina’s familial 

relationship, her attempts to facilitate visitation and support Elizabeth throughout the termination 

case, and her statement that she hoped the children would be returned to Elizabeth’s care, is 

contrary to any alleged bias. We find Elizabeth’s due process rights were not violated by the 

placement of her children in the home of Gina and her husband.

CONCLUSION

Upon our de novo review, we find there was clear and convincing evidence that 

termination was in the children’s best interests and that Elizabeth’s due process rights were not 

violated.

AFFIRMED.

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