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IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

IN RE INTEREST OF LOGAN J. 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 LOGAN J. ET AL., CHILDREN UNDER 18 YEARS OF AGE.

STATE OF NEBRASKA, APPELLEE,

V.

ERIKA J., APPELLANT, AND ERIC F., APPELLEE AND CROSS-APPELLANT.

Filed December 7, 2021. Nos. A-21-249, A-21-250, A-21-254.

Appeals from the County Court for Scotts Bluff County: JAMES M. WORDEN, Judge. 

Affirmed.

Andrew M. Pope, of Crites, Shaffer, Connealy, Watson, Patras & Watson, P.C., L.L.O., 

for appellant.

Danielle Larson, Deputy Scotts Bluff County Attorney, for appellee State of Nebraska.

Audrey M. Long, of A. Elliott Law, P.C., L.L.O., for appellee Eric F.

MOORE, BISHOP, and ARTERBURN, Judges.

MOORE, Judge.

I. INTRODUCTION

Erika J. appeals, and Eric F. cross-appeals, from an order of the Scotts Bluff County Court 

sitting as a juvenile court, terminating their parental rights to three of their children. Upon our de 

novo review of the record, we affirm the juvenile court’s order.
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II. STATEMENT OF FACTS

1. PROCEDURAL BACKGROUND

Erika and Eric are the parents of Roper F., born in February 2017. Erika is also the mother 

of Logan J., born in February 2015. Eric is also the father of Tannen F., born in December 2009. 

Logan’s father and Tannen’s mother are not a part of the appeal before us now, and they will only 

be discussed as necessary to address Erika’s and Eric’s assigned errors.

In September 2019, a petition was filed with the Sioux County Court, sitting as a juvenile 

court, to adjudicate Tannen, Logan, and Roper pursuant to Neb. Rev. Stat. § 43-247(3)(a) (Reissue 

2016) based on the action of both parents. Specifically, the petition alleged that Eric assaulted 

Logan with a belt, causing severe bruising on Logan’s legs, and that Erika failed to report the 

assault to law enforcement and failed to protect the children in her home. Tannen, Logan, and 

Roper were removed from the parental home on September 6, 2019, and placed with a foster 

family. Tannen was later placed with his biological mother in April 2020. In November 2020, 

Tannen’s biological mother began fostering Logan and Roper. All three children have remained 

out of Erika’s and Eric’s home since their removal.

(a) Eric’s Motion for Visitation

On September 26, 2019, Eric filed a motion that “request[ed] the court adopt a reasonable 

parenting time schedule” for Eric. On September 6, Eric was arrested for criminal child abuse 

related to the allegations in the adjudication petition. Due to the pending child abuse case, a 

“no-contact provision” between Eric and all three children had been ordered by the criminal court 

as a requirement of Eric’s bond. The details of this “no-contact provision” are not included in our 

record. Eric’s motion was heard by the juvenile court on October 4. Evidence was presented by 

both the State and Eric, including testimony by the Department of Health and Human Services 

(DHHS) initial assessment worker and the two law enforcement officers who investigated Logan’s 

bruising on September 6. In an order entered on October 15, the court allowed Eric supervised 

visitation with Tannen and Roper, with the amount of the supervised visitation to be determined 

by DHHS. The court also continued its previous order that Eric have no visitation with Logan.

On April 16, 2020, Eric motioned the juvenile court to remove the “no contact provision”

and allow visits between him and Logan. Eric cited his compliance with DHHS’ case plan prior to 

the plan being court-ordered as evidence that he was taking the reunification process seriously.

(b) Adjudication

The following day, the State filed an amended petition which stated that Eric engaged in 

“excessive discipline” and that Logan received severe bruising on his legs “as a result of a belt 

used by Eric . . . ” The adjudication hearing was also held on April 17, where both Erika and Eric 

entered pleas of no contest to the allegations in the amended petition. The juvenile court then found 

that Tannen, Logan, and Roper were adjudicated under § 43-247(3)(a).

(c) Disposition

The juvenile court entered its dispositional order on May 1, 2020. The court adopted the 

DHHS case plan which outlined managing mental health, providing age appropriate parenting, and 

developing positive relationships as plan goals for both Erika and Eric. The court then modified 
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the no-contact order to allow for therapeutic visitation between Eric and Logan. The court also 

ordered “[r]easonable visitation to be determined by DHHS. Further visitation conditions are: 

Continuing as determined by HHS.” Neither Erika nor Eric appealed the court’s dispositional 

order.

(d) Eric’s Suspended Visitation

On July 28, 2020, DHHS halted supervised visitation between Eric and Tannen and Roper, 

as well as therapeutic visitation between Eric and Logan. DHHS cited Eric’s inappropriate 

behavior with the children, Eric’s recent assault charge in an unrelated matter, and 

recommendations by therapeutic providers as reasons why contact between Eric and the children 

was stopped.

On July 30, 2020, Eric filed a motion for emergency orders on visitation, arguing that the 

juvenile court had “illegally delegated” its visitation authority to DHHS when the court allowed 

DHHS to determine reasonable visitation in its dispositional order. A hearing on Eric’s motion for 

emergency orders was held on August 14. Betsy Goodell, the family’s DHHS case manager from 

September 2019 until September 2020, testified that DHHS was concerned by Eric’s erratic 

behavior towards professionals on the case, letters from two therapists recommending that visits 

between Eric and the children stop, as well as Eric’s general lack of participation in his case plan 

goals. Goodell also testified that the clinician who had performed Eric’s parental capacity 

evaluation advised that therapists involved in the case were the best source to determine visitation 

progress. Eric testified in his own behalf and described the parenting classes he had completed. 

Eric also denied inflicting the injuries on Logan’s legs. The juvenile court temporarily suspended 

visitation between Eric and all three children and took the matter under advisement, noting that it 

would attempt to issue a decision as to Eric’s visitation before the scheduled review hearing on 

September 4.

(e) Motion to Transfer

On August 14, 2020, Eric filed a motion to transfer jurisdiction to Scotts Bluff County. On 

August 31, the juvenile court, on its own motion, continued the review hearing and Eric’s motion 

to transfer jurisdiction from September 4 to October 2. All parties then filed a joint stipulation to 

transfer jurisdiction and the order by the Sioux County Court transferring jurisdiction was filed on 

September 14. The Sioux County Court had not ruled on Eric’s motion for emergency orders on 

visitation at the time of the jurisdictional transfer.

(f) Motion for Termination of Parental Rights

On September 29, 2020, the State filed a motion in Scotts Bluff County Court, sitting as a 

juvenile court, for termination of Erika’s and Eric’s parental rights, alleging statutory grounds to 

terminate existed pursuant to Neb. Rev. Stat. § 43-292(2) and (6) (Reissue 2016), and alleging that 

termination was in the best interests of the children.

(g) Eric’s Motion for Video Visitation

Prior to the termination trial, Eric motioned the juvenile court for video visits with Tannen 

and Roper, and a hearing on the motion was held on November 30, 2020. Eric reoffered certificates 

of completion for various courses he had participated in and testified to the video capabilities in 
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the jail for virtual visits, as Eric was incarcerated at the time of the hearing. At the close of the 

hearing, the court ordered that Eric begin therapeutic visitation with Tannen and Roper for 1 

month, and then move to supervised visits with Tannen and Roper.

2. TRIAL

The termination trial was held over the course of 3 days in January 2021. At the trial, 26 

witnesses testified and over 30 exhibits were received by the juvenile court.

(a) Logan’s Injuries

Law enforcement was called to Logan’s preschool on September 6, 2019, to investigate 

possible child abuse caused by Eric. An officer testified to hearing Eric tell Logan that Eric was 

sorry and that he did not mean to hurt Logan after Eric was informed by law enforcement that they 

were investigating Logan’s injuries. An officer who observed the bruising on Logan’s legs testified 

that the bruising was on both of Logan’s thighs and appeared to be in various stages of healing, as 

some of the bruises were lighter in color. Officers also noticed that the bruise on Logan’s left thigh 

contained a particular pattern, as the bruise had a hole in the center that appeared to have been 

made by a belt. A secretary at Logan’s preschool testified that the bruises on Logan were the worst 

bruises she had ever seen on a child and that she had observed a buckle impression on Logan’s 

thigh. Eric was later arrested for criminal child abuse.

The DHHS initial assessment worker contacted law enforcement and organized a forensic 

interview, which took place the same day the injuries were reported. The worker observed the 

child forensic interview of Logan and testified that Logan disclosed that his “daddy had . . . hurt 

him . . . with a belt.” When Logan was asked in the interview what Erika did after the incident 

with the belt, Logan responded that “Mommy said no more TV for Logan.” Tannen also had a 

child forensic interview. The worker testified that she found Tannen’s interview responses to be 

coached.

The initial assessment worker also testified that neither Erika nor Eric would provide 

explanations for how Logan’s injuries occurred. Another DHHS worker who assisted with the case 

intake, testified that Erika later attributed the bruises on Logan’s legs to his wrestling with Tannen 

and stated that “Logan’s never been known for his gracefulness.” Erika also told the workers that 

while the children are spanked in the family home and that Eric does the physical discipline, Eric 

has never left a bruise on the children. Throughout the case Erika has denied ever seeing the bruises 

on Logan’s legs, reporting she had only seen them in photographs shown to her. Erika testified 

that the bruises were never revealed to her because Logan was bathing and dressing himself in 

September 2019.

Throughout the case, Eric gave various explanations for Logan’s injuries. Goodell stated 

that Eric explained that Logan’s fall onto a baler caused his bruises. In August 2020, Eric told his 

counselor that he spanked Logan with his bare hands. At the time of the termination trial, Eric 

testified that he spanked Logan with the strap of a duffel bag. When asked why Eric would spank 

Logan with a duffel bag strap, Eric stated, “[t]hat is the question of the year.”
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(b) Children’s Therapeutic Services

Melissa Bauer-Post, a licensed mental health practitioner, facilitated therapeutic visits 

between Logan and Eric in July 2020. Bauer-Post noticed in her initial sessions with Logan that 

he needed permission to do everything during play therapy. Bauer-Post testified that during the 

first therapeutic visit, Eric struggled to follow Logan’s lead and did not stay to discuss the session 

after it had ended. A second therapy session was scheduled, but Bauer-Post received a call the 

night before the session from DHHS, informing her that Eric had arrived to the children’s visitation 

intoxicated and that the session would need to be canceled. The second session was rescheduled, 

but Eric did not show up. Bauer-Post called Eric to inform him that she would not be facilitating 

any more therapeutic visits between him and Logan. Eric then became very angry and threatened 

Bauer-Post with his attorney.

Bauer-Post became Logan and Roper’s individual therapist in October 2020. Bauer-Post 

testified that Logan is diagnosed with ADHD, an adjustment disorder, anxiety, and depression. 

Roper also has an adjustment disorder and anxiety. Because of these childhood mental health 

struggles, both boys need permanency, stability, and normalcy. Bauer-Post testified that because 

both Logan and Roper display a high level of fear, it is likely they suffered past trauma, being 

yelled at, and living in immense fear.

Dr. Sue Michal, a mental health therapist, began seeing Tannen on December 4, 2019. 

Michal observed Tannen to be protective of Eric and that Tannen had “learned codependency.”

Michal testified that Tannen has been “groomed” by Eric to minimize Eric’s actions, even if 

Tannen knows the acts are “probably illegal.” Tannen will often come to his father’s defense, 

saying that no one understands how bad Eric has it. Since Eric was incarcerated in September 

2020, Michal has noticed Tannen to be more calm and stable. Michal testified that she recommends 

Tannen not have contact with his father until he reaches the age of majority. Michal recounted 

Eric’s criminal behaviors, domestic violence, and teaching Tannen to minimize Eric’s behavior as 

reasons why she recommends Tannen have years of “noninfluence” from his father.

(c) Domestic Violence

The domestic violence dynamic between Erika and Eric has been a presence throughout 

the case. On February 12, 2020, law enforcement was called to their home due to a domestic 

disturbance. An officer who arrived on the scene observed lumps on Erika’s forehead and testified 

that Erika indicated that Eric tried to put her in a chokehold and she “jabbed” Eric with car keys 

in order to free herself from him. Erika then left the residence but returned after receiving a call 

from Eric. The officer testified that when Erika returned to the home, Eric punched Erika’s lip and 

stomach. The officer was unable to interview Eric because he was so intoxicated. The officer 

observed broken items throughout the house, the bedroom in disarray, and a significant amount of 

blood on the kitchen floor. Eric was then arrested for strangulation and domestic assault.

In her testimony about the February 2020 incident, Erika acknowledged that in April, she 

wrote a letter recanting her initial report to police, stating that Eric had not hit her. At trial, Erika 

clarified that Eric had put her in a chokehold, but that it was not a “full chokehold.”

Eric did not testify about the February 2020 incident. Throughout the case Eric denied 

using physical violence against Erika, but Eric’s counselor testified that Eric acknowledged that 

he bullies Erika.
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As discussed below, Eric was incarcerated for periods of time throughout the case. After 

Eric was arrested on September 6, 2019, for criminal child abuse, law enforcement began listening 

to jail calls between Eric and Erika. An officer testified that during the calls, Eric was attempting 

to control Erika and provide her with a false narrative for law enforcement and the courts. The 

tone of these jail calls revolved around Eric pressuring Erika to frame the child abuse allegations 

in a favorable way for Eric.

Officers also contacted women who had previously been in a relationship with Eric. These 

women identified as victims of Eric’s domestic abuse, including instances of strangulation. 

Officers also contacted law enforcement in states in which Eric had previously resided, and 

received a report of a domestic violence investigation involving Eric and his wife at the time. 

Officers testified to relaying their concerns regarding the domestic violence between Eric and 

Erika to DHHS.

Goodell testified that when she confronted Eric about his domestic violence history, he 

denied domestic violence ever occurring in the home. DHHS remained concerned about domestic 

violence in the case, but when Goodell attempted to address the concerns with Erika, she denied 

it.

Caroline Teeple, the DHHS case manager for the family from September 2020 onward, 

testified that in a conversation with Erika in October, Erika indicated that she was not “completely 

done” with Eric. After Eric was incarcerated in September, Teeple requested copies of jail calls 

between Eric and Erika and observed 176 phone calls within a 1-week period.

Later, in November 2020, Erika reported to Teeple that she had cut off all communication 

with Eric. However, Teeple testified to a jail call on November 17 in which Eric asked another 

detainee to call a third party to relay a message to Erika for him. There were also six calls made 

on November 17 during which Eric used another detainee’s line in an attempt to hide his contacts 

with Erika. During one of these calls, Teeple testified to Erika telling Eric, “in order for me to get 

the kids back everyone has to believe it and I have to cut all ties with you.” Later in the call, Eric 

referenced a plan the couple had to “remain a family.”

Teeple testified that DHHS’s concerns regarding the family included a lack of sustainable 

behavioral change and continued safety threats over a year into the case. Domestic violence 

concerns contributed to a worry that Eric would continue to abuse the children, and Erika would 

be unable to protect the children from serious harm. Teeple rated both Eric and Erika’s case 

progress as poor.

Erika testified about her relationship with Eric generally and the difficulty she has had in 

ending the relationship due to her fear of him and her lack of community supports. Erika stated 

that Eric mentally abused her by blaming her throughout the case and making everything out to be 

her fault. Erika testified to having taken steps to address DHHS’s concerns by not communicating 

with Eric, changing her phone number, changing her address, and planning to file for divorce when 

she is able to afford it.

(d) Other Criminal Cases

Both Erika and Eric spent a portion of this case incarcerated. Erika was incarcerated from 

May 8 to August 10, 2020. Teeple testified that she had learned that Erika was arrested on January 

7, 2020, for theft and on May 6 for a false reporting charge related to the February domestic assault.
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In addition to Eric’s arrest in February 2020 for domestic assault and strangulation, Teeple 

testified that Eric was sentenced on September 9 to 18 months for attempted child abuse and to 6 

months for assault of a minor. The two sentences were ordered to run consecutively. While Eric’s 

charge of attempted child abuse was related to Logan’s injuries, his charge of third degree assault 

was related to a case involving Eric’s contacts with a 16-year-old juvenile. A law enforcement 

officer testified that the allegations of the case included Eric picking up the juvenile from her high 

school and driving her to a nearby parking lot where he fondled and kissed her. Following a 

forensic interview of the juvenile, Eric was arrested. The officer also noted that Erika stated that 

she was aware that Eric had been contacting a younger girl at a high school.

(e) Erika’s Visitation

Goodell testified that Erika attended nearly all of her visits from September through 

December 2019. Erika was able to move from fully supervised to semi-supervised visits in 

October. However, DHHS returned Erika to fully supervised visits in January 2020 after a family 

support worker saw Eric in the home when there was a no-contact order between Eric and Logan. 

Erika’s visitation was then halted from May to September due to her incarceration.

When Teeple took over the case, Erika’s visitation attendance was less consistent than it 

had been before her incarceration. Teeple testified that Erika attended, on average, 81 percent of 

her visits from September to December 2020.

Tina Campos, a family support worker who supervised Erika’s visits with her children, 

began working with the family in September 2020. Campos stated that Erika was initially engaged 

with the children, was able to keep them on a nap and eating schedule, and was prepared for the 

visits. However, in October, Campos observed a change in behaviors from Erika and the two 

children. Erika would have a few positive visits with the children followed by a visit that went 

poorly, with Erika being unable to sustain positive visits consistently. Beginning in October, Erika 

also began to use her phone as a form of escapism when she would become frustrated during visits. 

While there were no noted safety concerns during visits, Campos testified that Erika’s frustration 

would cause her to shut down during her visits with Logan and Roper.

(f) Erika’s Therapeutic Services

Dr. Gage Stermensky, a licensed psychologist, conducted a parental capacity evaluation 

for Erika in December 2019. Stermensky testified that Erika had the capacity to meet the urgent 

or emergency needs of her children, but only if it does not lead to upsetting or finding herself out 

of favor with significant others. Stermensky diagnosed Erika as having dependent personality 

traits, and was concerned that Erika would seek out significant others that would place her or her 

children at risk. Stermensky testified that Erika did not present with any concerns regarding 

intellectual function, but that there were mental health issues that would require Erika to comply 

with a treatment plan and long-term therapy.

Maria Saenz, a licensed psychotherapist, met Erika in August 2019 when Erika voluntarily 

came to see Saenz for assistance with her mental health concerns. Saenz scheduled Erika for 

weekly sessions, but Saenz only saw Erika for 13 sessions between then and October 2020. Saenz 

testified that Erika’s inconsistency with attendance made Erika’s sessions ineffective as each 

session was like starting over and there were always new issues to address. In her last session with 
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Saenz, Erika did disclose that Eric had abused the children, but Erika never disclosed that Eric had 

abused her. Saenz testified that it is common for a client who is experiencing abuse in the home to 

be sporadic with treatment attendance.

Erika was referred to Community Action Partnership of Western Nebraska (CAPWN) in 

July 2019 for therapeutic services and medication management. In her individual diagnostic 

interview on July 3, Erika disclosed that she was struggling with anxiety and mood deregulation, 

as well as past emotional abuse, sexual abuse, and a current sexual assault investigation pending 

at the time of the interview. Further evaluations indicated that Erika was struggling with depression 

and anxiety related to having her children removed. Erika started medication management services 

with CAPWN, but professionals testified to being unable to fully address the reactions Erika was 

having to her prescribed medications. While it was recommended that Erika receive counseling 

and mental health therapy during her medication management services, professionals noted that 

Erika not being properly medicated hindered her ability to move forward with her therapy.

Cory McManigal, a licensed alcohol and drug counselor with CAPWN, was Erika’s 

individual counselor beginning in January 2020. In sessions with McManigal, Erika disclosed her 

concerns that her alcohol consumption was becoming increasingly problematic. In addition to 

individual sessions, Erika completed a substance abuse intensive outpatient program with 

McManigal from February to April. McManigal testified that Erika was developing coping skills 

and working on setting boundaries with Eric. Erika was incarcerated from May to September and 

sought McManigal out for counseling after her release. However, Erika stopped attending 

counseling sessions in October despite future sessions being scheduled.

(g) Couple’s Counseling

Erika and Eric began couple’s counseling in April 2020. Their counselor saw them twice, 

once in April and then again in September. The couple did not disclose Eric’s arrest for domestic 

violence against Erika.

(h) Eric’s Therapeutic Services

Stermensky also conducted a parental capacity evaluation for Eric in December 2019. 

Stermensky diagnosed Eric with an unspecified anxiety disorder, antisocial personality traits, an 

unspecified alcohol-use disorder, and an alcohol-related disorder and advised that Eric attend 

individual therapy and follow therapeutic recommendations. Stermensky testified that if Eric did 

not follow therapeutic recommendations, it would affect his ability to function well in the parenting 

role, Eric’s other relationships, and Eric’s ability to meet various goals.

Eric was likewise referred to services at CAPWN. A provider at CAPWN conducted a 

substance use evaluation on Eric in October 2019 and diagnosed him with an alcohol-use disorder. 

It was recommended that Eric receive weekly outpatient treatment from the provider who had 

performed the evaluation. However, Eric returned for outpatient treatment only twice after his 

evaluation, both times in November 2020.

Eric began receiving medication management services at CAPWN in September 2019. The 

provider offering Eric’s medication management testified that managing Eric’s medication was 

difficult as he would increase dosage amounts on his own and was generally not medication 

compliant. Eric was receiving medication management services until his incarceration. Providers 
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also testified that medication without accompanying therapy will not effectively meet the needs of 

the patient.

Eric saw an individual counselor for a few sessions before discontinuing treatment because 

he believed the therapist was “prying into information into Erika, and [Eric] felt that it was 

inappropriate.” Eric then transitioned to Sandy Raney, a counselor dually licensed in substance 

abuse and mental health, in August 2020. Raney testified that she performed a co-occurring 

evaluation on Eric, as well as a domestic violence assessment after Eric disclosed he had a 

domestic violence charge. Raney advised Eric to participate in anger management and domestic 

violence classes. Eric participated in five sessions with Raney prior to his incarceration.

Raney testified that Eric was inconsistent with his disclosures. Eric was also not sincere in 

acknowledging that he had an anger problem, and Raney stated that she “was being played to get 

him out of trouble with DHHS and get on with his life.” At one point, Eric informed Raney that 

he wanted to divorce Erika so that she could retain custody of the children. Eric never attended

any of the groups that Raney recommended. Raney stated that Eric made very minimal progress 

on his treatment plan. Raney testified that it would not be beneficial for the children or Eric to have 

any visitation at the time of trial. If Eric was not able to manage his anger, Raney predicted that 

the children would grow into “little Erics.”

(i) Eric’s Inappropriate Behavior

Various witnesses described Eric’s inappropriate behavior towards adults involved in the 

case and at visits with his children. Both Logan’s preschool secretary and the children’s foster 

mother testified to inappropriate and sexual remarks Eric had made to them.

Goodell noted concerns regarding inappropriate conversations between Eric and the 

children as well as comments made to the visitation workers. Inappropriate conversations consisted 

of talking with the children about the family’s child welfare case and making sexual comments to 

workers. The April 27, 2020, DHHS court report also notes Eric calling the children inappropriate 

names and speaking to Tannen about pornography.

(j) Leave to Amend Termination Motion

At the close of the second day of trial, the State made a motion for leave to amend its 

motion to terminate parental rights to include an allegation under § 43-292(7), alleging that the 

children have been in an out of home placement 15 out of the most recent 22 months. Erika and 

Eric objected to the State’s motion for leave to amend. The court took the State’s motion under 

advisement. During the final day of trial, the court heard argument from all parties and found that 

the State’s motion for leave to amend, to include the allegation under § 43-292(7), would not 

prejudice the parties and allowed the State to amend its original motion.

3. ORDER

Following the termination hearing, the juvenile court entered an order on March 2, 2021, 

terminating Erika’s rights to Logan and Roper and Eric’s rights to Tannen and Roper. The court 

found that the State had met its burden of proving grounds for termination under § 43-292(2), (6), 

and (7). The court further found that “[t]he only thing that has been corrected in this case is Logan’s 
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physical injuries have healed” and that it was in the best interests of the children to have Erika’s 

and Eric’s parental rights terminated.

Erika appeals, and Eric cross-appeals.

III. ASSIGNMENTS OF ERROR

Erika assigns, restated, that the juvenile court erred in (1) allowing the State to amend the 

petition at trial to include the statutory ground under § 43-292(7), (2) finding that there was clear 

and convincing evidence that statutory grounds for termination existed, and (3) finding that it was 

in the best interests of the children to terminate her parental rights.

Eric cross-appealed, assigning, restated, that the juvenile court erred in (1) delegating its 

authority to the DHHS to determine reasonable visitation, (2) allowing the State to amend the 

petition at trial to include the statutory ground under § 43-292(7), (3) finding that there was clear 

and convincing evidence that statutory grounds for termination existed, and (4) finding that it was 

in the best interests of the children to terminate his parental rights.

As a preliminary matter, we note that Eric failed to comply with the rules regarding 

cross-appeals. See Neb. Ct. R. App. P. § 2-109(D)(4) (rev. 2021). Eric properly designated the 

cover of his brief as a cross-appeal, but he did not set forth his cross-appeal in a separate division 

of the brief as required by § 2-109(D)(4). However, because Eric’s brief complies with the rules 

regarding an appellant’s brief and does not take issue with any errors asserted by the appellant, in 

our discretion, we treat Eric’s brief as a brief on cross-appeal.

IV. 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. 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 Mateo L. et al., 309 Neb. 565, 961 

N.W.2d 516 (2021).

V. ANALYSIS

1. DELEGATING VISITATION AUTHORITY

First, we address the only issue argued by Eric but not by Erika. Eric assigns that the 

juvenile court erred in delegating its authority for determining visitation to DHHS. Eric asserts 

that this delegation of authority violated the law and his due process rights, as DHHS made a 

unilateral decision to halt his visitation without any oversight by the court and which interfered in 

his constitutional rights to raise his children.

Before deciding whether the juvenile court improperly delegated the authority to determine 

Eric’s right to visitation, we must determine whether we have jurisdiction to address this assigned 

error. In a juvenile case, as in any other appeal, before reaching the legal issues presented for 

review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter 

before it. In re Interest of Octavio B. et al., 290 Neb. 589, 861 N.W.2d 415 (2015). For an appellate 

court to acquire jurisdiction of an appeal, there must be a final order entered by the court from 

which the appeal is taken. Id. Juvenile court proceedings are special proceedings under Neb. Rev. 

Stat. § 25-1902 (Reissue 2016), and an order in a juvenile special proceeding is final and 
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appealable if it affects a parent’s substantial right to raise his or her child. See In re Interest of 

Octavio B. et al., supra. The Nebraska Supreme Court has held that dispositional orders are final 

and appealable. In re Interest of Taylor W., 276 Neb. 679, 757 N.W.2d 1 (2008).

In its dispositional order entered on May 1, 2020, the court provided that Erik’s visitation 

was to be determined by DHHS. This order was final and appealable, and thus should have been 

appealed within 30 days. See, Neb. Rev. Stat. § 43-2,106.01(1) (Reissue 2016) (any final order or 

judgment entered by juvenile court may be appealed to Court of Appeals in same manner as appeal 

from district court to Court of Appeals); Neb. Rev. Stat. § 25-1912 (Cum. Supp. 2018) (appeals 

must be filed within 30 days after entry of judgment). Eric did not appeal the court’s May 1 order; 

rather, he moved for emergency orders on visitation on July 30, 2 days after DHHS suspended 

visitation between Eric and Tannen and Roper. Because Eric did not appeal within 30 days of the 

May 1 order, we do not have jurisdiction to address this assignment of error.

Eric contends that he did not appeal the dispositional order because the goals outlined from 

the case plan were “appropriate and reasonable.” Brief for cross-appellant at 29. Eric argues that 

if he had appealed the court’s dispositional order, the case would have stalled for an additional 6 

months, which would have denied Eric the ability to reunify. Thus, Eric chose the “lesser of two 

evils” in opting to work with DHHS. Brief for cross-appellant at 30.

We are not persuaded by this argument. The Nebraska Supreme Court has previously held 

that one may not waive an error, gamble on a favorable result, and, upon obtaining an unfavorable 

result, assert the previously waived error. See Ecker v. E & A Consulting Group, 302 Neb. 578, 

924 N.W.2d 671 (2019). Eric had 30 days to appeal the juvenile court’s dispositional order and 

may not appeal the order now, after obtaining an unfavorable result.

In his brief, Eric argues various other errors by the juvenile court with respect to visitation 

that he did not specifically assign as error. To be considered by an appellate court, an alleged error 

must be both specifically assigned and specifically argued in the brief of the party asserting the 

error. In re Interest of Joezia P., 30 Neb. App. 281, ___ N.W.2d ___ (2021). We have not addressed 

any alleged errors that were argued but not assigned.

2. ALLOWING LEAVE TO AMEND MOTION

Erika and Eric both assign that the juvenile court erred in allowing the motion for 

termination of their parental rights to be amended during the course of trial. The original motion 

regarding termination of Erika and Eric’s parental rights stated two grounds for termination of 

those rights, § 43-292(2) and (6). On January 14, 2020, at the end of the second day of the trial, 

the State requested leave to amend the pleading by adding an additional statutory ground to the 

motion, alleging that the children were within the meaning of § 43-292(7). The juvenile court 

granted the State leave to amend.

In its order terminating Erika’s and Eric’s parental rights, the juvenile court found, among 

other things, that the children were within the meaning of § 43-292(7). Erika argues that she did 

not receive proper notice of the third statutory basis in the amended petition and as such, did not 

have a reasonable opportunity to refute the allegation. Eric argues that the State could have 

amended its petition at the time of pretrial but chose not to, which compromised his defense and 

violated his due process rights. Both of these arguments fail.
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A trial court may conform the pleadings to the facts proved when an amendment does not 

change substantially the claim or defense. The decision to allow such an amendment rests with the 

discretion of the trial court and will not be error unless prejudice resulted. In re Interest of Joshua 

M. et al., 251 Neb. 614, 558 N.W.2d 548 (1997). Prejudicial error results when a pleading is 

allowed to be amended where the amendment changes the issues and affects the quantum of proof 

as to any material fact. Id.

The juvenile court’s granting leave to the State to amend the pleadings to conform to the 

evidence did not substantially change the subject matter or issues that were addressed at the 

termination hearing. A significant amount of evidence was presented to support the State’s 

allegations under § 43-292(2) and (6). The only evidence that was required to be proven under the 

new subsection (7) was the amount of time the children had been in out-of-home placement, a 

matter that was not in dispute. Rather, the evidence to support this allegation was straightforward 

and did not impact the parents’ defense to the termination motion. Erika and Eric were clearly 

aware of how long the children had been in out-of-home placement. Erika and Eric participated in 

the hearing and had ample opportunity to address and rebut all the evidence presented. We see no 

prejudice in permitting the State to add a claim to the pleadings which conformed to the evidence 

the parties presented and had ample opportunity to address.

3. TERMINATION OF PARENTAL RIGHTS

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

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

in the child’s best interests. In re Interest of Becka P. et al., 27 Neb. App. 489, 933 N.W.2d 873 

(2019). The State must prove these facts by clear and convincing evidence. Id.

(a) Statutory Grounds for Termination

The juvenile court found that the State had presented clear and convincing evidence to 

satisfy § 43-292(2), (6), and (7) with respect to both parents. Erika argues that the State’s evidence 

focused primarily on Eric’s actions and his minimal progress in the case. Therefore, Erika asserts 

that the State failed to prove the statutory grounds in the original petition, § 43-292(2) and (6), 

were met. However, both Erika and Eric acknowledge that their children have been out of their 

home for at least 15 of the most recent 22 months.

As discussed above, we find that the juvenile court did not err in allowing the State to 

amend the petition to include the statutory ground under § 43-292(7). Section 43-292(7) allows 

for termination when the juvenile has been in an out-of-home placement for 15 or more months of 

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

does not require the State to adduce evidence of any specific fault on the part of a parent. In re 

Interest of Kenna S., 17 Neb. App. 544, 766 N.W.2d 424 (2009). In a case of termination of 

parental rights based on § 43-292(7), the protection afforded the rights of the parent comes in the 

best interests step of the analysis. In re Interest of Kenna S., supra.

Here, it is undisputed that the children have been in out-of-home placement for 15 or more 

months of the most recent 22 months. The children were removed from their parents’ home on 

September 6, 2019. The State filed its motion for termination of parental rights on September 29, 

2020, and moved to amend its petition to include the § 43-292(7) statutory basis during the 
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termination trial in January 2021. At the time of trial, the children had been out of their parents’

home for 16 months. Thus, the statutory requirement for termination under § 43-292(7) has been 

met.

If an appellate court determines that the lower court correctly found that termination of 

parental rights is appropriate under one of the statutory grounds set forth in § 43-292, the appellate 

court need not further address the sufficiency of the evidence to support termination under any 

other statutory ground. In re Interest of Becka P. et al., 27 Neb. App. 489, 933 N.W.2d 873 (2019). 

Because the State presented clear and convincing evidence that Tannen, Logan, and Roper had 

been in an out-of-home placement for 15 or more months of the most recent 22 months, statutory 

grounds for termination of Erika’s and Eric’s parental rights exists.

(b) Best Interests With Respect to Erika

Erika assigns that the juvenile court erred in finding that it was in the children’s best 

interests to terminate her parental rights. In addition to proving a statutory ground, the State must 

show that termination of parental rights is in the best interests of the children. § 43-292; In re 

Interest of Isabel P. et al., 293 Neb. 62, 875 N.W.2d 848 (2016). Because the parent’s right to raise 

his or her children is constitutionally protected, the court may terminate parental rights only when 

the State shows that the parent is unfit. In re Interest of Isabel P. et al., supra. There is a rebuttable 

presumption that the best interests of the children are served by having a relationship with their 

parent. Id. This presumption is overcome only when the State has proved that the parent is unfit. 

Id. Parental unfitness means a personal deficiency or incapacity which has prevented, or will 

probably prevent, performance of a reasonable parental obligation in child rearing and which 

caused, or probably will result in, detriment to the child’s well-being. Id.

The best interests analysis and the parental fitness analysis are fact-intensive inquiries. In 

re Interest of Jahon S., 291 Neb. 97, 864 N.W.2d 228 (2015). 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 Becka P. et al., supra. In cases where termination of parental rights is based on 

§ 43-292(7), appellate courts must be particularly diligent in their de novo review of whether 

termination of parental rights is in fact in the child’s best interests. In re Interest of Becka P. et al., 

supra.

As the juvenile court noted in its termination order, Erika’s case is sympathetic because to 

“some degree, she is a victim of [Eric], just as her children.” However, the record shows that Erika

has been more willing to protect Eric from harm than she is her children. Despite acknowledging 

that Eric spanks the children and performs physical discipline in the household, Erika denied that 

Eric caused injury to Logan. At the time of trial Erika continued to deny even seeing the bruises 

on Logan, as she claims he was bathing and dressing himself at four years old. Erika’s recanting 

of the domestic abuse she suffered in February 2020 led to the dismissing of Eric’s strangulation 

charges, but led to Erika being incarcerated for 3 months for false reporting. During her 

incarceration, visitation with her children was halted. The record additionally showed Erika knew 

Eric was contacting a juvenile in high school but Erika did not intervene or cease her relationship 

with Eric.
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In November 2020, Erika told her case manager that she was separating from Eric. 

However, jail call records indicate that Erika and Eric were attempting to communicate discreetly, 

by using third-parties to relay messages and using the phone lines of other detainees to avoid 

detection. Erika also alluded to a plan to convince professionals on the case that she had separated 

from Eric in order to receive custody of her children. A few months later at the termination trial, 

Erika said that she had cut off contact with Eric and was planning to divorce him. Assuming this 

radical change in the couple’s relationship status was true, Erika’s separation from Eric occurred 

well over a year after her son suffered severe injury by Eric, and this effort to create a safe 

household comes too late. Last-minute attempts by parents to comply with the rehabilitation plan 

do not prevent termination of parental rights. In re Interest of Leyton C. & Landyn C., 307 Neb. 

529, 949 N.W.2d 773 (2020).

Since Eric has been incarcerated, case professionals have noted a decreased engagement 

between Erika and her children. Erika’s visitation attendance has dropped and she has been unable 

to sustain consistently positive visitations. When Erika grows frustrated, she retreats into her 

phone. It is concerning that reports of Erika shutting down at visitation began immediately after 

Eric was incarcerated.

Additionally, because of Erika’s dependent personality traits, there is a concern that Erika 

will continue to seek out significant others that will place her or her children at risk. Erika was 

minimally compliant with her therapeutic services and there is little evidence that Erika has 

sufficiently managed her dependent personality traits. While Erika was compliant with medication 

management and did complete her substance abuse intensive outpatient program, she did not 

consistently participate in individual therapy. Erika was scheduled for weekly therapy sessions, 

but attended only 13 sessions in 16 months. Erika’s therapist testified that these sessions were 

largely ineffective, as each time Erika returned to therapy it was like starting over. Erika also 

attended couple’s counseling only twice and did not disclose Eric’s domestic assault arrest, Erika’s 

false reporting arrest and incarceration, and Eric’s pending prison sentence. The couple’s therapy 

sessions were likely of little benefit due to the inconsistent attendance and lack of disclosure. In 

total, Erika has not engaged in therapy sufficiently to cause any long-term sustainable change.

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). Based on the evidence presented, there 

has been minimal change in Erika’s behavior over the course of the case, and based on Erika’s 

continued alignment with Eric and her inconsistency with individual therapy, she is unlikely to 

change in the future.

Further, Nebraska courts have recognized that children cannot, and should not, be 

suspended in foster care or be made to await uncertain parental maturity. In re Interest of Octavio 

B. et al., 290 Neb. 589, 861 N.W.2d 415 (2015). Logan and Roper have been in foster care since 

September 2019. They deserve stability in their lives and should not be suspended in foster care 

when Erika is unable to rehabilitate herself and show that she is able to provide a safe environment 

for her children. Accordingly, we find there was clear and convincing evidence to show that Erika 

was unfit and that terminating her parental rights was in the children’s best interests.
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(c) Best Interests With Respect to Eric

As the juvenile court noted, photographs of Logan’s injuries show excessive abuse. The 

bruises on Logan’s legs covered the entirety of his thighs and evidenced separate incidents as the 

bruises were in various stages of healing. At the start of the investigation, when confronted by 

Logan’s injuries, Eric apologized and indicated he did not mean to hurt Logan. Eric thereafter 

denied inflicting the injuries and later offered alternative explanations for how the injuries 

occurred. Finally, at the termination trial, Eric admitted to beating Logan with a belt of some kind 

but was unable to answer why the beating had occurred.

Eric’s domestic abuse reaches beyond Logan’s injuries. Throughout the case there has been 

evidence of Erika suffering domestic abuse by Eric. Most notably was the domestic violence 

incident in February 2020, for which Eric was charged with domestic assault and strangulation. 

Eric’s control over Erika was also displayed through her willingness to recant her report of Eric’s 

abuse and state, instead, that he did not put her in a “full chokehold.” Even while Eric was 

incarcerated, there was constant communication with Erika; Eric would pressure her into 

presenting a false narrative to authorities involved in Logan’s child abuse case and at one point, 

called Erika 176 times in 1 week. Law enforcement’s investigation also produced several of Eric’s 

past romantic partners who claimed to have been victims of his domestic abuse. Throughout the 

case, Eric denied there was any domestic violence occurring in the home.

Tannen’s therapist described her concerns with the parent-child relationship between Eric 

and Tannen. She testified that Tannen had been “groomed” by Eric and had learned codependency. 

Tannen was willing to minimize Eric’s actions, even if the actions were wrong or illegal. Tannen 

would also defend Eric and state that no one knew how bad his father had it. The therapist’s 

concerns were so great that she recommended Tannen have no contact with Eric until he reached 

the age of majority when he would be better able to protect himself against Eric’s manipulation 

and grooming. Logan’s and Roper’s therapist testified to the children experiencing childhood 

trauma. Because the children seek permission for every action, it is likely they were constantly 

yelled at and lived in immense fear of Eric. Eric was unwilling to meaningfully engage in 

therapeutic visitation with Logan, and when Logan’s therapist terminated the service, Eric 

threatened her.

Eric has also displayed inappropriate behavior throughout the case. He made sexual 

remarks to the children’s teachers, foster parents, and visitation workers. Eric also called the 

children names and spoke to Tannen about sexual subjects. Eric was arrested in March 2020 for 

sexual contact with a high school student.

Finally, Eric has been unable to effectively work with substance abuse counselors or mental 

health providers. After Eric was diagnosed with an alcohol-related disorder and was set up for 

weekly substance abuse counseling, Eric attended two sessions in November 2019 and never 

returned. Throughout his medication management services, Eric would increase his dosage beyond 

the prescribed amount. Eric acted as though he knew more than the health professionals and was 

not medication compliant.

Eric’s individual counselor testified that Eric’s progress was very minimal. Eric was 

inconsistent in his couple’s therapy attendance and did not disclose recent domestic violence 

events between himself and Erika. Eric was also not sincere in acknowledging that he had an anger 
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problem and did not attend any of the groups his counselor recommended. Because Eric was 

unwilling to acknowledge his anger issues, his counselor was concerned that Eric’s behavior in 

the home could create three “little Erics” in the children. Eric’s own counselor did not recommend 

visits between Eric and the children at the time of the trial. Eric has been unwilling to engage in 

case services and has not placed himself in a position to reunify with Tannen or Roper. See In re 

Interest of Zanaya W. et al., 291 Neb. 20, 863 N.W.2d 803 (2015) (where parent is unable or 

unwilling to rehabilitate herself within reasonable time, best interests of child require termination 

of parental rights); In re Interest of Octavio B. et al., 290 Neb. 589, 861 N.W.2d 415 (2015) 

(Nebraska courts have recognized that children cannot, and should not, be suspended in foster care 

or be made to await uncertain parental maturity). Therefore, we find there was clear and convincing 

evidence to demonstrate that Erik was unfit and that terminating his parental rights was in the 

children’s best interests.

VI. CONCLUSION

Upon our de novo review of the record, we conclude the State proved by clear and 

convincing evidence that grounds for termination of Erika’s and Eric’s parental rights existed 

under § 43-292(7) and that termination of their parental rights is in the children’s best interests. 

Accordingly, the juvenile court’s order is affirmed.

AFFIRMED.