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Decisions of the Nebraska Court of Appeals

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IN RE INTEREST OF ALEC S.

Cite as 23 Neb. App. 792

In re Interest of Alec S., a child

under 18 years of age.

State of Nebraska, appellee, v. 

Brenda G., appellant.

___ N.W.2d ___

Filed March 15, 2016. No. A-15-658.

1. Parental Rights: Proof. Neb. Rev. Stat. § 43-292 (Cum. Supp. 2014) 

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.

2. ____: ____. Neb. Rev. Stat. § 43-292(7) (Cum. Supp. 2014) 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.

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

determines that the lower court correctly found that termination of 

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

in Neb. Rev. Stat. § 43-292 (Cum. Supp. 2014), the appellate court need 

not further address the sufficiency of the evidence to support termination 

under any other statutory ground.

4. Parental Rights. Parental rights may only be terminated if the court 

finds that termination is in the child’s best interests.

5. ____. A termination of parental rights is a final and complete severance 

of the child from the parent.

6. ____. Parental rights should be terminated only in the absence of any 

reasonable alternative and as the last resort.

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

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

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

State has proved that a parent is unfit.

Nebraska Supreme Court Online Library

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

04/07/2016 12:09 PM CDT
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IN RE INTEREST OF ALEC S.

Cite as 23 Neb. App. 792

8. Parental Rights: Proof. When termination is sought under Neb. Rev. 

Stat. § 43-292(7) (Cum. Supp. 2014), the element of best interests to 

support the termination of parental rights requires the State to prove by 

clear and convincing evidence that the parent is unfit.

9. Parental Rights: Words and Phrases. Parental unfitness means a personal deficiency or incapacity which has prevented, or probably will 

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

well-being.

10. Parental Rights: Parent and Child. The law does not require perfection of a parent. Instead, a court should look for the parent’s continued 

improvement in parenting skills and a beneficial relationship between 

parent and child.

Appeal from the Separate Juvenile Court of Douglas County: 

Christopher Kelly, Judge. Reversed and remanded for further 

proceedings.

Matthew R. Kahler, of Finley & Kahler Law Firm, P.C., 

L.L.O., for appellant.

Donald W. Kleine, Douglas County Attorney, Anthony 

Hernandez, and Jocelyn Brasher, Senior Certified Law Student, 

for appellee.

Irwin, Pirtle and Riedmann, Judges.

Riedmann, Judge.

INTRODUCTION

Brenda G. appeals from the order of the separate juvenile court of Douglas County which terminated her parental 

rights to her minor child, Alec S. We conclude that the State 

failed to adduce clear and convincing evidence that terminating 

Brenda’s parental rights is in Alec’s best interests. We therefore 

reverse, and remand for further proceedings.

BACKGROUND

The State filed a petition on September 13, 2013, alleging 

that Alec, who was 8 years old at the time, was a child within 

the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2008) 
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IN RE INTEREST OF ALEC S.

Cite as 23 Neb. App. 792

due to the faults or habits of Brenda. The petition asserted that 

Brenda had been diagnosed with posttraumatic stress disorder, 

depression, and anxiety and that her medical providers recommended inpatient treatment. As of September 13, Brenda had 

failed to check herself into “the in-patient program recommended by Dr. Patera.” The petition alleged that Brenda was 

unable to provide proper parental care, support, or supervision 

for Alec and that he was at risk for harm. An amended petition 

filed 4 days later added a claim that Brenda’s use of alcohol 

and/or controlled substances placed Alec at risk for harm. Alec 

was removed from Brenda’s care and placed in the temporary 

custody of the Nebraska Department of Health and Human 

Services. He was adjudicated pursuant to § 43-247(3)(a) in 

January 2014.

In a disposition and permanency plan order dated March 

18, 2014, Brenda was ordered to participate in a “Level 1 

outpatient chemical dependency therapy program,” submit to 

random drug and alcohol testing, participate in “programs at 

Community Alliance,” attend family therapy with Alec, attend 

individual therapy, participate in psychiatric care, and attend 

supervised visitation. A September 16 review order continued 

the same requirements for Brenda, except she was no longer 

ordered to participate in a chemical dependency therapy program. The requirements contained in an order dated January 

20, 2015, mirrored those in the September 2014 order.

On February 6, 2015, the State filed a motion to terminate 

Brenda’s parental rights to Alec. The State sought termination 

under Neb. Rev. Stat. § 43-292(2), (6), and (7) (Cum. Supp. 

2014). The State also alleged that termination of Brenda’s 

parental rights was in the best interests of Alec. A termination 

hearing was held on June 12.

The State presented the testimony of four witnesses. Randy 

LaGrone is a clinical psychologist who Brenda began seeing 

for outpatient treatment in January 2013, before this case was 

initiated. She attended six sessions over the following year, but 

missed or canceled numerous other sessions due to “ongoing 
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Cite as 23 Neb. App. 792

major stressors in her life that disrupted compliance.” LaGrone 

diagnosed Brenda with posttraumatic stress disorder, a panic 

disorder, and depression. He testified that she had experienced significant trauma in her life, including the death of her 

husband, his business partner, and her mother, as well as the 

assault of her mentally ill adult son. LaGrone testified that 

Brenda’s conditions were very treatable and conditions with 

which people can make substantial progress. The biggest goal 

for Brenda was to establish consistency in treatment because 

structure and routine are important for those who have experienced trauma.

The State also presented the testimony of two mental health 

therapists, Mary Atwood and Jennifer Ratliff. Atwood saw 

Alec in September 2013, and he was diagnosed with adjustment disorder with mixed emotions. A treatment plan was 

developed for “working with [Alec’s] emotions,” but he said 

that he had already had trauma therapy and did not feel that he 

needed additional therapy. Alec only had one more individual 

session with Atwood, but Alec and Brenda saw Atwood for 

three sessions of family therapy beginning in March 2014. The 

goal was to enhance communication between Alec and Brenda 

because he did not feel that he could speak honestly with her. 

However, Brenda spent the session time “fussing” over Alec, 

asking him questions such as whether he had eaten and how 

his foster parents were treating him, so no progress was made 

during the sessions.

Ratliff began providing individual therapy to Alec in January 

2015. She likewise diagnosed him with adjustment disorder, 

unspecified, and also identified features of attention deficit 

disorder. The goals for Alec’s therapy were to identify coping 

skills, conflict resolution skills, and anger management skills; 

identify and express emotions; and address past trauma. Ratliff 

said he has made “some” progress on his goals.

In March 2015, Alec and Brenda began seeing Ratliff for 

family therapy. One of the goals for family therapy was to 

establish and improve communication, especially identifying 
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IN RE INTEREST OF ALEC S.

Cite as 23 Neb. App. 792

and expressing emotions and feelings. Similar to Atwood, 

Ratliff testified that during the early sessions, Brenda seemed 

preoccupied with how Alec was doing—whether he was eating, 

attending school, and bathing—and the pending case. They did, 

however, make progress at two later sessions in May, because 

Brenda did not talk about the case and was able to engage in 

therapeutic dialog with Alec.

Ratliff testified that there is a bond and attachment between 

Alec and Brenda. She said that Alec needs an environment 

where his physical and emotional needs are met consistently 

and any ongoing mental health services are provided to him, 

including psychiatric care for medication management. He 

also needs an environment where there are consistent rules and 

nonphysical discipline. In addition, according to Ratliff, Alec 

needs a structured and stable environment because he has features of attention deficit disorder.

If Brenda’s parental rights were to be terminated, Ratliff 

would recommend that Brenda’s relationship with Alec continue because of their established bond and attachment. Ratliff 

testified that she offered to facilitate a family therapy session 

with Alec’s foster parents and Brenda to create a plan to maintain the relationship because she believes it would be detrimental to Alec’s well-being if his relationship with Brenda was 

severed. Ratliff opined that it is in Alec’s best interests that he 

maintain a relationship with Brenda.

The State’s final witness was the caseworker who had taken 

over the case in February 2015, just 4 months prior to the termination hearing. She observed that Brenda had been ordered 

to participate in various services such as random drug and 

alcohol testing, therapy, and visitation, but her participation 

had been inconsistent. The caseworker was concerned because 

Brenda had made very little progress in the case, which had 

been pending for 21 months at the time of the termination 

hearing. She was also concerned because as late as February 

2015, Brenda was still unable to display an understanding of 

why she needed to participate in the required services. The 
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IN RE INTEREST OF ALEC S.

Cite as 23 Neb. App. 792

caseworker opined that termination of Brenda’s parental rights 

was in Alec’s best interests due to the lack of progress in the 

case. She acknowledged Ratliff’s recommendation that the 

relationship between Alec and Brenda continue and indicated 

that she would support the recommendation if the foster family 

was willing to allow the relationship to continue.

The juvenile court entered an order dated June 15, 2015. 

It found that although Brenda’s performance in certain areas 

improved following the filing of the motion to terminate, she 

had failed to participate in services to the degree necessary to 

move toward reunification. Thus, the court determined that the 

State presented sufficient evidence to satisfy termination under 

§ 43-292(2), (6), and (7). The court also determined that clear 

and convincing evidence supported a finding that termination 

of Brenda’s parental rights was in Alec’s best interests. Brenda 

timely appeals to this court.

ASSIGNMENTS OF ERROR

Brenda assigns that the juvenile court erred in finding that 

(1) the State proved statutory grounds for termination by clear 

and convincing evidence and (2) the termination of her parental 

rights is in Alec’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. In re Interest of Nicole M., 287 Neb. 685, 

844 N.W.2d 65 (2014).

ANALYSIS

Grounds for Termination.

[1] The bases for termination of parental rights in Nebraska 

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).
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IN RE INTEREST OF ALEC S.

Cite as 23 Neb. App. 792

In its order terminating Brenda’s parental rights to Alec, 

the juvenile court found that the State had presented clear and 

convincing evidence to satisfy § 43-292(2), (6), and (7), which 

provides in relevant part:

The court may terminate all parental rights . . . when 

the court finds such action to be in the best interests of 

the juvenile and it appears by the evidence that one or 

more of the following conditions exist:

. . . .

(2) The parents have substantially and continuously 

or repeatedly neglected and refused to give the juvenile 

or a sibling of the juvenile necessary parental care and 

protection;

. . . .

(6) Following a determination that the juvenile is one 

as described in subdivision (3)(a) of section 43-247, 

reasonable efforts to preserve and reunify the family if 

required under section 43-283.01, under the direction of 

the court, have failed to correct the conditions leading to 

the determination; [and]

(7) The juvenile has been in an out-of-home placement 

for fifteen or more months of the most recent twentytwo months.

[2] Brenda concedes that Alec has been in an out-of-home 

placement for 15 or more months of the most recent 22 

months. Alec was removed from Brenda’s home on or about 

September 13, 2013. At the time the motion to terminate 

parental rights was filed on February 6, 2015, Alec had been 

in an out-of-home placement for almost 17 months. At the 

time the termination hearing began on June 12, Alec had been 

in an out-of-home placement for approximately 21 months. 

Despite Brenda’s argument, § 43-292(7) operates mechanically and, unlike the other subsections of the statute, does 

not require the State to adduce evidence of any specific fault 

on the part of a parent. See In re Interest of Aaron D., 269 

Neb. 249, 691 N.W.2d 164 (2005). Our de novo review of the 
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IN RE INTEREST OF ALEC S.

Cite as 23 Neb. App. 792

record clearly and convincingly shows that grounds for termination of Brenda’s parental rights under § 43-292(7) were 

proved by sufficient evidence.

[3] 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 Justin H. et al., 18 Neb. App. 718, 

791 N.W.2d 765 (2010). Therefore, this court need not review 

termination under § 43-292(2) or (6). Once a statutory basis 

for termination has been proved, the next inquiry is whether 

termination is in the child’s best interests.

Alec’s Best Interests.

[4-6] Although we find that statutory grounds for termination exist, parental rights may only be terminated if the court 

finds that termination is in the child’s best interests. § 43-292. 

A termination of parental rights is a final and complete severance of the child from the parent. In re Interest of Crystal C., 

12 Neb. App. 458, 676 N.W.2d 378 (2004). Therefore, with 

such severe and final consequences, parental rights should be 

terminated only in the absence of any reasonable alternative 

and as the last resort. Id.

[7] There is a rebuttable presumption that the best interests 

of a child are served by having a relationship with his or her 

parent. In re Interest of Nicole M., 287 Neb. 685, 844 N.W.2d 

65 (2014). 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 a parent is unfit. Id.

[8,9] When termination is sought under § 43-292(7), the 

element of best interests to support the termination of parental 

rights requires the State to prove by clear and convincing evidence that the parent is unfit. In re Interest of Xavier H., 274 

Neb. 331, 740 N.W.2d 13 (2007). Parental unfitness means 

a personal deficiency or incapacity which has prevented, or 
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IN RE INTEREST OF ALEC S.

Cite as 23 Neb. App. 792

probably will prevent, performance of a reasonable parental 

obligation in child rearing and which caused, or probably will 

result in, detriment to a child’s well-being. In re Interest of 

Nicole M., supra.

In the present case, the State presented only four witnesses, 

including three mental health professionals and the caseworker 

who was assigned to the case at the time the motion to terminate Brenda’s parental rights was filed. We find that the evidence in this case is similar to that presented in In re Interest 

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

Interest of Aaron D., the State presented the testimony of only 

one witness, the caseworker. On appeal, the Nebraska Supreme 

Court acknowledged that the caseworker for a family is likely 

to be an important witness, but cautioned that a caseworker 

should not be used as a proxy for all of the other witnesses 

whose expertise and testimony would have been helpful, and 

perhaps essential, in determining what was in the child’s best 

interests. The Supreme Court also recognized that while some 

of the caseworker’s testimony was based on her own observations, she largely testified based on her review of the records 

and reports generated by others who observed the parties. 

Reiterating that the evidence establishing that termination is 

in the child’s best interests must be clear and convincing, 

the Supreme Court found that “the evidence in this record is, 

simply stated, neither clear nor convincing.” Id. at 263, 691 

N.W.2d at 175.

Similarly, the caseworker in the present case testified in 

large part based on her review of the records from others such 

as visitation supervisors and medical professionals, the vast 

majority of which records were not offered into evidence at 

the termination hearing. The case began because Brenda’s 

medical providers, specifically a Dr. Patera, recommended that 

she undergo inpatient mental health treatment. There was no 

evidence received from Dr. Patera, either by way of testimony 

or medical records, as to the basis for Brenda’s diagnoses or 

why he recommended inpatient treatment. Nor was there any 
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evidence presented as to how Brenda’s mental health diagnoses and treatment needs affected her ability to safely parent 

Alec. There are some references in the record to Brenda’s 

seeing a psychiatrist and taking prescription medication, but 

the State did not present any evidence from the psychiatrist 

who manages her prescriptions or offer any medical records 

detailing the need for medication or Brenda’s prognosis. In 

sum, although LaGrone, a clinical psychologist, testified as 

to the multiple stressors in Brenda’s life, there was very little 

evidence presented regarding what is continually and vaguely 

referred to as Brenda’s “mental health needs” upon which the 

removal and adjudication were primarily based.

Further, the amended petition for adjudication references 

Brenda’s use of alcohol and/or controlled substances, and she 

has been required to undergo random testing. There is no evidence in the record, however, of why. There was no evidence 

establishing that Brenda has an alcohol or drug addiction or 

that her use of drugs impacted her ability to parent Alec. We 

note that after September 2014, the juvenile court no longer 

required Brenda to participate in a chemical dependency program. From our review of the record, it appears that any treatment recommendations for Brenda were to address mental 

health issues, not substance abuse issues.

More important, however, the record lacks substantive testimony from those close to Alec such as visitation supervisors, 

his foster parents, his doctors, or his teachers. As iterated in 

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

(2005), the primary consideration in determining whether to 

terminate parental rights is the best interests of the child, and 

thus, a juvenile court should have at its disposal the information necessary to make the determination regarding the minor 

child’s best interests. Yet here, similar to In re Interest of 

Aaron D., the evidence focused on Brenda’s personal shortcomings, as opposed to placing the focus on Alec, and there 

was little evidence presented from any of the people most 

able to testify as to Alec’s condition, circumstances, and best 
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IN RE INTEREST OF ALEC S.

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interests. Atwood, a mental health therapist, testified she only 

saw Alec on two occasions for individual therapy and three 

occasions for family therapy. We gather from the record that 

the purpose of her testimony was to show Brenda’s inconsistency in attending family therapy, which Atwood primarily 

attributed to transportation issues, and her perception of a 

disconnect between Alec and Brenda, although that perception 

is contrary to the visitation records and Ratliff’s testimony 

evidencing a bond between the two.

Although Ratliff, who provides current therapy for Alec 

and Brenda, testified, we have no information as to how Alec 

does in school, whether he experiences behaviors in his foster 

home, whether he is physically healthy, or how he responds 

after visits with Brenda. Ratliff testified generally that in 

therapy, Alec is working on coping skills, handling his emotions, and addressing past trauma, but there is no explanation 

as to whether Alec’s shortcomings stem from Brenda’s parenting or from general trauma such as the death of his stepfather. 

The record is largely devoid of any explanation of the nature 

and extent of Alec’s physical, mental, or emotional condition. 

Ratliff referenced psychiatric care for medication management for Alec, but the record lacks any evidence indicating 

that Alec is currently taking medication or should be taking 

medication, nor was there any evidence that Alec is seeing 

a psychiatric provider who is prescribing or could prescribe 

medication for him.

Significantly, Ratliff, the witness who had the most personal 

contact with Alec, recommended that the relationship between 

Alec and Brenda continue even if Brenda’s parental rights 

were terminated. Not only was that her recommendation, but 

she opined that it would be in Alec’s best interests to maintain 

a relationship with Brenda and that it would be “detrimental to 

[his] well-being” to sever that relationship.

Despite this, we recognize that the State’s evidence raises 

questions about Brenda’s ability to parent Alec. The fact 

that Brenda has been diagnosed with several mental health 
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IN RE INTEREST OF ALEC S.

Cite as 23 Neb. App. 792

disorders and has failed to consistently attend treatment for 

those conditions is concerning. It is also concerning that as of 

February 2015, Brenda still lacked an understanding as to why 

the case was ongoing and why her participation in the services offered to her was necessary and best for Alec. Between 

February and June 2015, Brenda did make progress, however. 

The caseworker acknowledged that in that timeframe, Brenda 

found stable and appropriate housing for herself, consistently 

attended visitation, made progress during family therapy sessions with Alec, and improved her communication with the 

caseworker, including signing release forms to allow access to 

her medical records. Additionally, the more recent visitation 

notes no longer report any inappropriate questions from Brenda 

inquiring into the case or treatment by Alec’s foster parents nor 

are there mentions of Brenda yelling or her anger escalating 

during visits.

We acknowledge that the caseworker opined that terminating Brenda’s parental rights would be in Alec’s best interests 

based on the length of the case and the absence of progress 

toward the case plan goals. However, the Nebraska Supreme 

Court has noted the limits of caseworker testimony, given 

that caseworkers spend relatively little time in the home 

with the families and often serve as proxies for the visitation 

workers and therapists who have closer family contact. See, 

e.g., In re Interest of Aaron D., 269 Neb. 249, 691 N.W.2d 

164 (2005).

[10] We also keep in mind that the law does not require 

perfection of a parent. See id. Instead, we should look for 

the parent’s continued improvement in parenting skills and a 

beneficial relationship between parent and child. Id. Brenda 

has shown recent improvement in addressing her goals, particularly between February and June 2015, but progress was 

reported in June 2014 as well. A visitation note from that 

month indicated that Brenda had been working on staying 

consistent with the services offered through different agencies 

and workers and had been doing better. A visitation report 
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from the following month recommended that visits should 

be increased.

The record is also replete with references to the bond 

and loving relationship between Alec and Brenda. The visitation notes include comments such as, “Brenda is very loving 

towards Alec. She is very attentive during visits and always 

gives him her full attention. In return Alec is very affectionate 

and provides lots of information for her so they never run out 

of things to talk about.” A note from June 2014 reads, “Brenda 

loves Alec very much, and it shows at every visit.” A July 2014 

visitation note reported, “Brenda shows lots of love and affection to Alec who shows it back. Both hope to have more visits 

plus visits at home.”

Based on our de novo review of the record, we conclude that 

the juvenile court erred in finding that the State established, 

by clear and convincing evidence, that termination of Brenda’s 

parental rights was in Alec’s best interests.

CONCLUSION

Because the evidence does not show clearly and convincingly that termination of Brenda’s parental rights is in the best 

interests of Alec at this time, we reverse, and remand for further proceedings.

 Reversed and remanded for

further proceedings.