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Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

IN RE INTEREST OF NOAH C.

Cite as 306 Neb. 359

In re Interest of Noah C., a child 

under 18 years of age. 

State of Nebraska, appellee, v. 

Samantha H., appellant.

___ N.W.2d ___

Filed July 2, 2020. No. S-19-843.

1. Motions for Continuance: Appeal and Error. A court’s grant or 

denial of a continuance is within the discretion of the trial court, whose 

ruling will not be disturbed on appeal in the absence of an abuse of 

discretion.

2. Juvenile Courts: Evidence: Appeal and Error. Juvenile cases are 

reviewed de novo on the record, and an appellate court is required 

to reach a conclusion independent of the juvenile court’s findings. 

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.

3. Parental Rights: Proof. Any one of the bases for termination of parental rights codified by Neb. Rev. Stat. § 43-292 (Reissue 2016) 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.

4. Constitutional Law: Parental Rights: Proof. A parent’s right to raise 

his or her child is constitutionally protected; so before a court may terminate parental rights, the State must also show that the parent is unfit.

5. 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 the parent is unfit.

Appeal from the County Court for Cheyenne County: Kris 

D. Mickey, Judge. Affirmed.

Nebraska Supreme Court Online Library

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

08/28/2020 01:07 AM CDT
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IN RE INTEREST OF NOAH C.

Cite as 306 Neb. 359

Steven E. Elmshaeuser for appellant.

Jonathon T. Stellar, Cheyenne County Attorney, for appellee.

Audrey M. Elliott, guardian ad litem.

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

Papik, and Freudenberg, JJ.

Miller-Lerman, J.

I. NATURE OF CASE

Following a hearing, the county court for Cheyenne County, 

sitting as a juvenile court, found sufficient evidence to terminate the parental rights of Samantha H. to her biological minor 

child, Noah C. Samantha appeals, claiming that the juvenile 

court erred when it (1) denied her motion to continue the termination hearing and (2) found that termination was in the best 

interests of Noah. We affirm.

II. FACTS

Samantha is the biological mother of Noah, who was born 

in 2013. Noah’s father, Donald M., is not part of this appeal. 

Noah was removed from Samantha’s care because of safety 

concerns, and he has been in out-of-home care since December 

5, 2017.

The juvenile court adjudicated Noah as a child within the 

meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016). The 

adjudication decision was affirmed by the Nebraska Court of 

Appeals in a memorandum opinion. See In re Interest of Noah 

C., No. A-18-059, 2018 WL 4761053 (Neb. App. Oct. 2, 2018) 

(selected for posting to court website).

On March 28, 2019, the State moved to terminate 

Samantha’s parental rights. The complaint to terminate alleged 

four grounds under Neb. Rev. Stat. § 43-292 (Reissue 2016), 

which states:

The court may terminate all parental rights between 

the parents or the mother of a juvenile born out of wedlock and such juvenile when the court finds such action 
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IN RE INTEREST OF NOAH C.

Cite as 306 Neb. 359

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;

(3) The parents, being financially able, have willfully 

neglected to provide the juvenile with the necessary subsistence, education, or other care necessary for his or 

her health, morals, or welfare or have neglected to pay 

for such subsistence, education, or other care when legal 

custody of the juvenile is lodged with others and such 

payment ordered by the court;

. . . .

(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;

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

for fifteen or more months of the most recent twenty-two 

months.

Trial on the complaint for termination was scheduled for 

June 4, 2019.

Prior to trial, the juvenile court took up the motion to quash 

filed by Joe Kozicki, who had been subpoenaed by Samantha. 

The juvenile court quashed the subpoena, because it found the 

witness was located over 100 miles away and objected to the 

subpoena. See Neb. Rev. Stat. § 25-1227 (Reissue 2016).

Samantha, who was representing herself with standby counsel present, moved to continue the termination hearing to prepare her defense (1) because she had not received her complete 

case file from her previous counsel until May 31, 2019, and 
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IN RE INTEREST OF NOAH C.

Cite as 306 Neb. 359

(2) because Kozicki, who she claimed was a material witness to her case, was unavailable. Samantha had apparently 

terminated representation by her prior counsel in December 

2018 and claimed that she had not had time to review all of the 

exhibits and documents in her case file, because she had the 

complete file for less than a week.

In support of the motion to continue, Samantha stated that 

Kozicki was a material and necessary witness for presentation 

of her case and that she wanted time to take a trial deposition.

The juvenile court overruled the motion to continue and 

explained its reasoning to Samantha as follows:

What I’m told is and what I believe is that you 

recently received some documentation from [prior counsel’s] office. What I know from the court file is that [prior 

counsel] was permitted to withdraw in December of 2018, 

and you have previously represented in court in other 

proceedings that you fired him. And so, for approximately 

six months, [prior counsel], and perhaps a little more, has 

not been a part of these proceedings. I also know from 

the documents in evidence and from the argument and 

testimony that the motion to terminate parental rights has 

been of record since March 28th. A first appearance was 

held, I believe in April of 2019, and the matter scheduled 

then. So, all parties have known for quite some time that 

this was going to take place here today.

. . . So — and I also believe, as an aside, that there is 

some reasonable duty placed upon all litigants when you 

are made aware of the filing of motions of character like 

this, that is, a motion to terminate parental rights, that you 

have a duty to timely request whatever documentation it 

is that you wish to have as part of the evidence in such a 

case. And under examination from this Court, [Samantha] 

was unable to identify specifically when such a request 

was made, whether it was timely or not, when the documents were first received that were part of most of her 

file, or for that matter, anything that was recently received 
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IN RE INTEREST OF NOAH C.

Cite as 306 Neb. 359

that should affect the outcome. You have the documents. 

You’ve had them, it sounds like, for most of a week. 

Those documents, to the extent they pertain to the motion 

to terminate parental rights are within your possession, 

and can be made a part of your case if that’s what you 

decide to do. That’s up to you and your lawyer.

I simply find that today there isn’t any meritorious 

basis supporting . . . the motion to continue . . . .

At trial, the State called a neuropsychologist, who testified regarding her March 2017 and September 2018 evaluations of Noah. In her 2018 report, she noted that “Noah 

currently shows measurable improvement in his presentation, 

test scores, and observer ratings from the foster home and the 

school compared to observations in 2016 and 2017. These 

improvements are shown to occur in the foster home placement and in the context of the visits with [Samantha] currently 

stopped.” She recommended that all visits between Samantha 

and Noah should cease until Samantha undergoes a psychological evaluation. She diagnosed Noah with “an unspecified 

Trauma and Stressor related disorder stemming from parent 

extreme reactivity and dysregulated behaviors that have been 

observed in multiple clinical and non-clinical settings.” Her 

report opined that if Samantha could not demonstrate capacity to improve, “any form of interaction with [Samantha] is 

likely to continue to place Noah’s safety and well-being in 

jeopardy.” She further testified at trial that her recommendations in the report from her evaluations were also in Noah’s 

best interests.

The State next called a psychologist, who testified that 

Samantha was referred to him for a psychological and parenting evaluation. The psychologist was unable to complete the 

evaluation, because Samantha refused to sign a consent form 

to a parenting evaluation over several appointments.

Lt. Keith Andrew of the Sidney Police Department testified for the State and the guardian ad litem regarding an 

intake of Noah on December 5, 2017. Lieutenant Andrew 
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IN RE INTEREST OF NOAH C.

Cite as 306 Neb. 359

contacted Samantha, at her residence, who agreed to participate in a respite plan where Noah would stay somewhere else 

for a few days to give Samantha “a break.” Lieutenant Andrew 

observed that Samantha was very agitated and frustrated and 

that she was making comments indicating she might harm 

Noah. Lieutenant Andrew concluded respite was not going to 

work and removed Noah from Samantha’s physical custody. 

Lieutenant Andrew also testified that he responded to two 

separate incidents involving Samantha after Noah’s removal. In 

one incident, Samantha threw things at a family support worker 

and, at another, assaulted an officer.

Dawn Hatcher, a family services provider at a family support 

organization, testified regarding her work with Samantha and 

Noah. She testified that Samantha made about 85 percent of 

the visits over a 4- to 5-month period. The missed visits were 

canceled because Samantha was later than 15 minutes. She 

testified that about five to eight visits were cut short because 

Hatcher felt Samantha’s behavior was “too erratic to parent.” 

For example, Samantha arrived for one visit “agitated and irritated” and, as the visit progressed, “her behavior became more 

angry and was visibly angry.” Eventually, Samantha became so 

angry and argumentative that Hatcher concluded the visit and 

asked Samantha to leave.

Hatcher also testified regarding the last supervised visit 

in July 2018, at which she called law enforcement because 

Samantha was upset and agitated about Noah’s vaccinations. 

Samantha had apparently not been advised prior to Noah’s 

being given vaccines. Samantha became increasingly upset. 

Hatcher testified that Samantha was screaming and yelling, 

slamming chairs, and calling Hatcher names, including “bitch” 

and “cunt.” She also testified that Samantha threw a pillow 

at her during this visit. Noah was present in the room when 

this occurred and told Hatcher he was scared. The visits 

ceased after this incident. Hatcher also testified that Samantha 

refused to participate in out-of-home family support, because 

Samantha felt it was not helping her.
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IN RE INTEREST OF NOAH C.

Cite as 306 Neb. 359

The chief operating officer for the same family support 

organization also testified for the State. She testified that she 

observed one or two full visits, which went well until Samantha 

would get upset if she were told she could not do something 

or was asked to sign a release. She testified that Samantha 

could not deal with Noah when he became dysregulated. She 

testified that Samantha had completed several courses but did 

not complete the final requirement of meeting and reviewing 

the program.

The State also called the Department of Health and 

Human Services (DHHS) worker who received the intake 

on December 5, 2017, to testify. She had been present with 

Lieutenant Andrew during the visit to Samantha’s home. 

Although the DHHS worker initially had respite set up, 

Samantha’s behavior from the time they left to when they 

arrived again later that day was concerning. Samantha eventually declined respite and did not want to work with DHHS. 

The DHHS worker testified that team meetings did not go 

well, because Samantha argued with everyone, refused to 

work with some family support providers and certain workers, and ultimately refused to work with any family support 

providers because she refused to sign their contracts. The 

last time Noah saw Samantha was at a therapeutic visit in 

November 2018. The DHHS worker also testified that Noah 

had been in out-of-home care continuously since December 5, 

2017, 18 months at the time of trial.

Sarah Robinson, a child and family services specialist for 

Noah, testified next. Once Noah was removed, Robinson 

offered Samantha 18 hours of supervised visitation per week, 

and Samantha attended about 85 percent of those visits. On 

August 1, 2018, Samantha’s visits were suspended until October 

10, when the juvenile court ordered therapeutic visits. The 

therapist then recommended supervised visits. However, those 

visits never occurred, because Samantha refused to sign the 

intake paperwork to work with family support providers.
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IN RE INTEREST OF NOAH C.

Cite as 306 Neb. 359

Robinson testified that Samantha did not complete most of 

her goals in the case plan and court report. With respect to 

these goals, Robinson testified that Samantha (1) did not provide a safe and stable environment for Noah by learning and 

demonstrating new parenting skills and understanding child 

development; (2) did not provide a safe and stable environment for Noah by learning new coping skills and addressing 

any mental health symptoms she was experiencing; (3) did not 

provide a safe and stable environment for Noah by finding and 

using informal supports; (4) did not provide a safe and stable 

home for Noah by maintaining basic resources; and (5) did not 

maintain basic needs for her and Noah, such as food, clothing, 

utilities, and a home within the previous 6 months. Robinson 

explained how Samantha had failed to learn and implement 

various strategies listed for achieving the family support goals. 

Robinson then testified that Noah was not able to return safely 

to Samantha’s care, because Samantha had not been able to 

demonstrate that she can safely and effectively parent Noah, 

had completed very little of the case plan, had not completed 

any goals, and would not allow Robinson into her home in the 

last 6 months.

Samantha offered evidence, including a letter from her counselor, recommending that Samantha and Noah move forward 

with supervised visitation. Samantha’s counselor had seen 

Samantha for five visits in late 2018 and noted that Samantha 

“has done a good job here of being appropriate.”

Samantha also called as a witness a family advocate, who 

testified that she has a background in criminal justice and 

probation. She testified that she is familiar with how DHHS 

handles cases, and she observed that Samantha’s case was handled in an unusual way. The advocate testified that she did not 

feel Samantha’s “voice [had] been heard” throughout the case 

and that workers had “come in to tell [Samantha] what [she is] 

going to do” instead of finding a way to work with Samantha. 

The advocate testified that she did not feel Samantha would 

hurt a child or neglect a child in her care.
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306 Nebraska Reports

IN RE INTEREST OF NOAH C.

Cite as 306 Neb. 359

The juvenile court denied Samantha’s request to keep the 

record open or allow the taking of trial depositions. After 

receiving written closing arguments, the juvenile court took the 

case under advisement. In a written order, the juvenile court 

found that sufficient evidence was presented to demonstrate 

clearly and convincingly that termination of parental rights 

was appropriate and in the best interests of Noah. Samantha 

appeals.

III. ASSIGNMENTS OF ERROR

Samantha claims, summarized and restated, that the juvenile 

court erred when it (1) denied her motion to continue the termination hearing and (2) found a statutory basis to terminate 

her parental rights to Noah after it found that termination was 

in the child’s best interests.

IV. STANDARDS OF REVIEW

[1] A court’s grant or denial of a continuance is within the 

discretion of the trial court, whose ruling will not be disturbed 

on appeal in the absence of an abuse of discretion. See In re 

Interest of C.G.C.S., 225 Neb. 605, 407 N.W.2d 196 (1987).

[2] Juvenile cases are reviewed de novo on the record, and 

an appellate court is required to reach a conclusion independent of the juvenile court’s findings. In re Interest of Taeson 

D., 305 Neb. 279, 939 N.W.2d 832 (2020). 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. 

In re Interest of Zanaya W. et al., 291 Neb. 20, 863 N.W.2d 

803 (2015).

V. ANALYSIS

1. Continuance

Samantha claims that the juvenile court erred when it denied 

her request for a continuance of the termination hearing. She 

contends that she was not prepared for the termination hearing 

and that the testimony of an unavailable witness was necessary 
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IN RE INTEREST OF NOAH C.

Cite as 306 Neb. 359

and material to the presentation of her case. We reject this 

assignment of error.

With respect to Samantha’s argument that she was unable 

to prepare for the hearing, the record shows that Samantha 

had over 2 months to prepare her case between the date 

on which she received notice of the complaint to terminate 

her parental rights and the date of the termination hearing. 

In its written order, the juvenile court found that all parties 

were given adequate and reasonable notice concerning the 

scheduled hearing. The juvenile court specifically found that 

Samantha

fail[ed] to adequately prepare, to timely accept the assist

ance of counsel, to properly elicit the testimony of a 

witness outside the boundaries of the subpoena power of 

the court, or in some other manner fail[ed] to appreciate 

the significance of the juvenile court process [and these 

failures do] not justify delaying justice or making special 

accommodations to one party over the other.

Although Samantha claims she did not have access to her 

complete case file because she terminated representation by 

her lawyer, our close review of the record and testimony at 

the hearing on the continuance shows that the trial court reasonably found she had access to and personal knowledge of 

the relevant evidence. Samantha was unable to identify when 

she requested the full case file, and in any event, she possessed the complete case file in the days prior to the termination hearing.

With respect to Samantha’s argument that a continuance was 

necessary for her to depose Kozicki, Samantha did not make 

a showing of Kozicki’s identity and his relevance to her case. 

The juvenile court did not err when it concluded, based on the 

information before it, that testimony of Kozicki was not nec

essary and material.

The record supports the findings of the juvenile court, and 

we determine that it did not abuse its discretion when it denied 

Samantha’s motion for a continuance.
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306 Nebraska Reports

IN RE INTEREST OF NOAH C.

Cite as 306 Neb. 359

2. Termination

Samantha contends generally that her parental rights should 

not have been terminated. She specifically claims that the juvenile court erred when it found that termination was in Noah’s 

best interests. Because Samantha concedes that the record 

establishes grounds for termination under § 43-292(7) and 

we find support in the record establishing that termination of 

Samantha’s parental rights is in the best interests of Noah, we 

reject this assignment of error.

(a) Statutory Grounds for Termination

[3] The juvenile court found that sufficient evidence existed 

under § 43-292(2), (3), (6), and (7), set forth above, to support a termination of Samantha’s parental rights. We have held 

that any one of the bases for termination of parental rights 

codified by § 43-292 can serve as the basis for the termination 

of parental rights when coupled with evidence that termination 

is in the best interests of the child. In re Interest of Taeson D., 

305 Neb. 279, 939 N.W.2d 832 (2020).

Samantha does not dispute the fact that the evidence establishes that Noah had been in an out-of-home placement for 15 

or more months of the most recent 22 months. See § 43-292(7). 

Such evidence established a statutory basis for termination. 

See id. Having determined the statutory ground enumerated in 

§ 43-292(7) has been proved, we do not consider issues relating to the sufficiency of the evidence concerning the other 

statutory provisions identified by the juvenile court as grounds 

for termination. See In re Interest of Taeson D., supra.

(b) Best Interests of Noah

[4,5] In addition to proving a statutory ground, the State 

must show that termination is in the best interests of the child. 

§ 43-292. A parent’s right to raise his or her child is constitutionally protected; so before a court may terminate parental 

rights, the State must also show that the parent is unfit. In re 

Interest of Jahon S., 291 Neb. 97, 864 N.W.2d 228 (2015). 
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IN RE INTEREST OF NOAH C.

Cite as 306 Neb. 359

There is a rebuttable presumption that the best interests of a 

child are served by having a relationship with his or her parent. 

Id. Based on the idea that fit parents act in the best interests 

of their children, this presumption is overcome only when the 

State has proved that the parent is unfit. Id. Although the term 

“unfitness” is not expressly used in § 43-292, the concept 

is generally encompassed by the fault and neglect subsections of that statute and is also embedded in a determination 

of the child’s best interests, which is under consideration in 

this appeal. See In re Interest of Jahon S., supra. We have 

defined parental unfitness as “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 a child’s wellbeing.” Id. at 104, 864 N.W.2d at 234. Analysis of the minor 

child’s best interests and the parental fitness analysis are factintensive inquiries. See In re Interest of Kendra M. et al., 283 

Neb. 1014, 814 N.W.2d 747 (2012). And while both are separate inquiries, each examines essentially the same underlying 

facts as the other. Id.

At the onset of the State’s involvement in this case, the relationship between Samantha and Noah was unhealthy. Samantha 

had called DHHS’ hotline for help and sought help for Noah’s 

behaviors. The dysfunctional dynamic was observed by DHHS 

and law enforcement witnesses, as well as a neuropsychologist, 

who testified that in 2017, she noted a strained relationship 

between Samantha and Noah.

After removal, Noah was progressing in school, engaging 

in socially acceptable programs, and doing well. Testimony 

from caseworkers shows that although Samantha had many 

appropriate interactions with Noah during supervised visitation, Samantha could not control her behaviors if she became 

upset or if Noah became dysregulated. Because of this inability to control her own behavior, Samantha’s visitations never 

progressed to the point at which the personnel involved trusted 

her to be alone with Noah. Witnesses verified Samantha’s 
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IN RE INTEREST OF NOAH C.

Cite as 306 Neb. 359

pattern of volatile, angry, and disruptive behavior during visits 

with Noah or family team meetings throughout the pendency 

of the case, which began in 2017.

After October 2018, Samantha did not maintain a relationship with Noah. Samantha prevented reunification by not 

following the case plan, which included completing parenting classes, obtaining a psychological evaluation, obtaining 

a parenting assessment, maintaining a safe and stable home, 

maintaining a job, and maintaining regular contact with Noah. 

Overall, Samantha failed to make adequate improvement or 

mature as a parent and was demonstrably unfit. The evidence 

rebuts the presumption of fitness.

Based upon our de novo review of the record, we find clear 

and convincing evidence that Samantha’s personal deficiencies 

have prevented her from performing her reasonable parental 

obligations to Noah in the past, that she is unable to give 

Noah necessary care and protection, and that the record establishes there is no prospect of improvement in the future. We 

find that it was shown by clear and convincing evidence that 

termination of Samantha’s parental rights would be in Noah’s 

best interests.

VI. CONCLUSION

The juvenile court did not abuse its discretion when it 

denied Samantha’s motion for a continuance, and it did not err 

when it determined that terminating Samantha’s parental rights 

to Noah was appropriate under § 43-292(7) and was in the best 

interests of Noah. Accordingly, we affirm.

Affirmed.