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IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

IN RE INTEREST OF LOUIS W.

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 LOUIS W., A CHILD UNDER 18 YEARS OF AGE.

STATE OF NEBRASKA, APPELLEE AND CROSS-APPELLEE,

V.

MARIO J., APPELLANT, AND ESTHER W., APPELLEE AND CROSS-APPELLANT.

Filed January 15, 2019. No. A-18-504.

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

Affirmed.

Darin J. Knepper, Deputy Scotts Bluff County Public Defender, for appellant.

Leonard G. Tabor for appellee Esther W.

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

WELCH, Judge.

I. INTRODUCTION

Mario J. appeals and Esther W. cross-appeals from the order of the Scotts Bluff County 

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

child, Louis W. For the reasons set forth herein, we affirm.

II. STATEMENT OF FACTS

Louis’ birth came as a surprise to his parents, Esther and Mario. In September 2017, Esther 

went to the emergency room complaining of indigestion or menopause and learned that she was 

pregnant and in labor. After Louis’ birth, Esther and Mario were immediately contacted by Anna 
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Harberts with the Department of Health and Human Services (DHHS). Following Harberts’

investigation, the State filed a motion for temporary custody of Louis and a petition requesting that 

Louis be adjudicated a child within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016). 

Specifically, the State alleged that such adjudication was necessary due to Louis’ parents’ inability 

to care for him; that Louis lacked safe, stable, and sanitary housing; and that Louis’ parents 

suffered from significant mental health concerns. The petition also alleged that Louis was a minor 

child of Native American Heritage and subject to the provisions of the Indian Child Welfare Act 

(ICWA).

An affidavit by Harbert accompanied the State’s motion for temporary custody. That 

affidavit set forth, in part:

The hospital knows [Esther] well due to her mental health issues. Esther has Schizo 

Affective Disorder and is on Haldol and multiple medications. She has a history of 

outbursts and volatility. Esther also is developmentally delayed. The alleged father of the 

baby Mario also has significant mental health issues and is developmentally delayed. He 

is prone to violent outbreaks. Both parents have a payee, and the reporter thinks Mario has 

a guardian (per NDEN he does not have a guardian). Mario plans to be on the birth 

certificate. The psychiatric APRN Cheryl Phinney who knows Esther well formally 

evaluated both parents today and concluded that she would have profound concern for 

mom’s ability to care for baby. During evaluation Mario was rocking back and forth and 

playing a game on [sic] phone and would not engage in conversation. When Cheryl was in 

the room the baby had a coughing/choking fit. Neither parent acknowledged this or did 

anything. Cheryl had to intervene. Since birth when the baby cries neither parent 

acknowledge[s] this or respond[s], and nurses have to prompt Esther to try to care for 

him . . . .

She also stated:

Esther came to hospital . . . and is covered with 100 or more bug bites and reports their 

apartment is infested with bed bugs. Esther has nothing ready for the baby and no resources. 

Esther has repeatedly said she cannot take the baby home in a few days because she doesn’t 

have anything ready and no way to keep him safe. Esther said she had never taken care of 

a baby. She said she could feed him, but doesn’t know if she could burp him. She reported 

she had been able to keep her cat alive, but her roommate that lives down stairs [sic] beat 

it up, but cat is okay now. Mario would not answer any questions about caring for the 

baby. . . .

The court granted the motion for temporary custody on September 25, 2017, and, upon Louis’

discharge from the hospital, he was immediately placed into foster care.

In October 2017, the State filed an amended petition requesting that Louis be adjudicated 

a child within the definition of § 43-247(3)(a), that Esther’s parental rights be terminated pursuant 

to Neb. Rev. Stat. § 43-292(5) (Reissue 2016), and that Mario’s parental rights be terminated 

pursuant to § 43-292(2), (5), and (9). In connection with that amended petition, the State issued an 

“Indian Child Welfare Act Notice” directed to Navajo Children’s and Family Services, P.O. Box 
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1930, Window Rock, AZ, which set forth that a termination petition involving Louis had been 

filed which alleged that Louis was a member, or was eligible for membership, in the Navajo Indian 

Tribe. The court then set both the adjudication hearing and termination hearing for December 21.

On December 1, 2017, both Esther and Mario filed motions to continue the adjudication 

and termination hearings. An affidavit attached to Mario’s motion set forth:

Affiant is still waiting on whether the Navajo Tribe will be intervening in the above matter. 

Your affiant was told . . . that the Navajo Tribe’s Office of Vital Records has a pending 

case for Louis [W.] . . . to determine his eligibility in the Navajo Tribe, and that it has not 

been completed yet.

Following a hearing, the court denied the requests to continue the adjudication hearing, but granted 

a continuance of the termination hearing. Following the December 21 adjudication hearing, the 

court adjudicated Louis as a child within the meaning of § 43-247(3)(a).

The termination of parental rights hearing, which had been continued at the parties’ request, 

was held in March 2018. The State called as witnesses Cheryl Phinney, a psychiatric and family 

nurse practitioner; Harberts; Charlene Russell, a family advocate; Morgan Weitzel, a DHHS child 

and family services specialist; and Stacy Behne, a Nebraska State Patrol crime analyst. The 

following witnesses testified for either Esther or Mario: Reverend William Voss, Shanlee Cross, 

Sharon Russell, and Daniel Palomo. Additionally, the court received the following exhibits into 

evidence: exhibit 6, a certified copy of JV 16-188, a case where Mario’s parental rights to another 

child were terminated; exhibit 7, Mario’s Colorado judgment, conviction, and sentence for sexual 

assault on a child; exhibit 8, a letter from Colorado’s Legislative Legal Services and certification 

of the statute under which Mario was convicted; and exhibits 9 and 10, Dr. Gage Stermensky’s 

parenting capacity evaluations for Esther and Mario. There was no testimony or other evidence 

offered governing the status of Louis as an Indian child.

1. EVIDENCE PRESENTED BY STATE

(a) Cheryl Phinney

Phinney, a psychiatric and family nurse practitioner, testified that she evaluated Esther 

when she was still hospitalized after giving birth to Louis. When she went to perform the 

evaluation, she had documentation that Esther had been admitted to the behavioral health unit three 

times. She testified that Esther had schizoaffective disorder, which includes a “level of psychosis.”

Esther was taking Haldol, an antipsychotic medication; however, she stopped taking other 

medications without direction to do so because Esther “thought she had gone through menopause 

and didn’t know whether or not she should take the medication.” The medications Esther stopped 

taking were identified as Lamictal, a mood stabilizer; Effexor, an antidepressant; and Cogentin, a 

drug which reduces the symptoms caused by Haldol. According to Phinney, it was important for 

Esther to take Lamictal because Esther’s schizoaffective disorder comes with high and low moods. 

Esther told Phinney that she was a little bit depressed, irritable, and angry and that she was having 

some minimal hallucinations. Esther also told Phinney that she came to the emergency department 

because her stomach hurt and she did not know she was pregnant. Phinney recounted that there 

was one incident where Louis began to cough and a “nurse came in, repositioned the child and 
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suctioned the baby, and neither one of the parents really noted.” During Phinney’s 55-minute 

evaluation, she noted no overt bonding between the parents and Louis.

(b) Dr. Stermensky’s Parental Capacity Evaluations

Dr. Stermensky completed comprehensive parental capacity evaluations of both Esther and 

Mario. Esther’s evaluation was received into evidence as exhibit 9 and Mario’s evaluation was 

received into evidence as exhibit 10.

(i) Esther’s Evaluation

Dr. Stermensky’s evaluation of Esther noted that Esther was born in 1973 and that she was 

diagnosed with schizoaffective disorder when she was 19. The evaluation documented Esther 

denied having ever “heard voices or saw things that other people couldn’t see and hear” and when 

asked why she was diagnosed with schizophrenia or schizoaffective disorder, she stated “ask the 

doctors, I don’t know.” The report further noted that Esther agreed that she had been diagnosed 

with posttraumatic stress disorder, but disagreed with the diagnosis. Dr. Stermensky found that 

Esther had mild intellectual development disorder but he noted that it was difficult to clearly 

diagnose the disorder because some of the symptoms associated with intellectual disability may 

be due to her severe and persistent psychotic disorder.

Dr. Stermensky’s evaluation noted that Esther “reports significant persecutory ideation 

such as believing that others seek to harm her. She is suspicious of and alienated from others, and 

experiences interpersonal difficulties as a result of suspiciousness, and lacks insight.” Dr. 

Stermensky included a report he reviewed which documented Esther telling Phinney that she had 

been experiencing “residual audio hallucinations.” His evaluation indicated that Esther reported 

that she had a miscarriage while hospitalized but stated that a doctor “had it deleted from the 

computer system.”

Dr. Stermensky recommended that Esther attend a 12-step program, receive parenting 

training, and receive ongoing random drug and alcohol screening. He noted that, during substance 

abuse treatment, “it will be important for the therapist to recognize that [Esther] will have difficulty 

acknowledging the full nature and ramifications of her substance abuse problem.” Further, Dr. 

Stermensky reported that Esther’s “insight regarding her current situation, responsibility, family 

relationships, and legal vs. illegal activity appeared limited” and that “she exhibited no empathetic 

awareness of what her child is likely experiencing as a result of her past actions.”

Dr. Stermensky noted that Esther “lacks insight into her emotional state, likely from her 

propensity towards blaming other[s] . . . and substance abuse history. She is likely confused by her 

own and other[s’] emotions” which “brings into question her potential for acknowledging and 

addressing emotional issues” Louis experiences or for showing empathy for Louis. He observed 

that, despite long-term therapy and medication management, Esther struggles to develop new 

coping skills and parenting skills. Dr. Stermensky also noted that Esther “struggles maintaining 

hygiene needs” and there are “noted concerns regarding her ability to cook, clean, provide 

transportation and hygiene needs for her child based on current adaptive functioning deficits.”

After listing off problems with Esther’s ability to parent, Dr. Stermensky stated that because of her 

“compromised cognitive functioning, many of these deficits are not amenable to treatment 
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interventions.” In the evaluation, Dr. Stermensky concluded that Esther was not capable of caring 

for Louis.

(ii) Mario’s Evaluation

Dr. Stermensky also performed a comprehensive parental capacity evaluation of 

47-year-old Mario. Dr. Stermensky found that Mario presented symptoms consistent with having 

a moderate intellectual development disorder, posttraumatic stress disorder, unspecified paraphilic 

disorder, and unspecified bipolar and related disorder. He also listed cocaine use, inhalant use, and 

alcohol use disorders, all severe and in full remission pursuant to Mario’s self-reporting.

Mario acknowledged to Dr. Stermensky that he had been diagnosed with several potential 

psychiatric or mental problems. He reported sleeping 2-3 hours per night during the month prior 

to the evaluation, that his insomnia usually lasts for a few weeks, and that he hears voices during 

the times when he cannot sleep. Mario also reported long-term anger problems, hypersexuality, 

impulsivity, and a suicide attempt, which led to his hospitalization. Mario reported he has been 

hospitalized twice for suicidal ideation. According to Mario, he had been receiving disability since 

he was 17 years old because of “slow learning disease.”

The parental capacity evaluation included Mario’s criminal history dating back to 2006 

and listed 19 separate times Mario had been incarcerated between 2006 and 2016. Mario’s criminal 

history included convictions for, but not limited to, felony strangulation, third degree domestic 

assault, violation of a protection order, and two counts of failure to use a child passenger restraint. 

Mario admitted to being incarcerated once for strangling Esther and another time for assaulting 

Esther. Dr. Stermensky found that Mario lacked insight into what behaviors are legal and what 

behaviors are illegal.

Dr. Stermensky reviewed documentation of a DHHS intake and included it in his report. 

The intake described children, ages 17, 13, and 11, who were allegedly abandoned by their mother 

and living with Esther and Mario. The intake described the concerns of the children’s extended 

family members that Mario was giving gifts to the younger two children and “‘brainwashing’ them 

into thinking he is a great guy,” but that Mario had other motives. The intake report stated that 

“Mario has stated that he wants to take the two younger children and move to Cheyenne.”

Dr. Stermensky stated that Mario’s “current level of intellectual functioning will impact 

his ability to be a parent and he may feel emotional attraction to individuals with similar intellectual 

and cognitive resources. Secondary to low IQ, he has extremely immature problem-solving 

abilities and social understanding. He has been abusive to [Esther].” He concluded his report with 

several recommendations including monitoring contact with Esther “to protect [Esther] as a 

vulnerable adult” and that “visitation, if pursued, should be monitored and for limited periods of 

time, never unsupervised based upon [Mario]’s violent history, [and] sexually maladaptive 

behavioral convictions.” Dr. Stermensky concluded that Mario was not capable of providing 

sufficient care for Louis.

(c) Charlene Russell

Russell, a family advocate, worked with Esther and Mario since November 2017 to provide 

supervised visitations with Louis and one-on-one family support meetings. During the most recent 
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3 to 4 weeks prior to the hearing, the family had an extended 4-hour supervised visit each week 

instead of two 1-hour visits. Russell explained that at these extended visits, Esther would 

sometimes get “very frustrated with Mario due to her feeling that he’s taking over the visit.”

Russell would explain to Esther that it was a “team effort” where Esther and Mario were working 

together as parents, that Mario was not trying to take over the visits, and that Russell was not trying 

to say that Esther was doing anything wrong. But Russell explained, “that’s how she perceives 

him stepping in and helping whenever Louis is needing to be fed or needing to be changed . . . and 

her emotions can escalate at times.” When Esther would get frustrated, Russell testified that she 

would have to de-escalate Esther, because Mario would not. When Esther’s emotions would 

escalate, Mario would sometimes remove himself from the room, often to prepare a bottle, and 

when he returned, Russell would usually have de-escalated the situation with Esther. Russell 

observed that sometimes Esther can de-escalate herself, but usually if she started to get upset, 

Russell needed to redirect Esther in order to calm her down. Russell testified that during every 

visit in which she took part, there were incidences which would cause Esther to escalate her 

emotions, or experience “moments of panic.”

Russell has worked one-on-one with both Esther and Mario for family support. During 

these one-on-one family support meetings, she would work with the parent on issues related to 

soothing techniques for Louis, nutrition, how to care for Louis’ acid reflux, which then later 

progressed to topics such as emotional regulation, anger management, and setting healthy 

boundaries. Russell related that even during one-on-one family support visits, both Esther and 

Mario were easily distracted and Esther often fixated on other issues and seemed unable to devote 

her full attention to Louis.

Further, despite working on the same skills since November 2017, Esther and Mario still 

needed constant redirection regarding basic parenting skills including holding, feeding, diapering, 

playing with, and giving eye contact to Louis. Russell stated that the parents did not make the 

progress that she would expect to see in that timeframe and the visits never progressed to a point 

where she would have been comfortable with unsupervised or semisupervised visits.

(d) Morgan Weitzel

Weitzel, a DHHS child and family services specialist, was Louis’ case manager since 

October 4, 2017. Weitzel testified that “the level at which [Esther and Mario are] learning and 

adapting is not keeping up with the rate at which Louis is growing and developing.” Weitzel 

detailed the significant difficulties Mario and Esther were having with their visitations. She stated 

that “there has been very little progress in parenting skills.” The following exchange took place 

near the end of her testimony:

Q. [by State] What’s the department’s position as it relates to Louis and his best 

interests when it comes to his termination of his biological parents’ rights?

[Esther’s counsel]: Object on foundation.

THE COURT: It’s overruled. You can answer.

A. The department’s stance is that it would be in Louis’ best interests to have 

parental rights terminated for both parents.

Q. [by State] Why?
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A. They have not shown that they have the capacity to keep up with Louis’

development or to adapt to his needs without extensive support and prompting and 

redirection. It’s just not sustainable and not in Louis’ best interests for that to be a struggle 

throughout his life.

Weitzel described the interaction between Mario and Esther at team meetings to be 

tenuous, stating they both talk over each other and Esther often gets frustrated with Mario and will 

snap at him. She testified that the degree of escalation that was happening so rapidly and without 

regard to who is there was a “red flag.”

(e) Stacy Behne

Nebraska State Patrol crime analyst Behne, who also works with State Patrol’s sex 

offender registry division, testified that based upon Mario’s Colorado sexual assault of a child 

conviction, which had been separately offered and received into evidence, he would be monitored 

as a sex offender for life. Behne testified that the victim in the Colorado case was Mario’s relative 

and was 9 or 10 years old.

2. EVIDENCE PRESENTED BY ESTHER AND MARIO

(a) Sharon Russell

Sharon Russell testified that she met Mario and Esther at church about 2 years ago, that 

she often sees Mario with his nieces and nephews at church, and that Esther and Mario treat 

children “very well.” She testified that she knows Mario is a registered sex offender, that the victim 

was a child, and that she would leave her children in their care.

(b) Shanlee Cross

Cross testified she has known Mario for about 11 years, she trusts him, and he has watched 

her son and daughter. She testified that “he helps around the house with us” and her children “like 

being around him.”

(c) Reverend William Voss

Reverend Voss testified he has known Esther and Mario for about 6 or 7 years as 

participants in worship as well as volunteers in his church’s volunteer organization. He stated this 

has included “a fair amount of interaction through the week” and he has never seen any problems 

in their interactions with small children, or any indication of them being on drugs, drunk, or 

abusive to each other.

(d) Dan Palomo

Palomo, an alcohol and drug counselor, testified that Mario started treatment in January 

2017. He testified that both Mario and Esther have completed an intensive outpatient treatment 

program, which is a 6-week program to help participants maintain sobriety and develop coping 

skills. He believed Mario had been clean for about 3 years and that Esther had been clean for about 

4 years.
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(e) Esther

Esther testified that she and Mario will be moving to an apartment which will cost them 

$525 per month which is $75 less per month than their current residence. Esther testified that they 

might need WIC and Medicaid to cover some expenses for Louis, but that they will be able to 

support Louis. Esther further testified that people leave their children with Mario and that Cross 

left her children with Mario overnight.

3. TERMINATION ORDER

Following the hearing, the court terminated both Esther’s and Mario’s parental rights,

finding that the State had established by clear and convincing evidence that termination of Esther’s 

parental rights was established pursuant to § 43-292(5) and that termination of Mario’s parental 

rights was established pursuant to § 43-292(5) and (9). The court found:

In the present case, both parents are simply incapable of parenting Louis. The court 

does not believe [Esther] would intentionally hurt Louis but it is clear that she cannot 

provide for his basic needs, which includes protection in a dangerous world. [Mario] is a 

more complicated individual. Dr. Stermensky opined that [Mario]’s low intellectual 

capacity could cause attraction to individuals with similar intellectual and cognitive 

resources, which may explain his attraction to children. [Mario]’s parental rights to another 

child were terminated within the last 12 months. He is a convicted sex offender; the victim 

was a child.

The court found by clear and convincing evidence that termination was in Louis’ best 

interests. The court specifically found:

In the present case, both parents are unfit and cannot perform reasonable parental 

obligations. There is not a bond between the parents and the child. The court cannot find 

any beneficial relationship between the parent and child. The court finds Louis would be 

in continual danger of significant harm if he were placed in his parents [sic] care. Generally, 

the danger would be from the inability of the biological parents to care for the child. 

However, [Mario]’s criminal past and tendency to be attracted to children, place Louis in 

danger of intentional abuse as well.

Both Mario and Esther timely appeal.

III. ASSIGNMENTS OF ERROR

Both Esther and Mario have assigned as error that the court erred in finding that the 

statutory grounds for termination under § 43-292 (5) and (9) were met and termination of their 

parental rights was in Louis’ best interests. Esther independently assigned as error, and argues in 

her brief, that the court erred in allowing Weitzel’s opinion testimony on termination over her 

foundational objection. Mario independently assigns as error, and argues in his brief, that the court 

erred in ordering termination without finding, by clear and convincing evidence, that active efforts 

were made to prevent the breakup of the Indian family and without finding, beyond a reasonable 
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doubt, that continued custody by Mario was likely to result in serious emotional or physical 

damage to Louis.

There were also errors identified by either Esther or Mario that were either assigned as 

error, but not argued in their briefs, or were argued in their briefs, but not assigned as error. Esther 

assigned as error, but did not argue in her brief, that the court erred by not finding that continued 

custody by Esther was likely to result in serious emotional or physical damage to Louis. Similarly, 

Mario assigned as error, but did not argue in his brief, that the court erred by finding that Louis 

should be adjudicated under § 43-247(3)(a). Finally, Esther argued in her brief, but did not assign 

as error, that the court erred by ordering termination without a finding that the State made active 

efforts to prevent the breakup of the Indian family. To be considered by an appellate court, an error 

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

error. Mock v. Neumeister, 296 Neb. 376, 892 N.W.2d 569 (2017). Thus, we do not consider errors 

that were not both assigned as error and argued in Esther’s and Mario’s briefs.

IV. STANDARD OF REVIEW

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 Shayla H. et al., 

17 Neb. App. 436, 764 N.W.2d 119 (2009). When the evidence is in conflict, however, an appellate 

court may give weight to the fact that the lower court observed the witnesses and accepted one 

version of the facts over the other. Id.

V. ANALYSIS

1. ERRORS RAISED BY BOTH ESTHER AND MARIO

(a) Statutory Grounds for Termination

Both Mario and Esther assigned that the court erred in finding that there was clear and 

convincing evidence to support the statutory grounds for termination alleged in the State’s petition 

to terminate their parental rights. Because we find that termination was appropriate under 

§ 43-292(5) as to both Esther and Mario, we do not examine the arguments regarding any of the 

other statutory grounds. See In re Interest of Kendra M. et al., 283 Neb. 1014, 814 N.W.2d 747 

(2012) (only one statutory ground for termination need be proved in order for parental rights to be 

terminated).

Section 43-292(5) allows termination when, in addition to a determination that termination 

is in the best interests of the child, “[t]he parents are unable to discharge parental responsibilities 

because of mental illness or mental deficiency and there are reasonable grounds to believe that 

such condition will continue for a prolonged indeterminate period.”

(i) Applicability to Esther

Esther has been diagnosed with mild intellectual development disorder and schizoaffective 

disorder, which includes a level of psychosis. The second condition produces mood swings and 

requires medication. Dr. Stermensky noted that Esther reported significant persecutory ideation 

such as believing that others sought to harm her. He noted that she was suspicious of, and alienated 

from, others and experienced interpersonal difficulties as a result of suspiciousness and that she 
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lacked insight. He included a report which documented that Esther experienced “residual audio 

hallucinations.”

Phinney testified that when she first met with Esther in the hospital following Louis’

surprise birth, she had documentation of Esther being admitted to the behavioral health unit on 

three previous occasions. Prior to Louis’ birth, Esther had discontinued the use of certain 

prescription medications. During their first visit, Esther told Phinney that Esther was irritable, 

depressed, angry, and having minimal hallucinations. Esther also told Phinney that Esther did not 

know that she was pregnant and told Harberts she did not know how she became pregnant.

Dr. Stermensky noted that due to her condition, Esther struggles to maintain hygiene needs 

which he reported posed concerns for her ability to cook, clean, provide transportation, and 

hygiene needs for Louis. Dr. Stermensky reported that Esther’s “insight regarding her current 

situation, responsibility, family relationships, and legal vs. illegal activity appeared limited” and 

that “she exhibited no empathetic awareness of what her child is likely experiencing as a result of 

her past actions.” He further noted she “lacks insight into her emotional state, likely from her 

propensity towards blaming other[s] . . . and substance abuse history. She is likely confused by her 

own or other[s] emotions.” He stated “this brings into question her potential for acknowledging 

and addressing [Louis’] emotional issues” and showing empathy for him. He observed that despite 

long-term therapy and medication management, Esther struggles to develop new coping and 

parenting skills. Dr. Stermensky concluded Esther was not capable of caring for Louis and stated 

that, due to her “compromised cognitive functioning, many of these deficits are not amenable to 

treatment interventions.”

Dr. Stermensky’s opinions and insights were consistent with the recorded observations of 

case workers who worked with Esther. During supervised visits, Esther experienced difficulty 

managing and responding to Louis’ and, her own, needs. Testimony from Phinney, Russell, and 

Weitzel, established Esther’s lack of responsiveness to Louis’ basic needs, lack of bonding with 

him, lack of coping skills, and lack of parenting skills.

Esther likewise experienced difficulty in coping with Mario and consistently “escalated”

her behavior when Mario was present. This required caseworkers to intervene in the situation to 

de-escalate Esther so she could resume caring for Louis. Esther struggled to make eye contact with 

Louis, determine when he was hungry, in need of a diaper change, or in need of her attention. Case 

workers noted a lack of progress in their attempts to teach Esther the most basic parenting skills.

Based upon our de novo review of the record, we find that there is clear and convincing 

evidence that Esther is unable to discharge her parental responsibilities because of mental illness 

and deficiency and that there are reasonable grounds to believe that such condition will continue 

for a prolonged indeterminate period.

(ii) Applicability to Mario

Mario has been diagnosed with moderate intellectual developmental disorder and 

symptoms consistent with posttraumatic stress disorder, unspecified paraphilic disorder, and 

unspecified bipolar and related disorder. Mario self-reported bouts of insomnia where he would 

hear voices. He also reported anger problems, hypersexuality, impulsivity, and suicide attempts. 

As a result of his conditions, Dr. Stermensky noted that Mario lacks insight into what is legal and 
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illegal. Mario now has an extensive criminal history and he has been convicted of sexual assault 

of a child and is being monitored as a sex offender for the remainder of his lifetime. He was 

incarcerated on 19 separate instances between 2006 and 2016 which included incidents involving 

the assault and strangulation of Esther.

Dr. Stermensky opined that Mario’s level of intellectual functioning rendered him 

incapable of caring for Louis. Dr. Stermensky noted Mario had extremely immature 

problem-solving abilities and social understanding. He stated the lack of social understanding will 

impair Mario’s ability to relate to Louis, understand him, and teach him to interact appropriately 

with others. As a result, Dr. Stermensky recommended monitored visitation with Louis due to 

Mario’s violent and several maladaptive behaviors and further recommended monitored visits with 

Esther in order to protect her as a vulnerable adult.

Like Esther, Dr. Stemensky’s opinions and insights were consistent with recorded 

observations of caseworkers who worked with Mario. During supervised visits, Mario was lacking 

in the most basic parenting skills, often needed to be redirected after months of working on those 

skills, and lacked the ability to de-escalate Esther when working together to care for Louis. In 

short, Mario consistently demonstrated that he was incapable of caring for Louis. After our de 

novo review of this record, we find clear and convincing evidence that Mario is unable to discharge 

his parental responsibilities because of mental illness or mental deficiency and there are reasonable 

grounds to believe that such condition will continue for a prolonged indeterminate period of time.

Accordingly, we find the court did not err in finding there were sufficient grounds to 

terminate the parental rights of Esther and Mario’s pursuant to § 43-292(5).

(b) Best Interests

Both Mario and Esther also assign that termination of their parental rights is not in Louis’

best interests.

A juvenile’s best interests is the primary consideration in determining whether parental 

rights should be terminated; however, a parent’s interest in the accuracy and justice of the decision 

is also a commanding one. Kenneth C. v. Lacie H., 286 Neb. 799, 839 N.W.2d 305 (2013). With 

respect to the best interests of a juvenile in termination of parental rights proceedings, “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 Athina M., 21 Neb. App. 624, 634, 842 N.W.2d 159, 166 (2014). A finding that 

termination of parental rights is in the best interest of the child must be made by clear and 

convincing evidence. In re Interest of Alec S., 294 Neb. 784, 884 N.W.2d 701 (2016).

Courts presume that the best interests of a child are served by having a relationship with 

his or her parent. In re Interest of Kendra M. et al., 283 Neb. 1014, 814 N.W.2d 747 (2012). Based 

on the idea that fit parents act in the best interests of their children, this presumption is overcome 

only when the State proves 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 has caused, or probably will result in, 

detriment to a child’s well-being. Id.
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When termination is sought under subsections of § 43-292, other than subsection (7), the 

evidence adduced to prove the statutory grounds for termination will also be highly relevant to the 

best interests of the juvenile, as it would show abandonment, neglect, unfitness, or abuse. In re 

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

As we previously stated, following his birth, Louis was immediately removed from Esther 

and Mario and placed in the care and custody of the State. Following that removal, the State was 

actively involved in working with Esther and Mario in order to determine whether the family could 

be reunified. During that period of time, both Esther and Mario exhibited an inability to properly 

care for Louis including, but not limited to, determining when Louis was hungry and in need of 

nourishment, in need of a diaper change, in need of their attention, providing eye contact and 

support, showing empathy, and otherwise bonding with Louis. The testimony established that 

those limitations were a product of their mental illnesses and deficiencies. In the case of Mario, 

the evidence not only established his inability to care for Louis, but demonstrated a safety concern 

based upon his specific criminal past. As to both Mario and Esther, Dr. Stermensky opined that 

neither are capable of properly caring for Louis and that the limitations involved here could not be 

resolved over time. In sum, the evidence clearly and convincingly established that Mario and 

Esther were unfit parents and that it was in the Louis’ best interests that Mario and Esther’s parental 

rights be terminated.

2. ERRORS RAISED BY ESTHER ONLY

Esther contends that the court erred in allowing Weitzel’s opinion testimony on termination 

over her foundational objection.

In termination of parental rights hearings, the Nebraska Evidence Rules do not apply. In re 

Interest of Elijah P. et al., 24 Neb. App. 521, 891 N.W.2d 330 (2017). Instead, due process controls 

and requires that fundamentally fair procedures be used by the State in an attempt to prove that a 

parent’s rights to his or her child should be terminated. Id.

In this case, Esther argues that Weitzel’s opinions governing whether terminating Esther’s 

parental rights was in Louis’ best interests should have been excluded for insufficient foundation. 

The record here indicates that Weitzel is a DHHS child and family services specialist and had been 

assigned as case manager since October 2107. She testified to having spent considerable time with 

Esther and documented her observations in connection therewith. Based upon her background, 

experience, and first-hand knowledge of the case, Weitzel offered her opinion as to Louis’ best 

interests as it related to parental termination. She was available for cross-examination and fully 

explained her positions. The court’s decision to allow her testimony was fundamentally fair as it 

related to the issue of termination of parental rights. As such, the court’s decision overruling 

Esther’s foundational objection to Weitzel’s opinion testimony on whether termination of her 

parental rights was in Louis’ best interests did not violate due process.

3. ERRORS RAISED BY MARIO ONLY

Mario contends that the court erred in terminating his parental rights without a finding that 

active efforts had been made to prevent the breakup of the Indian family and in failing to find 

beyond a reasonable doubt that placing Louis with him would be likely to result in serious 
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emotional and physical damage to Louis. The county court would, in fact, be required to make 

these findings in the event that the termination proceeding were governed by the Nebraska Indian 

Child Welfare Act (NICWA).

Originally, there was some concern by the State that this termination proceeding may be 

subject to the NICWA. After filing the petition to terminate, the State sent notice to the Navajo 

Children’s and Family Services in October 2017 identifying Louis as a person of possible Indian 

descent and apprising them of the proceedings. Later, in connection with a motion to continue filed 

by Mario’s counsel, counsel attached an affidavit in which he stated there was an open case to 

determine if Louis was eligible for enrollment as a Navajo with no response by the tribe at that 

point in time. At a February 7, 2018 hearing, the court asked “[a]nd ICWA was alleged but not 

applicable; correct?” and the State confirmed that “[a]s far as we know at this time, yes.”

A party seeking to invoke a provision of NICWA has the burden to show that the act applies 

in the proceeding. In re Adoption of Kenten H., 272 Neb. 846, 725 N.W.2d 548 (2007). See, also, 

In re Interest of Nery V. et al., 20 Neb. App. 798, 832 N.W.2d 909 (2013). It is applicable “when 

the court knows or has reason to know that an Indian child is involved.” Neb. Rev. Stat. § 43-1505 

(Reissue 2016).

At the termination hearing, neither Esther nor Mario offered any evidence that Louis was 

of Indian descent or any evidence that NICWA should apply to these proceedings. Accordingly, 

we find that Mario did not meet his burden of establishing that NICWA applied to this case. 

Because neither Mario, nor anyone else, satisfied their burden that NICWA applies to these 

proceedings, we hold that the court did not err in terminating their parental rights without a finding 

that active efforts have been made to reunite the family or that placement of Louis with Mario was 

likely to result in serious emotional or physical damage to Louis.

VI. CONCLUSION

In sum, we find that the assignments of error which were properly raised are without merit. 

As the county court observed, Mario and Esther are not culpable, but are not capable or fit parents 

either. Finding no error, the order terminating Mario and Esther’s parental rights is affirmed.

AFFIRMED.