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IN RE INTEREST OF DONALD B. & DEVIN B.

Cite as 304 Neb. 239

In re Interest of Donald B. and Devin B., 

children under 18 years of age.

State of Nebraska, appellee, 

v. Candice I., appellant.

___ N.W.2d ___

Filed October 11, 2019. No. S-18-675.

1. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases de novo on the record and reaches a conclusion independently 

of the juvenile court’s findings.

2. Parental Rights: Proof. In order to terminate an individual’s parental 

rights, the State must prove by clear and convincing evidence that one of 

the statutory grounds enumerated in Neb. Rev. Stat. § 43-292 (Reissue 

2016) exists and that termination is in the children’s best interests.

3. Parental Rights: Juvenile Courts: Pleadings. In a termination proceeding, pursuant to Neb. Rev. Stat. § 43-247(6) (Reissue 2016), a court 

may accept an in-court admission from a parent as to all or part of the 

allegations in the petition.

4. Pleas: Evidence: Waiver: Words and Phrases. A judicial admission is 

a formal act done in the course of judicial proceedings which is a substitute for evidence, thereby waiving or dispensing with the production of 

evidence by conceding for the purpose of litigation that the proposition 

of fact alleged by the opponent is true.

5. Parental Rights: Proof. When a parent admits to the State’s allegations 

regarding the statutory ground for termination of parental rights and that 

termination is in the children’s best interests, the State does not have to 

prove those allegations by clear and convincing evidence.

6. Parental Rights: Juvenile Courts: Pleadings. Because the primary 

consideration in determining whether to terminate parental rights is the 

best interests of the child, a juvenile court should have at its disposal 

the information necessary to make the determination regarding the 

minor child’s best interests regardless of whether the information is 

Nebraska Supreme Court Online Library

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

12/13/2019 09:06 AM CST
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in reference to a time period before or after the filing of the termination petition.

7. Evidence: Appeal and Error. In a review de novo on the record, an 

appellate court reappraises the evidence as presented by the record and 

reaches its own independent conclusions with respect to the matters at 

issue.

8. Juvenile Courts: Jurisdiction: Statutes. As a statutorily created court 

of limited and special jurisdiction, a juvenile court has only such authority as has been conferred on it by statute.

Petition for further review from the Court of Appeals, 

Moore, Chief Judge, and Pirtle and Arterburn, Judges, on 

appeal thereto from the Separate Juvenile Court of Douglas 

County, Chad M. Brown, Judge. Judgment of Court of Appeals 

reversed, and cause remanded with directions.

John J. Ekeh, of Ekeh Law Office, for appellant.

Donald W. Kleine, Douglas County Attorney, Natalie Killion, 

and Jennifer Chrystal-Clark for appellee.

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

Papik, and Freudenberg, JJ.

Cassel, J.

I. INTRODUCTION

Candice I. petitions for further review of the Nebraska 

Court of Appeals’ decision affirming the termination of her 

parental rights to one of her minor children based upon her 

admissions and the State’s factual basis presented at the termination hearing. Upon a de novo review of the record, the 

indistinguishable progress made by Candice with both children 

does not support a sufficient factual basis that termination 

of her parental rights was in only one child’s best interests. 

Accordingly, we reverse, and remand with directions.

II. BACKGROUND

Candice is the natural mother of Donald B., born in 2003, 

and Devin B., born in 2004. In 2015, the juvenile court 
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adjudicated that both children shall be under the temporary 

custody of the Department of Health and Human Services 

(DHHS). Since the adjudication, the children have remained 

in the custody of DHHS.

1. Hearing on Termination of

Parental Rights to Devin

In January 2018, the State filed its third motion to terminate Candice’s parental rights to both Donald and Devin. Six 

months later, the juvenile court held a hearing on the motion.

Pursuant to a “plea deal” announced at the hearing, Candice 

admitted to count I (Devin was within the meaning of Neb. Rev. 

Stat. § 43-247(3)(a) (Reissue 2016)), count II (Candice failed 

to comply with several court-ordered rehabilitation plans), 

count IV (Devin came within the meaning of Neb. Rev. Stat. 

§ 43-292(1) (Reissue 2016)), count IX (terminating Candice’s 

parental rights was in Devin’s best interests), and count X (reasonable efforts under Neb. Rev. Stat. § 43-283.01 (Cum. Supp. 

2018) were not required due to abandonment). And in return, 

the State dismissed all the allegations as to Donald and the 

remaining allegations as to Devin. As a condition of the “plea 

deal,” the State represented that Candice’s admissions would 

be treated as a “voluntary relinquishment.”

During the termination and permanency hearing, the court 

recited the allegations contained in the third motion to terminate parental rights. Before and after the recitation, the 

court conducted a colloquy with Candice to advise her of the 

rights that she would be waiving. Candice then admitted to 

the allegations.

After Candice’s admissions, the State set forth a factual 

basis for the plea, and we summarize its recitation. It stated 

it would show that Devin was removed from his parental care 

in 2015. As part of the removal, the court entered several 

orders. Candice failed to comply with the orders to reunify 

with Devin. Prior to filing the motion for termination, she 

did not have contact with Devin for 2 years. And other case 
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professionals would testify to the lack of contact between 

Candice and Devin. Devin’s caseworker would testify that she 

made efforts to engage Candice in reunification. Based upon 

the caseworker’s education, training, and experience with the 

family, she would testify that it was in Devin’s best interests to 

terminate Candice’s parental rights.

Based upon Candice’s admissions and the factual basis 

recited by the State, the juvenile court made several findings. 

Pursuant to count III, the court took judicial notice of its own 

record and orders in the case. It found that (1) there was a 

factual basis for the counts; (2) the admissions to the motion 

were true by clear and convincing evidence; (3) the plea was 

knowingly, intelligently, and understandingly made; and (4) it 

was in Devin’s best interests to terminate Candice’s parental 

rights. It terminated Candice’s parental rights and found that 

“this is to be treated as a voluntary relinquishment to this Court 

and it cannot be used for any further filings or proceedings by 

the county attorney or any other party.” The hearing continued 

with respect to Donald’s status, during which evidence was 

considered. We will return to that evidence later.

2. Court of Appeals’ Decision

Candice timely appealed and challenged the termination of 

her parental rights.1 She assigned that the court lacked authority to accept her admissions as a voluntary relinquishment. 

Additionally, she assigned that the court erred in terminating 

her parental rights to Devin.

The Court of Appeals reasoned that the juvenile court was 

empowered to accept Candice’s admissions and to rely on 

the admissions when terminating her parental rights. It disregarded the cases she discussed about relinquishment of parental rights, because, it said, those cases were concerned about a 

juvenile court’s authority to order DHHS to accept a voluntary 

relinquishment from a parent.

1 In re Interest of Donald B. & Devin B., 27 Neb. App. 126, 927 N.W.2d 67 

(2019).
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It also reasoned that based on Candice’s admission that 

termination was in Devin’s best interests, her acquiescence to 

the factual basis, and her reunification efforts with Donald, 

there was sufficient evidence to terminate her parental rights 

to Devin. It emphasized that “[t]he record shows that although 

Candice ceased having contact with Devin more than 2 years 

prior to the State’s filing the third petition for termination of 

parental rights, she was maintaining contact with Donald.”2 It 

concluded that based on the record, it could find no basis to 

set aside the parties’ agreement when the plea was entered into 

knowingly, voluntarily, and intelligently. It affirmed the termination of Candice’s parental rights to Devin.

Candice timely petitioned for further review, which we 

granted.3

III. ASSIGNMENTS OF ERROR

Candice assigns that the Court of Appeals (1) erred in failing to make a proper de novo review when “it disregarded 

evidence that the [j]uvenile [c]ourt erred in terminating [her 

parental] rights” and (2) erred in affirming the juvenile court’s 

decision to accept her admissions as a voluntary relinquishment of her parental rights to Devin.

IV. STANDARD OF REVIEW

[1] An appellate court reviews juvenile cases de novo on the 

record and reaches a conclusion independently of the juvenile 

court’s findings.4

V. ANALYSIS

1. Termination of Parental Rights

(a) Candice’s Arguments

In her petition for further review, Candice argues that if she 

is a fit parent to strive for reunification with Donald, then the 

2 Id. at 133-34, 927 N.W.2d at 73.

3 See Neb. Ct. R. App. P. § 2-102(F) (rev. 2015).

4 In re Interest of Michael N., 302 Neb. 652, 925 N.W.2d 51 (2019).
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same must be true with Devin. She analogizes her case to In 

re Interest of Xavier H.,

5

 where the facts were insufficient to 

show that the mother was an unfit parent to her child in DHHS 

custody, when she was a fit parent to the other children in her 

care. Candice contends that the court should not have accepted 

an agreement that makes a parent choose between her children. 

She asserts that the “plea deal” was suggestive she prefers one 

child over another and that thus, she “had to choose between 

giving up her rights of one child over the other.”6

(b) Statutory Grounds 

for Termination

[2,3] In order to terminate an individual’s parental rights, the 

State must prove by clear and convincing evidence that one of 

the statutory grounds enumerated in § 43-292 exists and that 

termination is in the children’s best interests.7 In a termination 

proceeding, pursuant to § 43-247(6), a court may accept an 

in-court admission from a parent as to all or part of the allegations in the petition.8

 Here, the juvenile court had authority to 

accept the in-court admissions during the termination proceeding pursuant to § 43-247(6).

[4] When a parent, pursuant to § 43-279.01(3), admits to 

allegations in a termination proceeding, we have characterized 

it as a judicial admission.9 A judicial admission is a formal act 

done in the course of judicial proceedings which is a substitute 

for evidence, thereby waiving or dispensing with the production of evidence by conceding for the purpose of litigation that 

the proposition of fact alleged by the opponent is true.10

5 In re Interest of Xavier H., 274 Neb. 331, 740 N.W.2d 13 (2007).

6 Brief for appellant in support of petition for further review at 2.

7 In re Interest of Joseph S. et al., 291 Neb. 953, 870 N.W.2d 141 (2015).

8 See Neb. Rev. Stat. § 43-279.01 (Reissue 2016).

9 See In re Interest of L.B., A.B., and A.T., 235 Neb. 134, 454 N.W.2d 285 

(1990).

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

803 (2015).
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[5] When a parent admits to the State’s allegations regarding 

the statutory ground for termination of parental rights and that 

termination is in the children’s best interests, the State does 

not have to prove those allegations by clear and convincing 

evidence.11 Regarding a factual basis, § 43-279.01(3) requires 

only that “[t]he court shall ascertain a factual basis for an 

admission . . . .” “The statute does not specify precisely what 

the factual basis must entail.”12

Because Candice admitted to the allegations in the motion 

to terminate, the State did not have to prove them by clear 

and convincing evidence. It was only required to set forth 

a factual basis. We must examine whether the factual basis 

was sufficient to support the admissions. Here, we have an 

unusual series of events, where a factual basis, apparently sufficient on its face, is undermined by evidence presented during 

the hearing.

(c) Best Interests of Child

[6] We first address the factual basis to support Devin’s best 

interests. Because the primary consideration in determining 

whether to terminate parental rights is the best interests of the 

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

child’s best interests regardless of whether the information is 

in reference to a time period before or after the filing of the 

termination petition.13 While statutory grounds for termination 

are based on past conduct, the best interests element focuses on 

future well-being of the child and should not be seen through a 

microscope, but a telescope.14

11 In re Interest of Brooklyn T. & Charlotte T., 26 Neb. App. 669, 922 

N.W.2d 240 (2018).

12 In re Interest of Zanaya W. et al., supra note 10, 291 Neb. at 28, 863 

N.W.2d at 810.

13 See Kenneth C. v. Lacie H., 286 Neb. 799, 839 N.W.2d 305 (2013).

14 See 4 Christine P. Costanakos, Nebraska Practice, Juvenile Court Law and 

Practice § 5:14 (2018).
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(i) Additional Facts

[7] In a review de novo on the record, an appellate court 

reappraises the evidence as presented by the record and reaches 

its own independent conclusions with respect to the matters 

at issue.15 We will consider all the evidence presented at the 

hearing which is relevant to Devin’s best interests. Additional 

evidence relevant to our analysis was presented during the second half of the termination hearing, when the court conducted 

a permanency hearing for Donald.

In the State’s factual basis, it specifically stated that Devin’s 

caseworker would testify that “it was in the best interest due to 

the length of time that [Candice and Devin] did not have contact, as well as the lack of progress being made.”

During the permanency hearing, the State entered several 

exhibits, including the DHHS court report signed 3 days before 

the hearing. In an update from December 2017, the DHHS 

court report stated that Candice had been meeting with the 

caseworker and that Candice “[had] not started visiting with 

the boys yet as there are concerns with her visiting them when 

she has been out of the picture for 2 years now. Therapeutic 

visits are looking into being set up.” In February 2018, Candice 

began weekly therapy with Donald and therapy every other 

week with Devin. Since that time, Candice had consistently 

participated in therapy with the children.

In the DHHS court report, it recommended that the court 

adopt the case plan and court report. DHHS stated that in 

regard to Donald and Devin, “[f]air progress is being made 

to alleviate the causes of out-of-home placement.” It further 

stated that “[t]he primary permanency plan of Reunification is 

being achieved by [December 2018].” It recommended that the 

court adopt a permanency objective of reunification concurrent 

with adoption for both Donald and Devin.

During the permanency hearing, the parties discussed the 

improvements in Candice’s life. Candice was employed and 

15 Hotz v. Hotz, 301 Neb. 102, 917 N.W.2d 467 (2018).
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had a one-bedroom home. And all of her drug tests had come 

back negative. Additionally, she purchased “shoes, clothes, 

a phone, and [gave] the boys money . . . to assist with 

their care.”

The court remarked that it was “impressed with where 

[she was] today” and how she “kind of def[ied] odds here.” 

The juvenile court ordered a permanency objective of reunification concurrent with guardianship for Donald. It further 

ordered that Candice shall have supervised visitation with 

Donald.

(ii) Case Law

In In re Interest of Zanaya W. et al.,

16 the father admitted to 

the statutory ground for termination and that termination was 

in the children’s best interests. The juvenile court relied upon 

the State’s factual basis. The father was convicted of possession with intent to distribute marijuana and sentenced to 3 to 5 

years’ imprisonment. While incarcerated, he was convicted of 

third degree assault and sentenced to an additional 120 days’ 

imprisonment. The father had admitted he used marijuana on 

a daily basis when the children were in his care, custody, and 

control. The caseworker would testify that termination was in 

the children’s best interests, “because [the father] was not able 

to provide permanency for them.”17

On appeal, the father asserted that the court relied extensively on his incarceration and that thus, the factual basis was 

insufficient. We discussed that the factual basis did not rely 

solely on incarceration. We reasoned that the juvenile court 

relied on the crimes committed, length of incarceration, prior 

drug use, length of time the children were in DHHS custody, 

and prospective testimony to find that the factual basis supported termination. We affirmed the termination of the father’s 

parental rights.

16 In re Interest of Zanaya W. et al., supra note 10.

17 Id. at 30, 863 N.W.2d at 811.
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In In re Interest of Brooklyn T. & Charlotte T.,

18 the mother 

challenged the sufficiency of the factual basis to support 

her admissions for termination of her parental rights to both 

children. The State’s factual basis stated that the older child 

was removed from the mother’s home a year prior to the petition for termination, the mother failed to follow through with 

court-ordered services, and she did not rectify her drug use 

when her younger child was born. Also, the State recited that 

the family permanency specialist would testify that termination would be in the children’s best interests because of the 

mother’s history with DHHS and the services provided but not 

utilized. The juvenile court terminated the mother’s parental 

rights to both children.

The Court of Appeals there reasoned that the factual basis 

was sufficient to support both the statutory ground for termination and the best interests of the children. In its best interests analysis, it examined the additional evidence presented 

during the hearing. An exhibit contained an affidavit by the 

family permanency specialist stating that the mother had over 

16 intakes with DHHS, the mother relinquished her parental 

rights to another child, and she used methamphetamine while 

pregnant with her younger child. The mother made no efforts 

to regain custody of the older child. She was discharged 

unsuccessfully from family support services, and she did not 

participate in court-ordered drug or psychological evaluations. 

It reasoned that because of her history with DHHS and her 

failure to address the initial concerns that led to the children’s 

removal, there was a sufficient factual basis to support the 

best interests admission. The Court of Appeals affirmed the 

juvenile court’s judgment. But there, the Court of Appeals 

was not presented with evidence contradicting the State’s factual basis.

18 In re Interest of Brooklyn T. & Charlotte T., supra note 11.
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(iii) Application

Although the State did not have to prove the admissions by 

clear and convincing evidence, we must examine whether there 

was a sufficient factual basis to support that it was in Devin’s 

best interests to terminate Candice’s parental rights. After a 

de novo review of the entire record, we conclude that there 

was not.

The record shows that Donald and Devin were identical 

in their relationship with Candice. In light of the record, the 

Court of Appeals’ statement that Candice did not have contact with Devin but did maintain contact with Donald was 

not accurate. For 2 years prior to the motion to terminate, 

both children did not have contact with Candice. In February 

2018, both children began therapy with Candice and continued 

regularly until the hearing. Candice provided the children with 

money, clothing, and shoes for their care. In the DHHS case 

report, it stated that “[f]air progress [was] being made” and 

that reunification was supposed to be achieved by December 

2018. Unlike In re Interest of Brooklyn T. & Charlotte T.,

19 the 

additional evidence presented did not support the factual basis. 

The record failed to show a contrast in Candice’s relationship 

with Donald and Devin to support that Devin’s best interests 

favored termination while Donald’s did not.

Further, the record shows Candice’s progress toward reunification with both children. In addition to the facts discussed earlier, Candice successfully completed a substance abuse treatment program, she was attending therapy by herself and with 

each child, her drug tests were all negative, she had legal and 

steady income, and she had suitable housing. We cannot ignore 

the substantial progress made by Candice. And neither did the 

juvenile court when it remarked on how she “kind of def[ied] 

odds here.” Unlike In re Interest of Zanaya W. et al.,

20 there 

19 Id.

20 In re Interest of Zanaya W. et al., supra note 10.
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is little recent evidence to support a persistent lack of effort 

toward reunification by the parent. Candice’s relationships 

with both children had progressed enough that the DHHS court 

report recommended reunification as the primary objective for 

both children. The record does not support the recitation that 

there was a “lack of progress being made” by Candice.

The children are so factually indistinguishable that the State 

could have interchanged the children’s names and reached the 

same result. There was no evidence presented, either before 

or after the court terminated Candice’s parental rights, that 

showed how or why the children differ in their relationship 

with Candice. Nor was there any evidence presented as to why 

Candice’s rights to Devin were terminated but as to Donald 

they were not.

At oral argument, the State forthrightly explained that due to 

Donald’s age, he would have to consent to an adoption, but that 

Devin was below the age requiring such consent. This reason 

was insufficient to establish that termination of parental rights 

was in the younger child’s best interests. Although there are 

cases where termination is in the best interests of one sibling 

and not another,21 this is not one of them.

Based upon our de novo review of the entire record, we 

conclude that the factual basis was insufficient to support that 

it was in Devin’s best interests to terminate Candice’s parental 

rights. Accordingly, the Court of Appeals erred in affirming 

the termination of Candice’s parental rights to Devin.

2. Voluntary Relinquishment

Candice argues that the juvenile court erred in accepting 

her admissions as a voluntary relinquishment. The “plea deal” 

entered between the parties conditioned the termination of 

parental rights to be treated as a voluntary relinquishment. At 

oral argument, the State conceded that its representation of 

21 See In re Interest of Justin H. et al., 18 Neb. App. 718, 791 N.W.2d 765 

(2010). 
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the proceeding as a “relinquishment” would not be binding 

on the State in other counties. Nor, perhaps, might it bind a 

future county attorney in the same county.

[8] We think that the mixing of terminology in this way is 

fraught with danger. As a statutorily created court of limited 

and special jurisdiction, a juvenile court has only such authority as has been conferred on it by statute.22 Under the adoption 

statutes, a voluntary relinquishment is effective when a parent 

executes a written instrument and DHHS or an agency, in writing, accepts responsibility for the child.23 Under the Nebraska 

Juvenile Code, termination of parental rights is determined by 

judicial action.24 Although the practical result may be similar, 

the mechanisms and effects of those procedures are different 

and should be treated so. We discourage the practice of characterizing termination and relinquishment interchangeably. The 

juvenile court should be careful to follow the statutory authority conferred upon it and not to confuse the proceedings by 

inaccurate or incomplete descriptions.

VI. CONCLUSION

We conclude that the factual basis was insufficient to support 

that termination of Candice’s parental rights was in Devin’s 

best interests. We reverse the decision of the Court of Appeals 

and remand the cause to that court with directions to reverse 

the judgment of the juvenile court and remand the cause 

to the juvenile court for further proceedings consistent with 

this opinion.

Reversed and remanded with directions.

22 In re Interest of Gabriela H., 280 Neb. 284, 785 N.W.2d 843 (2010). 

23 See Neb. Rev. Stat. §§ 43-104(2) and 43-106.01 (Reissue 2016).

24 See Neb. Rev. Stat. § 43-293 (Reissue 2016).