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Nebraska Court of Appeals Advance Sheets

30 Nebraska Appellate Reports

IN RE INTEREST OF BRELYNN E.

Cite as 30 Neb. App. 723

In re Interest of Brelynn E., a child 

under 18 years of age.

State of Nebraska, appellee, v. 

Cindy E., appellant.

___ N.W.2d ___

Filed March 15, 2022. No. A-21-166.

1. 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.

2. Appeal and Error. An appellate court will not consider an issue on 

appeal that was not presented to or passed upon by the trial court.

3. Pleadings: Parental Rights. The purpose of an exception hearing is 

to determine whether the State may be excused from the mandatory 

requirement of Neb. Rev. Stat. § 43-292.02(1) (Cum. Supp. 2020) that it 

file a petition to terminate parental rights under certain circumstances.

4. ____: ____. Under certain circumstances, the State is generally required 

to file a petition to terminate the parental rights of a child’s parents, 

subject to the outcome of an exception hearing.

5. ____: ____. If a court determines that a statutory exception under Neb. 

Rev. Stat. § 43-292.02 (Cum. Supp. 2020) does not exist, then the State 

is required to file a petition to terminate parental rights.

6. ____: ____. If a statutory exception under Neb. Rev. Stat. § 43-292.02 

(Cum. Supp. 2020) exists, then the State is not required to file a petition 

to terminate parental rights but may do so anyway.

7. Juvenile Courts: Parental Rights. For a juvenile court to terminate 

parental rights under Neb. Rev. Stat. § 43-292 (Reissue 2016), it must 

find that one or more of the statutory grounds listed in this section have 

been satisfied and that such termination is in the child’s best interests.

Nebraska Supreme Court Online Library

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

03/22/2022 08:06 AM CDT
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IN RE INTEREST OF BRELYNN E.

Cite as 30 Neb. App. 723

8. Parental Rights: Proof. Neb. Rev. Stat. § 43-292(7) (Reissue 2016) 

allows for termination of parental rights when a juvenile has been in 

an out-of-home placement for 15 or more months of the most recent 22 

months. It operates mechanically and, unlike the other subsections of 

the statute, does not require the State to adduce evidence of any specific 

fault on the part of a parent.

9. Parental Rights. The proper application of Neb. Rev. Stat. § 43-292(7) 

(Reissue 2016) consists of counting the most recent 22 months preceding the filing of the petition to terminate parental rights, followed by 

counting how many of those 22 months the child was in out-of-home 

placement.

10. Parental Rights: Proof. Neb. Rev. Stat. § 43-292 (Reissue 2016) provides 11 separate conditions, any one of which can serve as the basis 

for termination of parental rights when coupled with the evidence that 

termination is in the best interests of the child.

11. ____: ____. In addition to proving a statutory ground, the State must 

show that termination of parental rights is in the best interests of 

the child.

12. Parental Rights: Words and Phrases. The term “unfitness” is not 

expressly used in Neb. Rev. Stat. § 43-292 (Reissue 2016), but the concept is generally encompassed by the fault and neglect subsections of 

that statute, and also through a determination of the child’s best interests.

13. Constitutional Law: Parental Rights: Words and Phrases. In the 

context of the constitutionally protected relationship between a parent 

and a child, parental unfitness means a personal deficiency or incapacity 

which has prevented, or will probably prevent, performance of a reasonable parental obligation in child rearing and which caused, or probably 

will result in, detriment to the child’s well-being.

14. Parental Rights: Parent and Child. In proceedings to terminate parental rights, the law does not require perfection of a parent; instead, courts 

should look for the parent’s continued improvement in parenting skills 

and a beneficial relationship between a parent and a child.

Appeal from the County Court for Buffalo County: John P. 

Rademacher, Judge. Affirmed.

Michele J. Romero, of Stamm Romero & Associates, P.C., 

L.L.O., for appellant.

Patrick M. Lee, Deputy Buffalo County Attorney, for 

appellant.
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Nebraska Court of Appeals Advance Sheets

30 Nebraska Appellate Reports

IN RE INTEREST OF BRELYNN E.

Cite as 30 Neb. App. 723

Jennifer N. Rowling, guardian ad litem.

Moore, Bishop, and Arterburn, Judges.

Arterburn, Judge.

INTRODUCTION

Cindy E. appeals from the order of the county court for 

Buffalo County, sitting as a juvenile court, which terminated 

her parental rights to her child Brelynn E. Based on the reasons 

that follow, we affirm.

BACKGROUND

Cindy is the biological mother of Brelynn, who was born 

in August 2015. Cindy has two older children, one of whom 

resides with his paternal grandparents after she voluntarily 

relinquished her parental rights to him and the other of whom 

has been placed in a guardianship as a result of a prior juvenile court case involving Cindy. These two children were not 

involved in the present juvenile court proceedings and, as a 

result, are not part of this appeal. In addition, the fathers of 

Cindy’s other children were not involved in the juvenile court 

proceedings below and are not part of this appeal. Wesley E. 

is the father of Brelynn; however, he relinquished his parental 

rights to Brelynn on September 28, 2020, during the course of 

the termination trial.

Brelynn has been removed from Cindy’s care by the 

Department of Health and Human Services (the Department) 

on two occasions prior to the filing of the present case. Cindy 

had a voluntary case with the Department in May 2016, following reports that Wesley sexually assaulted Brelynn. Wesley was 

ultimately convicted of sexually assaulting Brelynn when she 

was approximately 9 months old. Brelynn was not in Cindy’s 

care for approximately 1 week. In June 2017, Brelynn was again 

removed from the home. She was returned to Cindy’s home 

in December 2017, but remained in the Department’s legal 

custody until June 2018. This removal was due to concerns 
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IN RE INTEREST OF BRELYNN E.

Cite as 30 Neb. App. 723

regarding Cindy’s mental health and regarding Cindy’s leaving 

Brelynn with inappropriate caregivers, including Cindy’s sister, 

whose husband was a registered sex offender.

Because of the concerns about Cindy’s mental health, the 

Department contacted Dr. John Meidlinger, a licensed clinical psychologist, to complete an evaluation in July 2017. 

Meidlinger diagnosed Cindy with adjustment disorder, anxious 

mood, and post-traumatic stress disorder, as well as a personality disorder with narcissistic and avoidant features. In his 

evaluation, he expressed that he would want to see stability in 

all aspects of Cindy’s life before he felt that Brelynn should be 

placed with Cindy again. Specifically, he noted that if Cindy 

did not have mental health stability and regulation in place, 

Brelynn would not be able to trust Cindy and would develop 

patterns of codependency. In addition, in his opinion, Brelynn 

could become “[an] easy target[] for unscrupulous peers and 

adults.” According to Meidlinger, Cindy would continue to 

struggle with her mental health unless she worked more than 

once a week on identifying and implementing coping strategies 

for her mental health. In his opinion, Cindy does not have an 

ability to experience adversity and then turn the adversity into 

a useful path forward. He believes that it would be useful for 

her to be placed in a 24-hour inpatient facility to teach her the 

emotional skills that she needs. In addition, he expressed that 

part of Cindy’s narcissistic tendencies would be to seek excessive medical attention for a child as a way of getting attention 

for herself.

Meidlinger noted his concerns about Cindy’s parenting ability. His evaluation noted that Cindy continued to see Wesley 

after she was convinced Wesley was sexually abusing Brelynn 

and that Cindy went on to have another child with Wesley. 

Meidlinger testified that Cindy felt “justified” in leaving 

Brelynn in the care of her sister and brother-in-law, despite 

her brother-in-law’s also being a registered sex offender. 

Meidlinger observed Cindy with Brelynn and observed that 

Cindy did not engage well with Brelynn. He testified that 
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IN RE INTEREST OF BRELYNN E.

Cite as 30 Neb. App. 723

Cindy did not know “how to create space and interact with 

[Brelynn].” He also noted that Cindy could not manage minor 

tasks with Brelynn. Meidlinger expressed his concern that 

when Cindy and Brelynn were at his office, Cindy did not 

escort Brelynn to his office, despite Brelynn’s previously being 

sexually assaulted by a male. He also observed that Cindy did 

not appropriately interact with Brelynn in the way that she 

talked with Brelynn and did not know how to structure playtime with Brelynn. He was concerned about Cindy’s ability to 

make good judgments about Brelynn.

Despite the involvement of the Department in Cindy’s and 

Brelynn’s lives from 2016 to 2018, it was the death of Cindy 

and Wesley’s other child, Kamdyn W., which precipitated the 

current case. Kamdyn was born in September 2018. When 

Kamdyn was approximately 2 months old, he suffered from 

a cold. Kamdyn was sleeping on a “Boppy” style pillow in 

Cindy’s bed, at a 45-degree angle, due to his cold, and he 

rolled off of the pillow onto his stomach. He was transported to 

the emergency room in an unresponsive condition. The cause 

of death was determined to be asphyxiation.

Dr. Angela Kratochvil-Stava, a pediatrician who treated 

both Brelynn and Kamdyn, testified about the instructions she 

gave to Cindy about safe sleep for babies. She explained that 

after a baby is born, the parents are required to watch videos 

on safe sleep for babies. She testified that these videos instruct 

parents on the appropriate way for a baby to sleep, specifically 

that the baby is to be placed on his or her back in his or her 

own bed. Kratochvil-Stava further testified that if a baby has 

a cold, she advises the parents that the baby should remain 

on a firm mattress but that the head can be elevated by lifting 

up the mattress about 15 to 20 degrees by placing something 

underneath one end. Kamdyn suffered a cold when he was 

approximately 2 months old. Cindy told the officers investigating the death that her doctor had instructed her to have 

Kamdyn sleep on a “Boppy” style pillow due to his cold and at 

a 45-degree angle. According to Cindy, one night, when he was 
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IN RE INTEREST OF BRELYNN E.

Cite as 30 Neb. App. 723

sleeping on this style of pillow, he rolled off of the pillow onto 

his stomach, which resulted in his death. Kratochvil-Stava 

denied advising Cindy to use this style of pillow to prop 

Kamdyn up.

As part of the investigation of Kamdyn’s death, law enforcement investigated Cindy’s residence. Harley Amy, an investigator with the Buffalo County sheriff’s office, observed that there 

were prescription medications in bottles, as well as loose medications, within Brelynn’s reach. He testified that there was a 

bassinet in Cindy’s bedroom; however, the bassinet was full of 

items, including a basket of prescription medications and toys. 

In addition, there was cough medicine spilled in the bassinet 

that had not been cleaned up. He also observed that there was 

mold growing on items in the kitchen and that the residence 

smelled of feces and urine. Amy authored an affidavit requesting removal of Brelynn based on the uncleanliness of the home 

and Kamdyn’s death. The affidavit also noted that Brelynn had 

been previously sexually abused.

On November 6, 2018, the State filed a petition requesting that Brelynn be adjudicated as a juvenile under Neb. Rev. 

Stat. § 43-247(3)(a) (Reissue 2016). The State asserted that 

Brelynn had previously been in the care and custody of the 

Department from June 2017 to June 2018 following reports of 

Cindy’s inability to leave Brelynn with appropriate caretakers, 

an unsanitary home, and Cindy’s mental health issues which 

placed Brelynn at risk of harm. In addition, it was noted that 

Brelynn had been previously sexually assaulted by Wesley.

Brelynn was removed from Cindy’s residence and was 

placed with her maternal grandmother, Carol Gaedeke, in 

November 2018. However, after approximately 10 days, 

Gaedeke requested that Brelynn be removed from her home. 

According to Gaedeke, she requested that Brelynn be removed 

in part due to conflict she was experiencing with Cindy along 

with the grief she was experiencing due to Kamdyn’s death. 

The Department then placed Brelynn into foster care. After a 

couple of shorter-term placements, Brelynn was placed with 
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IN RE INTEREST OF BRELYNN E.

Cite as 30 Neb. App. 723

a foster family in July 2019 who would consider providing a 

permanent home for Brelynn, should that be necessary. Later, 

on April 4, 2019, Gaedeke wrote an email to the court requesting that if Cindy’s parental rights to Brelynn were to be terminated and Brelynn was to be adopted, Gaedeke would want 

to be considered for her adoption. The court noted that it did 

not consider or review the email and forwarded the email to 

the attorneys. Although Brelynn lived in more than one foster 

home, she was not again placed with Gaedeke; nor did she 

return to Cindy’s care. Cindy continued to have supervised 

visits with Brelynn throughout the pendency of the case.

On March 9, 2020, Cindy filed a motion for an exception. 

She asked for the court to grant her an exception to the State’s 

duty to file a petition for termination of parental rights under 

Neb. Rev. Stat. § 43-292.02(3)(b) (Cum. Supp. 2020). She 

asserted that although more than 15 months had passed since 

Brelynn was in the care of a nonrelative, she had not had a 

reasonable opportunity to avail herself of the services deemed 

necessary in the case plan. The court did not hold a hearing on 

Cindy’s motion.

Two days later, on March 11, 2020, the State filed a motion 

for termination of Cindy’s parental rights. The State alleged that 

Brelynn had been in the care and custody of the Department 

since November 2018. The State asserted that Brelynn had 

been previously removed from Cindy’s care from May 26 until 

May 31, 2016, and June 2017 until December 2017. The State 

asserted that the grounds for termination of Cindy’s parental 

rights were based on Neb. Rev. Stat. § 43-292(5), (6), and (7) 

(Reissue 2016). The State alleged that Cindy was unable to 

discharge her parental responsibilities because of mental illness 

or mental deficiency and that there were reasonable grounds 

to believe that this condition would continue for a prolonged 

indeterminate period; that reasonable efforts to preserve and 

unify the family had failed to correct the conditions; and that 

Brelynn had been placed in an out-of-home placement for 15 

or more months of the most recent 22 months. On June 1, 
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IN RE INTEREST OF BRELYNN E.

Cite as 30 Neb. App. 723

2020, Gaedeke filed a complaint to intervene, stating that she 

wished to have permanent placement of Brelynn if Cindy’s 

parental rights were terminated.

Trial on the motion for termination began on September 10, 

2020, and continued for 6 days over the next few months, ending on December 10. Numerous witnesses testified, including 

Meidlinger, Kratochvil-Stava, Gaedeke, and Amy. In addition, 

Cindy testified. We note that when Amy testified at trial, Cindy 

objected, citing the doctrine of oneness and affinity, because 

he was married to the State’s prosecuting attorney. She argued 

that Amy’s testimony should be stricken. The court overruled 

the motion. Several other mental health practitioners and caseworkers, as well as Brelynn’s foster parents, also testified. In 

addition to the testimony recounted earlier, the following evidence germane to our decision was adduced:

Samantha Keim, a child and family services specialist with 

the Department, testified that the Department received a phone 

call regarding an unresponsive child in Cindy’s home. During 

the course of the Department’s investigation, investigators 

learned that the house was not clean, that there were medications within reach of Brelynn, and that further concerns existed 

regarding Cindy’s mental health. Keim explained that after 

Brelynn was removed from the home for the third time, in 

November 2018, it was determined that the initial goal of the 

case should be reunification. Keim testified that the uncleanliness of the home was alleviated and that the concerns for 

Cindy’s mental health were not “as extreme at that point.” 

However, she also testified that Cindy’s actions prevented 

reunification from occurring. Keim explained that in January 

2019, Cindy and her boyfriend at the time, Nathan Wheeler, 

began yelling and using profanities toward visitation supervisors. Another incident occurred in March 2019 in which law 

enforcement had to be called. Keim explained that the visitation worker requested Cindy to put Brelynn into a car seat and 

to adjust the car seat. Keim explained that Cindy then noticed 

the car seat was not attached and pushed the car seat, which 
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IN RE INTEREST OF BRELYNN E.

Cite as 30 Neb. App. 723

made Brelynn fall into the back of the driver’s seat. Cindy and 

Wheeler began yelling at the worker. Keim explained that law 

enforcement was called because Cindy and Wheeler refused 

to give Brelynn back to the visitation worker. The Department 

made a determination, based in part on these incidents, that 

Cindy needed to demonstrate an ability to act respectfully 

and to appropriately communicate with others in a moment 

of crisis.

Brelynn worked with Jordan McCoy, a child, adolescent, and 

family counselor, beginning in August 2017, prior to the start 

of the current county court proceedings. After the start of the 

proceedings, from November 2018 until March 2019, McCoy 

saw Cindy and Brelynn for child-parent psychotherapy (CPP). 

McCoy explained that CPP is a therapy that focuses on the relationship between a child and a caretaker and how the parent’s 

mental health impacts this relationship. McCoy observed that 

Brelynn struggled with anxiety, a heightened amount of worries, and emotional dysregulation. In addition, Brelynn’s social 

and emotional development was lagging. McCoy also observed 

that Brelynn would attempt to control situations because she 

did not feel safe. She provided an example, that Brelynn would 

attempt to control getting her shoes on and what she wanted to 

eat. McCoy diagnosed Brelynn with other specified trauma and 

a stressor-related disorder. McCoy also explained that Brelynn 

presented with significant symptoms related to the trauma that 

arose from Wesley’s sexual abuse, as well as neglect and insecure attachment patterns with respect to Cindy.

McCoy observed how Cindy’s mental health affected 

Brelynn. In McCoy’s opinion, Brelynn initially believed that 

adults were not safe or consistent. McCoy testified that when 

Cindy was consistent, Brelynn’s symptoms would improve, 

but that when Cindy was not consistent, Brelynn would struggle. McCoy also explained that after the death of Kamdyn, 

Brelynn’s mental health was linked to Cindy’s mental health, 

such that when Cindy would have a good mental health day, 

Brelynn would have a better mental health day. McCoy also 
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IN RE INTEREST OF BRELYNN E.

Cite as 30 Neb. App. 723

observed that Brelynn’s emotional needs were not being consistently met. McCoy testified that when Cindy’s mental health 

was not good, Brelynn would take on the role of caretaker in a 

role reversal. McCoy did witness progress with Cindy’s mental 

health at times but found that it was not consistent. McCoy 

testified that although Cindy reported that she had taken parenting classes multiple times, she struggled with implementing 

the concepts she learned on a consistent basis. Cindy’s ability 

to parent and implement what she learned was dependent on 

her mental health. Cindy stopped seeing McCoy in March 2019 

after McCoy needed to redirect Cindy multiple times to focus 

on Brelynn’s needs as opposed to Cindy’s needs.

Keim contacted Thomas Maxson, a mental health therapist, 

about Cindy’s beginning individual therapy in March 2019. 

Cindy testified that she did not like to work with Maxson 

because Maxson previously worked with Wesley and she did 

not believe his therapeutic style was beneficial to her. Maxson 

testified that Cindy told him that he was too intrusive and 

intense; however, Maxson also explained that this opinion 

arose only after he told Cindy his concerns about her moving 

to Hershey, Nebraska, in 2019, which would have required 

her to change providers and the effects that change may have 

regarding custody of Brelynn.

Maxson diagnosed Cindy with major depressive disorder, 

borderline personality disorder, and post-traumatic stress disorder. Maxson explained that borderline personality disorder 

is characterized by emotional dysregulation when relationships 

are cyclical between things going well one day and poorly 

the next. He also explained that typically, people who suffer 

from borderline personality disorder often have suicidal and 

self-harm ideation, difficulties with maintaining relationships, 

and emotional upheaval. Maxson reported that these disorders 

usually exist on a continuum and can be actively managed 

through work and application of what was learned in dialectical 

behavioral therapy (DBT). DBT is a specific type of intervention specifically created for people with suicidal ideation and 
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IN RE INTEREST OF BRELYNN E.

Cite as 30 Neb. App. 723

for people with borderline personality disorder. According to 

Maxson, DBT focuses on the skill deficits found in persons 

who suffer from borderline personality disorder. The therapeutic process is designed to teach the patient emotional regulation 

skills, interpersonal effectiveness in how to ask for what the 

patient needs, distress tolerance skills, and tolerating strong 

emotion without causing harm, in addition to mindfulness 

skills. Cindy provided a letter to Maxson in June 2019 that she 

would no longer work with him.

Cindy began attending DBT with Jamie Babutzke, another 

mental health therapist, in April 2019. Babutzke diagnosed 

Cindy with major depressive disorder, recurrent; post-traumatic 

stress disorder; and borderline personality disorder. Babutzke 

testified that Cindy attended the DBT sessions and attempted 

to use what she learned in her everyday life, but Babutzke 

noted that it was a “process.” Babutzke explained that Cindy’s 

mental health would be cyclical, where she would have periods 

when she would do very well and periods that would not go 

as well. Babutzke observed in Cindy what she described as a 

“pervasive pattern of instability in interpersonal relationships, 

self-image, and impulsivity.” She also observed “recurrent suicidal behavior, gestures, and threats” that affected her instability due to “marked reactivity of mood, and trouble controlling 

anger.” She conceded that in the period nearest trial, Cindy 

had been less able to use the skills from DBT than she had in 

the past.

Babutzke stated that she has not observed Cindy with her 

children and that her reports are based only on interactions 

with Cindy, visitation notes from the Department, and collateral contacts. She testified that she had conversations with 

Samantha Byrns, a therapist whom Cindy and Brelynn also 

worked with at the time, about addressing grief and loss so 

that Byrns could have more effective CPP with Cindy and 

Brelynn. After reviewing visitation notes, Babutzke conceded 

that Cindy had not provided emotional safety to Brelynn on 

several occasions.
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IN RE INTEREST OF BRELYNN E.

Cite as 30 Neb. App. 723

Byrns, a therapist who specializes in trauma treatment, also 

treated Cindy and Brelynn and engaged in CPP with them 

beginning in September 2019. Cindy and Brelynn had switched 

providers after ending the relationship with McCoy. However, 

Byrns testified that there were numerous delays in starting 

CPP. Byrns believed that Cindy did not trust her and that as a 

result, Cindy did not complete an initial interview in a timely 

fashion. According to Byrns, Cindy wanted Byrns neither to 

have access to the Department’s case file and intake form 

nor to communicate with the Department. Byrns testified that 

Cindy frequently wanted to discuss personal issues with Byrns 

which prevented them from completing CPP. Byrns expressed 

her concerns that the issues that Meidlinger pointed out 3 years 

earlier were still present.

Dr. Narayana Koduri, a psychiatrist, began seeing Cindy 

in January 2020. Koduri diagnosed Cindy with post-traumatic 

stress disorder, major depressive disorder, and borderline personality disorder. According to him, Cindy had a psychiatric 

appointment approximately once per month and based on his 

observations of the refill records, Cindy was taking her medicine appropriately. He acknowledged that Cindy had 15 prior 

hospitalizations due to mental health issues. While under his 

care, Cindy was twice hospitalized in 2020, which hospitalizations, in his opinion, were linked to grief- or stress-related 

responses by Cindy. He noted that although it was concerning 

that Cindy’s condition had on those occasions deteriorated 

to the point of requiring hospitalization, he was encouraged 

that Cindy recognized when she was experiencing symptoms, 

which prompted her to seek inpatient help.

Kratochvil-Stava testified as to Cindy’s parenting when 

Brelynn was younger. She explained that when Brelynn was 

9 months old, she would need to cough a lot, and KratochvilStava’s observation was that Cindy and Wheeler were very 

aggressive to get these “cough[s] out.” Kratochvil-Stava 

testified that when Brelynn would cough while seated in 

her car seat, Cindy and Wheeler would flip the car seat 
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IN RE INTEREST OF BRELYNN E.

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over to get her “to cough out whatever was bothering her.” 

Kratochvil-Stava expressed some concerns over whether there 

was proper supervision of Brelynn, because Brelynn needed to 

get stitches after falling out of bed and suffered a burn from 

touching a hot stove. Kratochvil-Stava also spent significant 

time educating Cindy on what a healthy genital area looks like, 

because Cindy asked Kratochvil-Stava to conduct an anatomy 

check each time Cindy brought Brelynn in.

There was significant testimony regarding Cindy’s taking 

Brelynn to excessive doctor appointments. Keim observed that 

Cindy took Brelynn to the doctor very often for small things 

and that often, the doctor would report that there was nothing 

wrong. S.C., a foster parent for Brelynn, testified that during 

the 7 months Brelynn was in her care, Brelynn had 14 different doctor appointments, mostly regarding holding her stool. 

Another foster parent, K.W., believed that the number of doctor appointments that Cindy scheduled for Brelynn was excessive. According to both of these foster parents, Brelynn would 

struggle with attending doctor and dentist appointments only if 

Cindy was also there. At doctor appointments, S.C. observed 

Cindy express anger about issues that affected only Cindy and 

were not relevant to Brelynn. All of the foster parents testified 

that Cindy was not accurate in the reporting of health issues 

to Brelynn’s doctor. Cindy would often give accounts regarding Brelynn’s health conflicting with the reports given by the 

foster parents.

Brelynn had constipation issues that necessitated doctor 

appointments for her. Kratochvil-Stava testified that she treated 

Brelynn with oral medication for constipation but that it was 

often insufficient. At one point, Brelynn would need either 

to take a suppository or to undergo an invasive procedure at 

the hospital. S.C. and her husband were able to give Brelynn 

a suppository without any issues. However, Cindy was not 

able to do so, because Brelynn became agitated. Cindy called 

Kratochvil-Stava and stated that there would be no more suppositories for Brelynn. Because Cindy did not want to go 
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IN RE INTEREST OF BRELYNN E.

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forward with the suppository, Brelynn needed to undergo an 

invasive procedure. Before the procedure, Brelynn needed 

to drink a certain liquid medicine that children are typically 

not able to drink. Kratochvil-Stava explained that if a child is 

unable to drink the medicine, a tube would need to be inserted 

that would run from the child’s nose to the child’s stomach. 

Brelynn was able to drink the medicine after Cindy was able 

to convince her. Kratochvil-Stava opined that the constipation 

issues were behavioral issues that had to do with Brelynn’s 

controlling when she would stool. These issues largely resolved 

during periods when visitation was suspended.

Both the caseworkers assigned to the case and the foster 

parents who testified reported that Cindy had difficulties being 

honest with them. Keim testified that she could not determine 

if information she received from Cindy about her mental health 

appointments and Brelynn’s medical condition was truthful or 

accurate. Keim needed to contact the provider to confirm the 

accuracy of information provided. She testified that information she received from Cindy was often not accurate. Hope 

Holmes, a child and family services specialist employed with 

the Department, testified that during the time she was assigned 

to the case, Cindy had difficulties maintaining honesty with 

the Department.

The caseworkers employed with the Department had difficulties working with Cindy throughout the case. Keim had 

negative interactions with Cindy, including that Cindy would 

yell at her, would call her supervisor to complain, and was dishonest with her. Holmes also explained that there were a number 

of visitation workers assigned to the case because the workers 

reported difficulties in working with Cindy. She also explained 

that Cindy would make complaints to the Department about 

caseworkers which would also necessitate changing the workers involved with Cindy. Holmes also explained that she spent 

time encouraging Cindy and the foster parents to be able to 

communicate with each other, but was not successful.
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There were concerns expressed about Cindy’s ability to 

lead a stable lifestyle. From July 2019 until the time of trial, 

Cindy had five different jobs. At times, she worked very few 

hours per week, while at other times, she worked full time. 

Cindy accounted for the frequent changes by saying that she 

was prioritizing her visits with Brelynn as opposed to working. Holmes testified that Cindy’s pattern with parenting was 

also one of instability. She noted that when the Department 

worked with Cindy in 2017, there were concerns regarding the 

cleanliness of the house, and that the cleanliness of the house 

was also an issue in 2018. Holmes also testified that in her 

opinion, she has concerns about Cindy’s ability to pay her rent 

and bills without relying on community resources. She noted 

that even though Cindy lives in subsidized housing where 

her rent is low, she has still had to seek assistance paying for 

utilities and transportation. Holmes also expressed concern that 

despite having years of therapy and counseling, Cindy continued to experience events which exacerbated Cindy’s mental 

health struggles.

Holmes also noted that whenever the Department lessened 

its involvement in Cindy’s day-to-day life, her circumstances 

would regress, often back to what things were like before any 

Departmental involvement. Holmes expressed concern that 

Cindy would be unable to maintain long-term stability. She 

noted that Cindy was able to show stability in her mental 

health and employment at various points during the pendency 

of the case, but could not sustain her progress for a significant period.

K.W., one of Brelynn’s prior foster parents, testified as to 

her experience with Cindy and Brelynn. When Brelynn was 

2 years old, she moved into K.W.’s home. K.W. testified that 

Brelynn was fearful and anxious when Brelynn first moved 

into her home and was toilet trained. However, when visitations occurred with Cindy, Brelynn began to have regressions 

with respect to using the restroom. K.W. testified that when 

Brelynn would return from visitations with Cindy, Brelynn 
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was not always fed or clean. K.W. observed that Cindy provided inaccurate information at doctor appointments. In addition, at one doctor appointment when K.W. was the only one 

in the room with Cindy and Brelynn, Cindy told Brelynn, 

“[D]on’t worry, Brelynn, Mommy and Daddy won’t hurt you, 

but someone in this room may.” K.W. testified that soon after 

that, she decided not to be Brelynn’s foster parent any longer 

because she was afraid of Cindy.

S.C. also testified as to her difficulties with Cindy and 

Brelynn. When Brelynn came to live with S.C.’s family, 

Brelynn needed to control her environment. S.C. explained that 

when visits with Cindy stopped, Brelynn’s behavior changed. 

According to S.C., Brelynn was “fixated on whether or not 

Cindy was okay.” S.C. also testified that when Brelynn lived 

with her, Cindy “tried to control our house.” Examples of 

Cindy’s trying to control included stating what diapers to 

use or what milk Brelynn could drink. S.C. also testified that 

Cindy would report to the Department different information 

from the doctor than she in fact received from the doctor. S.C. 

testified that the reason she decided to not continue as a foster 

parent for Brelynn was because she did not want to work with 

Cindy over an extended period of time.

T.J., who was one of Brelynn’s foster parents at the time of 

trial, testified as to her experience with Cindy. Brelynn began 

living with T.J. when Brelynn was 3 years old. When Brelynn 

began living with T.J., Brelynn was “afraid of everything.” 

T.J. testified that Brelynn struggled when she saw Cindy, 

especially with respect to using the restroom. Upon coming to T.J.’s home, Brelynn expressed her desire to be potty 

trained, which was accomplished within a week. However, 

when Brelynn was returned from a visit with Cindy, she 

would be wearing “Pull-ups.” Brelynn would demand to be 

put back into underwear upon her return. T.J. explained that 

she attempted to communicate with Cindy; however, Cindy 

stopped communicating information to her. T.J. also observed 

that Brelynn did not always want to visit with Cindy and that 
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since visitations with Cindy stopped, Brelynn was happier and 

acting better.

Cindy’s mother, Gaedeke, testified as to her relationship 

with Cindy and Brelynn. She explained that she was the 

original placement for Brelynn in November 2018. However, 

she explained that Cindy and she had a “breakdown in communication” where Cindy was attempting to direct Gaedeke 

how to take care of Brelynn. She believed that she was capable 

of taking care of Brelynn. Gaedeke explained that during the 

pendency of the case, she had not been contacted to have 

placement again. She believed that Cindy’s mental health had 

improved through the pendency of the case, and she had no 

concerns about Cindy’s ability to parent Brelynn.

Cindy testified as to her own progress throughout the case. 

She believes that the goals in the present case should be the 

same as those in the last case, which ended in reunification. 

She explained that in her opinion, she has met the goals of having a clean home and healthy relationships. She believes that 

her mental health has greatly improved since she completed 

DBT. She also believes that Koduri is a much better fit for her 

mental health and believes that he has provided “the best med 

management [she had] ever had.” She also explained that she 

has been on medication, consistently, throughout the pendency 

of the case.

Cindy also addressed several issues regarding her mental 

health. She conceded that her first mental-health-related hospitalization occurred when she was 12 or 13 years old. She 

also acknowledged that she has had auditory or visual hallucinations for at least 12 years. She explained that she has had 

numerous therapists or counselors during this case because she 

has, at various points, believed that her right to confidentiality was not being upheld. She also questioned the accuracy of 

some of the reporting to the Department. She explained that 

she stopped seeing McCoy because she did not believe she 

could trust McCoy but then, after transferring CPP to Byrns, 

later requested McCoy to work with her again.
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She acknowledged that she “was horrible” in her behavior 

toward caseworkers and others at the beginning of the case, 

but believes that her mental health has improved. She conceded that she had an anxiety attack in April 2018 leading 

to inpatient treatment. She also conceded that in 2019, she 

became “very depressed and tried to commit suicide” and as a 

result was hospitalized. According to Cindy, she was hospitalized three times in 2020 due to her mental health, with the last 

time occurring in August 2020. Koduri explained that Cindy’s 

hospitalizations were results of suicidal thinking with respect 

to grief reactions. However, Koduri observed that these were 

not suicidal attempts.

Cindy addressed the testimony that she took Brelynn to 

doctor appointments too often. She testified that in her previous case, the Department believed that Cindy was not meeting 

Brelynn’s medical needs adequately. She testified that Keim 

previously told her that “it is better to take your child to the 

doctor and have them tell you that it’s nothing and go home 

than for it to be something and not have taken them in.” She 

also believed that the Department and foster parents were 

ignoring signs and symptoms of Brelynn’s having urinary tract 

infections. According to Cindy, the tests for whether Brelynn 

had such an infection was noninvasive and she would often 

test positive.

Cindy also testified as to the impact of therapy with Brelynn. 

According to Cindy, Brelynn preferred McCoy because the 

style of therapy was more conducive to their relationship. She 

explained that there were a number of cancellations for her 

therapy appointments with Byrns. She explained about an incident where Byrns canceled the day of the appointment, which 

upset Brelynn. Cindy explained that when the COVID-19 pandemic occurred, Byrns was unable to conduct therapy sessions 

because of technology issues. She acknowledged that there 

were difficulties in establishing her relationship with Byrns 

after leaving McCoy as a therapist. However, she believed 

these difficulties were because of Brelynn’s struggles to transition from McCoy to Byrns.
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Cite as 30 Neb. App. 723

On January 29, 2021, the county court entered its extensive order terminating Cindy’s parental rights to Brelynn. The 

court determined that the State presented clear and convincing 

evidence to substantiate terminating Cindy’s parental rights 

pursuant to § 43-292(5), (6), and (7) and that termination was 

in the best interests of Brelynn. The court noted that Cindy’s 

testimony lacked credibility, based on its observations and on 

Cindy’s having admitted to lying to individuals involved in this 

case. The court also noted that numerous witnesses testified as 

to Cindy’s lack of honesty during the case.

The court first determined that the State had proved that 

Cindy is unable to discharge her parental responsibilities to 

Brelynn because of mental illness which will continue for 

a prolonged and indeterminate period. The court found that 

Cindy’s mental health history led her to numerous inpatient 

stays, suicidal thoughts, poor judgment, and abusive and unstable relationships. In so finding, the court noted the expert 

testimony of Meidlinger and several of the therapists who had 

provided counseling to Cindy. It noted their opinions which 

indicated that given the severity of the mental health conditions 

from which Cindy suffers together with her record of being 

unable to sustain long-term progress, meaningful improvement 

of her mental health condition could not be expected.

The court also found that reasonable efforts to preserve and 

unify the family had been made. The court noted that three 

primary goals were identified for Cindy to achieve, those 

being a safe and suitable living environment characterized 

by a clean home and healthy relationships, the maintenance 

of mental health, and the acquisition of the ability to meet 

Brelynn’s needs. The court found that Cindy struggled with 

having healthy relationships, had not maintained stability in 

her mental health, and had not been able to consistently meet 

Brelynn’s needs. The court noted several instances of Cindy’s 

engaging in behaviors contrary to Brelynn’s needs. Therefore, 

despite significant efforts made by the Department to achieve 

reunification, Cindy had not progressed satisfactorily. Finally, 
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the court also found that Brelynn had been placed out of her 

parental home for over 16 of the past 22 consecutive months 

at the time of the State’s filing of the motion for termination 

of parental rights and had remained in out-of-home placement 

since that filing.

The court found that it was in the best interests of Brelynn 

for Cindy’s parental rights to be terminated. The court found 

that Cindy engaged in a pattern of failing to make good decisions for herself and Brelynn. After noting that Brelynn had 

been out of Cindy’s care on three separate occasions, the court 

concluded that Cindy had not shown improvement in her parenting skills and mental health. The court found that Cindy 

had not established a beneficial relationship with Brelynn. The 

court explained that Cindy struggled to compose herself in 

engaging with professionals and that there were concerns she 

did not focus on Brelynn’s needs. The court determined that 

based on the testimony of Brelynn’s therapists, Brelynn’s emotional development and social development were lagging due to 

Cindy’s inability to find mental stability and appropriately prioritize Brelynn’s needs. The court noted the opinions of McCoy 

and Byrns, who testified they believed that Brelynn’s anxiety 

and stressors would resolve with consistent support, but found 

that Cindy was unwilling or unable to provide that support.

Cindy now appeals to this court.

ASSIGNMENTS OF ERROR

Cindy’s assignments of error, consolidated, reordered, and 

restated, are that the county court erred when it denied Gaedeke 

placement of Brelynn during the pendency of the case, when 

it did not hold a hearing on Cindy’s motion for an exception, and when it allowed the testimony of Amy. In addition, 

Cindy assigns that the county court erred when it found that 

the State proved by clear and convincing evidence statutory 

grounds to justify the termination of her parental rights and 

that it was in the best interests of Brelynn for her rights to 

be terminated.
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Cite as 30 Neb. App. 723

STANDARD OF REVIEW

[1] 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. In re Interest of A.A. et 

al., 307 Neb. 817, 951 N.W.2d 144 (2020).

ANALYSIS

Denial of Placement.

Cindy argues that the county court erred in not placing Brelynn with Gaedeke during the pendency of the case, 

because she requested placement of Brelynn and it is the 

Department’s policy to prioritize placement of a child with 

family members.

[2] However, we do not reach this assignment of error upon 

appeal. After Gaedeke had asked for Brelynn to be removed 

from her home, Gaedeke sent an email requesting only that 

she be considered for placement in the event that Cindy’s 

parental rights were terminated. Gaedeke later filed a complaint to intervene; however, her complaint to intervene was 

filed after the State sought termination and reiterated only 

that should Cindy’s rights be terminated, she wished to be 

considered for Brelynn’s permanent placement. She did not 

request temporary placement of Brelynn during the pendency 

of the case, nor did she petition the court for temporary placement. There was no pending motion in front of the county 

court asking the court to consider Gaedeke as a placement for 

Brelynn. As such, the court was never asked to consider placing Brelynn with Gaedeke during the pendency of the proceedings. An appellate court will not consider an issue on appeal 

that was not presented to or passed upon by the trial court. 

In re Guardianship & Conservatorship of J.F., 307 Neb. 452, 

949 N.W.2d 496 (2020). Accordingly, we do not address this 

assignment of error.
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Exception Hearing.

Cindy argues that Brelynn was in the care of the State for 

more than 15 of the most recent 22 months before the State 

filed its petition and that she filed an exception because she 

needed more time to accomplish the goals contained within her 

case plan. She then argues she is entitled to a hearing on her 

motion for an exception under Neb. Rev. Stat. § 43-292.03(1) 

(Reissue 2016). Cindy is correct insofar as she argues that 

the statutory language of § 43-292.03(1) mandates a hearing. 

However, we find no prejudice to Cindy by the court’s not having an exception hearing.

Briefly, we review the relevant statutory language regarding 

an exception hearing. Under subsection (1) of § 43-292.02, a 

petition shall be filed on behalf of the State to terminate the 

parental rights of a juvenile’s parents if a juvenile has been 

in foster care under the responsibility of the State for 15 or 

more months of the most recent 22 months. Subsection (3) of 

§ 43-292.02 provides that the petition is not required to be filed 

if the child is being cared for by a relative; the Department has 

documented in the case plan or permanency plan a compelling reason for determining that filing the petition would not 

be in the best interests of the child; or the family of the child 

has not had a reasonable opportunity to avail themselves of 

the services deemed necessary in the case plan or permanency 

plan approved by the court if reasonable efforts to preserve and 

reunify the family are required.

Section 43-292.03(1) states that within 30 days after the 

15-month period under subsection (1) of section 43-292.02, 

the court shall hold a hearing on the record and shall make a 

determination on the record as to whether there is an exception 

under subsection (3) of § 43-292.02 in the particular case. If 

there is no exception, the State shall proceed as provided in 

subsection (1) of § 43-292.02.

[3-6] The Nebraska Supreme Court has explained that the 

purpose of an exception hearing is to determine whether the 

State may be excused from the mandatory requirement of 
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§ 43-292.02(1) that it file a petition to terminate parental rights 

under certain circumstances. In re Interest of Clifford M. et 

al., 261 Neb. 862, 626 N.W.2d 549 (2001). Under certain circumstances, the State is generally required to file a petition 

to terminate the parental rights of the child’s parents, subject 

to the outcome of the exception hearing. See id. If the court 

determines that a statutory exception does not exist under 

§ 43-292.02, then the State is required to file the petition. See 

id. However, if a statutory exception under § 43-292.01 exists, 

then the State is not required to file the petition but may do 

so anyway. See id. The Supreme Court further explained that 

a parent’s due process rights are not deprived just because an 

exception hearing has not been held. See id. Instead, when there 

is a full opportunity to appear and present defenses at a hearing 

regarding the termination petition, a court does not deprive the 

parent’s due process rights. The court found that although an 

exception hearing may afford a basis for relieving the State of 

its statutory obligation to file a petition to terminate parental 

rights, no language in either § 43-292.02 or § 43-292.03 prevents the State from petitioning to terminate parental rights. 

See In re Interest of Clifford M. et al., supra.

Cindy is correct insofar as there was no exception hearing in 

the present case despite the mandatory directive of the statute. 

However, the State may choose to file the termination petition 

after the 15-month period regardless of the outcome of the 

exception hearing. At the termination trial, the State presented 

evidence that Cindy was unable to make progress on her case 

plan goals despite the length of time the case was pending. 

The State also asserted that termination of Cindy’s parental 

rights was appropriate because Cindy was unable to discharge 

her parental responsibilities due to her mental health or mental 

deficiencies. It is reasonable to infer that even if there was an 

exception hearing and an exception had been found, the State 

would have chosen to file the termination petition rather than 

allow Cindy additional time to work toward reunification. 

Additionally, because, in the present case, there was a full 
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hearing on the termination petition and Cindy had an opportunity to appear and present defenses, Cindy’s due process rights 

were not implicated. Therefore, we find no error in the court’s 

decision not to hold an exception hearing.

Investigator Amy’s Testimony.

Amy testified about the investigation that he and law enforcement conducted with respect to Kamdyn’s death at Cindy’s 

residence. Prior to his testimony, Cindy objected because the 

deputy county attorney prosecuting the case was married to 

Amy. Cindy asserted the doctrine of affinity and oneness as 

a basis for her challenge. The county court took the objection under advisement and allowed Amy to testify. Cindy later 

argued that the basis of her objection was that there was a 

conflict of interest in having the prosecuting attorney question 

her own husband. Cindy argued that Amy’s testimony should 

have been stricken. The court found that the objection to the 

testimony of the witness was not a proper remedy; rather, the 

proper remedy would be a motion to disqualify the prosecutor. 

The court also noted that a motion to disqualify the prosecuting attorney was not made. As a result, the court overruled the 

motion to exclude Amy’s testimony. On appeal, Cindy reiterates her argument that there was a conflict when Amy testified 

while married to the prosecuting attorney. She asserts that the 

court erred when it allowed Amy to testify. However, she now 

asserts in the alternative that the prosecuting attorney should 

have been recused.

The issue of whether the prosecuting attorney should have 

voluntarily recused herself is not properly before us. An appellate court will not consider an issue on appeal that was not presented to or passed upon by the trial court. In re Guardianship 

& Conservatorship of J.F., 307 Neb. 452, 949 N.W.2d 496 

(2020). The initial objection and the argument before the 

county court focused on whether the testimony was admissible. Only upon appeal does Cindy now argue that the prosecuting attorney should have recused herself from the case. 
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Accordingly, we do not address whether there was error in 

that regard.

Cindy does not provide any case law to support her argument that Amy’s testimony was inadmissible due to his relationship with the prosecuting attorney. Our review of the case 

law also does not reveal any authority on this issue. We focus 

on whether Cindy’s due process rights were violated by allowing the testimony of Amy. On the record before us in this case, 

we cannot find that Cindy suffered prejudice based on the evidence adduced. Amy’s testimony focused on the initial encounter with Cindy and an investigation of her residence following 

Kamdyn’s death. This testimony was duplicative of evidence 

received in the form of the Department intake reports that were 

received which detailed the condition of the home and the 

events surrounding Kamdyn’s death. In other respects, it was 

duplicative of the testimony of the pediatrician who testified 

about treating Kamdyn. Therefore, we do not find that Cindy 

was prejudiced by allowing Amy to testify.

We are troubled by the fact that the attorney called her husband to testify as a witness and more troubled by the fact that 

according to the prosecuting attorney’s statements, this is not 

the first case where she has called her husband to testify. The 

Supreme Court has long held that there should not be anything 

in the way of private interest to possibly sway the judgment of 

a prosecutor in prosecuting persons whose guilt is so doubtful or to tempt him or her to depart from a disinterested and 

conscientious discharge of his or her duty. Ress v. Shepherd, 84 

Neb. 268, 120 N.W. 1132 (1909). We also note that as early as 

1993, an ethics advisory opinion for lawyers was issued stating 

that a county attorney whose spouse is a police officer should 

not personally prosecute any case in which his or her spouse 

will be called as a witness. See Neb. Ethics Adv. Op. No. 93-5 

(1993). Given the prosecuting attorney’s statements during the 

case that she has worked on many cases where her husband has 

testified, we note that it would be the better practice for the 
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attorney to recuse herself in such cases in order to foreclose 

any questions of impropriety.

However, pursuant to the specific facts of this case, we do 

not find that there was any prejudicial error to Cindy by virtue 

of the court’s decision to receive Amy’s testimony. Therefore, 

we find this assigned error to be without merit.

Statutory Grounds.

[7] Cindy argues that the county court erred in finding the 

State proved by clear and convincing evidence that statutory 

grounds existed to terminate her rights. For a juvenile court to 

terminate parental rights under § 43-292, it must find that one 

or more of the statutory grounds listed in this section have been 

satisfied and that such termination is in the child’s best interests. In re Interest of Becka P. et al., 27 Neb. App. 489, 933 

N.W.2d 873 (2019). The State must prove these facts by clear 

and convincing evidence. Id.

[8] The county court found that the State presented evidence 

to satisfy § 43-292(5), (6), and (7). Section 43-292(7) allows 

for termination when the juvenile has been in an out-of-home 

placement for 15 or more months of the most recent 22 months. 

It operates mechanically and, unlike the other subsections of 

the statute, does not require the State to adduce evidence of 

any specific fault on the part of a parent. In re Interest of Becka 

P. et al., supra. In a case of termination of parental rights based 

on § 43-292(7), the protection afforded the rights of the parent 

comes in the best interests step of the analysis. In re Interest of 

Becka P. et al., supra.

[9] Cindy concedes that Brelynn had been out of the home 

for 15 of the most recent 22 months at the time the motion to 

terminate parental rights was filed; nevertheless, she argues that 

an exception should be provided to the “‘hard and fast’” calculation of the timeframe. Brief for appellant at 40. However, 

the proper application of § 43-292(7) consists of counting the 

most recent 22 months preceding the filing of the petition to 

terminate parental rights, followed by counting how many of 
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those 22 months the child was in out-of-home placement. In 

re Interest of Kindra S., 14 Neb. App. 202, 705 N.W.2d 792 

(2005). Here, Brelynn was removed from Cindy’s residence in 

November 2018. At no time was she returned to Cindy’s care. 

The State filed its motion for termination of parental rights on 

March 11, 2020, and the termination trial was held between 

September 10 and December 10. When the motion for termination was filed, Brelynn had been out of the home for about 16 

months. By the last day of trial, Brelynn had been out of the 

home for over 24 months. Accordingly, we find no error in the 

county court’s determination that the State had proved the necessary elements of § 43-292(7).

[10] Section 43-292 provides 11 separate conditions, any 

one of which can serve as the basis for termination when coupled with the evidence that termination is in the best interests 

of the child. In re Interest of Sir Messiah T. et al., 279 Neb. 

900, 782 N.W.2d 320 (2010). Because we conclude that the 

State presented clear and convincing evidence that grounds to 

terminate existed under § 43-292(7), we need not address the 

other statutory grounds.

Best Interests.

[11] Cindy also argues that the county court erred in finding that it was in Brelynn’s best interests to terminate Cindy’s 

parental rights. In addition to proving a statutory ground, the 

State must show that termination of parental rights is in the 

best interests of the child. In re Interest of Becka P. et al., 

supra. A parent’s right to raise his or her child is constitutionally protected; so before a court may terminate parental rights, 

the State must show that the parent is unfit. Id. There is a 

rebuttable presumption that the best interests of the 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. Id.

[12,13] The term “unfitness” is not expressly used in 

§ 43-292, but the concept is generally encompassed by the 
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fault and neglect subsections of that statute, and also through 

a determination of the child’s best interests. In re Interest of 

Kendra M. et al., 283 Neb. 1014, 814 N.W.2d 747 (2012). 

In the context of the constitutionally protected relationship 

between a parent and a child, parental unfitness means a personal deficiency or incapacity which has prevented, or will 

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

in, detriment to the child’s well-being. Id.

[14] The best interests analysis and the parental fitness analysis are fact-intensive inquiries. And while both are separate 

inquiries, each examines essentially the same underlying facts. 

In re Interest of Becka P. et al., 27 Neb. App. 489, 933 N.W.2d 

873 (2019). In proceedings to terminate parental rights, the law 

does not require perfection of a parent; instead, courts should 

look for the parent’s continued improvement in parenting skills 

and a beneficial relationship between a parent and a child. 

Id. In cases where termination of parental rights is based on 

§ 43-292(7), the Supreme Court has held that appellate courts 

must be particularly diligent in their de novo review of whether 

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

We first note that Brelynn has been removed from Cindy’s 

care on three separate occasions, including the present case. 

Following Wesley’s sexual abuse of Brelynn, Cindy voluntarily allowed removal of Brelynn from her residence. Despite 

the fact that Cindy believed Wesley was sexually abusing 

Brelynn, he continued to reside with Cindy for a period of 

time thereafter. Brelynn was removed the second time because 

there were concerns regarding an unsanitary home, Cindy was 

leaving Brelynn with inappropriate individuals, and Cindy 

was struggling with her mental health. Although the first two 

removals resulted in reunification, the same issues surfaced 

in the present case. Law enforcement reported an unsanitary 

home, including that there was medicine in reach of Brelynn 

and that the home smelled of feces and urine. One’s history 
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as a parent speaks to one’s future as a parent, and past parenting outcomes should not be ignored. See In re Interest of Sir 

Messiah T. et al., 279 Neb. 900, 782 N.W.2d 320 (2010).

The evidence demonstrated that Cindy continued to struggle 

with her mental health. She reported that she has been suffering auditory and visual hallucinations for more than 12 years 

and acknowledged recurring instances of deterioration requiring hospitalization. Although she believes that she is making 

progress in resolving her mental health issues, the county court 

found that she lacked credibility, and the remaining evidence, 

including the testimony of numerous mental health practitioners, showed that she continued to struggle. On appeal, we give 

weight to the fact that the lower court observed the witnesses 

and accepted one version of the facts over the other. In re 

Interest of Lisa W. & Samantha W., 258 Neb. 914, 606 N.W.2d 

804 (2000).

Cindy has been hospitalized over 20 times regarding her 

mental health issues, most recently in August 2020. These 

hospitalizations have occurred due to anxiety attacks and, 

more troubling, suicidal thoughts. The evidence at trial showed 

that following Kamdyn’s death, Cindy’s and Brelynn’s mental 

health became linked. When Cindy would struggle with maintaining her mental health, Brelynn would likewise struggle. 

Cindy understood the importance of the principles that she 

learned in therapy but repeatedly struggled to implement these 

principles. Brelynn would act as a caregiver to Cindy during 

Cindy’s periods of decompensation, a scenario not healthy for 

either Brelynn or Cindy.

The mental health struggles led to physical symptoms in 

Brelynn. Cindy’s inability to have stability in her mental health 

led Brelynn to demonstrate controlling behaviors. These controlling behaviors included her being constipated to the point 

where she needed to be in the hospital for an invasive procedure. According to McCoy, if Brelynn had stability in her life, 

her controlling behaviors would abate. This is corroborated by 

the testimony of Brelynn’s foster parents, who testified that 
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Brelynn’s controlling behaviors were tempered after not having visitations with Cindy. In addition, Cindy’s mental health 

issues, including narcissism, led her to take Brelynn to doctor 

appointments more frequently than she should.

The testimony from the foster parents demonstrated that 

Brelynn has thrived while outside of Cindy’s care. The foster 

parents testified that when they took Brelynn to doctor or dentist appointments without Cindy, Brelynn would not be anxious. It was only when Cindy also attended that Brelynn would 

become agitated about attending these appointments. After 

returning from visits with Cindy, Brelynn regressed in her ability to be toilet trained. She also returned from visits in dirty 

clothes or inappropriately dressed. Although different therapists testified that Cindy and Brelynn have a bond together, 

they also testified that Cindy struggled with being able to care 

for Brelynn or put Brelynn’s needs above her own.

Not all of the evidence is negative toward Cindy. Evidence 

was adduced which demonstrated that Cindy made efforts 

toward self-improvement and in her parenting skills. Unfortunately, those efforts have not resulted in her becoming capable 

of being able to satisfy her parental obligations and provide for 

Brelynn’s well-being on a consistent basis. The testimony of 

Cindy’s caseworkers, counselors, and support workers established that Cindy would remain in need of significant assistance for an indeterminate period of time and that she was not 

appreciably closer to having the ability to meet her parental 

obligations as of the time of trial. At the time of trial, Brelynn 

had been out of the home for over 2 years. Children cannot, 

and should not, be suspended in foster care or be made to 

await uncertain parental maturity. In re Interest of Jahon S., 

291 Neb. 97, 864 N.W.2d 228 (2015). Termination of Cindy’s 

parental rights, therefore, is in Brelynn’s best interests, as it 

will prevent her from further languishing in foster care while 

awaiting Cindy’s uncertain ability to attain the skills necessary 

for parental maturity.
- 753 -

Nebraska Court of Appeals Advance Sheets

30 Nebraska Appellate Reports

IN RE INTEREST OF BRELYNN E.

Cite as 30 Neb. App. 723

CONCLUSION

Based on the foregoing, we conclude that the county court 

did not err by not holding an exception hearing or by receiving 

Amy’s testimony. Since there was no request during the pendency of the case to have Brelynn placed with Gaedeke prior 

to termination of Cindy’s parental rights, we do not address 

this assignment of error. We also conclude that the State proved 

that grounds for termination of her parental rights existed 

under § 43-292(7) and that their termination was in the best 

interests of Brelynn. Accordingly, we affirm the order of the 

county court.

Affirmed.