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IN RE INTEREST OF LEYTON C. & LANDYN C.

Cite as 28 Neb. App. 95

In re Interest of Leyton C. and Landyn C., 

children under 18 years of age. 

State of Nebraska, appellee, 

v. Madison C., appellant.

___ N.W.2d ___

Filed March 3, 2020. No. A-19-423.

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. The foremost purpose and objective of the Nebraska 

Juvenile Code is the protection of a juvenile’s best interests, with preservation of the juvenile’s familial relationship with his or her parents 

where the continuation of such parental relationship is proper under 

the law.

3. Minors: Evidence. To determine the child’s best interests, the court 

must look at the evidence and assess the weight to be given that 

evidence.

4. Parental Rights. Children cannot, and should not, be allowed to linger 

in foster care while waiting to see if the parent will mature.

5. Constitutional Law: Parental Rights. Whether termination of parental 

rights is in a child’s best interests is not simply a determination that 

one environment or set of circumstances is superior to another, but it 

is instead subject to the overriding recognition that the relationship 

between parent and child is constitutionally protected.

6. Parental Rights: Parent and Child. In determining whether it is in a 

child’s best interests for the court 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 the parent and child.

7. Parental Rights. Where a parent is unable or unwilling to rehabilitate 

himself or herself within a reasonable time, the best interests of the child 

require termination of the parental rights.

Nebraska Supreme Court Online Library

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

03/10/2020 09:06 AM CDT
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8. Parental Rights: Evidence. When determining whether parental rights 

should be terminated, it is proper to consider relevant evidence of facts 

that have transpired since the date of the filing of a termination petition, 

including parental efforts and behavior.

Appeal from the Separate Juvenile Court of Lancaster 

County: Linda S. Porter, Judge. Reversed and remanded for 

further proceedings.

Melanie A. Kirk, of Johnson, Flodman, Guenzel & Widger, 

for appellant.

Patrick F. Condon, Lancaster County Attorney, Maureen 

Lamski, and Thomas Gage, Senior Certified Law Student, for 

appellee.

Joy Shiffermiller, of Shiffermiller Law Office, P.C., L.L.O., 

guardian ad litem.

Pirtle, Riedmann, and Welch, Judges.

Riedmann, Judge.

INTRODUCTION

Madison C. appeals the order of the separate juvenile court 

of Lancaster County which terminated her parental rights to 

her minor children, Leyton C. and Landyn C. Upon our de 

novo review of the specific facts contained within the record, 

we find that the State failed to prove by clear and convincing evidence that terminating Madison’s parental rights was 

in the best interests of the children. We therefore reverse the 

decision of the juvenile court and remand the cause for further proceedings.

BACKGROUND

Madison, who was born in 1997, is the mother of Leyton, 

born in August 2015, and Landyn, born in February 2017. 

The father of the children has relinquished his parental rights; 

therefore, we do not address him in this appeal.
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Cite as 28 Neb. App. 95

On July 19, 2016, the State filed a petition alleging 

that Leyton was a juvenile as defined by Neb. Rev. Stat. 

§ 43-247(3)(a) (Supp. 2015). The petition specifically alleged 

that Leyton lacked proper parental care by reason of the 

fault or habits of Madison in that between November 4 and 

24, 2015, Madison left him in the care of her mother without making proper provisions for his care; on or about June 

8, 2016, Madison tested positive for methamphetamine; and 

Madison had failed to consistently provide a safe and stable 

home for Leyton. Upon Madison’s admission to the allegations 

in the petition, the juvenile court adjudicated Leyton under 

§ 43-247(3)(a). Leyton was allowed to remain at his maternal 

grandparents’ home where he and Madison had been living.

In a subsequent order, the juvenile court, among other 

things, prohibited contact between Leyton and Madison’s 

then-boyfriend, Jaden R., due to Jaden’s criminal history. In 

March 2017, the court approved a placement change, removing Leyton from his grandparents’ home and placing him with 

Madison’s sister, after Madison and her mother gave Jaden a 

ride to his sister’s home while Leyton was in the car. After 

Landyn was born, he was adjudicated under § 43-247(3)(a) 

(Reissue 2016) and was placed in a nonrelative foster home. 

In July, Leyton was moved to the foster home providing care 

for Landyn.

Madison moved into her own apartment in the fall of 2017, 

and the children were placed back with her in January 2018. 

They were removed again, however, in July, and placed back 

in their previous foster home. On October 11, the State filed a 

motion to terminate Madison’s parental rights to Leyton and 

Landyn. The motion alleged that termination was appropriate under Neb. Rev. Stat. § 43-292(2), (4), and (6) (Reissue 

2016) for both children and under § 43-292(7) with respect to 

Leyton. The motion also alleged that termination of Madison’s 

parental rights was in the best interests of the children.

A hearing on the termination motion was held on December 

14, 2018; January 3, 9, 25, and 29, 2019; and February 5, 8, 
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and 26, 2019. The evidence revealed that Madison was 18 

years old and living with her parents when Leyton was born. 

When Leyton was approximately 1 month old, Madison began 

a relationship with Jaden. Jaden quickly became controlling, 

preventing her from contacting her family and encouraging 

her to stay with him. By January 2016, the emotional and 

mental abuse escalated, and Jaden began physically abusing 

Madison. By this time, he had taken her cell phone, and she 

had to “be good” in order to earn the chance to see Leyton and 

her family. Madison testified that around this same time, Jaden 

began forcing her to use methamphetamine by either making 

her smoke it or putting it inside her vagina. Madison had not 

previously used methamphetamine and did not use any drugs 

while she was pregnant with Leyton.

Over the course of the relationship, Jaden would punch 

and kick Madison and use “extension cords, brass knuckles, 

mace, flashlights, [and] metatarsal boots” to abuse her. He 

also stapled her with a staple gun and kicked her in the stomach while she was pregnant with Landyn. On one occasion, he 

sprayed a fire extinguisher in a bedroom and shut Madison in 

the room. When she began to pass out, he pulled her out of 

the room until she was able to catch her breath and asked her 

questions about who she had talked to and if she had hidden 

“any phones around the house.” If he thought she was lying, 

he pushed her back into the room and repeated the events 

again. This incident occurred while Madison was pregnant 

with Landyn. On another occasion while she was pregnant, 

Jaden hit Madison in the face, laid her on the floor on her 

stomach, and “put a crowbar around [her] neck and pulled 

[her] up backwards.”

Two additional incidents occurred in April and May 2017. 

During one incident, Jaden whipped Madison with an extension cord, sprayed her in the face with mace, and put her 

in a scalding hot bath. On the other occasion, he physically 

assaulted her, burned her knees with a torch, and threatened 

her with a knife, putting it to her neck and threatening to kill 
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her. Photographs of Madison’s injuries from this incident were 

received into evidence at the termination hearing. As a result 

of these two assaults, Jaden was arrested and ultimately went 

to prison. At the time he was arrested in May, Madison ended 

the relationship, and she sought and obtained a protection order 

against him.

Madison explained that she never told anyone about the 

abuse because she was afraid of the repercussions from Jaden. 

She attempted to escape at times, but either she was unable to 

do so or, if she was, Jaden would come back for her. There 

were times during the relationship that she could not get away 

because she was locked in a closet. She explained that beginning in 2016 through the end of the relationship, there were 

periods of time where she was prohibited from even seeing 

daylight. Madison acknowledged that during her relationship 

with Jaden, she did not participate in the services provided 

by the Nebraska Department of Health and Human Services 

(DHHS), explaining that Jaden was still around so it was difficult for her to do so.

Beginning in the fall of 2017, however, after Jaden was 

incarcerated and the relationship was over, Madison began 

engaging in services and focusing on making progress in 

the case. She had attended outpatient drug and alcohol treatment with a licensed independent mental health practitioner, 

Emily Goodman, on just two occasions in March 2017. But 

Goodman recommended an updated evaluation, which resulted 

in an updated diagnosis of major depressive disorder and a 

recommendation of individual therapy rather than substance 

use treatment.

Madison began attending individual therapy with Goodman 

regularly in July 2017. Goodman testified at the termination 

hearing that as a result of the domestic violence Madison 

endured, she had one of the most severe cases of post-traumatic 

stress disorder (PTSD) that Goodman had seen. Madison 

suffered from daily nightmares, struggling to even sleep at 

night, and flashbacks that were some of the most detailed 
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and physiologically affective that Goodman had encountered. 

Goodman explained that PTSD is not something that can be 

“cured,” and she said it will be something that will challenge 

Madison for the rest of her life. In Goodman’s experience 

working with individuals with PTSD, there are times where 

things are going very well and times that are more difficult, 

and there are things that can trigger more struggles and flashbacks. With Madison specifically, because her trauma disorder 

was so greatly ingrained into her environment, Goodman would 

highly expect struggles and flashbacks. Madison’s flashbacks 

and symptoms associated with her trauma disorder increased 

and decreased over the year that she worked with Goodman. 

Despite Madison’s trauma, as of March 2018, Goodman 

believed that she was able to adequately and appropriately parent her children. Madison’s treatment with Goodman ended in 

March when Goodman left on maternity leave. DHHS was to 

locate a new therapist, but our record does not indicate that one 

was immediately found.

As a result of Madison’s progress in attending therapy, 

having visits with the children several times per week, and 

testing negative for drugs, the children were placed back with 

her on January 2, 2018. Thereafter, she began to feel overwhelmed and eventually relapsed with methamphetamine in 

March and stopped engaging in services. She also became 

involved in a relationship with a man with a criminal history and with whom she used drugs. The children were 

removed from Madison’s care on July 2 and placed back 

in their previous foster home. They underwent hair follicle 

testing. Leyton tested positive for exposure to methamphetamine and marijuana, and Landyn tested positive for exposure 

to marijuana.

Shortly after the children were removed from Madison’s 

care, she began attending individual therapy with Sarah Worley. 

An updated substance abuse evaluation was completed at that 

time. We note that prior to this date, Madison had not received 

any substantial substance abuse treatment because Goodman 
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had recommended individual therapy for her mental health 

instead. As her mental health progressed, her drug and alcohol 

screenings were all negative, so she was no longer appropriate for substance abuse treatment according to Goodman. The 

subsequent evaluation revealed that Madison was now “on 

the borderline” between needing residential treatment and 

intensive outpatient treatment. She initially elected to do residential treatment, and when she entered treatment in August 

2018, she tested positive for methamphetamine—admitting 

that she had used drugs prior to entering. She was at treatment 

for only a few days before leaving against medical advice, in 

part because of another patient in the program whom she had 

known during her relationship with Jaden. Within a week of 

leaving the residential program, however, she began an intensive outpatient treatment program upon the recommendation 

of Worley.

Madison tested positive for methamphetamine in early 

September 2018, but thereafter, she completed the intensive 

outpatient program as well as a “step down” to the outpatient 

program. Madison tested positive in October for clonazepam, 

a drug for which she does not have a prescription, and for 

morphine in December. Madison denied using any drugs at any 

time after September and blamed the positive test in December 

on having eaten poppyseeds. According to Worley, the level of 

morphine in Madison’s system was “[v]ery low” and consistent with her report of eating poppyseeds.

At the time of the termination hearing in February 2019, 

Madison was still attending weekly individual therapy with 

Worley, as well as attending a weekly group session and a 

domestic violence support group. She continued to have two 

visits per week with the children and to test clean for drugs. 

She obtained employment in October 2018 and was working 2 

days per week until January 2019, when her employer cut her 

hours and told her she was no longer needed. She had ended 

her unhealthy relationship in September 2018, thereafter telling Worley that “they had broken up because of his drug use 
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and that he wasn’t a good influence in her life.” Several group 

sessions in October and November were facilitated by Worley, 

who testified that Madison had been very forthcoming about 

her struggles with relapse prevention, triggers, and staying 

away from people who were not good for her. Worley testified 

that over the previous 3 months, Madison had made “excellent” progress, that she had continuously attended therapy 

without missing any sessions, and that she had participated 

fully and had been honest about what happened to her and her 

responsibility. Worley’s prognosis for Madison was “good.” 

She testified that when she observed Madison with her children in the summer of 2017, Madison appeared to have a 

very secure bond with them, and that based on her work with 

Madison, Worley believed Madison was capable of parenting 

her children.

In general, the evidence revealed that the children are 

healthy and doing well. Leyton originally had issues with 

speech development, but an evaluation concluded that he did 

not qualify for services. In November 2018, he began seeing a 

therapist due to nightmares and night terrors, as well as being 

anxious and sad. Landyn was born with methamphetamine in 

his system; thus, he automatically qualified for services and 

meets with an early childhood education teacher once per 

month regarding his development.

The visitation supervisor testified that the children were 

well behaved and always very happy to see Madison. Leyton 

had difficulty leaving Madison at the end of visits and would 

often cry and demand that the visitation supervisor take him 

back to Madison. There were never safety concerns during 

visits, and Madison provided food and toys for the children 

and was very attentive—playing with them, interacting with 

them, and making sure their needs were being met. The visitation supervisor said that by the time she stopped working with 

Madison in December 2018, Madison had reached all of her 

goals except for obtaining housing (Madison was living with 

her parents).
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Madison continued to live with her parents at the time of 

the termination hearing and testified that her relationship with 

them was “[g]ood,” despite having issues in the past due to 

her drug use and her dishonesty about it. Worley testified that 

Madison’s parents and sister are her support system to assist her 

in continuing to make progress. According to the caseworker, it 

is acceptable for parents to live with family when they get their 

children back. Despite this, the caseworker opined that terminating Madison’s parental rights to Leyton and Landyn was in 

the children’s best interests because Madison has been unable 

to demonstrate a sustained change necessary for her to provide a stable and permanent home for the children. Similarly, 

Leyton’s therapist testified that Leyton needs permanency and 

that she encourages permanency as quickly as possible for 

children up to the age of 5 because the longer a child at this 

critical developmental age stays in foster care, the greater the 

risk for emotional and social damage.

Susan Michalski also testified at the termination hearing. 

Michalski is a registered nurse who has worked with the issue 

of domestic violence for 37 years and was the training and education director for the domestic violence coordinating council 

for 12 years. She explained that domestic violence, or intimate 

partner violence, is an intimate relationship where there is a 

definite power imbalance, and the key components are traumatic bonding through that imbalance and methodic isolation. 

Domestic violence occurs on an emotional, psychological, 

physical, sexual, and financial level and is very insidious. 

The trauma that occurs early in the relationship instills fear 

and anxiety in the victim as to what will happen to the victim 

when they try to get out of the relationship or once they have 

left the relationship. Michalski described victims of domestic 

violence as “living in a fog,” and she said that sometimes they 

deny or minimize what is occurring or disbelieve that someone 

could or would do these kinds of things to them. Power and 

control are the core of domestic violence. Michalski explained 

that even if a victim is able to leave an abusive relationship, it 
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is common for the victim to go back to the abuser. Oftentimes 

the victim returns because of fear, but the choice to return 

could be financially driven, child driven, due to limited other 

support systems, or for other reasons.

According to Michalski, recovery from domestic violence 

takes time and the trauma from it can seep into every area 

of the victim’s life. Substance abuse is often seen along 

with domestic violence because the violence causes significant 

“internal trauma,” and drugs are used as a coping mechanism. 

Drugs are also a tactic abusers often use, by either getting 

the victim addicted to drugs or using drugs against the victim 

in some other way. If there are coexisting issues of domestic 

violence and substance abuse, it is expected that the recovery time would be longer. Recovery from domestic violence 

can be manifested in different ways, including the ability to 

function on a daily basis, securing employment, managing 

any emotional or psychological symptoms from the violence, 

or managing substance abuse; it can also mean having a better sense of self, having more information, and having better 

boundaries. Michalski related that age plays a role in overcoming trauma and that she had worked with very young people 

who have matured and grown over time. She opined that 

victims of domestic violence are able to successfully parent 

their children.

To this end, at the termination hearing, Madison testified 

that she used to take prescription anxiety medication but no 

longer needs it and that she had not recently had any flashbacks. She explained that learning to trust people and be honest has been difficult for her, but she believed that she was 

making progress. She also said that she has “found [her] voice” 

and learned how to ask for help. At the time of the final hearing, Madison was 21 years old.

After the conclusion of the termination hearing, the juvenile 

court entered a written order. Therein, without mention of the 

effects that Madison’s PTSD may have had on her behavior, 

the court found that the allegations of the motion to terminate 
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Madison’s parental rights were true by clear and convincing 

evidence and that termination was in the best interests of the 

children. The court therefore terminated Madison’s parental 

rights to Leyton and Landyn. Madison appeals.

ASSIGNMENTS OF ERROR

Madison assigns, restated, that the juvenile court erred in 

finding that (1) statutory grounds exist to terminate her parental rights and (2) termination of her parental rights was in the 

children’s best interests.

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. In re Interest of Isabel P. et al., 293 Neb. 62, 

875 N.W.2d 848 (2016).

ANALYSIS

The juvenile court found that the State established grounds 

for termination under § 43-292(2), (4), and (6) for both children and subsection (7) with respect to Leyton and that termination was in the best interests of the children. Madison 

asserts that the court erred when it determined that the State 

had presented sufficient evidence to terminate her parental 

rights. We agree. We first address whether the juvenile court 

erred in determining that termination of Madison’s parental rights was in the children’s best interests, because our 

resolution of this issue is dispositive of the appeal. See In re 

Interest of Seth K. & Dinah K., 22 Neb. App. 349, 853 N.W.2d 

217 (2014).

[2,3] Section 43-292 requires that parental rights can be 

terminated only when the court finds that termination is in the 

child’s best interests. The foremost purpose and objective of 

the Nebraska Juvenile Code is the protection of a juvenile’s 

best interests, with preservation of the juvenile’s familial relationship with his or her parents where the continuation of such 

parental relationship is proper under the law. In re Interest of 
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Rebecka P., 266 Neb. 869, 669 N.W.2d 658 (2003). The law 

is clear that in a termination of parental rights case, the State 

must prove by clear and convincing evidence that termination 

is in the best interests of the child. Id. To determine the child’s 

best interests, the court must look at the evidence and assess 

the weight to be given that evidence. Id.

[4] The appellate courts of Nebraska have repeatedly cautioned that children cannot, and should not, be allowed to 

linger in foster care while waiting to see if the parent will 

mature. See, In re Interest of Destiny A. et al., 274 Neb. 713, 

742 N.W.2d 758 (2007); In re Interest of DeWayne G. & 

Devon G., 263 Neb. 43, 638 N.W.2d 510 (2002); In re Interest 

of Chloe C., 20 Neb. App. 787, 835 N.W.2d 758 (2013); In 

re Interest of Kenna S., 17 Neb. App. 544, 766 N.W.2d 424 

(2009). Similarly, where a parent is unable or unwilling to 

rehabilitate himself or herself within a reasonable time, the 

best interests of the child require termination of the parental 

rights. In re Interest of Ryder J., 283 Neb. 318, 809 N.W.2d 

255 (2012).

[5,6] However, whether termination of parental rights is in 

a child’s best interests is not simply a determination that one 

environment or set of circumstances is superior to another, but 

it is instead subject to the overriding recognition that the relationship between parent and child is constitutionally protected. 

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

(2007). There is a rebuttable presumption that the best interests 

of a child are served by reuniting the child with his or her parent. Id. In determining whether it is in a child’s best interests 

for the court to terminate parental rights, it is important to 

remember that the law does not require perfection of a parent. 

See In re Interest of Seth K. & Dinah K., supra. Instead, courts 

should look for the parent’s continued improvement in parenting skills and a beneficial relationship between the parent and 

the child. Id.

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

Madison has demonstrated a continued improvement in her 
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parenting skills and has established a beneficial relationship 

with her children. We consider Madison’s initial lack of progress in light of her age and the abusive relationship she was 

in at the time. According to the evidence presented at the 

termination hearing, she began a relationship with Jaden in 

September 2015, when she was 18 years old and Leyton was 

1 month old. Jaden quickly became controlling and, eventually, abusive, prohibiting her from even seeing the light of day 

at times. Michalski explained that perpetrators of domestic 

violence isolate their victims and that the abuse occurs on an 

emotional, psychological, physical, sexual, and financial level 

and is very insidious. The trauma that occurs early on in such a 

relationship instills fear and anxiety in the victim of what will 

happen if the victim tries to end the relationship or what will 

happen once the victim has left the relationship.

According to Michalski, abusers often get their victims 

addicted to drugs or use drugs against the victim in some way, 

and she said substance abuse is often seen as a coping mechanism for the internal trauma experienced by victims of domestic violence. So, while it would have been in the children’s 

best interests for Madison to end her relationship with Jaden 

and engage in services at the outset of this case, her inability 

or unwillingness to do so must be viewed in consideration 

of her young age and the abusive relationship in which she 

was transfixed.

Madison was involved with Jaden until May 2017, when 

he was sent to prison for assaulting her. At that time, she was 

struggling to deal with the aftermath of the abuse. She admitted that she had not participated in the services designed to 

help her up until that time, explaining that Jaden was still 

around so it was difficult to do so.

Around the fall of 2017, however, Madison began to engage 

in services and focus on her case plan goals. At that time, her 

therapist, Goodman, decided that Madison needed individual 

therapy to address her mental health issues related to her 

PTSD rather than substance abuse treatment. Madison made 
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such progress that the children were returned to her care in 

January 2018. She quickly became overwhelmed with living 

in her own apartment, caring for the children on her own, and 

maintaining her sobriety from drugs, and she relapsed. This 

coincided with the time period when Goodman was leaving 

on maternity leave and a new therapist was to be assigned. 

The record is not clear on whether Madison failed to engage 

with a new therapist or if one was not immediately provided. 

Regardless, according to Worley, it is not unusual for someone suffering from PTSD or domestic violence trauma and 

substance abuse to relapse during recovery. Goodman testified similarly that because Madison’s trauma disorder was so 

greatly ingrained into her environment, struggles and flashbacks were expected. And significantly, at that time, Madison 

had not received any substance abuse treatment from which 

she could learn coping skills without turning back to drugs or 

unhealthy relationships.

Since the children were removed from Madison’s care 

in July 2018, Madison has completed intensive outpatient 

treatment and a “step down” to outpatient treatment. At the 

time of the last termination hearing, she continued to attend 

weekly therapy with Worley, group sessions, and a domestic 

violence support group. Worley testified in January 2019 that 

Madison had made excellent progress during the previous 3 

months. She participated in several group sessions facilitated 

by Worley in October and November 2018 and was very forthcoming about her struggles. She also consistently attended 

therapy, without missing any sessions, and participated fully 

and honestly. Worley’s prognosis for Madison was “good,” 

and based on her work with Madison and her observations of 

Madison with her children, Worley believed, as of the time of 

the termination hearing, that Madison was capable of parenting her children.

While we acknowledge that there is evidence to the contrary, the totality of the evidence indicates that after Madison 

ended her relationship with Jaden, she made overall progress. 
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This is not to suggest that Madison is a perfect parent, and we 

recognize she continued to make some questionable choices 

throughout the case. However, most of these choices occurred 

before she engaged in mental health and substance abuse treatment. She has since engaged in individual therapy, and her 

drug test results have been negative for all substances—making such progress that the children were placed back with 

her. She relapsed, but since that time, she has completed two 

substance abuse programs, participated in therapy, attended a 

domestic violence support group, secured employment, and 

ended an unhealthy relationship. In addition, she has begun 

learning about self-improvement, such as learning to be more 

open and vulnerable, knowing her worth and what her children 

deserve, learning how to ask for help, and learning to trust and 

be honest. Accordingly, the evidence establishes Madison’s 

continued improvement in parenting skills, and we find her 

relapse understandable in light of her circumstances.

[7] We recognize that case law provides that “‘where a 

parent is unable or unwilling to rehabilitate himself or herself within a reasonable time, the best interests of the child 

require termination of the parental rights.’” In re Interest of 

Ryder J., 283 Neb. 318, 328, 809 N.W.2d 255, 263 (2012). 

And our Supreme Court has found on numerous occasions 

that a parent’s last minute efforts are “too little, too late.” See, 

e.g., In re Interest of S.C., S.J., and B.C., 232 Neb. 80, 91, 

439 N.W.2d 500, 507 (1989). Accord In re Interest of Z.R., 

226 Neb. 770, 415 N.W.2d 128 (1987). However, we must 

evaluate a parent’s progress in the context of the situation in 

which the parent exists to determine whether he or she has 

been unable or unwilling to rehabilitate within a “reasonable 

time.” See, e.g., In re Interest of Chloe C., 20 Neb. App. 787, 

795, 835 N.W.2d 758, 764 (2013). In doing so, we find that 

the termination of Madison’s parental rights to her children 

came too quickly.

Madison received mental health treatment to address her 

severe PTSD from March 2017 until March 2018. When the 
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children were returned to her, she had not yet received substance abuse treatment, and Michalski explained that it is 

not uncommon for a victim of domestic violence to revert to 

known coping mechanisms in stressful situations. In Madison’s 

case, these were substance abuse and poor choices in relationships. However, after the children were removed from 

Madison’s care, she began substance abuse treatment in earnest 

in September 2018. She admits to a lapse in early September, 

but denies any further drug use. Even if we were to discredit 

this testimony and find that she had taken a nonprescribed 

medication once in October and ingested an illegal substance 

once in December, she was still in the early stages of treatment. The termination petition was filed in October, and trial 

began in December.

Given Madison’s young age and trauma experience, we 

cannot find that the timeline of this case provides her with 

a “reasonable time” in which to rehabilitate herself. This is 

particularly true when Goodman prioritized the type of treatment offered to her, beginning with mental health therapy. 

Although substance abuse services were offered to her at 

the beginning of the case, that was at a time when she 

was involved in a relationship in which nearly her every 

move was controlled by her abusive partner. Goodman determined Madison first needed to address that relationship and 

her mental health before engaging in substance abuse treatment. Therefore, she received no substantial substance abuse 

treatment until just a few months prior to the filing of the 

termination petition.

In In re Interest of Chloe C., supra, we reversed the termination of a mother’s parental rights based upon her continued 

progress. We recognized that although she lacked progress at 

the beginning of her case, she was in a “‘cycle of violence’” 

that hampered her ability to do so. Id. at 796, 835 N.W.2d at 

764. Once she engaged in therapy, she was able to break the 

cycle and made efforts toward meeting her case plan goals.
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[8] Similarly, herein, the evidence at the termination hearing supports a finding that Madison’s inability to progress at 

the beginning of her case was largely due to being a victim of 

domestic violence. Once she began mental health treatment, 

she progressed to the point at which DHHS recommended 

return of her children to her. And although she relapsed thereafter, she began substance abuse treatment in September 2018, 

prior to the filing of the termination petition. And her progress 

continued throughout the termination hearing, which ended in 

February 2019. It is proper to consider relevant evidence of 

facts that have transpired since the date of the filing of a termination petition, including parental efforts and behavior. See In 

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

Again, we are reminded that we do not require perfection of a 

parent when deciding whether termination of parental rights is 

appropriate. See In re Interest of Justin H. et al., 18 Neb. App. 

718, 791 N.W.2d 765 (2010) (reversing termination of parental 

rights based on mother’s progress despite need for additional 

improvement); In re Interest of Eden K. & Allison L., 14 Neb. 

App. 867, 882, 717 N.W.2d 507, 518 (2006) (reversing termination of mother’s parental rights due to having made positive 

strides despite prior “terrible decisions,” use of methamphetamine, and incarceration). Having found that Madison has 

made continued progress, we turn to the relationship between 

her and her children.

The evidence reveals that Madison has a beneficial relationship with her children. It is undisputed that there is a 

strong bond between Madison and the children and that 

visits between them go very well. Prior to the filing of the 

termination petition, Madison had visits with the children 

three times per week; however, when the motion was filed, 

DHHS decreased the visits to twice a week, despite the fact 

that Madison was in compliance with all of the recommended 

services. The caseworker testified that it was her supervisor’s 

policy to reduce visitation when a termination petition is 

filed. Madison consistently attended visits, particularly during 
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the latter part of the case. The children were always excited 

to see her and sad to leave her at the end of the visits. She 

brought food and toys for them; attended to their needs; was 

very attentive, playing and interacting with them; was affectionate with them; comforted them; and told them that she 

loves them.

We appreciate that Madison still has work to do before 

achieving reunification with Leyton and Landyn. However, 

this fact does not prohibit this court from finding that the State 

failed to prove that termination of Madison’s parental rights 

was in the best interests of the children. See, e.g., In re Interest 

of Rebecka P., 266 Neb. 869, 669 N.W.2d 658 (2003); In re 

Interest of Seth K. & Dinah K., 22 Neb. App. 349, 853 N.W.2d 

217 (2014); In re Interest of Athina M., 21 Neb. App. 624, 842 

N.W.2d 159 (2014); In re Interest of Justin H. et al., supra. 

In its order, the juvenile court did not discuss how Madison’s 

PTSD or her young age may have affected her decisionmaking 

ability, despite Michalski’s testimony on the effects of PTSD. 

While we are aware that children should not be suspended in 

foster care awaiting uncertain parental maturity, we find that 

given Madison’s progress and the testimony of both Michalski 

and Worley, we are not convinced that she cannot put herself 

in a position to be reunified with her children within a reasonable amount of time with continued therapy and maturity. In 

the meantime, the children are in a loving foster family environment and the foster parents have a close and supportive 

relationship with Madison.

Upon our de novo review of the record, we conclude that the 

State has failed to prove by clear and convincing evidence that 

Madison is unable or unwilling to rehabilitate herself within a 

reasonable time and that the children’s best interests are served 

by terminating her parental rights.

CONCLUSION

We find that the juvenile court erred when it determined 

that the State proved by clear and convincing evidence that 
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terminating Madison’s parental rights to Leyton and Landyn 

was in the children’s best interests. Accordingly, the judgment 

of the juvenile court is reversed and the cause is remanded for 

further proceedings.

Reversed and remanded for 

further proceedings.

Pirtle, Judge, dissenting.

I respectfully dissent from the conclusion of the majority 

that the State has failed to demonstrate by clear and convincing evidence that the termination of Madison’s parental 

rights is in the best interests of Leyton and Landyn. Rather, 

I would affirm the judgment of the juvenile court terminating 

Madison’s parental rights.

Juvenile cases are reviewed de novo on the record, and an 

appellate court is required to reach a conclusion independent 

of the juvenile court’s findings. In re Interest of Jordana H. et 

al., 22 Neb. App. 19, 846 N.W.2d 686 (2014). 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. 

Id. In this case, the juvenile court observed witnesses over 8 

days of trial on the State’s motion to terminate parental rights. 

Among those testifying was Madison, whom the juvenile court 

specifically recognized has struggled with honesty throughout 

the duration of the case. Accordingly, where the evidence is 

in conflict, I would not disregard the juvenile court’s observations across this extensive trial.

To terminate parental rights, the State must prove by clear 

and convincing evidence that one or more of the statutory 

grounds listed in § 43-292 have been satisfied and that termination is in the child’s best interests. In re Interest of Audrey 

T., 26 Neb. App. 822, 924 N.W.2d 72 (2019). The majority 

opinion does not reach the statutory grounds for termination, because it finds the best interests analysis dispositive of 

Madison’s appeal. I would find that the State met its burden of 
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showing both that a statutory basis exists under § 43-292 and 

that termination is in the children’s best interests.

STATUTORY GROUNDS FOR 

TERMINATION

I agree with the juvenile court that at least one of the statutory bases for termination alleged by the State was met. Under 

§ 43-292(2), termination is appropriate when “[t]he parents 

have substantially and continuously or repeatedly neglected 

and refused to give the juvenile or a sibling of the juvenile 

necessary parental care and protection.”

From the time the State first filed a juvenile petition in 

July 2016, up to the final order of the juvenile court terminating Madison’s parental rights in April 2019, there have been 

ongoing issues that cause concern over the ability of Madison 

to raise these children. The July 2016 petition was filed, in 

part, because Madison left Leyton in the care of her mother 

without making proper provision for his care. There were 

additional concerns regarding Madison’s use of methamphetamine. After the birth of Landyn, a supplemental petition was 

filed in March 2017, indicating that Landyn tested positive for 

amphetamines at birth and that Madison tested positive for 

opiates, oxycodone, and methamphetamine earlier that month. 

The record reflects that these concerns have not subsided over 

the duration of this case.

Despite the opportunity to correct the circumstances that 

led to the adjudication of her children, Madison has failed to 

show that she is able to provide them the necessary parental care and protection. A dispositional plan was entered on 

January 26, 2017, ordering Madison to participate in outpatient treatment for substance abuse, to abstain from the use 

of controlled substances and submit to random drug testing, 

to prevent any contact between Leyton and her boyfriend at 

the time, Jaden, and to pay $50 in monthly child support. 

Other dispositional hearings set similar goals for Madison, 

and included additional goals of participating in counseling to address healthy relationships, committing to provide 
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appropriate parenting and stable housing, and cooperating 

with family support services. However, as the juvenile court 

noted in its order, these goals have largely gone unmet 

throughout the duration of this case.

Madison admitted to relapsing into use of methamphetamine in March 2018. At the time, Madison had been living on her own with the two children, but quickly became 

overwhelmed, leading to her relapse. Additional drug tests in 

August, September, October, and December 2018 came back 

positive for methamphetamine and other controlled substances 

for which Madison did not have a prescription. Madison admitted she was “unmotivated” to find full-time employment, and 

she was only employed between October 2018 and January 

2019, working 2 days per week during that time.

Madison also has not shown that she is able to maintain the 

level of support and care necessary for her children. While 

there have been periods of consistency with her visitation, and 

the children appear to have a close bond with Madison, my 

concerns persist. Madison was forced to abandon the apartment she briefly maintained on her own, due to her failure to 

pay rent. Madison also became overwhelmed at times after the 

children had been temporarily returned to her care, and she 

relied on the foster parents for respite care for the children. On 

more than one occasion, Madison failed to pick up the children 

at the agreed-upon time and was difficult to reach by the foster parents.

What is particularly concerning is Madison’s inability to 

separate herself from the type of unhealthy relationships that 

precipitated many of her problems. I do not downplay the level 

of abuse in this case—nor the amount of control an abuser can 

exert over an innocent victim—but Madison has continued to 

surround herself with the wrong crowd, even after Jaden was 

imprisoned and their relationship ended. She resumed a relationship with Leyton’s birth father after he was released from 

prison, resulting in her pregnancy with Landyn. She also began 

a relationship with Riley S. in April 2018. Madison admitted 
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in her testimony that she used drugs with Riley and that he 

was not a good influence on her. Nevertheless, this is someone 

she allowed to be near her children. The juvenile court specifically found that the testimony of Riley and Madison “did 

not appear credible and appeared to be situationally motivated 

by the pending termination of parental rights rather than any 

honest recognition by [Madison] that [Riley] was an unhealthy 

influence for her or for her children.”

I simply do not believe Madison has shown that she is 

able to put the needs of the children above her own, nor that 

she is able to provide Leyton and Landyn the necessary care 

and protection required of a parent. Based upon my de novo 

review of the record, I would find that the State met its burden 

under § 43-292(2) and that a statutory basis for termination of 

Madison’s parental rights exists.

BEST INTERESTS

Based on the facts of this case, and the arguments set forth 

by both the State and the guardian ad litem, I believe the State 

has shown by clear and convincing evidence that it is in the 

best interests of the children that Madison’s parental rights be 

terminated. While I recognize the severity of the horrendous 

abuse in this case, the primary focus of the best interests analysis is on the children, not the parent. While evidence to prove 

the statutory grounds for termination will often be “highly relevant to the best interests of the juvenile . . . statutory grounds 

are based on a parent’s past conduct, but the best interests 

element focuses on the future well-being of the child.” In re 

Interest of Mya C. et al., 23 Neb. App. 383, 396, 872 N.W.2d 

56, 67 (2015).

The majority concludes that “Madison’s initial lack of progress in light of her age and the abusive relationship she was 

in” is grounds to find that termination came too quickly. I 

disagree. The first petition was filed in July 2016. A supplemental petition in regard to Landyn was filed in March 2017. 

In November 2016, Leyton was permitted to remain in his 
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maternal grandparents’ home, where Madison was living at 

the time, but was later removed in February 2017. Landyn 

was immediately placed in a nonrelative foster home following his discharge from the hospital after his birth. Leyton was 

later placed in the same foster home. Despite being temporarily reunited with Madison in January 2018, the children 

were again removed in July and have remained in foster care 

ever since.

Furthermore, this is a case where an experienced lawyer was 

appointed as guardian ad litem, who was involved throughout the duration of the case. I find it particularly telling that 

the guardian ad litem filed a 54-page brief in this matter and 

appeared at oral argument, strongly advocating that the juvenile court’s decision was correct in all respects. In a case such 

as this, where our decision may very well determine the future 

of these two young boys, I simply cannot disregard the professional observations of the guardian ad litem and her unwavering opinion that termination of Madison’s parental rights was 

in the best interests of these children.

I believe this is precisely the type of case the majority 

describes as “too little, too late.” See, e.g., In re Interest of 

S.C., S.J., and B.C., 232 Neb. 80, 91, 439 N.W.2d 500, 507 

(1989). Nebraska courts have recognized that children cannot, 

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

uncertain parental maturity. In re Interest of Becka P. et al., 27 

Neb. App. 489, 933 N.W.2d 873 (2019) (citing In re Interest 

of Octavio B. et al., 290 Neb. 589, 861 N.W.2d 415 (2015)). 

The record suggests that the children are doing well under the 

care of their foster parents and that the foster parents have 

been able to provide a stable home for the children. Based 

upon my de novo review of the record, I believe the State 

has shown by clear and convincing evidence that termination 

of Madison’s parental rights is in the best interests of Leyton 

and Landyn, and I would have affirmed the judgment of the 

juvenile court.

For these reasons, I respectfully dissent.