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IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

IN RE INTEREST OF MADISON B. & OLIVIA B.

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

IN RE INTEREST OF MADISON B. AND OLIVIA B.,

CHILDREN UNDER 18 YEARS OF AGE.

STATE OF NEBRASKA, APPELLEE,

V.

CHERI G., APPELLANT.

Filed April 21, 2020. No. A-19-786.

Appeal from the Separate Juvenile Court of Lancaster County: REGGIE L. RYDER, Judge. 

Affirmed.

Troy J. Bird, of Hoppe Law Firm, L.L.C., for appellant.

Patrick Condon, Lancaster County Attorney, and Maureen Lamski for appellee.

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

RIEDMANN, Judge.

INTRODUCTION

Cheri G. appeals the order of the separate juvenile court of Lancaster County which 

terminated her parental rights to her minor children. Upon our de novo review of the record, we 

affirm.

BACKGROUND

Cheri is the mother of two daughters: Madison G., born in 2010, and Olivia G., born in 

2012. Throughout the case, Cheri was married to Jose G. Jose is not the biological father of 
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Madison or Olivia, but because he is relevant to the factual history of the case, we refer to him as 

necessary to address the issues raised on appeal.

Madison and Olivia were removed from Cheri and Jose’s home in March 2017 upon reports 

of physical and mental abuse and neglect. The affidavit in support of their removal from the home 

alleged that the Nebraska Department of Health and Human Services (DHHS) had received intakes 

in January reporting that Jose had struck Madison in the face, causing her nose to bleed, and in 

February alleging that the girls were consistently made to stand in the corner and a relative kicked 

the girls on their buttocks. The caller in February claimed that Cheri was aware of the abuse and 

reported telling Cheri that Jose was abusive to Olivia, to which Cheri replied, “‘[T]hat’s because 

Olivia has a big mouth.’” The caller also reported that Jose had threatened Cheri. The affidavit 

further alleged that upon investigation of these reports, Madison said that Jose treats her and Olivia 

like animals, that he made her eat dog treats and rabbit pellets, and that he bit her.

On March 6, 2017, the State filed a petition alleging that Madison and Olivia were children 

within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016) due to the faults or habits of 

Cheri. An adjudication hearing was held, and subsequently, the children were adjudicated under 

§ 43-247(3)(a). Thereafter, the juvenile court held periodic review hearings as required.

On December 11, 2018, the court held an exception hearing pursuant to Neb. Rev. Stat. 

§§ 43-292.02 (Cum. Supp. 2018) and 43-292.03 (Reissue 2016) to determine whether an exception 

existed which would relieve the State of its duty to file a motion to terminate Cheri’s parental 

rights. The court recognized that Madison and Olivia had been removed from the home on March 

3, 2017, and had remained in an out-of-home placement since that time. After reviewing the record 

and evidence received at the hearing, the court found that none of the exceptions provided under 

the law apply in this case.

The State then filed a motion to terminate Cheri’s parental rights to Madison and Olivia on 

February 6, 2019. The motion alleged that termination was appropriate under Neb. Rev. Stat. 

§ 43-292(2), (6), and (7) (Reissue 2016) and that termination was in the best interests of the 

children.

The termination hearing was held on July 11, 2019. The evidence revealed additional 

details of the abuse the children suffered in the home. There were reports of Jose using “the hook”

on the girls, meaning he would hook his thumb or fingers under their tongues and push down really 

hard, on occasion dragging them around the room. Madison disclosed that Jose would sometimes 

put her and Olivia in a box in the bathroom on their hands and knees and hold the door shut while 

forcing them to stay there for long periods of time. There was a photo of Madison in a dog carrier 

and reports of hitting, kicking, and name-calling. Madison reported that Jose had previously 

threatened to kill her if she ever revealed what happened in the home. There were also concerns of 

possible sexual abuse due to Olivia’s inappropriate sexual behaviors, collateral information that 

Cheri and Jose had sex in front of the children, and Madison’s report to a relative that Jose had 

“raped” her. Shortly before the termination hearing was held, the girls began to describe to their 

therapist the sexual abuse Jose inflicted on them.

Shortly after they were removed from Cheri’s care, Madison and Olivia began attending 

therapy twice per week with provisionally licensed mental health practitioner, Erica Schroeder. 

Schroeder repeatedly described Madison as an extremely traumatized child. Madison initially 
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presented as very standoffish, fearful of others, and cautious, whereas Olivia acted overly 

affectionate with people she did not know and referred to unknown people as “mom.” Although 

the girls presented differently from each other, they both showed no attachment to people and 

failed to make connections with people.

Throughout the case, both girls continued to struggle with extreme and inappropriate 

behaviors. Madison would scream profanities during fits of anger, act aggressively when asked to 

do something, and threaten to hurt other children. Olivia continued to have inappropriate physical 

contact with animals and other adults and struggled with appropriate touching. At one point, 

Madison was taken to the hospital after making statements that she wanted to die and that it would 

be better if she was not here anymore. And at a later time, Olivia began taking medication to help 

alleviate homicidal thoughts. Both girls were expelled from several daycare centers due to their 

violent behaviors, and they struggled to control their behavior at school.

Cheri had visitation with the girls for the first several months of the case. However, in 

September 2017, Schroder expressed concerns to the caseworker that Cheri was trying to “coach”

Madison during visits because Madison had reported during therapy that the only reason she was 

placed out of home was because Cheri said that she lies a lot and that if she stops lying she can go 

home. Visitation was therefore suspended beginning in December.

Once visitation ceased, the children’s behaviors began to regulate, and they began 

communicating more openly to Schroeder about their thoughts and feelings. Both girls would 

become angry and upset when talking about Jose and commented that they wanted him to go to 

jail. They used foul language when describing him and said they hated him. At one point, Madison 

stated that she wished Jose was dead. The girls continued to express extreme fear of Jose during 

the entirety of the case. They were never allowed contact with him after they were removed from 

the home.

Throughout the case, Cheri participated in and completed the services DHHS offered to 

her, including an initial diagnostic interview and the recommended individual therapy, family 

support services, and a parenting class. Despite this, the record documents ongoing concerns by 

the caseworkers that Cheri was unable or unwilling to acknowledge the abuse Jose inflicted on 

Madison and Olivia. In January 2018, the caseworker indicated that it was apparent that Cheri 

continued to not understand why the children had been removed or accept that any part of what 

the children had reported was true. In October, the caseworker again expressed concern that Cheri 

had not acknowledged the reason for the removal of the children; rather, she denied any 

wrongdoing by her or Jose and had not acknowledged the abuse and neglect that the girls had 

reported. Two months later, the caseworker again said that there were continuing concerns that 

Cheri had yet to acknowledge the reason for the removal of the girls or all of the abuse and neglect 

that they had reported.

In May 2018, Cheri and the girls began exchanging letters with the approval of Schroeder. 

The girls had various reactions to Cheri’s letter writing and were apprehensive to participate. In 

September, Schroeder arranged a family therapy session between Cheri and each of her daughters 

separately. Each of the children mentioned Jose’s use of “the hook” to Cheri along with other 

abuse that occurred, but Cheri showed no reaction, acknowledgment, or empathy toward her 

children. At the end of each session, Cheri said to each of her children, “See you when I see you.”
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When Schroeder spoke with Cheri a few days later, Cheri said that she is in a difficult position 

between Jose and her children and said that people “have the wrong idea” about Jose and that he 

is not abusive.

After these September sessions, Schroeder recommended no additional family sessions 

until Cheri sought further individual therapy in order to help her process her own history of trauma 

and gain the ability to empathize and provide validation to her children. Schroeder opined that 

continuing family sessions without Cheri completing these components would damage the 

progress the girls had made in treatment and not be in the children’s best interests.

Cheri returned to individual therapy in November 2018 and continued attending through 

the time of the termination hearing. In February 2019, Schroeder arranged a therapeutic visit 

between Cheri and her children by phone. The conversation was not beneficial for the children, 

however, and their behaviors began to escalate thereafter such that Schroeder did not feel 

additional phone contact with Cheri was in the children’s best interests.

In May 2019, Cheri wrote a letter to Madison and Olivia. Therein, she explained that she

wanted to try to answer their question about why she had not left Jose, stating that she cares very 

much about him and that she also cares very much about her children. She wrote that she feels that 

Jose is working hard to make their home a safe place for Madison and Olivia, and that she, too, 

was working toward making the home safe. Schroeder did not share the letter with Madison or 

Olivia.

At the time of the termination hearing, Madison and Olivia had been living in their current 

foster placement since October 2018. Madison had just turned 9 years old and was attending 

Behaven Kids, an organization designed to assist children with behavioral or mental health issues. 

Her therapist there testified that Madison’s behaviors had become out of control at home and at 

school, precipitating the referral. She reported that Madison had expressed concerns about not 

wanting to be returned home because she did not feel safe, and the therapist explained that if 

Madison did not feel safe, she would continue to act out. She explained that Madison acts out 

because of her distrust of people as a result of feeling unsafe at a point in her life. The therapist 

stated that if children feel unsafe at an early age, it takes a long time to rebuild their trust, and they 

have to be in very loving relationships and feel safe before they can begin trusting people. 

According to the therapist, Madison is very slowly making progress on learning how to trust 

people. The therapist explained that children in general need permanency to feel a sense of safety 

and belonging, and specifically for Madison and her behaviors, she needs permanency and a 

regular routine with people who love and support her to help her emotional development in order 

to rebuild trust and feel the safety and love that she needs in order to continue to progress.

Olivia was 6 years old at the time of the termination hearing and continued to become 

escalated at school, run out of class, and become upset when trying to work through her emotions. 

She was expelled from her daycare in June 2019 for kicking, hitting, slapping, punching, and 

pulling down a child’s pants; so her foster mother found a nanny for her and reported that Olivia 

was doing better in the more structured environment provided by the nanny.

As of the time of the termination hearing, Cheri was still attending individual therapy and 

making progress working through her history of childhood abuse and neglect. In a letter dated 2

days before the hearing, Cheri’s therapist wrote that Cheri understands that Jose’s physical abuse 
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of the girls has left them fearful; however, Cheri denied having witnessed most of the abuse and 

tends to minimize both the severity and the lasting impact it has had on the girls. Instead, Cheri 

believes their current negative and extreme behaviors may be the result of many factors, given 

their history of multiple foster placements.

The therapist indicated that Cheri continues to doubt that some of what the girls have 

reported in their therapy is accurate and maintains that until she hears the girls describe the physical 

abuse by Jose to her directly, she cannot conclude that it actually occurred as they have described 

it to Schroeder and the caseworker. The letter explains that Madison and Olivia had recently made 

additional reports that they were sexually abused and identified Jose as their perpetrator. Cheri’s 

therapist said that she shared this information with Cheri, and while Cheri did believe that the girls 

may have been sexually abused, she did not believe that Jose could have sexually assaulted and 

threatened them in the manner they described. The therapist indicated that she would continue to 

work with Cheri regarding the impact of trauma on children and how and why victims typically 

report abuse over time. In addition, she would share information with Cheri regarding the secretive, 

manipulative, and coercive methods that some offenders use to gain and maintain sexual access to 

children.

Schroeder did not believe that it would be in the best interests of the children to return them 

to Cheri. Both girls have indicated strongly that they do not want to return because it is a dangerous 

situation for them, and they both have high anxiety and fear associated with home. Schroeder was 

asked whether she believed, based on her experience of working with the girls, that it would be 

possible to reunify them with Cheri at some point, and she said no because of Cheri’s unwillingness 

to leave Jose. She said that even the possibility of reunification “would be torturing them.” She 

was asked about the possibility of reunifying the children with Cheri without taking Jose into 

consideration, and she said it could be possible if there was a complete understanding that Cheri 

was no longer with Jose and had no contact with him, Cheri continued individual therapy, and they 

worked on rebuilding the girls’ trust in Cheri. But Schroeder added that she did not know “how 

many years that would take.” Likewise, the current caseworker testified at the termination hearing 

that DHHS believes that terminating Cheri’s parental rights is in the children’s best interests 

because of the length of time the girls have been out of home; their high behaviors and needs; and 

their need to be in a stable, secure, and safe environment.

Thereafter, the juvenile court entered an order terminating Cheri’s parental rights to 

Madison and Olivia. The court found that it was readily apparent that the children endured 

extensive trauma while living with Cheri and Jose and that both children had an ongoing and 

consistent fear of Jose. The court found that it was “beyond obvious” to anyone who had reviewed 

the reports received at the numerous review hearings that the children’s fear of Jose has never 

abated or subsided but that Cheri continued to stay with Jose and justify her decision to do so. The 

court found that throughout the case, Cheri complied with the services DHHS provided to her, but 

in reality, “she just went through the motions” and did not make the changes she needed to make 

in order for the children to return home.

The court found that the primary issue in the case had been Cheri’s continued denial that 

the abuse the girls suffered at the hands of Jose even took place. Cheri was consistently unwilling 

or unable to acknowledge the reason the girls were removed and consistently voiced that neither 
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she nor Jose did anything wrong. The juvenile court noted its surprise that Cheri testified that she 

only recently learned that her girls fear Jose and noted that despite that discovery and everything 

else that has happened, Cheri continues to stand by the man who abused her children. The court 

said that Cheri decided to choose her husband over her children. Thus, the court determined that 

Cheri had more than enough time and supports to put herself in a position for the girls to return 

home but that she had been unwilling or unable to rehabilitate herself within a reasonable period 

of time, such that the best interests of the children require termination of Cheri’s parental rights. 

The court therefore found by clear and convincing evidence that termination was appropriate under 

§ 43-292(2), (6), and (7), and was in the best interests of the children. Cheri appeals.

ASSIGNMENTS OF ERROR

Cheri assigns, renumbered, that the juvenile court erred in (1) determining that she had 

substantially and continuously neglected and refused to provide the children necessary parental 

care and is unfit to parent them now and in the future, (2) terminating her parental rights when the 

State failed to provide reasonable efforts at reunification, and (3) determining that no exception 

existed to allow her more time to reunite with her children.

STANDARD OF REVIEW

An appellate court reviews juvenile cases de novo on the record and reaches its conclusions 

independently of the juvenile court’s findings. In re Interest of Zoie H., 304 Neb. 868, 937 N.W.2d 

801 (2020).

ANALYSIS

Termination of Cheri’s Parental Rights.

Cheri assigns that the juvenile court erred in determining that she had substantially and 

continuously neglected and refused to provide the children necessary parental care. In other words, 

she argues that the court erred in terminating her parental rights pursuant to § 43-292(2).

In order to terminate parental rights, a court must find by clear and convincing evidence 

that one of the statutory grounds enumerated in § 43-292 exists and that the termination is in the 

child’s best interests. In re Interest of Isabel P. et al., 293 Neb. 62, 875 N.W.2d 848 (2016). In the 

instant case, the State sought to terminate Cheri’s parental rights pursuant to § 43-292(2), (6), 

and (7).

Under § 43-292(7), the State must prove that the juvenile has been in an out-of-home 

placement for 15 or more months of the most recent 22 months. Here, the children were removed 

from Cheri’s care in March 2017, and they remained placed outside the home throughout the 

duration of the case. The State filed the motion to terminate Cheri’s parental rights in February 

2019. Thus, at that time, the children had been in an out-of-home placement for 23 months. The 

State therefore presented clear and convincing evidence to satisfy § 43-292(7).

Section 43-292 requires that the State prove only one of the enumerated statutory grounds 

for termination of parental rights. See In re Interest of Isabel P. et al., supra. Because we conclude 

that there is sufficient evidence that the children have been in an out-of-home placement for 15 or 
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more months of the most recent 22 months, we need not address the other statutory grounds which 

the juvenile court found to exist.

We note that Cheri also assigns that the juvenile court erred in terminating her parental 

rights because the State failed to provide her reasonable efforts to help her reunite with her 

children. Neb. Rev. Stat. § 43-283.01(2) (Cum. Supp. 2018) requires the State to make reasonable 

efforts to preserve and reunify the family subject to certain exceptions not applicable here. 

However, § 43-283.01 is incorporated only into § 43-292(6), not into the remaining subsections of 

§ 43-292. In re Interest of DeWayne G. & Devon G., 263 Neb. 43, 638 N.W.2d 510 (2002); In re 

Interest of Andrew M. et al., 11 Neb. App. 80, 643 N.W.2d 401 (2002). Because we have 

determined that termination was proper pursuant to § 43-292(7) and that the State need establish 

only one of the statutory grounds enumerated in § 43-292, § 43-283.01 is not applicable to this 

case. See In re Interest of Andrew M. et al., supra. We therefore need not specifically address 

Cheri’s argument regarding reasonable efforts.

However, the evidence adduced to prove termination on any statutory ground other than 

§ 43-292(7) is highly relevant to the best interests of the children, as it would show abandonment, 

neglect, unfitness, or abuse, and thus, whether the State proved by clear and convincing evidence 

grounds for termination under § 43-292(6) is highly relevant to a determination of the children’s 

best interests. See In re Interest of Shelby L., 270 Neb. 150, 699 N.W.2d 392 (2005). We will 

therefore consider Cheri’s arguments relating to reasonable efforts in the context of her unfitness

and the best interests of the children.

A child’s best interests are presumed to be served by having a relationship with his or her 

parent. In re Interest of Isabel P. et al., 293 Neb. 62, 875 N.W.2d 848 (2016). This presumption is 

overcome only when the State has proved that the parent is unfit. Id. 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 has caused, or probably will result in, 

detriment to a child’s well-being. Id. 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 as the other. Id.

Cheri argues that the court erred in finding her unfit to parent her children when she 

successfully completed all services offered to her and when her progress was blocked by 

Schroeder. Although Cheri completed the services that DHHS provided, the barrier to reunification 

that continued throughout the entirety of the case was Cheri’s unwillingness or inability to 

acknowledge the abuse or trauma the children endured while living with her and Jose. The record 

is replete with concerns that Cheri continued to deny any wrongdoing, refused to acknowledge or 

admit that Jose had done anything wrong, and did not believe the girls’ reports of abuse.

In a letter dated just 2 days before the termination hearing, Cheri’s therapist wrote that 

Cheri continued to doubt some of what the children had reported and did not believe that Jose 

could have sexually assaulted and threatened them in the manner that they had just recently 

described. While testifying at the termination hearing, Cheri was asked whether she believed the 

girls’ reports of their abuse by Jose, and she said that she believed “some of them.” She was asked 

whether she viewed Jose as a safety risk for the children, and she did not “exactly know how to 
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answer that” question. She testified that if she was asked to move out of Jose’s house, she would 

do so in order to get her children back, but when asked whether that was the only reason she would 

move out, she responded, “I mean I feel safe around him. So --.”

Cheri claims that any progress she made during the case was blocked by Schroeder, 

because visitation remained suspended throughout most of the case based on Schroeder’s 

recommendation. Visitation was initially suspended in June 2017 because Schroeder expressed 

concerns that Cheri was trying to “coach” Madison during visits. Visits remained suspended 

because the girls continued exhibiting extreme behaviors and expressing fear of Jose. When 

therapeutic sessions were attempted in September 2018, Madison and Olivia each talked with 

Cheri about things Jose had done to her, but Cheri did not react to or acknowledge their disclosures 

or empathize with their feelings. Afterward, Cheri explained to Schroeder that she was in a 

“difficult position” between Jose and her children and claimed that “people have the wrong idea 

about [Jose] and he’s not abusive.”

The children’s behaviors increased after meeting with Cheri, and Schroeder recommended 

that no additional family sessions occur until Cheri sought treatment to deal with her own history 

of trauma in order to learn how to empathize with the children and validate their feelings and 

experiences. Nevertheless, a therapeutic visit by phone between Cheri and the girls was attempted 

in February 2019, but according to Schroeder, it was not beneficial for the girls. The girls started 

having negative behaviors associated with the conversation, so she did not attempt any additional 

phone conversations or therapeutic visits after that. Thus, Schroeder’s recommendation that 

visitation between Cheri and the girls remain suspended, while potentially hindering an attempt at 

repairing the bond between Cheri and the children, was done because the children reacted 

negatively to their therapeutic visits with Cheri, and Cheri was unable or unwilling to validate their 

traumatic history and feelings in that regard.

As referenced above, Cheri asserts that DHHS failed to provide reasonable efforts aimed 

at reunifying her with her children. She specifically claims that her leaving Jose was DHHS’

“informal” position in order for reunification to occur but that DHHS never offered services to 

assist her in establishing an independent household away from Jose. Brief for appellant at 12. Each 

of the three caseworkers assigned to the case, however, testified at the termination hearing that it 

was not DHHS’ position that Cheri had to leave Jose in order to achieve reunification. And 

throughout the 28 months from the time the children were removed to the time of the termination 

hearing, the children had not made sufficient progress to return to Cheri, with or without Jose in 

the home. At the time of the hearing, the girls were still exhibiting extreme behaviors, such that 

Madison had been referred to Behaven Kids just three months prior to the hearing and Olivia had 

been expelled from her daycare the month before the hearing. Therefore, although we disagree 

with Cheri that her leaving Jose was required before reunification could occur, the children were 

not in a position to achieve reunification at any point during the case whether Cheri was living 

with Jose or independently.

More concerning and relevant to the question of Cheri’s unfitness as a parent, however, is 

her position regarding Jose. She was still married to him and living with him at the time of the 

termination hearing. On several occasions, including at the hearing, she indicated that she would 

leave Jose if it would help her get her children back, but she remained with him and continued to 
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justify her decision to do so. In a May 2019 letter to the children, Cheri stated that she wanted to 

try to explain why she had not left Jose, writing that she cares very much about him and believed 

that he was working hard to make their home safe for the children.

At the termination hearing, Cheri testified that although she had received copies of the 

court reports detailing the allegations the children had made against Jose dating back to the 

beginning of the case, she had just recently realized that her children were afraid of him. She 

stopped short of acknowledging that he was a safety risk to the children and said that she felt safe 

around him. Thus, despite having attended individual therapy throughout the case, it does not 

appear that Cheri gained any insight into why her relationship with Jose was a problem, as opposed 

to simply believing that the relationship might be a barrier to reunification with the children. In 

other words, it is concerning that Cheri wanted to continue her relationship with someone who 

abused and terrified her children, and as the juvenile court articulated, Cheri was choosing Jose 

over her children.

Ultimately, Schroeder opined that it would not be in the children’s best interests to return 

to Cheri. Both girls have strongly indicated to her that they do not want to return home, and they 

both continue to have high anxiety and fear associated with home. Madison’s therapist at Behaven 

Kids testified that Madison had expressed similar concerns to her, fearing being placed back home 

with Cheri because she was not safe there.

Schroeder testified that reunification with Cheri was not possible because of Cheri’s 

unwillingness to leave Jose, and that even the possibility of reunification would be “torturing 

them.” Without taking Jose into consideration, Schroeder thought reunification could be possible 

if Cheri was no longer with Jose and had no contact with him, if Cheri continued individual 

therapy, and if they worked on rebuilding the girls’ trust in Cheri. But she did not know “how 

many years that would take.”

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 parent and child. In re Interest of Joseph S. et al., 291 Neb. 953, 

870 N.W.2d 141 (2015). Given that 28 months into the case, Cheri remained unwilling or unable 

to place her children above Jose and the children continued to exhibit extreme behaviors and relay 

a fear of returning home, resulting in the continued suspension of visitation with Cheri, the record 

does not establish that Cheri has made continued improvement or that a beneficial bond between 

her and the children exists. And it does not appear that permanency with Cheri could be achieved 

in the foreseeable future. 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). Accordingly, we find that the clear and convincing evidence establishes that Cheri is unfit 

and that terminating her parental rights is in the best interests of the children.

Exception to Filing Motion to Terminate Parental Rights.

Cheri also assigns that the juvenile court erred in determining that no exception existed 

under § 43-292.02 to allow her more time to reunite with her children.

We first address the State’s argument that this issue is not properly before this court. As 

the State notes, the juvenile court determined that no exception existed in an order filed in 
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December 2018, months prior to the order terminating Cheri’s parental rights. The Nebraska 

Supreme Court, however, has ruled that an order by the juvenile court finding that no exception 

exists under § 43-292.02 is not a final, appealable order because it does not affect a substantial 

right of the parent. See In re Interest of Anthony R. et al., 264 Neb. 699, 651 N.W.2d 231 (2002). 

The filing of a termination pleading, standing alone, does not affect any substantial right of a 

parent. Id. If such a petition is filed pursuant to the court’s order, the parent will receive notice and 

an opportunity to be heard in accordance with statutorily prescribed procedures. Id. If the filing of 

a petition for termination of parental rights ultimately results in an order adverse to the parent, it 

is well established that such an order is final and appealable. Id. Thus, Cheri could not have 

appealed the December 2018 order because it was not a final order.

Cheri now argues that the court should have found an exception under § 43-292.02, which 

would have allowed her additional time to work toward reunification. This conclusion does not 

logically follow, however. The State is obligated to file a petition to terminate the parental rights 

of a parent if the child has been in foster care under the responsibility of the State for 15 or more 

months of the most recent 22 months. § 43-292.02(1). Within 30 days after the 15-month period 

under § 43-292.02(1), 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 § 43-292.02(3) in this particular case. 

§ 43-292.03(1).

The purpose of an exception hearing, derived from the plain language of § 43-292.03(1), 

is to determine whether the State may be excused from the mandatory requirement of 

§ 43-292.02(1) that it file a petition to terminate parental rights under certain circumstances, 

including those where a juvenile has been in foster care under the responsibility of the State for 15 

of the most recent 22 months. In re Interest of Clifford M. et al., 261 Neb. 862, 626 N.W.2d 549 

(2001). The State is not required to file a petition to terminate if the juvenile court determines at 

the exception hearing that any of the circumstances specified in § 43-292.02(3) exist. In re Interest 

of Clifford M. et al., supra. If such circumstances are not shown, § 43-292.03(1) provides that the 

State shall proceed as provided in subsection (1) of section 43-292.02, which requires the filing of 

a petition to terminate parental rights under specified circumstances. In re Interest of Clifford M.

et al., supra. While an exception hearing may afford a basis for relieving the State of its statutory 

obligation to file a petition to terminate under § 43-292.02(1), neither § 43-292.02 nor § 43-292.03 

would prevent the State from petitioning for termination of parental rights under § 43-292 even if 

it were not required to do so. See In re Interest of Clifford M. et al., supra.

Stated differently, once a child has been in an out-of-home placement for the 15-month 

period, 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. If the juvenile court finds that no 

exception under § 43-292.02(3) exists, the State remains obligated to file the termination petition. 

If the court determines that a statutory exception does exist, the State is no longer required to file 

the petition; however, it may elect to do so anyway. In other words, the State may choose to file 

the termination petition after the 15-month period regardless of the outcome of the exception 

hearing.

We therefore do not agree with Cheri that had the juvenile court found an exception in this 

case, she would have had additional time to work toward reunification. To the contrary, at the 
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exception hearing, the State argued that no exception existed due to the amount of time the case 

had been ongoing and the extent, or lack thereof, of Cheri’s participation. It is therefore reasonable 

to infer that even if an exception had been found, the State would have chosen to move forward 

with the filing of the termination petition, rather than allowing Cheri additional time to work 

toward reunification.

CONCLUSION

For the foregoing reasons, upon our de novo review of the record, we affirm the order of 

the juvenile court terminating Cheri’s parental rights to Madison and Olivia.

AFFIRMED.