In re Interest of Logan J. ( 2021 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
IN RE INTEREST OF LOGAN J. ET AL.
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 LOGAN J. ET AL., CHILDREN UNDER 18 YEARS OF AGE.
STATE OF NEBRASKA, APPELLEE,
V.
ERIKA J., APPELLANT, AND ERIC F., APPELLEE AND CROSS-APPELLANT.
Filed December 7, 2021. Nos. A-21-249, A-21-250, A-21-254.
Appeals from the County Court for Scotts Bluff County: JAMES M. WORDEN, Judge.
Affirmed.
Andrew M. Pope, of Crites, Shaffer, Connealy, Watson, Patras & Watson, P.C., L.L.O.,
for appellant.
Danielle Larson, Deputy Scotts Bluff County Attorney, for appellee State of Nebraska.
Audrey M. Long, of A. Elliott Law, P.C., L.L.O., for appellee Eric F.
MOORE, BISHOP, and ARTERBURN, Judges.
MOORE, Judge.
I. INTRODUCTION
Erika J. appeals, and Eric F. cross-appeals, from an order of the Scotts Bluff County Court
sitting as a juvenile court, terminating their parental rights to three of their children. Upon our de
novo review of the record, we affirm the juvenile court’s order.
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II. STATEMENT OF FACTS
1. PROCEDURAL BACKGROUND
Erika and Eric are the parents of Roper F., born in February 2017. Erika is also the mother
of Logan J., born in February 2015. Eric is also the father of Tannen F., born in December 2009.
Logan’s father and Tannen’s mother are not a part of the appeal before us now, and they will only
be discussed as necessary to address Erika’s and Eric’s assigned errors.
In September 2019, a petition was filed with the Sioux County Court, sitting as a juvenile
court, to adjudicate Tannen, Logan, and Roper pursuant to Neb. Rev. Stat. § 43-247(3)(a) (Reissue
2016) based on the action of both parents. Specifically, the petition alleged that Eric assaulted
Logan with a belt, causing severe bruising on Logan’s legs, and that Erika failed to report the
assault to law enforcement and failed to protect the children in her home. Tannen, Logan, and
Roper were removed from the parental home on September 6, 2019, and placed with a foster
family. Tannen was later placed with his biological mother in April 2020. In November 2020,
Tannen’s biological mother began fostering Logan and Roper. All three children have remained
out of Erika’s and Eric’s home since their removal.
(a) Eric’s Motion for Visitation
On September 26, 2019, Eric filed a motion that “request[ed] the court adopt a reasonable
parenting time schedule” for Eric. On September 6, Eric was arrested for criminal child abuse
related to the allegations in the adjudication petition. Due to the pending child abuse case, a
“no-contact provision” between Eric and all three children had been ordered by the criminal court
as a requirement of Eric’s bond. The details of this “no-contact provision” are not included in our
record. Eric’s motion was heard by the juvenile court on October 4. Evidence was presented by
both the State and Eric, including testimony by the Department of Health and Human Services
(DHHS) initial assessment worker and the two law enforcement officers who investigated Logan’s
bruising on September 6. In an order entered on October 15, the court allowed Eric supervised
visitation with Tannen and Roper, with the amount of the supervised visitation to be determined
by DHHS. The court also continued its previous order that Eric have no visitation with Logan.
On April 16, 2020, Eric motioned the juvenile court to remove the “no contact provision”
and allow visits between him and Logan. Eric cited his compliance with DHHS’ case plan prior to
the plan being court-ordered as evidence that he was taking the reunification process seriously.
(b) Adjudication
The following day, the State filed an amended petition which stated that Eric engaged in
“excessive discipline” and that Logan received severe bruising on his legs “as a result of a belt
used by Eric . . . ” The adjudication hearing was also held on April 17, where both Erika and Eric
entered pleas of no contest to the allegations in the amended petition. The juvenile court then found
that Tannen, Logan, and Roper were adjudicated under § 43-247(3)(a).
(c) Disposition
The juvenile court entered its dispositional order on May 1, 2020. The court adopted the
DHHS case plan which outlined managing mental health, providing age appropriate parenting, and
developing positive relationships as plan goals for both Erika and Eric. The court then modified
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the no-contact order to allow for therapeutic visitation between Eric and Logan. The court also
ordered “[r]easonable visitation to be determined by DHHS. Further visitation conditions are:
Continuing as determined by HHS.” Neither Erika nor Eric appealed the court’s dispositional
order.
(d) Eric’s Suspended Visitation
On July 28, 2020, DHHS halted supervised visitation between Eric and Tannen and Roper,
as well as therapeutic visitation between Eric and Logan. DHHS cited Eric’s inappropriate
behavior with the children, Eric’s recent assault charge in an unrelated matter, and
recommendations by therapeutic providers as reasons why contact between Eric and the children
was stopped.
On July 30, 2020, Eric filed a motion for emergency orders on visitation, arguing that the
juvenile court had “illegally delegated” its visitation authority to DHHS when the court allowed
DHHS to determine reasonable visitation in its dispositional order. A hearing on Eric’s motion for
emergency orders was held on August 14. Betsy Goodell, the family’s DHHS case manager from
September 2019 until September 2020, testified that DHHS was concerned by Eric’s erratic
behavior towards professionals on the case, letters from two therapists recommending that visits
between Eric and the children stop, as well as Eric’s general lack of participation in his case plan
goals. Goodell also testified that the clinician who had performed Eric’s parental capacity
evaluation advised that therapists involved in the case were the best source to determine visitation
progress. Eric testified in his own behalf and described the parenting classes he had completed.
Eric also denied inflicting the injuries on Logan’s legs. The juvenile court temporarily suspended
visitation between Eric and all three children and took the matter under advisement, noting that it
would attempt to issue a decision as to Eric’s visitation before the scheduled review hearing on
September 4.
(e) Motion to Transfer
On August 14, 2020, Eric filed a motion to transfer jurisdiction to Scotts Bluff County. On
August 31, the juvenile court, on its own motion, continued the review hearing and Eric’s motion
to transfer jurisdiction from September 4 to October 2. All parties then filed a joint stipulation to
transfer jurisdiction and the order by the Sioux County Court transferring jurisdiction was filed on
September 14. The Sioux County Court had not ruled on Eric’s motion for emergency orders on
visitation at the time of the jurisdictional transfer.
(f) Motion for Termination of Parental Rights
On September 29, 2020, the State filed a motion in Scotts Bluff County Court, sitting as a
juvenile court, for termination of Erika’s and Eric’s parental rights, alleging statutory grounds to
terminate existed pursuant to Neb. Rev. Stat. § 43-292(2) and (6) (Reissue 2016), and alleging that
termination was in the best interests of the children.
(g) Eric’s Motion for Video Visitation
Prior to the termination trial, Eric motioned the juvenile court for video visits with Tannen
and Roper, and a hearing on the motion was held on November 30, 2020. Eric reoffered certificates
of completion for various courses he had participated in and testified to the video capabilities in
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the jail for virtual visits, as Eric was incarcerated at the time of the hearing. At the close of the
hearing, the court ordered that Eric begin therapeutic visitation with Tannen and Roper for 1
month, and then move to supervised visits with Tannen and Roper.
2. TRIAL
The termination trial was held over the course of 3 days in January 2021. At the trial, 26
witnesses testified and over 30 exhibits were received by the juvenile court.
(a) Logan’s Injuries
Law enforcement was called to Logan’s preschool on September 6, 2019, to investigate
possible child abuse caused by Eric. An officer testified to hearing Eric tell Logan that Eric was
sorry and that he did not mean to hurt Logan after Eric was informed by law enforcement that they
were investigating Logan’s injuries. An officer who observed the bruising on Logan’s legs testified
that the bruising was on both of Logan’s thighs and appeared to be in various stages of healing, as
some of the bruises were lighter in color. Officers also noticed that the bruise on Logan’s left thigh
contained a particular pattern, as the bruise had a hole in the center that appeared to have been
made by a belt. A secretary at Logan’s preschool testified that the bruises on Logan were the worst
bruises she had ever seen on a child and that she had observed a buckle impression on Logan’s
thigh. Eric was later arrested for criminal child abuse.
The DHHS initial assessment worker contacted law enforcement and organized a forensic
interview, which took place the same day the injuries were reported. The worker observed the
child forensic interview of Logan and testified that Logan disclosed that his “daddy had . . . hurt
him . . . with a belt.” When Logan was asked in the interview what Erika did after the incident
with the belt, Logan responded that “Mommy said no more TV for Logan.” Tannen also had a
child forensic interview. The worker testified that she found Tannen’s interview responses to be
coached.
The initial assessment worker also testified that neither Erika nor Eric would provide
explanations for how Logan’s injuries occurred. Another DHHS worker who assisted with the case
intake, testified that Erika later attributed the bruises on Logan’s legs to his wrestling with Tannen
and stated that “Logan’s never been known for his gracefulness.” Erika also told the workers that
while the children are spanked in the family home and that Eric does the physical discipline, Eric
has never left a bruise on the children. Throughout the case Erika has denied ever seeing the bruises
on Logan’s legs, reporting she had only seen them in photographs shown to her. Erika testified
that the bruises were never revealed to her because Logan was bathing and dressing himself in
September 2019.
Throughout the case, Eric gave various explanations for Logan’s injuries. Goodell stated
that Eric explained that Logan’s fall onto a baler caused his bruises. In August 2020, Eric told his
counselor that he spanked Logan with his bare hands. At the time of the termination trial, Eric
testified that he spanked Logan with the strap of a duffel bag. When asked why Eric would spank
Logan with a duffel bag strap, Eric stated, “[t]hat is the question of the year.”
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(b) Children’s Therapeutic Services
Melissa Bauer-Post, a licensed mental health practitioner, facilitated therapeutic visits
between Logan and Eric in July 2020. Bauer-Post noticed in her initial sessions with Logan that
he needed permission to do everything during play therapy. Bauer-Post testified that during the
first therapeutic visit, Eric struggled to follow Logan’s lead and did not stay to discuss the session
after it had ended. A second therapy session was scheduled, but Bauer-Post received a call the
night before the session from DHHS, informing her that Eric had arrived to the children’s visitation
intoxicated and that the session would need to be canceled. The second session was rescheduled,
but Eric did not show up. Bauer-Post called Eric to inform him that she would not be facilitating
any more therapeutic visits between him and Logan. Eric then became very angry and threatened
Bauer-Post with his attorney.
Bauer-Post became Logan and Roper’s individual therapist in October 2020. Bauer-Post
testified that Logan is diagnosed with ADHD, an adjustment disorder, anxiety, and depression.
Roper also has an adjustment disorder and anxiety. Because of these childhood mental health
struggles, both boys need permanency, stability, and normalcy. Bauer-Post testified that because
both Logan and Roper display a high level of fear, it is likely they suffered past trauma, being
yelled at, and living in immense fear.
Dr. Sue Michal, a mental health therapist, began seeing Tannen on December 4, 2019.
Michal observed Tannen to be protective of Eric and that Tannen had “learned codependency.”
Michal testified that Tannen has been “groomed” by Eric to minimize Eric’s actions, even if
Tannen knows the acts are “probably illegal.” Tannen will often come to his father’s defense,
saying that no one understands how bad Eric has it. Since Eric was incarcerated in September
2020, Michal has noticed Tannen to be more calm and stable. Michal testified that she recommends
Tannen not have contact with his father until he reaches the age of majority. Michal recounted
Eric’s criminal behaviors, domestic violence, and teaching Tannen to minimize Eric’s behavior as
reasons why she recommends Tannen have years of “noninfluence” from his father.
(c) Domestic Violence
The domestic violence dynamic between Erika and Eric has been a presence throughout
the case. On February 12, 2020, law enforcement was called to their home due to a domestic
disturbance. An officer who arrived on the scene observed lumps on Erika’s forehead and testified
that Erika indicated that Eric tried to put her in a chokehold and she “jabbed” Eric with car keys
in order to free herself from him. Erika then left the residence but returned after receiving a call
from Eric. The officer testified that when Erika returned to the home, Eric punched Erika’s lip and
stomach. The officer was unable to interview Eric because he was so intoxicated. The officer
observed broken items throughout the house, the bedroom in disarray, and a significant amount of
blood on the kitchen floor. Eric was then arrested for strangulation and domestic assault.
In her testimony about the February 2020 incident, Erika acknowledged that in April, she
wrote a letter recanting her initial report to police, stating that Eric had not hit her. At trial, Erika
clarified that Eric had put her in a chokehold, but that it was not a “full chokehold.”
Eric did not testify about the February 2020 incident. Throughout the case Eric denied
using physical violence against Erika, but Eric’s counselor testified that Eric acknowledged that
he bullies Erika.
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As discussed below, Eric was incarcerated for periods of time throughout the case. After
Eric was arrested on September 6, 2019, for criminal child abuse, law enforcement began listening
to jail calls between Eric and Erika. An officer testified that during the calls, Eric was attempting
to control Erika and provide her with a false narrative for law enforcement and the courts. The
tone of these jail calls revolved around Eric pressuring Erika to frame the child abuse allegations
in a favorable way for Eric.
Officers also contacted women who had previously been in a relationship with Eric. These
women identified as victims of Eric’s domestic abuse, including instances of strangulation.
Officers also contacted law enforcement in states in which Eric had previously resided, and
received a report of a domestic violence investigation involving Eric and his wife at the time.
Officers testified to relaying their concerns regarding the domestic violence between Eric and
Erika to DHHS.
Goodell testified that when she confronted Eric about his domestic violence history, he
denied domestic violence ever occurring in the home. DHHS remained concerned about domestic
violence in the case, but when Goodell attempted to address the concerns with Erika, she denied
it.
Caroline Teeple, the DHHS case manager for the family from September 2020 onward,
testified that in a conversation with Erika in October, Erika indicated that she was not “completely
done” with Eric. After Eric was incarcerated in September, Teeple requested copies of jail calls
between Eric and Erika and observed 176 phone calls within a 1-week period.
Later, in November 2020, Erika reported to Teeple that she had cut off all communication
with Eric. However, Teeple testified to a jail call on November 17 in which Eric asked another
detainee to call a third party to relay a message to Erika for him. There were also six calls made
on November 17 during which Eric used another detainee’s line in an attempt to hide his contacts
with Erika. During one of these calls, Teeple testified to Erika telling Eric, “in order for me to get
the kids back everyone has to believe it and I have to cut all ties with you.” Later in the call, Eric
referenced a plan the couple had to “remain a family.”
Teeple testified that DHHS’s concerns regarding the family included a lack of sustainable
behavioral change and continued safety threats over a year into the case. Domestic violence
concerns contributed to a worry that Eric would continue to abuse the children, and Erika would
be unable to protect the children from serious harm. Teeple rated both Eric and Erika’s case
progress as poor.
Erika testified about her relationship with Eric generally and the difficulty she has had in
ending the relationship due to her fear of him and her lack of community supports. Erika stated
that Eric mentally abused her by blaming her throughout the case and making everything out to be
her fault. Erika testified to having taken steps to address DHHS’s concerns by not communicating
with Eric, changing her phone number, changing her address, and planning to file for divorce when
she is able to afford it.
(d) Other Criminal Cases
Both Erika and Eric spent a portion of this case incarcerated. Erika was incarcerated from
May 8 to August 10, 2020. Teeple testified that she had learned that Erika was arrested on January
7, 2020, for theft and on May 6 for a false reporting charge related to the February domestic assault.
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In addition to Eric’s arrest in February 2020 for domestic assault and strangulation, Teeple
testified that Eric was sentenced on September 9 to 18 months for attempted child abuse and to 6
months for assault of a minor. The two sentences were ordered to run consecutively. While Eric’s
charge of attempted child abuse was related to Logan’s injuries, his charge of third degree assault
was related to a case involving Eric’s contacts with a 16-year-old juvenile. A law enforcement
officer testified that the allegations of the case included Eric picking up the juvenile from her high
school and driving her to a nearby parking lot where he fondled and kissed her. Following a
forensic interview of the juvenile, Eric was arrested. The officer also noted that Erika stated that
she was aware that Eric had been contacting a younger girl at a high school.
(e) Erika’s Visitation
Goodell testified that Erika attended nearly all of her visits from September through
December 2019. Erika was able to move from fully supervised to semi-supervised visits in
October. However, DHHS returned Erika to fully supervised visits in January 2020 after a family
support worker saw Eric in the home when there was a no-contact order between Eric and Logan.
Erika’s visitation was then halted from May to September due to her incarceration.
When Teeple took over the case, Erika’s visitation attendance was less consistent than it
had been before her incarceration. Teeple testified that Erika attended, on average, 81 percent of
her visits from September to December 2020.
Tina Campos, a family support worker who supervised Erika’s visits with her children,
began working with the family in September 2020. Campos stated that Erika was initially engaged
with the children, was able to keep them on a nap and eating schedule, and was prepared for the
visits. However, in October, Campos observed a change in behaviors from Erika and the two
children. Erika would have a few positive visits with the children followed by a visit that went
poorly, with Erika being unable to sustain positive visits consistently. Beginning in October, Erika
also began to use her phone as a form of escapism when she would become frustrated during visits.
While there were no noted safety concerns during visits, Campos testified that Erika’s frustration
would cause her to shut down during her visits with Logan and Roper.
(f) Erika’s Therapeutic Services
Dr. Gage Stermensky, a licensed psychologist, conducted a parental capacity evaluation
for Erika in December 2019. Stermensky testified that Erika had the capacity to meet the urgent
or emergency needs of her children, but only if it does not lead to upsetting or finding herself out
of favor with significant others. Stermensky diagnosed Erika as having dependent personality
traits, and was concerned that Erika would seek out significant others that would place her or her
children at risk. Stermensky testified that Erika did not present with any concerns regarding
intellectual function, but that there were mental health issues that would require Erika to comply
with a treatment plan and long-term therapy.
Maria Saenz, a licensed psychotherapist, met Erika in August 2019 when Erika voluntarily
came to see Saenz for assistance with her mental health concerns. Saenz scheduled Erika for
weekly sessions, but Saenz only saw Erika for 13 sessions between then and October 2020. Saenz
testified that Erika’s inconsistency with attendance made Erika’s sessions ineffective as each
session was like starting over and there were always new issues to address. In her last session with
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Saenz, Erika did disclose that Eric had abused the children, but Erika never disclosed that Eric had
abused her. Saenz testified that it is common for a client who is experiencing abuse in the home to
be sporadic with treatment attendance.
Erika was referred to Community Action Partnership of Western Nebraska (CAPWN) in
July 2019 for therapeutic services and medication management. In her individual diagnostic
interview on July 3, Erika disclosed that she was struggling with anxiety and mood deregulation,
as well as past emotional abuse, sexual abuse, and a current sexual assault investigation pending
at the time of the interview. Further evaluations indicated that Erika was struggling with depression
and anxiety related to having her children removed. Erika started medication management services
with CAPWN, but professionals testified to being unable to fully address the reactions Erika was
having to her prescribed medications. While it was recommended that Erika receive counseling
and mental health therapy during her medication management services, professionals noted that
Erika not being properly medicated hindered her ability to move forward with her therapy.
Cory McManigal, a licensed alcohol and drug counselor with CAPWN, was Erika’s
individual counselor beginning in January 2020. In sessions with McManigal, Erika disclosed her
concerns that her alcohol consumption was becoming increasingly problematic. In addition to
individual sessions, Erika completed a substance abuse intensive outpatient program with
McManigal from February to April. McManigal testified that Erika was developing coping skills
and working on setting boundaries with Eric. Erika was incarcerated from May to September and
sought McManigal out for counseling after her release. However, Erika stopped attending
counseling sessions in October despite future sessions being scheduled.
(g) Couple’s Counseling
Erika and Eric began couple’s counseling in April 2020. Their counselor saw them twice,
once in April and then again in September. The couple did not disclose Eric’s arrest for domestic
violence against Erika.
(h) Eric’s Therapeutic Services
Stermensky also conducted a parental capacity evaluation for Eric in December 2019.
Stermensky diagnosed Eric with an unspecified anxiety disorder, antisocial personality traits, an
unspecified alcohol-use disorder, and an alcohol-related disorder and advised that Eric attend
individual therapy and follow therapeutic recommendations. Stermensky testified that if Eric did
not follow therapeutic recommendations, it would affect his ability to function well in the parenting
role, Eric’s other relationships, and Eric’s ability to meet various goals.
Eric was likewise referred to services at CAPWN. A provider at CAPWN conducted a
substance use evaluation on Eric in October 2019 and diagnosed him with an alcohol-use disorder.
It was recommended that Eric receive weekly outpatient treatment from the provider who had
performed the evaluation. However, Eric returned for outpatient treatment only twice after his
evaluation, both times in November 2020.
Eric began receiving medication management services at CAPWN in September 2019. The
provider offering Eric’s medication management testified that managing Eric’s medication was
difficult as he would increase dosage amounts on his own and was generally not medication
compliant. Eric was receiving medication management services until his incarceration. Providers
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also testified that medication without accompanying therapy will not effectively meet the needs of
the patient.
Eric saw an individual counselor for a few sessions before discontinuing treatment because
he believed the therapist was “prying into information into Erika, and [Eric] felt that it was
inappropriate.” Eric then transitioned to Sandy Raney, a counselor dually licensed in substance
abuse and mental health, in August 2020. Raney testified that she performed a co-occurring
evaluation on Eric, as well as a domestic violence assessment after Eric disclosed he had a
domestic violence charge. Raney advised Eric to participate in anger management and domestic
violence classes. Eric participated in five sessions with Raney prior to his incarceration.
Raney testified that Eric was inconsistent with his disclosures. Eric was also not sincere in
acknowledging that he had an anger problem, and Raney stated that she “was being played to get
him out of trouble with DHHS and get on with his life.” At one point, Eric informed Raney that
he wanted to divorce Erika so that she could retain custody of the children. Eric never attended
any of the groups that Raney recommended. Raney stated that Eric made very minimal progress
on his treatment plan. Raney testified that it would not be beneficial for the children or Eric to have
any visitation at the time of trial. If Eric was not able to manage his anger, Raney predicted that
the children would grow into “little Erics.”
(i) Eric’s Inappropriate Behavior
Various witnesses described Eric’s inappropriate behavior towards adults involved in the
case and at visits with his children. Both Logan’s preschool secretary and the children’s foster
mother testified to inappropriate and sexual remarks Eric had made to them.
Goodell noted concerns regarding inappropriate conversations between Eric and the
children as well as comments made to the visitation workers. Inappropriate conversations consisted
of talking with the children about the family’s child welfare case and making sexual comments to
workers. The April 27, 2020, DHHS court report also notes Eric calling the children inappropriate
names and speaking to Tannen about pornography.
(j) Leave to Amend Termination Motion
At the close of the second day of trial, the State made a motion for leave to amend its
motion to terminate parental rights to include an allegation under § 43-292(7), alleging that the
children have been in an out of home placement 15 out of the most recent 22 months. Erika and
Eric objected to the State’s motion for leave to amend. The court took the State’s motion under
advisement. During the final day of trial, the court heard argument from all parties and found that
the State’s motion for leave to amend, to include the allegation under § 43-292(7), would not
prejudice the parties and allowed the State to amend its original motion.
3. ORDER
Following the termination hearing, the juvenile court entered an order on March 2, 2021,
terminating Erika’s rights to Logan and Roper and Eric’s rights to Tannen and Roper. The court
found that the State had met its burden of proving grounds for termination under § 43-292(2), (6),
and (7). The court further found that “[t]he only thing that has been corrected in this case is Logan’s
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physical injuries have healed” and that it was in the best interests of the children to have Erika’s
and Eric’s parental rights terminated.
Erika appeals, and Eric cross-appeals.
III. ASSIGNMENTS OF ERROR
Erika assigns, restated, that the juvenile court erred in (1) allowing the State to amend the
petition at trial to include the statutory ground under § 43-292(7), (2) finding that there was clear
and convincing evidence that statutory grounds for termination existed, and (3) finding that it was
in the best interests of the children to terminate her parental rights.
Eric cross-appealed, assigning, restated, that the juvenile court erred in (1) delegating its
authority to the DHHS to determine reasonable visitation, (2) allowing the State to amend the
petition at trial to include the statutory ground under § 43-292(7), (3) finding that there was clear
and convincing evidence that statutory grounds for termination existed, and (4) finding that it was
in the best interests of the children to terminate his parental rights.
As a preliminary matter, we note that Eric failed to comply with the rules regarding
cross-appeals. See Neb. Ct. R. App. P. § 2-109(D)(4) (rev. 2021). Eric properly designated the
cover of his brief as a cross-appeal, but he did not set forth his cross-appeal in a separate division
of the brief as required by § 2-109(D)(4). However, because Eric’s brief complies with the rules
regarding an appellant’s brief and does not take issue with any errors asserted by the appellant, in
our discretion, we treat Eric’s brief as a brief on cross-appeal.
IV. 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. When the evidence is in conflict, however, an
appellate court may give weight to the fact that the juvenile court observed the witnesses and
accepted one version of facts over another. In re Interest of Mateo L. et al., 309 Neb. 565, 961
N.W.2d 516 (2021).
V. ANALYSIS
1. DELEGATING VISITATION AUTHORITY
First, we address the only issue argued by Eric but not by Erika. Eric assigns that the
juvenile court erred in delegating its authority for determining visitation to DHHS. Eric asserts
that this delegation of authority violated the law and his due process rights, as DHHS made a
unilateral decision to halt his visitation without any oversight by the court and which interfered in
his constitutional rights to raise his children.
Before deciding whether the juvenile court improperly delegated the authority to determine
Eric’s right to visitation, we must determine whether we have jurisdiction to address this assigned
error. In a juvenile case, as in any other appeal, before reaching the legal issues presented for
review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter
before it. In re Interest of Octavio B. et al., 290 Neb. 589, 861 N.W.2d 415 (2015). For an appellate
court to acquire jurisdiction of an appeal, there must be a final order entered by the court from
which the appeal is taken. Id. Juvenile court proceedings are special proceedings under Neb. Rev.
Stat. § 25-1902 (Reissue 2016), and an order in a juvenile special proceeding is final and
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appealable if it affects a parent’s substantial right to raise his or her child. See In re Interest of
Octavio B. et al., supra. The Nebraska Supreme Court has held that dispositional orders are final
and appealable. In re Interest of Taylor W., 276 Neb. 679, 757 N.W.2d 1 (2008).
In its dispositional order entered on May 1, 2020, the court provided that Erik’s visitation
was to be determined by DHHS. This order was final and appealable, and thus should have been
appealed within 30 days. See, Neb. Rev. Stat. § 43-2,106.01(1) (Reissue 2016) (any final order or
judgment entered by juvenile court may be appealed to Court of Appeals in same manner as appeal
from district court to Court of Appeals); Neb. Rev. Stat. § 25-1912 (Cum. Supp. 2018) (appeals
must be filed within 30 days after entry of judgment). Eric did not appeal the court’s May 1 order;
rather, he moved for emergency orders on visitation on July 30, 2 days after DHHS suspended
visitation between Eric and Tannen and Roper. Because Eric did not appeal within 30 days of the
May 1 order, we do not have jurisdiction to address this assignment of error.
Eric contends that he did not appeal the dispositional order because the goals outlined from
the case plan were “appropriate and reasonable.” Brief for cross-appellant at 29. Eric argues that
if he had appealed the court’s dispositional order, the case would have stalled for an additional 6
months, which would have denied Eric the ability to reunify. Thus, Eric chose the “lesser of two
evils” in opting to work with DHHS. Brief for cross-appellant at 30.
We are not persuaded by this argument. The Nebraska Supreme Court has previously held
that one may not waive an error, gamble on a favorable result, and, upon obtaining an unfavorable
result, assert the previously waived error. See Ecker v. E & A Consulting Group, 302 Neb. 578,
924 N.W.2d 671 (2019). Eric had 30 days to appeal the juvenile court’s dispositional order and
may not appeal the order now, after obtaining an unfavorable result.
In his brief, Eric argues various other errors by the juvenile court with respect to visitation
that he did not specifically assign as error. To be considered by an appellate court, an alleged error
must be both specifically assigned and specifically argued in the brief of the party asserting the
error. In re Interest of Joezia P., 30 Neb. App. 281, ___ N.W.2d ___ (2021). We have not addressed
any alleged errors that were argued but not assigned.
2. ALLOWING LEAVE TO AMEND MOTION
Erika and Eric both assign that the juvenile court erred in allowing the motion for
termination of their parental rights to be amended during the course of trial. The original motion
regarding termination of Erika and Eric’s parental rights stated two grounds for termination of
those rights, § 43-292(2) and (6). On January 14, 2020, at the end of the second day of the trial,
the State requested leave to amend the pleading by adding an additional statutory ground to the
motion, alleging that the children were within the meaning of § 43-292(7). The juvenile court
granted the State leave to amend.
In its order terminating Erika’s and Eric’s parental rights, the juvenile court found, among
other things, that the children were within the meaning of § 43-292(7). Erika argues that she did
not receive proper notice of the third statutory basis in the amended petition and as such, did not
have a reasonable opportunity to refute the allegation. Eric argues that the State could have
amended its petition at the time of pretrial but chose not to, which compromised his defense and
violated his due process rights. Both of these arguments fail.
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A trial court may conform the pleadings to the facts proved when an amendment does not
change substantially the claim or defense. The decision to allow such an amendment rests with the
discretion of the trial court and will not be error unless prejudice resulted. In re Interest of Joshua
M. et al., 251 Neb. 614, 558 N.W.2d 548 (1997). Prejudicial error results when a pleading is
allowed to be amended where the amendment changes the issues and affects the quantum of proof
as to any material fact. Id.The juvenile court’s granting leave to the State to amend the pleadings to conform to the
evidence did not substantially change the subject matter or issues that were addressed at the
termination hearing. A significant amount of evidence was presented to support the State’s
allegations under § 43-292(2) and (6). The only evidence that was required to be proven under the
new subsection (7) was the amount of time the children had been in out-of-home placement, a
matter that was not in dispute. Rather, the evidence to support this allegation was straightforward
and did not impact the parents’ defense to the termination motion. Erika and Eric were clearly
aware of how long the children had been in out-of-home placement. Erika and Eric participated in
the hearing and had ample opportunity to address and rebut all the evidence presented. We see no
prejudice in permitting the State to add a claim to the pleadings which conformed to the evidence
the parties presented and had ample opportunity to address.
3. TERMINATION OF PARENTAL 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.(a) Statutory Grounds for Termination
The juvenile court found that the State had presented clear and convincing evidence to
satisfy § 43-292(2), (6), and (7) with respect to both parents. Erika argues that the State’s evidence
focused primarily on Eric’s actions and his minimal progress in the case. Therefore, Erika asserts
that the State failed to prove the statutory grounds in the original petition, § 43-292(2) and (6),
were met. However, both Erika and Eric acknowledge that their children have been out of their
home for at least 15 of the most recent 22 months.
As discussed above, we find that the juvenile court did not err in allowing the State to
amend the petition to include the statutory ground under § 43-292(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 Kenna S., 17 Neb. App. 544, 766 N.W.2d 424 (2009). 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 Kenna S., supra.
Here, it is undisputed that the children have been in out-of-home placement for 15 or more
months of the most recent 22 months. The children were removed from their parents’ home on
September 6, 2019. The State filed its motion for termination of parental rights on September 29,
2020, and moved to amend its petition to include the § 43-292(7) statutory basis during the
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termination trial in January 2021. At the time of trial, the children had been out of their parents’
home for 16 months. Thus, the statutory requirement for termination under § 43-292(7) has been
met.
If an appellate court determines that the lower court correctly found that termination of
parental rights is appropriate under one of the statutory grounds set forth in § 43-292, the appellate
court need not further address the sufficiency of the evidence to support termination under any
other statutory ground. In re Interest of Becka P. et al., 27 Neb. App. 489, 933 N.W.2d 873 (2019).
Because the State presented clear and convincing evidence that Tannen, Logan, and Roper had
been in an out-of-home placement for 15 or more months of the most recent 22 months, statutory
grounds for termination of Erika’s and Eric’s parental rights exists.
(b) Best Interests With Respect to Erika
Erika assigns that the juvenile court erred in finding that it was in the children’s best
interests to terminate her 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 children. § 43-292; In re
Interest of Isabel P. et al., 293 Neb. 62, 875 N.W.2d 848 (2016). Because the parent’s right to raise
his or her children is constitutionally protected, the court may terminate parental rights only when
the State shows that the parent is unfit. In re Interest of Isabel P. et al., supra. There is a rebuttable
presumption that the best interests of the children are served by having a relationship with their
parent. Id. This presumption is overcome only when the State has proved that the parent is unfit.
Id. Parental unfitness means a personal deficiency or incapacity which has prevented, or will
probably prevent, performance of a reasonable parental obligation in child rearing and which
caused, or probably will result in, detriment to the child’s well-being. Id.
The best interests analysis and the parental fitness analysis are fact-intensive inquiries. In
re Interest of Jahon S., 291 Neb. 97, 864 N.W.2d 228 (2015). While both are separate inquiries,
each examines essentially the same underlying facts. Id. 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 Becka P. et al., supra. In cases where termination of parental rights is based on
§ 43-292(7), 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.
As the juvenile court noted in its termination order, Erika’s case is sympathetic because to
“some degree, she is a victim of [Eric], just as her children.” However, the record shows that Erika
has been more willing to protect Eric from harm than she is her children. Despite acknowledging
that Eric spanks the children and performs physical discipline in the household, Erika denied that
Eric caused injury to Logan. At the time of trial Erika continued to deny even seeing the bruises
on Logan, as she claims he was bathing and dressing himself at four years old. Erika’s recanting
of the domestic abuse she suffered in February 2020 led to the dismissing of Eric’s strangulation
charges, but led to Erika being incarcerated for 3 months for false reporting. During her
incarceration, visitation with her children was halted. The record additionally showed Erika knew
Eric was contacting a juvenile in high school but Erika did not intervene or cease her relationship
with Eric.
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In November 2020, Erika told her case manager that she was separating from Eric.
However, jail call records indicate that Erika and Eric were attempting to communicate discreetly,
by using third-parties to relay messages and using the phone lines of other detainees to avoid
detection. Erika also alluded to a plan to convince professionals on the case that she had separated
from Eric in order to receive custody of her children. A few months later at the termination trial,
Erika said that she had cut off contact with Eric and was planning to divorce him. Assuming this
radical change in the couple’s relationship status was true, Erika’s separation from Eric occurred
well over a year after her son suffered severe injury by Eric, and this effort to create a safe
household comes too late. Last-minute attempts by parents to comply with the rehabilitation plan
do not prevent termination of parental rights. In re Interest of Leyton C. & Landyn C., 307 Neb.
529, 949 N.W.2d 773 (2020).
Since Eric has been incarcerated, case professionals have noted a decreased engagement
between Erika and her children. Erika’s visitation attendance has dropped and she has been unable
to sustain consistently positive visitations. When Erika grows frustrated, she retreats into her
phone. It is concerning that reports of Erika shutting down at visitation began immediately after
Eric was incarcerated.
Additionally, because of Erika’s dependent personality traits, there is a concern that Erika
will continue to seek out significant others that will place her or her children at risk. Erika was
minimally compliant with her therapeutic services and there is little evidence that Erika has
sufficiently managed her dependent personality traits. While Erika was compliant with medication
management and did complete her substance abuse intensive outpatient program, she did not
consistently participate in individual therapy. Erika was scheduled for weekly therapy sessions,
but attended only 13 sessions in 16 months. Erika’s therapist testified that these sessions were
largely ineffective, as each time Erika returned to therapy it was like starting over. Erika also
attended couple’s counseling only twice and did not disclose Eric’s domestic assault arrest, Erika’s
false reporting arrest and incarceration, and Eric’s pending prison sentence. The couple’s therapy
sessions were likely of little benefit due to the inconsistent attendance and lack of disclosure. In
total, Erika has not engaged in therapy sufficiently to cause any long-term sustainable change.
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
Zanaya W. et al., 291 Neb. 20, 863 N.W.2d 803 (2015). Based on the evidence presented, there
has been minimal change in Erika’s behavior over the course of the case, and based on Erika’s
continued alignment with Eric and her inconsistency with individual therapy, she is unlikely to
change in the future.
Further, Nebraska courts have recognized that children cannot, and should not, be
suspended in foster care or be made to await uncertain parental maturity. In re Interest of Octavio
B. et al., 290 Neb. 589, 861 N.W.2d 415 (2015). Logan and Roper have been in foster care since
September 2019. They deserve stability in their lives and should not be suspended in foster care
when Erika is unable to rehabilitate herself and show that she is able to provide a safe environment
for her children. Accordingly, we find there was clear and convincing evidence to show that Erika
was unfit and that terminating her parental rights was in the children’s best interests.
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(c) Best Interests With Respect to Eric
As the juvenile court noted, photographs of Logan’s injuries show excessive abuse. The
bruises on Logan’s legs covered the entirety of his thighs and evidenced separate incidents as the
bruises were in various stages of healing. At the start of the investigation, when confronted by
Logan’s injuries, Eric apologized and indicated he did not mean to hurt Logan. Eric thereafter
denied inflicting the injuries and later offered alternative explanations for how the injuries
occurred. Finally, at the termination trial, Eric admitted to beating Logan with a belt of some kind
but was unable to answer why the beating had occurred.
Eric’s domestic abuse reaches beyond Logan’s injuries. Throughout the case there has been
evidence of Erika suffering domestic abuse by Eric. Most notably was the domestic violence
incident in February 2020, for which Eric was charged with domestic assault and strangulation.
Eric’s control over Erika was also displayed through her willingness to recant her report of Eric’s
abuse and state, instead, that he did not put her in a “full chokehold.” Even while Eric was
incarcerated, there was constant communication with Erika; Eric would pressure her into
presenting a false narrative to authorities involved in Logan’s child abuse case and at one point,
called Erika 176 times in 1 week. Law enforcement’s investigation also produced several of Eric’s
past romantic partners who claimed to have been victims of his domestic abuse. Throughout the
case, Eric denied there was any domestic violence occurring in the home.
Tannen’s therapist described her concerns with the parent-child relationship between Eric
and Tannen. She testified that Tannen had been “groomed” by Eric and had learned codependency.
Tannen was willing to minimize Eric’s actions, even if the actions were wrong or illegal. Tannen
would also defend Eric and state that no one knew how bad his father had it. The therapist’s
concerns were so great that she recommended Tannen have no contact with Eric until he reached
the age of majority when he would be better able to protect himself against Eric’s manipulation
and grooming. Logan’s and Roper’s therapist testified to the children experiencing childhood
trauma. Because the children seek permission for every action, it is likely they were constantly
yelled at and lived in immense fear of Eric. Eric was unwilling to meaningfully engage in
therapeutic visitation with Logan, and when Logan’s therapist terminated the service, Eric
threatened her.
Eric has also displayed inappropriate behavior throughout the case. He made sexual
remarks to the children’s teachers, foster parents, and visitation workers. Eric also called the
children names and spoke to Tannen about sexual subjects. Eric was arrested in March 2020 for
sexual contact with a high school student.
Finally, Eric has been unable to effectively work with substance abuse counselors or mental
health providers. After Eric was diagnosed with an alcohol-related disorder and was set up for
weekly substance abuse counseling, Eric attended two sessions in November 2019 and never
returned. Throughout his medication management services, Eric would increase his dosage beyond
the prescribed amount. Eric acted as though he knew more than the health professionals and was
not medication compliant.
Eric’s individual counselor testified that Eric’s progress was very minimal. Eric was
inconsistent in his couple’s therapy attendance and did not disclose recent domestic violence
events between himself and Erika. Eric was also not sincere in acknowledging that he had an anger
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problem and did not attend any of the groups his counselor recommended. Because Eric was
unwilling to acknowledge his anger issues, his counselor was concerned that Eric’s behavior in
the home could create three “little Erics” in the children. Eric’s own counselor did not recommend
visits between Eric and the children at the time of the trial. Eric has been unwilling to engage in
case services and has not placed himself in a position to reunify with Tannen or Roper. See In re
Interest of Zanaya W. et al., 291 Neb. 20, 863 N.W.2d 803 (2015) (where parent is unable or
unwilling to rehabilitate herself within reasonable time, best interests of child require termination
of parental rights); In re Interest of Octavio B. et al., 290 Neb. 589, 861 N.W.2d 415 (2015)
(Nebraska courts have recognized that children cannot, and should not, be suspended in foster care
or be made to await uncertain parental maturity). Therefore, we find there was clear and convincing
evidence to demonstrate that Erik was unfit and that terminating his parental rights was in the
children’s best interests.
VI. CONCLUSION
Upon our de novo review of the record, we conclude the State proved by clear and
convincing evidence that grounds for termination of Erika’s and Eric’s parental rights existed
under § 43-292(7) and that termination of their parental rights is in the children’s best interests.
Accordingly, the juvenile court’s order is affirmed.
AFFIRMED.
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