                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                IN RE INTEREST OF JOHN 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 JOHN J. ET AL., CHILDREN UNDER 18 YEARS OF AGE.

                     STATE OF NEBRASKA, APPELLEE AND CROSS-APPELLEE,
                                               V.

             TARA C., APPELLANT, AND BYRON J., APPELLEE AND CROSS-APPELLANT.


                           Filed December 10, 2019.    No. A-19-178.


       Appeal from the Separate Juvenile Court of Douglas County: ELIZABETH G. CRNKOVICH,
Judge. Affirmed.
       Kenneth Jacobs, of Jacobs Alexander Law, for appellant.
       Mark Hanna, Deputy Douglas County Attorney, for appellee State of Nebraska.
       Thomas C. Riley, Douglas County Public Defender, Claudia L. McKnight, and Reilly
White, Senior Certified Law Student, for appellee Byron J.


       PIRTLE, RIEDMANN, and WELCH, Judges.
       PIRTLE, Judge.
                                      I. INTRODUCTION
         Tara C. appeals, and Byron J. cross-appeals, from an order of the separate juvenile court
of Douglas County terminating their parental rights to six minor children. Based on the reasons
that follow, we affirm the order of the juvenile court.




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                                        II. BACKGROUND
         Tara and Byron have six minor children together: John J., born in 2001; Nathaniel J., born
in 2004; Kaytlynn J., born in 2007; Paityn J., born in 2008; Conner J., born in 2011; and Giovanna
J. (Gia), born in 2016. On November 4, 2016, law enforcement was called to the home of Tara and
Byron and observed the home to be “in a filthy, unwholesome condition placing said children at
risk for harm.” Soon after, the State filed an ex parte motion for immediate custody requesting that
the children be placed in the temporary custody of the Nebraska Department of Health and Human
Services (DHHS). That motion was granted and the children were placed in the custody of DHHS.
After a number of hearings and orders on the matter, the State ultimately filed a motion for
termination of parental rights and second motion for termination of parental rights in regard to
Tara and Byron. Trial on both motions took place over 3 days on October 29, December 3, and
December 6, 2018.
         The State’s first witness, Erin Noland, testified that she has known Tara since 1996 and the
two attended high school together. At the time of trial, Nathaniel and John were residing with
Noland. Both were first placed with Noland in November 2016, but John was removed temporarily
in early 2017. The other four children briefly resided with Noland for a period of 2½ weeks in
December 2017.
         Noland testified that at the time Nathaniel was first placed in her home by Child Protective
Services (CPS) he was 12 years old and unable to read or write, but has since excelled. She testified
that Nathaniel has an Individualized Education Program (IEP) and that Tara attended the initial
meeting associated with the IEP, but Byron did not. Noland testified that Nathaniel’s supervised
visitation with Tara was initially twice a week but was suspended in April or May 2017. Separate
supervised visitation with Byron was also initially scheduled for twice a week but was later
suspended.
         Noland noted that she is responsible for coordinating medical, dental, and vision
appointments for Nathaniel. Since Nathaniel entered Noland’s care, Tara attended two medical
appointments when he broke his leg, and Byron attended one. Noland testified that since their
visitation was cancelled, neither Tara nor Byron have contacted her to check on the well-being of
Nathaniel. When visits were ongoing, both parents would communicate with Noland and
Nathaniel.
         On cross-examination, Noland testified that she was unaware of whether Byron was
notified of Nathaniel’s IEP meeting and that she did not notify him of medical appointments
because he did not have a phone at the time. Noland testified that she has never had any concerns
for the well-being of Tara and Byron’s children. When Nathaniel and John were initially placed in
Noland’s care, John refused some of the first visits with Byron, but eventually began attending.
         Gisela Lacy, a temporary kinship foster parent, testified that four of the six children were
placed in her home between late December 2017 and June 2018. Lacy testified that after each visit
with Tara, the children would return upset, slam doors, and avoid talking. These behaviors were
less prevalent after visits with Byron, but still occurred. After visits with Byron, the children would
smell like cigarette smoke. After visits with Tara, Gia would often have a soaking diaper and a bad




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diaper rash. Gia would also come back wearing clothes that were too tight to the extent they “were
almost like hurting her” and left marks.
         Lacy testified that neither Byron nor Tara attended any of the children’s appointments,
despite her communicating the appointments to the caseworker. Each of the school-age
children--Connor, Kaytlynn, and Paityn--had one IEP meeting while in Lacy’s care. However,
Tara and Byron only attended Connor’s, which was on his birthday, and arrived 15 minutes late.
Lacy also testified that prior to placement in her home, the three school-age children had never
attended public school and could not read or write, despite being 6, 9, and 10 years old.
         Lacy further testified that on one occasion, the three oldest children came back from a visit
with Tara with cellphones, despite a PromiseShip rule that prohibited the children having such.
When Lacy took the phones from the children, Tara apparently called Lacy screaming at her,
threatening to call the police, and accusing her of stealing. The police ultimately were dispatched
to Lacy’s home, whereafter Lacy blocked Tara’s phone number and did not communicate with her
after the incident.
         On cross-examination, Lacy testified that while the children were in her care she was to
make them available for family therapy, but that the therapy never occurred due to transportation
issues. Lacy was willing to transport the children to therapy, but was not willing to have it take
place in her home and did not want to be confronted by Tara after the previous cellphone incident.
         Erica Austin, a supervisor at Capstone Behavioral Health, testified that she supervised
Tara’s drug testing for approximately the year leading up to trial. Austin prepared and testified
regarding a document outlining Capstone’s involvement with Tara over that year. A number of
Tara’s drug tests came back “presumptive positive for benzo.” On cross-examination, Austin
testified that the individual administering the drug tests would have had a list of Tara’s
prescriptions, and although each column within exhibit 52 did not indicate Tara had a prescription
for benzodiazepines, it was possible that she had a prescription at the time of each positive test.
She further testified that she would not have information that would reveal whether the levels of
benzodiazepines discovered were in accordance with any existing prescription.
         Rachel Peters, John’s juvenile probation officer, testified that throughout her year and a
half as John’s probation officer, John spent time at the Douglas County Youth Center (DCYC),
Canyon State in Arizona, and a kinship home placement with Noland. Peters testified that her only
interaction with Tara was a phone conference family team meeting while John was at Canyon
State. She testified that it was concerning that Tara discussed John coming back to live with her,
when that was not something that was going to happen. She testified that because John was a ward
of the State, she was up-to-date on court orders pending for him. It was her understanding that
there was a no contact order between John and Tara and Byron, and that it was concerning that
Byron attended one of John’s probation hearings.
         On cross-examination, Peters testified that John’s guardian ad litem did not mention a no
contact order on the phone meeting while John was at Canyon State, but did express concern when
Tara began discussing John coming back to live with her. She further testified that what she
believed to be a no contact order could have been a no visitation order instead. Peters also testified
that John was frustrated he was unable to take advantage of an earned visit with either Tara or




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Byron because of a court order, but that “he also understood that those circumstances were outside
of his control.”
         Dylan Best, a family support specialist, testified that he supervised visitation for Byron
from January to October 2017, and Tara from February to June 2017. Best testified that during his
time supervising Byron’s visits, he never had any major safety concerns, but did raise concerns
with the language Byron used with the children. During one visit, Byron had apparently told one
of the children to “shut up.” Best testified that Byron did not always take redirection well and
would tell Best it was not his job to parent his children. Best also testified that at times, Byron
would appear frustrated taking care of the children, but that he did not believe it to be an
overreaction given the number and age of the children. Over the course of his supervision, Best
acknowledged three visitation dates that were cancelled due to weather or Byron not feeling well.
         Best testified that he also worked with Byron on family support goals, obtaining
employment, and arranging a batterer’s intervention course and chemical dependency evaluation.
Best testified that Byron located temporary employment with a sanitation company, did not
complete the batterer’s intervention course in the 9 months he worked with him, and Byron
self-reported that he completed the chemical dependency evaluation.
         Best testified that most of Tara’s visits took place at a neutral location, and never at a family
home. Best testified that at times Tara appeared overwhelmed on the visits, and the children would
sometimes talk back, but in his opinion she was still able to parent. He noted that Tara sometimes
appeared frustrated with the children from her body language and, occasional harsh language. Best
testified that, of the visits he supervised, one visit was cancelled by Tara between February and
June 2017.
         On cross-examination, Best testified that Byron would provide meals for the children and
that visits would occur at the library, Children’s Museum, Do Space, and various parks. On
visitations, Byron would interact with all the children. Best testified that while he was working
with Byron, Byron was staying at the Siena Francis House and later at a friend’s apartment. Best
noted that Byron ultimately enrolled in a batterer’s intervention program near the end of his time
working with him. The chemical dependency evaluation was not completed until June.
Transportation and cost played a role in the delay. Best testified that Byron made comments that
he did not feel the need for the batterer’s course and any accusations against him were not true,
but that he nevertheless worked on completing the course.
         Tia Scheel, a CEDARS family support specialist on the case between August 2017 and
April 2018, testified that she supervised visits with Tara during that time. Scheel testified that she
occasionally had concerns about Tara’s ability to parent all of the children at once, but only on a
few occasions where Tara would speak negatively about the foster parents. On one occasion, Tara
became upset that a foster parent expressed concern about Gia’s diaper rash and Tara angrily
responded, “I don’t give a shit about what diapers Jodee uses and you can tell her I said just that.”
Similar comments occurred on a few other occasions. At times, Tara was open to redirection, but
other times she appeared exasperated by it. Tara also referred to the CEDARS workers as
“babysitters” and did not believe she needed their supervision.
         Scheel testified that it was her understanding Byron was not to be on Tara’s visits, but that
she and the children would occasionally see him when picking up Tara for visitation. Scheel did



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not have any knowledge of whether or not Byron was staying with Tara at her friend’s home. In
April 2018, visits were suspended and Scheel stopped working with the family.
         On cross-examination, Scheel testified that Tara moved into her own home sometime
around April 2018 and that the home had been approved for visits by the case worker, Jessica
Hofmann. She testified that the few visits that occurred within the home “calmed down a little bit”
and it was easier for Tara to supervise the children compared to previous visits in public locations.
She further noted that the diaper rash Gia developed was an ongoing issue and may not have been
something that developed on a visit with Tara. Scheel testified that while she supervised visits,
Tara’s parenting skills had been improving up until visits were suspended in April 2018.
         Scheel testified that some of Tara’s friends--Dave, Amber, and Dave’s niece
Sam-- attended several visits and were originally approved by PromiseShip until that was revoked
around March, 2018. Their approval was revoked due to continued attempts to intervene and help
Tara parent on the visits. Scheel testified that Tara would often become upset on visits and would
occasionally yell in response to the children’s behaviors or things they would say occurred at their
foster homes, such as that Gia was sleeping in the basement alone. On one visitation, in December
2017, Tara found out the children had been removed from their foster home due to speculation of
drugs being in the home. In response, the children were upset and did not want to leave with Scheel
to the new foster home. Scheel had to talk to Tara separately and redirect her to calm down and
appropriately approach the children. On another visit, Tara became upset with Connor and began
to yell at him in a Dollar Tree. Scheel approached Tara in order to move the situation outside.
         Tia Wetzel, a CEDARS family support specialist on the case between January and April
2018, testified that she supervised visitation between Tara and the children. She testified a majority
of those visits took place at the home Tara was living at with her friends, Dave and Amber. On a
visit in late December 2017, Wetzel observed the children texting Byron despite the fact the visits
were separate and they were not supposed to be contacting him. In response, Tara took the phones
from the children. Wetzel testified that despite the fact Dave, Amber, and Sam were present on
several visits, Tara was doing most of the parenting. Occasionally, the others would step in to
assist. At times, Wetzel had concerns about Tara’s parenting abilities, largely due to a brain
aneurysm Tara had. As a result of her stay in the hospital, visits decreased.
         On cross-examination, Wetzel testified that she was unaware why her services were ended
in April 2018. Wetzel testified that the PromiseShip caseworker had informed her that Tara and
Byron were not supposed to have contact with each other and that visits were to be separate. She
noted that Tara was attempting to abide by that order when she took away the children’s phones
on the visit because they were texting Byron. Wetzel conducted two or three visits in the home
Tara and Byron rented together in March 2018, shortly before visitation was suspended. Wetzel
testified that Tara spent at least 1 week in the hospital due to her brain aneurysm and that the
children were brought there to visit her.
         Wetzel testified that she could not recall any instances where she had to redirect
conversations between Tara and the children, but occasionally noticed Tara become frustrated.
When Tara became frustrated, she “was usually able to breathe through it and redirect herself.”
Wetzel also testified that she observed Tara smoking at least two cigarettes every visit and drinking
coffee, despite her doctor’s request that she decrease the amount of caffeine she consumed,



                                                -5-
cigarettes smoked, and her stress level. Wetzel testified that when Tara went out to smoke, she
would leave the door cracked open and supervise the children from outside. Wetzel did not find
the smoking to be inappropriate so long as it was not inside in the home.
        Alisha Lohman, a case manager with PromiseShip, testified that she prepares a case file
for each child she works with containing information about meetings with parents and children,
and documentation from providers of services such as family support, therapy, and parenting time.
        Lohman was assigned as the family permanency specialist of this case from November
2016 until March 2017. She testified that the children entered foster care as a result of police being
called to the home and finding it to be in an “extremely filthy” condition. Lohman testified that
the family had multiple prior intakes over the span of 15 years and had been offered noncourt
services through PromiseShip prior to the children entering State custody.
        Lohman testified that when she took on the case, none of the children had ever been
enrolled in school and their educational needs were not being met. Nathaniel, Kaytlynn, Paityn,
and Connor all required IEPs. Despite being in fifth, third, and second grade, none of the
school-age children could read, and all experienced social anxiety transitioning into the school
environment. Tara had apparently been reporting to other professionals that the children were
being homeschooled. Prior to transitioning off the case, Lohman noticed positive changes in the
children’s education, such as excitement about reading books and the ability to attend school all
day without the social anxiety.
        Lohman testified that she set up individual and family therapy for the children to address
the social anxiety and reports of witnessing domestic violence within the home. Family therapy
was set up with the children and Tara in order to repair their relationship. Nathaniel and John had
previously voiced some concern about returning home with their parents, with John at one point
telling the guardian ad litem that it was not in his best interest to return home to either Tara or
Byron. Family therapy was not set up with Byron because, at the time, there was the possibility of
a protection order against him, and Lohman preferred Byron be involved in individual therapy
before recommending family therapy for him. Lohman testified that Tara consistently participated
in family therapy.
        Lohman first made contact with Byron in late November 2016 and met with him in person
after Tara had filed a protection order as a result of reported domestic violence. Tara cited an
incident the previous year where she received a black eye and Byron had “called her several names
and she felt unsafe around him.” Lohman testified that it was “murky” whether she was able to set
up parenting time with Byron because the children were encompassed within the protection order.
Parenting time was set up after the protection order was dismissed. Lohman testified that the
alleged domestic violence was the reason for keeping Tara and Byron’s visits with the children
separate. In response to Lohman’s concerns regarding the domestic violence, Byron repeatedly
denied any domestic violence in his and Tara’s relationship. In January 2017, Byron told Lohman
that he and Tara were back together and living together.
        During her time on the case, Lohman did not receive any reported concerns from the
CEDARS workers supervising Byron’s visits. Byron, at the time, did not have a stable home or
source of income. The children were adjudicated on January 19, 2017. At the dispositional hearing,
the court ordered that Byron participate in a chemical dependency evaluation, an initial diagnostic



                                                -6-
interview (IDI), a batterer’s intervention course, a parenting class, obtain and maintain a legal
source of income, and obtain and maintain safe and stable housing. While Lohman was on the
case, Byron completed the parenting class but had not enrolled in a batterer’s intervention course,
completed an IDI, or completed the chemical dependency evaluation.
        In December 2016, Tara’s visits were decreased from five to three weekly visits due to
inconsistent attendance. Visits decreased from three to two per week in February 2017 due to
Tara’s failure to consistently call to confirm the visits. By the time Lohman transitioned off the
case, she still had concerns with Tara’s ability to parent. Lohman testified that Tara at times would
whisper to the children so the supervisor could not hear what was being said and would tell them
that they would be coming home within a certain time frame.
        At her dispositional hearing, the court ordered Tara to complete a chemical dependency
evaluation, follow the recommendations of her IDI, complete a parenting class, participate in a
Foundations course at the Women’s Center for Advancement, obtain and maintain an income and
stable housing, and participate in supervised visits with the children. By the time Lohman
transitioned off the case, Tara had not completed the chemical dependency evaluation and was
enrolled in but had not completed the Foundations course. Tara was following the IDI
recommendations and had completed the parenting course. She also had been applying for work,
but did not have a source of income. She did not have a stable home.
        Lohman testified that she continued to have concerns regarding domestic violence, namely
because Tara and Byron were living together, Tara continued to deny any domestic violence had
occurred, and some of the children had reported incidences of domestic violence in the home. In
January 2017, John reported that he did not feel safe around his parents and said that he had been
pushed through a window by Byron.
        Byron indicated in December 2016 that he was on probation as a result of taking anxiety
medications and driving. He did not complete a chemical dependency evaluation prior to March
2017, but was getting tested by his probation officer, and the tests came back clean.
        On cross-examination, Lohman testified that Tara had repeated issues with one set of foster
parents, with “name calling” and “defamatory statements” being made between them. Eventually,
the children were removed from that home due to reported cocaine use. Lohman testified that the
Foundations class is typically 8 weeks and that Tara voluntarily began the class before it was
court-ordered at the disposition hearing. She also had begun the parenting class, completed her
IDI, and was participating in supervised visits before they were court-ordered.
        Lohman testified that the protection order against Byron was dismissed by the court
because there was not substantial evidence to continue it. She also noted that Byron was never
charged or convicted for domestic violence.
        Heather Duhacheck-Chase, a therapist with Generation Hope, testified that she began
seeing Nathaniel, Paityn, Kaytlynn, and Connor for therapy in December 2016 and has been their
active therapist since. She testified that the children were initially referred for individual therapy
by PromiseShip due to having been removed from their home and concerns about domestic
violence. Duhacheck-Chase noted that she provided individual therapy to Tara between December
2016 and August 2017, who was referred by PromiseShip due to the domestic violence concerns.




                                                -7-
Therapy was discontinued in August 2017 due to the fact that PromiseShip did not want to continue
paying, and Generation Hope was unable to lower their rate.
         Duhacheck-Chase testified that she provided family therapy for Tara and the children
between January and October 2017, and again between June 30 and August 6, 2018. She only
provided one family therapy session involving Byron in July 2018. Duhacheck-Chase testified that
her IDIs with the children revealed symptoms of social anxiety and other adjustment and
depressive symptoms. At Tara’s IDI, she displayed similar symptoms of anxiety and adjustment
with depression.
         Duhacheck-Chase noted that Tara informed her that at times Byron “could be controlling
and possessive, aggressive towards her and the kids.” Duhacheck-Chase testified that during her
2017 sessions with Tara it was her understanding that Tara and Byron were separated, but when
family therapy resumed in 2018 they had reportedly “worked through everything” and were back
together. Duhacheck-Chase testified that during their sessions, Tara had been working on a
domestic violence workbook that ultimately was finished in June 2018 when she was discharged
from therapy.
         Duhacheck-Chase testified that the family therapy sessions would often take place in public
places in the community and that she never had any concerns with Tara’s participation in the
sessions. She noted that Tara was active in therapy and wanted to know how the children were
doing in individual sessions, and that she often does not see that from other parents. She testified
that family therapy sessions ended in October 2017 due to transportation issues with the children
that were never resolved by PromiseShip. Duhacheck-Chase testified that she was not provided a
reason for why family therapy ended in August 2018 and that it would be her recommendation that
the sessions continue for both parents.
         Duhacheck-Chase testified that in her sessions with the children they all expressed their
disapproval of their parents’ fighting, and that they wanted to go home only after knowing that
“there was lights and food and their parents weren’t fighting.” At one point, before the last family
therapy session, the children expressed that things were going well and they were ready to go
home.
         On cross-examination, Duhacheck-Chase testified that at the time Tara’s sessions stopped
due to the payment issue, her symptoms were low enough where she could have been discharged
and it deemed successful. Nevertheless, Duhacheck-Chase still wanted to, and did, evaluate Tara
in the family therapy setting. She testified that the transportation issues caused Nathaniel to regress
because he was upset that the other children were able to see the parents and he was not. She
testified that it is “obviously not ideal” to do family therapy sessions in public places, but they
made it work. In July 2018, Duhacheck-Chase visited Tara’s home and found that it would have
been suitable to hold therapy sessions in. She further testified that it was her opinion that visits and
therapy inside the home would have been easier than in public locations. She noted that the
environment was often difficult to manage, but that she thought anybody would have a difficult
time managing “that many kids that age in Wal-Mart” but she did not observe any inappropriate
parenting.
         Duhacheck-Chase testified that progress in the 2017 sessions was slower due to everyone
adjusting and a lot of emotion, but that things were getting better as time went on. She testified



                                                 -8-
that the summer 2018 sessions were much better and “very apologetic” in the sense that “the
parents were very humble with their kids, and they were able to apologize for what they’d done
and take accountability for what they’d done.” The children were surprised that Byron apologized
to them and they were grateful that he did.
         She testified that she believed that Tara and Byron were trying to tell the children that they
were sorry for the way things were in the past and that things were different, and that message got
back to PromiseShip and was taken as telling the children they were going to come home. She
testified that she was not given any other reason for sessions ending. She also noted that she made
a request to the PromiseShip worker for a transportation company to bring the children to sessions,
because they had arranged that in the past, but it was never done. Duhacheck-Chase testified that
she believes it would be beneficial for both Tara and Byron to participate in family therapy based
off of the progress she saw in the 2018 sessions and indicated “they were all moving in a really
good direction.”
         She testified that if visits were in fact so escalated and chaotic that they were suspended,
she would be interested in reviewing those reports. She also testified that there were times when
Tara made specific comments about reunification to the children, but that those timelines never
played out. She noted that it made the children sad and disappointed.
         On redirect examination, Duhacheck-Chase testified that it does not concern her how long
it took Tara and Byron to progress and take accountability for their previous actions because they
went so long without sessions that she is unable to know when that realization actually occurred,
and that the summer 2018 session was the first opportunity to have that conversation in nearly a
year.
         Lindsay Longwell, a PromiseShip family permanency supervisor on the case between May
2017 and November 2018, testified that she assessed permanency objectives and best interests of
the cases she was supervising on a daily basis. She testified that the children saw significant
improvement in their educational needs while in foster care. Longwell also noticed improvement
in social skills and reduced anxiety from their participation in individual therapy. When Longwell
became supervisor, she insured that all court-ordered services were set up or referred for Tara and
Byron.
         Longwell testified that she found it concerning that Tara did not complete her Foundations
course during the time she supervised the case because it led her to believe there was a risk for
further domestic violence in the future. Longwell also expressed concern that Tara had tested
positive for alcohol, benzodiazepines, and opiates. Tara attempted to explain the diluted tests for
alcohol by saying it was related to cough medicine or consuming a large amount of energy drinks.
Tara also had, at times, been prescribed medications that would test positive for opiates and
benzodiazepines.
         Longwell indicated that Tara completed her required parenting class in June 2017 and was
consistently employed during the time she supervised the case, except for a period of time in
December 2017 when she experienced medical issues. Tara did not maintain consistent and stable
housing.
         Longwell testified that she had concerns that she never had a clear understanding of what
the relationship between Tara and Byron was, especially with the potentially aggressive and



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violent history and the effect that could have on the children. Longwell also found it concerning
that Tara and Byron did not obtain a home until March 2018. Longwell testified that visits were
suspended “due to ongoing concerns of supervision, following the rules of supervised visits, and
just general chaos that was occurring.” She also noted that some visits were ended early and the
police had to be called on a few occasions.
         Longwell testified that Byron completed all of his court-ordered urinalysis testing, which
came back clean, as well as his parenting class. When Longwell first began supervising the case,
there was a long period where Byron was not employed to her knowledge, but he did maintain
consistent employment later on. Byron did not complete, or sign up for, a batterer’s intervention
course throughout Longwell’s time on the case. Longwell testified that Byron’s visits were
suspended due to concerns regarding his ability to supervise all of the children at once and
consistently provide for their needs.
         Longwell testified that based on her interactions with the family and reports from Hofmann
and other documentation, it was her opinion that it would be in the children’s best interests to have
both Tara and Byron’s parental rights terminated.
         On cross-examination, Longwell testified that she made a recommendation for Apex
integrated foster care, where foster parents provide care both to the children and the parents,
particularly when housing is the only barrier. She testified that Tara was approved for the program
in the fall of 2017. She also testified that she received reports from the family therapist,
Duhacheck-Chase, indicating that positive progress was being made. Longwell acknowledged that
the June 2017 court order did not require Tara to abstain from alcohol. She testified that
PromiseShip did not recommend a suspension of visitation.
         Longwell testified that Byron completed the batterers’ intervention program 1 to 2 months
prior to trial. She testified that PromiseShip did not recommend the suspension of Byron’s
visitation. She testified that the most significant changes with the children’s social skills occurred
in the 6 months preceding trial. She noted that despite Tara briefly moving to unsupervised visits
in November 2017, her visits returned to supervised after reports that Byron had showed up to one
of the visits despite an order that visitation remain separate. She testified that the changes in
visitation caused the children to act out more and become increasingly anxious. Longwell further
testified that the provider of Tara’s alcohol tests indicated large amounts of energy drinks would
not cause a positive test and that consuming cough medicine was unlikely to produce those results.
         Hofmann, the family permanency specialist on this case from September 2017 through
trial, testified that she received training on when it is appropriate to support and recommend the
termination of parental rights. She testified that she looks at the length of time that children are in
foster care, the parents’ compliance with court orders, and the lack of progress during the time
PromiseShip is involved with the family.
         Hofmann testified that the children have been state wards since November 4, 2016, and
have not returned to the home of either Tara or Byron in that time. Hofmann noted that since 2004
there has been eight prior intakes involving the family, including allegations of domestic violence
against Byron and concerns that the children were not being appropriately homeschooled.
         Hofmann testified that the educational needs of the children have improved since
November 2016 when they entered foster care. Hofmann testified that she attended the IEPs of



                                                - 10 -
Nathaniel, Connor, and Kaytlynn, and that Tara was in attendance at all three and Byron attended
Connor’s and Kaytlynn’s. She noted that she received updates from the children’s therapist,
Duhacheck-Chase, regarding their therapeutic progress and relies on that information in
formulating her opinions and recommendations regarding the termination of parental rights.
         Hofmann further testified that when she received the case she insured that all court-ordered
services were set up or referred for both Tara and Byron. Hofmann testified that when visitation
was suspended in April 2018, she had concerns regarding Tara’s level of supervision and focus on
the children, that Tara was not following the redirection of the visitation workers and was not
allowing the children to leave some visits, that the police and CPS after-hours hotline were called
by PromiseShip, and that Tara was talking negatively about caseworkers. She testified that since
visits were suspended, the children have begun to listen to and be more open with foster parents,
are more comfortable within the home, and are happy overall.
         Hofmann testified that when Byron’s visits were suspended in April 2018, there were
concerns that he was overwhelmed and did not know how to manage five children at one time and
that he would tell Nathaniel he did not need to attend visits if he continued to act out. Hofmann
further testified that she does not believe the domestic violence concerns between Tara and Byron
were addressed appropriately, particularly due to the amount of time it took Byron to enroll in the
batterers’ intervention program and her belief the two were not separated during the period they
said they were.
         Hofmann testified that based on service reports, interactions with the parents and children,
the time the children have been in foster care, and the lack of progress, it was her professional
opinion that it was in the best interests of the children that the parental rights of both Tara and
Byron be terminated.
         On cross-examination, Hofmann testified that despite a written court order for visitation
rights for Tara, she did not provide any visits in May or June 2018 due to a separate verbal order
that visits were to be suspended. Hofmann testified that in her October 2017 court report, she
requested Tara move to unsupervised visits. Hofmann testified that she visited the home Tara and
Byron obtained together on a few occasions, that the home would have been an appropriate place
for visits to occur, and that she did not request visits be suspended in April 2018.
         Hofmann further testified that despite there being eight prior intakes involving the family,
none were substantiated such that they ended up in court. She testified that the May 2018 order for
visits also applied to Byron, but those visits never occurred due to the previous verbal order in
April 2018 suspending visits. Hofmann testified that while she remained on the case there had
been no family team meetings including Byron, and she was unable to explain why, but noted she
met with him individually monthly.
         After the State rested, Byron called Antoinette Bell, his individual therapist, who testified
that Byron came to her for therapy in April 2018 and that she saw him for four sessions. She
testified that based on the information she received from Byron, she did not feel there was any
need for him to continue sessions beyond that point. In June 2018, Bell sent a report to Hofmann
regarding Byron’s attendance of therapy and what was done during those sessions.




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        On cross-examination, Bell testified that Byron indicated there was an open CPS case and
that he was court-ordered to attend individual therapy. He did not indicate he had prior issues
related to domestic violence, and Bell did not receive any collateral information to suggest such.
        In closing, counsel for Tara argued that the State did not meet its burden in showing that it
was in the best interests of the children to have her parental rights terminated. Counsel also argued
that based on the lack of visits and family team meetings, DHHS did not provide reasonable efforts
to reunify the parents with the children.
        Counsel for Byron argued that the State had not met its burden, namely because Byron had
completed all of the court orders required of him.
                                 III. ASSIGNMENTS OF ERROR
        Tara assigns, restated, that the juvenile court erred in (1) determining there was jurisdiction
to terminate her parental rights while an appeal was pending, (2) finding sufficient evidence to
support termination under Neb. Rev. Stat. § 43-292(2) (Reissue 2016), (3) finding sufficient
evidence to support termination under § 43-292(6), and (4) finding that termination of her parental
rights was in the best interests of the children.
        Byron cross-appeals, assigning, restated, that the juvenile court erred in (1) determining
there was jurisdiction to terminate his parental rights while an appeal was pending; (2) finding
sufficient evidence to support termination under § 43-292(2), (6), and (7); and (3) finding that
termination was in the best interests of the children.
                                  IV. STANDARD OF REVIEW
        A jurisdictional issue that does not involve a factual dispute presents a question of law. In
re Interest of Octavio B. et al., 290 Neb. 589, 861 N.W.2d 415 (2015).
        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 lower court observed the witnesses and accepted
one version of the facts over the other. In re Interest of LeVanta S., 295 Neb. 151, 887 N.W.2d 502
(2016).
                                           V. ANALYSIS
                                           1. JURISDICTION
         Both Tara and Byron first argue that the juvenile court was without jurisdiction to hear the
State’s motions for termination of parental rights. In August 2018, Tara filed a motion for
supervised visitation, which Byron sought to join. At the subsequent hearing, the court refused to
acknowledge such as a joint motion, so Byron’s attorney made an oral motion for supervised
visitation. Both motions were denied. Tara and Byron subsequently appealed the denial of the
motions. Both also filed motions to continue the pending termination of parental rights trial
scheduled for October 29, 2018. On the date of trial, those motions were argued before the juvenile
court and were denied. The juvenile court noted in its ruling:
         [F]or 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. Juvenile court orders that temporarily



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       suspend a parent’s custody and visitation rights do not affect a substantial right and are,
       therefore, not appealable. The extent of the juvenile court’s jurisdiction over a juvenile
       while an appeal is pending must be determined by the facts of each case. We are going to
       continue to hear evidence today whether the court takes the final ruling under advisement
       or not.

On June 25, 2019, we dismissed both appeals for lack of jurisdiction. See In re Interest of John J.
et al., No. A-18-911, 2019 WL 2591075 (Neb. App. June 25, 2019) (selected for posting to court
website). We found that because the juvenile court’s orders suspending visitation were merely
temporary, with reunification as the permanency plan, the orders did not affect a substantial right
and therefore there was no final appealable order.
         The general rule is that “[a] notice of appeal from a nonappealable order does not render
void for lack of jurisdiction acts of the trial court taken in the interval between the filing of the
notice and the dismissal of the appeal by the appellate court.” Murray v. Stine, 291 Neb. 125, 131,
864 N.W.2d 386, 391 (2015) (citing In re Guardianship of Sophia M., 271 Neb. 133, 710 N.W.2d
312 (2006)). Both Tara and Byron filed a notice of appeal from the denial of their motions for
supervised visitation on September 21, 2018. This court dismissed those appeals for lack of
jurisdiction on June 25, 2019. Prior to the dismissal, but after the notices of appeal were filed, the
juvenile court held trial on the motions for termination of parental rights on October 29, December
3, and December 6, 2018. The final order was entered on January 24, 2019. Because there was no
final appealable order before this court, the juvenile court never lost jurisdiction of the case and
was permitted to proceed to trial.
                           2. TERMINATION OF TARA’S PARENTAL RIGHTS
                               (a) Statutory Grounds for Termination
       Under § 43-292, a court
       may terminate all parental rights between the parents or the mother of a juvenile born out
       of wedlock and such juvenile when the court finds such action to be in the best interests of
       the juvenile and it appears by the evidence that one or more of the following conditions
       exist[.]

The statute then goes on to list 11 statutory bases for termination. In this case, the State alleged
that termination of Tara’s parental rights was appropriate under § 43-292(2), (6), and (7). Any of
the 11 separate conditions under § 43-292 may serve as the basis for the termination of parental
rights when coupled with evidence that termination is in the best interests of the child. In re Interest
of Sir Messiah T. et al., 279 Neb. 900, 782 N.W.2d 320 (2010). Under § 43-292(7), grounds for
termination exist if “[t]he juvenile has been in an out-of-home placement for fifteen or more
months of the most recent twenty-two months[.]”
        In her brief, Tara concedes that the children were out of her home for 15 or more months
of the most recent 22 months prior to the filing of the termination petition. Nevertheless, we note
that the record reflects the children first entered foster care on November 4, 2016, and did not
return to the home of Tara at any point prior to the filing of the termination petition on May 15,



                                                 - 13 -
2018, nor prior to trial commencing on October 29, 2018, a span of nearly 2 consecutive years.
Because Tara does not contest the State established § 43-292(7) by clear and convincing evidence
and we find that the record in fact reflects the children remained in foster care for 15 or more of
the most recent 22 months preceding the filing of the termination petition, the State met its burden
and a statutory basis for termination exists.
                                           (b) Best Interests
        Once a statutory basis for termination has been proven, the next inquiry is whether
termination is in the child’s best interests. In re Interest of Audrey T., 26 Neb. App. 822, 924
N.W.2d 72 (2019). Such a showing must be made by clear and convincing evidence. In re Interest
of Angelica L. & Daniel L., 277 Neb. 984, 767 N.W.2d 74 (2009). Clear and convincing evidence
means that amount of evidence which produces in the trier of fact a firm belief or conviction about
the existence of a fact to be proved. In re Interest of Zachary D. & Alexander D., 289 Neb. 763,
857 N.W.2d 323 (2015).
        A parent’s right to raise his or her child is constitutionally protected; so before a court may
terminate parental rights, the State must also show that the parent is unfit. In re Interest of Aly T.
& Kazlynn T., 26 Neb. App. 612, 921 N.W.2d 856 (2018). There is a rebuttable presumption that
the best interests of a child are served by having a relationship with his or her parent. Id. Parental
unfitness means a personal deficiency or incapacity which has prevented, or probably will 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. In re Interest of Jahon S., 291 Neb. 97, 864 N.W.2d
228 (2015). The best interests analysis and the parental fitness analysis are fact-intensive inquiries.
Id. And while both are separate inquiries, each examines essentially the same underlying facts as
the other. Id.
        Tara attempts to argue that because the State “used only caseworkers and managers instead
of those directly involved with the case to determine what was in the best interests for [the
children],” brief for appellant at 22, the instant case is similar to the facts of In re Interest of Aaron
D., 269 Neb. 249, 691 N.W.2d 164 (2005), where the Nebraska Supreme Court found the State
had not adduced sufficient evidence to find termination of parental rights in the minor child’s best
interests. However, this is not so. Over 3 days of trial the State called not only PromiseShip family
permanency specialists and supervisors, but also the children’s therapist, foster parents, and
CEDARS workers who were directly involved in the supervision of Tara’s visitation and care of
the children.
        While there were only two workers who directly testified to their professional opinion
regarding whether termination was in the children’s best interests, we do not require direct opinion
testimony to make a best interests determination. Instead, in our de novo review, we look to the
record as a whole to determine whether there is clear and convincing evidence that termination is
in the children’s best interests. In the instant case, we find that the State produced sufficient
evidence that termination of Tara’s parental rights was in the minor children’s best interests.
        The record reflects that Tara and her children have a long history with DHHS. While a
number of intakes received by the CPS hotline over the years were resolved without further action,
in November 2016, the children were ultimately removed from the home of Tara and Byron due



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to unkempt living conditions and educational neglect. Since the children entered State
custody--nearly 2 years before the trial in this matter commenced--very little progress was made
to satisfy that reunification with Tara was in the best interests of the children.
         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
Brooklyn T. & Charlotte T., 26 Neb. App. 669, 922 N.W.2d 240 (2018). In this case, Tara was
ordered to complete a number of requirements as part of her court-ordered rehabilitation and
permanency plan. Nevertheless, the children remained in State custody while Tara failed to
complete these permanency objectives. Particularly concerning is Tara’s failure to address the very
concerns that brought the children into State custody to begin with, particularly concerns of
domestic violence within the home, unsuitable housing, and educational neglect.
         Lohman, the family permanency specialist, testified that throughout her time on the case,
Tara repeatedly recanted on her previous allegations of domestic violence against Byron.
Furthermore, throughout the duration of the case, none of the permanency specialists or visitation
supervisors were able to discern the relationship between Tara and Byron. Despite the fact that
Tara had previously requested a protection order because she felt unsafe around Byron and some
of the children had reported incidences of domestic violence in the home, Tara and Byron
nevertheless moved back in together in March 2018. Furthermore, this was the first stable housing
that either Tara or Byron had since the children were taken into State custody well over a year
earlier. 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).
         There was also testimony that Tara’s visitation schedule was reduced and altered on a
number of occasions due to her inconsistent attendance, failure to confirm scheduled visits, and
generalized chaos on visits. Ultimately, visitation was suspended due to the chaotic nature of visits.
Prior to the suspension, Tara needed assistance on visits, would often talk negatively about
visitation supervisors and foster parents, and would make promises to the children she could not
keep regarding timeframes they would return home.
         The evidence also shows that since remaining in foster care, the children have experienced
reduced symptoms of social anxiety, are more comfortable within the home, have vastly improved
in their education, are excited about learning, and are happier overall. As a result, because of the
concerning nature of the issues in this case, Tara’s seeming unwillingness to accept responsibility
and make positive strides toward rehabilitation and reunification, and the lengthy duration of this
case, we find that it was in the best interests of the children that Tara’s parental rights be
terminated.
                         3. TERMINATION OF BYRON’S PARENTAL RIGHTS
                              (a) Statutory Grounds for Termination
        In its second motion for termination of parental rights, the State alleges that a statutory
basis exists to terminate the parental rights of Byron under § 43-292(2), (6), and (7). In his brief,
Byron attempts to intermingle the statutory basis analysis with the separate best interests analysis.
In doing so, Byron relies on the Supreme Court’s decision in In re Interest of Angelica L. & Daniel




                                                - 15 -
L., 277 Neb. 984, 1006, 767 N.W.2d 74, 92 (2009), where the Supreme Court recognized the
15-month time period under § 43-292(7)
       merely provides a guideline for what would be a reasonable time for parents to rehabilitate
       themselves to a minimum level of fitness. Regardless of the length of time a child is placed
       outside the home, it is always the State’s burden to prove by clear and convincing evidence
       that the parent is unfit and that the child’s best interests are served by his or her continued
       removal from parental custody.

        We agree that establishing its burden under § 43-292(7) does not relieve the State of
establishing parental unfitness and that termination is in the best interests of the children.
Nevertheless, this is a separate analysis.
        Here, we have already determined that the record reflects the children were first placed in
foster care in November 2016, where they remained past the filing of the termination petition on
May 15, 2018, and through trial commencing in October. Therefore, the State has proved, by clear
and convincing evidence, that the children remained in an out-of-home placement for 15 or more
months of the most recent 22 months and the condition of § 43-292(7) was met.
                                          (b) Best Interests
         Many of the same facts underlying our best interests in regard to Tara equally apply to
Byron. First, Byron continuously delayed a number of court-ordered requirements under his
rehabilitation and permanency plan. Longwell, who was the family permanency supervisor
between May 2017 and November 2018, testified that Byron was unemployed for a significant
period of time when she first was assigned to the case. Furthermore, like Tara, Byron did not obtain
stable housing until March 2018, well after it was initially ordered by the court in March 2017.
         However, our primary concern regarding Byron’s parental fitness and the children’s best
interests as it relates to the termination of Byron’s parental rights, is the repeated allegations of
domestic violence within the home. While it is true Byron has never been convicted of any sort of
domestic violence, we find it particularly concerning how many times Byron is found at the
epicenter of such reports. The CPS hotline has received a number of concerning intakes alleging
violent acts by Byron dating back to 2004. At one point, Tara had even sought a protection order
against Byron, encompassing the children. While the protection order ultimately was dismissed,
this does not alleviate our concern that repeated instances of domestic violence occurred within
the home. Duhacheck-Chase, the therapist for both the children and Tara, testified that Tara
indicated to her that “at times [Byron] could be controlling and possessive, aggressive towards her
and the kids.” In fact, Lohman testified that “John had reported on different occasions that he
didn’t feel safe with his parents. At one face-to-face in particular -- I believe it was January of
2017 -- he reported being pushed through a window by [Byron].”
         Also concerning is the fact that throughout the duration of this case Byron has refused to
accept any sort of responsibility for his actions and take efforts to rehabilitate his past
transgressions. Hofmann, the family permanency specialist between September 2017 and trial,
testified that Byron repeatedly denied any issues of domestic violence and called the entire thing
a “misunderstanding.” She testified that “[i]n the month of November 2017 when [Byron] did start



                                                - 16 -
the batterer’s intervention program he told me that he was upset that he had to admit he was a
batterer because he doesn’t believe he’s a batterer. He’s just a jealous boyfriend.” We find this
characterization of something as serious as domestic violence, and the fact Byron refuses to accept
any sort of responsibility, particularly concerning.
        Overall, based on our de novo review of the record, the comparable facts surrounding best
interests discussed in regard to Tara above, and the ongoing concerns of domestic abuse in the
home, we find that termination of Byron’s parental rights is in the best interests of the children.
                                        VI. CONCLUSION
        The juvenile court did not err in finding that it had jurisdiction to proceed to trial on the
motions to terminate parental rights. Further, the court did not err in finding a statutory basis to
terminate both Tara and Byron’s parental rights under § 43-292(7), that each parent was unfit, and
that termination was in the best interests of the children.
                                                                                         AFFIRMED.




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