                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                    IN RE INTEREST OF LILLIE C.


  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 LILLIE C., A CHILD UNDER 18 YEARS OF AGE.

                                  STATE OF NEBRASKA, APPELLEE,
                                                 V.

                                    FREDERICK C., APPELLANT.


                              Filed January 8, 2019.    No. A-18-529.


       Appeal from the Separate Juvenile Court of Lancaster County: LINDA S. PORTER, Judge.
Affirmed.
       Nancy K. Peterson for appellant.
       Patrick F. Condon, Lancaster County Attorney, and Maureen E. Lamski for appellee.


       MOORE, Chief Judge, and PIRTLE and ARTERBURN, Judges.
       ARTERBURN, Judge.
                                         INTRODUCTION
        Frederick C. appeals from the order of the separate juvenile court of Douglas County that
terminated his parental rights to his daughter, Lillie C. On appeal, Frederick challenges the juvenile
court’s findings that termination of his parental rights was warranted under Neb. Rev. Stat.
§ 43-292(2) (Reissue 2016) and that termination was in Lillie’s best interests. Based on our de
novo review of the record, we affirm.




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                                          BACKGROUND
         Lillie was born in January 2017, to Hasina G. and Frederick. Since Lillie’s birth, Frederick
has held himself out as her father, and his paternity was confirmed by later genetic testing. We
note at the outset that Hasina’s parental rights under § 43-292 were terminated on February 5,
2018, but she does not appeal that decision. Thus, we will only discuss facts that are pertinent to
Frederick’s appeal.
         Following Lillie’s birth, Frederick attended three or four medical appointments with
Hasina and Lillie. Frederick had no steady employment but had worked for various temporary
employment agencies and for friends during 2016 and 2017. He testified that he always had money
coming in and would help with Lillie’s expenses as he was able. He stated that he purchased
formula, bottles, and clothing for Lillie after she was born.
         Frederick has fathered five children in addition to Lillie, who were ages 24, 21, 13, 12, and
11 years old at the time of the hearing on the motion to terminate parental rights in March 2018.
With the exception of his oldest child, Frederick said he had lived with each of his children at one
time or another. Frederick testified that his six children have five different mothers. Frederick
acknowledged that when his relationships with his children’s mothers failed, he was the one to
leave. On several occasions, his past incarcerations led to the severance of his relationships with
his children and their mothers. As of April 17, 2018, Frederick owed over $57,000 in total child
support obligations related to his children who were ages 21, 13, 12, and 11 years old. Child
support payment history reports demonstrated that approximately $1,400 was collected from him
involuntarily during 2016. His last voluntary payments of child support occurred in 2015 when he
paid approximately $140.
         Initially Frederick testified that he lived with Hasina from the time of Lillie’s birth in
January 2017 until March 2017 when Hasina and Lillie moved in with Hasina’s parents. Frederick
testified that after Hasina moved in with her parents, she did not allow him access to Lillie until
the Nebraska Department of Health and Human Services (Department) became involved sometime
in May 2017. Later in his testimony, Frederick stated that he ended his relationship with Hasina in
December 2016 and moved in with a woman named Kiera until April 2017 when things ended
with her. He subsequently moved in with a different woman, Jennifer, in April 2017. At the hearing
on the motion to terminate his parental rights, Frederick testified that he was again in a relationship
with Kiera. He estimated he lived in three or four different residences from December 2016 until
June 2017.
         On May 9, 2017, the separate juvenile court of Lancaster County ordered the Department
to take emergency custody of Lillie following the filing of a petition and affidavit in support thereof
which recounted events that indicated her health and well-being were at risk. Elizabeth Schropp,
a children and family services specialist with the Department, testified that Lillie was physically
removed on May 11, 2017, once she was located. Following Lillie’s removal, a sample of her hair
was tested, which showed she had been exposed to methamphetamine and cannabinoids.
         Lillie was placed in the care of foster parents unrelated to her, and she remained there
through the time of the termination hearing. Lillie’s older half brother, with whom she shares a
mother, was also living with the same foster parents. The foster mother testified that Lillie




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appeared anxious when she arrived and said that Lillie was slow to physically relax. Lillie also had
an eczema breakout when she was first placed in foster care. During the following months, Lillie
grew happier, calmer, more social, and was easier to pacify when she got upset.
         Schropp first met with Frederick on May 25, 2017, when she evaluated the appropriateness
of his residence to host visitations with Lillie. Schropp testified that the apartment Frederick lived
in was leased by Jennifer but was acceptable for visitations that were supervised. However,
Schropp also noted the Department’s concern that Jennifer had children who were previously
permanently removed from her care and that she was on the central registry. Accordingly, Schropp
said that the Department would resist any request to place Lillie with Frederick while he shared a
home with Jennifer.
         Schropp advised Frederick regarding other steps he must complete in order to enhance his
chances of Lillie being placed with him, including obtaining a steady source of income. Schropp
also requested that Frederick submit to random drug testing to determine whether he was clean
and ought to be considered for placement. Frederick declined, telling Schropp that he wanted to
first discuss the possible drug testing with his attorney. No drug tests occurred.
         Frederick was allowed 20 hours’ visitation per week, and he had four visitations with Lillie
between May 27 and June 1, 2017. While the foster parents provided necessary supplies such as
formula and diapers for the first three visits, Frederick provided some of the supplies for the fourth
visit. Frederick told Schropp that he had asked a friend to purchase formula and food for Lillie.
         On June 2, 2017, Frederick was arrested and charged with three felony offenses including
possession of a firearm by a prohibited person, driving under a revoked license, and possession of
a controlled substance (methamphetamine). Frederick told the arresting officer that he intended to
get high. Pursuant to a plea agreement, Frederick pled guilty or no contest to an amended
information, which charged him with attempted possession of a firearm by a prohibited person.
On February 1, 2018, he was sentenced to a term of 4 to 8 years’ imprisonment and received credit
for 243 days of time served dating back to the date of his initial arrest. Frederick testified that he
will be eligible for parole in June 2019. If not paroled, his date for absolute release will be in June
2021 if he does not lose any good time.
         On June 5, 2017, the State filed a supplemental petition, which sought to adjudicate Lillie
as a juvenile defined by Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016) with respect to Frederick.
The supplemental petition alleged that Lillie lacked proper parental care by reason of the fault or
habits of Frederick and cited Lillie’s removal on or about May 9, 2017, her subsequent positive
drug test, and Frederick’s arrest on June 2, 2017. On February 5, 2018, Lillie was adjudicated as a
juvenile defined by § 43-247(3)(a) with respect to Frederick.
         At the Lancaster County Jail, Frederick completed the Common Sense Parenting course,
which met twice weekly for 8 weeks. Frederick said the course taught him how to better deal with
the stress of parenting. He also completed the Within My Reach Relationship and Communication
Program. That program also met twice weekly for 8 weeks, and Frederick said it taught him better
communication skills for use in his relationships. Since being placed in the custody of the
Department of Corrections, Frederick has been placed on waiting lists for an intensive drug
treatment program and the prison’s Violence Reduction Program.




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         Frederick has expressed a desire to have visitations with Lillie while he is incarcerated, but
he acknowledged not expressing this desire to the Department caseworker when he was first
incarcerated. However, the current caseworker, Brendamae Stinson, testified that she is aware of
Frederick’s desire to have visitations with Lillie in the prison. She said that the first step toward
approving visitations is for Frederick to mail her a visiting form from the prison but that he had
not done so as of the date of the hearing. She also stated that prison officials had not provided the
form to her despite her requests. Additionally, the Department would have to contract with a
visitation worker who is approved by the prison and would transport Lillie and supervise the
visitation. Stinson said that visitation workers willing to supervise visits in prison are rare.
         While incarcerated, Frederick has also sent letters requesting that Lillie’s foster parents
send him photos of her and updates, which the foster parents have done. Frederick has not provided
any form of support for Lillie to her foster parents. They have not received money, clothing, or
food, for example.
         On February 7, 2018--2 days after Hasina’s parental rights to Lillie were terminated--the
State moved to terminate Frederick’s parental rights to Lillie. The State alleged that Frederick
substantially and continuously or repeatedly neglected and refused to give necessary parental care
and protection to Lillie or her sibling as set forth by § 43-292(2). The State further alleged that
termination of Frederick’s parental rights was in Lillie’s best interests.
         A hearing on the motion to terminate Frederick’s parental rights was held on April 20,
2018. The State called four witnesses to testify: Frederick, Lillie’s foster mother, and two
caseworkers. The court found by clear and convincing evidence that Frederick substantially and
continuously or repeatedly neglected and refused to give Lillie or a sibling of Lillie, necessary
parental care and protection and that termination of Frederick’s parental rights was in Lillie’s best
interests. On May 1, 2018, the juvenile court terminated Frederick’s parental rights to Lillie.
         In terminating Frederick’s parental rights, the juvenile court emphasized the circumstances
surrounding Frederick’s June 2, 2017, arrest. The court noted that Frederick chose to illegally drive
an automobile and to illegally possess a firearm and a dangerous controlled substance, from which
he intended to get high. This incident occurred even after Lillie had already been removed and
placed in foster care.
         Moreover, the court found that Frederick had a history of neglecting his other minor
children’s financial and emotional needs over a period of decades. This included not being actively
involved in any of their lives and owing over $57,000 in child support. The court found that
Frederick’s history of criminal conduct, drug use, and loss of relationships with his other children
suggested his need for a long period of rehabilitation before Lillie could be placed in his care. His
actions therefore constituted neglect of Lillie or siblings. Thus, the court found that termination
was warranted under § 43-292(2) and was in Lillie’s best interests.
         Frederick now appeals.
                                   ASSIGNMENTS OF ERROR
        Frederick argues on appeal that the juvenile court erred in finding that a statutory ground
for termination of his parental rights under § 43-292 existed and that termination of his parental
rights was in Lillie’s best interests.



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                                    STANDARD OF REVIEW
        An appellate court reviews juvenile cases de novo on the record and reaches its conclusions
independently of the juvenile court’s findings. In re Interest of Kane L., 299 Neb. 834, 910 N.W.2d
789 (2018). When the evidence is in conflict, 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). Clear and convincing evidence
means and is that amount of evidence which produces in the trier of fact a firm belief or conviction
about the existence of a fact to be proven. In re Interest of Brettany M. et al., 11 Neb. App. 104,
644 N.W.2d 574 (2002).
                                            ANALYSIS
Statutory Ground for Termination.
        In order to terminate parental rights under § 43-292, the State must prove by clear and
convincing evidence that one or more of the statutory grounds listed in the section have been
satisfied and that termination is in the child’s best interests. In re Interest of Nicole M., 287 Neb.
685, 844 N.W.2d 65 (2014). Only one statutory ground for termination needs to be proved in order
for parental rights to be terminated. In re Interest of Kendra M., 283 Neb. 1014, 814 N.W.2d 747
(2012). In the present case, § 43-292(2) was the only statutory ground alleged against Frederick,
which allows termination when “parents have substantially and continuously or repeatedly
neglected and refused to give the juvenile or a sibling of the juvenile necessary parental care and
protection.”
        Our courts have consistently held that a parent need not have physical possession of a child
to demonstrate the existence of neglect as contemplated by § 43-292(2). In re Interest of Joseph
S., 291 Neb. 953, 870 N.W.2d 141 (2015). The questions of what constitutes neglect and necessary
parental care and protection are generally determined on a case-by-case basis. In re Interest of
Elijah P., 24 Neb. App. 521, 891 N.W.2d 330 (2017). Under § 43-292(2), the State must establish
that the parental neglect was substantial and continuous or repeated. Id. Last-minute attempts by
parents to comply with rehabilitation plans do not prevent termination of parental rights. In re
Interest of Alec S., 294 Neb. 784, 884 N.W.2d 701 (2016).
        Although incarceration alone cannot be the sole basis for terminating parental rights, it is
a factor to be considered. In re Interest of Jahon S., 291 Neb. 97, 864 N.W.2d 228 (2015). Our
courts have noted that although incarceration itself may be involuntary as far as a parent is
concerned, the criminal conduct causing the incarceration is voluntary. Id. Thus, in a case
involving termination of parental rights, it is proper to consider a parent’s inability to perform his
or her parental obligations because of incarceration. Id.
        Notably, the court in In re Interest of Jahon S. held that despite a father’s potential to be
paroled within a month of the termination hearing, he could not show that he was prepared to be a
parent to his son due to his history of parental neglect. In the present case, Frederick insists that
his nearness to a possible release from prison, his self-improvement while incarcerated, and his
desire to have visitations with Lillie show that he was not neglecting her. On our review, we agree
with the juvenile court that the evidence shows otherwise.




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         Prior to his incarceration, Frederick entirely lacked steady employment or housing and
therefore could not provide for Lillie. The record shows that Frederick lived with three different
women in three or four different residences during the six months prior to his arrest in June 2017.
According to Frederick, he was the named lessee on two of the four residences but was apparently
not able to maintain them. Frederick shared one of the homes with a woman whose history with
the Department would prevent placement of Lillie in their shared home. Moreover, this pattern of
frequently moving from residence to residence appears to be Frederick’s pattern over an extended
period of time. His account of his past relationships with his older children and their mothers
appears to show a pattern of long-term instability with respect to housing. Additionally,
Frederick’s failure to maintain steady employment caused him to neglect the needs of four of
Lillie’s half siblings. He has fallen behind on child support payments totaling over $57,000. As of
the date of the termination hearing, he had made no voluntary child support payments for over 30
months.
         Frederick is presently incarcerated because despite the recent establishment of visitation
rights, he ignored his parental responsibility for Lillie and chose instead to drive while his license
was revoked, carry a firearm as a prohibited person, and possess methamphetamine, which he
intended to use to get high. His actions on June 2, 2017, evidence substantial neglect of Lillie, who
had already been removed and placed in foster care. Frederick’s voluntary commission of the
above crimes rendered him unable to exercise parental care of Lillie. This is particularly troubling
in Frederick’s case, given his acknowledged history of committing crimes. Frederick admitted two
prior sentences to prison as well as prior jail sentences. He further admitted that his past
incarcerations had led to the termination of past relationships with his older children and their
mothers. Notably, though repeatedly testifying to various mothers’ decisions to deny him visitation
with his children, Frederick did not describe any efforts to establish formal visitation with his other
children. Thus, while Frederick’s most recent incarceration, alone, may not evidence parental
neglect, his actions and behavior through over 24 years of parenthood certainly do. Accordingly,
we find the juvenile court did not err in finding the existence of a statutory ground for the
termination of Frederick’s parental rights.
Best Interests of Lillie.
        Because the State proved the existence of a statutory ground for termination of Frederick’s
parental rights, we turn to whether the State also showed that termination was in the best interests
of Lillie. A parent’s right to raise his or her child is constitutionally protected, so the State must
also show that the parent is unfit before a court may terminate parental rights. In re Interest of
Jahon S., supra. There is a rebuttable presumption that the best interests of a child are served by
having a relationship with his or her parent. In re Interest of Austin G., 24 Neb. App. 773, 898
N.W.2d 385 (2017). Based on the idea that fit parents act in the best interests of their children, this
presumption is overcome only when the State has proved that the parent is unfit. Id.
        The term “unfitness” is not expressly used in § 43-292, but the concept is generally
encompassed by the fault and neglect subsections of that statute, and also through a determination
of the child’s best interests. In re Interest of Kendra M., supra. In discussing the constitutionally
protected relationship between a parent and a child, our courts have held, “‘“Parental unfitness



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means a personal deficiency or incapacity which has prevented, or will probably prevent,
performance of a reasonable parental obligation in child rearing and which has caused, or probably
will result in, detriment to a child’s well-being.”’” Id. at 1033-34, 814 N.W.2d at 761. The best
interests analysis and the parental fitness analysis are fact-intensive inquiries, and while both are
separate inquiries, each examines essentially the same underlying facts as the other. In re Interest
of Nicole M., supra.
        Frederick argues that no evidence was presented to show that termination of his parental
rights was in Lillie’s best interests. Our review of the record reveals otherwise. Frederick’s
behavior prior to his present incarceration suggests parental unfitness. In particular, Frederick has
fathered five other children but has not actively participated in their lives. There is no evidence,
even from his own testimony, that indicates he has parented any of his children on more than a
short-term basis. He has not participated meaningfully in making important parenting decisions or
providing emotional or financial support. This past history provides little hope that he will act
differently with respect to Lillie.
        Moreover, Frederick’s history of inconsistent and temporary employment and income,
indicates that Frederick will be unable to provide for Lillie once he is released from prison. He has
a demonstrated history of not providing financially for his children. Furthermore, he has not been
able to maintain permanent full time work, nor has he demonstrated an ability to maintain stable
housing. Based on the record, it further appears that he has had ongoing issues with alcohol and
drug addiction.
        While we commend Frederick for the efforts he has made and the programs he has
completed during his period of incarceration, the evidence shows Frederick is unfit. Lillie’s best
interests are served through permanency and stability, which Frederick concedes is true of all
children. There is no evidence in our record that indicates Frederick provided Lillie with either
permanency or stability prior to his present incarceration even though he was aware that Hasina
had lost custody of several of her older children prior to Lillie’s birth.
        Frederick concedes that at the earliest, he will be paroled in June 2019. However, that
release date is speculative. If not paroled at his first opportunity, he could serve up to an additional
2 years. Therefore, Lillie will be at least 2½ years old and could be over 4 years old by the time
Frederick is released. At that point, Frederick would then have to establish and maintain
employment, housing, sobriety, demonstrate appropriate parenting skills, and establish a bond with
Lillie. Given his history, it is difficult to project when if ever Frederick will attain the skills and
maturity necessary to provide for Lillie’s needs. Children cannot, and should not, be suspended in
foster care or be made to await uncertain parental maturity. In re Interest of Jahon S., supra; In re
Interest of Walter W., 274 Neb. 859, 744 N.W.2d 55 (2008). Therefore, based on the totality of the
evidence, we find that termination of Frederick’s parental rights is in Lillie’s best interests.
                                           CONCLUSION
        Based on the foregoing, we find that the juvenile court did not err in finding that a statutory
ground for termination of Frederick’s parental rights under § 43-292 existed and that termination
of his parental rights was in Lillie’s best interests. Therefore, we affirm.
                                                                                            AFFIRMED.



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