                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                  IN RE INTEREST OF TRE’VON A.


  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 TRE’VON A., A CHILD UNDER 18 YEARS OF AGE.

                                  STATE OF NEBRASKA, APPELLEE,
                                                 V.

                                      ALBERT W., APPELLANT.


                            Filed September 26, 2017.     No. A-17-193.


       Appeal from the Separate Juvenile Court of Douglas County: CHRISTOPHER KELLY, Judge.
Affirmed.
       Matthew R. Kahler, of Finley & Kahler Law Firm, P.C., L.L.O., for appellant.
       Donald W. Kleine, Douglas County Attorney, Jennifer C. Clark, and Laura Elise Lemoine,
Senior Certified Law Student, for appellee.



       MOORE, Chief Judge, and BISHOP and ARTERBURN, Judges.
       ARTERBURN, Judge.
                                         INTRODUCTION
        Albert W. appeals form an order of the juvenile court of Douglas County which terminated
his parental rights to his minor child, Randi A. The juvenile court found that grounds existed under
Neb. Rev. Stat. § 43-292(1), (2), (7), and (9) (Reissue 2016) and that the termination of his parental
rights was in Randi’s best interests. Upon our de novo review of the record, we affirm the decision
of the juvenile court.




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                                          BACKGROUND
         This juvenile court proceeding involves one child, Randi, born in 2011. Randi came under
the jurisdiction of the juvenile court on August 6, 2013, and has been in out of home placement
from that date forward. The State filed a Third Supplemental Petition and Termination of Parental
Rights on August 29, 2016, alleging that Randi came within the meaning of Neb. Rev. Stat.
§ 43-247(3)(a) (Reissue 2016). Specifically, the petition alleged that Randi lacked proper parental
care by reason of the fault or habits of Albert, Albert failed to provide safe, stable and appropriate
housing for Randi, Albert failed to have any contact with Randi in the six months prior to the filing
of the petition, Albert failed to provide emotional or financial support to Randi, Albert failed to
place himself in a position to parent Randi, and that due to these allegations, placed Randi at risk
for harm. The petition also alleged that Albert had abandoned and substantially and continuously
neglected Randi. The petition alleged that Randi had been in out of home placement for 15 of the
most recent 22 months, that aggravated circumstances were present, no reasonable efforts were
necessary under the statute and termination was in Randi’s best interests.
         On November 8, 2016, a termination hearing was held. Albert appeared personally and
with counsel. At the hearing, three individuals provided testimony: Kristy Lewis of Nebraska
Families Collaborative, Randi’s foster mother, and Albert. Three exhibits were received by the
juvenile court: a genetic testing report, the affidavit of Lewis, and a notice of objection to adoption
authored by Albert.
         The first witness called by the State was Lewis. At the time of the hearing, Lewis had
worked as a family permanency specialist at Nebraska Families Collaborative for approximately
20 months. Lewis first became involved in this case in May 2015. Lewis testified that she received
the case from another permanency specialist and had to review the file and speak with the former
specialist to familiarize herself with the case.
         Lewis testified that in May 2015, there were two identified possible biological fathers for
Randi, Michael J. and Albert. Neither person was listed on Randi’s birth certificate, but Kenneth
H. was named as the father of Randi on her birth certificate. Kenneth was married to Randi’s
biological mother when she was born, but was later determined not to be Randi’s biological father.
Kenneth relinquished his parental rights to Randi on January 20, 2016. Michael filed a Complaint
to Intervene in this matter on June 5, 2015, alleging that he was the biological father of Randi.
After genetic testing revealed that Michael was not Randi’s biological father, Michael withdrew
his complaint on January 20, 2016.
         Lewis testified that Randi had been removed from her biological mother’s care in 2013 and
had resided with her foster mother since the removal. Randi’s biological mother relinquished her
parental rights to Randi on October 21, 2015.
         Lewis testified that she had a very short phone conversation with Albert shortly after she
was assigned the case in May 2015. Albert was incarcerated in federal prison outside Nebraska at
that time. Lewis testified that the previous case worker had sent Albert Lewis’ contact information,
which is how Albert was able to reach out to her. Albert informed Lewis that he was being
transferred to another prison, so Lewis provided Albert with her contact information. Lewis
testified that Albert stated that he was possibly the father of Randi.




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         The next contact Lewis had with Albert was in June 2015 when Albert called her. Lewis
testified that the conversation entailed giving Albert information in order to establish paternity.
Albert informed Lewis that he would be willing to hire an attorney to establish paternity. Lewis
testified that she informed Albert that she was unable to aid Albert until paternity was established.
Lewis testified that she sent Albert the appropriate documents to apply for financial aid in order to
establish paternity, along with her contact information. In this conversation, Albert informed Lewis
that he was incarcerated in Pennsylvania. Lewis testified that she informed Albert that Randi’s
biological mother was about to relinquish her rights to Randi and that it was possible that adoption
proceedings would occur with Randi. According to Lewis, Albert stated he would be willing to
establish paternity and that he had known that Randi was potentially his daughter since she was a
baby. Lewis testified that she told Albert it was imperative for him to contact her at least once a
month so that she could keep him informed on the progress of the case and that she sent him a
follow-up letter detailing their conversation. Lewis testified that this follow-up letter was certified
and restricted. It was returned to her by the postal service. There was no signature by Albert
accepting it.
         Lewis testified that after the June 2015 phone conversation with Albert, she was unable to
have direct contact with Albert, despite her efforts to locate and reach him, until August 2016. She
was made aware that Albert had sent a notice of objection to adoption in October 2015. Lewis
testified that she was required to attempt to reach Albert 3 times a month via letter and phone.
Lewis testified that given her inability to have contact with Albert, she was unable to set up any
type of genetic testing to establish paternity.
         Lewis testified that Albert had left her a phone message in late June 2016, provided a phone
number, and informed her that he would be residing at a halfway house in Council Bluffs, Iowa.
Lewis testified that with this information, she was able to receive a court-order for genetic testing.
Lewis testified that the genetic testing was completed in August 2016.
         Lewis testified that when she received the genetic testing results, she met with Albert
personally in Council Bluffs. Lewis informed Albert that he was Randi’s biological father. Lewis
testified that Albert requested to see Randi at that time. Lewis informed Albert that she needed to
consult with her superiors in order to know if visitation would be appropriate. Lewis testified that
Albert stated he was in a halfway house, was employed, and would be staying with his mother
after release from the halfway house. Lewis was also informed that Albert had been incarcerated
for selling drugs. Lewis once again gave Albert her contact information and related that it was
important for him to remain in contact with her.
         Lewis testified that she did not have contact with Albert again until a juvenile hearing in
September 2016. At the hearing, Albert asked through counsel if visitation was available. Lewis
attempted to set up a court-ordered mediation with Albert at that time, but was unable to contact
him with the number he provided.
         Lewis testified that she was informed by both Randi’s foster mother and therapist that
within the 3 months prior to the adjudication hearing, there were reports of Randi wetting the bed,
experiencing nightmares, clinging to her foster mother, and having other behavioral issues. Lewis
also testified that she had also spoken with Randi individually during that timeframe. Lewis
testified that Randi had been with the same foster parents since 2013. It was Lewis’ ultimate



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opinion based on her training and experience that termination of Albert’s parental rights was in
Randi’s best interests. Lewis’ reasoning was Randi’s worsening behavior, Randi’s lack of contact
with Albert, and the fact that Lewis does not have any information about whether Albert could
care and provide for Randi.
         The next witness called by the State was Katherine S., Randi’s foster mother. Katherine
testified that Randi was first placed in her home when she was 3 days old. Randi remained with
Katherine for 8 months. Randi was removed from her biological mother twice more, and has been
with Katherine since she was 2 years old. At the time of the termination hearing, Randi was 5 years
old.
         Katherine testified that since Randi has been in her home, Albert had phoned one time,
which was in 2016. Katherine testified that Albert wanted to speak with Randi, but Randi became
upset when she heard Albert speaking on the phone and Katherine ended the call. Katherine
testified that she blocked the phone number because of how upset Randi became during the phone
call. She did not want Randi to answer the phone and speak with Albert. Katherine testified that
Albert’s family had visited Randi when she was younger, but they had not had contact for a
significant period of time.
         Katherine testified that in the few months prior to the adjudication hearing Randi’s
behavior had been worsening. Katherine testified that Randi had experienced nightmares, wet the
bed, and had become more attached to her. Katherine testified that in the time Randi has lived with
her, she has not received any gifts, letters, or support from Albert.
         Albert testified during the termination hearing. Albert testified that he gave a genetic
sample for testing the day before he was released from prison, July 31, 2016. Albert testified that
he entered prison in May 2011, which was one month before Randi was born. Albert testified that
he became aware that he was definitely Randi’s father on August 26, 2016. Albert testified that he
did not receive any financial forms from Lewis while he was incarcerated.
         Albert testified that since he was released from prison, he had been denied visitation with
his daughter because it was not court-ordered. Albert testified that he did not inform Lewis that
there was a possibility that he was Randi’s father in May 2015. Albert stated that he had made
phone contact with Lewis between October 2015 and August 2016. As of the time of the hearing,
he was living with his mother and was employed. At that time he was in “home confinement” but
could leave his residence for work. He testified that he would begin supervised release (with a
federal probation officer) in January 2017.
         On cross-examination, Albert testified that he was made aware that Randi could potentially
be his daughter before her birth. He testified that he had attempted to establish paternity before
May 2015, but offered no evidence of specific efforts. Albert made inconsistent statements about
whether he had spoken to Randi’s biological mother since Randi’s birth. Albert testified that he
entered prison in May 2011 due to drug distribution. Albert also admitted that he had never spoken
with Randi.
         Following the termination hearing, the juvenile court entered an order on January 19, 2017,
terminating Albert’s parental rights to Randi. The juvenile court found that there was clear and
convincing evidence to support termination under § 43-292(1), (2), (7), and (9). The juvenile court
also found it was in Randi’s best interests to terminate Albert’s parental rights.



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                                   ASSIGNMENTS OF ERROR
       Albert alleges, restated, that the juvenile court erred in finding that the State proved the
relevant statutory grounds for termination of his parental rights and finding that termination of his
parental rights was in the child’s best interests.
                                    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 LeVanta S., 295 Neb. 151, 158, 887
N.W.2d 502, 509 (2016). 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. Id.
                                            ANALYSIS
                                       STATUTORY GROUNDS
        Albert asserts that the juvenile court erred in terminating his parental rights pursuant to
§ 43-292(1), (2), (7), and (9). Upon our de novo review, we find that the evidence clearly and
convincingly demonstrates that Randi was in an out-of-home placement for at least 15 of the most
recent 22 months prior to the termination hearing, pursuant to § 43-292(7). As a result, we need
not specifically address whether the State presented clear and convincing evidence to demonstrate
that termination was also warranted pursuant to § 43-292(1), (2), or (9). See, In re Interest of Isabel
P., 293 Neb. 62, 81, 875 N.W.2d 848, 861 (2016).
        Termination of parental rights is warranted whenever one or more of the statutory grounds
provided in § 43-292 are established. Section 43-292(7) 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 Justin H., 18 Neb. App. 718, 726, 791 N.W.2d 765, 772
(2010).
        At the hearing on the State’s motion to terminate Albert’s parental rights, there was
uncontradicted evidence which demonstrated that Randi was placed into the custody of the juvenile
court in 2013. She was physically placed in the home of Katherine, a relative, and her husband and
remained in out-of-home placement for the duration of the juvenile court proceedings. As such, by
the time the State filed its motion to terminate Albert’s parental rights in August 2016, Randi had
been in out-of-home placement for approximately 36 months. Accordingly, the requirements of
§ 43-292(7) were met.
        Since there is clear and convincing evidence that termination of Albert’s parental rights
was warranted pursuant to § 43-292(7), we need not further address the sufficiency of the evidence
to demonstrate that termination was also warranted pursuant to § 43-292(1), (2), or (9). See In re
Interest of Isabel P., supra.
                                          BEST INTERESTS
       Since we have declined to address the sufficiency of the evidence demonstrating that
termination was also appropriate pursuant to § 43-292(1), (2), or (9), we treat our discussion of
whether termination of Albert’s parental rights is in Randi’s best interests as though § 43-292(7)



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is the only statutory basis for termination. In cases where termination of parental rights is based
solely on § 43-292(7), the Nebraska Supreme Court has held that 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 Aaron D., 269 Neb. 249, 260, 691 N.W.2d 164, 173
(2005). In such a situation, because the statutory ground for termination does not require proof of
such matters as abandonment, neglect, unfitness, or abuse, as the other statutory grounds do, proof
that termination of parental rights is in the best interests of the child requires clear and convincing
evidence of circumstances as compelling and pertinent to a child’s best interests as those
enumerated in the other subsections of § 43-292. In re Interest of Aaron D., supra. In meeting its
burden, the State must also prove by clear and convincing evidence that Albert is unfit to parent
the minor child.
         Albert argues that the State failed to present sufficient evidence to prove that termination
of his parental rights is in Randi’s best interests. He further argues that there was insufficient
evidence to prove that he is unfit to parent Randi.
         Our de novo review of the record demonstrates that Albert has known that he may be
Randi’s biological father since her birth in June 2011. Albert was incarcerated one month before
Randi’s birth. While he was released in August 2016, four months before the hearing, he remained
under an order of home confinement and then was to begin supervised release in January 2017. He
made no attempt to establish paternity until October 2015 when he executed a notice of objection
to adoption. Randi was already four years old at the time. While Albert places much of the blame
for his lack of progress on DHHS and his incarceration, there is no evidence that Albert put forth
any effort to determine if Randi actually was his child. Additionally, other than a birthday card
sent to Randi’s biological mother in 2012 for Randi’s first birthday, Albert has not made any
attempt to act in a parental role or provide support to Randi. While Albert has no burden of proof
in this matter, the record is entirely devoid of any information as to Albert’s ability to be an
appropriate and effective parent. There was some indication in the record that Albert has another
biological child, but no evidence relating to Albert’s relationship with that child was adduced.
There is no evidence that Albert attempted to better himself as a parent while incarcerated, such
as attending any parenting or self-improvement classes. Nowhere in the record does Albert state
that he wants to actually parent Randi beyond having visitation. He failed to appear and participate
in permanency mediation as ordered by the juvenile court on September 12, 2016.
         Although incarceration 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). See, also, In re
Interest of DeWayne G., 263 Neb. 43, 638 N.W.2d 510 (2002). The Nebraska Supreme Court has
noted that although incarceration itself may be involuntary as far as a parent is concerned, the
criminal conduct causing the incarceration is voluntary. Id. 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. Incarceration, however, does not insulate a person from the
termination of his parental rights if the record contains clear and convincing evidence that would
support the termination of the rights of any other parent. Id.
         Although Albert’s lengthy incarceration hindered his efforts to determine whether Randi
was his child, we find it notable that he took no steps to establish paternity prior to October 2015,



                                                  -6-
after being given the means to do so by Lewis in June 2015. Even though his objection letter
completed in October 2015 stated that he was the biological father of Randi, he did not act in any
way to further his paternity claim until June 2016 when he telephoned Lewis. Lewis’ telephone
number had not changed since May 2015. There is no evidence that Albert had lost her contact
information or was otherwise prevented from speaking with Lewis. Instead, Albert made no effort
to establish paternity until he was released from prison. While Lewis diligently attempted to
contact Albert throughout this period, Albert was largely silent.
        The record further demonstrates that not only does Randi view Albert as a stranger, but
that her behavior has worsened since she learned about Albert. Both Randi’s foster mother and
therapist reported that within the 3 months prior to the termination hearing, Randi was wetting the
bed, experiencing nightmares, clinging to her foster mother, and having general behavioral issues.
The one telephone call that Albert made to Randi’s foster mother, which Randi overheard, caused
her to become so upset that the foster mother had to end the call. At the time of the termination
hearing, Randi was five years old and had never spoken to or met Albert. Randi’s therapist
recommended that Albert not be allowed visitation due to the distress it caused Randi. Randi has
continuously lived with her foster parents for three years, beginning when she was two years old.
Randi has developed a strong bond with her foster family, as well as her half-brother who is also
placed in her home.
        When this case is analyzed through the lens of the child’s perspective, the evidence is quite
clear that her interests are best served by continuing her placement in the home in which she lives.
As stated by the juvenile court:
                 It is clear to the Court that this five year old child is deserving of immediate
        permanency, after enduring more than three years of uncertainty in the Juvenile Court
        system. This child is now in a situation familiar and secure to her, which offers this timely
        permanency.
                 To deny this permanency at this point for the purpose of giving this father an
        opportunity to demonstrate that he can parent a child, is the equivalent of starting the whole
        process over again for this child from square one, with the attendant possibility of
        separating her from her sibling and from the only stable family she has known. This clearly
        is not in the child’s best interest. (emphasis added).

        It is clear that the juvenile court’s decision rested largely on these considerations. However,
we must consider whether the State proved by clear and convincing evidence that Albert is an unfit
parent. Viewed through that lens, the issue becomes more problematic, particularly given the
relatively short bill of exceptions existing in this case. However, we are also mindful of the
oft-quoted proposition of law when it comes to termination cases. “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. Children cannot, and should not, be suspended in foster
care or be made to await uncertain parental maturity.” In re Interest of Athina M., 21 Neb. App.
624, 631, 842 N.W.2d 159, 164 (2014) (citations omitted). This case sits squarely at the
intersection of all these considerations.




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         First, we must consider Albert’s incarceration. Albert began his sentence approximately
one month before Randi’s birth. While it is clear from the record that his crime was committed
before Randi’s birth, it is unclear whether the crime occurred prior to his being informed of the
pregnancy. In any event, Albert’s federal incarceration resulted in his inability to have any personal
contact with Randi (and, presumably, his other child) from 2011 until his placement in a Council
Bluffs halfway house in 2016.
         In In re Interest of Athina M., supra, we reversed the decision of the juvenile court
terminating the parental rights of an incarcerated father. In that case, the evidence demonstrated
that the father was involved in a loving relationship with the child prior to his incarceration, and
actually had placement of the child for one month prior to his arrest. Although the father was
awaiting sentencing at the time of the termination hearing, it was unknown whether he might have
received probation or time-served. The sentencing hearing was scheduled two weeks following the
termination hearing; the DHHS worker involved testified that if the father were released,
reevaluation of the termination would be in order.
         This case presents several contrasts to In re Interest of Athina M. First, there has been no
relationship established between Albert and Randi. While it cannot be stated that Albert committed
his offense knowing that he had a child on the way, it is also clear that he did not commit the
offense involuntarily. While it is likely that he was aware he had another child at the time of the
offense, we do not know the age of that child. Second, Albert took little initiative to accelerate the
process of establishing paternity. He knew he was potentially the father at the time of birth, but
did nothing affirmatively until May 2015. Even after being provided paperwork and being
informed of the potential for adoption, he did nothing until he signed the notice of objection to the
adoption in October 2015. He then again refrained from communicating with Lewis until late June
2016. Third, Albert did little, if anything, to support Randi or establish a relationship with her.
During his incarceration, he sent one card to Randi’s biological mother on her first birthday. No
other gifts or support was provided. The evidence also demonstrates that Albert did not take any
parenting classes during or after his incarceration. Once released, he failed to appear for the
permanency mediation session. His only stated request during the termination hearing was for
visitation. Given his child’s age, we would hope that even in prison, Albert would take some
initiative to prepare himself for parenthood. Incarceration cannot be used as a shield to prevent an
assessment of whether a parent is fit. Here, Albert’s inactivity and lack of diligence has served to
lengthen his daughter’s time “suspended in foster care.” Based on the totality of these factors, we
cannot say the juvenile court’s finding that Albert is an unfit parent constitutes error.
         To a significant degree, Albert has been a parent “unable” to rehabilitate himself within a
reasonable time. However, he is also a parent who has been “unwilling” to do so within the
parameters available to him. This opinion should not be read to be a departure from established
law that incarceration alone cannot serve as a basis for termination of parental rights. However,
we must examine pursuant to the best interests of the child, what efforts the parent has made while
incarcerated to establish or maintain a parent-child relationship within the parameters that are
available to them.
         It is clear from the record that terminating Albert’s parental rights would be in Randi’s best
interest. She cannot languish in foster care, uncertain about her future for years, potentially,



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because a man she has never met has stated that he wants visitation with her. Children cannot, and
should not, be suspended in foster care or be made to await uncertain parental maturity. Jahon,
supra.
                                        CONCLUSION
       Upon our de novo review of the record, we find that the State presented sufficient evidence
to warrant termination of Albert’s parental rights to Randi. As such, we affirm the order of the
juvenile court terminating his parental rights to the minor child.
                                                                                      AFFIRMED.




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