                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                   IN RE INTEREST OF KEISHA G.


  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 KEISHA G., A CHILD UNDER 18 YEARS OF AGE.
        STATE OF NEBRASKA, APPELLEE, AND TANYA J. HANSEN AND TIMOTHY G. HRUZA,
                  GUARDIANS AD LITEM, APPELLEES AND CROSS APPELLANTS,

                                                 V.

                          MICHAEL G., APPELLANT AND CROSS-APPELLEE.


                               Filed April 28, 2015.   No. A-14-942.


       Appeal from the County Court for Hall County: ARTHUR S. WETZEL, Judge. Affirmed.
       Jerry Fogarty for appellant.
       Megan Alexander, Deputy Hall County Attorney, for appellee State of Nebraska.
        Tanya J. Hansen and Timothy G. Hruza, of Leininger, Smith, Johnson, Baack, Placzek &
Allen, guardians ad litem.



       IRWIN, INBODY, and RIEDMANN, Judges.
       RIEDMANN, Judge.
                                         INTRODUCTION
        Michael G. appeals the order of the county court for Hall County, sitting as a juvenile court,
which terminated his parental rights to his minor child, Keisha G. Michael argues that the court
erred in finding that the formal rules of evidence do not apply and overruling his objections to
certain evidence, and in finding clear and convincing evidence to support termination under
subsections (2) and (7) of Neb. Rev. Stat. § 43-292 (Cum. Supp. 2014).




                                                -1-
        The guardians ad litem cross-appeal, arguing that the juvenile court erred in failing to find
sufficient evidence to warrant terminating Michael’s parental rights pursuant to § 43-292(4). Based
upon our de novo review of the record, we affirm.
                                         BACKGROUND
        Michael is the biological father of Keisha, born in October 2010. Keisha was removed from
her mother’s care in September 2011. Keisha’s mother ultimately relinquished her parental rights
to Keisha, and thus, any further discussion of her will be limited to information necessary to
address Michael’s arguments.
        This case comes before us for the second time. Keisha was adjudicated under Neb. Rev.
Stat. § 43-247(3)(a) (Reissue 2008) in February 2012, and the juvenile court terminated Michael’s
parental rights to Keisha under Neb. Rev. Stat. § 43-292(4) and (6) in November. Michael appealed
to this court, and we held that he had not been properly advised of his rights at the adjudication
hearing. See In re Interest of Keisha G., 21 Neb. App. 474, 840 N.W.2d 562 (2014). Because the
adjudication was deficient, we treated it as the equivalent of no prior adjudication. See id. We
therefore concluded that due to the lack of a proper adjudication, termination could not be
accomplished under § 43-292(6). We further concluded that the evidence was insufficient to
support termination under § 43-292(4), and therefore reversed the juvenile court’s decision. The
mandate was entered in the juvenile court on January 16, 2014.
        The State and guardians ad litem filed a new joint motion to terminate Michael’s parental
rights on March 7, 2014. In the motion, the State and guardians ad litem alleged that termination
of Michael’s parental rights was warranted pursuant to § 43-292(2), (4), and (7) and that
termination of Michael’s parental rights was in Keisha’s best interests.
        Prior to the termination hearing, the State and guardians ad litem filed a joint motion to
allow the use of deposition testimony at trial in lieu of live testimony for witnesses beyond the
subpoena power of the court. Michael objected on the basis of due process and the right of
confrontation because the trier of fact would not have the opportunity to observe the witnesses.
The court granted the motion to use depositions, so long as Michael was present during the taking
of the depositions. It found that it would not offend due process or Michael’s right of confrontation
because he would be present with counsel and permitted to cross-examine the witnesses.
        The termination hearing was held over the course of several days in September 2014. The
evidence revealed that Michael has an extensive criminal history, including numerous periods of
incarceration. He was incarcerated at the time Keisha was removed from her mother’s care and
was released in January 2012. After that time, he continued to have run-ins with law enforcement
despite his knowledge that Keisha was a state ward. He did not appear at the first termination
hearing because he had an active warrant out for his arrest. He was arrested thereafter and served
a period of incarceration.
        At the time the second termination hearing was held, Michael was incarcerated again
serving a sentence of 12 to 20 years for an armed robbery conviction. We note, however, that he
appealed the conviction, and therefore, it is not yet a final order. Although a number of Michael’s
convictions occurred before Keisha’s birth, he accumulated numerous convictions during her
lifetime as well. The record indicates that since Keisha was born, in addition to the offenses already
discussed, Michael has been convicted of driving during revocation (twice), trespassing, theft of


                                                -2-
services, procuring alcohol for a minor, attempted possession of a controlled substance (Vicodin),
driving under suspension, possession of marijuana, possession of drug paraphernalia, disturbing
the peace, forgery, and theft.
         Michael also has a history of drug and alcohol abuse. He first tried marijuana when he was
13 years old and started using it on a regular basis when he was 15 or 16. He began using
methamphetamine at age 18. Keisha’s mother testified that when she was pregnant with Keisha,
Michael supplied her with methamphetamine at least once per week, and they would use it
together. Michael entered a 28-day drug and alcohol treatment program in August 2012. At the
time, he reported that he was a daily marijuana user and typically used a minimum of 3 or 4 times
per day. He also reported that he last used methamphetamine less than two weeks prior to entering
the program and generally uses at least 2 to 3 times per week. He only remained in the program
for 6 days, however, before checking himself out. He never sought further drug or alcohol
treatment.
         Michael currently has 3 other children with 3 different mothers: 2 sons, ages 6 and 7; and
a daughter, age 2 months. He does not provide regular financial support for any of his other
children nor does he have consistent contact with them. The last time he saw his sons was in the
spring of 2013.
         After Michael was released from incarceration in January 2012, he began receiving
visitation with Keisha on March 1. During the first visit, Keisha screamed and cried hysterically
and acted like she was afraid of Michael. She would not let him come near her, feed her, or change
her diaper. Keisha’s reaction to Michael improved over time, however, and she would allow him
to read to her and play with her. One of the visitation supervisors testified that Michael was very
fun and willing to do whatever was necessary at the visits to foster his relationship with Keisha.
He would also bring gifts for her to the visits, get down on her level to talk to her, and continue to
try to get her to sit with him. Michael began to build a relationship with Keisha, but he was
inconsistent in attending visits with her, which hindered their ability to develop a bond. Of the 76
visits scheduled between March and October 2012, Michael only attended 38 of them, despite
being provided transportation for all visits.
         Additionally, during the pendency of this case, Michael never obtained stable employment
or a stable residence. At the termination hearing, he described his living arrangements when not
incarcerated as staying with various friends or family members and said that he has never had a
residence in his name since Keisha was born. He admitted that he has never been the sole caretaker
for Keisha for 24 hours, and his last visit with her was on October 9, 2012.
         Keisha has lived in the same foster home since February 2012. She is placed with her
half-brother, Kane, and they have a very close relationship. Keisha’s foster father testified that if
Keisha and Kane were separated, they would both be lost because they have been the constant in
each other’s lives. According to Keisha and Kane’s mother, the siblings have always been
inseparable, and she believes Keisha would be devastated to be separated from Kane. Keisha is
thriving in her current placement, she has no health or developmental concerns, and according to
the case plan report, she appears to be a very healthy, happy, and content child. The case manager
who was assigned to this case from April 2012 through October 2012 testified that it would be in
Keisha’s best interests to be in a permanent, stable, and nurturing environment that would provide
for her safety and well-being, and Michael is not able to provide that for her at this time.


                                                -3-
         After all evidence had been presented at the termination hearing, the court orally
pronounced its findings. It iterated that Michael has provided no financial support or emotional
support for Keisha, and has never even parented her overnight. Further, the court pointed out that
Michael has been inconsistent with employment and housing, and he has been unavailable to carry
out his responsibilities because of incarceration. The court noted that Michael suffers from drug
and alcohol abuse, and he was offered services to help him in areas in which he was deficient
including visitation, transportation, parenting classes, domestic violence classes, family support,
treatment, and psychological evaluations, all to no avail. The court additionally pointed out that
Michael has had very limited contact with his other children and has provided no support for them.
Accordingly, the court found that the State and guardians ad litem had presented clear and
convincing evidence to satisfy subsection (2) of Neb. Rev. Stat. § 43-292 (Cum. Supp. 2014). The
court also found that § 43-292(7) had been satisfied because Keisha has been in an out-of-home
placement for 15 or more of the most recent 22 months. However, the juvenile court determined
that there was insufficient evidence to warrant termination under § 43-292(4) because the State
and guardians ad litem failed to prove the sufficient nexus between Michael’s drug abuse and his
ability to parent Keisha.
         The court then addressed whether terminating Michael’s parental rights would be in
Keisha’s best interests. The court believed that Michael placed his own interests ahead of Keisha’s
interests. Although there was believed to be a bond forming, the court found that it was not capable
of being formed because of the inconsistency with visits. The court pointed out that Keisha is
thriving in the foster home, and she is receiving the stability in her life that has been lacking. The
court was mindful of that fact that Michael is currently serving a lengthy prison term, but
recognized that it is not yet a final order. However, the court was unable to ignore Michael’s history
and the fact that he has shown a repeated and habitual mentality that places him in confinement
and has not shown an indication that that mentality will change. Further, it was pointed out that
Michael lacks an adequate job, housing, and financial resources to care for a child. Additionally,
the court mentioned the bond that Keisha has with Kane and believed that that bond is important
for her continued development. Ultimately, the court believed this to be a case where Keisha
should not be required to remain in limbo in foster care while she awaits her parent’s maturity.
Therefore, the juvenile court determined that it would be in Keisha’s best interests to terminate
Michael’s parental rights. Michael timely appeals to this court.
                                   ASSIGNMENTS OF ERROR
        Michael assigns that the juvenile court erred in (1) finding that the formal rules of evidence
did not apply and overruling his objections to evidence, and (2) finding clear and convincing
evidence to support termination of his parental rights under subsections (2) and (7) of § 43-292.
        On cross-appeal, the guardians ad litem assigns that the juvenile court erred in finding
insufficient evidence to support termination under subsection (4) of § 43-292.
                                    STANDARD OF REVIEW
       Juvenile cases are reviewed de novo on the record, and an appellate court is required to
reach a conclusion independent of the juvenile court’s findings. In re Interest of Karlie D., 283
Neb. 581, 811 N.W.2d 214 (2012). However, when the evidence is in conflict, an appellate court


                                                -4-
may consider and give weight to the fact that the trial court observed the witnesses and accepted
one version of the facts over the other. Id.
                                            ANALYSIS
Applicability of Rules of Evidence.
         Michael argues that because there was no adjudication prior to the termination hearing, the
termination hearing was adjudicatory, rather than dispositional in nature, and therefore, the formal
rules of evidence should apply. He specifically challenges the court’s decision to receive the
depositions into evidence over his objections and asserts that his confrontation rights were
violated. We find no merit to Michael’s arguments.
         Terminating Michael’s parental rights without prior adjudication is permissible under Neb.
Rev. Stat. § 43-291 (Reissue 2008), which provides that an original petition may be filed seeking
termination of parental rights. The Nebraska Supreme Court has determined that the grounds
contained in Neb. Rev. Stat. § 43-292(1) through (5) (Cum. Supp. 2014) do not “require, imply,
or contemplate juvenile court involvement, including adjudication, prior to the filing of the petition
for termination of parental rights.” In re Interest of Joshua M. et al., 256 Neb. 596, 609, 591
N.W.2d 557, 566 (1999).
         Because a prior adjudication is not required, we do not consider a hearing upon an original
petition to terminate parental rights to be adjudicatory in nature. The purpose of the adjudication
phase of a juvenile proceeding is to protect the interests of the child. The parents’ rights are
determined at the dispositional phase, not at the adjudication phase. In re Interest of Brian B., 268
Neb. 870, 689 N.W.2d 184 (2004). Thus, whether adjudication occurred or not, termination
hearings are considered dispositional because the parents’ rights are at issue.
         The Nebraska Evidence Rules do not apply in cases involving the termination of parental
rights. In re Destiny A., 274 Neb. 713, 742 N.W.2d 758 (2007). We find no authority, and Michael
has cited none, distinguishing the evidentiary rules that apply at termination hearings after
adjudication from those that apply in an original action to terminate a parent’s rights.
         Although the formal evidence rules do not apply at termination hearings, due process
controls and requires that the State use fundamentally fair procedures before a court terminates
parental rights. Id. Further, because this is a juvenile proceeding and not a criminal case, the
heightened standards of the Confrontation Clause are not applicable. See In re Interest of Brian
B., supra. In deciding due process requirements in a particular case, we must weigh the interest of
the parent, the interest of the State, and the risk of erroneous decision given the procedures in use.
Id. Due process is flexible and calls for such procedural protections as the particular situation
demands. Id.
         In Brian B., supra, the Supreme Court found that a father’s due process rights were not
violated when his minor child was allowed to testify in chambers at the adjudication hearing with
the father positioned in a separate room where he could view the testimony on a computer screen
as it was given. The Supreme Court determined that this procedure safeguarded the father’s due
process rights because, although the father was not allowed to personally confront the child during
her testimony, his counsel did so during both her direct examination and cross-examination, the
father was able to view the substance of the child’s testimony in near real time, and he was able to
confer with his counsel during the testimony.


                                                -5-
        Upon our de novo review of the record in the present case, we agree with the juvenile court
that due process was not violated because Michael was present with counsel during the depositions
and had a full opportunity to cross-examine each of the State’s witnesses. Michael’s argument
focuses on the fact that the judge was not present when the depositions were taken; however,
fundamental fairness does not require that the trier of fact view witness testimony live.
Accordingly, we find no merit to Michael’s arguments.
        We further note that even without considering the evidence contained in the depositions,
the evidence is sufficient to support termination of Michael’s parental rights as discussed below.
Statutory Grounds.
        Under Neb. Rev. Stat. § 43-292, in order to terminate parental rights, 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). The bases for termination of parental rights are codified in
§ 43-292. In re Interest of Sir Messiah T. et al, 279 Neb. 900, 782 N.W.2d 320 (2010). Section
43-292 provides 11 separate conditions, any one of which can serve as the basis for the termination
of parental rights when coupled with evidence that termination is in the best interests of the child.
Id.
        In its order terminating Michael’s parental rights to Keisha, the juvenile court found that
the State and guardians ad litem had proved two of the conditions contained in § 43-292 by clear
and convincing evidence, namely subsections (2) and (7). Under subsection (2), the court may
terminate the parental rights of a parent upon a showing by clear and convincing evidence that the
parent has substantially and continuously or repeatedly neglected and refused to give the juvenile
or a sibling of the juvenile necessary parental care and protection. Parents may as surely neglect a
child of whom they do not have possession by failing to put themselves in a position to acquire
possession as by not properly caring for a child of whom they do have possession. In re Interest of
Louis S., 17 Neb. App. 867, 774 N.W.2d 416 (2009), abrogated on other grounds, In re Interest
of Zylena R., 284 Neb. 834, 825 N.W.2d 173 (2012). A parent’s failure to provide an environment
to which his or her children can return can establish neglect. Id. While incarceration alone does
not provide grounds for termination of parental rights, it may be considered along with other
factors in determining whether parental rights can be terminated based on neglect. See In re
Interest of Kalie W., 258 Neb. 46, 601 N.W.2d 753 (1999).
        In the present case, we find clear and convincing evidence that Michael substantially and
continuously neglected Keisha. He has been repeatedly incarcerated during Keisha’s life, and
although incarceration itself may be involuntary as far as a parent is concerned, the criminal
conduct causing the incarceration is voluntary. See In re Interest of Kalie W., supra. From the time
of his release in January 2012 until the first termination hearing in November 2012, Michael put
forth only a minimal effort to build a relationship with Keisha and place himself in the position to
parent her. He attended only half of the visits arranged for him, failed to follow through on
addressing his drug and alcohol issues, and never obtained a stable residence or employment.
Michael never provided financial support for Keisha and admitted that he has never parented her
for 24 hours.



                                                 -6-
        Further, § 43-292(2) allows for termination of parental rights when the parent has neglected
a sibling of the juvenile. The evidence in this case establishes that Michael also neglected his two
older children. He has never provided consistent financial support or purchased necessary items
for the children and does not have an established relationship with either child beyond calling them
for a few birthdays or holidays. His repeated periods of incarceration has hindered his ability to
bond with Keisha’s siblings as well, as has his lack of effort during times he was free.
        Keisha has been in the same foster home since February 2012 and is thriving. She is
extremely close to Kane, who has been a constant figure in her life. At the time of the termination
hearing, Keisha was a month shy of her fourth birthday, and Michael was still unable or unwilling
to place himself in a position to parent her. Children cannot, and should not, be suspended in foster
care or made to await uncertain parental maturity. In re Interest of Walter W., 274 Neb. 859, 744
N.W.2d 55 (2008). We therefore find that sufficient evidence was presented to terminate Michael’s
parental rights under § 43-292(2) and that terminating his rights would be in Keisha’s best interests.
        If an appellate court determines that the lower court correctly found that termination of
parental rights is appropriate under one of the statutory grounds set forth in § 43-292, the appellate
court need not further address the sufficiency of the evidence to support termination under any
other statutory ground. In re Interest of Justin H. et al., 18 Neb. App. 718, 791 N.W.2d 765 (2010).
Therefore, this court need not address Michael’s argument with respect to § 43-292(7) or the
guardians ad litem’s cross-appeal pertaining to § 43-292(4).
                                          CONCLUSION
        We conclude that the juvenile court properly determined that the formal rules of evidence
do not apply at termination hearings. Upon our de novo review of the record, we also find that the
State and guardians ad litem presented clear and convincing evidence to prove statutory grounds
for terminating Michael’s parental rights under § 43-292(2) and that termination would be in
Keisha’s best interests. We therefore affirm.
                                                                                      AFFIRMED.




                                                -7-
