                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                   IN RE INTEREST OF HAVLEE S.


  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 HAVLEE S., A CHILD UNDER 18 YEARS OF AGE.

                                 STATE OF NEBRASKA, APPELLEE,
                                                 V.

                                       JESSE R., APPELLANT.


                             Filed October 8, 2019.    No. A-18-1122.


       Appeal from the County Court for Scotts Bluff County: KRIS D. MICKEY, Judge. Reversed
and remanded for further proceedings.
       William E. Madelung, of Madelung Law Office, P.C., L.L.O., for appellant.
       No appearance for appellee.


       MOORE, Chief Judge, and PIRTLE and WELCH, Judges.
       MOORE, Chief Judge.
                                       I. INTRODUCTION
        Jesse R. appeals the order of the county court for Scotts Bluff County, sitting as a juvenile
court, terminating his parental rights to Havlee S. For the reasons set forth below, we reverse the
decision of the juvenile court and remand the cause for further proceedings.
                                       II. BACKGROUND
       Havlee, born in September 2014, is the biological daughter of Shelby D. and Jesse. Jesse
was unaware that Havlee was his daughter until November 2016, and as a result, Havlee had almost
no contact with Jesse until that time. Havlee lived with Shelby and her husband, Thomas D. Shelby,
and Thomas had another daughter, Braylei D., who is not involved in this appeal. We discuss
Braylei below only as necessary.


                                                -1-
        The Department of Health and Human Services (the Department) received an intake
alleging that Havlee and Braylei were being neglected by their caregivers, Shelby and Thomas.
The reporter stated that Shelby and Thomas used methamphetamine and Adderall and that they
were asking around town for pain pills. The reporter also stated that law enforcement had been
called to Shelby and Thomas’ apartment due to fighting and that the children often sat in soiled
diapers, which gave them severe rashes.
        On April 26, 2017, Anna Brisco and Lauren Trenkle, child and family service specialists
with the Department, as well as Rob Kiesel, an officer with the Scotts Bluff Police Department,
investigated the intake at Shelby and Thomas’ apartment. They found the children physically well.
Shelby and Thomas were given drug tests. Both tested positive for amphetamine use, and Thomas
tested positive for methamphetamine use. Shelby denied using methamphetamine. She insisted
that her regular dose of prescribed Adderall caused the positive drug test result. Thomas explained
that he had used methamphetamine one time several days before the investigation and that Shelby
did not know about it. Shelby agreed to work on a voluntary case and to follow a safety plan that
she and Brisco developed together.
        On May 1, 2017, the State filed a petition alleging Havlee was a child within the meaning
of Neb. Rev. Stat. § 43-247(3)(a)(Reissue 2016) as to both Shelby and Jesse. The State also filed
Brisco’s affidavit in support of custody. In her affidavit, Brisco stated that she believed placing
Havlee and Braylei in temporary protective custody was necessary because she doubted Shelby’s
ability to honestly carry out her safety plan. The Department’s safety monitor had expressed
concerns that Shelby was “‘not as clean as she claim[ed].’” Further, Shelby had friends and family
members who were known users of methamphetamine and who participated in other criminal
behavior. Brisco stated that taken together with Thomas’ drug use, Shelby’s situation presented
ongoing concerns that were a serious threat to Havlee and Braylei’s health, safety, and welfare.
Although our record does not contain an order to that effect, the court apparently placed Havlee
and Braylei in temporary protective custody with Braylei’s paternal aunt.
        The State later filed an amended petition alleging that Havlee lacked proper parental care
because (a) Shelby was using controlled substances, (b) Havlee lacked safe and stable housing, (c)
Shelby neglected Havlee’s developmental and nutritional needs, and (d) Jesse abandoned Havlee.
Shelby pled no contest to the allegations in the State’s adjudication petition. Jesse, however,
contested the adjudication.
                                   1. ADJUDICATION HEARING
       The court held an adjudication hearing on July 11, 2017.
                                     (a) Shelby’s Testimony
       Shelby testified that although she told Jesse that Havlee was his daughter just days after
she was born, Jesse denied paternity. Jesse did not acknowledge that Havlee was his daughter until
November 2016 when a DNA test confirmed that he was Havlee’s biological father. He had only
had contact with Havlee twice: once in November or December 2016 and a second time in
February or March 2017. He had not bought clothes, attended doctor’s appointments, provided
insurance, asked for parenting time, or asked for Havlee to live with him. Shelby admitted that she




                                               -2-
disliked Jesse. She was aware that Jesse’s home had burned down, but she denied causing the fire
that destroyed it.
                                       (b) Brisco’s Testimony
        Brisco testified that on April 26, 2017, she found Shelby and Thomas in their apartment
with Havlee and Braylei. Two of Shelby and Thomas’ friends, both of whom had prior
involvement with the Department regarding their children, were also present. Havlee was removed
from Shelby and Thomas’ care that same day after Thomas tested positive for methamphetamine.
After some investigation, Brisco discovered that Jesse was Havlee’s father. Jesse and his mother
came to Brisco’s office at her request soon after Havlee was removed from Shelby and Thomas’
care. Jesse told Brisco that Shelby’s interference made it difficult for him to be part of Havlee’s
life before the State intervened. According to Jesse, Shelby told him that he was not Havlee’s
father, and she denied Jesse parenting time when he requested it. According to Brisco, Jesse
advised that he did not find out that Havlee was his daughter until she was “quite a bit older.”
Brisco admitted that she did not visit Jesse’s home to determine whether placing Havlee with him
would be appropriate. Jesse told Brisco that someone had set his previous residence on fire.
                                        (c) Jesse’s Testimony
         Jesse testified that Shelby told him that she was pregnant, but that another man was the
child’s father. Jesse saw Havlee in the hospital after her birth. Later, a paternity test confirmed that
Jesse was Havlee’s father. After the paternity test, Jesse began paying child support for Havlee.
Jesse had been allowed contact with Havlee about four times after her birth. He believed that he
had a connection with Havlee. Shelby had recently denied Jesse contact with Havlee during a
planned Thanksgiving Day visit. Jesse’s residence burned down in December 2016. Because Jesse
saw Shelby at his residence shortly after he discovered the fire, Jesse believed that Shelby caused
the fire. As a result Jesse did not want to have any contact with Shelby. Jesse had space for Havlee
in his residence and he believed he could provide safe and stable housing for her.
                                       (d) Adjudication Order
        The juvenile court found that the State had proven by a preponderance of the evidence that
Jesse had failed to provide Havlee with safe and stable housing and that he had abandoned her.
The court noted that despite Jesse’s willingness and ability to provide safe and stable housing at
the time of the hearing, Jesse had failed to provide safe and stable housing to Havlee before the
State’s petition was filed. And because Jesse had little contact with Havlee before the petition was
filed and provided her with no clothes or other gifts, the court found he had abandoned her.
                                      2. DISPOSITION HEARING
        A disposition hearing was held on July 18, 2017. The court received a case plan and court
report, dated July 14, 2017. The Department’s goals and strategies for Jessie included providing
safe and stable housing; allowing the Department to do a walk-through of his home to check for
the safety of the home environment for Havlee; maintaining stable housing with appropriate
supplies for Havlee and no inappropriate and unsafe individuals in the home; participating in a
psychological evaluation; participating in a parent-child interaction evaluation; following the



                                                 -3-
recommendations set forth in the results of all evaluations; working on building a relationship with
Havlee; participating in supervised parenting time visits with Havlee; and participating in
Child/Parent Pscychotherapy to work on gaining an understanding to Havlee’s age and specific
needs and nurture an appropriate relationship. The court also received a report from Havlee’s
guardian ad litem, which explained that Jesse had been cooperative with the Department and
agreeable to working with a therapist to build his relationship with Havlee.
        The juvenile court found that the Department had made reasonable efforts to return Havlee
to her home, but that the circumstances leading to her removal had not changed. Thus, the court
ordered that Havlee was to remain in the Department’s custody. Finding the provisions of the
Department’s case plan to be reasonably material to eliminating the conditions for which the
adjudication was obtained, the court adopted it.
                              3. OCTOBER 3, 2017, REVIEW HEARING
        The court held a review hearing on October 3, 2017. The court received the guardian ad
litem’s report, which provided that Jesse and Havlee were attending therapy together and that Jesse
interacted with Havlee as much as she would let him. The court also received the Department’s
case plan and court report, dated September 28, which contained the same goals and strategies for
Jesse. The report noted that although Jesse had not yet engaged the services beyond supervised
parenting time, he was very open to doing so. Jesse attended 15 of the 21 supervised parenting
time visits he was offered. The case plan listed a permanency objective of reunification for Havlee.
Shelby also testified at the hearing that she did not understand why Jesse was receiving supervised
parenting time. She felt that introducing Havlee to Jesse would only confuse Havlee as she has
known Thomas as her father up until this point in her life. The court adopted the Department’s
case plan and court report, including the permanency objective.
                          4. DECEMBER 19, 2017, AND JANUARY 9, 2018,
                               REVIEW AND PLACEMENT HEARING
        The court held a review and placement hearing on December 19, 2017, and January 9,
2018.
        The court received the Department’s case plan and court report, dated December 12. The
report explained that Havlee was struggling to form a relationship with Jesse as she had not known
him for most of her life. However, Havlee was beginning to become excited for Jesse’s visits,
rather than shying away or throwing temper tantrums. Jesse asked to reschedule two visits in
November 2017 due to work conflicts. Jesse also refused a week of visits because he was not able
to have them in his home. And although the Department’s caseworker changed, Jesse had failed
to contact the new caseworker about the status of Havlee’s case. The plan suggested maintaining
a primary permanency objective of reunification, and contained the same goals and strategies for
Jesse as the Department’s previous case plans.
        The court also received the guardian ad litem’s report, dated December 19, 2017. The
guardian ad litem observed that Jesse moved from a trailer into a house and that he had maintained
stable employment for over 2 years. Jesse completed a psychological evaluation, although the
report was not ready. She noted that Jesse had missed some parenting time because of a mixup




                                               -4-
with the provider. Havlee and Jesse were engaged in therapy together, and the guardian ad litem
observed “tremendous” progress in their relationship.
       The court adopted the case plan and court report and set a date for a future review hearing.
                     5. APRIL 3, 2018, REVIEW AND PERMANENCY HEARING
        The court held a review and permanency hearing on April 3, 2018.
        The court received the guardian ad litem’s report, dated April 2, 2018. The guardian ad
litem noted that Jesse’s progress in building a relationship with Havlee had stalled over the last
review period on account of his missing visits. Jesse had difficulty adjusting to changes in the
supervision staff. He also expressed concerns that the State’s case forced him to have contact with
Shelby. Havlee once called Jesse during Shelby’s parenting time. Jesse explained to Havlee that
he would visit her after the case was over when he would not have to deal with the State.
        The court also received the Department’s case plan and court report, dated April 2, 2018.
Jesse had missed significant amounts of his supervised parenting time in December 2017 due to
illness and work. He did not attend any of his supervised parenting time in February or March.
Supervised parenting time was scheduled for Jesse three times per week, generally on Wednesday
evenings and the weekends. On March 15, the parenting time supervision provider rearranged
Jesse’s scheduled parenting time to better accommodate his work schedule. Nevertheless, he still
missed all of his visits for the remainder of the month. Jesse maintained safe and stable housing
and he continued to have sustainable employment. He lived with his girlfriend and her children,
and he took a second job in an attempt to provide for that family. During the review period, Jesse
was charged with driving under the influence and assault, which charges he felt were “‘total
bogus.’” The case plan provided a permanency objective of reunification with a concurrent plan
of adoption, and contained the same goals and strategies for Jesse as his other case plans.
        The juvenile court adopted the Department’s case plan and court report, including its
alteration of the permanency objective. The court also ordered Jesse to undergo alcohol and drug
testing before each supervised visit.
                          6. MOTION TO TERMINATE PARENTAL RIGHTS
        On May 8, 2018, the State filed a motion to terminate Jesse’s parental rights. The motion
alleged statutory grounds for termination under Neb. Rev. Stat. § 43-292 (Reissue 2016),
specifically subsections (1) abandonment, (2) neglect, and (6) failure of reasonable efforts to
correct the conditions leading to an adjudication under § 43-247. Although not in our record, the
State also filed a motion to terminate Shelby’s parental rights.
                     7. JULY 10, 2018, REVIEW AND PERMANENCY HEARING
       The juvenile court held a review and permanency hearing on July 10, 2018. Caroline
Teeple, the Department caseworker assigned to Havlee’s case, and Samantha Konopnicki, a family
support worker with McConaughy Discovery Center, testified.
       The court received and adopted the Department’s case plan and court report, dated July 9,
2018. The report provided that due to illnesses and rescheduled work, Jesse missed significant
parenting time in April and June. However, Jesse attended all of his scheduled parenting time in
May. During her visits, Jesse and Havlee consistently engaged one another. Jesse reported that



                                               -5-
Havlee was cooperative at home when asked to perform chores. Jesse was tested for drugs and
alcohol before each visit. Jesse tested positive for alcohol before three visits. Although an April
16 field test showed positive results for methamphetamine, opiates, and PCP, a lab test of the same
sample yielded negative results for all substances. The case plan suggested continuing the
permanency objective of reunification with a concurrent plan of adoption. The case plan only
contained the goals and strategies related to maintaining safe and stable housing.
        The court also received the guardian ad litem’s report. The guardian ad litem noted that
Jesse completed his psychological evaluation and a followup discussing the evaluation. Jesse also
successfully maintained his home and employment. She further noted that Jesse had been suffering
with substantial health issues for 8 months during this case, which caused him to miss a significant
amount of his parenting time. She explained that during the last review period, he was diagnosed
with Crohn’s disease. The driving under the influence charge had been dismissed and the
misdemeanor assault charged was reduced to mutual consent assault, for which Jesse received a
fine.
                                 8. MOTION FOR NEW PLACEMENT
        At some point, the Department notified the parties that on August 26, 2018, Havlee would
be removed from placement with Braylei’s aunt and placed with Jesse’s mother, Haley R. Shelby
filed an objection to the Department’s planned placement as well as a motion for new placement.
The juvenile court held a hearing on Shelby’s motion on August 28. Shelby argued that the State
should place Havlee with her father, David S., rather than Jesse’s mother. Cassie Beasant, Havlee’s
caseworker at the time of the hearing, Shelby, David, and Haley testified. The testimony revealed
that David lived with his girlfriend, and the Department had several intakes and investigations
against this girlfriend. David also had a poor relationship with Jesse, which would cause trouble
during his parenting time. Further, Havlee had already settled into Haley’s care. As a result, the
court denied Shelby’s motion.
                     9. TRIAL ON MOTION TO TERMINATE PARENTAL RIGHTS
      Trial was held on the State’s motions to terminate Jesse’s and Shelby’s parental rights on
September 20, 2018.
                                  (a) Aschenbrenner’s Testimony
         Tiana Aschenbrenner testified that she works for Family 4ward, a company that provides
visits and drug testing for clients that are involved with the Department. She had been supervising
Jesse’s visits with Havlee since May 30, 2018. The visits occurred at Jesse’s home and were
scheduled around his work schedule. Jesse’s fiance was also present during these visits as well as,
occasionally, her three children. Jesse had been consistent in attending his parenting time since she
began supervising it. He had attended 31 of the 46 scheduled visits. Three of the scheduled visits
that Jesse did not attend were cancelled by Aschenbrenner or the foster family. Jesse was required
to confirm that he would attend a scheduled visit by calling the provider by 8 p.m. the day before
a scheduled visit. Jesse missed five visits because he failed to confirm that he would attend. Jesse
missed visits because of illness and work schedule conflicts. Most of his missed visits occurred
just after Aschenbrenner became the parenting time provider.



                                                -6-
       When Jesse’s fiance’s children were present during Jesse’s parenting time with Havlee,
Havlee would spend most of the parenting time playing with them. Otherwise, Jesse spent most of
his supervised parenting time one-on-one with Havlee. Jesse would prepare healthy and balanced
meals for Havlee. He also provided her with a second food option whenever she refused to eat
what he had prepared for the family. During the time of her supervision, Aschenbrenner observed
substantial progress in Jesse’s relationship with Havlee.
                                      (b) Kiesel’s Testimony
        Kiesel, an investigator with the Scottsbluff Police Department, testified about his
investigation of Shelby and Thomas’ home on April 26, 2017. Thomas, Shelby’s mother, and four
other individuals in the apartment tested positive for methamphetamine. Shelby tested positive for
amphetamines, which she claimed was the result of her Adderall prescription. The children were
removed from Shelby and Thomas’ care on May 1.
                                      (c) Teeple’s Testimony
        Caroline Teeple, a caseworker with the Department, testified that she was assigned to
Havlee and Braylei’s case from December 13, 2017, to July 29, 2018. When she was assigned the
case, she understood the main concerns with Shelby and Jesse to be demonstrating sustainable
sobriety and consistency with parenting time as well as following through with appointments and
services. The Department was providing Shelby and Jesse supervised parenting time, drug testing,
referrals for evaluations, family team meetings, and other services.
        From December 2017 to March 2018, Jesse was not consistent in attending his parenting
time. Jesse and Havlee attended child-parent psychotherapy. Initially, Jesse was consistent in
attending his counseling appointments, but eventually there was some drop off in the consistency
of his attendance. Jesse completed a psychological evaluation while Teeple was assigned to the
case. Although the evaluation was not offered into evidence, Teeple testified that the evaluation
showed that Jesse met the diagnostic criteria for a mild alcohol use disorder as well as antisocial
personality traits.
        Jesse tested positive for alcohol use several times while Teeple was assigned to the case.
He also had one positive field test result for methamphetamines, opiates, and PCP, but when tested
again at the lab, the results of this test came back negative. The lab technician explained that lab
negatives sometimes occur when a subject was “huffing.” Teeple admitted that there was no
evidence Jesse was “huffing” and that no other drug tests yielded positive results for anything
accept alcohol. Jesse adamantly denied using drugs of any sort before the positive field test. Teeple
had no evidence that Jesse used alcohol in excess or that his alcohol consumption affected Havlee.
Teeple could not remember speaking with Jesse about his potential for an alcohol or substance use
disorder.
        Jesse did not visit Havlee at all during the months of February and March. When Teeple
asked him about his missed visits, he told her that he would probably be better seeing Havlee after
the case with Shelby ended. He also explained that he had no part in the case and that he did not
understand why he was required to have supervised parenting time. In April, Jesse attended only
29 percent of his visits. In May, he attended 100 percent of his scheduled visits. The provider had
reduced the frequency of Jesse’s parenting time in May from three times per week to once per


                                                -7-
week in May. In June, Jesse attended 33 percent of his scheduled parenting time. Teeple explained
that Jesse missed visits when he had obligations with his other children, when he was ill, and when
he was called into work. Jesse’s interactions with Havlee were always quite positive. Jesse met his
case goals related to housing and employment. However, his progress in developing a relationship
with Havlee was variable.
                                     (d) Beasant’s Testimony
         Cassie Beasant, a caseworker with the Department, testified that she was the original
caseworker assigned to Havlee and Braylei’s case. She was reassigned to the case a month before
trial. When she was first assigned to the case, Havlee and Braylei were both tested for drugs using
hair follicle tests. Braylei’s hair tested positive for the presence of methamphetamine, cannabis,
and THC. Havlee’s hair did not test positive for any substance.
         When Beasant was assigned to the case, Jesse did not have any relationship with Havlee at
all. Beasant understood that Shelby’s behavior was the main barrier to Jesse’s relationship with
Havlee. To develop a relationship between Havlee and Jesse, the Department arranged supervised
parenting time and family therapy. Jesse was consistent in attending the therapy sessions. Jesse
was more consistent in attending parenting time in the month before trial than he had been in the
first 6 months that Beasant had been assigned to the case. Beasant had not observed Jesse interact
with Havlee, but she did not feel the supervised parenting time provider’s notes indicated that he
had developed a strong relationship with Havlee. Havlee’s therapist had indicated that Jesse and
Havlee’s therapy status could be reduced to “as needed,” and so Jesse and Havlee were not
receiving family therapy at the time of trial. Beasant had not done a walk-through of Jesse’s home
and could not speak to its safety. Beasant had not spoken with Jesse in the month that she had been
reassigned to the case, and she had not observed the relationship Havlee had with Jesse.
                                       (e) Jesse’s Testimony
        Jesse testified that he discovered Havlee was his daughter in November 2016. He did not
have a substantial relationship with Havlee before this case began because he had relational issues
with Shelby. He did not petition the court for custody of or parenting time with Havlee before the
State intervened. Jesse had an 8-year-old daughter from another relationship. Havlee and Jesse’s
other daughter have met and get along pretty well. Jesse lived with his fiance and her children,
when they were not with their father.
        Jesse worked at a local furniture store. When he missed work for court or illness, he was
required to make up his missed hours. In April 2018, Jesse was diagnosed with Crohn’s disease
and was hospitalized for 3 days, which condition caused him severe abdominal pain and bleeding.
Jesse missed his scheduled parenting time with Havlee because of his illness and because he had
to make up hours at work that he had missed for court dates. In addition to court dates related to
this case, Jesse had court dates scheduled in a criminal proceeding. At the time of trial, Havlee was
living with Jesse’s mother, and Jesse went over to his mother’s house to see Havlee three times.
He would like Havlee to be placed with him. Jesse paid his child support obligation for both Havlee
and his other daughter.




                                                -8-
                                      (f) Haley’s Testimony
        Haley believed Havlee was thriving in her care. Havlee was usually happy when she came
back from Jesse’s parenting time, although she was often tired as it was late in the evening when
she returned. Havlee was excited before visits with both Shelby and Jesse. Haley had participated
in Jesse’s parenting time four or five times, and she observed Jesse and Havlee to have a positive
relationship.
                                  (g) Evidence Regarding Shelby
         Although Shelby is not part of this appeal, we recount briefly the evidence pertaining to
her at the termination trial as it relates to Jesse’s arguments on appeal.
         The record shows that Shelby was reluctant to engage in services as recommended by the
family support worker, blaming Thomas for the removal of the children. During parenting time
with Shelby, Havlee engaged in temper tantrums, and Shelby failed to discipline her or model
appropriate parenting. Shelby separated from Thomas and began a relationship with another man,
with whom she had a child during the pendency of the case. Shelby did not establish stable,
consistent housing during the case, and held jobs only sporadically. Shelby missed multiple visits
with Havlee. She failed to complete parenting and psychological evaluations as requested early in
the case, and failed to follow through with recommended therapy. About 1 month before trial,
Shelby had a parental capacity evaluation, which evaluation showed that she exhibited
characteristics similar to known child abusers. The diagnostic impressions from the evaluation
were that Shelby had an adjustment disorder with anxiety, attention deficit hyperactivity disorder
(ADHD), an amphetamine-type substance use disorder, and alcohol use disorder.
         Shelby had been making positive progress in the month before the termination trial. She
had obtained employment, had her own apartment, and had been more consistent in exercising her
visitation. She had demonstrated more effective parenting skills and a growing relationship with
her children. She had made improvement in appropriately disciplining and engaging with the
children. Beasant noted, however, that Shelby had shown similar progress during the pendency of
this case, which progress had never lasted longer than 3 months. The family support worker noted
that Shelby was doing very well, and that there were no safety concerns for her interactions with
the children. The psychologist’s report indicated that Shelby was safe for attempted reunification
provided she cooperates with the mental health recommendations. Nevertheless, placement with
Shelby was still unsafe because she had not established appropriate boundaries with her mother,
who used drugs. Shelby had complied with all requested drug testing during the case and tested
negative for all substances. At the time of trial, Shelby planned to divorce Thomas.
                                            10. ORDER
        On October 31, 2018, the juvenile court entered an order on the State’s motions for
termination of Shelby’s and Jesse’s parental rights. The court found that the State failed to present
clear and convincing evidence to support statutory grounds for termination of Shelby’s parental
rights under § 43-292(2) and (6). As to Jesse, however, the court found that the State proved
statutory grounds for termination under § 43-292(1), (2), and (6). The court noted that Jesse had
no relationship with Havlee before the State intervened in this case. While the court admitted that



                                                -9-
Shelby made contact between Jesse and Havlee difficult, it noted that Jesse never filed a legal case
for custody or parenting time and failed to make his relationship with Havlee a priority. In the 6
months before the State filed a motion to terminate his parental rights, Jesse had seen Havlee only
10 times. Thus, the court found that despite demonstrating the ability to care for Havlee’s needs,
Jesse failed to demonstrate a sustained interest and motivation to be active in Havlee’s life.
Additionally, the court stated that Jesse failed to complete a psychological evaluation or a
parent-child evaluation and that he was charged with criminal conduct during the pendency of this
case. The court also found Jesse unwilling or incapable of rehabilitating himself in the foreseeable
future and thus found that terminating Jesse’s parental rights would be in Havlee’s best interests.
        Jesse appeals.
                                 III. ASSIGNMENTS OF ERROR
       Jesse assigns, restated, that the juvenile court erred in finding that (1) statutory grounds for
termination existed under § 43-292 (1), (2), and (6) and that (2) termination of his parental rights
to Havlee was in her best interests.
                                  IV. STANDARD OF REVIEW
        An appellate court reviews juvenile cases de novo on the record and reaches its conclusions
independently of the juvenile court’s findings. In re Interest of Reality W., 302 Neb. 878, 925
N.W.2d 355 (2019). 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 Aly T. & Kazlynn T., 26 Neb. App. 612, 921 N.W.2d 866 (2018).
                                           V. ANALYSIS
                                      1. STATUTORY GROUNDS
         Under Neb. Rev. Stat. § 43-292 (Reissue 2016), 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 this section have been satisfied and that termination is in the child’s best interests. In re
J’Endlessly F. et al., 26 Neb. App. 497, 920 N.W.2d 858 (2018). Clear and convincing evidence
is the amount of evidence that produces in the trier of fact a firm belief or conviction about the
existence of the fact to be proven. See In re Interest of Gavin S. & Jordan S., 23 Neb. App. 401,
873 N.W.2d 1 (2015).
         In the present case, the juvenile court found that the State established by clear and
convincing evidence that grounds for termination existed under § 43-292(1), (2), and (6).
         Section 43-292(1) requires proof that “[t]he parents have abandoned the juvenile for six
months or more immediately prior to the filing of the petition.” For purposes of § 43-292(1),
“abandonment” is a parent’s intentionally withholding from a child, without just cause or excuse,
the parent’s presence, care, love, protection, maintenance, and the opportunity for the display of
parental affection for the child. In re Interest of Isabel P. et al., 293 Neb. 62, 875 N.W.2d 848
(2016) (evidence supported abandonment parent did not visit child during 6-month period before
termination petition filed, had minimal contact with child in 22-month period from when child
went into foster care until petition was filed, and there were significant gaps between parent’s visits



                                                - 10 -
during period). To prove abandonment in determining whether parental rights should be
terminated, the evidence must clearly and convincingly show that the parent has acted toward the
child in a manner evidencing a settled purpose to be rid of all parental obligations and to forgo all
parental rights, together with a complete repudiation of parenthood and an abandonment of
parental rights and responsibilities. Id. A court reviewing a termination of parental rights case on
the ground of abandonment need not consider the 6-month period in a vacuum. Id. Instead, the
court may consider evidence of a parent’s conduct, either before or after the statutory period, in
determining whether the purpose and intent of that parent was to abandon his or her children. Id.
Parental obligation requires a continuing interest in the child and a genuine effort to maintain
communication and association with that child. Id.
        Section 43-292(2) requires proof that “[t]he 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. The questions of what constitutes neglect and necessary parental care and
protection are generally determined on a case-by-case basis, but common factual patterns include
parental incarceration, adjudication, involuntary termination, or relinquishment of previous
children, unsanitary house and unkempt children, or addiction to drugs or alcohol. See In re
Interest of Elijah P. et al., 24 Neb. App. 521, 891 N.W.2d 330 (2017).
        Section 43-292(6) requires proof that “following a determination that the juvenile is one
described in § 43-247(3)(a), reasonable efforts to preserve and reunify the family if required under
section 43-283 under direction of the court, have failed to correct the conditions leading to the
determination.” It is the burden of the State, and not the parent, to prove by clear and convincing
evidence that the parent has failed to comply, in whole or in part, with a reasonable provision
material to the rehabilitative objective of the case plan. In re Interest of Angelica L. & Daniel L.,
277 Neb. 984, 767 N.W.2d 74 (2009). The State is required to prove that the parents have been
provided with a reasonable opportunity to rehabilitate themselves according to a court-ordered
plan and have failed to do so. In re Interest of Aly T. & Kazlynn T., 26 Neb. App. 612, 921 N.W.2d
856 (2018) (evidence supported termination under § 43-292(6) where parent did not follow
through with various mental health services, failed comply with urinalysis testing, missed visits
with child, and failed to comply with other provisions of rehabilitation plan).
        With this backdrop concerning the statutory grounds at issue in this case, we conclude that
the juvenile court erred in finding that the State proved each of these grounds by clear and
convincing evidence.
        Jesse was apparently unaware that he was Havlee’s father until testing established his
paternity when she was approximately 2 years old. After that time, Shelby to some extent impeded
Jesse’s involvement with Havlee. After this case was initiated, Jesse complied with much of the
case plan established by the Department. He maintained stable housing and employment; he
obtained a psychological evaluation (contrary to court’s finding in its termination order); and he
attended parent-child therapy with Havlee. Jesse has also paid his child support obligation for
Havlee.
        After the case was initiated, Jesse was mostly consistent in attending the scheduled
supervised parenting time with Havlee. Through the parenting time and therapy, Jesse and Havlee
began to develop a positive relationship. Both the visitation supervisor and Havlee’s guardian ad



                                               - 11 -
litem noted that there was substantial progress in Jesse and Havlee’s relationship and that Jesse
provided appropriate care for Havlee. However, beginning in early 2018, Jesse became
inconsistent in attending his parenting time. The record shows that at this time, Jesse began
experiencing serious health problems, which culminated in his hospitalization and eventual
diagnosis of Crohn’s disease in April 2018. Jesse’s health issues caused him to miss both work
and parenting time. We acknowledge that Jesse did not visit Havlee at all during the months of
February and March, and was sporadic during the month of April. In May, he attended 100 percent
of his scheduled visits. The provider had reduced the frequency of Jesse’s parenting time in May
from three times per week to once per week. In June, Jesse attended 33 percent of his scheduled
parenting time.
        The record shows that much of Jesse’s missed parenting time was related to factors
arguably beyond his control, namely, his undiagnosed Crohn’s disease and his work schedule,
which shifted whenever he had to miss work due to illness or a court date. The record is also clear
that Shelby presented a significant barrier to Jesse developing a relationship with Havlee both
before the case was initiated and during it.
        Overall, the record reveals a father who has made significant attempts and progress toward
developing a relationship with his daughter. He has complied with the requirements of the case
plan by maintaining stable housing and employment, he completed a psychological evaluation,
and he has participated in therapy with Havlee. Jesse provided appropriate care to Havlee during
his parenting time. Although Jesse’s parenting time was inconsistent for a while as noted above,
he did make efforts during the 6 months prior to the termination motion. Jesse’s actions or inactions
did not evidence an intent to forego his parental rights or obligations.
        In our de novo review, we conclude that the record does not clearly and convincingly
supports the juvenile court’s finding of abandonment or neglect by Jesse sufficient to support
termination of his parental rights. Likewise, the record did not support a finding that Jesse had
been afforded sufficient reasonable efforts to reunify with Havlee, or that the reasonable efforts
made clearly failed to correct the conditions leading to Havlee’s adjudication as to Jesse.
                                         2. BEST INTERESTS
         Although we have determined that the juvenile court erred in finding that the State had
proved statutory grounds for termination, for the sake of completeness, we address the best interest
prong.
         In addition to proving a statutory ground, the State must show that termination is in the
best interests of the child. In re Interest of Jade H. et al., 25 Neb. App. 678, 911 N.W.2d 276
(2018). A parent’s right to raise his or her child is constitutionally protected. Before a court may
terminate parental rights, the State must also show that the parent is unfit. In re Interest of Austin
G., 24 Neb. App. 773, 898 N.W.2d 385 (2017). There is a rebuttable presumption that the best
interests of a child are served by having a relationship with his or her parent. 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. In re Interest of Aly T. & Kazlynn T., 26 Neb. App.
612, 921 N.W.2d 866 (2018).




                                                - 12 -
         In our de novo review of the record, we cannot say that the evidence supports a finding that
Jesse was unfit. As discussed above, Jesse complied with many of the case plan goals and
strategies. Jesse was precluded from developing a relationship with Havlee after learning he was
her father primarily due to Shelby’s actions. Through parenting time and therapy, Jesse developed
a positive, significantly improved, relationship with Havlee. Although Jesse’s parenting time
became sporadic during the early part of 2018, this was due in large part to his serious health issues
and impacted work schedule. The State filed its petition to terminate Jesse’s parental rights only
12 months after the case was initiated.
         Although Jesse was charged with driving under the influence and assault during the course
of this case, the records contain no information about the facts leading to these charges, the driving
under the influence charge was dropped, and Jesse was convicted of the lesser charge of assault
by mutual consent. There was also some evidence to suggest that Jesse consumed alcohol before
three visits with Havlee and his psychological evaluation showed that he met the diagnostic criteria
for mild alcohol use disorder. However, the case plan did not require Jesse to refrain from alcohol
use and there was no testimony about the amount of alcohol Jesse consumed or whether that use
had any effect on his parenting time with Havlee.
         The law does not require perfection of a parent; rather, courts should look for the parent’s
continued improvement in parenting skills and a beneficial relationship between parent and child.
In re Interest of Lizabella R., 25 Neb. App. 421, 907 N.W.2d 745 (2018). Here, the record shows
that Jesse had begun to build a positive bond with Havlee during the course of this case. He also
demonstrated positive parenting skills, provided a safe and stable home, maintained consistent
employment, and paid child support for Havlee. He has clearly shown a desire and willingness to
parent Havlee. While there was some interruption in Jesse’s progress during the case, much of this
interruption was due to the mitigating factors of his medical issues and work demands, and in some
part, due to the very strained relationship with Shelby. Through medical treatment and changes to
his parenting time schedule to accommodate his work schedule, Jesse had renewed his
commitment to reunification at the time of the termination trial. In short, Jesse should be afforded
more time to accomplish the goals set out by the Department.
         The State failed to prove by clear and convincing evidence that termination of Jesse’s
parental rights was in Havlee’s best interests.
                                        VI. CONCLUSION
        After a de novo review of the record, we conclude that the State failed to prove by clear
and convincing evidence that any of the statutory grounds for termination existed or that
termination of Jesse’s parental rights was in the best interest of Havlee. We reverse the order of
the juvenile court terminating Jesse’s parental rights and remand the cause for further proceedings.
                                                                   REVERSED AND REMANDED FOR
                                                                   FURTHER PROCEEDINGS.




                                                - 13 -
