                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                   IN RE INTEREST OF ELLENA 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 ELLENA S., A CHILD UNDER 18 YEARS OF AGE.

                                 STATE OF NEBRASKA, APPELLEE,
                                                 V.

                                      KURTIS H., APPELLANT.


                             Filed October 1, 2019.    No. A-19-062.


       Appeal from the County Court for Cass County: JOHN F. STEINHEIDER, Judge. Affirmed.
       Michael Ziskey, of Fankhauser, Nelsen, Werts, Ziskey & Merwin, P.C., L.L.O., for
appellant.
       Sarah M. Sutter, Deputy Cass County Attorney, for appellee.


       RIEDMANN, BISHOP, and ARTERBURN, Judges.
       BISHOP, Judge.
       Kurtis H. appeals from the decision of the county court for Cass County, sitting as a
juvenile court, terminating his parental rights to his daughter, Ellena S. We affirm.
                                         BACKGROUND
                                   PROCEDURAL BACKGROUND
       Kurtis is the biological father of Ellena (born July 2017). Breanna S. is Ellena’s biological
mother. The State sought to terminate Breanna’s parental rights to Ellena during these same
proceedings in the juvenile court, but Breanna ultimately relinquished her parental rights to Ellena.
Because Breanna is not part of this appeal, she will only be discussed as necessary.




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        On July 20, 2017, law enforcement removed Ellena from her parents’ custody after they
were arrested (Breanna on criminal charges, Kurtis on an out-of-state felony warrant); Ellena was
in the home with her parents when they were arrested. On July 21, the State filed an amended
juvenile petition alleging that Ellena was a child within the meaning of Neb. Rev. Stat.
§ 43-247(3)(a) (Reissue 2016). That same day, the juvenile court entered an ex parte order granting
the Nebraska Department of Health and Human Services (DHHS) continued temporary custody of
Ellena; she has remained in out-of-home placement ever since.
        On September 15, 2017, Ellena was adjudicated and found to be within the jurisdiction of
the juvenile court pursuant to § 43-247(3)(a), based on Kurtis’ admission to the allegations. The
journal entry and order stated there were to be psychological and chemical dependency evaluations
of Kurtis. It also stated that “[v]isitations have been terminated until further order of the court.” In
an October 18 disposition order, Kurtis was ordered to comply with recommendations of the
psychological and chemical dependency evaluations, complete a psychiatric evaluation, complete
a parenting class, maintain suitable housing and employment, abstain from the use of alcohol and
all controlled substances (unless prescribed by a physician), and comply with the terms of a DHHS
case plan. The order also stated “visitation suspended until further order of the court.”
        On April 9, 2018, the State filed an amended motion to terminate Kurtis’ parental rights to
Ellena pursuant to Neb. Rev. Stat. § 43-292(1), (2), (4), and (6) (Reissue 2016). The State alleged
that Kurtis had abandoned Ellena for 6 months or more immediately prior to the filing of the
amended motion to terminate parental rights; Kurtis had substantially and continuously or
repeatedly neglected and refused to give the juvenile or a sibling of the juvenile necessary care
and protection; Kurtis was unfit by reason of debauchery, habitual use of intoxicating liquor or
narcotic drugs, or repeated lewd and lascivious behavior, which conduct is seriously detrimental
to the health, morals, or well-being of the juvenile; reasonable efforts to preserve and reunify the
family had failed to correct the conditions leading to the adjudication of the child under
§ 43-247(3)(a); and termination was in Ellena’s best interests.
                                       TERMINATION HEARING
         A hearing was held on November 29, 2018, on the State’s amended motion to terminate
Kurtis’ parental rights. Kurtis, who was incarcerated at the time, appeared telephonically. The
State called four witnesses to testify, and numerous exhibits were also received into evidence.
Kurtis testified on his own behalf. A summary of the relevant evidence follows.
         Wendy Stevenson, a child and family specialist with DHHS, was called to Ellena’s home
on July 20, 2017, because law enforcement was removing her from her parents. When Stevenson
arrived at the home, Ellena was being held by her mother, Breanna; Kurtis had already been taken
from the home. According to Stevenson, “The home was in very poor condition”; there was a
“very dirty” car seat, some blankets that were not clean, “a couple of dirty diapers” on the table, a
bedroom in disarray, and the ceiling was “falling in” in one room. Additionally, law enforcement
had found methamphetamine in the home. When Stevenson spoke to Breanna, Breanna stated that
she did not receive any prenatal care while pregnant with Ellena, and that Ellena was born at home
a little over 2 weeks prior with only Breanna and Kurtis present at the birth. Breanna also
confirmed that Ellena had not yet received medical care. Breanna told Stevenson that they did not
take Ellena for medical care because they were worried that Ellena would be removed from them.


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Breanna reported that she and Kurtis had a previous child removed from their care in Kansas when
they took the child for medical care following a home birth because that child tested positive for
drugs and there were other medical issues. When Stevenson left the home, she immediately took
Ellena to see Dr. Tina Scott-Mordhorst, a pediatrician.
         Dr. Scott-Mordhorst has been Ellena’s primary care provider since July 20, 2017. At the
examination on July 20, Dr. Scott-Mordhorst was told that Ellena, just over 2 weeks old, had not
received any prior medical care. Dr. Scott-Mordhorst was “thrilled” that Ellena looked as good as
she did. She testified that it is recommended that a baby be seen and examined by a physician
within 24 hours of birth to check for things like heart defects, metabolic disorders, jaundice, and
feeding difficulties. Dr. Scott-Mordhorst’s biggest concern at the time was whether Ellena had
been feeding well, and her hydration and nutrition status. After a physical examination of Ellena,
she had no concerns at that point. Dr. Scott-Mordhorst ordered the newborn screening test that
most babies get at 24 hours; the results were normal. Dr. Scott-Mordhorst was also concerned
about potential drug exposure, so she discussed drug testing with Stevenson, and let her know that
Project Harmony was an appropriate place to have such testing done; Ellena’s hair follicle test
results were positive for amphetamine, methamphetamine, and THC. According to Dr.
Scott-Mordhorst, Ellena could have been exposed to the drugs in utero or after her birth. She also
said that children exposed to drugs can be at higher risk for behavioral and mental health
complications, depending on when they were exposed and for how long they were exposed; “[i]t
can be months or years, particularly for the behavioral health or mental health effects” to manifest.
Ellena had follow up appointments each of the 2 weeks following her initial appointment; she
looked good and was growing well. At that point, the plan was to start treating her as any other
newborn and have health care maintenance visits at the recommended times, and then any
additional sick visits as needed. At the time of the termination hearing, Ellena was “thriving.”
         Stevenson testified that during her time as Ellena’s case manager, Stevenson had contact
with Kurtis, who was incarcerated in the Cass County jail. Their first contact was on July 26, 2017,
at the courthouse. At that time, they talked about Ellena’s placement and Kurtis denied any
wrongdoing. Their next meeting was on August 7 at the Cass County jail; DHHS children and
family services specialist Molly Cunningham was also present, as she was going to be taking over
the case from Stevenson. At the August 7 meeting, Stevenson asked Kurtis if he had any other
children and he stated that he had six other children (but his rights to those children had been
terminated). During that August 7 meeting, Stevenson offered Kurtis psychological and chemical
dependency evaluations, and Kurtis agreed to participate in those evaluations; she was able to set
those evaluations up through CAPstone behavioral health and they occurred in the Cass County
jail later that month. Stevenson agreed that a parent’s incarceration can present certain barriers or
hurdles to DHHS offering services because DHHS has to abide by the rules of the jail or facility.
“We have to essentially jump through the hoops that they need us to jump through to get providers
in.” “A lot of the time we can . . . at least get evaluations done, but beyond that . . . a lot of time
we have a lot of different barriers just to people being able to come in and do services within the
jail.” Stevenson agreed that a limited number of providers will actually go into a correctional
setting to provide services. Stevenson was not able to offer any other services to Kurtis because he
was incarcerated.



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         Cunningham took over case management duties in early October 2017, and was the
ongoing case manager at the time of the termination hearing in November 2018. In addition to
accompanying Stevenson to the August 2017 meeting (at which time Cunningham gave Kurtis her
business card which contained her contact information), Cunningham also met with Kurtis “at least
once a month,” either in the courtroom or at the Cass County jail. There was 1 month she was not
able to make contact because she did not have her badge as required. As part of her visits with
Kurtis, Cunningham would give him updates on Ellena.
         According to Cunningham, Kurtis was transferred from the Cass County jail to a Lincoln
correctional facility in October 2017, and remained there until his release in December. When
Kurtis was at the correctional facility in Lincoln, Cunningham made efforts to contact Kurtis. She
“reached out to the correctional center on numerous occasions to schedule a meeting with Kurtis.”
She said, “I left several messages the months of October, November, and December. I did not
receive a phone call back. So I did resort to sending Kurtis letters [at least one or two] to try and
reach out to him, and I received no reply.” The letters she sent to Kurtis included her contact
information. Cunningham did not receive any phone calls or messages from Kurtis while he was
incarcerated in Lincoln.
         Cunningham’s understanding was that when Kurtis was released from the Lincoln
correctional facility, he was taken to a correctional center in St. Joseph, Missouri. Because he was
out of state, Cunningham was not able to visit Kurtis while he was incarcerated in Missouri, but
she did send him letters and/or court reports “at least monthly.” There were “a couple different
occasions” where she did not send him a letter or court report because she corresponded with his
case manager through the prison and asked that person to provide her information to Kurtis. She
never received any phone calls, messages, or written communication from Kurtis. At the time of
the November 2018 termination hearing, Kurtis was still incarcerated in Missouri.
         Kurtis did complete psychological and chemical dependency evaluations in August 2017;
the reports were received into evidence. The psychological evaluation recommended a psychiatric
evaluation, individual therapy, parenting classes, family support, and to follow recommendations
from the chemical dependency evaluation. The chemical dependency evaluation recommended
that Kurtis participate in “Adult Level 2.1 IOP.” Cunningham was not able to find a psychiatrist
that was willing to go into the jail to complete a psychiatric evaluation. In fact, she said that DHHS
had not been able to provide Kurtis with any of the services recommended by the psychological
and chemical dependency evaluations because “it is very difficult to find providers to go into jails
or prisons to provide services.” When she met with Kurtis while he was in the Cass County jail,
she did “refer him” to get involved in programs that the jail would be able to provide such as “AA
or NA” meetings, and that “[t]he more he . . . got involved in the better it would be.” When asked
if, in her opinion, she tried and made every effort that she had been able to make, due to Kurtis’
incarceration, to either get services in place or get him pointed in the right direction for services,
Cunningham responded, “Yes.” She had not received any information that Kurtis completed any
of the recommendations of his psychological evaluation.
         In Cunningham’s opinion, Kurtis has not shown a continuing interest in Ellena. Kurtis has
not seen Ellena since she was approximately 15 days old, at which time he was incarcerated. Kurtis
made a request for visitation while he was in Cass County jail, but “that motion was denied due to
the nature of the visit being behind glass.” Despite Cunningham’s continued efforts to try to reach


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out to Kurtis, she had not heard from him since October 2017. And because there had been no
contact, Kurtis had not made inquiries of Cunningham as to how Ellena had been doing, nor had
he made additional requests for visits with Ellena at the other correctional facilities. Cunningham’s
concern was that Kurtis’ parenting “is unknown” due to the termination of his parental rights to
other children, the amount of time that Ellena had been placed out of the home, and “just his
stability for himself . . . as he’s been incarcerated the entirety of this case.” It was Cunningham’s
understanding that Kurtis was scheduled to be released from incarceration in Missouri in January
or February 2019. However, Cunningham believed it was in Ellena’s best interests to terminate
Kurtis’ parental rights so that she can achieve permanency.
         Ellena’s foster mother testified that Ellena had been placed with her since July 20, 2017.
The foster mother had not received any phone calls, letters, emails, or presents from Kurtis for
Ellena.
         Kurtis testified that he delivered Ellena during a home birth; to his knowledge there were
no complications. He said he had nine children (eight biological) including Ellena, so he had “been
through multiple different childbirths.” After Ellena’s birth, he and Ellena’s mother “wiped
[Ellena] down the best [they] could,” but did not give her a bath for “two or three days because . . .
that’s what [Kurtis] had read on the internet and had heard from doctors.” For the next 2 weeks,
before she was removed from the home, Ellena “looked good” and appeared to be gaining weight,
“[s]o we figured everything was fine.”
         Before his arrest on July 20, 2017, Kurtis was employed by his landlord; he was doing
“side jobs” for the landlord and remodeling the house in which they were living in exchange for
rent. Kurtis acknowledged that because of the ongoing remodel, the house was in a bit of disarray.
         Prior to his arrest on July 20, 2017, Kurtis “had heard from family members that there was
a possibility of a warrant [for Missouri], but [he] didn’t know 100 percent for sure that it was
actually in effect.” When asked why there would have been a warrant for Missouri, Kurtis
responded, “Because I was on parole in the state of Missouri, and . . . I didn’t check in with a
parole officer here in the state of Nebraska.” So, Kurtis “basically violated [his] parole” by
“[a]bsconding.” Kurtis stated he was on parole for “a theft” that occurred in 2014. He “got a
five-year sentence,” the sentence was suspended, and he was placed on probation. He was on
probation from February to October 2015, and then his probation was revoked because he left the
state without permission. He was then incarcerated until he was released on parole on March 14,
2016. In June 2016, he left the state of Missouri without approval; this was the parole violation
that led to the warrant on which he was arrested on July 20, 2017, here in Nebraska.
         At the time of his arrest on July 20, 2017, a vial with methamphetamine residue was found
in or around the area of the house where Kurtis was located; Kurtis testified that he was not using
methamphetamine at the time. Upon his arrest, Kurtis was placed in the Cass County jail. A
“Judgement of Conviction and Sentencing Order” was received into evidence and shows that on
October 30, Kurtis pled guilty to possession of a controlled substance (methamphetamine) and the
Cass County District Court sentenced him to 1 year of imprisonment, to run concurrent with a
sentence imposed in a separate case, and then 12 months of postrelease supervision.
         According to Kurtis, in mid-October 2017, he was transferred from the Cass County jail
and went to the Diagnostic and Evaluation Center for “30 or 45 days,” and was then placed at the
Nebraska State Penitentiary. Kurtis said that he wrote “a couple of letters” to Cunningham while


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he was at the Diagnostic and Evaluation Center, but did not get a response back. And he stated that
he received no mail from Cunningham until he “got out of diagnostics” and placed at the
penitentiary. Kurtis stated that while at the penitentiary, he had two or three phone calls with
Cunningham, and that those calls took place in his prison case manager’s office. In January 2018,
Kurtis was transferred from the Nebraska State Penitentiary to the Missouri Department of
Corrections. In Missouri, Kurtis “sent letters” to DHHS and “tried to send a couple to
[Cunningham] herself,” but did not get any response back. He also tried calling multiple times via
a collect call, but apparently she did not answer. Cunningham was called as a witness on rebuttal.
She denied having any phone calls with Kurtis and his case manager while he was incarcerated in
Nebraska. And she confirmed her previous testimony that she did not receive any phone calls or
letters from Kurtis.
         Kurtis testified that he had been doing NA and AA classes “ever since I was incarcerated
in Cass County all the way up until even now [the time of the termination hearing].” He also started
a parenting class called “Inside Outside Dads” at the Nebraska State Penitentiary, but he was
released from the penitentiary before he could complete the 18-week program. While in Missouri,
he has enrolled in “Inside Outside Dads,” “ICVC,” employment skills, anger management, anxiety
management, emotional empowerment, and pathways to change; at the time of the termination
hearing he had certificates (received into evidence) showing that he had completed anxiety
management and 300 hours of “restorative justice.”
         According to Kurtis, he was scheduled to be released from the Missouri department of
corrections on January 22, 2019, and would be on parole at that time. As for his plans upon release,
Kurtis said he had housing set up at a transitional living house in Omaha, Nebraska. He planned
to get a job, continue with NA/AA classes, get into a parenting class, and work toward reunification
with Ellena. He “know[s]” he and Ellena could grow a bond and that he could take care of her if
given the chance.
         Kurtis said that he has seven biological children besides Ellena. Kurtis has a relationship
with his oldest child, a 17-year-old boy that lives in Oklahoma (that child’s grandmother has a
guardianship over him because the child’s mother is in the military). As for the other six children,
Kurtis has “no parental rights whatsoever”; he affirmed that his rights to those six children had
been terminated. His rights to four of those children (Ellena’s half-siblings) were terminated in
“2014 or 2015.” As for the other two children (Ellena’s full siblings), the oldest lived with Kurtis
“a month or two” before being removed, and the youngest was removed while in the hospital.
Kurtis’ rights to these two children were terminated in May 2016 by a Kansas court.
         At the conclusion of all of the evidence, the State orally moved for leave of the court to
amend the motion to terminate Kurtis’ parental rights to conform with the evidence presented that
day, and add an allegation under § 43-292(7) that the juvenile had been in an out-of-home
placement for 15 or more of the most recent 22 months. The juvenile court granted the State leave
to amend over Kurtis’ objection, and stated it would like the State to amend by interlineation. Our
transcript does not contain the amendment by interlineation. The court then said “[t]he amended
complaint has now been amended to add the allegation pursuant to § 43-292(7).”




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                                    JUVENILE COURT’S DECISION
         In an order filed on December 18, 2018, the juvenile court found that the State had failed
to prove by clear and convincing evidence that Kurtis’ parental rights should be terminated
pursuant to § 43-292(4). However, the juvenile court terminated Kurtis’ parental rights to Ellena
after finding that statutory grounds for termination existed pursuant to § 43-292(1), (2), (6), and
(7); that Kurtis was unfit to act as a parent; and that termination of his parental rights was in the
child’s best interests.
         Kurtis appeals the juvenile court’s order.
                                   ASSIGNMENTS OF ERROR
        Kurtis assigns, summarized and restated, that the juvenile court erred in finding that (1)
statutory grounds existed to terminate his parental rights, (2) he was an unfit parent, and (3)
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 a conclusion
independently of the juvenile court’s findings. In re Interest of Isabel P. et al., 293 Neb. 62, 875
N.W.2d 848 (2016).
                                             ANALYSIS
                              STATUTORY GROUND FOR TERMINATION
        In Nebraska statutes, the bases for termination of parental rights are codified in § 43-292.
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. In re Interest of Elizabeth S., 282 Neb. 1015, 809 N.W.2d 495 (2012).
        In its order terminating Kurtis’ parental rights to Ellena, the juvenile court found that
statutory grounds existed pursuant to § 43-292(1) abandonment; (2) substantial and continuous or
repeated neglect; (6) having determined child was a juvenile as described in § 43-247(3)(a),
reasonable efforts to preserve and reunify the family had failed to correct conditions leading to
determination; and (7) child out-of-home for 15 or more months of the most recent 22 months.
        Section 43-292(2) generally provides for termination of parental rights when the parent has
neglected and refused to give the necessary care to the juvenile or a sibling of the juvenile. In re
Interest of Sir Messiah T. et al., 279 Neb. 900, 782 N.W.2d 320 (2010). “One need not have
physical possession of a child to demonstrate the existence of neglect contemplated by
§ 43-292(2).” In re Interest of Joseph S. et al., 291 Neb. 953, 961, 870 N.W.2d 141, 148 (2015).
“A parent may as surely neglect a child of whom she [or he] does not have possession by failing
to put herself [or himself] in a position to acquire possession as by not properly caring for a child
of whom she [or he] does have possession.” In re Interest of J.N.V., 224 Neb. 108, 112, 395 N.W.2d
758, 761 (1986).
        Kurtis has had his parental rights terminated to six other children, besides Ellena. The 2016
Kansas termination order regarding Ellena’s two full siblings, received into evidence, stated that
Kurtis was “unfit by reason of conduct or condition that is unlikely to change in the foreseeable
future.” “In that regard, . . . Kurtis . . . engaged in physical[,] mental and emotional neglect of [the


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two children]”; “demonstrated a lack of effort . . . to adjust [his] circumstances, conduct or
conditions to meet the needs of [the children]”; reasonable efforts of appropriate public and private
child caring agencies have been unable to rehabilitate the family”; and Kurtis “failed to maintain
regular visitation contact or communication with the minor children and . . . failed to carry out a
reasonable plan approved by the court towards reintegration of the minor children into the parental
home.” And the report for the psychological evaluation Kurtis completed August 2017 for the
current case notes that two of his children were removed from his care by the state of Kansas for
medical neglect.
        In the current case, Ellena was born at home in July 2017 and was delivered by Kurtis. For
the next 2 weeks, until Ellena was removed from the home, she did not receive medical care.
Breanna told Stevenson that they did not take Ellena for medical care because they were worried
that Ellena would be removed from them because she and Kurtis had a previous child removed
from their care in Kansas when they took the child for medical care following a home birth because
that child tested positive for drugs and there were other medical issues. When Dr. Scott-Mordhorst
examined Ellena, she appeared to be doing well. However, Ellena’s hair follicle test results were
positive for amphetamine, methamphetamine, and THC. According to Dr. Scott-Mordhorst, the
drug exposure could have occurred in utero or after Ellena’s birth.
        At the time of his July 20, 2017, arrest on a felony warrant from Missouri, a vial with
methamphetamine residue was found in or around the area of the house where Kurtis was located.
Kurtis testified that he was not using methamphetamine at the time. But on October 30, Kurtis pled
guilty to possession of a controlled substance (methamphetamine) and the Cass County District
Court sentenced him to 1 year of imprisonment. Due to his incarceration, Kurtis was unable to
provide care for Ellena. However, his incarceration alone was not the sole reason for termination.
See In re Interest of Jahon S., 291 Neb. 97, 864 N.W.2d 228 (2015) (incarceration alone cannot
be sole basis for terminating parental rights, but it is factor to be considered). While incarcerated
in the Cass County jail, Kurtis met with DHHS workers and requested a picture of Ellena.
However, after he was transferred out of the Cass County jail in mid-October 2017, and up until
the time of the termination hearing in November 2018, Kurtis failed to maintain contact with
DHHS, and Kurtis made no inquiries to either DHHS or Ellena’s foster mother as to Ellena’s
well-being.
        Based on the evidence we have just set forth, our de novo review of the record clearly and
convincingly shows that grounds for termination of Kurtis’ parental rights under § 43-292(2) were
proven by sufficient evidence, and we find that Kurtis has substantially and continuously or
repeatedly neglected and refused to give Ellena or a sibling of Ellena necessary parental care and
protection.
        We need not consider whether termination of Kurtis’ parental rights was proper pursuant
to § 43-292(1), (6), or (7), since any one ground of the 11 identified in § 43-292 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. See In re Interest of Elizabeth S., supra.
        We note that Kurtis asserts that the only reasonable efforts provided by DHHS have been
to set up a substance abuse evaluation and a psychological evaluation, and that DHHS “should not
be allowed to use [his] incarceration as an excuse for not making reasonable efforts.” Brief for
appellant at 13. However, because we do not consider whether termination of Kurtis’ parental


                                                -8-
rights was proper pursuant to § 43-292(6), Neb. Rev. Stat. § 43-283.01 (Reissue 2016), which
requires reasonable efforts to reunify families, is not applicable to the instant case. See In re
Interest of Andrew M. et al., 11 Neb. App. 80, 643 N.W.2d 401 (2002). Section 43-283.01 is only
incorporated into § 43-292(6), not into the remaining subsections of § 43-292. In re Interest of
Andrew M. et al., supra.
        Thus, the next inquiry is whether termination of Kurtis’ parental rights is in the child’s best
interests.
                                  BEST INTERESTS AND UNFITNESS
        Under § 43-292, once the State shows that statutory grounds for termination of parental
rights exist, the State must then show that termination is in the best interests of the child. In re
Interest of Ryder J., 283 Neb. 318, 809 N.W.2d 255 (2012). But that is not all. A parent’s right to
raise his or her child is constitutionally protected; so before a court may terminate parental rights,
the State must also show that the parent is unfit. In re Interest of Nichole M., 287 Neb. 685, 844
N.W.2d 65 (2014).
        There is a rebuttable presumption that the best interests of a child are served by having a
relationship with his or her parent. Id. 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 a parent is unfit.
Id. The term “unfitness” is not expressly used in § 43-292, but the concept is generally
encompassed by the fault and neglect subsections of that statute, and also through a determination
of the children’s best interests. In re Interest of Nichole M., supra. Parental unfitness means a
personal deficiency or incapacity which has prevented, or will probably prevent, performance of a
reasonable parental obligation in child rearing and which caused, or probably will result in,
detriment to a child’s wellbeing. Id. The best interests analysis and the parental fitness analysis are
fact-intensive inquiries. Id. And while both are separate inquiries, each examines essentially the
same underlying facts as the other. Id.
        We acknowledge that Kurtis completed psychological and chemical dependency
evaluations while incarcerated, and that DHHS’ ability to provide services to him were limited.
And we acknowledge his testimony as to the programs he has participated in while incarcerated.
However, as noted previously, Kurtis has had his parental rights terminated to six other children
since 2014 or 2015. He argues that although he previously had his parental rights terminated to
other children, “that should not be some sort of scarlet letter that brands him for life as an
unsuitable parent.” Brief for appellant at 12. We agree, but at the same time, we cannot ignore the
evidence that Kurtis, despite being aware of the severity of the consequences in those past
circumstances, nevertheless failed to make necessary life changes for the sake of being able to
responsibly parent Ellena. Instead of being focused on Ellena’s best interests, he and Breanna
elected to deliver Ellena in their home without medical assistance, and would not take her for any
medical care because a previous child had been removed from their care when they took that child
in for medical care following a home birth and that child tested positive for drugs. Clearly, Kurtis
placed more importance on avoiding detection of drug use in his household than on the risks of
such exposure to a newborn, both before and after delivery. And in fact, Ellena’s hair follicle test
results were positive for amphetamine, methamphetamine, and THC, which Dr. Scott-Mordhorst
said puts children at a higher risk for behavioral and mental health complications which may take


                                                 -9-
months or years to manifest. Further, Kurtis did not make any genuine effort during his
incarceration to maintain any kind of contact with Ellena, nor did he demonstrate any parental
concern about her. At the time of the termination hearing, Ellena had been in an out-of-home
placement for 16 months, and for more than 12 of those months, Kurtis did not even make inquiries
as to her well-being.
        Cunningham testified that it was in Ellena’s best interests to terminate Kurtis’ parental
rights so that she can achieve permanency. We agree. Ellena deserves permanency and a safe and
stable home. There was testimony that Kurtis was scheduled to be released on parole in January
2019, and Kurtis said he “know[s]” he and Ellena could grow a bond and that he could take care
of her if given the chance. However, we agree with Cunningham’s opinion that Kurtis has not
shown a continuing interest in Ellena. “Children cannot, and should not, be suspended in foster
care or be made to await uncertain parental maturity.” In re Interest of Walter W., 274 Neb. 859,
872, 744 N.W.2d 55, 65 (2008). Where a parent is unable or unwilling to rehabilitate himself or
herself within a reasonable time, the best interests of the child require termination of the parental
rights. In re Interest of Ryder J., supra. We find that the State has rebutted the presumption of
parental fitness as to Kurtis. We further find that there is clear and convincing evidence that it is
in Ellena’s best interests to terminate Kurtis’ parental rights.
                                          CONCLUSION
       We affirm the order of the juvenile court terminating Kurtis’ parental rights to Ellena.
                                                                                        AFFIRMED.




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