                          IN THE NEBRASKA COURT OF APPEALS

                MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                         (Memorandum Web Opinion)

                               IN RE INTEREST OF HANNAH W. ET AL.


  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 HANNAH W. ET AL., CHILDREN UNDER 18 YEARS OF AGE.

                                  STATE OF NEBRASKA, APPELLEE,
                                                 V.

                         ROSE U., APPELLANT, AND KEVIN W., APPELLEE.


                  Filed August 21, 2018.     Nos. A-17-1311 through A-17-1313.


       Appeal from the County Court for Buffalo County: GERALD R. JORGENSEN, JR., Judge.
Affirmed.
         Charles D. Brewster, of Anderson, Klein, Brewster & Brandt, for appellant.
         Mandi J. Amy, Deputy Buffalo County Attorney, for appellee State of Nebraska.
         Tana Fye, of Fye Law Office, for appellee Kevin W.
         Kane M. Ramsey, of Jacobsen, Orr, Lindstrom & Holbrook, P.C., L.L.O., guardian ad
litem.


         PIRTLE, RIEDMANN, and WELCH, Judges.
         RIEDMANN, Judge.


                                        I. INTRODUCTION
        The county court for Buffalo County, sitting as a juvenile court, terminated the parental
rights of Rose U. and Kevin W. to their three minor children. We affirm the termination of Rose’s
parental rights because we conclude that the State proved by clear and convincing evidence that
statutory grounds for termination exist and that termination is in the best interests of the children.



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We also find that Kevin did not properly cross-appeal and therefore affirm termination of his
parental rights as well.
                                         II. BACKGROUND
         Rose and Kevin are the parents of three minor children: Hannah W., born in October 2011;
Ethan W., born in October 2013; and Abigail W., born in December 2016. Rose had a child born
in 2008 removed from her care in May 2010 due to unexplained injuries to his lip. Rose later
admitted to physically disciplining him. She was provided anger management, individual therapy,
and family support services during that case, but had difficulty meeting her case plan goals and
ultimately relinquished her parental rights to that child in September 2011.
         Additional intakes were received the following month reporting concerns about the
family’s living environment, Rose’s ability to meet Hannah’s basic needs, and the fact that Rose
had recently relinquished her rights to another child. Hannah was removed from the home, and a
juvenile case was opened. Hannah was returned home in November 2013, but the case remained
open. The caseworker at that time began to have concerns again in the spring that the children
were not being properly supervised and were not clean and sanitary. So Hannah and Ethan were
removed in May 2014 but were returned home the following month.
         The family came to the attention of the Department of Health and Human Services (DHHS)
in the instant case in August 2015 based on reports that the home was very cluttered and Ethan
had sustained a head injury for which Rose provided inconsistent information about its cause. An
additional report was received later that month indicating that Ethan had been hospitalized for
seizures, and there were concerns about Rose’s caregiving during the hospitalization.
         Hannah and Ethan were removed from the home, and the State filed a petition on
September 15, 2015, alleging that they were children within the meaning of Neb. Rev. Stat.
§ 43-247(3)(a) (Reissue 2016). After holding a hearing, the juvenile court adjudicated Hannah and
Ethan under § 43-247(3)(a). In December 2016, the State filed a petition to adjudicate Abigail. On
January 30, 2017, the State moved to terminate Rose’s and Kevin’s parental rights to Hannah,
Ethan, and Abigail pursuant to Neb. Rev. Stat. § 43-292(2), (5), and (6) (Reissue 2016) and
pursuant to § 43-292(7) with respect to the two older children. The State also alleged that
termination was in the best interests of the children. The following day, the juvenile court
appointed a guardian ad litem for Rose and for Kevin.
         The termination hearing was held on April 10 and 11, May 23, and August 15, 2017.
Throughout the entirety of the case, Rose’s mental health continued to be a concern, as did her
unwillingness to accept responsibility for the issues in the case and the condition, cleanliness, and
safety of the family’s home. These were the same concerns present in the original case involving
Hannah in 2011. Initially in the present case, Rose was unwilling to attend counseling, but she did
agree to undergo a psychological and parenting evaluation with Dr. John Meidlinger in May 2016.
Meidlinger observed that Rose tends to blame other people for her problems, and one of the
recurring themes in her life is that nothing is her fault and other people have treated her badly. He
found that Rose has an attitude that she is not going to be helped by an intervention, which makes
it difficult for her to be receptive to it. She reported to him that she does not believe that counseling
is helpful and has had bad experiences with counselors.



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        Meidlinger observed Rose with Hannah and Ethan and noticed that the children seemed
indifferent to her and did not count on her for much. He found that she was emotionally distant
with her children and severely lacking in an ability to be playful and engaging with them in a
nurturing fashion and is also apt to be resistant to learning alternative ways of parenting. These
characteristics place her at a great disadvantage in learning to parent her children, and she is likely
to have difficulties being able to enter their lives and knowing how to guide, direct, and interpret
their experiences. She is likely to be unpredictable and mercurial in her relationship with them and
can be, at times, punitive and harsh. Meidlinger determined that Rose has never developed a pattern
of consistency in her own life and will likely continue to be chaotic with the children. He also felt
that she never really developed a strong bond of attachment with the children and would have great
difficulty managing their behaviors on her own.
        Meidlinger’s concerns for Rose as a parent were that she had no good role models for
parenting growing up and many reasons to be angry with the way she was raised. He concluded
that she is likely to repeat her own experiences in her relationships with her children. In addition,
she is very much focused on herself and sees the world in terms of what is good for her, so seeing
her children as people with their own feelings and having empathy in regard to wanting them to
be happy is something that is quite difficult for her. Meidlinger determined that Rose is quite
impaired in that area, which will affect her ability to make her children feel that she loves them
and that they want to be a part of her family and to go along with her.
        Meidlinger ultimately diagnosed Rose with borderline personality disorder, which includes
both narcissistic and borderline features, and adjustment disorder with disturbance of emotion and
conduct. The narcissism is considered to be a mental illness or disorder, and it is such that it would
continue for a prolonged, indefinite period of time. Both disorders suggest long-term patterns of
functioning that are difficult to change. Meidlinger noted that Rose had also been diagnosed with
narcissistic personality disorder by a different doctor in 2011.
        Meidlinger opined that Rose “very much” needs to involve herself in some in-depth
counseling to help her understand herself and to develop a greater sympathy for her own history
of abuse and loss. He believed that if she could develop some empathy for herself instead of hiding
behind her anger, she would be more likely to be able to develop some empathy with her children
and to focus on meeting their needs. He observed that she was not indicating any desire to work
on improving her relationship with Kevin and reported only staying with him to increase her
chances of regaining custody of the children.
        Rose began seeing a therapist in August 2016 and continued to do so throughout the
remainder of the case. She expressed multiple times, however, that she did not feel that she needed
therapy. And it was not until May 2017 that Rose agreed to begin slowly working on her trauma
history.
        Unfortunately, a continuous theme throughout the case was Rose’s refusal to accept
responsibility. A DHHS case plan court report dated November 7, 2016, reported that Rose had
completed a parenting curriculum and felt like she had nothing she needed to work on and that she
had not listened to the family support worker’s advice and recommendations at times. In addition,
the caseworker assigned to the case from September 2015 through November 2016 acknowledged
that Rose regularly attended visitation, but she struggled with redirection and accepting authority



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from the family support workers. As of January 2017, DHHS reported that Rose continued to
refuse to listen to the family support workers’ advice and recommendations and had struggled with
adjusting her parenting technique at the encouragement of workers. There were times she would
blame DHHS for her current situation or place the blame on Hannah and Ethan for being hard to
handle.
        Rose began attending child-parent psychotherapy with Hannah in October 2015. Hannah’s
initial goals were eliminating temper tantrums, reducing her defiance and aggression, and
improving the parent-child interactions. The therapist testified at the termination hearing that the
intensity, duration, and frequency of Hannah’s tantrums, defiance, and aggression had significantly
decreased. She also began seeing Ethan in June 2016 when he began having increased tantrums.
At the time, Ethan’s speech was delayed, and although it had improved, he continued to be below
average for his age.
        The therapist noted that an important factor for Rose’s success with Hannah would be
Rose’s ability to manage her own anger responses without DHHS supports present and manage
her own mental health. She opined that Rose will need to manage her own emotions and triggers
and not become emotionally reactive herself in order to meet Hannah’s emotional needs. Toward
the end of the case, Hannah continued to demonstrate a level of negativity toward Rose and
continually expressed a desire not to go on visits. Hannah’s foster mother testified that as of the
time of the termination hearing, Hannah continued to have tantrums when it was time to leave for
visits with Rose. Hannah would run, hide, kick off her shoes, and scream that she did not want to
go on visits.
        The children’s therapist noted that Hannah had spent only 22 months of her life with Rose
as her primary caregiver, and she needs a sense of permanency and stability which is important for
emotional development and secure attachment. The therapist iterated that all children need
consistency, permanency, and stability, and when they do not have that, the chance for longer-term
mental health issues increases. Based on her observations of working with the children and Rose,
she opined that as of the time of the termination hearing, the children were not yet able to safely
return home.
        Likewise, the court-appointed special advocate expressed concerns about reunifying the
children with Rose. She was concerned because Rose had not maintained safety in the home, had
not shown good parenting, and had not done things that a parent needs to do to keep her children
from becoming traumatized and requiring therapy. She observed that children need opportunities
to grow and be healthy and opined that that would not happen if they were placed back into the
same situation from which they were removed.
        The current caseworker also testified that she would have concerns about returning the
children to Rose’s care because Rose overreacts when she gets upset; that there was no explanation
for a mark found on Hannah in November 2016, although Hannah indicated that Rose had grabbed
her and caused the mark; that Rose has not shown a consistent ability to keep the home safe and
sanitary; and that Rose and Kevin continue to fight in front of the children. The caseworker also
noted that Ethan was still having difficulty transitioning to visits and having separation anxiety
from his foster mother. Both the caseworker and the family support worker believed that the family
continued to need help but did not believe there were any additional services that could be provided



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to help them achieve reunification. Thus, the caseworker testified that DHHS supported
terminating Rose’s parental rights based on the length of time the children had been out of home
and the lack of progress made during that time.
         After the conclusion of the termination hearing, but before the juvenile court entered its
order, the children’s guardian ad litem filed a motion for ex parte order suspending visitation. The
motion alleged that at recent visits, Rose had shown “utter, and complete disrespect” toward the
visitation workers such that the children’s safety and well-being were placed in jeopardy. The
motion also asserted that at a recent visit, Rose became upset, screamed profanities, and grabbed
Hannah’s arm and pulled her out of a restroom. Rose also allegedly yelled at Kevin, who then
confronted the visitation worker. The motion claimed that the actions occurring at visits created
anxiety and distress for the children, which, according to their therapist, was not in their best
interests. The juvenile court granted the motion, immediately suspending visitation.
         Thereafter, the court entered an order on November 17, 2017. The court found sufficient
evidence to adjudicate Abigail under § 43-247(3)(a). The court recognized that the present case is
the third case involving Hannah and the second case involving Ethan due to the cleanliness and
appropriateness of their living environment and unexplained injuries. The court found that as long
as Rose and Kevin were fully monitored, they could provide for the basic necessities of the children
on a physical level. However, when not fully monitored and assisted, they quickly slide back into
their established patterns or behaviors which place the children at risk for harm. The court found
that they continued to struggle to maintain the home in a clean and safe manner and struggled to
maintain control and supervision of the children. The court observed that Rose and Kevin
continued to argue and get aggressive with various support providers and therapists. Additionally,
Rose and Kevin continued to display “utter antipathy” toward DHHS, the service providers, and
the entire system in which they were forced to work, which impeded their ability to make progress
during the case. The juvenile court noted the children’s therapist’s opinion that the children need
stability and permanence but found that “it still appears that any type of reunification with the
parents is light-years away.”
         The court ultimately concluded that the State presented sufficient evidence to support all
of the statutory grounds alleged for termination. And the court found sufficient evidence to
establish that termination of Rose’s and Kevin’s parental rights to all of the children was in the
children’s best interests. Rose appeals, and Kevin attempts to cross-appeal.
                                III. ASSIGNMENTS OF ERROR
        On appeal, Rose assigns, summarized and renumbered, that the juvenile court erred in
finding (1) that statutory grounds exist to support termination, (2) that there was clear and
convincing evidence that she was an unfit parent, and (3) that termination of her parental rights
was in the children’s best interests.
        On cross-appeal, Kevin assigns that the juvenile court erred in finding statutory grounds to
support termination and in finding termination was in the children’s best interests. Kevin has not,
however, designated his brief as a cross-appeal as required by Neb. Ct. R. App. P. § 2-109(D)(4)
(rev. 2014).




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                                  IV. 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 Carmelo G., 296 Neb. 805, 896
N.W.2d 902 (2017).
                                           V. ANALYSIS
                                         1. ROSE’S APPEAL
                               (a) Statutory Grounds for Termination
        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 Sir Messiah T. et al., 279 Neb. 900, 782 N.W.2d 320 (2010).
        In its order terminating Rose’s parental rights, the juvenile court found that the State had
proved three of the conditions contained in § 43-292 by clear and convincing evidence, namely
subsections (2), (5), and (6). Further, the court found that subsection (7) existed with respect to
Hannah and Ethan.
        On appeal, Rose does not challenge the court’s findings regarding subsections (2), (6), and
(7). She therefore concedes these conditions, and upon our de novo review of the record, we affirm
the juvenile court’s finding that the State sufficiently proved grounds for termination of Rose’s
parental rights to all three children under § 43-292(2) and to the two older children under
§ 43-292(7). Our determination is based upon the facts outlined above and our analysis of Rose’s
unfitness as described below.
        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 review termination under § 43-292(5) or (6). Once a statutory basis
for termination has been proved, the next inquiry is whether termination is in the child’s best
interests.
                                  (b) Unfitness and Best Interests
        Rose asserts that the juvenile court erred in finding that she was unfit to parent her children
and that terminating her parental rights was in the children’s best interests. We disagree.
        The interest of parents in the care, custody, and control of their children is perhaps the
oldest of the fundamental liberty interests recognized by the U.S. Supreme Court. See In re Interest
of Hope L. et al., 278 Neb. 869, 775 N.W.2d 384 (2009). Accordingly, before the State attempts
to force a breakup of a natural family, over the objections of the parents and their children, the
State must prove parental unfitness. Id.
        A court may not properly deprive a parent of the custody of his or her minor child unless
the State affirmatively establishes that such parent is unfit to perform the duties imposed by the
relationship, or has forfeited that right. Id. It is always the State’s burden to prove by clear and



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convincing evidence that the parent is unfit and that the child’s best interests are served by his or
her continued removal from parental custody. Id. The term “unfitness” is not expressly used in
§ 43-292, but the concept is generally encompassed by the fault and neglect subsections of that
statute, and also through a determination of the child’s best interests. See In re Interest of Hope L.
et al., supra.
         Generally, when termination of parental rights is sought, the evidence adduced to prove the
statutory grounds for termination will also be highly relevant to the best interests of the juvenile,
as it would show abandonment, neglect, unfitness, or abuse. See In re Interest of Joseph S. et al.,
291 Neb. 953, 870 N.W.2d 141 (2015). In proceedings to terminate parental rights, the law does
not require perfection of a parent; instead, courts should look for the parent’s continued
improvement in parenting skills and a beneficial relationship between parent and child. Id.
         During the present case, Rose showed little improvement in the conditions that led to
adjudication. And the same conditions were present in her previous juvenile cases. Although Rose
participated in the majority of the services provided to her, she never made the necessary progress
in order to allow the children to be safely returned to her care. She was consistently resistant to
heeding any advice, attempting to make changes in her parenting, or believing that the services
offered were designed to help her. She repeatedly indicated that she did not need therapy and did
not believe it was helpful. Rose continued to blame others for the situation in which she found
herself and refused to work on addressing her underlying trauma, which was reported to be the
cause of her personality disorder and corresponding parenting shortcomings. Despite all of the
therapy sessions Rose attended during the case, as of March and April 2017, she continued to
struggle to understand how her own trauma history and anger impacted her parenting. It was not
until May that Rose agreed to begin slowly working on her trauma.
         By that time, however, Hannah and Ethan had already been in an out-of-home placement
for 20 months in the present case, and Abigail had been out of home for the entire 5 months of her
life. And in total, Hannah had been out of home much longer. Her therapist indicated that Hannah,
like all children, needs consistency, permanency, and stability, but as of the date of the termination
hearing, in her opinion, the children could not safely return home yet.
         Children cannot, and should not, be suspended in foster care or be made to await uncertain
parental maturity. In re Interest of Jahon S., 291 Neb. 97, 864 N.W.2d 228 (2015). Unfortunately,
Rose has made very little progress on the issues that led to Hannah’s initial removal from the home
in 2011 and continued throughout the present case, and neither the family support worker nor the
caseworker could identify any additional services that could be provided to assist in achieving
reunification. We therefore conclude that based on the record before us, the State established by
clear and convincing evidence that Rose was unfit and that it was in the best interests of the
children that her parental rights be terminated.
                              2. KEVIN’S PURPORTED CROSS-APPEAL
        We next address Kevin’s purported cross-appeal. Kevin filed a “Brief of Appellee
Father - Kevin [W.]” with this court. While assignments of error are made, there is no designation
of a cross-appeal. In In re Interest of Natasha H. & Sierra H., 258 Neb. 131, 602 N.W.2d 439
(1999), the Nebraska Supreme Court refused to address assignments of error in an appellee’s brief



                                                -7-
not designating a cross-appeal. The court in In re Interest of Natasha H. & Sierra H. explained
that “the appellate courts of this state have always refused to consider a prayer for affirmative relief
where such a claim is raised in a brief designated as that of an appellee,” 258 Neb. at 146, 602
N.W.2d at 451, and “have repeatedly indicated that a cross-appeal must be properly designated,
pursuant to rule 9(D)(4), if affirmative relief is to be obtained,” 258 Neb. at 145, 602 N.W.2d at
450. Section 2-109(D)(4) provides:
        Where the brief of appellee presents a cross-appeal, it shall be noted on the cover of the
        brief and it shall be set forth in a separate division of the brief. This division shall be headed
        “Brief on Cross-Appeal” and shall be prepared in the same manner and under the same
        rules as the brief of appellant.

       Parties wishing to secure appellate review of their claims for relief must be aware of, and
abide by, the rules of this court in presenting such claims. In re Interest of Natasha H. & Sierra
H., supra. Any party who fails to properly identify and present its claim does so at its peril. Id.
Kevin has not complied with the rules of this court, and we therefore do not address his
assignments of error.
                                          VI. CONCLUSION
        We conclude that the State sufficiently proved statutory grounds for termination of Rose’s
parental rights to Hannah, Ethan, and Abigail and that termination is in the children’s best interests.
Because Kevin did not properly cross-appeal, we do not address his assignments of error and
therefore affirm the termination of his parental rights to the children as well.
                                                                                              AFFIRMED.




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