                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                  IN RE INTEREST OF MICHAEL C.


  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 MICHAEL C., A CHILD UNDER 18 YEARS OF AGE.

                                 STATE OF NEBRASKA, APPELLEE,
                                                V.

                                     MICHAEL C., APPELLANT.


                             Filed January 29, 2019.   No. A-18-034.


       Appeal from the County Court for Scotts Bluff County: KRIS D. MICKEY, Judge. Affirmed.
       Bernard J. Straetker, Scotts Bluff County Public Defender, for appellant.
       No appearance for appellee.


       PIRTLE, RIEDMANN, and WELCH, Judges.
       WELCH, Judge.
                                        INTRODUCTION
        Michael T. C. (Michael Sr.), biological father of Michael C. C. (Michael Jr.), appeals from
an order of the Scotts Bluff County Court, sitting in its capacity as a juvenile court, terminating
his parental rights. He contends that the court erred in finding that one or more of the conditions
set forth in Neb. Rev. Stat. § 43-292(1), (2), and (6) (Reissue 2016) exist and finding that
termination was in the child’s best interests. Michael Sr. further contends that the State failed to
prove, beyond a reasonable doubt, through qualified expert witness testimony, that the continued
custody of Michael Jr. by Michael Sr. was likely to result in serious emotional or physical damage
to Michael Jr., as required by Nebraska’s Indian Child Welfare Act (NICWA). For the reasons set
forth herein, we affirm the order of termination.




                                               -1-
                                    STATEMENT OF FACTS
        On September 23, 2016, the State filed a juvenile court petition alleging that Michael Sr.
and Michael Jr.’s mother, Katie D., had neglected him and asked that he be adjudicated as a
juvenile within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016). Specifically, the
petition alleged that the parents’ use of controlled substances, domestic violence, and lack of stable
housing placed Michael Jr. at risk of harm. The same day, the State filed a motion to grant the
Department of Health and Human Services (DHHS) temporary custody of Michael Jr. The court
ordered that he be removed from his parents’ custody for placement outside the home.
        A guardian ad litem (GAL) was appointed on behalf of Michael Jr., and, in his first report
to the court, the GAL alleged that Michael Sr. abused Katie by stabbing, punching, choking,
breaking her ribs, and puncturing her lung. He alleged that Katie initially agreed to assist with the
prosecution of Michael Sr. for felony domestic violence charges, but later recanted her accusations.
The GAL also alleged that Michael Sr. was emotionally abusive to Katie. For example, the GAL
alleged “it is reported that if Michael Sr. does not like what Katie has made for dinner he will
throw it on the ground, make her get on all fours and eat the food.”
        The GAL also alleged that Michael Sr. screamed and yelled at Michael Jr. and that “[h]e
yelled at Katie ‘I see how [Michael Jr.] fucking looks at you’ indicating that he was jealous of the
attention Katie gave to the newborn child.” He also reported that Michael Jr. tested positive for
exposure to methamphetamine.
        During the pendency of the case, Katie obtained a protection order against Michael Sr. On
November 20, 2016, in violation of the protection order, Michael Sr. broke into her empty
apartment. Police responded, found the doors locked, and called Katie. She claimed she was too
afraid to come to the apartment to open the door, but gave permission for officers to enter and
search. Police found Michael Sr. inside the apartment and arrested him. As part of a plea
agreement, Michael Sr. pled guilty to trespassing and violation of a protection order, both
misdemeanors, in order to avoid felony convictions, and was incarcerated from November 2016
to January 2017 on these convictions. As part of the plea agreement, he agreed not to contest the
allegations contained in the September 23, 2016, juvenile court petition and admitted to the
allegations on the record. The State utilized the aforementioned GAL report and Michael Sr.’s
admissions as its factual basis to support the allegations contained in the juvenile petition.
        On January 17, 2017, the court held a dispositional hearing. Michael Sr. was not present at
the hearing due to his incarceration. The court ordered Michael Sr. to undergo a substance abuse
evaluation, which he completed on January 20 while incarcerated. During the evaluation, he
admitted that he occasionally drank alcohol and had used drugs on two occasions several years
before. He also told the interviewer that he had stepped away from his parenting visits because
Katie was “preferred by the courts” over him.
        On May 16, 2017, the court held another review hearing. Michael Sr. testified at this
hearing:
        I have just been working. That’s why I haven’t been able to make it to the visits. So I
        haven’t been able to make it to the visits. So I don’t have a drug problem. You know, I
        mean, I have just been trying to just stack -- stack cash because they say that I need my
        own place. I need all -- my own car and everything. That’s what I’ve been doing.



                                                -2-
During a recess from court proceedings, he tested positive for methamphetamines. The court
pointed out the apparent misrepresentation, and Michael Sr. interrupted, stating “I never said that.”
A short time later, Michael Sr. interrupted the county attorney, adding “I don’t have a drug
problem, but I tested positive. So what?” The court asked him to be quiet, but he again interrupted
the county attorney. The court then ordered that he be removed from the courtroom.
         At that hearing, Michael Sr.’s January 2017, substance abuse evaluation report was
received into evidence. In the report, he admitted to two instances of drug use earlier in his life.
The report also included two pages of criminal history which demonstrated that he had a felony
conviction as a minor and, as an adult, he had been convicted of at least nine misdemeanors,
including multiple Class I misdemeanors.
         In June 2017, the State filed a motion to terminate the parental rights of Michael Sr. In
October 2017, Michael Sr. offered into evidence his own certificate of Indian blood which showed
that he is a member of the Oglala Sioux Tribe. The court found that Michael Jr. was eligible for
membership and that NICWA applied and, in order to comply with procedures governing
notification of the tribe, delayed the termination hearing.
         On December 12, 2017, the termination hearing was held. The State first called Jennifer
Taylor, who served as the DHHS case manager in this matter from October 2016 to March 2017.
Taylor testified that Michael Sr. was difficult to contact and she did not recall him participating in
any services offered by DHHS except one team meeting and a few drug tests.
         The State then called Jackie Sandersfeld, an employee of an organization that contracted
with DHHS to provide visitation services. She testified that Michael Jr.’s foster parents reported
that following the limited visits with Michael Sr., Michael Jr. was very agitated and would scream
all night.
         The State then called Angie Molina who had been Michael Jr.’s foster mother. During her
testimony governing problems she had with Michael Jr. following his visits with his natural
parents, Michael Sr. interrupted her. He blamed her for the problems she reported. The court said:
         I have -- I have warned you repeatedly. You have decided not to follow my warnings. You
         have interrupted court on a number of times. I am holding you in contempt. I am ordering
         that you serve 24 hours in the county jail, and you’re removed from the courtroom
         immediately.

The court referred back to the incident when it announced its decision, saying Michael Sr. was
“repeatedly warned,” that it was “after I had overlooked another outburst,” and that he “want[ed]
to verbally attack a witness on the stand.”
        After Molina’s testimony, the State called Theresa Stands, an elder in the Oglala Sioux
Tribe, as an Indian Child Welfare Act expert witness. Stands testified that she had read the case
files and determined that, based on unaddressed issues of alcohol, drug abuse, and domestic
violence, it was not safe for the children to be placed with their parents again. She testified of
Sioux traditions that lead to the respect of children such as believing children chose their parents.
She testified that using alcohol and drugs was “not cultural” and “not traditional ways. Abuse is
never acceptable to raise children in.”




                                                -3-
        The State then called Morgan Weitzel, who served as the DHHS case manager in this
matter from June 2017 up until the termination hearing. Weitzel testified that in addition to Michael
Sr.’s incarceration from November 2016 to January 2017, he was also incarcerated from May 22
to September 22, for violating a protection order. Weitzel further testified that, throughout the case,
Michael Sr. only attended five out of over thirty visitations with Michael Jr. Weitzel testified that
Michael Sr. tested positive for methamphetamine on three out of the four drug tests that she was
aware of. During her testimony, the court admitted into evidence Michael Sr.’s substance abuse
evaluation report from January when he was incarcerated.
        According to Weitzel, a DHHS contractor discharged Michael Sr. as a client based on his
hostility to one of their employees. During one conversation while he was incarcerated, he
expressed a strong desire to get Michael Jr. back and “expressed a strong interest in parenting,”
but, during a later conversation, he admitted that “he wouldn’t actually be parenting his child” but
that Michael Jr.’s care would be left up to Katie. Weitzel testified that Michael Sr. never worked
with family support on parenting skills or anger management, never worked with a therapist for
individual counseling, and never attended nor completed Circle of Security. Finally, Weitzel
expressed her opinion that Michael Sr.’s parenting skills had been regressing throughout her time
as case manager.
        During Weitzel’s cross-examination, Michael Sr.’s attorney presented a letter that Michael
Sr. had written to Michael Jr. while in jail. Weitzel received it in her office near the end of August
2017. In the letter, he expressed how he missed Michael Jr., thought about him daily, expressed
his love, and said, “I’m gonna do whatever it takes to get you back OK I promise.” He apologized,
“I’m sorry I’m not there holding you right now and playing with you [but after I get out of jail] I
will be able to see you all the time!!” (Stylistic errors corrected.) Michael Sr.’s sister testified that
her family was willing to do anything they could for Michael Jr., and that their family thought it
was important to pass on knowledge of their Sioux traditions.
        The court announced a judgment of termination of Michael Sr.’s parental rights. When
announcing judgment, the court made it clear that it found Weitzel’s testimony more credible than
any conflicting testimony. Michael Sr. filed a timely appeal.
                                    ASSIGNMENTS OF ERROR
         Michael Sr. makes three claims on appeal. He claims that the juvenile court committed
reversible error by finding the State had established that (1) he had substantially and continuously
or repeatedly neglected or refused to provide the juvenile necessary parental care or protection, (2)
through the use of a qualified expert witness that continued custody of an Indian child by the parent
is likely to result in serious emotional or physical damage to the child, and (3) the termination of
his parental rights were in the best interest of the child.
                                     STANDARD OF REVIEW
       Juvenile cases are reviewed de novo on the record, and an appellate court is required to
reach a conclusion independent of the juvenile court’s findings. In re Interest of Shayla H. et al.,
17 Neb. App. 436, 764 N.W.2d 119 (2009). When the evidence is in conflict, however, an appellate
court may give weight to the fact that the lower court observed the witnesses and accepted one
version of the facts over the other. Id.


                                                  -4-
                                            ANALYSIS
                             STATUTORY GROUNDS FOR TERMINATION
       The county court terminated Michael Sr.’s parental rights pursuant to § 43-292(1), (2), and
(6), which setion provides:
                The court may terminate all parental rights between the parents or the mother of a
       juvenile born out of wedlock and such juvenile when the court finds such action to be in
       the best interest of the juvenile and it appears by the evidence that one or more of the
       following conditions exist:
                (1) The parents have abandoned the juvenile for six months or more prior to the
       filing of the petition;
                (2) The 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;
                ....
                (6) Following a determination that the juvenile is one described in subdivision 3(a)
       of section 43-247, reasonable efforts to preserve and rectify the family if required under
       section 43-283.01, under the direction of the court have failed to correct the conditions
       leading up to the determination.

        Michael Sr. only assigns as error that the court erred in finding that the conditions set forth
in § 43-292(2) exist. He does not assign as error the court’s determination that the conditions set
forth in § 43-292(1) or (6) also exist. Because the court may terminate parental rights if it happens
that “one or more” of the conditions set forth in § 43-292 exist, and because the record supports
the court’s findings that the conditions set forth in § 43-292(1) and (6) are present, we need not
independently review Michael Sr.’s contention that the conditions set forth in § 43-292(2) do not
exist. See In re Interest of DeWayne G. & Devon G., 263 Neb. 43, 56, 638 N.W.2d 510, 520 (2002)
(“[h]aving determined the statutory ground enumerated in [another subsection of § 43-292] has
been proved, we do not consider issues relating to the sufficiency of the evidence concerning the
other statutory provisions identified by the trial court as grounds for termination”).
                             QUALIFIED EXPERT WITNESS TESTIMONY
        Michael Sr. next assigns that the county court erred by finding that the State had established
beyond a reasonable doubt through the use of a qualified expert witness that continued custody of
an Indian child by the parent is likely to result in serious emotional or physical damage to the child.
In furtherance of this assignment, Michael Sr. cites to Neb. Rev. Stat. § 43-1505(6) (Reissue 2016)
which provides:
        The court shall not order termination of parental rights under this section in the absence of
        a determination by the court, supported by evidence beyond a reasonable doubt, including
        testimony of qualified expert witnesses, that the continued custody of the child by the
        parent or Indian custodian is likely to result in serious emotional or physical damage to the
        child.




                                                 -5-
        Michael Sr. rightly asserts that this statute provides an additional element the State must
prove before terminating parental rights in cases involving Indian children. See In re Interest of
Walter W., 274 Neb. 859, 744 N.W.2d 55 (2008). That said, Michael Sr. incorrectly argues that
the expert’s testimony in this case must “provide a basis for any finding beyond a reasonable doubt
that [domestic violence and drug] problems exist and that it would place Michael at risk for serious
emotional or physical harm.” Brief for appellant at 17. Michael Sr.’s interpretation of § 43-1505(6)
was addressed in In re M.F., 290 Kan. 142, 225 P.3d 1177 (2010). In reviewing, the federal statute,
25 U.S.C. 1912(f), which contains language identical to § 43-1505(6), the Supreme Court of
Kansas wrote:
                The GAL also takes issue with the Court of Appeals’ statement that the qualified
        expert must “testify that evidence existed to support the State’s burden under the ICWA.”
        In re M.F., 41 Kan.App.2d at 935, 206 P.3d 57. The GAL interprets this statement to mean
        that a qualified expert must offer a specific opinion as to whether or not the State’s evidence
        meets the burden of proof. It seems, rather, that the Court of Appeals’ statement is merely
        a reiteration of the ICWA standard that a decision to terminate parental rights must be
        based on “evidence beyond a reasonable doubt, including testimony of qualified expert
        witnesses, that the continued custody of the child by the parent or Indian custodian is likely
        to result in serious emotional or physical damage to the child.” 25 U.S.C. § 1912(f). The
        expert need not opine on the ultimate issue of whether the State met its burden of proof.
        But the expert’s opinion must support the ultimate finding of the district court that
        continued custody by the parent will result in serious emotional or physical damage to the
        child. See, e.g., Marcia V., 201 P.3d at 506; Steven H. v. DES, 218 Ariz. 566, 572, 190 P.3d
        180 (2008); State ex rel. SOSCF v. Lucas, 177 Or.App. 318, 326, 33 P.3d 1001 (2001), rev.
        denied 333 Or. 567, 42 P.3d 1245 (2002).

In re M.F., 290 Kan. at 155-56, 225 P.3d at 1186. We, likewise, construe § 43-1505(6) to require
that the expert’s opinion must support the ultimate finding of the court, i.e. that continued custody
by the parent will likely result in serious emotional or physical damage to the child.
        In this case, the GAL documented serious and alarming instances of domestic abuse by
Michael Sr. toward Katie which led Katie to procure a protection order. Michael Sr. violated the
protection order by breaking into her home and was incarcerated for that violation. The GAL also
reported abusive behavior of Michael Sr. toward Michael Jr. and the record sufficiently documents
Michael Sr.’s issues with substance abuse. These allegations led to the State’s filing of a
§ 43-247(3)(a) petition seeking to adjudicate Michael Jr. as falling within the court’s jurisdiction.
Specifically, the State alleged Michael Sr.’s use of controlled substances, domestic violence, and
lack of stable housing placed Michael Jr. at risk of harm. In connection with a plea arrangement
relating to Michael’s violation of Katie’s protection order, Michael opted not to contest and
admitted the allegations in the petition, which allegations included “risk of harm” to Michael Jr.
The record at the termination hearing also contained testimony from Michael Sr.’s caseworkers
which documented his substance abuse problems, his periods of incarceration for unlawful
conduct, his lack of visitations with Michael Jr. after his removal, his defiance of the court in
connection with legal proceedings, his lack of participation in services offered by DHHS designed
to assist him, and his extensive criminal record.


                                                 -6-
         In connection with satisfying the requirements of § 43-1505(6), the State offered Stands’
testimony, qualified and unchallenged on the record as an Indian Child Welfare Act expert, who
testified that she had reviewed the case file and determined that, based upon unaddressed issues of
alcohol, drug abuse, and domestic violence, it was not safe for Michael Jr. to be placed with
Michael Sr. again. This clearly constituted testimony of support in connection with the ultimate
finding by the court that continued custody by Michael Sr. will likely result in serious emotional
or physical damage to Michael Jr. Michael Sr.’s argument is without merit.
                                           BEST INTERESTS
         Michael Sr. next argues that the court erred in finding that termination of his parental rights
was in the child’s best interest.
         A juvenile’s best interests is the primary consideration in determining whether parental
rights should be terminated; however, a parent’s interest in the accuracy and justice of the decision
is also a commanding one. Kenneth C. v. Lacie H., 286 Neb. 799, 839 N.W.2d 305 (2013). With
respect to the best interests of a juvenile in termination of parental rights proceedings “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.” In re
Interest of Athina W., 21 Neb. App. 624, 634, 842 N.W.2d 159, 166 (2014). A finding that
termination of parental rights is in the best interest of the child must be made by clear and
convincing evidence. In re Interest of Alec S., 294 Neb. 784, 884 N.W.2d 701 (2016).
         Courts presume that the best interests of a child are served by having a relationship with
his or her parent. In re Interest of Kendra M. et al., 283 Neb. 1014, 814 N.W.2d 747 (2012). Based
on the idea that fit parents act in the best interests of their children, this presumption is overcome
only when the State proves that the parent is unfit. Id. 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 has caused, or probably will result in,
detriment to a child’s well-being. Id.
         Michael Sr. claims that the court erred in finding that the child’s best interests are served
by terminating his parental rights. Because we concur with the court’s finding that custody of
Michael Jr. is likely to result in serious emotional and physical harm to Michael Jr., we reject
Michael Sr.’s claim. As we noted before, the GAL’s report provided alarming allegations of
domestic violence directed at Katie, substance abuse, and abusive behavior directed at Michael Jr.
These activities apparently resulted in Katie seeking and obtaining a protection order. In direct
defiance of that order, which appears to be a pattern with Michael Sr., he broke into Katie’s home
and was arrested for his violation. These same activities also led the State to file an adjudication
petition alleging that the use of controlled substances, domestic violence, and lack of stable
housing placed Michael Jr. at risk of harm. Michael Sr. did not contest these allegations, then did
little or nothing to reunify with Michael Jr. when provided the opportunity. The record contains
clear and convincing evidence that Michael Sr. is an unfit parent for Michael Jr. and it is in Michael
Jr.’s best interest that Michael Sr.’s parental rights are terminated.
         Michael Sr.’s letter to Michael Jr. provided some support to the claim that he should get
another chance. However, Michael Sr.’s actions have not demonstrated the commitment that must
accompany parenthood and that he promised in the letter. Instead, he has demonstrated repeatedly


                                                 -7-
that he is either incapable or unwilling to act as a reasonable parent. “Children cannot, and should
not, be suspended in foster care or be made to await uncertain parental maturity.” In re Interest of
Octavio B. et al., 290 Neb. 589, 600, 861 N.W.2d 415, 425 (2015). We cannot require the State to
keep Michael Jr. in foster care any longer to await the day when Michael Sr. might be fit to be a
father to him.
                                          CONCLUSION
          For the reasons discussed above, we affirm the order terminating Michael Sr.’s parental
rights.
                                                                                        AFFIRMED.




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