IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
IN RE INTEREST OF ELI 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 ELI S., A CHILD UNDER 18 YEARS OF AGE.
STATE OF NEBRASKA, APPELLEE,
V.
TAMMY S., APPELLANT.
Filed December 3, 2013. No. A-13-331.
Appeal from the Separate Juvenile Court of Lancaster County: REGGIE L. RYDER, Judge.
Affirmed.
Brittani Lewit and Mark T. Bestul, of Legal Aid of Nebraska, for appellant.
Alicia B. Henderson, Chief Deputy Lancaster County Attorney, Maureen Lamski, and
Amy Clemens, Senior Certified Law Student, for appellee.
Julianne M. Spatz, guardian ad litem.
IRWIN, PIRTLE, and BISHOP, Judges.
PIRTLE, Judge.
INTRODUCTION
Tammy S. appeals from an order of the juvenile court for Lancaster County terminating
her parental rights to her minor child, Eli S. Tammy challenges the statutory ground for
termination, as well as the juvenile court’s finding that termination of her parental rights is in the
child’s best interests. Based on our de novo review of the record, we affirm the juvenile court’s
order.
BACKGROUND
Tammy and Daniel B. are the parents of Eli, born in August 2012. On August 29, the
State filed a second amended petition which included a request to adjudicate Eli, a motion to
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terminate Tammy’s parental rights, and a motion requesting the court to find that reasonable
efforts to reunify were not required. The petition alleged that Tammy has other children, Jay S.
and Paige B., who were previously adjudicated and placed outside of her home; a plan to correct
the issues that led to the adjudication was developed and adopted by the court; Tammy failed to
correct the conditions that led to the adjudications of Paige and Jay; and an order was entered
terminating Tammy’s parental rights to Paige and Jay. The petition further alleged that Tammy
had failed to correct the issues that led to the original adjudication and termination of her
parental rights to Paige and Jay, thereby placing Eli at risk of harm.
In regard to the motion to terminate, the second amended petition alleged that Tammy
had substantially and continuously or repeatedly neglected one or more siblings of Eli and
refused to give them necessary parental care and protection. It further alleged that termination of
Tammy’s parental rights was in Eli’s best interests.
The State also filed an ex parte motion requesting that the Nebraska Department of
Health and Human Services (the Department) be given emergency custody of Eli. The juvenile
court granted the motion and placed Eli in the temporary custody of the Department. At the time
of trial, he remained in the Department’s custody.
Tammy’s parental rights to Jay and Paige were terminated in March 2011 based on
Tammy’s failure to take steps to protect her children from threats and domestic violence from
Daniel, which caused physical injury to Tammy and which at times occurred in Jay’s and Paige’s
presence. Daniel is Paige’s biological father, but he is not Jay’s father. The juvenile court
terminated Tammy’s rights to Jay and Paige based on Neb. Rev. Stat. § 43-292(2), (6), and (7)
(Cum. Supp. 2012) and a finding that termination was in their best interests. This court upheld
the termination of Tammy’s parental rights to Jay and Paige. See In re Interest of Jay S. & Paige
B., No. A-11-282, 2011 WL 5433695 (Neb. App. Nov. 8, 2011) (selected for posting to court
Web site).
From the beginning to the end of the case involving Jay and Paige, Tammy consistently
denied any physical abuse by Daniel, despite evidence to the contrary. She also maintained this
position despite Jay’s therapist testifying that Jay told him he had witnessed domestic violence.
Jay’s therapist also testified that Jay’s defiance issues, aggressive behaviors, and anger problems
are consistent with someone who has been exposed to multiple incidents of domestic violence.
Tammy was aware that Daniel had a history of assaultive behavior toward individuals in addition
to Tammy. His behavior included assaulting his 14-year-old sister. Although Tammy claimed at
the termination trial regarding Jay and Paige that the romantic relationship with Daniel had
ended, she testified that they were still friends and that the breakup occurred because Daniel was
unfaithful to her, not because of his behavior or because she recognized that he was a risk to her
children. The juvenile court stated in the prior termination order that the problem has always
been that Tammy does not recognize that Daniel is a danger to herself and her children.
On October 12, 2012, the court ordered that the Department was not required to make
reasonable efforts to preserve and reunify Tammy and Eli pursuant to Neb. Rev. Stat.
§ 43-283.01(4)(c) (Cum. Supp. 2012), because Tammy had previously had her parental rights
terminated involuntarily to a sibling of Eli’s.
Trial was held on February 26 and March 29, 2013, on the second amended petition to
adjudicate and motion for termination. A copy of all the court filings in the case involving Jay
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and Paige was entered into evidence. A copy of the juvenile court’s order terminating Tammy’s
parental rights to Jay and Paige, and a copy of this court’s opinion affirming the juvenile court’s
order, were also entered into evidence.
David Bruno, an initial assessment worker with the Department, testified that Daniel was
present at the hospital with Tammy when he went to inform Tammy that a temporary custody
order for Eli had been entered. Daniel was also present when Eli was born.
Bruno testified that he conducted an initial assessment with Tammy in September 2012.
Tammy told Bruno that she and Daniel are friends and that they talk on the telephone. She also
told him that Daniel may have stayed a weekend with her, but that they were not living together.
Tammy denied any sexual encounters with Daniel since Eli was conceived.
Tammy indicated to Bruno that she believes Daniel is a completely different person than
he was in the past and that people often misunderstand him because he can be very loud and
intimidating. She continued to maintain that Daniel never physically assaulted or verbally
threatened her.
Bruno testified that there was no indication of domestic abuse between Tammy and
Daniel since the termination trial involving Jay and Paige. Bruno testified that there were reports
that Daniel was involved in instances of domestic violence with other women between 2010 and
2012. However, the Department was unable to conduct a further investigation of these reports
because Daniel refused to participate in the initial assessment with Bruno. Bruno did have
several telephone conversations with Daniel. Bruno asked him if he had done anything to change
his lifestyle since the termination involving Jay and Paige. Daniel responded that he did not need
to change anything about himself, that “he was perfect the way he was.”
Bruno testified that in June 2011, Daniel had participated in an initial assessment with
respect to another juvenile case. In that assessment, Daniel indicated to Bruno that he uses
marijuana on a daily basis and that he does not see anything wrong with using marijuana. He
indicated he has never sought treatment for his frequent use of marijuana and does not feel he
needs any treatment. Daniel also told Bruno at the time of the June 2011 assessment that he has
never been the perpetrator of any domestic violence and specifically denied any domestic
violence against Tammy. Bruno also asked Daniel about his lengthy criminal history, and Daniel
denied committing any of the crimes, claiming that he was wrongfully convicted.
Lauren Hiller, the caseworker assigned after Bruno concluded the initial assessment in
September 2012, testified as to why Jay and Paige’s case is relevant to Eli’s case. She testified
that there were safety concerns involving Daniel in Jay and Paige’s case. She testified that there
was no evidence of any change in the conditions that led to Jay and Paige’s adjudication, thereby
resulting in the same safety concerns for Eli. Hiller also testified that Tammy’s continued denial
of being the victim of domestic violence perpetrated by Daniel was also a safety concern for Eli.
She explained that if Eli was placed in Tammy’s care, he would be put in the same situation as
Jay and Paige had been. Hiller was aware that Jay had behavioral and cognitive problems as a
result of being exposed to domestic violence.
Hiller testified that it would be in Eli’s best interests to terminate Tammy’s parental
rights. Her opinion was based on Tammy’s history with her other children and the fact that the
services offered in Jay and Paige’s case were unsuccessful and any services offered in the
present case would be the same services offered again. She testified that Tammy continues to
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deny being the victim of domestic violence and Daniel continues to deny being the perpetrator of
domestic violence and that therefore, the problem cannot be addressed until the parents
acknowledge the problem. Hiller testified that she did not see any change in Tammy’s
circumstances since the termination of her rights to Jay and Paige.
Tammy testified that she has known Daniel since 1999 and had a romantic relationship
with him between 2003 and 2010. She stated that after their romantic relationship ended in 2010,
she had one intimate encounter with Daniel in approximately November 2011, resulting in her
pregnancy with Eli. She has not lived with Daniel since May 2009. She testified that she and
Daniel continue to be friends and always will be. She testified that she talks to him on the
telephone once or twice per week. Tammy stated that she often talks to Daniel when she is upset
about losing her children. She admitted that she uses Daniel as a support system when she is
feeling down or needs comfort.
When asked if Daniel has been abusive to her in the past, Tammy responded that she and
Daniel have maybe been verbally abusive to each other, but that it has never been physical.
Tammy stated that she does not believe Daniel poses any danger to Eli because she has never
seen him mistreat a child. She further testified that she does not see Daniel as being a danger to
any of her children and praised Daniel for helping parent Jay, who is not his biological child. She
stated that “[Daniel] always put the kids’ needs in front of him[self]. . . . He provided a . . . safe
home.”
Tammy testified that there have been no instances of abuse or domestic violence with
Daniel or with anyone else between March 2011, when her rights to Paige and Jay were
terminated, and the termination trial at issue.
She stated that if Eli were returned to her, she would want Daniel to be in his life, but that
there are issues that he needs to work on, like his temper. She then went on to say that everyone
has a temper, including herself, and that Daniel’s has never gotten out of control to where it hurt
the children.
Daniel testified that his relationship with Tammy at the time of trial was the same as it
has always been since he first met her--she is a friend and someone he can talk to. He testified
that having Jay and Paige taken away has brought them closer together. Daniel also stated that if
Eli had not been removed from Tammy’s care, he would be living with Tammy and Eli. When
asked when his last sexual encounter with Tammy had been, he stated that he wished it had been
recently and was hoping it would be soon.
Daniel testified that he does not have a substance abuse problem. He also testified that he
attended a substance abuse class at some point after March 2011 as a result of being charged
with possession of marijuana. He testified that he had recently been charged with marijuana
possession again and was going to repeat the substance abuse class so he could keep his driver’s
license. He testified that he has not gone to any therapy and has not gone to any batterer’s
intervention courses since the prior termination. He admitted to using physical violence against a
woman one time, about 15 years before trial. He testified, however, that he only swung at the
woman and did not strike her.
The evidence also showed that since October 2012, Tammy had been letting Daniel drive
a car that she initially purchased in 2008 for Jay and Daniel to work on and fix up together.
Daniel began driving Tammy’s car when his car broke down and he needed a vehicle. Tammy
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was not using the car she bought for Jay, because she had another car she drove. Tammy had
been registering and insuring the car bought for Jay since 2010. Tammy and Daniel both testified
that the insurance for the car is still in Tammy’s name, but that Daniel pays for it, if he has the
money to do so. Tammy testified that Daniel is going to buy the car from her for $300, but
believes she could sell it to someone else for more money.
There was also evidence that in February 2012, Tammy was invited by Jay’s foster
parents to meet them for a visit with Jay on his birthday. Tammy contacted Daniel and told him
she was going to see Jay, including when and where she was meeting him. As a result, Daniel
showed up at the location of the visit.
Following trial, the juvenile court entered an order adjudicating Eli and terminating
Tammy’s parental rights. The court found that grounds for termination pursuant to § 43-292(2)
existed and that terminating Tammy’s parental rights was in Eli’s best interests.
ASSIGNMENTS OF ERROR
Tammy assigns the juvenile court erred in (1) finding that grounds for termination existed
under § 43-292(2) and (2) finding that terminating her parental rights was in Eli’s best interests.
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 Candice H., 284 Neb.
935, 824 N.W.2d 34 (2012).
ANALYSIS
Statutory Grounds.
The juvenile court found that the State proved grounds for termination of Tammy’s
parental rights to Eli under § 43-292(2). In order to terminate an individual’s parental rights, the
State must prove by clear and convincing evidence that one of the statutory grounds enumerated
in § 43-292 exists and that termination is in the child’s best interests. In re Interest of Kendra M.
et al., 283 Neb. 1014, 814 N.W.2d 747 (2012). Clear and convincing evidence is that amount of
evidence which produces in the trier of fact a firm belief or conviction about the existence of the
fact to be proved. In re Interest of Leland B., 19 Neb. App. 17, 797 N.W.2d 282 (2011).
Tammy assigns that the juvenile court erred in finding that grounds to terminate existed
under § 43-292(2), because it relied entirely on facts from the previous case involving Jay and
Paige and it failed to consider her present circumstances. Under § 43-292(2), grounds for
termination exist when the parent has “substantially and continuously or repeatedly neglected
and refused to give the juvenile or a sibling of the juvenile necessary parental care and
protection.” Tammy argues that § 43-292(2) should not be interpreted to allow the State to
terminate parental rights based solely upon a finding that a parent has previously neglected and
refused to care for a sibling.
The Supreme Court previously addressed this same argument in In re Interest of Sir
Messiah T. et al., 279 Neb. 900, 782 N.W.2d 320 (2010). In that case, the mother argued that
§ 43-292(2) was unconstitutional because it allowed the State to terminate parental rights based
solely upon a finding that a parent has previously neglected and refused to care for a sibling. The
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Supreme Court determined that the mother misunderstood § 43-292(2) and rejected her
argument:
By its terms, § 43-292 requires a showing of best interests plus 1 of the 11
statutory bases for termination. See In re Interest of Walter W., 274 Neb. 859, 744
N.W.2d 55 (2008). Section 43-292(2) involves the neglect of the child or a sibling of the
child at issue. [Section] 43-292(2) does not dictate that whenever a parent has neglected a
sibling in the past, parental rights to any future children will automatically be terminated
without giving the parent an opportunity to present evidence of current circumstances.
Instead, the statute as a whole states that prior neglect can be a basis for termination only
in conjunction with proof by the State which establishes that termination is in the best
interests of the minor children involved in the current proceedings. Indeed, as we have
emphasized, and we take this opportunity to repeat, a juvenile’s best interests are a
primary consideration in determining whether parental rights should be terminated as
authorized by the Nebraska Juvenile Code. In re Interest of DeWayne G., 263 Neb. 43,
638 N.W.2d 510 (2002).
In re Interest of Sir Messiah T. et al., 279 Neb. at 907, 782 N.W.2d at 327.
In summary, the court in In re Interest of Sir Messiah T. et al., supra, held that contrary
to the parent’s understanding of § 43-292(2), this subsection does not allow a juvenile court to
terminate parental rights based solely on the parent’s past neglect of a sibling. Proof of best
interests is also required before termination can occur.
Therefore, in the present case, the juvenile court had to determine whether the State
proved by clear and convincing evidence that the statutory ground set forth in subsection (2) of
§ 43-292 existed. This required the State to show that Tammy had neglected Eli or a sibling of
Eli’s in the past. At trial, the State presented sufficient evidence to show that Tammy’s parental
rights to Jay and Paige were terminated by reason of neglect. Accordingly, we conclude that
there was clear and convincing evidence to warrant a finding that grounds for termination
pursuant to § 43-292(2) existed. The juvenile court did not err in making this finding.
Best Interests.
Because the State met its burden with respect to neglect under § 43-292(2), we next
consider whether the State established by clear and convincing evidence that termination was in
Eli’s best interests. In deciding best interests, the court is obligated to review the evidence
presented by all parties relative to the parent’s current circumstances and determine if
termination is in the best interests of the minor children based on those circumstances. In re
Interest of Sir Messiah T. et al., supra.
Tammy argues that she has improved her circumstances since the termination of her
rights to Jay and Paige and that her current circumstances show that it is not in Eli’s best interests
to terminate her parental rights. She contends that she has removed the threat to Eli’s safety as
evidenced by no incidents of domestic violence since 2011; no romantic relationship with Daniel
since 2009; and her willingness to do whatever it takes to prevent losing her parenting rights,
including protecting Eli from Daniel.
Tammy contends that she has removed the threat to Eli’s safety for the reasons set forth
above. However, Tammy continues to maintain a relationship with Daniel. She has made this
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choice despite the fact that her parental rights to Jay and Paige were terminated and Eli was
removed from her care as a result of her relationship with Daniel. Jay and Paige were removed
from Tammy’s care based on the domestic abuse between Tammy and Daniel and Tammy’s
failure to protect her children. After their removal, Tammy would not admit to any physical
abuse by Daniel and refused to keep her children safe from Daniel. As a result, Tammy’s rights
to Jay and Paige were terminated.
Following the termination of her rights to Jay and Paige in March 2011, Tammy
continued to have a relationship with Daniel and had at least one sexual encounter with him,
resulting in her pregnancy with Eli. Eli was born in August 2012, about 17 months after
Tammy’s rights to Jay and Paige were terminated. Eli was removed from Tammy’s care 1 day
after his birth, based on the prior termination and her continued involvement with Daniel. After
Eli was removed, Tammy still did not distance herself from Daniel. Rather, she testified that she
and Daniel continue to be friends and always will be. She talks to him on a weekly basis, and
even uses him as a support system when she is depressed and needs someone to talk to. She also
gave him a car to drive when his broke down. At the time of trial, Tammy was still insuring the
car and she had plans to sell it to Daniel.
Although Tammy claims that she and Daniel are no longer romantically involved, there is
ample evidence that Daniel is still involved in Tammy’s life on a regular basis, thereby resulting
in the same safety concerns for Eli that existed for Jay and Paige.
The evidence at trial also showed that Tammy continues to deny any physical abuse by
Daniel. Tammy testified that she does not believe Daniel poses any danger to Eli or that he has
ever been a danger to any of her children. She even praised Daniel for parenting Jay, because he
was not Daniel’s biological child, and testified that Daniel provided a safe home. She says she
would protect Eli from Daniel if she had custody, yet as previously stated, she does not believe
Daniel is a danger to Eli. She does not recognize or understand the problem that Daniel posed to
Jay and Paige and is therefore unable to protect Eli from the same danger.
Tammy also told Bruno that Daniel is a completely different person since the termination
of her parental rights to Jay and Paige. Again, she makes this statement while continuing to deny
any physical abuse. The evidence shows that Daniel has not changed. Daniel continues to deny
any physical abuse to Tammy and indicated that he does not need to change anything about
himself. He has not attended any therapy sessions and has not attended any batterer’s
intervention courses. He also admits to regular marijuana use, which he does not see as a
substance abuse issue.
Although Tammy claims that her circumstances have changed since the termination of
her parental rights to Jay and Paige, there is little evidence to support that claim. Tammy’s
parental rights to Jay and Paige were terminated based on Tammy’s refusal to admit to domestic
abuse by Daniel and her failure to protect her children from Daniel. In the present case, Tammy
continues to deny any physical abuse by Daniel and continues to have a relationship with Daniel.
Tammy has failed to address the issues that were unresolved at the time of the prior termination.
She is essentially in the same position as she was at the time of the last termination trial. We
conclude the State provided clear and convincing evidence that terminating Tammy’s parental
rights was in Eli’s best interests.
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CONCLUSION
Based on our de novo review of the record, we conclude that the juvenile court did not err
in terminating Tammy’s parental rights to Eli. The order of the juvenile court terminating
Tammy’s parental rights is affirmed.
AFFIRMED.
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