IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
IN RE INTEREST OF TRIP B.
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 TRIP B., A CHILD UNDER 18 YEARS OF AGE.
STATE OF NEBRASKA, APPELLEE,
V.
KRISTOPHER B., APPELLANT.
Filed May 16, 2017. No. A-16-903.
Appeal from the Separate Juvenile Court of Douglas County: WADIE THOMAS, Judge.
Affirmed.
William R. Harris for appellant.
Donald W. Kleine, Douglas County Attorney, and Jennifer C. Clark for appellee.
INBODY, RIEDMANN, and ARTERBURN, Judges.
INBODY, Judge.
INTRODUCTION
Kristopher B., biological father of Trip B., appeals the order of the Douglas County
Separate Juvenile Court terminating his parental rights. For the reasons set forth herein, we affirm.
STATEMENT OF FACTS
On June 13, 2014, the State filed a supplemental petition alleging Trip came within the
meaning of Neb. Rev. Stat. § 43-247(3)(a) (Supp. 2013), in that he lacked proper parental care by
reason of Kristopher being incarcerated due to methamphetamine possession, Kristopher’s use of
alcohol and controlled substances, and Kristopher’s inability to provide proper parental care. The
State also filed an ex parte motion for temporary custody of Trip to be placed with the Department
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of Health and Human Services (DHHS). The same day, the court ordered placement of Trip to be
placed with DHHS and to exclude the home of Kristopher. Kristopher later admitted to being
incarcerated due to possession of methamphetamine, being unable to provide proper parental care,
and that Trip was at risk for harm.
On September 18, 2014, the court determined Trip was within the meaning of
§ 43-247(3)(a) and that it was in Trip’s best interests to remain in the temporary care of DHHS.
The court ordered Kristopher to have supervised visitation with Trip, to undergo a chemical
dependency evaluation, to maintain safe and adequate housing and a legal source of income, to not
use drugs and alcohol, and to submit to random urinalysis testing.
On February 8, 2016, the State filed a second motion for termination of Kristopher’s
parental rights pursuant to Neb. Rev. Stat. § 43-292(2), (6), and (7) (Reissue 2016), and alleging
that termination was in Trip’s best interests. The trial on the motion for termination of Kristopher’s
parental rights was held on August 31.
Kylie Schmitz, who worked as a family permanency specialist for Kristopher from
September 2015 to July 2016, testified at trial. Schmitz testified that Trip was in foster care
beginning in June 2014, and remained in foster care the entire time she had the case. Schmitz stated
Trip was initially removed in June 2014 because of concerns for Trip being left alone in the care
of a known drug user, Trip not receiving adequate nutrition, and drug use. When Schmitz took
over the case, Kristopher was ordered to participate in substance abuse treatment, comply with
urinalysis, supervised visitation, obtain safe and adequate housing, and obtain and maintain a legal
source of income.
As of September 2015, Kristopher had worked with two substance abuse treatment
programs, but had been unsuccessfully discharged from both. In October or November 2015,
Schmitz met with Kristopher regarding the court-ordered participation in a substance abuse
treatment program and, afterward, provided him with a list of providers for Kristopher to call and
set up an evaluation. Kristopher failed to attend two evaluations. However, in May 2016,
Kristopher informed Schmitz he had a chemical dependency evaluation set up and Schmitz assisted
in assuring a payment source was available for Kristopher. Schmitz received a verification that
Kristopher completed the evaluation. Following the evaluation, Schmitz met with Kristopher about
the recommendations from the evaluation, which recommendations included Kristopher attending
outpatient treatment. Schmitz went over some service providers for Kristopher to attend outpatient
treatment and Kristopher stated he was going to contact the service providers given to him by
Schmitz. In May 2016, Kristopher began outpatient treatment with Heartland.
While Schmitz was the case worker, Kristopher was not consistent with urinalysis testing,
as he frequently missed tests, requested to redo a missed test about three times, and there were
concerns of diluted tests. In November 2015, Kristopher informed Schmitz he was living in an
apartment, but when Schmitz volunteered to do a walkthrough, Kristopher informed her that the
landlord did not allow children there because of sex offenders living in the vicinity. However, in
March 2016, and again in April, Kristopher moved and Schmitz was able to do a walkthrough of
the residences and determined they were appropriate residences.
In November 2015, Kristopher informed Schmitz he was working construction, but not on
a payroll and was receiving pay under the table. However, in April or May 2016, Kristopher told
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Schmitz he was working for Aardvark Moving. Kristopher provided Schmitz a business card to
contact Aardvark Moving, but Schmitz was never able to speak to anyone to verify employment.
Throughout the entirety of Schmitz’s responsibility as case manager, Kristopher had supervised
visitation with Trip twice per week. However, Kristopher would sporadically miss visits with Trip.
Schmitz scheduled a family team meeting every month she had the case and Kristopher attended
three of the eight or nine meetings he should have attended.
At trial, Schmitz opined her belief that Kristopher had not made progress to alleviate the
initial concerns of why Trip was initially removed from the home because of multiple positive
urinalysis for methamphetamine, noncompliance with treatment, and concerns documented in
visitation reports. Schmitz stated that in January 2016, Kristopher informed her of his
methamphetamine use. Schmitz also stated that Kristopher tested positive for methamphetamine
in March and for alcohol in June. Schmitz stated her belief that Kristopher had not made any
progress to reunify with Trip. Schmitz recommended that Kristopher’s parental rights should be
terminated because of the “lack of progress in alleviating the original threat that resulted in
removal, as well as the lack of progress in complying with the case plan goals and court orders,”
in addition to the lack of income verification and the inability for Kristopher to house Trip with
him. Schmitz believed it was in Trip’s best interests for the termination of Kristopher’s parental
rights because she did not believe Trip would be physically or emotionally safe if returned to the
home.
Crystal Hins, who worked as a family permanency specialist for Kristopher from July 2016
to the date of trial, also testified. Hins met with Kristopher initially when she first took over the
case, but indicated she was not able to meet with him since she saw him in court in August 2016.
Hins stated she called Kristopher once a week in August, but was not able to contact him. Hins
testified Kristopher contacted her multiple times through text messaging, regarding help with
housing and to reschedule missed urinalysis tests. Kristopher also told Hins that he was staying at
Motel 89; however, when Hins contacted Motel 89, she was told there was no room under
Kristopher’s name. Hins stated she is providing visitation and urinalysis, but has been unable to
confirm whether Kristopher is in any treatment or receive confirmation of his employment.
Following the hearing, the court determined that the State established that Trip was within
the meaning of § 43-292(2), (6), and (7) by clear and convincing evidence and that it was in Trip’s
best interests that Kristopher’s parental rights be terminated. Consequently, the court ordered that
Kristopher’s parental rights to Trip be terminated. Kristopher has timely appealed to this court.
ASSIGNMENTS OF ERROR
Kristopher’s brief does not contain a separate section for assignments of error and does not
set forth separately numbered assignments of error as required by Neb. Ct. R. App. P.
§ 2-109(D)(1) (rev. 2014). Rather, his brief includes a statement in the nature of the case section
and headings for each of the arguments indicating what the district court “incorrectly found”
regarding Trip being within the meaning of § 43-292(2), (6), and (7), and in finding that
terminating Kristopher’s parental rights were in Trip’s best interests.
The Nebraska Supreme Court has repeatedly emphasized that Neb. Ct. R. App. P.
§ 2-109(D)(1) requires a party to set forth assignments of error in a separate section of the brief,
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with an appropriate heading, following the statement of the case and preceding the propositions of
law, and to include in the assignment of errors section a separate and concise statement of each
error the party contends was made by the trial court. See, In re Interest of Samantha L. & Jasmine
L., 286 Neb. 778, 839 N.W.2d 265 (2013); In re Interest of Jamyia M., 281 Neb. 964, 800 N.W.2d
259 (2011). The Court has also emphasized that “headings in the argument section of a brief do
not satisfy the requirements of Neb. Ct. R. App. P. § 2-109(D)(1).” In re Interest of Samantha L.
& Jasmine L., 286 Neb. at 783, 839 N.W.2d at 269-70. See, also, In re Interest of Jamyia M.,
supra.
When the brief of a party fails to comply with the mandate of Neb. Ct. R. App. P.
§ 2-109(D)(1)(e), we may proceed as though the party failed to file a brief, or alternatively, may
examine the proceedings for plain error. In re Interest of Samantha L. & Jasmine L., supra. Thus,
we proceed to examine this appeal for plain error. Plain error is error plainly evident from the
record and of such a nature that to leave it uncorrected would result in damage to the integrity,
reputation, or fairness of the judicial process. Id.
ANALYSIS
TERMINATION PURSUANT TO STATUTORY GROUNDS
The district court found that the State proved, by clear and convincing evidence, that
termination of Kristopher’s parental rights pursuant to § 43-292(2), (6), and (7), was in Trip’s best
interests. Section 43-292 provides, in pertinent part:
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 interests of the juvenile and it appears by the evidence that one or more of the
following conditions exist:
....
(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 as described in subdivision
(3)(a) of section 43-247, reasonable efforts to preserve and reunify the family if required
under section 43-283.01, under the direction of the court, have failed to correct the
conditions leading to the determination;
(7) The juvenile has been in an out-of-home placement for fifteen or more months
of the most recent twenty-two months[.]
The record indicates that Trip was placed in foster care and in the temporary custody of
DHHS pursuant to a court order on June 13, 2014, and that Trip had been in an out-of-home
placement between that date and the February 8, 2016, filing of the second motion to terminate
parental rights. As of the filing of the second motion to terminate Kristopher’s parental rights, Trip
had been in out-of-home placement for at least 19 consecutive months. By the time the termination
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hearing was held on August 31, 2016, Trip had been placed out of Kristopher’s home for at least
26 months.
The State proved the out-of-home placement for 15 or more months of the most recent 22
months by clear and convincing evidence. If an appellate court determines 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 Jagger L., 270 Neb. 828, 708
N.W.2d 802 (2006).
Therefore, we need not further address the sufficiency of the evidence to support
termination under either § 43-292(2) or (6), although we note the evidence offered by the State to
prove these statutory grounds will be relevant in considering whether terminating Kristopher’s
parental rights is in Trip’s best interests.
BEST INTERESTS
Next, we consider whether termination of Kristopher’s parental rights is in Trip’s best
interests.
A child’s best interests are presumed to be served by having a relationship with his or her
parent. In re Interest of Isabel P. et al., 293 Neb. 62, 875 N.W.2d 848 (2016). This presumption is
overcome only when the State has proved that the parent is unfit. Id. In the context of the
constitutionally protected relationship between a parent and a child, 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. 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.
It is well established that 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 Aaron D., 269 Neb. 249, 691 N.W.2d 164 (2005); In re Interest of Eden K.
& Allison L., 14 Neb. App. 867, 717 N.W.2d 507 (2006). 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 children based on those
circumstances. In re Interest of Sir Messiah T. et al., 279 Neb. 900, 782 N.W.2d 320 (2010). A
parent’s interest in the accuracy and justice of the decision to terminate his or her parental rights
is a commanding one. In re Interest of Aaron D., supra; In re Interest of Eden K. & Allison L.,
supra. Before parental rights may be terminated, the evidence must clearly and convincingly
establish the existence of one or more of the statutory grounds permitting termination and that
termination is in the juvenile’s best interests. In re Interest of Aaron D., supra; In re Interest of
Eden K. & Allison L., supra.
In this instance, the evidence showed that Kristopher had been unsuccessfully discharged
from two substance abuse treatment programs, was inconsistent with urinalysis testing, tested
positive for use of methamphetamine, alcohol, and marijuana, and admitted to using
methamphetamine. Moreover, Kristopher could not provide proof of his employment and was
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unable to progress beyond supervised visitation with Trip. Based on Schmitz’s testimony, it
appears Kristopher made little progress in alleviating the initial concerns causing the need for Trip
to be placed outside the home, particularly with noncompliance or nonattendance with urinalysis,
supervised visits, or family team meetings. Kristopher’s behaviors indicate an inability to provide
sustained structure, stability, and restraint. Trip has been in out-of-home placement for at least 19
consecutive months, and Kristopher has failed to correct the conditions leading to the
determination that Trip lacked proper parental care by reason of Kristopher’s faults or habits. It is
apparent that Kristopher is no closer to being in a position to parent Trip than he was at the time
of the Trip’s removal. Trip cannot, and should not, be suspended in foster care or be made to await
uncertain parental maturity. See In re Interest of Eden K. & Allison L., supra.
In sum, we conclude the evidence establishes that Kristopher is unfit in that he displays
personal deficiencies or incapacities which have prevented him from parenting his child and which
have caused detriment to his child’s well-being. We conclude the juvenile court did not commit
plain error in finding there was clear and convincing evidence that termination of Kristopher’s
parental rights was in Trip’s best interests.
CONCLUSION
For the foregoing reasons, we affirm the juvenile court’s order terminating Kristopher’s
parental rights to Trip.
AFFIRMED.
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