Benjamin S. v. Crystal S.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/17/2023 09:04 AM CDT

- 799 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
BENJAMIN S. V. CRYSTAL S.
Cite as 313 Neb. 799

Benjamin S., appellee, v.
Crystal S., appellant.
___ N.W.2d ___

Filed March 17, 2023. No. S-22-123.

1. Parental Rights: Judgments: Appeal and Error. Termination of
parental rights cases raised under Neb. Rev. Stat. § 42-364(5) (Cum.
Supp. 2022) are reviewed de novo on the record, and an appellate
court is required to reach a conclusion independent of the lower
court’s findings.
2. Evidence: Appeal and Error. When the evidence is in conflict, the
appellate court will consider and give weight to the fact that the lower
court observed the witnesses and accepted one version of the facts over
the other.
3. Parental Rights. Whereas statutory grounds are based on a parent’s past
conduct, the best interests inquiry focuses on the future well-being of
the child.
4. Parental Rights: Presumptions. There is a rebuttable presumption
that it is in the child’s best interests to share a relationship with his or
her parent.
5. Parental Rights: Words and Phrases. Parental unfitness means a
personal deficiency or incapacity that has prevented, or will probably
prevent, performance of a reasonable parental obligation in child rear-
ing and that has caused, or probably will result in, detriment to a child’s
well-being.

Appeal from the District Court for Cheyenne County:
Randin R. Roland, County Judge. Reversed and remanded
for further proceedings.
Michael D. Samuelson, of Reynolds, Korth & Samuelson,
P.C., L.L.O., for appellant.
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
BENJAMIN S. V. CRYSTAL S.
Cite as 313 Neb. 799

Sterling T. Huff, P.C., L.L.O., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
Benjamin S. filed a motion asking that the parental rights
of Crystal S., his ex-wife, be terminated. Following a trial,
the district court terminated Crystal’s parental rights. Crystal
appeals. Because we find that the record does not contain clear
and convincing evidence that termination of Crystal’s parental
rights is in the children’s best interests, we reverse the order of
termination and remand the cause for further proceedings.
BACKGROUND
Dissolution Decree.
Benjamin and Crystal have three children, born in 2011,
2012, and 2014, respectively. Benjamin and Crystal married
in 2014, and Benjamin filed for dissolution the following year.
The district court entered the dissolution decree on September
21, 2015.
The decree awarded Benjamin full legal and physical cus-
tody of the children. Crystal received parenting time under the
decree every Wednesday evening and every other Saturday.
The decree required Crystal’s visits to be supervised and
ordered that they would remain supervised until Crystal pro-
vided the district court with an affidavit and treatment plan
from a mental health provider stating that Crystal was not a
threat to herself or her children and that she was completing
a program to address drug and alcohol addiction.
The decree also required Crystal to be sober during visita-
tion with the children and to abstain from consuming drugs or
alcohol beforehand. It ordered the parties to “use those fam-
ily members that have been willing to assist in supervision of
this parenting time since the entry of the temporary orders in
this matter. This would include [Crystal’s uncle], as long as he
is willing to so supervise the parenting time.”
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
BENJAMIN S. V. CRYSTAL S.
Cite as 313 Neb. 799

The decree also awarded Crystal telephonic parenting time
during designated timeframes for 3 hours a week, total. It
ordered Crystal to place the call and Benjamin or the children
to answer it.
The decree required each parent to inform the other of the
children’s extracurricular activities so that each could par-
ticipate, where possible and appropriate, and each parent was
given the right to attend school functions. The decree required
each party to execute any documents needed to give the other
parent access to school records.
The decree further ordered Crystal to pay Benjamin child
support of $764 per month; 50 percent of any childcare
expenses resulting from Benjamin’s employment, training, or
education; and 50 percent of medical and/or dental expenses
in excess of $480 per year per child not paid by insurance.
Regarding child support, the decree provided that Crystal’s
income from all sources was immediately subject to statutory
withholding. It directed child support payments to be made
to the Nebraska Child Support Payment Center and payments
for medical or childcare expenses to be made to the person
demanding reimbursement or, for unpaid bills, the provider of
the services.
Requests for Modification and Termination
of Parental Rights.
Neither party made any additional filings in the matter until
August 11, 2020. On that date, Crystal, representing herself,
filed a form complaint for modification of custody or parent-
ing plan. In a handwritten attachment to the form complaint,
she asserted that she desired to be a part of her children’s
lives, but that Benjamin was preventing her from doing so by
not following aspects of the dissolution decree. In particular,
she asserted that she had not been able to visit the children
since January 2016. Crystal alleged that Benjamin had not
allowed her to have in-person parenting time, communication
with the children, or information about them, as ordered by
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
BENJAMIN S. V. CRYSTAL S.
Cite as 313 Neb. 799

the decree. Crystal alleged that Benjamin had conditioned her
communication with the children on sexual favors and had
blocked her calls when she refused to provide those favors.
She admitted to past mistakes, but claimed that she had been
“clean” for 1 year, that she had completed classes required
by the decree, and that she was attending intensive outpatient
counseling. She stated that she was presently living in a half-
way house in Colorado, but would soon be moving to Sidney,
Nebraska, where the children resided with Benjamin. Crystal
requested that the court order telephonic video chats with the
children during the time she remained at the Colorado half-
way house.
On October 16, 2020, Benjamin filed a responsive plead-
ing. Generally, he denied Crystal’s allegations that he had not
complied with the decree. He asked the district court to modify
the decree to require Crystal to disclose her criminal history, to
provide records related to her mental health and any drug and
alcohol counseling, and to require that Crystal’s parenting time
be “integrated through a licensed mental health practitioner.”
In the alternative, Benjamin requested termination of Crystal’s
parental rights, pursuant to Neb. Rev. Stat. § 42-364(5) (Cum.
Supp. 2022).
A trial on the issue of whether Crystal’s parental rights should
be terminated was held in the district court in December 2021.

Evidence at Trial.
At trial, both parties were represented by counsel, and
Crystal had a guardian ad litem. The State was notified of the
proceeding but did not participate. Only three witnesses testi-
fied at trial: Crystal, Benjamin, and Crystal’s mother.
Crystal testified that when she lost custody of her chil-
dren as a result of the September 2015 dissolution decree,
“[her] life fell apart.” On the day the decree was issued, she
quit her job. She admitted that, at that time, her preexist-
ing problems with alcohol and drugs worsened and that, in
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
BENJAMIN S. V. CRYSTAL S.
Cite as 313 Neb. 799

the following years, she was charged and convicted of many
criminal offenses in both Nebraska and Colorado.
In October 2015, she was charged with criminal imperson-
ation, driving under suspension, possession of “K2 marijuana,”
possession of drug paraphernalia, and an open container viola-
tion. These charges were dismissed pursuant to a plea agree-
ment. In September 2017, she was charged with possession of
a controlled substance and driving under the influence. These
charges were also resolved via a plea agreement under which
Crystal pleaded guilty to attempted possession of a metham-
phetamine pipe. Also in 2017, Crystal was charged in Colorado
with disorderly conduct, harassment, attempt to influence a
public servant, criminal impersonation, driving while impaired,
and driving without a license. Pursuant to a plea agreement,
Crystal pleaded guilty to harassment, criminal impersonation,
and driving while impaired, and the remaining charges were
dismissed. Crystal was sentenced to probation.
Crystal did not have a job from September 2015 until some-
time in 2018 and then only briefly held employment. She tes-
tified that during this period of unemployment, she was “just
messing up” her life. She sold all her possessions and lived
with a boyfriend who supported her financially. Crystal admit-
ted that she had very little contact with the children during this
time. She testified that the last time she spent time with her
children was during a supervised visit in January 2016.
Crystal was arrested in Colorado in August 2019 for vio-
lations of probation. At the time of her arrest, a controlled
substance, Suboxone, was discovered in her vehicle. She tes-
tified that this was the last time she used drugs or alcohol.
Later that month, she was sentenced to 2 years’ imprisonment
in Colorado.
Crystal testified that after 6 months in prison, she was
placed in a halfway house. While at the halfway house, she
worked at a fast-food restaurant up to 30 hours per week.
Crystal testified that all her drug tests at the halfway house
were negative and that she reported this to Benjamin at the
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
BENJAMIN S. V. CRYSTAL S.
Cite as 313 Neb. 799

time. On August 11, 2020, while living at the halfway house,
Crystal filed her complaint for modification.
Crystal testified that at the end of September 2020, she
moved to Kimball, Nebraska. There, she obtained full-time
employment, as well as additional part-time jobs. According to
Crystal, her full-time employer required drug tests, and all her
tests were negative.
At the time of trial, Crystal had been living in Sidney for
approximately 2 months with her brother. She continued to
commute to her job in Kimball, but, due to the move, shifted
to a part-time position. She admitted that at the time of trial,
she was facing a charge of disturbing the peace in Kimball
County.
Crystal testified that she had learned that sometime in the
year preceding trial, Benjamin’s girlfriend, who resided with
Benjamin and the children, received 18 months’ probation for
assaulting one of the parties’ children. Crystal said that when
she found out, she “dropped to the floor crying.” She described
herself as “heartbroken,” knowing she could not be there.
Crystal testified that in August 2021, she presented the dis-
solution decree to the children’s school and asked for informa-
tion about them. Crystal testified that the school refused to
release information to her and told her she needed an “up-to-
date” decree. Crystal also recalled trying to attend a Christmas
program at her children’s school the week before trial. She
testified that she was told to leave.
At the time of trial, Crystal had never made any child sup-
port payments, and her arrears had accrued to over $61,000.
She admitted that she was aware of her responsibility to pay
child support as set forth in the decree and that, at some points,
she had the ability to make some support payments. Crystal
explained that she thought her payments were automatically
taken out of her employment checks. Due to direct deposit,
she never saw any of her paystubs, but she “never really
paid attention.” She admitted that she did not ask any of her
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
BENJAMIN S. V. CRYSTAL S.
Cite as 313 Neb. 799

employers to garnish her wages and did not ask the State of
Nebraska about the matter.
Regarding medical and daycare expenses, Crystal did not
dispute that she had made no contributions. She testified that
she did not know where the children were in daycare or what
the children’s medical needs were and that she had made offers
to pay medical and daycare expenses, but Benjamin declined
her offers and kept changing his contact information. Crystal
testified that she attempted to apply for Medicaid for the
children, but she discovered that they were already covered
through Benjamin’s girlfriend.
Crystal denied intentionally staying out of her children’s
lives. She did not dispute that she had not participated in
supervised visitation with the children since January 2016.
She recalled, however, that she asked Benjamin to see the
children between 2016 and 2019 and that her attempts to see
them resulted in restraining orders against her that were later
“dropped.” She also testified that her uncle, who was men-
tioned in the decree as a party approved to supervise her visita-
tion, had been uncooperative when she had asked for visitation.
She testified that she had obtained information about the chil-
dren from her uncle on some occasions.
Crystal testified that near the end of 2017, she and Benjamin
started talking to each other. She testified that these conversa-
tions later led to several in-person meetings. Crystal stated
that she asked Benjamin to bring the children to their meetings
and that Benjamin told her he would let her see the children
or provide current pictures of them if he observed changes in
Crystal. During some meetings, Crystal and Benjamin engaged
in sexual activities. Crystal testified that after Benjamin still
refused to allow her to see the children or provide pic-
tures of them, she realized she had been “sleeping with him
for nothing.”
Crystal also testified to her efforts to see the children after
she was released from prison. She testified that because she
did not have Benjamin’s phone number, she contacted him
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
BENJAMIN S. V. CRYSTAL S.
Cite as 313 Neb. 799

via Facebook during this time. According to Crystal, Benjamin
would occasionally respond to her Facebook messages, but if
she asked to see the children, he would ignore the question
or “block” her. Crystal also testified that after Benjamin was
served with her complaint to modify, he “blocked” her. Crystal
testified that she had asked Benjamin to tell the children she
loved them and missed them and to pass along birthday wishes
to them, and he would respond, “Okay,” without sharing infor-
mation about the children in return, despite Crystal’s requests.
Crystal recalled that if she asked Benjamin for pictures, he
would make excuses for not providing them or provide out-
dated pictures.
Crystal admitted that from the dissolution in September
2015 until her incarceration in August 2019, she was an unfit
parent. She testified that this was due in part to her alcohol
abuse and that at that time, she had untreated manic depres-
sion. Crystal acknowledged that the children did not know who
she was at the time of trial, but she testified that she wanted
to reestablish her relationship with them and was willing to
participate in supervised visitation to do so. She believed that
at the time of trial, her lifestyle had changed and she could be
a “beneficial parent.”
Crystal explained that since August 2019, she had taken
steps to improve herself, remained clean and sober, and was
taking her prescribed medication, which helped with her men-
tal health condition. She had also successfully completed
parole in May 2021 without violations. Crystal stated that
in Colorado, she completed a course of intensive outpatient
counseling and the parenting and drug classes required by the
decree. The classes Crystal completed included strategies of
self-improvement related to drugs and alcohol and to learn-
ing about herself and the impact of the things she had done.
Crystal acknowledged that she had not filed an affidavit from
a mental health provider to obtain unsupervised visitation as
provided in the decree.
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
BENJAMIN S. V. CRYSTAL S.
Cite as 313 Neb. 799

Crystal testified that her past lifestyle is something that she
“wouldn’t want to go through again.” Reflecting on it gave
her “a big knot in [her] stomach” because if “[she] could have
done better, [she] would have.” Crystal stated, “I hate myself
for it because I wouldn’t be right here today if I changed.”
Crystal testified that she was not in counseling at the time of
trial due to her move and that her last evaluation at the halfway
house did not recommend ongoing individual counseling.
Benjamin testified that he interfered with Crystal’s efforts
to see the children after the divorce because of her continu-
ing drug and alcohol abuse, but that after the third supervised
visit in 2016, she stopped attending. Benjamin testified that
Crystal had asked to see the children about three or four
times afterward, but she failed to show up. Benjamin did not
know how many times Crystal asked her uncle to arrange
supervised visitation after that, but he testified that she never
asked Benjamin.
Benjamin testified that although he and Crystal had met and
had sex after the divorce, he did not promise her that it would
result in her being allowed to see the children or pictures of
them. According to Benjamin, there were only a couple of
encounters, there was no communication about what was going
in his life or hers, and he regretted the encounters.
Benjamin testified that he had maintained the same job
since 2015 and the same cell phone number. Benjamin testi-
fied that Crystal knew this cell phone number, and he denied
blocking her calls. He admitted blocking Crystal on Facebook,
having decided she should contact him through phone calls
or text messages rather than social media. Benjamin agreed
that the decree did not require Crystal to contact him via
telephone.
Benjamin testified that one of the parties’ children, who
was age 6 at the time, became nervous and upset when
Crystal came to a school Christmas program shortly before
trial and began asking her questions. Benjamin explained the
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
BENJAMIN S. V. CRYSTAL S.
Cite as 313 Neb. 799

child had not seen Crystal since the child was 8 months old
and consequently did not know her. Benjamin testified that
because the child was nervous and upset about the encounter,
the child could not participate in the Christmas program. On
cross-examination, Benjamin admitted that he had not wit-
nessed this encounter.
Benjamin testified that he was home every evening after
work and that he took care of all the children’s needs, including
making sure they got to and from school and were supervised
during the summer break. Benjamin testified that when the
children have asked about Crystal, he has told them that she
still loves them. According to Benjamin, Crystal’s prolonged
absence has not affected the children. He described them as
“pretty happy, healthy,” and successful in school.
Benjamin testified that the children lived with him, his
girlfriend, and his girlfriend’s son. Benjamin admitted that
in 2017, a juvenile action was opened in which there was an
allegation that one of the parties’ children was a neglected
child. Benjamin explained that Crystal was not a party to the
action, but he was. He testified that the action was dismissed
as a result of a plea agreement, the terms of which he did
not recall. When asked whether his girlfriend was convicted
of child abuse the same year, Benjamin responded that “they
cleared it up . . . through the court.” Benjamin also admit-
ted at trial that he was not a legal permanent resident of the
United States. We have disregarded Benjamin’s attempt, made
after oral argument in this court, to submit new information
not contained in the record on appeal regarding his immigra-
tion status.
Benjamin denied ever receiving child support from Crystal
or reimbursement for medical bills or daycare since 2015,
and he denied that Crystal had offered to make financial
contributions toward any of the children’s needs. Benjamin
testified that he had never refused financial support from
Crystal, noting that child support was set up through the State
of Nebraska.
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
BENJAMIN S. V. CRYSTAL S.
Cite as 313 Neb. 799

Crystal’s mother testified that she was familiar with Crystal’s
efforts to see her children since 2016 and to improve her situ-
ation, and she generally corroborated Crystal’s account. A few
months before trial, Crystal’s mother moved to Sidney from
another state to support Crystal, who was depressed about not
having contact with her children.
Order Terminating Parental Rights.
The trial court found that, as to all three children, clear and
convincing evidence supported three of the statutory grounds
for termination alleged by Benjamin: that she had abandoned
the children under Neb. Rev. Stat. § 43-292(1) (Reissue 2016),
that she had substantially and continuously or repeatedly
neglected and refused to give the children necessary care
and protection under § 43-292(2), and that she had willfully
neglected to provide the children the necessary subsistence,
education, or other care necessary for their health, morals, or
welfare under § 43-292(3). Based on Crystal’s efforts after
being incarcerated in Colorado, the district court found that
there was not clear and convincing evidence that she was
“unfit by reason of debauchery, habitual use of intoxicat-
ing liquor or narcotic drugs, or repeated lewd and lascivious
behavior, which conduct is found by the court to be seriously
detrimental to the health, morals, or well-being” of her chil-
dren for purposes of § 43-292(4). The district court also found
that there was not clear and convincing evidence that Crystal
was unable to discharge parental responsibilities because of
mental illness or mental deficiency and that such condition
would continue for a prolonged indeterminate period for pur-
poses of § 43-292(5).
Having found statutory grounds for termination, the district
court proceeded to analyze whether termination of Crystal’s
parental rights would be in the best interests of the children. In
the course of analyzing that issue, the district court discussed
the children’s current living situation with Benjamin and
his girlfriend. The district court acknowledged the evidence
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
BENJAMIN S. V. CRYSTAL S.
Cite as 313 Neb. 799

that Benjamin’s girlfriend was “convicted of negligent child
abuse involving [one of the children] in 2017,” but observed
that thereafter, “the family has remained together.” Primarily
emphasizing the number of years that had passed since Crystal
had meaningful contact with the children, the district court
went on to find that termination would be in the children’s best
interests and granted Benjamin’s motion. The district court did
not expressly analyze whether Crystal was presently unfit to
exercise parental rights.
Crystal appeals.
ASSIGNMENTS OF ERROR
Crystal assigns, condensed and restated, that the trial court
erred in determining (1) that statutory grounds existed to ter-
minate her parental rights under § 43-292(1) (abandonment),
§ 43-292(2) (willful neglect), and § 43-292(3) (lack of finan-
cial support), and (2) that terminating her parental rights was in
the children’s best interests.
STANDARD OF REVIEW
[1,2] Termination of parental rights cases raised under
§ 42-364(5) are reviewed de novo on the record, and an appel-
late court is required to reach a conclusion independent of the
lower court’s findings. See Wayne G. v. Jacqueline W., 288
Neb. 262, 847 N.W.2d 85 (2014). However, when the evidence
is in conflict, the appellate court will consider and give weight
to the fact that the lower court observed the witnesses and
accepted one version of the facts over the other. Id.
ANALYSIS
Although Crystal initiated this matter as a modification
proceeding, Benjamin’s responsive pleading placed termina-
tion of Crystal’s parental rights “in issue.” See § 42-364(5).
In such cases, the Nebraska Juvenile Code governs the ques-
tion of termination. See § 42-364(5). Under the Nebraska
Juvenile Code, terminating parental rights requires both clear
and convincing evidence that one of the statutory grounds
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
BENJAMIN S. V. CRYSTAL S.
Cite as 313 Neb. 799

enumerated in § 43-292 exists and clear and convincing evi-
dence that termination is in the best interests of the children.
See § 43-292. See, also, In re Interest of Donald B. & Devin
B., 304 Neb. 239, 933 N.W.2d 864 (2019). Clear and convinc-
ing evidence means the amount of evidence which produces in
the trier of fact a firm belief or conviction about the existence
of a fact to be proved; clear and convincing evidence is more
than a preponderance of the evidence, but less than proof
beyond a reasonable doubt. See In re Interest of Justine J. &
Sylissa J., 288 Neb. 607, 849 N.W.2d 509 (2014).
Crystal’s first several assignments of error challenge the
district court’s determination that Benjamin proved three statu-
tory grounds for termination. However, given the evidence
regarding Crystal’s actions in the years immediately following
the entry of the dissolution decree, the district court’s determi-
nation that there were statutory grounds for termination does
not appear to be unfounded. In particular, it would be difficult,
in light of the evidence described in the background section
above, to conclude that the district court erred in finding
clear and convincing evidence that Crystal “substantially and
continuously or repeatedly neglected and refused to give [the
children] necessary parental care and protection” pursuant to
§ 43-292(2) or that, “being financially able,” Crystal neglected
to pay for the children’s “subsistence, education, or other care”
as ordered by the court, pursuant to § 43-292(3).
Given the evidence that Crystal has more recently demon-
strated an interest in being a part of her children’s lives, she
may have a stronger argument that the district court erred by
finding that she, for purposes of § 43-292(1), “abandoned
the juvenile for six months or more immediately prior to
the filing of the petition.” See In re Interest of Gabriella H.,
289 Neb. 323, 329, 855 N.W.2d 368, 374 (2014) (abandon-
ment for 6 months preceding termination motion pursuant
to § 43-292(1) requires evidence of “a settled purpose to be
rid of all parental obligations and to forgo all parental rights,
together with a complete repudiation of parenthood and an
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
BENJAMIN S. V. CRYSTAL S.
Cite as 313 Neb. 799

abandonment of parental rights and responsibilities”). That
said, we find it ultimately unnecessary to determine whether
any of the district court’s findings regarding statutory grounds
were correct. As we see it, this case turns on Crystal’s final
assignment of error—that the district court erred by finding
that termination of her parental rights was in the children’s
best interests.
[3] As noted above, Crystal’s parental rights could be ter-
minated only if there was both clear and convincing evidence
of at least one statutory ground for termination and clear and
convincing evidence that termination is in the best interests of
the children. Whereas statutory grounds are based on a parent’s
past conduct, the best interests inquiry focuses on the future
well-being of the child. In re Interest of Mateo L. et al., 309
Neb. 565, 961 N.W.2d 516 (2021). “While proof of the former
will often bear on the latter, a court may not simply assume
that the existence of a statutory ground for termination neces-
sarily means that termination would be in the best interests of
the child.” Kenneth C. v. Lacie H., 286 Neb. 799, 811, 839
N.W.2d 305, 314 (2013).
[4,5] Proving that termination would be in the best inter-
ests of the child is a high hurdle because a parent’s right to
raise his or her children is constitutionally protected. See In
re Interest of Mateo L. et al., supra. See, also, Kenneth C. v.
Lacie H., supra, citing Santosky v. Kramer, 455 U.S. 745, 102
S. Ct. 1388, 71 L. Ed. 2d 599 (1982). Therefore, we apply a
rebuttable presumption that it is in the child’s best interests to
maintain a relationship with his or her parent. In re Interest
of Mateo L. et al., supra. In termination proceedings initiated
by the State, this presumption can be overcome by proof of
parental unfitness. See, Kenneth C. v. Lacie H., supra; In re
Interest of Xavier H., 274 Neb. 331, 740 N.W.2d 13 (2007).
“That is no less true where, as here, one parent asks a court to
terminate the other parent’s rights with respect to their child.”
Kenneth C. v. Lacie H., 286 Neb. at 811, 839 N.W.2d at 314.
Parental unfitness means a personal deficiency or incapacity
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
BENJAMIN S. V. CRYSTAL S.
Cite as 313 Neb. 799

that has prevented, or will probably prevent, performance of
a reasonable parental obligation in child rearing and that has
caused, or probably will result in, detriment to a child’s well-
being. In re Interest of Mateo L. et al., supra. Benjamin’s
counsel acknowledged at oral argument that for Crystal’s
parental rights to be terminated, he had to demonstrate that
she was unfit.
Benjamin adduced a great deal of evidence that from the
time the dissolution decree was entered in December 2015 until
the time Crystal began her incarceration in Colorado in August
2019, Crystal was not able to meet her basic obligations as a
parent. The evidence shows that during this time, Crystal’s life
was characterized by drug and alcohol abuse, unemployment,
and unlawful behavior, as well as failures to comply with clear
directives in the dissolution decree. Indeed, by Crystal’s own
admission, she was an unfit parent at that time. But although
there is considerable evidence that Crystal was previously inca-
pable of fulfilling her parental obligations, there is very little
evidence in the record that tended to show that, at the time of
trial, Crystal was an unfit parent.
In fact, to the extent that there is any evidence in the
record about Crystal’s fitness as a parent at the time of trial,
it reflects that in the months and years following her incar-
ceration, she had sought to make personal improvements and
made progress. The evidence shows that after her arrest, she
became and remained sober. She completed classes to learn
strategies of self-improvement related to drugs and alcohol
and to learn about herself and the impact of the things she had
done. She attended intensive outpatient counseling. She took
the medication prescribed for her mental health condition.
She obtained and kept employment. She expressed interest
in seeing the children in both her complaint to modify and in
Facebook messages to Benjamin. And at trial, she expressed
regret about her past mistakes and recognized their negative
effect on her relationship with her children. No witness, other
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
BENJAMIN S. V. CRYSTAL S.
Cite as 313 Neb. 799

than Crystal herself, testified about her parental fitness, and
Crystal believed that at the time of trial, she was fit.
Not only does the record lack evidence of Crystal’s unfitness
as of the time of trial, there is also relatively little evidence that
tends to show that termination of Crystal’s parental rights was
in the children’s best interests. Benjamin could obtain an order
of termination only if he showed that termination would be in
the children’s best interests, and yet, the children are little more
than faint outlines in this record. Information about the chil-
dren consisted of Benjamin’s conclusion that he was meeting
their basic needs and that they were “pretty happy, healthy,”
and doing well in school. There was some testimony that the
children did not know Crystal and that one of the children had
become upset when Crystal attended a Christmas program as
the decree authorized her to do. There was no firsthand evi-
dence about this incident, however, and no testimony, expert or
otherwise, about the children’s attitudes toward Crystal gener-
ally or how termination of Crystal’s parental rights, or, alterna-
tively, a newly established relationship with her, might affect
them. The record also lacked specific evidence about whether
the children were bonded to Benjamin, other family in the area,
or anyone else.
Although the evidence pertaining directly to the children
was minimal, there was other evidence in the record regard-
ing the children’s present living situation that, in our view,
cuts against termination of Crystal’s parental rights. As noted
above, at the time of trial, the children lived with Benjamin
and his girlfriend. Crystal testified that Benjamin’s girlfriend
had been placed on probation as a result of allegations that
she assaulted one of the children. Benjamin did not dispute
that his girlfriend was convicted of child abuse and admitted
that the issue was “cleared [up] through the court.” Further,
Benjamin admitted at trial that he is not a legal permanent
resident of the United States. We acknowledge that the record
does not disclose additional details regarding abuse allega-
tions against Benjamin’s girlfriend or Benjamin’s immigration
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BENJAMIN S. V. CRYSTAL S.
Cite as 313 Neb. 799

status. Even so, in considering whether it is in the children’s
best interests to “judicial[ly] foreclos[e]” any future relation-
ship with and support from Crystal, this evidence regarding
the children’s other parent and their living situation with him
gives us pause. See Kenneth C. v. Lacie H., 286 Neb. 799,
813, 839 N.W.2d 305, 315 (2013).
For his part, Benjamin disputes Crystal’s contention that he
failed to show that she was unfit or that termination was in the
children’s best interests. In support of this position, he identi-
fies the fact that, after a handful of supervised visits in 2016,
Crystal has been absent from the children’s lives; the evidence
of Crystal’s prior drug use and criminal convictions; and the
fact that even after she filed her complaint to modify, she has
failed to meet her child support and other obligations set forth
in the decree. As we will explain, we find Benjamin’s argu-
ments unavailing.
We have acknowledged Crystal’s past mistakes and addi-
tionally acknowledge that Crystal has had little to no contact
with the children since 2016. On this record, however, we
do not attribute the same significance to these facts for pur-
poses of the unfitness or best interests inquiries that Benjamin
does. We believe this to be consistent with our precedent. In
Kenneth C. v. Lacie H., 286 Neb. at 813, 839 N.W.2d at 315,
a child’s unmarried parents had a “brief, stormy” relationship,
in which the father, among other things, held a knife to the
mother in the presence of the child. For years afterward, the
father had no contact with the child and provided no financial
support. When the father later initiated paternity proceed-
ings and requested visitation with the child, the mother asked
that the father’s parental rights be terminated and prevailed
in district court. On appeal, we agreed that the mother had
demonstrated statutory grounds for termination. We likewise
recognized that the father had not fulfilled his parental obli-
gations in the past, that there were concerns about his prior
behavior, and that the father was, at that time, a stranger to
the child. Even so, we found no evidence that the father was
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
BENJAMIN S. V. CRYSTAL S.
Cite as 313 Neb. 799

presently unfit and no explanation of how the child’s best
interests would be served by cutting off the possibility of any
future parental relationship.
As for Crystal’s failure to meet her support obligations
even after her release from prison and the filing of her com-
plaint to modify, we do not excuse either this noncompliance
with the dissolution decree or the alleged acts that led to her
more recent disturbing the peace charge. This limited evi-
dence regarding Crystal’s actions in the years immediately
preceding trial, however, does not persuade us that she is pres-
ently an unfit parent or that termination is in the children’s
best interests.
Prior to concluding, we find it important to emphasize
the precise question before us and thus the relatively narrow
grounds for our decision in this case. We are not presented
with the question of whether Crystal’s parenting time should be
expanded or made unsupervised, let alone whether she should
have physical or legal custody of the children. Neither do
we have before us Benjamin’s request that additional restric-
tions be placed on Crystal’s parenting time. Rather, the sole
question before us in this appeal is whether Crystal’s parental
rights, limited as they were already by the dissolution decree,
should be permanently terminated. To affirm the district court’s
decision on this point, we would have to find, in our de novo
review, evidence producing a firm belief or conviction that
Crystal is unfit to have parental rights and that permanent
termination of her parental rights is in the best interests of the
children. For the reasons we have discussed in this opinion,
we do not find such evidence in this record. On this basis, we
reverse the district court’s termination decision.
We express no view regarding the parties’ respective
requests to modify the decree or how the district court might
structure a modified parenting plan within the context of
modification proceedings. We also acknowledge the passage
of time since the parties filed their respective requests for
modification and observe that this opinion should not be
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
BENJAMIN S. V. CRYSTAL S.
Cite as 313 Neb. 799

understood to preclude the district court from permitting the
parties to amend their earlier requests for modification to
account for intervening factual developments.
CONCLUSION
Because we conclude that there was not clear and convinc-
ing evidence that terminating Crystal’s parental rights was
in the children’s best interests, we reverse the termination
order and remand the cause to the district court for further
proceedings.
Reversed and remanded for
further proceedings.